Brief for the Petitioner — Holt v. Virginia

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Office-Supreme Court, U.S.

'.FILED

MAR 15 1968 —

_ JOHN: F, DAVIS, CLERK

In THE me

- @upreme Court of the Boited States

\ _. .OCTOBER TERM, 1964

No. 464

' LW: Hour and E. A. Daw ey, Jr., ,

Petitioners,

; —_—V.— :

@ « CoMMONWEALTH or VircINIA,

™ i

. - Respondent. >. 7

ON WRIT OF CERTIORARI TO SUPREME coust ‘OF APPEALS -

OF VIRGINIA

= _ BRIEF FOR PETITIONERS -

\ * Marvin M. Karparxin .

| 660 Madison A¥enue

's New York,N.Y.

156 Fifth Avenue

York, N. Y.

Po _ Attorneys for Petitioners

Lestie Harotp LEvinson ; ) ao

JosepH A. JORDAN tee Ve és

Epwarp A. DawLey

Leonarp W. Hout

of Counsel

9 eg «INDEX

Opinion Below

” Setiadietion aA ang ean

‘Statutory and Constitdtional Provisions Involved ....

Questions Presented &

Bh seen of the Case

Ogamimary of Argument

—

ARGUMENT

“g Petitioners’ legitimate, motion for a- change. of

venue cannot, consistent with the guarantees of

the due process clause, amount to a contempt of

- Court on the part of either the attorney who

made it or the litigant on whose behalf i was .

made ssiclisieeiaa abel dbaiiiathiapidaancises

A. The’ conviction of° petitioners denied peti-

tioner Dawley, the litigant, the right to the

effective assistance of counsél and the right

_ to be prosecuted in an impartial forum, and ©

_ denied petitioner Holt, the litigant’s attor-

ney, the correlative rights to provide: effec- .

_ tive representation to his client, all in viola-

_ tion of the due process clause of the Four-

: teenth,Amendment

B. The motion to change venue cannot be con-

sidered a contempt of courf because it satis- |

fied all the criteria of legitimacy .2.................

ane . PAGE

. Il. Petitioners’ summary contempt convictions de- .

_prived them of the fair rapielil suai by due

process of law . ae Oe

A. The constitutional prérequisites whieh this

Court has held necessary to justify summary

’ proceedings in a narrowly. circumscribed

~- area of contempts have not been met; conse-

- quently,.the court had no power to proceed i in

a summary fashion : 21

_ B. Gince Mr. Dawley did not commit any act. in

open- court; there was absoltttely no warrant

to. proceed against him summarily siecakelilbis (24

C. A motion for change of venue or judicial dn: |

qualification, based on.allegations of the lack

? of the judge’s impartiality, necessarily cre-

ates such a condition of intense personal in-

volvement on the part of the judge that any.

s contempt proceedings arising from such mo-

tion must be heard before a disinterested

judge : pase ; a

III. Lawyers who habitually represent citizens at-

tempting to enforce constitutionally. guaranteed

rights must not,.on that account, be subjected —

to harassment in the form of summary contempt

" proceedings , ea 7

Cencneniah

on : ue 3 < Pe hl ues

Taste or AuTHOrittes )

fant o/ | . PAGE. .

Cases: ae" 4 a

“Allen v. Virgina, 374 U.S. os. ene 28.

| ‘ Bates v. City of Little Rock. 361 U. [on

Blankenbaker v. State,’ 201 Ind: 142, 166 N. BE. 265°

\ (1929) fi peice 5

aiken Calla, 30 Idaho 431, 165'P. 1122 (1917) ..

Cammer y. United States, 350 U. S. 399 pol

Commonwealth v. Sheasley, 102 Pa. eats 384, 157

A. 27 (1931) -. 12, 13

Cooke y a: States, 267 U. ioe 517. (1925)... <== 0; a

Detbrowsit v. Pfister, 297 F. ‘René 556 (D. C. La.

1964), probable jurisdiction noted —— U. 8. —,

12 L. ed. 2 745 ne : mitten

"Ex Parte Curtis, 3 Minn. 274 (1859) ee

Ex Parte Howell, 273 Mo. 96, 200 S. W. 65 (1918) ........ 12

Ex Parte Terry, 128 U. S. 289 11888) nies

Gallagher. v.. Municipal Court of City of. Los Angeles, |

31 Cal. 2d 784, ——,.192 P. 2d 905 (1948) -.....0.2:. 4,17, 18

‘+ Gibson v. Florida Investigation Committee, 372 US. .

ee en 28

Gideon v. Wainwright, 372 U. S. 335 (1963) Pe Tonk ianidice 9

Harris v. Virginia, —— U. S. —, 12 L. ed. 2d 1038 .... 28

Hunt v. State, 27 Ohio ©.:'C. 16, aff’d State v. Hunt,’

72 Ohio St, 643, 76 N. E. 1132 =) a ae

In Re Cottingham; 66 Colo. 335, 182 P. — (1919) .. 12°

Irvin v. Dowd, 366 U. S. 717 (1961) Oe

- PAGE

in Re Green, 369 U.S. 689 (1962) 16, 17, 23, 29

‘In Re Henry, 369 Mieb. 34t} —, 119. N. W.2d 671

(1963) | . 16

-In Re McConnell, 370 U. S. 230 pS aes ..8, 19, 23

In Re Murchison, 349°U. 8, 133 (1955) .................... 11, 13, 14

In Re Oliver, 333 U.S, 257 (1948) . bc seeenenneeeceell, 14, 21, 23

oe. Johnson v. State, ., 87-Atk, 45, 112 8. W. 143 (1908) . uaa 2

- Jordan v. Hutcheson, 323 F. 2d 597 (CA 4, 1963) ..

‘eit State, 48 Neb. 105, 66N. W. 1017 (1896) ....12, 13

Louisiana ex rel. Gremillion v. N. A. A. C- Pi, 366.U. 8.

Matter of Rotwein, 291 N. Y. 116 (1943) «.......... > 7, 16, 17, 20

Moore v. Dempsey, 261 U.S. 86 (1923) ‘inasale ae

-- NL ASAG Pv. Alabama, 357:U. S. 449 a

"NAACP v. Button, 371 U. S. 415, 439 (1963) ......... 9, 21, 29

- ° = BaD)

Offutt v. United Sian: 348 U. 8. 1 (1954) eet ds 25°

Parmelee ‘Transportation uae ve Keeshin, 292

—F. 2d 806 (7th Cir. 196}) 18

~ Ponder v. Davis, 233 N: C. 699, 65 S. E. 2d 356 (1951) ..12,13 |

Powell v. Alabama, 287 U. S. aa (1983) ) sidelines 8,9.

Raiden v. Superior Court of io Measles (county, 34

Cal. 2d 83, ——, 206 P. 2d 1087 (1949) |......:............ 19 .-

Rideau f. Louisiana, 873 U. S. 723 (1968) |. 9

Sacher v. UnitedsStates, 343 U. S. 1 ..:. | | 28

Schlesinger v. Musmanno, 367. ‘Pa. 476, 81 A..2d 316

(1951 je-x-.....: Sent a be .. @

Shelton: v. _ Tucker, 364 U. S. 479 a iy . 28

»e °

PAGE

State v. Brown, 8 Okla. Crim. 40, 126 P. 245 (1926) ..

