Petition for Writ of Certiorari — Cincinnati District Council 51 v. City of Cincinnati

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SUPREME Court, as , Serene Tam 6.

* REILED

a TN ae 1974

IN THE MICHAEL ROBAX, JRO EDE |

Supreme Court of the United States

OcToBER TERM, 1973

xo. %3- 1082

Cincinnati District Counc. 51, AMERICAN FEDERA-

TION OF StTaTE, County, MunicrPaL EMPLOYEEs,

AFL-CIO, et au., Petitioners,

Vv.

Crry or Cincinnati, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

A. L. ZWERDLING

General Counsel, American

Federation of State, County &

Municipal Employees, AFL-CIO

1140 Connecticut Avenue, N.W.

Washington, D. C. 20036

JAMES C. PARADISE

Formica Building, 13th Floor

120 E. 4th Street

Cincinnati, Ohio 45202

GEoRGE KAUFMANN

1735 New York Avenue, N.W.

Washington, D. C. 20006

Attorneys for Petitioners

Puzss or Byron S. Apams Panvrrine, Inc., Wasurncron, D. C.

=>,

TABLE OF CONTENTS

Page

I THM oie win dc cn tock cc cdveccccsvnsearsesen 1

Ss oS had kdb aa petesteeupeeoecan es 2

Question Presented ..........ccccccccccccsccccceess 2

Constitutional Provisions Involved ...............-- 2

NS OF TS UD cio vive bccedivcccsecdncwesesses 2

A. Proceedings in the Court of Common Pleas .... 2

1. The Injunction and the Order to Show Cause 2

2. The Evidence on Liability .................. 6

3. The Trial Court’s Decision and Judgment... 8

Be Pence Gee BOGE «oo on ccnscoccccvcccscns 8

Reasons for Granting the Writ .................26-. 10

I. The Courts Below Denied Petitioners Due Proc-

ess of Law in Its Primary Sense .............. 10

II. The Issue Posed in This Case Is of Recurring

end Gemoral Kraportamee ........-cscccccccees

IS oc cccctnenscandosncvncsceaueeonceseonues 19

RO cieecscisediseatctpecreiacssteueeesenaee= la

INDEX OF CITATIONS

CASES:

Baldwin v. New York, 399 U.S. 66 .................- 18

Bell v. United States, 349 U.S. 81 ...............-25- 16

een w. Emete, SPE UD. TOG on occ cccwescceseneses 18

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S.

DE cvkepirnwsdvsdebensaneedeseewaeruimcans 16

Brotherhood of Loc. Fire & Eng. v. Bangor & Aroo-

stook R. Co., 380 F.2d 570 (C.A.D.C.), cert. denied

on other issues, 389 U.S. 327 ..............2065- 16

ii Table of Contents Continued

Page

Chapman v. California, 386 U.S. 18 ..............-- 13

Cheff v. Schnackenberg, 384 U.S. 373 ..........++4-. 18

Codispoti v. Pennsylvania, (73-5615), cert. granted

December 3, 1973, 42 U.S.L.Wk. 3333 .......... 17,19

Cooke v. United States, 267 U.S. 517 ...............- 9,10

Gompers v. Bucks Stove & Range Co., 211 U.S. 418 .. 14

Griffin v. California, 380 U.S. 609 ..............e000e 14

a ae ee Perr 11, 19

Morgan v. United States, 304 U.S.1 ................ 11

Russell v. United States, 369 U.S. 749 .............. 12

Taylor v. Hayes, (#73-473) cert. granted December 3,

ee Oe Oe A, OD hccrscaevassccs enhances

United States v. Cruikshank, 92 U.S. 542 ............ 12

United States v. Seale, 461 F.2d 345 (C.A. 7) ........ 18

United States v. United Mine Workers, 330 U.S. 258 .. 10

Unitep States CONSTITUTION :

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EERE OLE NE RT EY 2

Ox10 ConsTITUTION :

JupicraL CopE:

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Onto Rev. Cove:

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IN THE

Supreme Court of the United States

OcToBER TERM, 1973

No.

