Reply Brief — Jacques v. Aldrich

fupreme Court, U.S.

> FILED

FEB 15 1986

No. 85-489 JOSEPH F. SPANIOL, JR.

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gn The

Supreme Court of the Cited States

ee

October Term, 1985

ee

LEONARD C. JAQUES,

Petitioner,

Vv.

THE HONORABLE ANN ALDRICH,

UNITED STATES DISTRICT JUDGE

FOR THE NORTHERN DISTRICT OF OHIO,

and REISS STEAMSHIP COMPANY,

Respondents.

———

ON PETITION FOR CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITIONER’S REPLY BRIEF

IN SUPPORT OF PETITION FOR CERTIORARI

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f < D | GROMEK, BENDURE & THOMAS

| Attorneys for Petitioner

“xT By: MARK R. BENDURE

FEB 15 1300 Counsel of Record

OFFIGE UF inc ULERK 577 E. Larned, Suite 210

« SUPREME COURT, U.S. Detroit, Michigan 48226

pgm inca ean - 4 (313) 961-1525

Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226-2003

(313) 962-8745

TABLE OF CONTENTS

PAGE

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Argument:

I. WHETHER, IN A CONTEMPT ACTION AGAINST

AN ATTORNEY, THE “CIVIL” NATURE OF THE

CHARGE RENDERS INAPPLICABLE THE PROTEC-

TIONS AFFORDED BY DUE PROCESS GUARAN-

TEES TO ALLEGED CRIMINAL CONTEMNORS. 2

Il. THE CONSTRUCTION OF 18 USC § 401(3) 7

Ill. THE CONSTRUCTION OF 18 USC § 401(1) 8

NI 6 SG re We ued 6 pee ae a eS Oe 10

INDEX OF AUTHORITIES

CASES:

Cammer v United States, 350 U.S. 399 (1956) ...... 7

In re Jaques, 761 F2d 302 (6th Cir, 1985) ......... 1

ie we Clty, Be Ue. or CMD ow ow cc cc aes 7

Nye v United States, 313 U.S. 331 (1941) ......... 7

United States v Rylander, 460 U.S. 752 (1983) ...... 5, 6

STATUTES:

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No. 85-489

jn The

Supreme Court of the Anited States

el

October Term, 1985

ae

LEONARD C. JAQUES,

Petitioner,

Vv.

THE HONORABLE ANN ALDRICH,

UNITED STATES DISTRICT JUDGE

FOR THE NORTHERN DISTRICT OF OHIO,

and REISS STEAMSHIP COMPANY,

Respondents.

we

ON PETITION FOR CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITIONER’S REPLY BRIEF

IN SUPPORT OF PETITION FOR CERTIORARI

STATEMENT OF THE CASE

This Petition for Writ of Certiorari arises from the split

decision of the United States Court of Appeals for the

Sixth Circuit [In re Jaques, 761 F2d 302 (6th Cir, 1985)] affir-

ming the contempt citation of an attorney. A full Statement

of the Case has been provided in the Petition at pp. 2-10.

Instead of restating the facts at length, Petitioner will dis-

cuss them in the context of the issues presented.

2

ARGUMENT

I.

WHETHER, IN A CONTEMPT ACTION AGAINST AN ATTOR-

NEY, THE “CIVIL” NATURE OF THE CHARGE RENDERS

INAPPLICABLE THE PROTECTIONS AFFORDED BY DUE PRO-

CESS GUARANTEES TO ALLEGED CRIMINAL CONTEMNORS.

The issue presented is whether the traditional due process

rights of alleged contemnors [imposition of the burden of

proof on the charging party; the prohibition against a con-

tempt citation which has no evidentiary basis; the right to

confront adverse witnesses (to be free from a citation based

on ex parte communications with the fact-finder); and the

right to an impartial decision-maker] are inapplicable be-

cause of the “civil” nature of the charges. In her Brief in

Opposition (“Opposition”), Respondent contends that this

issue is not preserved, that Petitioner was afforded all due

process rights, and that this Court should not grant review.