State ex rel. Moser v. District Court, 116 Mont. 305, oat

151 P. 2d 1002 (1944) teerlSueoveeeeA2y 13:

State v. Nunez,,.147 La. 394, —, 85 So. 52, —(1920) 12

_ State v. Simone, 154 La. 73, 97 So. 302 (1923) ............ 12,13 °

Tjosevig v. United States, 255 Fed. 5 (9th Cir. 1919) - a: 12

Tumey v. Ohio, 273 U. S. 510 (1927), og 26

_ Ungar v. Sarafite, 376 U. S. 575 (1968) Scone, 26

“<—~ Walker v. People, 126 Colo. 135, 248 P. 2d 287 (1952) .... 13

White v. State, 218 Ga. 290, 127-S. E: 2de668 (1962) .... 20

. Whiteside v. State, 148 Conn. 77, 167 A. 24 451 (1961) 13

_ Wooley v. Superior Court, 19 Cal. aad 2d 611, 66

*.P. 2d 680 (1987) i 12,13

Zarate v. Culbreath; 150 Fla, 543, 8 So. 2d 1 (1942)... 12.

United States Constitution:

Fourteenth Amendment ke ae aR. 6,7 '

Rules:

Federal Rules of Criminal cca Rule 42(b) .. 96

Statutes: en : ye

28.U. S. C. Bietides 1257(3) ..2 1

42 U.S. C. Sections 1981 and 1983 5

_ Section 18. 1-292 of the Code -of —— (1950)

: as ot . - 5

~ ° >

Save | 7 ee bal y.

- Articles oud Texts: sé .

Scott, Virginia ’ Juation If. You Can’t Get the

Law, Get the Lawyer, The Nation, January 20,

1962, p. 51 .... 6, 27

Oswald, Contempt of Court (3rd Ed. ‘Robertson, ,

1911), pp. 56-57 ...... 9.

' Frank, Disqualification of Judge, 56 Yale LiJ.

~ 605, 619-620 (1947) - at ae | a

Downs and Goldman, The Obligation of Lawyers —.

to Represent _Unpopular Defendants, 9 ‘Howard

3 L. J. 49 (1963) ........ , 27

Symposium, Thé ‘Right to Sener and the “Un-

popular — Cause,” 20. U.: of Pitt. L. ‘Rev. 25 a

(1959) 27°

Cheatham, A eC When Needed (Columbia _

_. * Univ., 1963) ase 27

Rostow, The Lawyer and His ; Client, ABA J ournal,

January, 1962 and February, 1962 nics ae

3 . ‘wieadllanenss- |

Canons of Ethics of the Ameriéan Bar Associa-

ta, Canons 6 5 and 15 ..... os 3 7

Le rue |

| Sapreme Court. of. the Anited States

“Ocrosen TERM, 1964 ee A de

| No, 464 ota \ |

——~»- ;

ee L. Ww. “Hour “a E. A. ‘Daweudy, oe a :

; Petitioners, °

—Y.— us .

. COMMONWEALTH OF Vinci, |

Respondent.

oN WRIT OF CERTIORART TO SUPREME COURT OF APPEALS

OF VIRGINIA gant ee

—

. "BRIEF FOR PETITIONERS

& .

Opinion Below

The gppinion of the ania Court of ‘haute of Vir.

_-ginia is reported at —— Va. , 136.8. E. 2d 809, and i is

-contained J in the record at R. 284.

fea

Jurisdiction.

The judgment of the Supreme Court of as ‘of Mir-

ginia was entered on ine 19, 1964. A petition certiorari

.- was filed in this Court on September 8, 1964. iorari was

granted on J anuary 18, 1965. The jurisdiction of this Court

rests on 28 U. S, C. Section-1257(3).' -* |

dS °

‘se

_ Statutory and Constitutional Provisions: Involved

United States Constitution, Amendshent veut, Bec-

tion 1: y :

. No state... shall. depos any person of ‘life,

liberty, or property, without due process of law.

Code of ViFginia (1950), Section 18. 1-292:

The Courts and judges may issue sttethments for

contempt, and punish them summarily, only in {ae

cases following:

. , Misbehavior in ‘the presence of the court, or Ft

‘near there s to obstruct or interrupt the ad- —

\ministration of justice; ” ‘

ue eo. * * a ¢

' (3) Vile, cqntemptuous or insulting language addressed .

to or published of a judge for or in respect of any

act or proceeding had, or to be had, in such court,

or like la e used in his presence and intended

for his hearing for or in respect of such act or

proceeding ;

(4) Misbehavior ‘of an officer of the court in his) pofticial

'. character. | ah

1. Whether a surnmary conviction for contempt by a state

court violates the due process clause of the Fourteenth

Amendment where the conviction is based solely upon per- —

tinent allegations made in a motion for change of venue

_ in pending proceedings, and where the contemnors, peti-

tioners herein, are respectively the lawyer who presented

. 3

and avail the motion and the party. on whose behalf the

- motion was made.

2. Whether a summary contempt conviction violates the

‘due process clause of the Fourteenth Amendment where

it clearly is but one episode.in a persist t history of

harassment to which petitioners, both Negr# lawyers, have.

been subjected jn connection with their r¢presentation of |

- citizens attempting to enforce constitutio ally guaranteed

— in Virginia..:

Statement of the

Petitioners are both Negro _— os s of the Virginia Bar,

and partners in the former-law firm of Jordan, Dawley &

Holt, Norfolk, Virginia. In October, 1961, Dawley repre-

sented the defendants in a libel suit ‘styled Hopewell News,

Inc. v. Curtiss, Harris et al. whieh“was tried in’ ‘the Circuit

Court of the City of Hopewell, Virginia, .presided over by

Judge. Carlton E. Holladay (R. 4). Immediately ‘after

the suit was ‘dismissed, Judge Holladay asked Dawley a.

question concerning the unavailability. of certain defendants

for whose appearance subpoenas had been issued. Dawley

did not then answer the question. Judge Holladay issued a

rule to show cause why Dawley should not be held in con-

tempt of court, for his refusal to answer the ‘question (R. ~

5). Before the hearing date, Dawley filed a ‘motion re-

questing Judge Holladay to disqualify. himself from the

- contempt hearing (R. 5). When this motion was denied,

Dawley filed a motion for a change of venue for the con-

tempt hearing (R. 6). oe

The contenipt ss sai on for hearing before Judge

Holladay on January 30, 1962. Holt appeared as counsel

, for Dawley, who was also present. Judge Holladay in-

{ 4

dicated he was ready. to-hear the motion for change of venue.

Thereupon Holt read ‘and argued the motion (R. 11-15).

Before ruling on the motion, Judge Holladay’ summarily

held Holt and Dawley in contempt of court, solely because

of the cqntents of the motion and the oral argument by

Holt in. support thereof (R. 16). The: judge -certified (R.

23- 24) that the following occurred:

“The Court read from the motion and otiaiel out,

among other things therein, that both E. A. Dawley,

Jr. and his counsel had said that the Court ‘is now in .

* effect and/or in fact acting: as police officer, chief

prosecution -witness, adverse witness for the defense;

® grand jury, chief prosecutor and judge.’ ,

“The Court further pointed out that both parties had

made the accusation that the Court had harassed and

intimidated counsel for E. A. Dawley, Jr.; viz., Leonard

W. Holt. .

“The Court further pointed out the allegations in Para-

graph .(10) of the motion and called attention to the

statement in the record that a fair and impartial trial

could not be had in the Circuit. Court of the City of

'" Hopewell.

-“The Court aerate out the statement made and ap-

pearing in the record that Mr. Holt’s client, Ha A.

Dawley, Jr., could not. get a fair and impartial trial

applied to both trial before a jury and before the Court.

