# Reply Brief of Petitioner — Muniz v. Hoffman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief of Petitioner
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 454

## Text

Subject Index .

I

The respondent has not established either statutory or legisla-
tive history which overcomes the clear language of § 3692

A. A preliminary analysis of the respondent’s position ..

B.

The assertion that § 3692 must be restricted to con-
tempts of injunctions issued pursuant to Norris-
LaGuardia“has been the consistent conclusion of the
courts which have considered the question,” Res. Brief,
ep, ae, Ie WIN ick cis i Ske is esi ens
The jury trial of § 3692 serves an important purpose
where criminal contempt is alleged .................
Respondent has retreated from reliance on statutory
authority for its restrictive interpretation of § 3692 ..

Congressional debate surrounding the Civil Rights Act
of 1957 is irrelevant and inconclusive ...............

II

The respondent has misconceived the principles underlying the
jury entitlement of Article III, § 2 and Amendment VI ..

A.

B.

The right to a jury trial is assured wherever the matter
tried is criminal contempt ...... he kkws 64 dec eeukee ass
Respondent’s suggestion that a flexible standard be
adopted with respect to the seriousness of fines is
IN as on kb 0 ok ohn Oh shoe cd de Wen ntues

The penalties imposed upon Local 70 reflect a serious
I aoa cc od vue be ekd de vob cee Wee Oona denen kee.

Page

1l

Table of Authorities Cited

Cases Pages

Argersinger y. Hamlin, 407 fk oe Be. } as 12

Baldwin v. New York, 399 U.S. 66 (1970) ..........- a wie 11,13

Bloom v. Illinois, 391 U.S. 194 (1968) ........ 4, 10, 11, 12, 13, 15
Brotherhood of Firemen v. United States, 411 F.2d 312 (5th

ee) Rae er Cen ne np n rr repre ts oe 4

Brotherhood of Locomotive Firemen & Enginemen v. Bangor
& Aroostook R.R. Co., 380 F.2d 570 (D.C. Cir. 1967), cert.

denied, 389 U.S. 327 (1967) ........--eeeeee sees eeeeees 3
Callan v. Wilson, 127 U.S. 540 (1888) ........-..---2-+5- 9
Cass v. United States, 417 U.S. 72 (1974) .........---4--- 2
Cheff v. Schnackenberg, 384 U.S. 373 (1966) ...........--- 4,13
Codispoti v. Pennsylvania, 418 US. SOS CITE). ce ucicive. 9,13
District of Columbia v. Clawans, 300 U.S. 617 (1937) .....- 9
District of Columbia v. Colts, 282 U.S. 63 (1930) .......... 9,11
Dunean v. Louisiana, 391 U.S. 145 (1968) .............--. 11
Ex parte Collett, 3837 U.S. 55 (1949) ......-.--+-- eee eee 2
Ex Parte Quirin, 317 U.S. 1 (1942) ....------ eee eee eee ees 9
Ex Parte Terry, 128 U.S. 289 (1888) ......---+-+-e- sees 10, 11
In Re Piccinini, 35 F.R.D. 548 (W.D. Pa. 1964) ........... 3
In Re Union National de Trabajadores, 502 F.2d 117 (1st

PE I RI TR a OS EAT EE EE 4, 6,8
In Re Winn-Dixie Stores, 386 F.2d 309 (5th Cir. 1967) .... 3,4

Madden v. Grain Elevator, Flour and Feed Mill Workers,
334 F.2d 1014 (7th Cir. 1964), cert. denied, 379 U.S. 967

(10GB) occ nds nngecccn tbe cunced ncaens votennbersunwane 3
McKeiver v. Penuapivenic, 403 U.S. $28 (1971) ...:.....-. 9
Mitchell v. Barbee Lumber Co., 35 F.R.D. 544 (S.D. Miss.

