Petition for Writ of Certiorari — Burton v. Florida

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siamnaaesammntanmaents , — det Ea is!S CLERK. |

_ In THe

. Supreme Court of the United States

OcToREK Term, 1961 | -

> ‘

In the Matier of

Liigan CLAwANs, an Attorney,

. _(Charged with Contempt of Court),

Petitioner. &

PETITION FOR WRIT OF CERTIORARI TO THE.

SUPREME COURT OF NEW JERSEY. ©

\ #AND-APPELLATE-DIVISION OF THE™

SUPERIOR COURT: OF NEW- JERSEY

ey aeons

Ricnarp L. Merrick,

Suite 1012 Barr Building,

910 Seventeénth St., N. W.,

Washington 6, D: C.,

* Attorney for Pe titioner

~Warren FE. Macer,

Suite 745 Shoreham Building:

Washington 5, D. C.,

Of Counsel for Petitioner.

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INDEX

= TOPICS

| Ree Sane

Constitutional Provision and Statutes Involved

RRR AORSISE SSAA tal Teme, SO

Jurisdiction... Sade ieee sienna eases *

; Opinion I it. ibainsitainllnntirsee vsimsigamnibedy bees

Questions Presented 2002000000... clean ah oglenpecemeneneinicioncs

- Reasons for Granting the Writ SLL SREP ee Cates

Specific ation of Errors to be U a: shes eidcecieanchatecasgicon.

Statement of the Case nL

Statutes and Constitutional’ Provision Involved Sine :

<n Doe 7S EOF CASES

American Rail ay Express is Co. ve Levee, 263 v S. 19,

21, Raa Rea Re ce

Appr al of Verdon, 9 NLA. 401, 104 AL 317

OT.

Berger v. U.S8.,.255 U.S. 22, 35, 36, 41.8. Ct. 0,

65 L. Ed. 481. me

Bozorth,- In re, 8 iN. J. Sujer! 1S4, Ws ‘. Md 430

Clawans, In re, 69 N.I. Super. Rep. 43, 174 Ae 2

va 367 ; ial eae Ruby Eee Feed baie

Chawans v. Wavgh, WN. SI. Supe r. nag Beste

Caruba, In re, V39N. zs Fy. 404, 2d 446

Cooke v. U.S .. 267 :*U-CS. 517. Oo L. 5 767

* Franklin y. Franklin, Sid A. PA GGOSAT 165 A. 2d 665,

2N.J. 18 . edd

Morey v. Elliott. 167 : Ss. 401, ws : we t. ‘S41. 2 i Ei 7

215. ee

In re Boz corth. eo rea Siper. AS4, 1s A. 2d 4: 0.

- ° ° a

. ** — INDEX— Continued

_ * VAGh

In re Clawans, 69.N.I. Super: ‘Rep: 373, 174-A. 2d

SE peibccpnicieas me sodengrerneny 2

In re Caruba, 139 N. J. Fa. 404, BI AL 2 465 one |

Larqent v. Teras, 318 U.S. 418-87. L. Ed. 873 000000 38

Maginnis vy. Parkhurst, 4 N.J. Ky. (A

Marino v. Cocuczza, 81 A. 2d et Gavcecmtibateds Liieghandatdonie te WO EN

McClure vy. Gullick, VN. I. fr olan a ara i

Offutt v. United States, 348 v. ‘ Mt, TS. Ct. 1, 99 i

NE OR | SPOR airs tet eer sre Sraer See eras -atore 82, 14, 15!

LOrbey v. Wright, 37 N. 51.8. oc: eS

Sacher v. ULS., OAS U.8..1,-9. 13, OG L. “Ed. Wa, 72

Swanson v. Swanson, ON. I “Super. 8: 3,77 A. Md.

477, aff'd 84 A. 2d ang & ees |

Tucker v. Teras, 3260. 8. ‘517, a0 L- Ed, 24 Ses Ow

- Tumey v. Ohio, 273 UL. 510, 71 L. Bd. 749 _.. ee ae

. Verdon, Appeal of” M1 x. 4.1L. 491, 104 A. 317 passin

Whitaker: v. McLean, 3 App. D.C. 259, 118 F.2d >-

“a

=f ;

RS Soe ceoiee gitevniadncosseuescennunee Se iohrarageceeaeese 12

__sPAtr TES, AND CONSTI TUT 1ON

~ Act ‘of June 5, 1928, 28 U.S.C. 1257 cece 2

Constitution,- 14th Amendment 2070000000000... ona ATM 4 56 eae

‘New Jersey Statutes Annotated, T eZ rs A Se ‘es. 10 I,

eo | ae Cae TET EES eee aol 7.810:

TLS. Code, Title 28, See, 1257 tele Bs A Keto al Ss es

In The

Supreme Court uf “ Huited States

Ocrober Tenn , 1961

In the Ma fer of

Loins Avs Crawans, an Attorney,

Af — with Conts tpt of Court),

: / y Petitioner.

? ° ° rf ee ee eee . Lm ]

rape ; a 4

PEFITION FOR WRIT OF CERTIORARI TO THE ——/

ce SUPREME COURT OF NEW JERSEY

: 7 _ AMD APPBLLATE DIVISION OF THE ~~

/ SUPERIOR COERT OF NEW JERSEY ~

yA ae ;

iA - Petitioner, ‘Lillian Clawanrs, a practicing CounseHor-at-

. Law, with offices. at 116 Market Street, City of Newark.,

State’ of New Jersey, respectsully prays that a Writ of

Certiorari issue to réview the decisfon and jidgment, en

-- — tered on the loth day of January, 1962, in the Supreme

Court of New Jersey denying her petition for certification

to that Court of the decision of the Appellate, Division

of the Superior Court of the State of New Jerse ¥ affiran-

ing the summary action of the Assignme nt Judge of Essex .