“The Court then further pointed out the nature of the

limited apology. |

“ “Whereupon and,immediately. before the Court fixed

their punishment both defendants tendered a general

apology.

. 4) .

“The Court-then fined both E. A. Dawley, Jr. and

Leonard W. Holt $50.00 each for the‘contempt of which .

they had been ey attached and found guilty.”

“The ee i of Appeals of Virginia, in affrming

- the convietion, found that petitioners’ conduct, as destribed

_ in the judge’s certificate, supra, came. within the pu lew

of Section 18.1-292 of the Code of a (1950). as

amended (R. 35-36).

In view of the summary nature of the contempt convie-

tion, it was impossible for petitioners to raise any fed-

. eral questions, orto interpose defenses of any kind, before

- being convicted. Petitioners raised the federal questions

in their petition for writ of error to the Supreme Court

of Appeals of Virginia, a copy of which was subsequently:

accepted as their brief -in that court.

The opinion of the Supreme Court of Appeals of Virginia

explicitly passed upon and rejected the federal constitu-

tional claims raised by petitioners (R. 39-41).

The nature of the case at bar requires a brief mention of

certain related circumstances.

The law firm of Jordan, Dawley & Holt, in which peti-

tioners were partners, frequently represented clients at-

tempting to enforce constitutionally guaranteed rights in

Virginia and other southern states: The nature of the firm’s

practice was noted in Jordan v. Hutcheson, 323 F. 2d 597

(CA 4, 1963) in which the United States Court of Appeals

for the Fourth Circuit considered an appeal from the dis-

missal .of a complaint filed by the partners in the above-

mentioned law firm against state officers under the Civil

Rights Acts, 42 U. S. C. Sees. 1981 and 1983. The complaint

alleged that the defendants were conspiring to intimidate,

discourage and impede the plaintiffs and all Negro citizens

—

0 i 6 ;

of Virginia from using the courts as a means of ending

racial discrimination in that state, and that certain Vir-

ginia officials had investigatéd the friends and clients of

plaintiffs, urged and asked their clients to abandon them,

“raided the offices. of plaintiffs and their clients seeking to

gather confidential papers and notes, and published state-

ments naming plaintiffs as violators of the law,’

_The\peiden which precipitated the Jordan case occurred

on Septem’ er 17, 1961. 323 F. 2d at 599. Just three weeks

later, on October 5 and 6, 1961, petitioner Dawley appeared

before Judge Holladay in the Circuit Court of the City of

Hopewell as‘counsel ‘for the defendants in Hopewell News, ©

Inc. v. Curtiss Harrw et al., in which a local newspaper

claimed $45,000.00 damages for libel against several leaders

of the Hopewell, Virginia civil rights movement (R. 19-20).

it was petitioner Dawley’s conduct in the Hopewell News

case which was at issue in the hearing on January 30, 1962

on the show cause order; it was the conduct of petitioners

Dawley and Holt at the January 30, 1962 hearing which

resulted in the summary — convictions in issue. here. |

Summary of Argument

LA litigant has the right to the effective assistance of

counsel. An attorney has both the right and the duty to

represent his client effectively. Petitioners’ convictions for

contempt violate the Fourteenth Amendment because they

suppressed the constitutionally protected right to counsel.

The motion to change venue could not constitutionally

. be the basis for contempt convictions because its language

1The- surrounding circemetencees See described more fully in

Scott, Vitginia Justice: If You Can’t Get the Law, Get the Lawyer,

The Nation, January 20, 1962, p. 51,

was relevant, to the relief sought, it was presented in good

- faith, and it’ was- presented respectfully.

I. Petitioners’ summary contempt convictions violate

the Fourteenth Amendment because: (1) the constitutional

_ requirements of a fair hearing in a contempt proceeding _

were not met,-and (2) it was-not decided by & disinterested

judge.

The Constitution witeiils summary comtensipt proceedings

only when the alleged misconduct was committed in open

court in the judge’ s presence; when it was personally ob-

served by the judge; when it disturbed the court’s business; .

and when failure to punish would have demoralized the

court’s authority. None of these elements were present in

the trial court-below:———__

ee wv

pe,

Due‘process precludes a judge from hearing a contempt

‘ proceeding for alleged misconduct before: him when hé has

become personally embroiled. By thenature of the case at

bar, the trial judge was constitutionally compelled not to

sit-in judgment on petitioners’ alleged spe because

~~ of his personal involvement.

Ill. The petitioners habitually represented civil rights

clients in Virginia, clients unpopular in the dominant com-

munity. Petitioners’ convictions were one more episode in

a long history of harassment by. state officials who op-

posed and hoped to inhibit petitioners’ activities.

®v

ARGUMENT

sr sie “Sty

" Petitioners’ lesions motion for a change of venue

cannot, eonsistent with the guarantees of the due proc-

ess clause, amount to a contempt of Court on the part»

of either the ‘attorney who made it or the — on

whose behalf it. was made. :

fh: Pp diallal h aibiiassaae Sia pultibaiiir Deiter, ‘the

: litigant, the right to the effective assistance of counsel and

the right to be .prosecuted in an impartial forum, and

- denied éner Holt, the litigant’s attorney, the correla-

tive right to provide effective representation to his client,

ee ee

Amendment. oa

The constitutionally guaranteed riglit to counsel means

zealous and active counsel, not merely pro forma repre-

sentation. Powell v. Alabama, 287 U.S. 45, 58 (1932). It

-is not only a client’s right, but it: is an attorney’s duty to

supply effective representation.” In Offutt v. ‘United States, :

348 U.S. 11; 13 (1954), this Court held that “counsel must

be protected i in the right of an accused to ‘fearless, vigor-

ous and effective’ advocacy. :” In In Re McConnell,

370 U. S. 230, 236 (1962), this Court recently reiterated

that it would protect “a lawyer in presenting his client’s

? This duty is recognized by the Canons of Ethics of the American -

Bar Association. .

. [T]he lawyer is bound, by all fair and-honorable means,

to present every defense that ‘the law of” the land pres

Canon 5

“The levis owes ‘entire devotion to the interest of the client,

warm zeal in the maintenance and defense of his rights and

the exertion of“his utmést learning and ability’ to the end

that-nothing be taken or withheld from him...” Canon 15.-

—

Nes,

e ras . ra.

: ? 5 = eee

: . « - en acetal

bes ’ “¥ . a

° . . . \ .

9 }

case strenuously and persistently . ..” Moreover, “An

advocate is at liberty . .. to combat and contest strongly

any adverse views of the judge . . . , to object and protest

; «against any course which the ‘Seley may take, and which

: ‘the advocate thinks irregular or detrimental. to the inter-.

ests of his client... .” Oswald, Contempt of Court (3rd

Ed. Robertson, 1911), pp. 56-57.

It is virtually self-evident that any enforced modification

of the duty ‘of zealous representation will seriously limit’ a

litigant’s right to effective counsel. In constitutional effect;

it would be tantamount to a denial of the full measure of

~ that right..See Powell y. Alabama, supra; Gideon v. Wain-

wright, 372 U. S. 335 (1963).

‘Similarly, an attorney’s recognized right to ‘practice. his

profession. is adyersély. ‘affected. As this' ‘Court said in

‘ NAACP v. Button, 371 U.S. 415, 439 (1963), «.. @ State

may not, under the guise of prohibiting saliaied mis-

- ponduct, ignore constitutional rights.” See Schlesinger v.

Musmanno, 367 Pa. 476, 81 A. 2d 316 (1951).