WOGA)) in ccc nccccovecccnsevosnessaccneeeummarstepes ess 3

National Labor Relations Board v. Red Arrow Freight Lines,

193 F.2d 979 (5th Cir. 1952) .... -. ee eee eee eee ee eeeee 3
Nat’l Woodwork Mfrs. Ass’n v. Nat’l Labor Relations Board,

386 U.S. 612 (1967) 2.02. cece cece ence eee e rece ee teeeees 8

Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964) j1

Tasue or AuTHoRITIES CITED iii

Pages
Schauffler v. Local 1291, Internat’l Longshoremen’s Ass’n,
189 F.Supp. 737 (E.D. Pa. 1960), rev’d on other grounds,

poe ss ee re rer 3
Securities Exchange Commission v. Capital Gains Research

SOO, eee i ee CD hi kc chek renee braces sae eses 8
Shillitani v. United States, 384 U.S. 364 (1966) .......... 5, 13

Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918) 10

United States v. Oregon, 366 U.S. 643 (1961) ............. 2
United States v. Regan, 232 U.S. 37 (1919) ............... 9
United States v. Robinson, 449 F.2d 925 (9th Cir. 1971) .... 3
United States v. United Mine Workers, 330 U.S. 258 (1947)
ee Dan Ca ORs ee oh has CA Cd Os os ek 10, 12
United States ex rel. Turner v. Williams, 194 U.S. 289 (1904)
seu es sha Ck oad we Ree eR oka kh kona ea bes 9
Codes
Code of Civil Procedure:
i i non i wh on oe svn 2B
Penal Code:
enthenin 20 Ge BG ices nies co has 9,11, 12

10 U.S.C.:

Section 687(a)
18 U.S.C.:
Socthens 2 a a ea ak he in tco messes
Section 3189 ....... BE SBS aR og SN Te ee
Soutien 3194 os 6 ea is pesebessveveccseesens 7
eee: WANS. ik bg Ki Wa ao OE EELS has xh bre < 7
* ens as unc ce Gib es ba Ue ee ees 1, 2, 3, 4, 5, 7, 11

ees

iv TABLE OF AUTHORITIES CITED

Pages
I Oe isiieh a ss wie cv kb sa dk ins bends a 7
MI II ic ce oo be chara on oh eek avec bssced seks 7
29 US.C.:
I oa ss cs bac oe eke ound back sees rac 7,8
I SE Ne oi cs Dba pene cae ener epacs a 4,5
I oh ao sos vk ie oh cds ws 5
I I EE s,s sh ones whee wwe rees 3, 5, 6,7
NE I 5 ck ohn dh obs pacnecubhascusnauese 7
I TE Bi rao see knee bop eh avn su bens eke beeneds 6 ‘
aa kn sda ce ceeds cca ven eses rs 15
ME I oc cob kc cevcdccck cpewcde sesh ous 7
MS I og io ce pics sb vu es vos ont Dee backie 6
Ee iG sea aS ae WE ee ee meee 8
42 US.C.:
I IS oss 5 Sees oe she ieee eo ke tei « 7
ia
Texts

Bartosic & Lanoff, Escalating the Struggles Against Taft-

Hartley Contemnors, 39 U. Chi. L. Rev. 255, 262 (1972) 5
103 Cong. Ree. 8536-8537, 8684 (Rep. Smith) ............ 8
105 Cong. Rec. 6730 (Senator Ervin) .........-..+-eeees 8

I & II, Legislative History of the Labor-Management Rela-
tions Act, 1947 (N.L.R.B. 1948), 291, 420, 568, 832, 868,
OO Saks at Et ra er eter eT anne ne oy erway ee 6

Iu the Supreme Court

OF THE

Hnited Staten

OcToBER TERM, 1974

No. 73-1924

JAMES R. Muniz and BroTHERHOOD OF TEAMSTERS AND
Auto Truck Drivers LocaL No. 70, IBTCHWA,
Petitioners,

VS.