County, New Jersey, in adjudging her’ guilty. of two

charges of contempt in: the ‘face of the Coust,- the two

appeals therefrom having been consolidated for hearing’

- by osder of the Appellate Division, Superior Court of

- New Jersey, entered on April 15, 1961.

2 .

THE OPINION BELOW

No opinion was filed on thp petition for certification by

the Supreme Court of New Jersey. The opinion of the

Appellate Divjsion of thle Superiog Court af New Jerseys

is printed in the appendix hereto, infrat and is reported

in 69 N.J. Super. Rep. at page. 373, and 174 A. 2d re

The summart¥ conviction of ‘petitioner by Judge Alexan-

der P: Waugh in the County Court of Essex County, New

Jersey on two charges of criminal contempt oegurred on

December %, 1960, and February, 1, 1961. and resulted in

the adjudication of fines of $100.00 Por each offense. Sepa-

rate appeals of right were prosecuted by peti-

tioner to the Appellate Division, Superior Court of New

Jersey, which were consolidated for‘hearing therein.

. ‘ “0 4

JURISDICTION

cr) :

The decision and judgment of the Appellate Division of —

th Superior Court of New Jersey was entered October 2.

1961... -A timely petition for-rehearing yats filed, by ® peti-

tioner, which was denied -O ober 31, 1961. Petitioner then

filed a timely Petition for Certification: to the Sirpreme

Court of New Jersey, which, ax aforesaid, was denied by

that Court on January 1p, 1962.

The jurisdiction of this Honorable Court is invoked

under the Act of June 5, 1928, 28 UL S2C. 1257. .

“ STATEMENT OF THE CASE

This proceeding presents. for correction errors of the

Honorable Alexander P. Waugh, 0 Superior Court Judge

acting as assignment judge in disposing, ef the integrated

list of Superior Coyrt and county court ‘cases, in Essex

County. New Jersey, engaged. in calling the calendar of |

pending eases, no jury ‘being present and no trials in

progress, in summarily adjudging petitioner guilty of

’ . 6. - .

an, 2

“~, ye : ; o-*

® ‘

contempt without trial or, an opportunity to be heard or

to present evidence of extenuating, mitigating or justify.

ing cireumstandé st errors of the. Appellate Division of the.

.. Superior Court of New Jersey in affirming the judgtfient

of the County Court, and* errors of the Supreme Court of

New Jersey in ‘denying petitioner's petition for cextifica-

tion filedsthercin. "The decision of the Appellate Division

of the Superior Courc of New dye rsey ix-the “decision of -

‘the highest court of the State” “cought to be ‘reviewed

herein. Am. Ry. Express Cu, s. Lever, 263 1S. 1. 21, 6S

Ld. 140. 143: Tucker vo Teras, 326 US, 517, 0 T..Ka.

274: Laracut v. Teras, 318 U.S. 418, 87 L.Ed. S75.

Petitioner hax heen engaged in the practice of law

-in New Jersey during the past 28 years.

In 1950 petitioner brought a proceeding in the Exse's

County Distriet Qourt of New Jersey in which she ‘soineht

to have Judge Waugh generally disqtialified asa judge .

in all fature litigation in which <he OD oe ‘ared asx an atter’

; ney ( ‘lawans v. W- “augh, 10, N.tk Super. 05). Suche dis-

‘qualification was denied ly the Court. Sines that> time

il feeling and friction have continued between petitioner

and Judge Waugh.. In Mare Ah. 195, petitioner appeared:

before the Committee on the Juric iar of the New Jersey

Senate and op jrosee dl? Sudge Waughs reappointment. A="

a-result, hix réappointment was delayed for some tine:

This added fuel to an already «nolde ring fire of resent -

ment on the part of Judge Waugh. with the result that

for About thirteen. vears bitter feelings have existed be-

epportunity to demonstrate it.”

‘In an affidavit exeentid Jy petitioner and annexed. a-

Exhibit A to her. petition for rehearing filed’ on the

Appellate Division of the Superior Court of New Jersey -

(Tr. 5). petitiover has set forth in detail the. facts in -

some sixteen ed<es and seve ral othe <o im~tsons ws of alle wal

misconduct and ‘prejudicial actions on the part of Judge

tween petitioner and Judge Waugh and he bas lost no.

ore?

W augh in dealing with cases avian petitioner as coun-

sel and personally and relatives of pe titioner® No denial,

refutation, or «explanation, by Judge Waugh has been

attempted cor filed concerning the charges made against

him by: petitioner. ‘In her affidavit, -petitioner charged

Judge Waugh with having instigated a criminal charge,

against her of subornatiopn of perjury, which resulted in

‘ her indictment by the Grand Jury of Essex County while

she was on a-trip to Europe to visit Her atint who was

, seriously ‘ill. Petitioner-also alleges in her ‘affidavit that

‘on several oecasions Judge Ww augh gave to newspaper

reporters false and misleading information coneerning

petitioner and her conduct. No denial thereof has been

made by Judge Waugh. - (ites

Petitioner, by counsel, filed a motion fora change of

venue for the trial of the charge-of subornation of perjury

to a county’ other than Essex County, which was denied |

by Judge Wangh on May 2, 1961. Petitioner Also repeat-

edly sought perntission te appear before the Grand Jury

which returned the indictment against her before its dis-

charge or expiration of its term, agreeing to waive im-~

- munity, but Judge Waugh denied those requests,

Petitioner's affidavit sets forth a course of eéhduct on-

the part-of Judge Waugh ‘of some thirteen years duration -

clearly’ demonstrating violent remarks on his part, eri iti-

cism of petitioner's sister in open- court in the presenee

of a number of. other persons and a threat to hold her

in contempt without any justification, and prejudicial con-

duct against petitioner and her clients, to, such an extent

that the judge and petitioner were embroiled: in’ argu-

ments and disagreements for years. Bees ause of the judge |

harassment of petitioner, she suffered a heart attack, lost .

thirty pounds in weight, and sustained serious impairment

of her health, requiring prolonged medical treatment, and

resulting man admonition by her physician to refrain

from entering Jud W augh’s ‘court.