_ Likewise, the right to a change of venue*is a constitu-

tional right, provided, of course, that a fair hearing cannot

Sit ye in the regular forum. Rideau.v. Louisiana, 373 U. S.

r 41963) ; Irvin v. “Dowd, 366-E- S.717 (1961) ; Moore v.

Dempsey; 1. S. 86 (1923). The assertion of that right

: Oswald. reports the following e between Erskine and

. Buller, J.,‘where Mr. Erskine insisted that the W “only” should

be inserted in a certain verdict: “At length. Erskine said, T-Stando. -

here as an advocate for a brother citizen and I desire that the ~

word “only” be recorded’; whereupon Buller, J. said, ‘Sit down,

Sir! Remember: your duty, or I shall be obliged to proceed in

another manner, *—to which Erskine retorted, ‘Your Lordship may

el : proceed in whatever manner you think fit. I know my duty as

well as your Lordship knows yours. I shall not alter my conduct.’

The Judge took no notice of this reply. Lord Campbe aT speaks of

the conduct of Erskine as ‘a noble stand for the independence of

the Bar,’ ” Oswald, Contempt of Court (3rd Ed. Robertson, » AUB),

PP. 51-52.

- fe

AS py! \* 10 ES

was the heart of the motion which was the basis of the con-

tempt convietions at bar, but the subs.ance of the motion

became so engulfed in the contempt proceedings, that one

‘can reasonably conclude that the application itself received

less than fair consideration. We would suggest, indeed,

that the court’s contempt ruling inevitably foreshadowed

the adverse ruling on the motion itself. Certainly, if a .

court finds the ‘mere filing of a motion contemptuous, it

will hardly give any attention to its merits. Thus, the

precipitous ontempt rutin; denied petitioner, Dawley the

_ fair hearing to which the a tion was — See Moore ¥.

——— supra. ag Al

B. The mation to change venue cimnet be considered «

eee

of legitimacy.

The record is clear that both petitioner Holt 6 as counsel

and petitioner “Dawley as client were summarily held in

contempt of court solely for filing and. subsequently reading

a motion for § change of venue. Of course, it is not incon-

ceivable that, the contents of a pleading might properly be

found conteniptuous. We need not speculate on the char-

acter of such pleadings, however, for the language con-

tained in the venue change motion in issue does not re-

_____-metely-approach the outer perimeter of decorous pleading.

. The trial: court’s certification of contempt (R. 23) con-

‘tains three specifications of allegedly contemptuous allega-

tions by petitioners: (1) that the Court “is now ‘in effect

and/or in fact acting as police officer, chief prosecution

. witness, adverse witness for the defense, grand jury, chief

prosecutor and judge”; (2) that the Court harassed and

‘intimidated Mr. Holt; and-(3). that a fair and impartial

tria] could not be had in the Circuit Court of the City of-

Hopewell, either before a jury or before the Court.

11 ;

This Court, has not had occasion to describe explicitly the

perimeter of permissible language in circumgtances’ such

as these, but..the implication is clear from related cases

that there‘is nothing contemptuous in the language used

in pétitioners’ motion. .

Language similar to that used in the mot on, -appears,.in

at least two'repofted cases of this Court reversing con-

tempt? ‘convictions’ by Michigan one-man grand jpries. Mr.

Justice Rutledge, concurring in In: Re Oliver, 333 U. Ss.

_ 257, 278 (1948), described the Michj an system as combin- °

ing “in a single official the historica ly ‘separate powers of,

grand jury, committing magistrate; prosecutor, trial judge” “

and petit jury.” And Mr. Justice Black, in this Court’s

opinion in In Re Murchison, 349 U..S. 133, 139 (1955), .

criticized. “the spectacle of the trial judge presenting tes-

timony upon: which he must finally pass in determining the

guilt or innocence of the defendant.” An attorney cannot

be criticized, much less held in contempt, for adopting rele-

vant language which appears in the opinions of-this Court.

_ Examination of federal and. state cases leads to the iden-

tical conclusion that the language in issue here is wholly

7; unexceptionable. The rule which emerges frem these cases* .

is that an attorney who filés or presents a motion is abso- |

lutely protected from contempt as long as the motion is

i #1 » 7"

® +These cases arose from motions to change venue as well as

motions to disqualify judges, but both motions seek to serve the

same end—changing the trial atmosphere for the benefit of the

defendant. .This can be done by either removing the trial to

another court (and another judge), or by replacing ‘the judge. :

It follows that the propriety of language used in either category’

is relevant. See Frank, Disqualification of Judges, 56<Yale L. J.

605, 619-620 (1947). Many decisions use the two interchangeably.

See, e.g., Tyosctig v.. United Statcs, 255 Ped. 5, 6 (9th Cir. 1919)

( “affidav it for change ‘of venue or change of judge on grounds of

prejudice and bias”).’,

(1) relevant to the relief being sought; (2) presented in

good faith; and (3) expressed in respectful language and

manner. Johnson v. State, 87 Ark. 45, 112 S: ‘W. 143

(1908) ; Woolley v. Superior. Court, 19 Cal. App. 2d. 611,

66 P. 24%80 (1937) ;..In Re Cottingham, 66 Colo. 335,

. .182 PB. 2 (1919) ; Zarate v. Culbreath, 150 Fla. 543, 8

So. 2d 1 (1942) ; Blankenbaker v. State, 201 Ind. 142, 166

_N. E. 265 (1929) ; State v. Simone, 154 La. 73, 97 So.

302 (1923); Bx Parte Curtis, 3-Minn, 274 (1859); Ex

Parte Howell, 273 Mo. 96, 200 S. W. 65 (1918); State

ex rely Moser v. District Court, 116 Mont. 305, 151 P. 2d

1002 (1944); LeHaye v. State, 48 Neb.- 105, 66 N. W. 1017

(1896) ; Ponder v. Davis, 233 N.-C. 699, 65 S. ‘E. 2d 356

(1951) ; Hunt v. State, 27 Ohio C. C. 16, aff’d State v. Hunt,

72 Ohio St. 643, 76 N. E. 1132 (1905); Commonwealth. v.

more 102 Pa. Super. 384, 157 A. 27 (1931)..

. [I]t is 2 right of a\party and of his counsel

to ae to the judge before whom a case is pending

-for the purpose of having another judge try the case

_ because of prejudice of the first judge which would

. prevent an impartial trial, and ... the presenting of

such an application in veapeetidl language and in a-

+ respectful manner is not of itself contempt of court.”

Tjosevig v. var Staies, 255 Fed. 5, 7 49th Cir.

1919). Sy

If the grounds asserted are “pertinent to the obtention |

of the relief .¢ sought . . [they] cannot be made the

_ basis of a proceeding against him for contempt of court.” .

State v. Nunez, 147 La. 394,. 408, 85 So. 52, 57 (1920).

wits. long as the standards ‘of relevancy, good faith. and

respectfulness are satisfied, there can be nd contempt not-

withstanding the fact that the statements in the motion

is unmistakably demonstrated by the reco

- explicitly found not contemptuous, or not even suggeste

“may necessarily . . . reflect adversely wpon the conduct”

and character of the judge.” Whiteside v. State, 148 Conn.

77, 81, 167 A. -2d°450, 452 (1961)."