Roy O. Horrman, Director, Recion 20, NaTIoNAL
LaBor RELATIONS Boar,
Respondent. .

On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

I

THE RESPONDENT HAS NOT ESTABLISHED EITHER STAT-
UTORY OR LEGISLATIVE HISTORY WHICH OVERCOMES
_ THE CLEAR LANGUAGE OF § 3692.

A. A Preliminary Analysis of the Respondent’s Position:

The respondent’s argument consists of a bootstrap-
ping analysis with respect to the legislative and statu-
tory history of statutes involved in this case. The
clear and unambiguous language of the statute upon

~

" <
SS ee 0 DELAS LOLA LEY, AA BYAG SEG SOE ELE ag

2
i

which setbhchstiey rely is not directly challenged by
respondent. Res. Brief, p. 32. Nor is petitioners’
assertion that settled rules of construction are ap-
plicable to this, criminal statute, guaranteeing funda-
mental rights challenged. Rather, by focusing on
exactly those statutory and legislative materials which
are employed to construe an unclear or doubtful stat-
ute, respondent asserts that such material must neces-
sarily be’ employed to discern the true intent of
Congress with respect to the statute involved. Re-
spondent attempts to create an ambiguity in § 3692 .
by referring to legislative materials, because the re-
spondent is unable to assert any contradictory mean-
ing in § 3692, any conflict with other statutes, or that
the plain meaning would lead to a totally, unintended
result. By settled principles of statutory interpreta-
tion, those materials relied upon by respondent are
not. focused upon by the courts until some intrinsic
_ aspect of the statute forces such resort to those ex-
. trinsic materials. Petitioners assert. no such analysis
is requisite.’ Ex parte re 337 U.S. 55, 61, n. 12

v@ (1949).

1In Cass v. United States, 417 U.S. 72 (1974), Res. Brief, P.
32, this Court resorted to legislative material to resolve an in-
ternal inconsistency within the statutory provision. 10 U.S.C.
§ 687(a). Cf. United States v. Oregon, 366 U.S. 643, 648 (1961) :

“Having concluded that the provisions of §1 are clear and
unequivocal on their face, we find no need to resort to the
legislative history of the Act. Since the State has placed
» such a reliance upon that- history, however, we do deem it
- appropriate te point out that the history is at best incon-
elusive.” (fp. omitted). :
Petitioners assert that these cases govern:' this Court’ need not
consider any s.atutory or — history hapet 46 faced with this
unequivocal rcatute.

3

B. The Assertion That § 3692 Must Be Restricted to Contempts
of Injunctions Issued Pursuant to Norris-LaGuardia “has
been the consistent conclusion of the courts which have con-
sidered the question,” Res. Brief, pp. 27-28, Is Erroneous.

A summary review of those cases relied upon by
respondent reveals a superficial analysis.2_ Madden v.
Grain Elevator, Flour and Feed Mill W orkers, 334
F.2d 1014 (7th Cir. 1964), cert. denied, 379 U.S. 967
(1965) ; Brotherhood of Locomotive Firemen & En-
ginemen v. Bangor & Aroostook R.R.. Co., 380 F.2d
570 (D.C. Cir. 1967), cert. denied, 389 U.S. 327
(1967); Schauffler v. Local 1291, Internat’! Long-
shoremen’s Ass’n, 189 F.Supp. 737 (E.D. Pa. 1960),
rev'd on other grounc's, 292 F.2d 182 (3rd Cir. 1961) ;
and National Labor Relations Board v. Red Arrow
Freight Lines, 193 F.2d 979 (5th Cir. 1952), are
civil/contempt cases, and absolutely irrelevant to a
consideration of a statute governing criminal con-
tempt. In. In Re Winn-Dixie Stores, 386 F.2d 309
(5th Cir. 1967), there is no mention of § 3692. Mitch-
ell v. Barbee Lumber Co., 35 F.R.D. 544 (S.D. Miss.
1964); In Re Piccinini, 35 F.R.D. 548 (W.D. Pa.
1964) ; United States v. Robinson, 449 F.2d 925 (9th
Cir. 1971); and Internat’l Longshoremen’s Ass’n,
supra,’ concern contempts in matters not properly
labelled “labor disputes.” Moreover, the respondent
inaccurately cites three cases as having arisen from
10(1) injunctive proceedings: Madden, supra; N.L.
R.B. v. Red Arrow, supra; and In Re Winn-Diziz,