To be sure, Petitioner did not enmesh himself in an ex-

tended discussion of the nuances of “civil” contempt during

the contempt hearing. This is scarcely surprising since

Respondent herself declined to respond to Petitioner's

attempt to discern whether the proceedings were “civil” or

“criminal” (53a, 54a). Indeed, Respondent believed that she

was dealing with a “criminal” contempt (27a). The appellate

judges divided on the proper characterization of the pro-

ceedings. Petitioner cannot be faulted for failing to present

issues of “civil” contempt jurisprudence in the trial court

when the case was “criminal” in that forum.

The Court of Appeals found no “preservation” impedi-

ment, as it decided the constitutional question on the merits.

This Court should likewise deem the issue preserved.

The issues which Petitioner seeks to have reviewed by this

Court were all presented to the Court of Appeals. There,

Petitioner urged that the contempt citation be reversed on

the ground that there was no way to confidently determine

3

whether the contempt proceedings were criminal or civil in

nature [Appellant’s Brief on Appeal (“Brief”), pp. 18-20].

Because of this uncertainty, Petitioner assumed that they

were criminal, but contended that the same outcome would

be required under a civil contempt analysis, and that the due

process rights implicated were the same in either event

(Brief, p. 21, fn. 9; p. 38, fn. 12). Specifically, Petitioner

claimed that he had been denied due process by the Court

thrusting upon him the burden of disproving the contempt

charges (Brief, pp. 22-24, 39), by a contempt finding reached

despite the lack of any supporting evidence presented at the

hearing (Brief, pp. 22-24, 33, 39), by the Court’s reliance on

ex parte conversations conducted in Petitioner's absence

(Brief, pp. 31, 33, 40-42), and by the partiality and multiple

capacities of the trial judge (Brief, pp. 42-49).

Finally, the precise issue presented stems from the un-

anticipated tack taken by the Sixth Circuit majority in justify-

ing affirmance. Until issuance of the appellate decision,

there was no construction of the contempt as “civil,” and

consequently there was no occasion to consider the constitu-

tional implications flowing from use of that label. Petitioner

has amply “preserved” his quest for review of the rationale

employed by the Court of Appeals.

Respondent has alleged that Petitioner in fact received the

procedural protection that would have existed if the con-

tempt proceeding were viewed as “criminal” (Opposition,

pp- 7-10). Suffice it to note that the Court of Appeals was un-

able to conclude that Petitioner was afforded the due process

protections available to an alleged criminal contemnor; it

was able to affirm only on the basis that, because of the

“civil” nature of the proceedings, these protections did not

apply.

Respondent suggests that the trial court was justified in

finding Petitioner in contempt without any formal evidence

because she already had personal knowledge of all the facts

before the hearing was conducted. Let us temporarily over-

look the independent due process problems presented by a

+

contempt citation issued by a fact-finder that had already

prejudged the outcome prior to providing the accused an

opportunity to be heard. Respondent's contention is factu-

ally untenable. At the contempt hearing, ' and in her Memo-

randum and Order,” Respondent relied on unproven “facts”

which were plainly not within the Court’s own knowledge,

and could only have been gleaned from ex parte conversa-

tions with others (never presented as witnesses) conducted

in Petitioner’s absence.

In finding Petitioner guilty of misrepresentation (see Issue

III), the Court was, at the least, required to compare the rep-

resentations with the actual facts. She was required to deter-

mine what Baun told her clerk (purportedly, that Petitioner

was engaged in trial in Baltimore) with the actual facts

(whether he was in Baltimore). Respondent had first-hand

knowledge of neither component.

Regarding the allegation that Petitioner disobeyed an

“order,” the Court was required to determine what was told

to Petitioner (i.e., what he was “ordered” to do) (Issue II).

