Reply Brief for Appellant in Opposition to Mtion to Dismiss Appeal, etc — In re Sarner

E COPY see arr

MAY 18

fans; R. BKUWNING. Clerk

——

Court, U.S. |

e ®

Ys!

IN THE

Supreme Court of the United States

Ocrosper TERM, 1958

No. 803

In THE Matrer

of

SIDNEY SARNER,

Charged With Criminai Contempt,

Appellant.

ON APPEAL FROM THE SUPREME COURT

OF NEW JERSEY

REPLY BRIEF FOR APPELLANT (IN OPPOSITION

TO MOTION TO DISMISS APPEAL, ETC.)

eT ——

Back, Nussman & Rosg,

Attorneys for Appellant,

210 Main Street,

Hackensack, New Jersey.

VAaro:. W. NussMAN,

Of Counsel.

ee

Adams Press Corp., 11 Commerce Street, Newark, N. J.—Market 3.8611-12

TABLE OF CONTENTS

PAGE

Bs trae wou tans doe cteds teu tay cs Geel deen 1

Or Roan VARA cou detadavi tds aces betas a 1

De, Wate seauar keds vic vaekawkceiots woe) ee 5

act SR Ee a ee mn Toe My EI AMES LE A 14

ee yer operate PEE MER or Ita ty b- 15

wiecciies apiegdl ROCCE ETT ES ee 15

Cases Cited

Biggers, Ex Parte, 85 Fla. 297, 95 So. 755 (1923).... 11

Binkley v. United States, 282 Fed. 244 (C. C. A. 8,

WO A rakins Suaey Cun eiuaal Kode lee Cas Oe 10

Board of Supervisors of Hanover County v. Bazile,

195 Va. 739, 80 S. E. 2d 566 |_| ARERR eae 11

Bowden v. Bowden, 198 Tenn. 143, 278 S. W. 2d 670

gts, PEE TEN LE RE aR 9

Bradley, Ex oo |” eee eee

Brown vy. United States, U. S. ——, 3 L. Ed. 2a

soap a EA SA A Oe heen Re aS Rt 13, 14fn

California Artificial Stone Pav. Co. v. Molitor, 113

a o_O aR SER Sea eet eee ran a 10

Cammer v. United States, 350 U. S. 399............ 8

Cannon y. State, 58 Okla. Cr. R. 451, 55 P. 2d 135

soapy HE ner oP TREES CRD IPR

ii TABLE OF CONTENTS

PACE

Carr v. District Court, 147 Iowa 663, 126 N. W. 791

Oe Dick gh tries ce eax Pete ae 10

Cheeseman, In re, 49 N. J. L. 115, 143 (S. Ct., 1886). .10, 12

ns Or ee cs awe nace ek 10

Clark v. United States, 289 U.S. 1.........ccccccce, 12

Collins, Ex Parte, 329 Mich. 192, 45 N. W. 2d 31

eg PEERS MRE ey GIS AAR el kth Mapes ON ee et 8 fs 9

Collins v. Superior Court, 145 Cal. App. 2d 588, 302

Pa See SN a revered bens sencnesetebewokes ]

