# Brief for the Petitioner — Holt v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0160%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Petitioner - **Published:** January 1, 1965 - **Citation:** 381 U.S. 131 ## Text 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 x 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................. a . 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 4 _ 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 & o a on : ue 3 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 “ 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- sR { 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, 7 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 o> 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. ea - fe é 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. ad . 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, 561 (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. | 30 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. “ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0160%3A4. Public record. Not legal advice.