Cincinnati District Councit 51, AMERICAN FEDERA-

TION OF State, County, MunicirpaAL EMPLOYEES,

AFL-CIO, Er Au., Petitioners,

Vv.

City oF CrncInNATI, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

Cincinnati District Council 51, American Federa-

tion of State, County, Municipal Employees, AFL-CIO,

and American Federation of State, County, Municipal

Employees, AFL-CIO, pray that a writ of certiorari

issue to review the judgment of the Supreme Court

of Ohio in this case.

OPINIONS BELOW

The majority and dissenting opinions of the Su-

preme Court of Ohio are reported at 35 Ohio State 2d

197, 299 N.E. 2d 686. They are reprinted in App. A

infra. The opinion of the Court of Appeals, First Ap-

pellate District, is not reported; it is reprinted in App.

C infra. The decision and judgment of the Court of

Common Pleas of Ohio, Hamilton County, are not offi-

cially reported. They are reprinted in App. D infra.

JURISDICTION

The decision of the Supreme Court of Ohio was is-

sued on July 18, 1973, and a timely petition for rehear-

ing was denied on September 6, 1973, App. B infra. By

orders dated November 21, 1973, and December 20,

1973, Mr. Justice Stewart extended the time for filing

this petition for certiorari to January 4, 1974, and

further to January 9, 1974. This Court has jurisdiction

under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Where an order to show cause charges only that the

defendants were in civil contempt of an injunction,

may defendants be subjected to civil and criminal

penalties for more than thirty separate violations ?

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth, Sixth and Section 1 of

the Fourteenth Amendments to the Constitution of the

United States. They are reprinted in App. F infra.

STATEMENT OF THE CASE

A. Proceedings in the Court of Common Pleas.

1. The Injunction and the Order To Show Cause.

This case arises out of an action for an injunction,

brought on January 4, 1970, by the City of Cincinnati

against Cincinnati District Council 51, American Fed-

eration of State, County, Municipal Employees, AF'L-

C1O (hereafter ‘‘Council 51’’), its officers and six local

unions affiliated with Council 51 and their officers, to

enjoin them from engaging in a strike against the City

(R. 1-5).’ Petitioner American Federation of State,

County and Municipal Employees, AFL-CIO (here-

after ‘‘the International’’) is an International union

with which Council 51 is affiliated. The International

was not a party to the injunction action. On January

4, 1970 a temporary restraining order was issued by the

Court of Common Pleas (R. 5).

On January 6, a final judgment and permanent in-

junction was entered by Judge Morrissey ‘‘restraining

and enjoining the defendants from carrying on a strike

and/or picketing against the City of Cincinnati (R.

7).”” On January 7, 1970, upon charges by the City

alleging violation of the temporary restraining order

on January 5 and 6 (R. 10), ten individuals and Coun-

cil 51 were held in contempt and were fined in amounts

ranging from $200 to $500 and sentenced to the work-

house, the jail sentences being suspended in some cases

(R. 13). Council 51, in addition to being fined $200,

was required to post a security bond of $7,800 consist-

ing of checked-off Union dues then being held by the

City for the account of Council 51 (R. 14).

The strike continued. On February 5, 1970 a settle-

ment agreement was arrived at by Council 51 and the

City Manager (R. 206). Following ratification of the

agreement, employees started to return to work on

Sunday. February 8 and all were back by February 9

(R. 140). The February 5 agreement provided, inter

«alia, for the dismissal of the injunction action, the dis-

solution of the injunction and a joint request to the

’ R. is a reference to the printed ‘‘Record’’ in the Supreme Court

of Ohio.

SIEGE SONA ROR 2S

Court by the City and Council 51 for the dismissal of

all pending contempt proceedings arising out of said

injunction and the remission of all contempt sentences

and other penalties against any employees or union

representatives for the alleged violation of said injunc-

tion (R. 206).