. - 7 °

4 . é , °°. %

- 4 a

On. numerous Occasions, Judge Wangh has yaddre--d

‘petitioner in a.manner calenlated to irritate, upset, ane

cisconcern her, and whieh in facet did result in that con

‘dition. Invone case, Judge W hugh directed that petitioner

me reported to the Committee on Ethies of the Kixxex

County Bar Association by the client cone>rned because

of her refusal to repay a fee of $2590,00 to hin follow inte

her request that he obtain a mate attorney, to represent

hime in the trial decause. of the nature pf the offertse

charged. The ‘ ‘ammittee on Ethies lield a hearing during

January, 161, dnd recommended, that petitioner bee \ paid

an additional sumr of SAF 5.00) for er se rviews to any on

‘behalf of said def fendant.

The long feud and friction between Jude W augh and

petitioner finally culminated in the two arcasions men-

tioned above on which Judge Waugh ingpoosead thie tines

of $100.00 each for contempt in the face of the c ourt”

which were, paid by petitioner under ‘protest. The ajifiel-

late —— recited above. then followed. ‘

Petitioner has exhatisted ‘all remedies provaded Is the. &.

laws, practice and procedure of the Courts of New Jer 4 :

and i# without remedy other than by petition for writ.

of certiorari to this Tlonorable Court.

- QUESTIONS PRESENTED Aaiaees

Krom the conduct of the judge who imposed the sen

fences Upon ‘petitione < as disclosed hy the record, the

following questions are pre sented: 2 A

1, Whether’ the biased and prejudiced comduet of

the triat judge, hi< treatment of petitioner, and bie

decisions tn her caser over a

years precluded hith fromm

-tioner the sumninary power: wold her int eanite Tapit,-

and sentence her, or whether justice required that

- she be afforded a trial on charges of conte bajo before,

wriod of some thisteen

cising scsi at put

ad et ane “re

ia sags

® judge free froni bias and prejudice: and who could.

decide’ the matter dispassionately and. fairly.

+2. Whether the exercise. of summary power to

adjudge petitioner in “contempt Wis appropriate: and

proper. : ; .

3. W hether petitioner was denied deo process: of

law in violation of the Fourteenth Ame ndment to the

Constitution by the trial judge because of his preju-

dice, his summary proeecdings, and his denial to peti-

tioner of thie, right’ to ‘notice, charges, a hearing,

including the Tight to offer evidence in contradiction”

or mitigation: ef such charges, and the right to be

. represe nted by counsel, *° ,

“4. ‘Whether the exercise of summary power to ad:

judge an Attorney, acting. as defense counsel during

a calendar call, in contempt exceeds the hounds’ of

fait judicial. dise ‘retion, as applied to the long period

of friction and arbitrary action on the part of the

judge, ‘where the record discloses the extreme -hos-

tility, of fhe judge toward? petitioner, her clients, her

relatives and other commne! who dppeared for her or

her clients.

5,. Whether the long period of persecution, biased

conduct and prejudicial acts of the trial’ judge consti:

tuted such extreme provéé lation as to excuse of miti- “

gate the remarks and: conduct of the petitioner, which |

constitute. the basis on which the judge assumed to ex-

ercise the arbitrary and summary power to adjudge

an attorney of 38 Vvears experience, in good standing

at the bar, and against Chom the judge had directed

proceedings before the Bar Association Comeittes

on Ethies;-when he had-initiated a proceeding before:

the Grand-Jury to. have petitioner indicted: had ap:

pointed thes foreman. of the Grand <bury which ae-

turned the indic ‘thie nt; had denied pe titione h’s requests

: Se

to appear besore the Grand Jury. and ha Pdenied her

_ a change of venue on the. trial of the indictment,

6. Whether. the yee adopted by ‘this preju

diced judge violated the Canons of Judicial Mthies “of!

the American Bar Association tiade applicable to all

Courts of the State of New Jerse Vv.

i. Whether this Court > should exercise its power.’

to protect petitioner against a denial to her of due

process of law by the continued, biased corduct and

\ prejudicial practices of judge of a court) wherein

petitioner has an active practice from which she earns

a livelihood, ino aeeordance with the doctrine — an

nounced in, Sacher v erat States, 345 ULS. 1, a

: ba 96 L: Ed. AM, 42 Ss > Ot, 451.

CONSTITUTION AL PROVISION AND

STATUT ES: INVOLVED.

The Fourtocnth Amendment to the Constitution pro.

vides: 5 ey Pls ¢

“* © * nor shall any State deprive any person

of life, liberty, or property, Without die process of

law: nor deny toe any persort within its Giese

the equal protection of the laws.”

Titie DA, Section 10-1 (C ited. is Section BA: 10-1), of

the New Jersey Statutes Mnotate d’ (Permanent dition).

provides that:

.- . i

“The power of any court of this state ‘ty punish-for

nonicman shall not be construed to extend to any

case except thie: .

]

eo. * Mishohiavior of any’ pe Fon in the aétund pres

ence of the court;

“Hh, Mishe havior of any offteer .of the court im his

official transactions: and.