Cooke v. United States, 967 U.S. 517........... 4, 9, 13, 14

Cooley, In re, 95 N. J. Eq. 485 (Ch., 1924), aff’d, 103

ae ge er ren 13

Cottingham, In re, 66 Colo. 335, 182 Pac. 2 (1919)... 10

Craig ¥. Harney, 331 U. &, 367. ooo ccc cecccecveces +

Cuday, 2a Pore, 350 0. B BOO. oc ccccccccccscces 10

Cunha, Ex Parte, 122 Cal. App. 625, 11 P. 2d 902

(Ferry VO. GI, BO Ss Oe ew co bcecevcdapssiucees 10

Dorrian v. Davis, 105 N. J. Eq. 147 (Ch., 1929)..... 15fn

Kilenbecker v. District Court, 134 U. S. 31.......... 7

Eskay, In re, 122 F. 2d 819 N. 17 (C. C. A. 3, 1941)... 10

Kustace v. Lynch, 80 F. 2d 652 (C. C. A. 9, 1935)..... 10

ray v. New Tork, 308 U. GB, BOh.. oc. cicveseccevevas 4

8 ee oer 4

Frank, In re, 135 N. J. L. 429 (S. Ct., 1947)......... 12

Freeman v. State, 188 Ark. 1058, 69 S. W. 2d 267

COME curd ch ddaresevenneyeudssurnaeapelsaune ll

TABLE OF CONTENT: Pt}

PAGE

Globe Newspaper Co. v. Commonwealth, 18 Mass. 449,

scx sctblina esi dbs seateinc, PEEE e e ne 11

Gompers v. United States, 233 U.S. 604............ 8

Gonzales, In re, 88 N. J. L. 536 (Ch, 1008)... . 10, 12

Green v. United States, 356 U. S. 165.............. 8,15

Grossman, Ex Parte, 267 U.S. 87................... 7fn

Hand, In re, 89 N. J. Eq. 469 (fe 10, 13

Henn, In re, 113 N. J. Kiq. 155 (Ch., 1933)............ 13

Herald-Republican Pub. Co. v. Lewis, 42 Utah 188, 129

“angie stethso si e EE OOS Eat 10

Hudgings, Ex Parte, 249 U.S. 378................. +

Jibb, In re, 123 N. J. Kq. 251 (E. & A., DE tek dive vk g

Krmpotich v. Krmpotich, 227 Minr. 067, 35 N. W. 2d

sige cing. te ETO Es OE LUE ean 9

_La Grange v. State, —— Ind. —, 153 N. E. 2d 593

sco tn dea LL PEE Oe TOOT TET PINON 11

Long v. MeMillan, 226 S. C. 596, 86 S. E. 2d 477

ari ae 9

McGill v. State, 209 Ga. 900, 74 S. E. 2d 78 (1953)... 11

Merrimack River Sav. Bk. v. Clay Center, 219 U. §.

ee siete Vu ic 10

Michaelson v. United States, 266 U.S. 42............ 8

Nilva v. United States, 227 F. 2d 74 (C. A. 8, 1955),

re. den., 228 F, 2d 134, aff’d, 352 U. S. 385....... 8,14

Offutt v. United States, 232 F. 2d 69 (C. A. D. Cs

996), cert, den. 351 U. 8. 988.................... 7,14

Parker v. United States, 153 F. 2d 66 (C. C. A. 1,

iv eee Parnell Gap ereahadedeescee li 14fn

iv TABLE OF CONTENTS

PAGE

Passaic-Athenia Bus Co. v. Consolidated Bus Co.,

BED i te Te BER AG is BONA av vkes wdndccvors 6fn, 15fn

Pease, Ex Parte, 123 Tex. Cr. R. 43, 57 S. W. 2d 575

CEE: dive oun dee rebhh pakek shawn ete ll

People v. Gerrard, 15 Ill. App. 2d 301, 146 N. E.

EE 6b 2 ch ea CR RANE raha REC oe 7

People v. Hille, 192 Ill. App. 139 (1915)............ 10

People v. Loughran, 2 Ill. 2d 258, 118 N. E. 2d 310

6” Re eee ae By a ROPER aera TCP (RSH AMP BAM Wo Merl gs Lary Pe 7

Percival v. State, 45 Neb. 741, 64 N. W. 221 (1895)... 10

Pettibone v. United States, 148 U. S. 197........... 10

Post v. Ohio, 7 Ohio Circuit Dee. 257, 14 Ohio Cir. Ct.

Be ee Rao ein 05 co cares Oe dk ha keee ha 11

Robert Boasberg, Petition of, 285 App. Div. 1113, 140

i Se eR Se | ran cera anne 10

Robinson, In re, 117 N. C. 533, 23 S. E. 453 (1895)... 1

Rosewater v. State, 47 Neb. 630, 66 N. W. 640 (1896) 1

Rotwein, In re, 291 N. Y. 116, 51 N. E. 2d 669 (1943) 10

ae, Bak es Bae Oy te Bah ok iwdccncceceavees 10

Schmidt, In re, 88 N. J. Eq. 21 (Ch., 1917)........ 10, 12

Schmidt v. United States, 115 F. 2d 394 (C. C. A. 6,

i ET LOE CO MET DD Sete FEE Perms Sie en 7, 10

Sinclair v. United States, 279 U. S. 749............. 10

Singer, Re, 105 N. J. Eq. 220, 147 Atl. 328.......... 12

Singer, In re, 109 N. J. Eq. 103 (E. & A., 1931)... .10, 12, 13

Staley v. South Jersey Realty Co., 83 N. J. Eq. 300

ON | Re perry are per ey Pe er 6fn

TABLE OF CONTENTS v

PAGE

State v. Chaffman, 15 N. J. Super. 492 ( App. Div.,

ee Ree Oa RO OIE 4

State v. District Court, 58 Mont. 276, 191 Pae. 772

occ CEE eal aren Gin aa eg aE 10

State v. Eno, 145 W. Va. 473, 63 S. E. 2d 845 (1951) 13

State v. Martin, 125 Okl. 51, 256 Pac. 667 (1927)..... 10

State v. Thornton, 137 W. Va. 230, 72 S. E. 2d 203

etn GRE EE OT Ca ates chain eae ka we 4

State v. Zarafu, 35 N. J. Super. 177 (App. Div.,

WE vice Gehs Wik ee sisal os pcs os 2 9, 10, 15

Swanson v. Swanson, 10 N. J. Super. 513 (App. Div.,

1950), affirmed 8 N. J. 169 2 SAE GRD i eee 8

Thompson y. Pennsylvania R.R. Co., 48 N. J. Eq. 105

sig Neca ia ETDS AE OLS aR 10

Tiene, In re, 17 N. J. 170 | See pee 10, 12, 15fn

United States v. Kroger Grocery & Baking Co., 163

F, 2d 168 (C. C. A. ie Ee roe a cues 10

United States v. McGovern, 60 F. 2d 880 (C. C. A. 2,

soy Sep Oy COT peta Be nN ete 10

United States v. P. & W. Coat Co., 52 F. Supp. 792

cteeaciege Bead, 5, NS a RIO tie li eee 9

United States v. United Mine Workers, 330 U. §.