_ That these three conditions were amply met\jn this case

° The Janguage held contemptuous in the case at bar is mild |

by any standard. Compared to other cases in which language was,

contemptuous, the language here is gentlerfess itself. For expan,

see Woolley v. Superior Court, supra (motion for disqualitication

alleged that judge. had indicated his belief in defendant’s guilt _

during the course of the trial and that he participated at trial

in order to obtain évidence favorable to the plaintiffs); Walker

v. People, 126 Colo. 135, 248 P. 2d 287 {1952) (motion for dis-

qualification. alleged that judge “has previously expressed and

- exhibited a determination to bring about a conviction, and if

possible, the execution of the petitioner, regardless of the law or

facts... ”); Blankenbaker v. State, supra (motion for disquali-

fication alleged that judge announced to the jury “that he knew

enough of the record to send defendant to the electric chair’’) ;

Callahan v. Callahan, 30 Idaho 431, 165 P. 1122 (1917) (motion

for change of venue alleged that opposing party’s friendship and

influenee with judge made fair trial impossible) ; State v: Simone,

supra (motion for disqualification alleged that the judge had

instigated the prosecution -“as a last and desperate attempt to

punish the accused for not supporting him in-the last preceding

election”) ; State ex rel. Moser v. District Court, supra (litigant

moved for disqualification on ground that the “Court has been

with... ”); Le Hane v. State, supra: (affidavit of prejudice al-

leged that. judge silently concurred in his son’s threat to prevent —

- affiant from practising law becguse of a political dispute) ; Ponder

v. Davis, supra (motion for disqualification alleged that judge

took an* active: part in opposing party’s political campaign and |

- that “the great majority of the people . . . regardless of the deci- -

sion of the court . . . would feel that political considerations were

the determining factor’’) ; State v. Brown, 8 Okla. Crim. 40; 126

P. 245:(1912) (prosecution charged that judge “did at various

.and sundry times have private and: secret consultations relative .

to and pertaining to the merits of the case” with the defendant) ;

Commonwealth v..Sheasley, supra (motion for disqualification

charged oo ‘with opposing counsel to defeat

petitioner’s ca

. charged with stealing a réceipt for.$3000 which I trusted them~ \_

14:

1) Bibeioncy, The purpose of the motion to iii ee

venue was to’ avoid trial by Judge Holladay of a contempt

proceeding against petitioner.. Dawley because of his re-

fusal to answer certain questions asked by. the Judge, fol- -

lowing the dismissal of a libel actzon against Dawley’s .

clients (R. 5) It is surely relevant for an attorney or. liti- ©

gant who secks a change of venue on the ground that the .

trial judge is biased to allege precisely | that, and also to

allege harassment and intimidation by the judge. A fortiori

; fog an attorney faced with a contempt trial before a judge

alleged to be not impartial, and alleged to have harassed

‘and intimidated him, it is certainly relevant to move for

change of venue on the grounds that the Court “is now in

effect and/or in fact” assuming the combined role of prose-

eutor and judge. -It is * particularly relevant for an attor-

ney, trained to function in an adversary system where there

is careful separation of function, to complain of. this one-

man amalgamatipn whige he- himself is-eharged with con-

tempt. To request a fferenit judge, one surely does not

plead an irrelevancy+to claim that the present judge is

“in effect and/or in fact” your prosecutor. Cf. In Re

Murchison, supra; In Re. Oliver, oupra.

®° The abe truth of this anit of the “accusation” can hardly

“be questioned. . In an ordinary ¢riminal se

~ geparation of fictions between arrest, ‘eltetane prosecution,

direct testimony, rebuttal testimony, and judgment. A large

number of persons are involved, each playing his own prescribed

role. This is obviously not so-in a contempt: proceeding. Jidge

Holladay, and no one else, issued the rule to show cause (com-

. pulsory criminal process equivalent to summons or arrest by a

police officer) ; there was no one other than Judge Holladay who

would determine whether or not there’ was probable cause for

the defendant to’ be tried (equivalent, to "indictment by grand

jury) ; Judge Holladay would be in fact the principal (if not the

only) witness, since the charge was contempt for refusing to answer

rad questions. And Judge Holladay of course would preside in.

imate over al] of these proce dings. :

«}

ceeding there is a:

Wiese

ee : .

4 5 : A

The sii: Court of. Appeals of Virginia pronounces

it as “well settled” that a venue change motion “must con-

fine itself to pertinent facts relied upon to establish that .

‘ ground” (R. 37). We submit that an abundance of “perti-

_ nent facts” was set forth in the motion, including, for ex-

ample:. the nature of the libel suit against Dawley’s clients

' - (BR. 12); the fact that there was considerable ‘community

hostility expressed towards petitioners and their clients

in newspaper articles published ‘during the course of the

litigation (R. 13); that radio- coverage of the proceed-

ings was likewise ‘hostile and prejudicial to their side

of the controversy (R. 13); that the contempt prdceed-.

ing, with respect to which the venue change motion was .

made, was initiated by and would be tried before. the game

_ judgé who presided over the libel case (R, 13) ;- that this

. judge had stated that he was investigating the conduct of

petitioners (R. 13); that police officers had called upon

petitioners’ clients “at their homes and places of business

on at least two occasions to harass and intimjdate them”

(R. 14); that the Clerk of the Court had testified for the

prosecution (R. 14); that. both the Clerk and the Commob-

wealth’s attorney. had participated in these events “other

than in their official capacity,” that the} had refused. to

disqualify themselves, and the Judge. hafl-refused to dis-

qualify them from participation jn the cqhtempt proceeding

(R. 14); and- that because of their eno¥mous hostility to

Mr. Dawley’s clients and certain “boycotts, pickets and.

demonstrations , : . , the white people,of Hopewell, Virginia, ~

are so greatly aroused against E. A. Dawley, that it is

probable that he will not obtain a fair trial in the City of -

Hopewell, Virginia” (R. 14-15). If the Supreme Court.

of Appeals of Virginia concluded ‘that these were not .

“per tinent facts”, they must have been reading some other

record.’ Ge, eae

2) Good faith. The court below expressly ruled that the

motion was not “addressed, in good faith, to the sound dis-

. eretion of the trial court” (R. 37). Its reasons seem to have

been that (a) there is no Virginia statute “which could

require a judge to disqualify himself in a contempt pro-

ceeding,” and (b) the motion did-not “confine itseJf to

pertinent facts.” That the second stated reason is palpably

erroneous is evident from¢the record.’ The first assigned™-

‘reason is a classical nori-sequitur, for the absence of a

compulsory disqualification statute has nothing to do with

whether or not a venue change motion is made in good

faith. The Virginia ‘Supreme Court, seems to be saying

that any venue change motion is automatically suspect.

But it makes no difference, insofar i good faith is con-

cerned, whether the statute is compulsory or discretionary.

Even asstming a statute which forbids such motions in

their entirety, an attorney: who makes it, expeeting that it

will be denied but seeking to preserve a record for appeal, —

is surgly not acting in bad faith.’ .As the, Supreme ‘Court

7 If the Virginia Supreme Court intended to comeede that ther

were some “pertinent facts”, but that the motion ‘was tk

because it did not “confine itself” to pertinent facts, it totally failed

to specify what it considered not pertinent.

* See discussion supra, p: 15.. Moreover, even an irrelevant

statement in support of an. application to disqualify a judge is,

not contemptuous “if it is made.by the attorney in good faith

to protect the interests of his client, and_-in the honest belief that

it is-relevant, and without reckless disregard of the truth or intent

‘to impair the respect due to’ the court.” Matter of Ratwein, 291

N. Y. 116, 123°°(1943).

» Cf. In Re we Beary, 369 Mich. 347, 362, 119 N. W. 2d 671, 679

(1963): “... It is the-right of counsel for every litigant to press

his claim, even if it appears “farfetched and untenable. . .-. If the

ruling is adverse, it is not counsél’s right to resist it or to insult ,

the judge, but only respectfully’ to preserve his point for appeal.”