«:

° . — .

“¢, Disobedience.or resistance bytany court officer,

or by any party, juror, witness or.any person What

° P ¢.

« e

soever to any lawful writ, process, judgment, order,

or cganmand of the court. .

“Nothing éontained in this section shall be Miter

to affect the inherent jurisdiction of the superior cour!

to punish: for contempt.”

By Section 2A:1055 of the New Jersey Statutes An--

notated, the maximum punishment. for civil contempt. is

a fine of $50.00 and costs. Criminal contempts ar® punish.

able under the provisions. of law. relating to criminal —

misdemeanors.

Seetion 2A; 10-7 of the same statutes empowers county

courts to punish for contempt im any case provided by

‘section 2A: 10-1, supra.

SPECIFICATION OF ERRORS TO BE URGED

Petitioner respeetfully presents the following specifie’

errors as grounds for reversal of the courts belowggind

for granting the writ prayed for hergin: .

The courts below erred in not granting peti

-tioner a trial by jury on the two charges of eriminal,

contempt or at least bk an impartial judge, .cs guar

anteed by the Constitution. , |

2. The courts below erred in determinimg that the

conduct of petitioner on the two oceasians involved

constituted: crituinal contempt.

denying ‘petitioner’s petition for ce rtification to that

court for review of the decision of the Appellate

Division of the Superior Court of New Jersey.

4. The Supreme Court of New Jersey erred) in’

denying petitioner’s petition for, certification of her

-case to that court for review of all decisions below it.

r= ” Sea? ° vale ee

d. The county assignment judge erred in-exereis-

ing the power to punish petitioner for criminal con-

3. The. Suysteme Court of New Jersey erred ity

tempt under the cireitmstanices involved in this, Gast

and this summary proceeding was a denial of dur.

process of law.

*- REASONS FOR GRANTING THE WRIT

> I . ; ,

t - . ‘ ; a em

Several of the reasons usually advanced for. the erant=——

ing of:a Writ of Certiorari are present In this case.

= (a) The Sf: nite courts helow have rende red aepialcies

— in-confliet with applicable decisions of this Court and

‘the United States Cirenit Courts of Appeal.

(b) The courts below have decided important qnes-

tions of Jaw contrary to earlier decisions of the

courts of New Jersey, :

(¢) The ‘eourts below have permitted and sane

tioned euch departures from the qeeepted | cand us sual

course of judicial proceedings in the Aercise of the ~ ©

summary power to punish for contempt by an inferior

~ court that’ the exercise of this Court's supervisors

powers is called for. - :

4d) The courts below have «decided questions of

general publie interest and importance and 6f sub

stance involving the construction and application of

constitutional questions contrary t% applicable dee

sions of this. Court and the courts of New Jersey.

(e) T he courts below de nied pe ‘titiorer duc proces <

of law when they decided that the conduct of. peti

tioner could be considered apart from the eondnet

of the judge extending over a period of some thintern

years of prejudicial, biased, hostile and oppres=iy

actions on ‘his part direeted against petifioner and

her relatives, as well as her clients.

‘“

“(f) The courts below have failed to take into con

sideration the long career of petitioner at the bir,

her. condition: of physical and mental exhaustion

caused by the judge's oppressive actions In procuring

an indictment against her, and her extreme prove

eat ion, .

(g) The courts below erred in deciding in’ effect

that petitioner’s actions constituted an obstruction

of the administration of justice when ne“trials were

in progress, no Jury was -present, and the judge

merely was engaged in calling the calendar to aseer

tain what cases could be certified for trial.

The statutory. provisions involved (See, 7A:10-1, supra) -

have little if any application to facts here involved. Asx

to subdivision a of the statutory provision referred to,

ean petitioner's conduct be characterized as “misbehavior

* @ @,

of the word “misbehavior” the “New ‘Jer "Oy Jovislature,

in enacting the statute, must have meant conduct, de port.

ent or manner of acting that affected in some way the

due administration of justice, Petitioner’s conduct enused

no delays of the trials of any cases on the calendar. The

oests called in which petitioner was cotinsel were assigne d

‘or tral and tried with no-delays or untoward incident:

Theresw as no obstrue ‘tion of the admirfistration of jus thee,

a necessary clement ‘of the offense of contemptsof court,

Marino ve Cocuzza (Super. Ct. af N.o.). BEAL: 2h 181

(conviction reversed), . ss

‘Subdivisions bo and ¢ of the statute cited above (See,

2A210-1) clearly are not applicable,

In the case of Swanson v. Swanson, 10 N. 0. Super. O13,

eA. 20.477, affirmed S$ AL 2d 450, the Court held that

criminal contémpts “are intrinsically offenses against or-

‘

in the actual presence of_ the court?” By the. use

ae . iat Se Pa

e °

ganized society” and though they may occur in the course

of private ‘litigation. they raise issues between the public

‘and the accused. That being, so, the issue between the:

publie and the accused is one tat. properly should by

decided by ans impartial, unbiased judicial tribunal, and

not by ao prejudiced, vindictive judge whose AMEIMOSITN

toward petitioner was so pronaunceil as to render hisn

incapable of being spidicially fair and impartial ino any

decision involving petitioner, ? f

The New Jersey courts have held repeited|y that the

essence of cortempt is that it obstruct. or tends to «Gb

struct the administration of justices Ta ore Caruhba, Wo

Nid. Ky. 404; 51 N. 2d 4465 Mario ve Cor tra, supra.

Proceedings against a person Tor contempt are on tthe

nature of ertminal trials. We€larne © Gillick, VN. A Le

340; Maginnts v. Parkhurst, 4 Nod. By. 455.