On February 6, 1970 an Application to Intervene

(R. 17) was filed by respondent Goldberg, a taxpayer,

pursuant to § 733.581 of the Ohio Revised Code (R. 21),

to recover in behalf of the City, damages it had alleg-

edly suffered as a result of the defendants’ violation

of the injunction. This application was opposed by

Council 51 and the City, but was granted without

opinion.

On June 26, 1970 Intervenor instituted a new con-

tempt proceeding by motion for an order to show cause

directed against defendant Council 51, all of the local

unions and the thirty-three individuals who had been

named as defendants in the original complaint, plus

petitioner International and two of its representatives

(R. 55). This was the first time the International be-

came a party. The motion requested that said persons

and organizations show cause why they should not be

held in contempt, why they should not be punished for

“such contempt’’ and why they should not be required

to pay damages to the City of Cincinnati.” On August

25, 1970 the Court issued an order (R. 62-64) reprinted

in fullas App. E infra. That order required the named

persons and organizations to show cause why they

should not be ‘‘held in contempt for violating this

Court’s permanent injunction’’ and why they should

not pay ‘‘damages to the plaintiff for civil contempt

2 R. 56, emphasis added here, and throughout this Petition unless

otherwise specified.

in such amount, if any, as the Court may find such

violation has damaged plaintiff”’.

At the time of the return of the Order to Show Cause,

at a conference in the Court’s chambers, defendants

requested specifications of the contempt charges. In-

tervenor’s counsel indicated that he might provide

them, but he never did. Accordingly, at the commence-

ment of the contempt hearing on September 21, 1970,

defendants moved to dismiss on the ground that the

supporting affidavit was insufficient since ‘‘it does not

apprise the parties affected with any information as

to the act which they are alleged to have committed

which is said to be in contempt’’; ‘‘that this is essen-

tially a criminal proceeding, the accused are entitled

to know what they are charged with that constitutes

alleged contempt’’, and that the proceeding be dis-

missed unless specifications were provided forthwith

‘**so that we know what we are charged with’”’ (R. 64-

66). Interveior refused to provide any specifications,

stating that ‘‘The contempt of Court continued from

the beginning to the end’”’ and that ‘‘to specify details

would take away from the claim” (R. 66); he stated

further, that the court should award damages to the

City ‘‘against these organizations and individuals be-

cause of their continuous violation of the court order,

by their participating in the strike, encouraging the

strike, up until the time of concluding. Therefore the

details are unnecessary’’ (R.66). The motion for spec-

ifications of the charge and, in the alternative, to dis-

miss was overruled (id.).

During the course of the trial the Court dismissed

the proceedings with respect to all of the named indi-

viduals and the case proceeded solely against the named

labor organizations.

SIS PRES RR PTS ating

2. The Evidence on Liability.

In the contempt proceedings there was no dispute

about Council 51’s participation in the strike and

hence its violation of the injunction. The only contro-

*¥ertéd issue of hability” was whetlier the International _

- was in confempt of the injunction.’

We now set forth the evidence adduced against the

International :

The strike was called on January 4 and began on

January 5 (R. 10). The International was in no way

involved in the calling of the strike (R. 169). The

International learned that a strike had started within

twenty-four hours (R. 170) but there was no evidence,

direct or circumstantial, as to when the International

first had notice of the injunction.

Some time after January 5, the exact date being

unproved, the International sent representatives Epps

and Brindza to Cincinnati with instructions to try

to bring the dispute to a speedy conclusion (R. 68, 171).

Each of these representatives was in Cincinnati for

a part of the time during the strike, but the dates were

not proven. Van Hagen, the Director of Council 51,

was jailed for contempt on January 8 and remained

incarcerated until January 17. While he was in jail

he was visited by certain unidentified representatives

of the International on unspecified dates (R. 173).

ak Re AD i Sa Seid NA ATW DK tc cia SMI Nt MEL a a iS RG ic EB

The testimony of a newspaper reporter constitutes

the only evidence of activity on the part of representa-

tives of the International on specific dates. The first

pdb iw takin

* The other major issue concerned the amount of damage, if any,

suffered by the City as a result of the strike.