See full diseussion in brief of Union Nacional de Trabajadores,
amicus curiae, pp. 29-36.
3See Pet. Brief, p. 28, n. 32.

4

supra. All those contempts arose during enforcement
proceedings governed by § 10(h).

Respondent has also ignored the suggestion of the
Fifth Circuit in 1969 that there was ‘‘much on the
Brotherhood’s side,” Brotherhood of Firemen v.
United States, 411 F.2d 312, 316-17 (5th Cir. 1969), .
with respect to the jury trial right in the criminal :
context.

This Court is urged to undertake the same fresh
and persuasive analysis reflected in the First Cir-
cuit’s thorough opinion in In Re Union Nacional de
Trabajadores, 502 F.2d 117 (1st Cir. 1974).

C. The Jury Trial of §3692 Serves An Important Purpose
Where Criminal Contempt Is Alleged.

That a jury trial serves an important role in the
criminal contempt process is settled law. Bloom v.
Illinois, 391 U.S. 194 (1968), and Cheff v. Schnack-
enberg, 384 U.S. 373 (1966), Pet. Brief, p. 11-14. It
is ‘‘infused with a national policy,” In Re Union
Nacional de Trabajadores, supra, 502 F.2d at 118,
where a labor dispute is the source of the injunc-
tion.* ~

Contrary to the impression respondent seeks to
create, Res. Brief, pp. 19-25, the jury trial right of
§ 3692 would not interfere with the effective admin-
istration of the National Labor Relations Act. Where
an injunction is obtained, normal enforcement power

4See, also, Brief of the Labor Committee of the National
Lawyers Guild, amicus curiae, p. 6-12, and Brief for the Unions,
amici curiae, p. 3-9.

a

—————

5

.utilizes the civil contempt remedy. The need for
speedy enforcement is fully met by the civil contempt
powers.

D. Respondent Has Retreated From Reliance On Statutory
Authority for Its Restrictive Interpretation of § 3692.

Pet. Brief, pp. 29-38, extensively considered whether
§10(1) or §10(h) expressly withdrew the jury trial
provisions of § 3692 from contempts of injunctions
issued pursuant to National Labor Relations Board
proceedings. Respondent devotes seven lines to these
issues, Res. Brief, p. 20-21, and two footnotes, -n. 15
and n. 22.°

The respondent, in abandoning the statutory re-
liance, retreats to two related arguments: (1) the
legislative history of the 1947 amendments creating
§10(1) indicates Congress intended to exempt all
10(1) proceedings from the provisions of -Norris-
LaGuardia, and (2) the statutory and legislative his-
tory of the enactment of § 3692 in 1948 supports the
assertion that Congress meant to restrict its applica-
tion to injunctions issued under the auspices of the
Norris-LaGuardia Act.

1.. There is no substantial legislative history that
“Congress did indeed intend to free proceedings

5Shillitani v. United States, 384 U.S. 364, 371, n. 9 (1966) ; and
Bartosic & Lanoff, Escalating the Struggles Against Taft-Hariley
Contemnors, 39 U. Chi. L. Rev. 255, 262 (1972). :

®8N. 22 reflects a confused analysis. Respondent asserts that
§10(h) must be applicable to injunctions issued under § 10(1),
because §10(j) does not contain the language on exemption
found in § 10(1), (“notwithstanding any other provision of law’’).
There is simply no authority for such a proposition. See Pet.
Brief, n. 38.