Alt contempts are criminal in their nature’. Orlow v,

Wright, S7°N. VLA. 50.

“One accused of criminal contempt is entitled 6 the

presumption of innocence, which remains throughout the

trial as in any criminal prosecution. Appeal of Verdun,

9 N.I-L. 491, 104 AL Os. ° )

oh ———— ee

The News Jersey ‘courts also have said that the power

-to punish for criminal contenipe shotld be ised only: in

flagrant castes and with the utmost forbesranee. In +

Bosorth, 38 Nod. Super. US4 VIS AL 2d ASO, decided es

than two years age. ;

In the instant ease, it ean not property due said thet

the assignment judeelenercised fhe power te punish fo:

contempt “with the utmost forbearance’, or anvtorbesr

ance, for that matter. This case hirdls ean be termed

a o“flagrant™ one, so.the assignment judge was doubly

wrong in adjudging petitioner te’ be a eriminal and punist

able as such,

e ‘ 1”

- a7 - iy

‘Sine othe proceedings below involved an ixstie between

the: publie and petitioner, the denial of her request to

introduce evide ‘nee in vXplanation, mitigation or extenua-

tion was arbifrary’ and capricious, and operated as a

denial of due process of law. Cooke v. United States.

267 ULS. O11, 69 L.Ed. 767, followed in Offutt vo Enited

States, HBUS. MW ;

ie ~

Affirming a, judgment of conviction of contenpt ih

posed by a biased, prejudieed and sandictive court ix con

trary to/’and Vielative of the universal sole ited of the

public and the country as a whole that onr 4adieial tri

burtals sttall be free from interest, bias and pecintice thi’ -

_might or-eonld distirb the nermal course of inpartia!

judgment. - Pumeu v..Ohin, 273 US, 510: 72. LB. igo

Offutt vv. United States, supra. Berger ve 0. Ss. ae 2,

22, 35, 36, 41S. Ct, 280, 65 LL. Bd. ash: hitake v v. u

Lean, 73 App cD Cl 258, TDS BL 2d 506.

In the Whitaker case, the Court of Appeals sciid that

“Hostility js a form of bias”, and in the Brraer case this

Court said that ®éurts of the United State- © hall tet

only be impartial Jn eontroversies sabmetted teothem bert

shall xive assurance that they are iapaartial”, “eSen “alse

‘Tumen ¥. Ohio, supra.

Permitting a summary adjudication of contempt. hy a

known biased. prejudiced and vindietive judge to <tand:

; eomstitites a ms denial of «ue process of law guar

anteed hy the Fourteenth Atendment te thee Q'eonstituativon,

( ‘early ‘suche a judgment’ Gught tothe set aside.

‘

The ‘assignment judge below” had full opportunity te

afford. petitioner-a fair hearing within the usual comers

of due process of Jaw. Such procedure weuld not have

impeded or obstructed the trial of any ease, bot wentd

have given petitioner an opportunity to offer evidence of

denee in contradietion, mnt staat tom, or eXeuse, Petetremer

explination, mitization, «© xte nyation Or ENCiRe, The: trial

judae’s hasty, ih advised: amd based cietion “pores cnmtend ’

petitioner fron having “her iis an comet” and eden

her due process of law “and the esata pre featietyy oof the

laws palit oe by the Mouwrtectith Atmendin nt te thee

Le onstitution. s : Se Leelee ‘ :

° ¢ WW,

In the ease of Morey ¥. Elliott, 67 US 30-4 STC.

“41, 42 Le Bad. 215: thi ‘ ‘Comrt eet said, the OY er

prynoune sad whit can Opportunity of defense generatls

ts net entitled \te the Yee pucet ef coms trybetnnecal, come weorle

lye ik mest Hageant. Vielatiot of the richt. of af eittzen.

In petitiner’s eee, there was ne need shown ora -

serted fA the exercise of the munnnnnacars pemer ter pomastip

for cofitempt, and sue exe reise of power Wis oppressive

cme an invasion’ of thie right 40 counsel, Furthermore,

the: aetion~ of the trian’ pendarer denied prctitiemer the right,

te potion, charges. i hearing, aml the right fo offer eve.

alse was denied the fight of conse in testing: the eharwee so

ef eruninal comtempt, :

Sabet 7

Measuring the conduct of petitioner im the light of th.

~ Known biased. prejudiced amd vinedietiwe attitude and

conduct of the trial jude er mere: them the teem Vgutts

it falls far short of that ser ots samed “eonte reaped pert att

TO ea called fe ros tnmars poritiisbetrie tat wet breost i“

oppurtunity to defe: id or offer ext mibat eee, ONE ata ors

or “other evidence, or te CTers= NE side Step meetieet Pret} :

Tioner W: ibs dene the right Yin te “tity 1 ber ewe behind!

ort sas anything by was of exp dantition. Witheent Knew

ing any: of the: reasons WHA puetit jomer Wits tet Ayeparect.

at that Peed sere tieetiient te go oom with he tein of her

“tiises on the calendar, except that she tad net sen lone

of her chent<, the trial jyde © oNereisod ao hinetycc pre iii

Aietal, beicmeed stl “ads ised visio 1 pitinb petitioner.

4 *,

oO . - g

He did not exercise the power to punish fer—riminal-

contempt “with the utmost forbearanve™. In re Bozorth,

supra. He was dixqualified to impose sentence.

ver “96 . ° ° 9 . : +44

an lancuage of the court in Franklin ve Frathdin, 65

2d 660, affirmed 65 A. 2d 665, 2 NS. 103, ¢hat an

a Nera af contempt may be. based only on conta’

HAC LOS disregard of cre writ, prrereerper, order or eo

mand by a court of competent jurisdiction seems td be

Hieest appropriate. and persuasive here.