This, in turn, hinges on what Respondent's clerk said to

Petitioner, another matter outside the Court’s personal

knowledge. Whether Petitioner obtained adequate substi-

tute counsel (which Respondent deemed would satisfy any

order to attend) depended on Mr. Swickle’s ability to try the

case in Petitioner’s stead, a matter on which the Court de-

pended on statements made to her by Swickle in Petitioner's

absence,

' See 50a, 53a, 54a, 56a, 62a (conversations between Respondent and

Judge Howard); 50a (conversations between Mr. Baun and Mr. Swickle).

The judge also referred to conversations involving “the Court,” which

apparently were actually between Baun and the Court's clerk and presum-

ably related to the judge by her clerk (see 49a, 69a, 70a, 71a).

2 See 18a, 21a, 34a (conversations between Respondent and Judge

Howard); 20a (conversations between Mr. Baun and Mr. Swickle); 22a,

25a, 27a, 31a (conversations between Respondent and Mr. Swickle). This

was done despite Petitioner's contention at the contempt hearing that the

Court was mistaken and misinformed as to the actual occurrences (72a).

5

This was not one of the extraordinary “direct” contempts

in which, since all relevant facts are known to the court

through its own senses, the court may summarily issue a

finding of contempt allowing only an opportunity for the

contemnor to allocute regarding factors which may mitigate

punishment (see Petition, pp. 11-13). It was not so treated by

either of the lower courts, and should not be so treated by

this Court.

As her alternative argument, Respondent posits that it

was entirely proper for her to impose on Petitioner the bur-

den of disproving the contempt charges, citing United States

v Rylander, 460 U.S. 752 (1983). Rylander involved the unique

two-stage procedure for enforcement of an IRS summons. In

Rylander, the Respondent was served with a summons and

failed to produce the documents sought, thus commencing

the first-stage proceedings to obtain an order enforcing the

summons. At this hearing, the Court ordered enforcement,

a ruling which conclusively established that Rylander was

then in possession of the records sought (460 U.S. at 756-

757, 760). There was no claim that Rylander was given any-

thing less than a full, fair, and constitutionally adequate

hearing at this time.

Rylander then disobeyed the enforcement order, thus trig-

gering the second stage: a contempt hearing for non-

compliance (460 U.S. at 760). The contention available to the

non-producer was the lack of present possession, a conten-

tion denominated a “defense” by the Rylander Court (460

U.S. at 755, 757, 760). Settled procedures imposed on the

alleged contemnor the burden of coming forward with evi-

dence to disprove the presumption arising from the initial

enforcement order (460 U.S. at 755, 757, 760).

Unlike this case, the trial judge in Rylander endeavored to

hold a testimenial contempt hearing. When Rylander re-

fused to submit to cross-examination, asserting the privilege

against self-incrimination, the District Court found that

Rylander had failed to present evidence in support of the

defense of non-possession, and therefore issued a contempt

citation which this Court ultimately sustained.

6

Nothing in the Rylander opinion supports the broad prop-

osition that the burden of proof in all civil contempt actions

is imposed on the accused. The decision in that case is

limited to its facts and to the unique two-stage setting in

which civil contempt may be invoked to enforce an IRS sum-

mons. It is one thing to say that one who has had a full and

fair hearing on the issue of possession of records, and who

is afforded a second testimonial hearing, may be held to the

burden of refuting a presumption arising from the prior ad-

judication. It is quite another to say, as Respondent sug-

gests, that Petitioner was entitled to no testimonial hearing

at all and was forced to disprove allegations never previ-

ously adjudicated.

Petitioner has previously pointed out the unprecedented

tack taken by the Sixth Circuit in making the “civil” or “crim-

inal” nature of the proceedings determinative of whether

due process requires anything more than notice of the

charges and an opportunity to be heard. Wher’ *iv* wer

courts have erred is in viewing the critical di Scten as

“civil/criminal” rather than “direct/indirect” (Petition, pp.

11-20).

In response, Respondent points out that the distinction

between civil and criminal contempts has long been recog-

nized (Opposition, p. 11). This observation misses the mark.

To be sure, the theoretical nuances distinguishing the two

may be generally understood, though difficult to apply. The

fine line that divides the two is simply not what this case is

all about.