Biman SAV AN Lhancy,

date as to which he testified concerning any action by

the International was January 17, at which time 5

Brindza addressed a union meeting and made state- f

ments which could be construed as supporting the ;

- strike (R.-124). - He-ulso-testified tat on Jammary31 -° t

- Epps had said the ‘‘Cincinrfati l6éal Will eséalate peace- ‘

ful demonstrations’? at business establishments in the :

city (R. 120); this statement was made before the

injunction was broadened to restrain action of that

kind (R. 16).

It was stipulated that the International contributed

$20,000 to Council 51 during the strike for the relief of

hardship among the members of Council 51 as a result

of the strike by payments in two installments of

$10,000 each on January 27, 1970 and February 4,

1970 (R. 146).

No evidence was offered concerning the relationship

between the Tuternational and Council 51, their con-

stitutions and bylaws are not in the record, no claim

was made or proof offered of a principal-agent rela-

tionship between them. This is the sum total of the

evidence on which the trial court found appellant In-

ternational guilty of separate contempts of the Janu-

ary 6, 1970 permanent injunction on thirty-seven days

from January 4 to February 9, inclusive.

There was no evidence whatever of any strike activ-

ities by either petitioner subsequent to the execution

of the Memorandum of Settlement on February 5, 1970.

It is uncontradicted that the employees started to re-

turn to work on Sunday, February 8, that all were

back by the 9th and that all strike activities had ceased

as of those dates (R. 140).

3. The Trial Court’s Decision and Judgment.

On July 28, 1971, the Court issued its oral decision

as follows:

‘*In regard to the contemptuous behavior af the.

.- .-striking organizations, evidence haying-been pro-. .

duced at prior date indicating the strike to be 37

days, the Court hereby levies a fine of $1,000 for

each day of the strike equal to the sum of $37,000.”’

(p. 27a infra).

At no time prior to the decision of the trial judge had

there been any intimation that petitioners were ac-

cused of more than one act of contempt, much less

thirty-seven separate contempts. In response to ques-

tions of counsel, the Court explained that the sum

$37,000 was to be distributed pro rata among the peti-

tioners (id.); that other monies paid by the unions

would be credited, and that ‘‘the balance in round fig-

ures, about $25,800, if possible, will be split between

the City of Cincinnati and the County of Hamilton,

to be the sum equal to the amount applicable to the

City as damages, and the balance to be applicable to the

County by way of fines.’’ (p. 28a infra).

On September 14, 1971 judgment was entered against

the petitioners accordingly (pp. 28a-33a infra).

B. Proceedings on Appeal.

The Court of Appeals, Hamilton County, unani-

mously affirmed the judgment in its entirety. The

Supreme Court of Ohio granted discretionary review.

Thereafter, the Supreme Court affirmed the judgment

of the Court of Appeals in all respects except that it

reversed it with respect to the finding that the defend-

ants were in contempt of the permanent injunction on

the two days prior to its issuance (pp. 15a, 20a-2la

infra). The Court squarely rejected the defendants’

claim ‘‘that they were denied due process of law in

that they were not notified that the proceeding against :

them involved multiple contempts.” (p. 5a infra).* - . 3

“"The gist of the Court’s decision on the constitutional

issue was that the defendants were not prejudiced by

the absence of such notice:

‘*The show cause order here involved apprised

the appellants of both the nature of the proceeding

(civil contempt) and the reason for the proceed-

ing (violation of the permanent injunction previ-

ously entered). That the order did not mention

that 37 contempts would be punished did not work

prejudice against the appellant union. Each of

these separate contempts was the same as the

others, i.e., that the appellants conducted a strike

in violation of the permanent injunction. Fur-

thermore, appellants were certainly aware of the

number of days they remained on strike.