This case bears a striking resemblance ino principle te

‘thee cise ot Offutt v. United States, SAS ULS. II. é0 &. ct

1,90 Le Keds 11, in which this Court peCersed a sentene

imposed “by a trial judge of. the UT hited States District

Court for the District of Columbia, Which was modffiecd

by the \, pity Sf: ites ( eurt of Appeals ror the Distriet of

Columbia Circuit,

_ The following enotat on from the Offut case is deenicd

app copriate here:

"The proceeding crew out of the trial of one Peck

ham for abertion under DOC. @ode, TUL, Sees v2

——

201, Stat. G22. The petitioner Wits Poth’. :

trial peo Almost from the ooufset. a elash) be

‘tween the presiding judge and petitioner became)

nuimifest, whie hy it is fair te say. colored the course

of the trial throughout its” 14 day<. and with ir

ereasing personal overtones. The jndgee again and

again admonished petitioner for what bye deemed dis

regard oof rulings and other beluivier outside the

allowable limits of aggressive advocgey, and warned:

him ef the consequences by way of punishosant for

contempt which such conduct invited. On the vother

had, these interchangeshetween court and conned]

were marked by expressions and revealed an attitude

which hardly reflected the restraints of conventional

judicial demeanor, .& ° © (Page 15. L. Ed.) ’

*”- e

Speaking of the duthority of “a judge. to punish for

contempt, this Court, in the same case, said: t.

9 8 98 Phe power thus entrysted to a judge is

wholly unrelated tehis personal sensibilities, be they

tender or rugged. But judges also are hunjan, and ~

may, in a hunian way, quite unwittingly identify.

defi cave te self with obstruction of law. Accordingly,

this Court has deemed, it) important that ‘district

* judges guard against this ary cagfusion by not sit-

Fe themeclhves in judyinent upon misconduct of coun-

sel Whete the contempt charged is entangled with the

judge's. By reonal feeling against the lawyer.” (Page

If, L.. bad, )

Petitioner reeownizes the facet that this ease differs from

the Offutt ease in that bere the action of the assignment

judge was that of a State official, while the trial court

in the Offutt case was a Federal Judge. There properly

seoms to be ne basis, however, for a soumdl differentiation

of the prine iple = of due process involved in the two censes.

Treating the Off ath ease as an applicable judicial precedent

that should be followell, pefitioner respectfully submits

that her petition for writ of certiorari shouid be granted,

noes ¢:* mee es weer

“Inberent in the illegal. arbitrary and summit proceed.

ings against petitioner is the further danger of discipli-

nary puni-linent by way of disbarment 6r suspension from

the practice of law, After thirty-eight years of honorabbe

eonduct as a member-of the legal profession, petitioner

faces the threat, if the judginent of eontempt is allowed

te stand.of loss of her right to earnay livelihood aan

attorney. and. counseHor at law. ALL that she has se

meticuloasly guarded, and so carefully. painstakingly and

industrieusly built in the way of a reputation and high

: standing at. the barcmay be destroyed by the few brief

moments .of indiserction on petitioner's part and hasty

“action on the part of a vindietive “and admittediy preju--

diced judge. > |

nN . . . $

o— “= *+

ad 16

The arbitrary exercise: of the power ‘to punish for con’

tempt can destroy effectively the office of attorney and

counsellor at law of any one and daprive petitioner and |

others of that fair and impartial trial guaranteed by the xs

-Fourteenth @mendmynt to the Constitution, in the event

the adjudication against petitioner is pot set aside.

; ¢ CONCLUSION

Petitioner reapeetfully aad that the conduct of the

trial judge in her case was such as_te require a ruline j

thereon by this Court. If the judgment is permitted to

remain un-reversed, a serious blow will have been struck

at a fuhdamenta! right: namely, the richt of every necusedd

to a fair and impartial trial by an unbiased tribuncl a

“+ right guaranteed by the Fourteenth Amendment To, the

Constitution. oe

- cd

WHEREFORE. petitioner prays thag this Honorable

Court grant a Writ of Certirari and bring before this

Court. the decision and judgment re fe rred-ti herein.

pw ‘Respeetfully submitted .

~° Rienane L. Mennen, y, 4

° ae : Snite 1012 Barr Builditig, -

* oANO Seventeenth St. N.W., ¢

Washington 6, D.C. - p

“ Atlornen for Ps tition: ,. pe?

Warren BK. Macer,

: Suite 745 Shoreham Building,, — ‘om

Washington 5, D. C2, “*

Of Counsel for Petitioner.

- a

: APPENDIX

Certification and Order for Sentence

aa SUPERIOR COURT OF NEW JERSEY

LAW DIVISION-—ESSEX COUNTY’

Docket No, M-475 0-38-60

Stare -or New JERSEY, ; nares

. Plaintiff, a

Os. :

~ NoumMan BE wt, .,

; Defendent.