1 . -

: oO . it | “

of California held in Gallagher v. Municipal Court of City

of Los Angeles, 31 Cal. 2d 784, 788, 192 P. 2d 905, 908-9 ~

(1948) : .

“But certainly a mere mistaken act by counsel cannot

* render him in contempt of court. Even if a legal propo-

sition is untenable, counsel may properly urge it in

good faith; he may do so even though he may not ex-

pect to be successful, provided of course, that he does

_ + Dot resort to deceit or to wilfull obstruction of the

_orderly processes.” (Emphasis added.)

A mistake in law is hardly, inconsistent with good faith. To

the extent that the Virginia courts seek to justify peti--

tioners’ convictions because of a claimed lack of good faith

—¢stablished ipso facto by a°claimed mistake of law—they

are plainly in error.”

3) Respect. Ne either the judgment of conviction, nor the

“Statement of Facts and Incidents of Trial,” nor the tran- -

. seript of the trial itself, nor anything else. in the record,

contains any express rulings, findings, observations, or.

comments by the Judge bearing on whether or not the mo-

tion was respectfully tendered. There is present “neither -

proof nor finding that the statements .... were ‘made in a

disrespectful or ‘insolent manner or in bad faith.” Matter

of Rotwein, 291 N. ® 116, 122, 51 N: E. 2d 669, 672 (1943). is

; 1° Phis Court has held it a violation of due process to impose a -.

contempt conviction on an attorney without a proper hearing where:

. the contemnor’s alleged wrongdoing consisted in giving legal ad-

vice to his clients which the ‘courts of Ohio held erroneous but

this ‘court held “arguably” not so. In Re Green, 369 U. S. 689,

693 (1962).

The California Supreme Court appears to have adopted a

‘rule which goes further to protect attorneys from a situation

which “invites caprice” on the part of a judge- who regards him-

self as the injured party and metes out punishment. Even if

there are express findings in the contempt order that the “ ‘tone,.

the look, the manner and the emphasis? were contemptuous,” the

- '

But the Virginia Supreme Court-of Appeals has: in effect: °

issued findings of fact even though the sentencing judge

did not. It said, “It would be difficult to imagine a more

callous attack’’; “The. language employed . . was intended

to be insulting” : “The motion .. . was . . . a studied: at-

tempt to smear the judge” ( R. 35): Of course there is no

warrant in the record for any of this.’ They are no more

than the court’s own subjective evaluations of what tran-

spired velow.*® .

The most that can be said in defense of the court below

is that it held that the mere making of such a motion, and

its contents, ipso facto constituted disrespect regardless of

aanner of presentation and demeanor. But advocacy in-

*. «

appellate courts will nev ertheless carefully review the record and

make their independent appraisal. “.. . It is not unnecessarily

burdensome to require the judge firste to warn the attorney that

his tone and facial expressions ‘are offensive and tend to interrupt

the due course of the proceeding. Otherwise, attorneys could be

subjected to fines and jail sentences because of personal annoy-

ance and pique on the part of trial judges; and these penalties

‘could be rendered unassailable, as is contended here, by lengthy

recitals in the orders of contempt respecting the. demeanor of

the contemnor.” Gallagher v.-Municipal Court of City of Los

Angeles, 31 Cal. 2d at 797, 192 P. 2d at 914.

12 “Tt contains no citation of any part of the record to support

it... .” Parmciee. Transportation Company v. Keeshin, 292 F. 2d

806, 809 (7th Cir. 1961).

3 Throughout its opinion, the Virginia Supreme Court evinces

great and perhaps injudicious hostility to petitioners. In addition

to the excerpts previously cited, the following may be noted: Mr.

Holt’s response to the contempt -citation is characterized as “long

and rather incoherent” (R. 32)..The motion itself, the court says,

“was simply used as a vehicle to heap insults upon the court”

(R. 35). There is a broad suggestion that petitioners “shirked”

their duty “under the guise. of representing the interests of a

party litigant”’ (R. 36). The disclaimer of intentional disrespect

is described as “so-called,” and “supposed” (R. 37, 38),-and ridi-

culed as “unintelligible” (R. 38). Finally, petitioners’ professional

ability is questioned by a totally gratuitous observation concerning

their “lack of knowledge of the established law” (R. 39). a,

? ¢

cludes the right to point.out “asserted nails in the

action taken by the court.... It does not appear here that

the petitioner was overstepping the bounds of propriety

by merely expressing an opinion that a prior order of the

court defeated the ends of justice.” Raiden v. Superior

Court of Los Angeles County, 34 Cak. 2d 83, 86-87, 206 P. 2d

1081, 1083 (1949). This Court has seriously questionéd

whether a statement by a lawyer that he would continue to

press his point and ask questions forbidden by the judge

until stopped by a bailiff could’ in and of itself amount to

- eontempt where in fact this eventuality did not come to pass.

In Re McConnell, 370 U. S. 230 (1962).

The Vi irginia Supreme Court of Appeals was also criti-

cal of petitioners’ apology, holding that even if it were

offered as a: “disclaimer of intentional disrespect,” it was .

not acceptable as such.’* Regardless of questions of ‘purg-

ing, limited apology, or general ‘apology, Mr. Holt’s state-

ment, fairly read, is in fact a disclaimer ‘of intentional

disrespect. Mr. Holt said, inter alia (R. 22- 23) :

“... We at this point would disavow any subjective

intent, and to that extent would apologize to the Court.

. We say that our intent was not to be contemptu-

ous; and if objectively this result is reached by looking

‘at them [the statements in the motion! without going

into our inward intent, we would say we apologize.

“The precise holding in McConnell, that the judge could not

proveed summarily under those circumstances, is discussed in

Point I] of this brief, post.

apology was as follows:

_ “The Court further pointed out the nature of the liinited

apology.

“Whereupon and.immediately before the Court fixed their

punishment, both’defendants tendeted a general apology”

(R. 23).

Cag

es, . . The statements were made in the best of faith

based upon @ conclusion drawn from certain objective

manifestations. :

“. . . We would welcome from the -eourt a suggestion

. as to how to restate the idea so as not to be contemptu-

ous, because this [is] not our intent.

“The only thing we want in the record is that there is

reason for a change of venue, :

“We... disavow any intent in certain statements to:

be contemptuous of the Court.” _. ora

_ Mr. Holt quite evidently was expressing to the court his

‘opinion that-there were good and sufficient grounds for a

change of venue, and that they were stated in the motion

in good faith. Since the grounds included the alleged lack

of impartiality of the judge, they had to be stated. °

The logic of the opinion below is thaf the only acceptable

apology would have been withdrawal of the motion. Obvi-

‘ously, Mr. Holt’s duty to his client prohibited suci sur-

render. See Matter of Rotwein, 291 N. Y. 116, 122, 51

N. E. 2-669, 672 (1943). ‘Instead, he stated and sought

_to réiterate the distinction between the bona fide attempt

to plead sufficient facts for the relief sought, and any

overlay these words may have had in terms of being re-

awarded by ,the judge as disrespectful, insulting, or con-

temptuous. The distinction between his subjective intent

not to be disrespectful, and whatever might be the objeétire

- effect of the words used, was therefore a most valid way

of expressing this dilemma.**

1° The Supreme Court of Georgia recently held in White v.

State, 218 Ga. 290, 292-293, 127 S. E. 2d 668, 670 (1962) :

“Mr: Whiteswas within his. rights, as a lawyer, to state ‘his

client’s contention in the case. In doing so he was amenable

of Il. ,

Petitioners’ summary contempt convictions deprived |

them of the fair hearing required by due process of

law.