‘*Appellants strenuously assert that they were

prejudiced by lack of notice. Nowhere, however,

do they indicate the precise nature of this preju-

dice. The most that appellants assert is that

‘appellants, not having been advised that they were

charged with thirty-seven separate contempts,

made no effort to defend against such a charge.’

This argument is sound so far as it goes, but it

TNR BYP NTR ANTE RI eae

LY heey?

> eeytonne,

* While the Court did not discuss the issue in terms of the

United States Constitution, the federal claim was squarely raised:

“The constitutional right to due process of law, guaranteed

by the Fifth Amendment of the Constitution of the United

States, the fundamental concept of fair trial and the governing

principle in contempt cases of strict construction in favor of

the accused require that this multiple contempt judgment be

set aside.’’ (Appellants’ brief in the Supreme Court of Ohio,

p. 20, quoting Cooke v. U. S., 267 U.S. 517, 537).

does not go far enough. No evidence was intro-

duced or argument advanced to show how appel-

lants would have defended differently had they

been fully aware that 37 contempts were involved.

Although appellants argue that prejudice could

have arisén, they ‘totally fail to demonstfaté that

prejudice actually“urose ini this case.’ (pp.*7a-8a

mfra).

In light of the Court’s holding that the show cause

order apprised the defendants that the nature of the

proceeding was in civil contempt, one additional ruling

must be mentioned. The defendants had urged that

because a jury may not be had in contempt proceedings

the award of damages is a denial of a jury trial pro-

vided by Article I, §5 of the Ohio Constitution which

provides for the right to jury in civil cases. In reject-

ing that contention the Court held in part: ‘‘The pres-

ent case involves both civil and criminal aspects.’’ (p.

lla infra, following, inter alia, United States v. United

Mine Workers, 330 U.S. 258, 299).

Two Justices would have reversed the judgment

outright on the ground that the respondent taxpayer’s

motion to intervene should not have been granted (pp.

15a-16a infra); they therefore reached no other issues.

A third Justice was of the opinion that the Trial Court

abused its discretion in levying fines for more than

a single contempt (pp. 16a-17a infra).

REASONS FOR GRANTING THE WRIT

I. The Courts Below Denied Petitioners Due Process of Law

in Its Primary Sense.

In Cooke v. United States, 267 U.S. 517, 537, Chief

Justice Taft wrote:

“‘Due process of law, therefore, in the prosecu-

tion of contempt, except of that committed in

open court, requires that the accused should be

advised of the charges and have a reasonable op-

portunity to meet them by way of defense or

explanation.”’

--+ dn Morgan v. Vented States, 304 U.S. 1, 18; Chief .---

-Fustice Hughes -wrote: : ee er ee, eer ee

‘*The right to a hearing embraces not only the

right to present evidence, but also a reasonable

opportunity to know the claims of the opposing

party and to meet them. The right to submit argu-

ment implies that opportunity ; otherwise the right

may be but a barren one.”’ F

bead

It was in this tradition that Chief Justice Burger, writ-

ing for a unanimous court, held in Groppi v. Leslie,

404 U.S. 496, 502-503, that (except where summary

disposition is essential) even a legislature must give

notice and an opportunity to be heard before it may

impose punishment for contempt.

‘Indeed, we have stated time and again that

reasonable notice of a charge and an opportunity

to be heard in defense before punishment is im-

posed are ‘basic in our system of jurisprudence.’

In re Oliver, 333 U.S. 257, 273 (1948). See, e. g.,

Joint Anti-Fascist Committee v. McGrath, 341

U.S. at 143, 164-165, 171-172, 178, 185 (concurring

opinions of Black, Frankfurter, Douglas, and

Jackson, JJ.); Cole v. Arkansas, 333 U. S. 196,

201 (1948). We have emphasized this funda-

mental principle where rights of less standing than

personal liberty were at stake. E. g., Sniadach v.