IN THE MATTER OF LILLIAN CLAWANS

CHARGED WITH CRIMINAL CONTEMPT

On this ‘7th day of Decembers 1960, and pursuant to

RAR. Oss band RAR. 4287-1, it is hereby ecertitied by me,

- the undersigned, Judge of this Court, that:

1. On December 5,-1960, during a.session of the Sur

perior Court of New Jersey, Law Division, Exsex County,

held at. the Court House in the City of Newark, “Mssex

County, cand State of New Jersey, ambwhile the court

was regularly engaged in the eall of the-citil and criminal,

appeal list, one Lillian Cliwans, an Attorney at-Law of

the State of New Jersey. in the actual presence of the

_ court and with ghe intent to contemmn the authority and

“dignity of the court and obstruet the-due.administraion

of justice, did ccontémanceously. condiet herself toward

the court in the manner and form as the facts are reeited

in the paragraph following. ar

2. When the ease of State ve. Bell was cealled, Miss

“Clawans repeatedly refused to converse with the edurt as +

to the status of her case and after seyeral nequests by’

2a +7

me directed to Miss Clawans, she embarked on a tirade

of abuse impugning my. integrity as a Judge‘in the most

rude and discourteous manner. The detailed facts congi-

tuting this contemnaceous conduct are more particularly

set forth in, the attac ‘hed transe ript, “which is made apart.

hereof. |

3. The aforesaid conduct constituting this contempt

‘was observed and heard: by, mime rous members of the Bar

who were present to answer the call, court attendants,

and the lay spectators. Most of these persons cannot now

‘be determined save the following: Brendan Byrne, Prose-

eutor of Essex County; Edward-R. McGlynn, Esq.; Lloyd

Beatty, Magistrate of Glen Ridge Borough, Esxex County; .

Bernard Powell, Kise. This contempt was seen and he ard

by me as Judge of the Court, and was committed in the

actual presence of the, Court.

IT IS ADJUDGED that the defendant jis gujlty and

has been summarily convicted of the offense of eriminal

‘contempt as hereinabove certified and it is ORDERED.

that she present herself before this Court for sentence on

Decembér 12, 1960 at 10:00 a.m. at the Essex Coiinty Court

House, Newark, New Jersey, at which time she will be

— given.an opportunity to be le ‘ard in titigation or explana.

tion of her conduct.

A copy oY this certification and order, ‘togethe rowith a

copy of the transeript which forms a part hereof as set

forth above, are ORDERED seinveéd upon.the defendant,

Lillian C’ vans, personally, within two days of the date

of the making of this order and certification. .

ALEXANDER p. Wave

A, J. 8. C.

SUPERIOR seine OF NEW JERSEY

| oe aiiaiieks Division —

Argued September 25, 1961-—Deeided Oct obe 2. 1961.

Before JU DGES GO% DMANN, FOLEY aind LEWIS.

a: RAYMOND F. BRADY aveoed the sausé for’

appellant (MISS LILLIAN CLAWANS, attorney

pro se; MR. BRADY. on the brief).

MR. SANFORD M. JAFFE, Special swell Assistant

prosecutor, ateued the cause for respondent State

of New Jersey (MR. BRENDAN TL BYRNE,

E SSCX County Prosecutor, attorne ‘yen the brief).

The, opinion of the eourt was deliv red by

GOLDMANN, S:J. A.D.

Lillian Clawans, an attorney of this State, filed appeals

‘from two judgments of contempt committed in the face

of the court (Assignment Judge Waug!r of Essex County).

We consolidated the appeals for briefing and argument.

The first contempt occurred December 5, 1960, Judge

Waugh called the civil and eriminal appeal dist at 0:30

A.M. Miss ¢ ‘Tawans was defense attorne y in Nfate-v, B? ie

and whe nm the case was called the State “announeed it: was

ready, The assignment clerk informed the court that Miss

Clawans had telephoned that) she would be a5 or 20

minutes Jate. Judge) Waugh then said. “AL right, mark

it ‘ready. The following: eecurred oshorthy after 10

A.M. : ..&

“The Court: Miss Clawans, you have an appe ‘al.

Miss Clawans: fF am looking for my client,

The Court: Will you please eome back?

Miss Clawans: To owill have something te say to

you when TF come back.

”~

th : ‘

— g é

Opinion of Appellate Divisiin

The* Court: Wiil you please comt bnick,. Mis=

Clawans ! :

. Miss Clawans: No, a will not.

The Court: Miss ‘Clawans, you will ple ase COM

back. re

Miss Ctawane: IT will not. To am looking for my

clicnt. Thave had enough froma you. -You are a con-

, spirator, 71 went before the Senate. Judicial’ Com-

mittee ona complaint T’made against you. that you

weren't qualified, for a judicial” posiion, and thes

‘held up your appointment. Then you conspired: Wiien

I was in Europe on an emergency flight to. see my

sick aunt, you conspired against me, and you know it

is not avlie.. T have been trying, since Pehave been

_*indicted by the Grand Jury, to appeal before ‘the

- Grand Jury, and-f am reliably informed, and | want

the world to know, that vou said T ean't appear before

the Grand. Jury until TP make an application befor

you. ; .

I am not going to take this stuff.any more. TP have

suffered from you for thirteen years. This is not a

“new thing. It is going on for thirteen. vears,

The Court: Miss Clawans, are vou ready, on your

appeal? : | .

Miss Clawans: IT have to look for mv’ client.

: The Court: Miss Clawans, are vou ready on the

‘appeal? |

Miss ect |

-elfent, os

The Court: Miss Clawans, [fm going to hold ‘veu

in contempt of court for your language before qe.”

don’t know until T-look for my

The certifieation and order for sentence filed) by Audie

Waugh (see Ro RL 328-1 and 4: 87-1) reeites that) this

conduct Was. observed and heard by numerous embers

of the bar whe were present to answer the call, as well

was summarily convicted ef criminal contempt and. afters

repeated adjournments, fined $100, which she paid under

protest. ;

. oa

: : oa

Opinion of Appellate Division

~The secend contempt oeeurred February 21,1961, Miss

Clawans had pending. in’ the déxsex County Court three

appeals from <ouaseinas court convictions, in’ State.

Fracir, Bast Orang Fracivr and State v. Garfinkel.