‘A. The constitutional prerequisites which this Court has held

necessary to justify summary proceedings in a narrowly

circumscribed area of contempts have not. been met; con-

sequently, the court had no power to proceed in a sum-

mary fashion.

The constitutional requirements of a fair see in a

contempt case have been stated. by this Court on several

occasions but most explicitly in In Re Oliver, 333 U. S.

257, 275 (1948) : /

“Except for a narrowly limited category of contempts,

- due process of law as explained in the Cooke case .

[Cooke v. United States, 267 U. S..517 (1925) ], requires —

that one charged with contempt of court be advised of

the charges against him, have a reasonable oppor-

tunity to meet them by way of defense orzexplanation,

have the right to be represented by counsel, and have

a chance to testify and call other witnesses in his be-

half, either by way of defense tr explanation.’ The

harrow exception to these due process requirements

includes only charges of misconduct, in open court, in ~

the presence of the judge, which disturbs the court’s

business, where all of the essential elements of the this-

“conduct are under the eye of the court, are actualiy

to the court for his outward manifestations, but not for his

innermost thinking.”

This suggests an even broader standard: One ¢an “indeed have

most disrespectful thoughts about judges, but sanctions can not

be imposed absent overt manifestations. ,But the Virginia Supreme

Court of Appeals.did not hesitate to probe petitioners’ states of

mind and concluded that there was not ‘only an intention to be

insulting, but “a studied attempt” to smear the judge (R. 35).

. observed by the court, and where immediate punish-

ment is eons to prevent ‘demoralization of the

court’s authority’ Pome supra, at 536] before the

public.” —

These “due process requirements” can be dispensed with,

and a court can proceed in summary fashion, only in an

aggravated situation, demonstrated -by the- simultaneous

presence of all of tie following conditions:

1) The misvonduct must be committed in open court and

in the presence of the judge.

2) The. court must actually and personally observe the

entire episode.

3) The misconduct must be of such a nature that it dis-

turbs the court’s business.

4) The misconduct must be of such a nature that failure

to impese immediate punishment would cause “de-

moralization of the court’s authority.”

_ The first two conditions are objective, and their presence

or.absence in this case can be tested by the record. There-

_ fore, except for the argument (post, p. 24) that under no

’ eireumstances did Mr. Dawley—who sat silently throughout

the proceedings—commit any act at all “in open court, in

the presence of the judge,” petitioners’ concern is pri-

marily’ with the two other conditions: disturbance and

“demoralization”.. We believe that the record shows un-

ambiguously that there was neither disturbance of the

court’s business, nor demoralization of its authority; con-

sequently, there was no basis whatsoever for the,application .

of the extraordinary summary power.

17 It might be noted, however, that the essence of the alleged

misconduct—the contents of the venue change motion—occurred, if

*~ The disturbance element has been defined by this Court

as “obstruction to the ‘performance of judicial duty.” In

Re McConnell, supra, at 234. In that case, an attorney

- who was in sharp disagreement with the court over a ques-

tion of law, refused to discontinue a line of questioning in

the face of an express direction by the court. He stated

that he would continue to ‘ask his questions “unless some

bailiff stops us.” Id. at. 235. But he subsequently did de-

sist before being physically restrained, though obviously

aware of what might be forthcoming had he not. Yet this

court observed “that there was nothing in petitioner’ S con-

duct sufficiently disruptive of the trial court’s business to

- be an obstruction of justice,” id. at 235-236, and a summary

contempt convictidn was reversed. .

In case at bar there was no failure to aueiit after warning,

no verbal clash with the judge, indeed no resistance ‘to any

judicial direction at all. Much less was there any physical

obstruction. Compare Ex parte Terry, 128 U.S. 289 (1888).

There was plainly no obstruction, disturbance or disrup-

tion of any kind.

The : Phrase “demoralization of ‘the court’s authority”

has not been precisely defined. But this Court has held

that such “demoralization” does not occur when the alleged

contemnor has done no moré than raise an “arguable”

- question of the court’s jurisdiction. In Re Green, supra,

at 692-693. In effect, petitioners here, by moving to change

venue on grounds of lack of impartiality of the judge, were

doing just that. As was said in Oliver, supra, at 278:

at all, when the motion was filed; thirteen days prior to the cral

argument in support of it. Thus; when first uttered, any. miscon-

duct here was plainly not “in open court, in the presence of the

judge.” It was rt until the motion was read, at the judge’s direc- -

- tion (R. 11), that anything at all occurred in open court.

’ “The right to be heard in open court before one is con-

demned is too valuable to be whittled away under the

guise of ‘demoralization of the court’s authority.’ ”

B. Since Mr. Dawley did not commit any act in open

court, there was absolutely no warrant to proceed

~ against him summarily.

It is clear from the record that Mr. Dawley said abso-

(R. 8:24) is there a single word spoken by Mr. Dawley,

who was présent in court as a party not.as an attorney.

The motion to change venue was filed on January 17,

1962 and signed by Mr. Dawley, pro se (R. 6). Thirteen

days later, on January 30,1962, when the first contempt

case was called for trial, Mr. Holt read the motion verbatim

into the record as.the major portion 6f his oral argument |

in support of the motion (R. 11- al The sree col-

loquy then -took place:

“The Court:. As I understand it, you have’ filed a

copy of the motion you substantially made in the rec-

. ord in the case here, I believe you read from that?

“Mr. Holt: .That is correct. 7

“The Court: And it is signed by Mr. Daw ley?

“Mr. Holt: That is correct, sir.

* fe #: .

“The-Court: I notice that the pleading was filed

apparently in person rather than by you as counsel.

“Mr. Holt: Well, it was signed by him...

“The Court: I was just merely asking—I saw it was

signed by him there and not’ signed by you as counsel,

but you appeared here today as counsel.

Is that correct? You have argued the motion: I

understood that you appeared as counsel.

“Mr. Holt: I think that’s what I have done, sir.. It’s

before the Court” (R. 15-16).

The court evidently took pains to point out that the mo-

tion read by Mr. Holt was identical with the motion which

had been signed by Mr. Dawley. But other than this asso-

ciation, tangential at best, Mr. Dawley did nothing before

Judge Holladay.

As shown above, this Court has established four con-

ditions which must be met before a court may use its

extraordinary summary contempt power. The-first of these’

conditions requirés that the allegedly, contumacious act

occur “in open court, in the presence of the judge”. That

Mr. Dawley did absolutely nothing at all, much less any-

thing contumacious “in open court, in the presence of the

court” is so clear, that further argument would belabor

the obvious. Accordingly, his conviction should be re-

versed for this additional ground. Cooke v. United States,

supe, at 536. :

. A ‘motion for change of venue or judicial disqualification,

based on allegations of the lack of the judge’s impartiality,

necessarily creates such a condition of intense personal in-

volvement on the part of the judge that any contempt

pr 3 arising from such motion must be heard be-

fore a disinterested judge.

‘This Court has held in several cases that the wae. .

» ments of due process are not met by a hearing. before

. the .same judge before whom a contempt was allegedly

committed, where the judge becomes personally embroiled

in the events leading to the alleged contempt. See Cooke

v. United States, supra; Offutt v. United States, 348 U. S.

11 (1954); ef. Ungar v. Sarafite, 376 U. S. 575, 585 (1964).