SER a ede ee Beale ai

6

under Section 10(1) from the requirements of the
Norris-LaGuardia Act...” Res. Brief, p. 24. Re-

spondent relies heavily upon an isolated comment by

Senator Ball during Congressional debate in 1947.

Res. Brief, p. 24-25. Petitioners have previously in-

dicated the inconclusiveness of Senator Ball’s state-

ment to establish the proposition advanced by -re- —
spondent. Pet. Brief, p. 38, n. 51. That Senator

Ball’s ironic statement is meaningless at best can be:

seen from a comparison of the concurrent debates |
surrounding § 208(b), 29 U.S.C. § 178, of the Labor-
Management Relations Act, 1947, which provides:

“In any case, provisions of sections 101-115 of
this title shall not be applicable.”

In that case, Congress unequivocally exempted all in-
junctions issued during national emergency disputes
from all Norris-LaGuardia provisions. The First Cir-
cuit noted that if Congress knew how to completely
remove Norris-LaGuardia restrictions in one section
of the 1947 Act, it could easily have done so in any
other section. In Re Union Nacional de Trabajadores,
supra, 502 F.2d at 121. The debates: themselves. re-
vealed that Congress specifically intended to exempt
Norris-LaGuardia from injunctions issued in national |
emergency disputes. I & II, Legislative History of
the Labor-Management Relations Act, 1947 (N.L.R.B.
1948), 291, 420, 568, 832, 868, and 1606.7 In 1947,

7Cf. proposed §12(c) of H.R. 3020, I, Legislative History of
the Labor Management Relations Act, 1947, supra, at 206, which
would have exempted certain injunctions from all Norris-La-
Guardia provisions. This proposal was rejected.

7

Congress knew which parts of the Labor-Management
Relations Act it wished to exempt from all Norris-
LaGuardia provisions: §§ 206-210, 29 U.S.C. §§ 176-
180. There is no evidence that Congress intended to
exempt §10(1) from all Norris- LaGuardia provi-
sions.®

2. The enactment of § 3692 in 1948 does ‘not reveal
that Congress intended to limit that section’s appli-
eability to Norris-LaGuardia contempts. Respondent
asserts that § 3692 must be restricted to those con-
tempts of injunctions subject to the limitations im-
posed by Norris-LaGuardia, because the reviser’s
notes did not positively assert that ‘‘significant
change in coverage [had: been intended].” Res. Brief,
p. 26. This is tantamount to a suggestion that this
Court should presume that a new statute is limited
to the scope of its predecessor unless the revisers or
Congress positively indicate to the contrary. Such
a method of statutory construction is not permissible.®
Moreover the revisers did specifically indicate that a
change was made in the coverage of the section:
‘‘Reference to specific sections of the Norris-
LaGuardia Act (sections 101-115 of title 29, U.S.C.

8Cf. an analogous Federal statute where Norris/LaGuardia
provisions were also clearly made totally inapplicable: 42 U.S.C.
§ 2000e-5(h).

®Respondent claims that wherever “a repealed. provision was
expanded,” the revisers took care to note this. Res. Brief, p. 26,
citing 18 U.S.C. § 4162. The weakness of respondent’s argument
is demonstrated by noting that the revisers noted specifically
where changes were meant to include only wording or similar
technical drafting. See, e.g., §§ 3189, 3191, 3194, and 4243. If
the revisers had intended any changes in phraseology to have
been limited to such, they would have explicitly stated this.

8

1940 ed.) were eliminated.” The revisers’ notes in-
dicate an attempt to broaden the scope of the old
Norris-LaGuardia~ provisions, not, as respondent
claims, an attempt to limit their scope.