At the daily call held just before 1G 4. Mb, 1, the presse utms

attorney. informed the court that the State had had its

Witnesses. in court ona quinber of ocensioits but that the Ad

had not been brought in that morning beexuse the prose

center's offiee hi ad been unable to get word as to whether’

the defe nse Wis rendy. : Gartink: dooone of the defendant-

appellants, then informed the court that Miss Clawans was

represetiting him and Frazter, that she hi ad been called

away on urgent business and that. she requested the cases,

be marked ready for 2.P.M.. The eases were so marked.

February 21 was also the adjourned date for sentencline

Miss Clawans? for the December 5 contempt. Judge

Waugh noted on the record that Tie had’ received a tele

phone call from her atterney, who said) she éonld not

appear beeause of illness and: that he would) send) the

judge a doctor's certifieate, Suchia certificate diad arrived

stating that Miss Clawatts was under the doctor's care for

choek and nervousness since November 21, 1960: her physi

eal condition had been aggravated on December 3. 1960,

and so far po improvement had been noted. The judge

further said he had been informed of Miss>Clawans* ap-

pearance before the Domestic Re lations Court the preced

ing day. and that she would appear there again iat day.

He said he had telephoned her attorney and told) him

: hie Wits not sitinfied with thie: doctors certificate ‘ and that

if Mis- Clawans was well enough to try cases, she was

well enough to be in court onthe cyntempt matter.) The

judge continued the contempt fRoceediigs to February 25.

The prosecutor then advised the court that Miss Clawans

had been to the prosecutor's office the day before at 4-PLM.

fa - " . +

: ; . ° y ° - es :

ee ae Opinion of Appellate Di ison F is

“At2 PAL thre - -preacevistite attorney infrortnedb- the MNES arene cinaiegy,

‘that Miss Clawans had. appeared in the prosyeutor’s offic

at about 1:50 PLM. arid been told her citses Were set, how ty

for 2 o'clock. She ‘said’ she had an emergent: m: ithe th

take care of and would - back at 2:15. Miss Clawirn-

not having» appeared by 2:30 PLM, Judge Waugh tele

phoned the Domestic. Rilations Court ‘and found she was

there. He was informed she would he sent exer to the

County ‘Court as soon as possibie, The following oocurred

at 2:55 P.M.:. ; :

“The Court: Call Mis= Clawans in, pdense.

Court Officer Ernest Zoppis She won't cotne in.

Tne Court: Let the recird show-that ato spuarter

to three Vo received a eal from dodge. Lindeman’

court stating that they had given Miss Claiwans a

message that To was awaiting Wer. cand that she war

oon her way over.’ Cali the twa defendants ine = Mr.

Buckley, dtd you ue Mis= Clawans sf she wall cen

in? . .

Mr. Vincent Bucksev: J will now. One of the off

cers did. .

(Miss ¢ ‘lawans enters the court room.)

2 Miss Clawans: Whaf is that? =<

The Court: (Please come up te the counse! tab

These two appeals were ready at tem o'clock thi-

morning. T received word from one of the two cont)

len, thie, vne on the leftois that Mr. Garttikel ”

~. Mr..@artinkel: That’. right. - ie 3

The Court: That you sand Vell had An emergent .°

matter and you’ would be here at twa ev elack” Mas

| ask what the emergent matter was!

Mixx Clawans: No. |b refuse tottell you.

The Court: And at two welock we called the ens

and were told then by the Proseentor you mterepered

down there at ten minutes te twe amd said ven hia!

‘an emergent matter but wonld be back at quarter

past two. TF found out that you were ever at Ardy

‘ “ae ia

Opinion wf Apyy Hate Die tsion

|. , ; ;

ie. Lindemans. I called and sou Were there. Are these

% cisesx Te wads! 4 ; ; -

aa ea i Twas The omnis one that would Je ready

would be the Gtrtinkel ease. The Other ease’ Pam

net rez ad? on. ae

- The Courts Why not? : ;

‘Miss Clawan-: | am just net ready:” That’. all.

The Court: AL right.

Mis-'Clawans: Phave been <itk, and these pesple

liawe Deen tryst ter cet tie, and Po havent beom able

te polysieally handle it for theta, but Pan reads on

the Gartinkel ease. Amd Loam sick at this mement

too,” Ae

’

Veter adjourning Frazier’= ap peal. te March 6. Bel ~

eo that he might obtain another atternes, amed as~tenine

the Garfinkel ease for immediate trial, Dude Wjruch heed

Mi-= Clawan- in contempt im the face of the court and

fined her S100 “far vour reftasal te appear om tinne’ this

entre, cmd because vou will met tell me When Poaskest

why ves weren't Tiere this tne ruin” . The certitiention

and order for =s ntenes tilead des Mardi Wail Me same g

das recites the further -penson that when Miss. Clawans:

advised she wie resedy to proceed With ons one of her

eases lated Was saxkexd” why she ‘was het prepared as te the

others, she ob ined (fe give any reason therefor nnd

retorted, “foam jitste feet reads Vhat’~ alh The ting

was pap under protyst.—

The power of a court te paininhe -wramarily fore con

tempt committed in the aetual presemec of tie court has

Lepruce boeveens De taadl BOR BLS amd 4287 1S sedan te

ule 42ta of the Bids ral Bale. ut ‘Fadia Procedure,

substantially reestrite«d thee « Nisting prancyerss

. “A criminal contempt mins be puri shed, <crgmmarits

. . if the tudwe certifies that he =a" or heard thes conduct

constituting the conte mp armed that of was eotimitted

in the actual presences of the court. The order of °

Opinion of Appellate Division

contempt shall recite the facts and shall be signed

by the judge and entered of record.” .