WE Peis Cok triled anne 9, 14fn

Verdon, In re, 91N. J. L. 491 (S. Ct, |. || ee eee 8

we eM 8 cc 10

Western Fruit Growers v. Gotfried, 136 F. 24 $8

seh id ast bor ac ERE Py SS 14fn

Widger v. United States, 244 F. 2d 103 (C. A.5,1957) 10

vi TABLE OF CONTENTS

PACE

Wisdom, Ex Parte, 233 Miss. 865, 79 So. 2d 523

RE ESET EAE ie oe ee 7

Woodbury v. Commonwealth, 295 Mass. 316, 3 N. E.

a8 SEE RSE ST nent oe a a §

Zimmerman v. Zimmerman, 12 N. J. Super. 61 (App.

ce EES ES Senne et a a 8, 15

United States Constitution Cited

EES 3

oe ee 3

ee a aes 12

Statute Cited

28 U. S. C. Section Ee a 11-13

Rules Cited

5 ae Oe 9, 11-13

UI MR 1

IN THE

Supreme Court of the United States

Octoser Term, 1958

No. 803

¢

In THE Matrer

of

StpNEY Sarner,

Charged With Criminal Contempt,

Appellant.

¢

REPLY BRIEF FGR APPELLANT (IN OPPOSITION

TO MOTIGN TO DISMISS APPEAL, ETC.)

I.

The motion of the Attorney General of New Jersey is

brought in the alternative to affirm the judgment below,

purportedly pursuant to Rule 16.1 of the Rules of this Court.

It is submitted that the latter Rule does not contemplate a

motion to affirm a state court judgment sought to be re-

Viewed on appeal, but contemplates only a motion to dismiss

such appeal.

The motion contains factual errors which, if not corrected,

would severely prejudice the consideration of the question

of jurisdiction and, ultimately, of the merits.

First, the motion erroneously states (p. 2) that when

the appellant ‘‘requested permission to address the court

~ * * Judge Hegarty denied the request * * *.’’ However,

in the next pages of the motion (pp. 3-4), Judge Hecarry

is quoted as saying, ‘‘* * * you asked permission to make

the statement. You were granted that right * * *.’’ See

App. S. Ct. N. J. 6a, lines 36 to 38; Id., 8a, lines 26 to 22.

Second, the Attorney General, in one place in his motion

(p. 4) by factual implication, and in two other places there-

in (p. 11) by argumentative suggestion, repeats certain

factual errors committed by the Supreme Court of New

Jersey and the Appellate Division to the effect that (1)

the appellant’s refusal to answer questions before Judge

Hercarty caused an interruption of the matrimonial trial

proceedings lasting until the following day, and (2) that

the appellant was or may have been charged, tried and

convicted for such refusal. We showed in our Jurisdic-

tional Statement (p. 7, at fn. 2) that the interruption occa-

sioned by the refusal lasted only for the duration of a short

recess of the proceedings, and ended with the appellant’s

retraction of his refusal and with his resumption of testi-

mony immediately following that short recess, all of which

occurred on the same day (December 3, 1957), so that the

refusal was but momentary. That short recess, moreover,

was the direct result of a suggestion made by Judge-~

Hecarty himself that the appellant ‘‘maybe * * * should

* * * consult with your counsel now’’ App. S. Ct. N. J.

9a, lines 5 to 6. Furthermore, the order to show cause of

Judge Leypen citing the appellant for contempt referred

only to ‘‘statements involving disrespect to and criticism of

the judge then sitting in the cause’’, making no mention of

the momentary and promptly retracted refusal to testify.

App. 8S. Ct. N. J. la. Likewise the certification of Judge

Heearty charged only ‘‘abusive and defamatory language”

(Id. 2a), facts as to the refusal to testify being found in the

3

certification only in the quoted transcript matter embodied

therein and annexed thereto. Jd. 2a to 3a, 7a to 8a. In

the contempt proceeding (before Judge Nimmo) (Id. lla

to 24a) the appellant called attention te the fact that he had

retracted his refusal to testify (Jd. 14a, lines 38 to 39), and

there the matter was left, neither Judge Nimmo nor the

prosecutor making any further reference to it. Notwith-

standing all this, the Attorney General of New Jersey is de-

picting the case to this Court as involving a contumaciously

significant refusal to testify. And in this respect, as men-

tioned, the Attorney General is repeating the factual errors

of the Supreme Court of New Jersey and the Appellate

Division. (The language embodying the erroneous assump-

tion of those courts that the interruption occasioned by the

refusal to testify persisted into the following day appears

in Appendix A of our Jurisdictional Statement, p. 5a. The

language showing the decisional reliance by those courts

on the factor of refusal to testify appears in Id., p. 6a.

See also our Jurisdictional Statement, p. 7.)

The true factual setting of this contempt case, then, is

simply one of speech—-spoken words criticizing a judge.

This speech did not result in any significant obstruction

or disturbance of the orderly progress of the proceedings.