— . ; 26

In Ungar v. Sarafite, this Court ruled that trial of a

contempt before another judge was not constitutionally

required on the facts of that case, where the record did

not “leave us with an abiding impression that the. trial

judge permitted himself to becom personally embroiled

‘with petitioner.” Jd. at 585.'*-."Rhis case, however, is

substantially different. ah

‘The measure to be applied is the -depth and intensity

- of the judge’s personal embroilment with the alleged con-

temnor. Admonitions and restraints directed to ‘a witness

or a party may or may not amount to an-imbroglio suffi-

cient to require trial before another judge. to insure due

process. But where, as here, the very matter which re-

sulted in the:contempt was a challenge to the judge’s

impartiality, a. much stronger case is presented. It» is

difficult to imagine a judge being more intimately and per-

sonally involved than where the precise issue aenore him

is his ability to be a fair judge. :

In Tumey v. Ohio, 273 U. S. 510 (1927), this Court held -

. that even a relatively modest financial interest in the out-

come of a case was of sufficient constitutional magnitude

to preclude judicial disinterestedness. How much more so .

when the judge’s principal professional and public virtue—

the raison d’étre of his judicial funetion—is being directly

challenged. ° ; ae e

_ The full measure of ian process in this case required”

a nonsummary hearing ‘before a disinterested judge. Cf.,

Federal Rules of Criminal Procedure, Rule 42(b):

18 Furthermore, Judge Sarafite did hot proceed summarily. . He

gave the petitioner notice, and held a hearing at the close of the

-trial. This Court intimated but did not flatly hold that “a non-

summary hearing was required.” .In any event, “the shearing

afforded petitioner satisfied the requirements of due process.’

376 U.S. at 589.

Lawyers who habitually represent citizens attempting -

to enforce constitutionally guaranteed rights must not,

. on that account, be subjected to harassment in the form |

of summary comtamgt Re .. SS

This case presents again.the sinihiienin é the lawyer who

represents an unpopular cause.”® Petitioners are both Negro

lawyers who habitually represent civil rights litigants. Un-

fortunately, it is a matter of common knowledge that many

communities in Southern States, including Virginia, display

a deep-rooted and persistent hostility towards the civil

Tights movement, and especially against lawyers who ex-

press its. legitimate ambitions.” Civil rights lawyers and

their clients find themselves attempting to enforce constitu- |

tionally guaranteed rights in a community whose most

influential members are often thei most bitter adversaries.

-In recent years frequent attempts have been made to sup-

press the activities of civil-rights lawyers in Southern com-

munities. The attempts often take the.form of regulatory.

“measures which, on their face, may appear salutary and

impartial, but which in fact are aimed directly against the

proponents of civil rights, In a recent case arising in Vir-

19 See, e.g., Downs and Goldman, The Obligation of Lawyers to

Represent Unpopular Defendants, 9 Howard L. J. 49 ( (1963) ;

Symposium, The Right to Counsel and the “Unpopular Cause,”

- “ 90 U: of Pitt. L. Rev. 725 (1959); Cheatham, A Lawyer When

Needed (Columbia Univ., 1963) ;. Rostow, The Lawyer and. His

Client, ABA Journal, January, 1962 and February, +1962.

20 For expressions of hostility against petitioners herein. for:

. their general efforts on behalf of civil rights litigants, see, ¢.g.,

Report of the Committee on Offenses Against the Administratione *,

of Justice to the Governor and the General Assembly of Virginia

(Senate Document No. 16, 1961), pp, 7-8; Scott, Virginia Justice :

If You Can’t Get.the Law, Get the Lawyer, The Nation, January

20, 1962, p. 51; Jordan v. Hutcheson, 323 F. 2d 597 (CA 4, 1963).

ginia, this Court pierced the form of a state’s purported

attempt to regulate, found in substance an attempt to

. '- inhibit a constitutionally guaranteed activity, and granted

‘ relief to the lawyers and their clients. N. A. A. C. P. v.

| Button, 371 U. S. 415 (1963). See also Gibson y. Florida In-.

vestigation Committéd, 372 U. S. 539 (1963) ;.N. A. A. C. P.

v. Alabama, 357 U. S.. 449 (1958); Bates v. City of Little

» Rock, 361 U. S. 516 (1960) ; Shelton v. Tucker, 364 U. S. 479

(1960); Jordan v. Hutcheson, 323 F. 2d 597 (CA 4, 1963).

‘This Court has demonstrated that it will reject all measures,

“no matter how sophisticated”, which may be-employed “in .

‘ “purpose or ‘in effect. to stifle, penalize, or curb the exercise ~"

of First Amendment rights.” Lousiana ex rel. Gremillion.

v. N. A. A. C. P.,°366 U. S. 293, 297 (1961). See also

‘Dombrowski v. Pfister, 227 F. Supp. 556 (DC La. 1964), ~

probable jurisdiction — id U.S. 976 (1964). |

The summary contempt "proceedings did ‘not occur as

an isolated. event. Rather, they represent but one more

episode in.a long history of harassment, indulged in by

manyestate officials and othér members of the community

as a means of opposing and inhibiting petitioners’ ‘ac-

tivities. In view of the inflamed condition of the commnu-

problems, ‘the judge should have disqualified himself: or

granted a change of venue.

We have made previous reference tothe. constitutioial

right of a lawyer to represent his client. In. Sacher vy,

United States, 343 U. S>1 (1952), while sustaining a ¢on-’

tempt conviction on the facts pr esented, this ee added,

id. at 13-14.

In Harris Vv. -Wirginva; —— U. 8. ——, 12 L..ed. 2d 1038 and

Allen v. Virginia, 374:'U. S. 93 (1968), this Court vacated and

remanded unreported Virginia cases, the record of which indicates

the conditions prevailing in Hopewell, Virginia.

‘*

~aae

. 29

. this on if its aid be needed, will unhesitht-

, oe protect counsel in fearless, vigorous and effgn

; pe performance of every duty pertaining to the

f the advocate on behalf of any person eh,

. But it will not equate contempt with courage or in-’

- with independence.”

See ies In Re Green, supra; Cammer v. United States, 350 .

U. S. 399 (1955). ; : ae pikes

These summary contempt convictions must therefore -be

viewed as punishing petitioners, not only for the events

which took place in the courtroom, but also for being active

civil rights lawyers. The convictions consequently operate

as a judicially imposed impediment to the constitutionally

guaranteed activities not only of petitioners but of the civil

rights litigants they habitually represent.

Because of the belief that the ‘atjustions of : racial in-

: ‘equality can be redressed within the’ framework of the law,

lawyers who represent civil rights organizations are fre-

quently in the center of each race relations crisis as it arises.

Freedom of association, in the context of contemporary

events, certainly includes the freedom of the associatiun’s

counsel to represent the association and advocate its,cause

in court as much as it includes the association’s right to be

represented by counsel. NAACP v. Button. As’Mr. Justice

Douglas has said:

“The citizen should know that in the courts one can get

justice, no matter how discriminatory government offi-

cials may be...” The Bill of Rights is Not Enough,

Fourth Annual James Madison Lécture, in Cahn, The

Great Rights, p. 146. |

Conan SION

For the reasons stated mana: the convictions should

be reversed. .

Respectfully siiesittind,

Marvin M. KarpatkIn |

660 Madison Avenue.

New York; N. Y.

_. Mecvrs L. Woir

156 Fifth’ Avenue

New York, N. Y.

_ Attorneys for Petitioners

Leste Harotp LEvINson ° . : ;

JosePH A. Jorpan ot

Epwarp A. DawLey - sy

Leonarp W. Hott 8

of Counsel .

¥ March 1965

We are indébted to Mr./Stephen L. Isaaes, third-year student at

Columbia Law School, fér his valuable research assistance.

“

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.