Family Finance Corp., 395 U. S. 337 (1969) ; Mor-

gan Vv. United States, 304 U. S. 1, 18 (1938);

Grannis Vv. Ordean, 234 U. S. 385, 394 (1914). In

Mullane v. Central Hanover Trust Co., 339 U. S.

306 (1950), the Court stated:

Many controversies have raged about the eryptic

and abstract words of the Due Process Clause

but there can be no doubt that at a minimum

they require that deprivation of life, liberty

or property by adjudication be preceded by

notice and opportunity for hearing appropriate

to the nature of the case. 339 U.S., at 318. ae

The paneer hd conn “te sindbab-alie” this

* ‘mae principle.’’ It allowed petitioners to be

punished both civilly and criminally on thirty-five sep-

arate counts of contempt although, in the order to

show cause, issued by the Trial Court, they were

charged only with a ‘‘violation’’ of the injunction.

The Supreme Court of Ohio concluded that the

‘‘notice was clearly sufficient to apprise the appellants

of the charge against them and to enable them to pre-

pare a defense”’ (p. 8a infra). But an order to show

cause of this generality is insufficient to comply with

constitutional requirements. As stated in United States

v. Cruikshank, 92 U.S. 542, 558:

“Tt is an elementary principle of criminal plead-

ing, that where the definition of an offence, whether

it be at common law or by statute, ‘includes generic

terms, it is not sufficient that the indictment shall

charge the offence in the same generic terms as

in the definition; but it must state the species,—it

must descend to particulars.’ ”’

This holding was reaffirmed in Russell v. United States,

369 U.S. 749, as stating ‘‘basie principles of funda-

mental fairness’’ (id. at 765-766) required by the due

process clause of the Fifth Amendment (applicable

in both civil and criminal proceedings) as well as the

Sixth Amendment’s guarantee that ‘‘In all criminal

prosecutions, the accused shall enjoy the right * * * to

be informed of the nature and cause of the accusation”’

(id. at 761).

The Ohio Supreme Court’s basic premise for the

conclusion that the petitioners received sufficient no-

tice was that they had not shown prejudice (pp. T7a-

8a infra). In so holding, the Court did not ‘‘declare a

bekef that’’ the failure to give notice. ‘‘was-harmless

-beyond a reasonable doubt.** -Chapmun v. Culifornia,

386 U.S. 18, 24. On the contrary, it imposed on peti-

tioners a burden of demonstrating prejudice which

effectively nullifies that constitutional right. The

Court stated that petitioners ‘‘were certainly aware

of the number of days they remained on strike’’ (p. 7

infra). This is, of course, true, but petitioners did

not know that ‘‘the number of days they remained

on strike’’ would be in issue.

Plainly, the defendant in any case is aware of his

actual conduct. But the purpose of giving him notice

is to apprise him what conduct is charged to be illegal.

It must focus the issues so that he can prepare a

defense. In short, if the defendants’ own knowledge

of the circumstances is sufficient to eliminate prej-

udice, the constitutional right to notice can hardly

survive.

In many cases the existence of prejudice from a lack

of notice of the specific elements of the offense charged

while real, can only be hypothesized. In the present

case, prejudice can readily be shown.

We may usefully begin with the point that the

court below stated the petitioners knew—the number of

days that they remained on strike. The Trial Court

itself was so confused on this that it found defendants

guilty of violating the permanent injunction for two

days before that injunction was entered, as well as for

at least one day (February 9) when the record showed

that all persons had returned to work, and as to which

it was stipulated that ‘‘there was no strike activity

going on’”’ (R. 140). The Ohio Supreme Court re-

versed as to the first two days, but, despite petitioners’

specific claim of error, sustained the finding of viola-

tions through February 9, .In doing. so, it-ignered-this

stipulation, as well as the circumstance that due to the

generality of the charge, petitioners had no occasion to

establish, as a defense with respect to the separate

violations found, that they had done everything pos-

sible to discontinue the strike after the settlement

agreement had been entered into (on February 5).