The Attorney General’s above-noted erroneous statements

or intimations that the appellant spoke his words in con-

tumacious defiance of a court order to remain silent, and

that in addition the case is one of contumacious refusal to

testify, are in the face of the unmistakable record facts

referred to above. In short, the nature of the alleged

contempt is such as to give rise to an issue of abridgment

of First Amendment-Fourth Amendment rights of free

speech, and this issue should not be obscured by unfounded

suggestions that overt acts of obstruction or defiance to

authority are involved in the case.

Furthermore, the groundless attempt to depict the ease

as involving such oveit conduct of obstruction of judicial

proceedings and defiance to court authority, conduct which

is supposed to have occurred moreover in facie curiae,

should not be permitted to obseure the other important

constitutional issues in the case, namely, the due process

issues arising from the summariness with which the appel-

lant was ‘‘tried’’ for his allegedly contemptuous criticism

of the judge. For appellant's case night well be deemed

less constituticnally sympathetic as respects issues of pro-

cedural due process if he had in fact been guilty of out-

right acts of obstruction and detiance in facie curiae which

might have necessitated and justified procedural shortcuts.

Cf. Ex Parte Hudgings, 249 U.S. 318, 383; Cooke v. United

States, 267 U. S. 517, 536; and authorities cited in oar

Jurisdictional Statement, p. 22, fn. 10.

On the other hand, if the Attorney General is correct in

importing into the case the supposed charges of overt ob

struction and defiance, there would be presented new issues

of serious due process aggrievement, in that it is indisput-

able that the appellant did not receive adequate notice and

hearing of any such charges. Cf. Cooke v. United States,

266 U.S. 517, 536-539; State v. Chaffman, 15 N. J. Super.

492, 497-498 (App. Div. 1951); State v. Thornton, 137

W. Va. 230, 238-239, 72 S. E. 2d 203, 207-208 (1952).

This Court may, of course, examine the record to de-

termine for itself the relevant constitutional facts on the

‘issues of whether the appellant addressed the court after

denial of permission to do so, whether his refusal to testify

was other than momentary and promptly retracted, and

whether he was charged, tried aud convicted (constitution-

ally or otherwise) with respect to any such alleged con-

duct. Fay v. New York, 332 U.S. 261, 272; Craig v. Harney,

331 U. S. 367, 373-374; Carlson v. Curtiss, 234 U.S. 103, 106.

Cf. Fisher v. Pace, 336 U.S. 155, 160.

The motion (p. 5) incorrectly states that in the contempt

proceedings the appellant coneeded the accuracy of the

transcript of his allegedly contemptuous rewarks to Judge

Hecarty; and that except for the latter transcript ‘‘no

further evidence was offered either in support or against

the charge of contempt.” We showed in our Jurisdictional

Statement (p. 11, item L14]) that the appellant did not

concede the accuracy of the transcript; that the prosecutor

did introduce additional evidence (to the effect that appel-

lant had said his remarks were ‘not spontaneous’') = and

that the appellant objected to this additional evidence and

vainly sought the right to introduce evidence in- explana-

tion or defense, viz, his proffered proofs that perjury, ete.

had in fact oceurred in the matrimonial j-roceeding (Juris-

dictional Statement, pp. 11-'2, items [14], | 19], [16], [17];

see also /d., p. 6, for the references to the record in the

matrimonial proceeding as to the perjury, ete. believed by

the appellant to have occurred).

Our insistence that the appellant did not concede the

accuracy of the transcript is deemed by us crucial, not

because we would challenge that accuracy if given an op-

portunity to do so, but beause this matter of the appellant's

having coneeded vel non the accuracy of the transe -ipt,

forms a decisive link in the chain of our procedural due

process argument in this case. For, we contend that the

“summary”? contempt powers of New Jersey's R.R. 3:8

Were so restrictively applied to the appellant as to deprive

him ef any opportunity to defend on the issues of justifica-

tion and criminal intent; and that, when the appellant per-

ceived that he was not going to be afforded an opportunity,

by jury trial or otherwise ( Jurisdictional Statement, pp.

11-12), to introduce procis justifying his charges of

perjury, ete., he drew back from submitting himself to be

‘‘tried’’ on the basis of the contempt transcript standing

alone. In other words, appellant's stand against conced-

ing the accuracy of the transeript was part of his stand

against making any waiver’ of his constitutional right to

an adequate trial of the issue of his criminal guilt.

The Attorney General’s erroneous contentions that the

appellant conceded the accuracy of the transcript and that

no other evidence was offered by either side in the con-

tempt proceeding are made for the purpose of portraying

the case as one in which, supposedly, no issue need arise

of denial of jury trial beeause there was nothing for a

jury to try. This argument is explicitly advanced at pp.

5-6 of the motion. The argument runs: the accuracy of

the transcript was admitted, the transcript shows criminal

contempt on its face, hence the making of the adjudica-

tion of contempt was merely a matter of law for the court.

This entire line of argument stands or falls on the ques-

tion of the correctness of a very important assumption

of iaw that the Attorney General is making, namely, that

in the circumstances of this case of criminal contempt the

alleged contemnor had no federal constitutional right to be

heard (by a jury or otherwise) on the issues of motive,

intent, justification or good faith. This assumption of law

is manifestly wrong.