What is involved is the issue of whether the “civil” label

renders inapplicable such fundamental procedural protec-

tions as the right to insist that the charging party bear the

burden of proving the allegations by competent evidence,

and the right to be free from a conviction predicated on ex

parte conversations conducted by the fact-finder in the

accused’s absence. Those questions have never been ad-

dressed by this Court. They should be.

/

Il.

THE CONSTRUCTION OF 18 USC § 401(3)

The ruling below finds Petitioner in contempt for the fact

that Mr. Swickle appeared to represent the plaintiff in

Ahmed, rather than Petitioner who was verbally informed

that his attendance was “expected.” Thus are raised impor-

tant issues of statutory construction: whether a telephonic

message of expectation is an “order” within the meaning of

18 USC § 401(3) and, if so, whether an attorney fulfills his

obligation by obtaining the appearance of an associate in his

stead (Petition, pp. 21. .).

Respondent urges (nat trial courts who contemplate in-

voking the contempt power should not be required to first

employ formal orders, because it would be “burdensome” to

do so (Opposition, p. 17). There is room for serious debate

over how “burdensome” it would really be for courts to

employ orders when they intend to find in contempt those

who ruffle judicial feathers. What is beyond debate is that

these are the sort of policy decisions which have already

been made by Congress when it enacted 18 USC § 401(3)

with the intent to severely circumscribe use of the awesome

contempt power. Nye v United States, 313 U.S. 331 (1941);

Cammer v United States, 350 U.S. 399 (1956). It is not the pro-

vince of this Court to second-guess the wisdom of the

“burdensome” limitations which Congress intentionally

interposed.

Respondent also acknowledges in principle that Mr.

Swickle’s presence might be deemed to fulfill any obligation

imposed by the “Order” if he had “full authority to settle

and to try the case” (Opposition, p. 18). She argues, how-

ever, that he was not an “adequate substitute.”

The first flaw with this argument is that the impression

that Mr. Swickle was not an adequate substitute was an im-

pression which the Court gleaned from the conversations

with Swickle on October 26th conducted in Petitioner's

absence. In re Oliver, 333 U.S. 257 (1948) makes clear the

8

constitutional impermissibility of premising a contempt find-

ing on “facts” developed in this ex parte fashion.

The second flaw is the notion that any attorney ever has the

authority to unilaterally settle the client’s case. On October

26, 1983, progress was made toward settlement, Swickle dis-

cussed the settlement offer with the client, and it was Mr.

Ahmed who resisted settlement (44a-45a; 68a). The ade-

quacy of Mr. Swickle is not impugned by his adherence to

ethical strictures which forbade him from compromising his

client’s cause over the client’s objection.

The final flaw is that there is absolutely no record support

for the contention that Mr. Swickle was not prepared to try

the case. This question was not even addressed at the pro-

ceedings of October 26th (43a-46a), and at the contempt

hearing, both Swickle and Petitioner confirmed that the

former was prepared to try the case (56a, 58a, 59a, 66a-67a,

68a).

Mr. Swickle was a demonstrably “adequate” substitute.

This case squarely presents the issue on which the circuit

courts are divided: whether an attorney who obtains ade-

quate substitute counsel may nonetheless be heid in con-

tempt for the failure to personally appear.

iil.

THE CCNSTRUCTION OF 18 USC § 401(1)

Petitioner has challenged the rulings below which find

him in contempt under 18 USC § 401(1) for purportedly mis-

representing to the Ohio trial judge that he was engaged in

trial in Baitimore. He has contended that he made no such

representations; that § 401(1) is not to be constiued as per-

mitting vicarious contempt liability for purported misrep-

resentations made by his associate, Mr. Baun; and that any

misrepresentations by Baun from Baltimore did not occur

“so near” to Respondent in the geographic sense used in the

statute (Petition, pp. 27-29).

9

At the contempt hearing, Respondent continually referred

to alleged misrepresentations made by Petitioner (53a, 54a,

62a). In her Memorandum and Order, as well, she found

that Petitioner himself made misrepresentations (23a, 29a,

30a). Her Opposition fails to cite a single alleged misrep-

resentation made by Petitioner, and tacitly admits that Peti-

tioner himself made no actionable misrepresentation.