The courts below were confused also with respect to

the nature of the offense. The order to show cause

stated squarely that defendants were being charged

with “‘civil contempt” (p. 35 infra). The Supreme

Court stated, in overruling the objection of inadequate

notice, that the ‘‘show cause order here involved ap-

prised the appellants of both the nature of the pro-

ceeding (civil contempt)” (p. 7a infra). Yet the

Trial Court imposed mixed civil and criminal penal-

ties on defendants (p. 33a infra); and the Supreme

Court sustained the denial of a jury trial on the ground

that the ‘‘present case involves both civil and criminal

aspects’’ (p. lla infra).

The foregoing examples are sufficient, we submit,

to establish prejudicial inadequacies of the notice as

to both petitioners. But the prejudice to the Inter-

5 Additionally, some of the individual defendants, who were

named in the same order to show cause, were required to testify,

and their objections against self-incrimination were overruled

e.g., R. 167. This of course, would not be permitted in a criminal

prosecution. Griffin v. California, 380 U.S. 609; Gompers v. Bucks

Stove & Range Co., 211 U.S. 418, 447-8.

national was particularly severe. Unlike Council 51,

the International did not admit that it ‘“‘conducted a

strike in violation of the permanent injunction” (p. 7a

infra). In defending against that allegation—which

‘the conrt-peiow Teeognized was Ail-that “the order to

show cuusé charged (ivid.)—the International had no ~ ~

reason to put the movant to his proof with respect to

the specific day on which one of its representatives

first played any role in the strike, or when it received

notice of the injunction. The show cause order fairly

read made the sole issue as to liability whether the

International had participated at all. Indeed, since the

party who sought the contempt citation had the burden

of proof on these elements of each violation, the fail-

ure of his able counsel to present such proof is the

strongest possible evidence that no one thought it rele-

vant when the International received notice and when

its representatives participated in the strike.

Again, although the Trial Court found both peti-

tioners ‘‘guilty of repeated separate contempts of this

Court by their own direct violations and aiding and

abetting and supporting others to violate this Court’s

injunction each day from the 4th day of January, 1970,

to the 9th day of February, 1970, inclusive” ( p. 3la

infra), it did not identify those violations. This fail-

ure to focus on the individual offenses and their

elements was prejudicial to both petitioners, but par-

ticularly to the International, since he failed to con-

sider when it received notice, and on what days it

participated in the strike.

In sum, the proceedings in the Ohio courts have

‘denied to the [petitioners] ‘due process of law’—

using that term in its primary sense of an opportunity

to be heard and to defend its substantive right.’’

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

U.S. 673, 678 (Brandeis, J.). This, we submit, is

sufficient ground for review by this Court. And re-

view is: all-the- anore esseirtial - beewuse™ che ‘proviem

Which the present casé¢ exemplifies is of recurring im

portance—as we next show.

II, The Issue Posed in This Case Is of Recurring and

General Importance.

‘Certainly the history of contempt litigation, espe-

cially in regard to labor disputes, prescribes extreme

care and insistence on the full indicia of due process

in contempt cases.’’* Yet, as this case once again dem-

onstrates, the lower courts, both state and federal,

frequently fail to accord defendants elemental proce-

dural rights. It is not that the courts consciously

deny the constitutional rights of alleged contemnors;

rather, the peculiar nature of the offense creates un-

certainties which result in a failure to give effect in

contempt proceedings to otherwise well understood

requirements of due process. Definitive guidance as to

the minimal constitutional requirements in contempt

proceedings can be given ouly by this Court.

a) Statutes which declare an offense ordinarily de-

fine the unit of prosecution, or, less frequently, leave

the question to statutory interpretation in light of the

purpose of that particular statute, and more general

principles, see e.g., Bell v. Unted States, 349 U.S. 81,

82-84. But statutes which authorize courts to punish

for contempt of their lawful orders necessarily grant

® Brotherhood of Loc. Fire & Eng. v. Bangor & Aroostook R. Co.,

380 F.2d 570, 582 (C.A.D.C.), cert. denied on other issues, 389

U.S. 327.