To begin with, it is to be remembered that the appel-

lant was not punished instanter as for direct contempt in

facie curiae, but was tried under an at least ostensible

notice-and-hearing procedure, and by a judge who had not

personally observed the alleged contempt and had no di-

rect personal knowledge thereof or of the matrimonial pro-

ceeding in which it arose. This being so, the appellant be-

"Cf. Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 307, 308

(E. & A. 1914); Passaic-Athenia Bus Co. vy. Consolidated Bus Co..

100 N. J. Eq. 188, 190-192 (Ch. 1926).

ba |

came entitled to the constitutional protections aceorded to

persons tried as for indirect or constructive eriminal con-

tempt. The case in this respect is virtually if not per-

feetly on all fours with Offutt v. United States, 232 F. 2d

(CC. A. D.C. 1996), cert. den. 351 U. S. 988. Cf. the

procedure employed in the contempt trial involved in Er

Parte Bradley, 7 Wall. 364, 373. Cf. also Schmidt y. [ “nited

States, 115 F. 2d 394, 398 (C. C. A. 6, 1940) (alleged vio-

lation of grand jury secrecy by interviewing grand jurors

and filing affidavits based thereon; conviction reversed be-

cause case tried by a judge against whom aflidavits of

bias and prejudice were pending; remanded for new trial

by a different judge with instructions to decide issnes of

“contemptuous motive and wilful an. intentional disre-

spect of the court. Such decision js required as a pre-

requisite to a proper determination of ihe penalty to be

imposed. Cooke v. United States, supra, 267 U. S. page

37 * * *.’’), That the intrusion into a contempt trial of

matters not within the judge’s personal knowledge re-

quires treating the case as one of indirect or constructive

contempt even where the judge is the same one who ob-

served the allegedly contempt: ous happenings was square-

lv held in People vy. Gerrard, 15 Ill. App. 2d 301, 146

N. E. 2d 229 (1957). Cf. People vy. Loughran, 2 Ill. 2d

238, 118 N. EF. 2d 310 (1954); Ex Parte Wisdom, 233 Miss.

$65, 79 So. 2d 523 (1955). See also the authorities cited in

our Jurisdictional Statement, p. 22, fn. 11.

With the apparently sole exception of jury trial’—which

we are seeking in this case by inviting the Court to re.

consider Eilenbecker v. District Court, 224 U.S. 31 (Juris-

ees

“Ex Parte Grossman, 267 U. S. 87, 117-118, 122. speaks un-

definedly of the non-applicability of some provisions of the bill of

rghts in criminal contempt trials, but the reference appears to look

to nothing more than. the jury trial point, and possibly to cases of

literally suumary punishment of direct contempts.

dictional Statement, pp. 20-25) —a trial of constructive

criminal contempt is for all practical purposes tantamount

to the trial of crime. Gompers v. United States, 233 U.S.

604, 610-611; Michaelson v. United States, 266 U. S. 42,

66, 67; Cammer v. United States, 350 U. S. 399, 403; Green

v. United States, 356 U. S. 165, 179; In re Jibb, 123 N. J.

Eq. 251 (KE. & A. 1938); Swanson v. Swanson, 10 N. J.

Super. 513, 520 (App. Div. 1950), affirmed 8 N. J. 169

(1951) ; In re Verdon, 91 N. J. L. 491, 495-496 (S. Ct. 1918).

Defendants in such contempt trials are presumed innocent,

and their guilt must be proved beyond a reasonable doubt.

See authorities collected in Nilva v. United States, 352

U. S. 385, 399 n. 3 (dissenting op.); see also the New

Jersey cases last cited, and Zimmerman v. Zimmerman, 12

N. J. Super. 61, 69-70 (App. Div. 1950).

Of more specific concern in the present case, however,

is the question of the ambit of defenses allowed or r--quired

to be allowed in crimina! contempt trials. The Attorney

General’s motion has focussed the case upon this topic,

through the contention that there was no issue to be tried

by a jury once the transcript of the allegedly contemptv-

ous remarks had been put in evidence and proved or ad-

mitted. As we have found no systematic treatment of this

important and interesting topic (as to the range of de-

fenses in criminal contempt), and as our case, we realize,

may well turn on our ability to show to this Court that

the particular defenses which the appellant unavailingly

endeavored to assert in the contempt proceeding were 4as-

sertible as a matter of federal constitutio:ul right (and

were of a type appropriate for consideration by a jury),

we shall treat the topic mentioned in some detail, albeit

necessarily not exhaustively, hopeful that we may have -

the opportunity to treat it more fully in a presentation on

the merits:

9

1, The general ambit of defenses in a trial for criminal

contempt is apparently not discernibly different from that

in prosecutions for crime. F.g., Cooke v. United States,

267 U. S. 517, 536-539; State vy. Zarafu, 35 N. J. Super.

177, 183 (App. Div. 1955) ; Long v. McMillan, 226 S. (. 596,

608, 86 S. E. 2d 477, 482 (1955) (‘‘the same inalienable

right to be heard in his defense as he would against a

charge of murder or any other crime’’) ; Bowdon vy. Bowdon,

198 Tenn. 143, 147, 278 S. W. 2d 670, 672 (1955) (‘‘should

admit of no technical rulings against the accused but the

freest opportunity should always be given him to produce

his defense’’) ; Woodbury v. Commonwealth, 295 Mass. 316,

323, 3 N. E. 2d 779, 784 (1936) (‘* ‘In general the proceed-

ings leading up to the punishment should be in accordance

with the principles which govern the practice in criminal

cases,’ ’’),

2. The right of a defendant in a trial for criminal con-

tempt to assert his defenses is founded in constitutional

due process. Cooke v. United States, supra. Cf. United

States v. United Mine Workers, 330 U. S. 258, 363-376

(dissenting Op.). See also, e.g., United States ¢. P. & W.