Recognizing the untenability of any contempt citation pre-

dicated on Baun’s telephone call, Respondent disavows any

such holding, and now claims that the misrepresentation for

which Petitioner was held liable was that of Swickle?

(Cpposition, pp. 21, 22). There are substantial grounds for

questioning the accuracy of the construction currently

offered by Respondent, * but in any event the contempt cita-

tion is no,more tenable under the Swickle rationale than

under the Baun rationale previously addressed.

> It is also contended that the misconduct under § 401(1) consisted in

Petitioner's October 19th telephone call requesting a continuance and his

failure to appear at trial on the 26th (Opposition, p. 20). This contention

cannot withstand scrutiny.

Petitioner was not in the Court’s presence or in close physical proximity

on the 26th. Indeed, it was the very fact that Petitioner was not nearby that

provoked the institution of contempt proceedings.

One is at a complete loss to understand how the telephone call of the

19th requesting an adjournment constitutes contumacious misconduct by

Petitioner. The call was made by unnamed office personnel rather than

Petitioner and accurately related the current status of the Baltimore trial

(19a-20a). Even if the prediction that the trial would be completed five

days later could somehow be deemed the sort of representation of fact

upon which to hang a contempt conviction, the relevant conduct occurred

in Detroit and is therefore beyond the scope of § 401(1) for the same

reasons discussed regarding Baun’s Baltimore call.

* At the contempt hearing, the Court made only one oblique reference

to purported statements by Swickle regarding Petitioner's whereabouts,

“there was a discussion and representations made by counsel [on October

26th]” (60a). In contrast, the Court repeatedly referred to the Baun cail

(49a, 69a, 70a, 71a). When Respondent discussed the “two problems” [two

charges], one of these was “the representation that was made by Mr. Baun

on the telephone on Tuesday evening that you would in fact be in Balti-

more on Wednesday” (65a). The Court of Appeals did not construe the

contempt finding in the fashion advocated by Respondent. Both the lead

Opinion and Dissent referred only to the Baun phone call (2a, 16a). It is

thus quite clear that it was the Baun telephone call which was the pur-

ported misrepresentation for which Petitioner was found vicariously liable.

10

Concededly the hypothesis that the critical representations

were those of Swickle would defeat Petitioner's contention

that § 401(1) is unsatisfied due to the absence of the “ presence

or so near” element. Unlike the statements of Baun, those of

Swickle were in fact made in the Court's presence.

To cast the case in this fashion, however, demonstrates all

the more vividly the unconstitutionality of the proceedings

below. The only statement of Swickie in this regard is (43a):

“THE COURT: . .. Mr. Swickle, do you have any idea where

Mr. Jacques (sic) is today?

MR. SWICKLE: No, I don’t. To my knowledge, he is in

Baltimore in this trial.”

There is not a scintilla of evidence that Swickle in fact knew

where Petitioner was or that he knew that Petitioner was not

in Baltimore. Respondent has not even suggested that there

exists any evidence that the quoted statements were untrue.

That Petitioner has been found in contempt for Swickle’s hon-

est response to the Court’s question vividly demonstrates the

manifest injustice wrought by the decisions below.

Thus, we are brought full circle back to the question of

whether one may constitutionally be held in contempt in the

utter absence of any competent evidence adduced in support

of the charges, simply because the contempt is denominated

“civil.” The central due process and statutory construction

issues warrant this Court's attention.

CONCLUSION

Petitioner submits that the issues presented are worthy of

this Court’s attention. Respondent's Brief in Opposition does

not detract from this conclusion. A writ of certiorari should

be issued.

Respectfully submitted,

GROMEK, BENDURE & THOMAS

Attorneys for Petitioner

By: /s/ MARK R. BENDURE

Counsel of Record

Dated: 577 E. Larned, Suite 210

February 6, 1986 Detroit, Michigan 48226 (313) 961-1525