# Petition for Writ of Certiorari — Burton v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0277%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 370 U.S. 905 ## Text i Pr MS 47 y - _ Office-Supreme Court, US. Se, scat - FILED es Bate foe , /APR 12 198) vo Re fe 866 ae ; COE we siamnaaesammntanmaents , — det Ea is!S CLERK. | 4 _ 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. "WILSON - EPES PRINTING Co - RE 7-6002 - WASHING EON a Ae od - e s 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 : - “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. q o 2 . se / Ce i 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. - . a an, 2 g 4 * “~, 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 a 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 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 edrned 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 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.” Pa 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 4 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. es 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 9 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 | nN . . . $ o— “= *+ ~ y 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 9 : 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. os 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’ P . 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. . e ALEXANDER p. Wave A, J. 8. C. ¢ 3a 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 as by court attendants and. spectators. © Miss Clawan- was summarily convicted ef criminal contempt and. afters repeated adjournments, fined $100, which she paid under protest. ; . oa Sj : : oa Opinion of Appellate Division ~The secend contempt oeeurred February 21,1961, Miss Clawans had pending. in’ the déxsex County Court three appeals from 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.) ‘ay g The © napa Sit up at counsel table, ples: 2 Miss Clawans: Whaf is that? = The record does not hear out appe Mant’ s contention that counsel and the judge were personally embroiled with each other. None of the half-dozen reasons cited'as indi eatin Judge Waugh’'s ill feeling toward. Mixes (lawans j- : ' Other eases cited by ‘appellant for the proposition that she was entitled to he trie ‘do beforewmn impartial tribunal, have no pertinent application in the circtmstanees here * under consideration. | They dealt with eriniinal vontempt- . . = ~ “ Moa : SUPREME COURT OF NEW. JERSEY On Petition for Certification Order Denying Vetition ; > . ‘ ° \ ? Is TAY, Marien or Linvess CEAWANS \ Ss, c ° /” \ 2 fo hoodliade pici isto, Sup rior: ‘url’ ge ea A petition for certification having been submitted to this. Court, and the Court having cons sidered ‘the. same, It ix hereupon Ordered that the yee titioh fon’ vertifien _tion ix denied, With costs: WITNESS the Honor: ii Joseph We singh: aub, Mhief Justice, at Trenton, this Wathoday of 4: apar’s ins. rf wre : aia Beis, Hh. 4iitin an “ee, Fad ; . * Py ; C " ms FILED | Jan 1519620 7 -* ° . ‘ ; . Jous HL. Gites Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0277%3A2. 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