Coat Co., 52 F. Supp. 792, 794 (E. D. N. Y. 1943) ; State y.

Zarafu, 35 N. J. Super. 177, 183 (App. Div. 1955); Ex

Parte Collins, 329 Mich. 192, 196-197, 45 N. W. 2d 31, 33

(1950); Armpotich v. K rmpotich, 227 Minn. 967, 569, 35

N. W. 2d 810, 811 (1949) ; Cannon vy. State, 58 Okla. Cr. R.

401,55 P. 2d 135 (1936) ; Collins v. Superior Court, 145 Cal.

App. 2d 588, 594, 302 P. 2d 805, 809 (1956); Ex Parte Wis-

dom, 223 Miss. 865, 79 So. 2d 523 (1955).

3, Specifically, the defense of lack of criminal intent, to-

gether with related defenses as to motive, good faith, justi-

fication, truth, and the like, and, in general, full right to

make ‘‘defense or explanation’’, are accorded to defend-

ants in criminal contempt trials. The leading case is Cooke

v. United States, 267 U. S. 517, 536-539. Also see, e.g.,

10

In re Chiles, 22 Wall. 157, 169; California Artificial Stone

Pav. Co. v. Molitor, 113 U. S. 609, 618; Ex Parte Savin,

131 U. 3. 267, 278-279; Ex Parte Cuddy, 131 U. S. 280,

286; Pettibone vy. United States, 148 U. S. 197, 206-207;

Re Watts, 190 U.S. 1, 29-33; Merrimack River Sav. Bk. v.

Clay Center, 219 U. S. 527, 536-537; Sinclair v. "United

States, 279 U. S. 749, 705-768; Widger v. United States,

244 F. 2d 103, 106 (C. A. 5, 1957) ; United States v. Kroger

Grocery & Baking Co., 163 F. 2d 168, 172-175 (C. C. A.

7, 1947) ; Schmidt v. United States, 115 F. 24 394, 398 (C. C.

A. 6, 1940) ; In re Eskay, 122 F. 2d 819, 822 N. 17 (C. C. A. 3,

1941); Eustace v. Lynch, 80 F. 2d 652, 656 (C. C. A. 9,

1935) ; United States v. UcGovern, 60 F. 2d 880, 888 (C. C.

A. 2, 19382); Binkley v. United States, 282 Fed. 244, 246

(C. C. A. 8, 1922) ; In re Tiene, 17 N. J. 170, 180-181 (1954);

State v. Zarafu, 35 N. J. Super. 177, 183 (App. Div. 1955);

In re Singer, 109 N. J. Eq. 103, 105 (E. & A. 1931); In re

Hand, 89 N. J. Eq. 469, 471 (Ch. 1918); In re Schmidt,

88 N. J. Eq. 21, 24 (Ch. 1917); In re Gonzales, 88 N. J. L

536, 544 (S. Ct. 1910) ; In re Cheeseman, 49 N. J. L. 115, 148

(S. Ct. 1886) ; Thompson v. Pennsylvania R.R. Co., 48 N. J.

Iuq. 105, 108-109 (Ch. 1891); In re Rotwein, 291 N. Y. 116,

51 N. E. 2d 669 (1942); Fetition of Robert Boasberg, ®

App. Div. 1113, 140 N. Y. S. 2d 192 (1955) same case, 286

App. Div. 951, 143 N. Y. S. 2d 272 (1955); People v. Hille,

192 Ill. App. 139 (1915); Ja re Cottingham, 66 Colo. 335,

337, 182 Pac. 2, 3 (1919); Ex Parte Cunha, 123 Cal. App.

625, 11 P. 2d 902, 906 (1932), reh. den. 18 P. 2d 979; State’.

District Court, 58 Mont. 276, 191 Pac. 772, 776 (1920) ; State

v. Martin, 125 Okl. 51, 256 Pac. 667 (1927) ; Percival v. State,

45 Neb. 741, 64 N. W. 221 (1895); Carr v. District Court,

147 Iowa 663, 126 N. W. 791 (1910); Herald-Republican

Pub. Co. v. Lewis, 42 Utah 188, 129 Pac. 624 (1913).

4. Cf. the cases holding that newspapers may defend

against charges of criminal contempt by showing the truth

at

of the writing. McGill v. State, 209 Ga. 500, 74 S. EB. 2d

78 (1953); Ex Parte Pease, 123 Tex. Cr. R. 43, 57 S. W.