that power in general terms; they could not possibly

define the unit of prosecution for all contempts since

these are as varied as the subjects of injunctions. While

we have no doubt that the courts may thus be granted

the power-to determine the unit of proseeution for

contémpts 6n “an da ‘hoc Wasis, that “power ¢Greates a ~

special obligation to provide notice as to what the court

will treat as the unit of prosecution in each case. Unless

the pleading which initiates the contempt proceeding

(such as the order to show cause) gives such notice,

the defendant will remain in the dark until judgment,

as to the elemeuts of the offense and, in most instances,

of the extent of his potential loss of liberty or property.

This problem is of growing importance because an in-

creasing number of regulatory statutes both state and

federal are enforced by judicial orders either at the

behest of an administrative agency, or some other

public or private party.

b) We have shown thus far that basic due process

principles require that an order to show cause (or

other charge which initiates the proceeding) must

specify the number and nature of the contempts

charged. This Court’s determination to resolve cer-

tain questions in Codispoti v. Pennsylvania, (#73-

5615), cert. granted December 3, 1973, 42 U.S.L.Wk.

3333, may provide an additional basis for the same

conclusion.

The petitioner in that case was convicted without a

jury trial of numerous counts of contempt for incidents

arising in a criminal trial at which he was a co-

defendant. In support of the first question presented

he argues, in part, that the right to a trial by jury for

contempt depends on the aggregate sentence rather

than the sentence on each count. (Petitioner’s broader

claim on the same point is that related contempts

create a continuing offense and may not therefore, be

aggregated at all.) It is therefore possible—it would

be inappropriate for us to opine that it is likely—that

this Ceurt,-in accord with United-States -v. Seale, 461°

‘F.2d 845; 353-(C.24:7), wiki decide that the States may

constitutionally treat each incident as a separate con-

tempt, but that the right to a jury depends on the

possible total sentence, and not on the possible sentence

for each count.’ In that event, the precepts of

Baldwin v. New York, 399 U.S. 66 (holding that it is

the maximum possible penalty which determines the

defendant’s right to a jury trial), would strongly

militate in favor of a holding that a Court which in-

tends to aggregate several counts of contempt must so

declare at the beginning of the proceeding, at least

where there is a maximum possible sentence on each

count.* Certainly, the orderly administration of

justice demands that result. If the defendant’s right

to a jury trial is not determined until after trial, the

unfortunate choice open at that point is between impo-

sition of a sentence which the court believes is unjustly

light, or granting the defendant a uew trial before a

jury. See the separate opinion of Justice Harlan in

Cheff v. Schnackenberg, 384 U.S. 373, 382.

™Cf. Taylor v. Hayes, No. 73-473, in which certiorari was also

granted on December 3, 1973, 42 U.S.L.Wk. 3333, where the peti-

tioner contends that, in order to defeat his right to trial by jury,

consecutive sentences on several counts of contempt were reduced

to concurrent terms totalling six months.

8 Where, as in Cheff v. Schnackenberg, 384 U.S. 373, and Bloom

v. Illinois, 391 U.S. 194, there is no maximum punishment for any

count of criminal contempt, it is necessary ‘‘to look to the penalty

actually imposed’’ in determining the right to trial by jury. See

id. at 211.

In sum, both the principles stated in this Court’s

decisions culminating in Groppi v. Leslie, supra, and

the grant of certiorari in Codispoti mandate review of

the Ohio Supreme Court’s decision herein.

e. e “= ‘sealer es oer —. ae & -<« . @ + e+. ee -_- *

CONCLUSION’: --"- +7 ++

For the foregoing reasons this Petition for Certio-

rari should be granted.

Respectfully submitted,