2d 575 (1933); Post v. Ohio, 7 Ohio Cireuit Dee. 257, 14

Vhio Cir. Ct. R. 111 (1897). Cf. Globe Newspaper Co. vy.

Commonwealth, 18 Mass. 449, 74 N. E. 632 (1905) de-

. fense of truth considered in mitigation.

3. The total closing off of the appellant's opportunity

to introduce his proofs as to intent, motivation, good faith

and “‘truth’’, or to make ‘defense or ¢xplanation’’, was

a denial of Fourteenth Amendment due process. As this

denial oceurred in the framework of the rigorous ‘‘sum-

mariness’" generated by R.R. 3:5, an appropriate issue js

presented for review within the jurisdictional provisions

of 28 U.S. C. Section 1257 (2).

6. A familiar “‘intent’’ defense in criniinal contempt for

speech or writings is that the words are susceptible of a

hon-contemptuous interpretation and that such was in-

tended. Freeman vy. State, 188 Ark. 1058, 69 8. W. 2d 267

(1934); Ex Parte Biggers, 85 Fla. 297, 95 So. 755 (1923) ;

La Grange vy. State, —~ Ind. ——, 153 N. E. 2d 593 (1958) ;

Rosewuter v. State, 47 Neb. 630, 66 N. W. 640 (1896) ;

In re Robinson, 117 N. C. 533, 23 S. E. 453 (1895); Board

of Supervisors of Hanover County v. Bazile, 195 Va.

739, 80 S. E. 2d 566 (1954). The record herein shows

the appellant repeatedly attempting to explain that he

intended no contempt towards the court but felt impelled

to call attention to “truth” concerning conduct of his

wife and other persons in the raatrimonial litigation. App.

8. Ct. N. J. 8a, lines 21 to 24; Id., 13a, line 10; Id., 19a,

lines 17 to 21; Id., 20a, lines 7 to 9; Id., 21a, line 39

to 22a, line 13; Id., 22a, lines 16 to 28; Id., 21a, line 19,

to 32a, line 24. It is submitted that the appellant’s allegedly

contemptuous language (Id., 2a to 3a) was susceptible of

being interpreted in accordance with the “‘truth”’ explana-

tion just noted, and was not intended as contempt of the

12

court. By denying the appellant a trial (by jury or other-

Wise) of this issue of intent the state courts have deprived

him of substantial procedural rights in contravention of

the due process clause of the Fourteenth Amendment. This

deprivation was effected through the applying of the sum-

juary procedures of R.R. 3:8; thereby an appealable issue

is presented within the meaning of 28 U.S. C. 1257(2).

7. The defense of lack of criminal intent assumes addi-

tional importance in the instant ease because New Jersey

is one of the state jurisdictions which still recognize an

at least qualified right of expurgation by disavowal of con-

turaacious intent. In Clark v. United States, 289 U. S. 1,

17, this Court abrogated the expurgation doctrine in fed-

eral contempt proceedings and said, ‘‘It has been rejected

generally in the states’’, citing for New Jersey the case of

Re Singer, 105 N. J. Eq. 220, 147 Atl. 328. This Court

was apparently unaware in the Clark case that the Singer

decision in 105 N. J. Eq. had been reversed by New Jer-

sey’s Court of Errors and Appeals in Jn re Singer, 109

N. J. Eq. 103 (E. & A. 1931). The Singer decision in 109

N. J. Eq. (at p. 105) expressly preserves the doctrine that

‘‘Disavowal of any intention to commit a contempt may,

however, extenuate or even purge the contempt.’’ The

Singer decision in 109 NV. J. Eq. has never been disapproved

or even criticized. It is apparently still the law in New

Jersey. Earlier New Jersey decisions permit of ne doubt

that some form of the expurgation doctrine, combined oc-

casionally with a right of defense of justification, long ago

became rooted in that State. Jn re Cheeseman, 49 N. J. L.

Io, 145 (S. Ct. 1886. (‘‘a fair opportunity of denying or

confessing [the] truth [of the charges]’’) (cited with ap-

proval in In re Frank, i35 N. J. L. 429, 432 (S. Ct. 1947),

which in turn is cited with approval in In re Tiene, 17 N. J.

170, 180 (1954)); In re Gonzales, 88 N. J. L. 536 (S. Ct

1910); In re Schmidt, 88 N. J. Eq. 21, 24 (Ch. 1917). The

13

appellant in this case was shut off from all opportunity

to develop the defensive facts, concerning his intent, that

might have obtained for him a purgation or at least a miti-

gation of sentence under the doctrine above mentioned. This

foreclosing of opportunity for defense was not harmless

because the defense in question, as seen, has vitality and

reality in New Jersey. The foreclosing of opportunity was

the product, we submit, of the Way in which the summary

procedures called into being by R.R. 3:8 were applied to

the appellant. And thereby arises another important as-

pect of our claim of federal constitutional aggrievement,

cognizable by this Court, we submit, under 28 U.S. C. See,

1257 (2).

8. Apart from the questions as to the doctrine of ex-

purgation as such, the defense of lack of criminai intent

is constitutionally indefeasible because of its bearing on

mitigation of punishment, Cooke v. United States, 267

U. S. 517, 538, which, as seen, formulates in due process

terms the right to defend on the issue of intent, expressly

holds also that even where the allegedly contumacicus state-

ment is admitted by the defendant as having been made

by him, ‘‘the intention * * * must necessarily and properly

have an important bearing on the degree of guilt and the

penalty which should be imposed, [and] the court cannot

properly exclude evidence in mitigation. Itisa proper part

of the defense.’’ To the same effect see State v. Eno, 145

W. Va. 473, 63 S. EB. 2d 845 (1951). See also Brown y.

United States, —— U. Ss. —-, 3 L. Ed. 2d 609, 620-621

(dissenting op.). New Jersey cases in accord are: In re

Singer, 109 N. J. Eq. 103, 105 (KE. & A. 1931); In re Cooly,

9) N. J. Eq. 485, 487-488 (Ch. 1924), aff’d, 103 N. J. Eq.

3i7 (BE. & A, 1928); In re Henn, 113 N. J. Eq 155, 158

(Ch. 1933), order to al. »w cause discharged, 114 N. J. Eq.

492 (Ch. 1933); In re Hand, 89 N. J. Eq. 469, 470 (Ch. 1918)

(taking into consideration the respondent’s ‘‘great mental

strain’’ oceasioned by a financial setback in the litigation),

14

9. The specifie procedural right which the appellant

wanted and was denied in connection with his attempted

defense of lack of criminal intent was the right to have

the court consider the transcript in the mairimonial pro-

ceeding, where the appellant believed justification would

be found for his allegedly contemptuous remarks. App.

S. Ct. N. J. 19a, lines 16 to 21. Offuit v. United States,

232 F. 2d 69 (C. A. D. C. 1956), cert. den., 351 U. S. 988,

is closely similar to the instant case as respects such claim

of right by a defendant in criminal contempt proceedings.

The Offutt case upholds the right and expressly rests it

upon the procedural due process principle announced in

Cooke v. United States, 267 U.S. 517, 537. Cf. Nilva v.

United States, 227 ¥. 2d 74, 78-79 (C. A. 8, 1955), reh. cen, -

228 F. 2d 134, aff’d, 352 U. S. 385.

IV.

The Attorney General’s statement that ‘‘none’’ of a.

pellant’s ‘‘contentions was timely advanced in the New Jer-

sey courts * * *’’ (Mot. p. 6) is incomprehensible. Our

Jurisdictional Statement (pp. 13-18) gives the appropri-

ate record references. One of our contentions is perhaps

not adequately preserved for appeal to this Court, namely,

the contention as to the inadequacy of the notice that the

charge was criminal contempt.’ We have heretofore sug-

-

* Jurisdictional Statement, question No. 4, pp. 4-5; Id., p. 23.

See also the exhaustive study of the point in United States v. United

Mine Workers, 330 U.S. 258, 368-376 (dissenting Op.) : Brown V.

United States, -—- U.S. , 3 L. ed. 2d 609, 623 (dissenting

Op.) ; Parker vy. United States, 153 F. 2d 66, 70-°(C. C. A. 1, 1946).

See especially, for its striking factual resemblance to the situation

at bar, Western Fruit Growers vy. Gotfried, 136 F. 2d 98, 10

(C. C. A. 9, 1943) (°* * * Not until the trial in the District Court

was actually in progress were the appellanis definitely notified that

(Continued on followine page)

15

gested that this point was sullciently preserved in view

of its being interwoven throughout with the Jury trial point

and with the objections to the post-haste **summariness’’

of the contempt proceeding. Jurisdictiona! Statement, pp.

14, 10, 17, 18, 25.

V.

The Attorney General's suggestion (Mot. p. 9) that ap-

pellant could have introduced new evidence in the state

appellate courts ignores Zimmerman Vv. Zimmerman, 12

N. J. Super. 61, 69 App. Div. 1950), cited in our Juris-

dictional Statement, p, 23. Even more conclusive against

the Attorney General's suggestion is State y. Zarafu, 35

\. J. Super. 177, 183-184 (App. Div. 1955). In auy event,

“* * * even at its rare best appellate review cannot begin

to take the place of trial in the first instanee by an im-

partial jury subject ta review on the spot by an uncom-

mitted trial judge.”’ Green y. Cnited Sta'es, 356 U.S. 165,

200 (dissenting op.).

CONCLUSION

It is respectfully submitted that the metion of the At-

torney General of New Jersey should be denied.

Respectfully submitted,

Back, Nussmax & Rose,

Attorneys for Appellant.

Aaron W. NUSSMAN,

Of Counsel.

SS

(Continued froin pre ‘eding page)

the contempt was criminal in character Therefore, the contemnors

were not aware at the outset Of the criminal vature of ihe proceed-

ing.”) Cf. also In re Tiene, 17 N. 3. 170, 182 (1954) - Passaic-

Athenia Bus Co. v. Consolidated Bus Co, 100 X. J. Eq. 188, 192

(Ch. 1926); Dorrian y Davis, 105. J. Ry. 147 (Ch. 1929),