E. Congressional Debate Surrounding the Civil Rights Act of
1957 Is Irrelevant and Inconclusive.

This Court has consistently refused to consider such
legislative statements in determining the meaning of
prior enactments. Nat’! Woodwork Mfrs. Ass’n v.
Nat’l Labor Relations Board, 386 U.S. 612, 639, n. 34
(1967) ; and Securities Exchange Commission v. Cap-
ital Gains Research Bureau, 375 U.S. 180, 199-200
(1963). These statements inserted in the Congres-
sional Record are unreliable in view of their self-
serving origin’? and contradicted by other Congress-
men.”

Furthermore, debate surrounding the 1959 Labor-
Management Reporting and Disclosure Act, and in
particular, § 608, 29 U.S.C. § 528, indicates that as
late as that date, Congressmen believed that the con-
tempt provisions of Norris-LaGuardia still pre-

vailed.*

10See, Pet. Brief, n. 61, which discusses another statutory
change, indicating an intent by Congress to broaden the statutory
scope.

ieee brief of Union Nacional de Trabajadores, amicus curiae,
fn. at p. 21-22.

12103 Cong. Rec. 8536-8537, 8684 (Rep. Smith).

18105 Cong. Ree. 6730 (Senator Ervin).

9

II

THE RESPONDENT HAS MISCONCEIVED THE PRINCIPLES
UNDERLYING THE JURY ENTITLEMENT OF ARTICLE III,
§ 2 AND AMENDMENT VI.

A. The Right To A Jury Trial Is Assured Wherever The Matter
Tried Is Criminal Contempt.

Respondent’s argument relies upon the premise
that it is imprisonment per se, rather than the crimi-
nal nature of the proceedings, which determines
whether a jury trial is required under Art. ITI, § 2
or Amend. VI. Res. Brief, p. 35-42. This is errone-
ous, for it is the criminal nature of the proceedings
which invokes the rights guaranteed by the Consti-
tution.

This Court has consistently judged the applicability
of Art. III], §2 and Amend. VI on the basis of
whether the proceeding is criminal or otherwise.
Callan v. Wilson, 127 U.S. 540, 549-50 (1888); Dis-
trict of Columbia v. Colts, 282 U.S. 63, 72-73 (1930) ;
and District of Columbia v. Clawans, 300 U.S. 617,
624-25 (1937). In addition, these cases teach that
certain offenses characterized as ‘‘petty” do not rise
to the level of crimes within the constitutional sense.
Wherever the proceeding is criminal and the offense
is serious, a jury trial is guaranteed. See Codispoti v.
Pennsylvania, 418 U.S. 506, 511-13, 516 (1974).

14No jury trial is granted in immigration proceedings, United
States ex rel. Turner v. Williams, 194 U.S. 289, 290 (1904) ; in
trials of alien spies, Ex Parte Quirin, 317 U.S. 1, 38-46 (1942) ;
in recovery of civil penalties, United States v. Regan, 232 US.
37, 47-48 (1919); and in juvenile proceedings, McKeiver v.
Pennsylvania, 403 U.S. 528 (1971).

10

For those reasons, alleged criminal contemnors are
also entitled to a jury trial. When this Court held
that a jury was constitutionally requisite in seri-
ous criminal contempts, it stated:

‘“‘Criminal contempt is a crime in the ordinary
sense; it is a violation of the law, a public wrong
which is punishable by fine or imprisonment or
bot : * * &

“Given that criminal contempt is a crime in
every fundamental respect, the question is
whether it is a crime to which the jury trial
provisions of the Constitution apply. We hold
that is, primarily because in terms of those con-
siderations which make the right to a jury trial
fundamental in criminal cases, there is no sub-
stantial difference between serious contempts and
other serious crimes.” Bloom v. Illinois, 391 U.S.
194 at 201-202 (1968).*®

Respondents argues that “the risk of arbitrary de-
privation of person] liberty” is the touchstone for
the right of jury trial. Res. Brief, p. 36, 38. It is not
surprising that this Court employed terms descriptive
of the deprivation suffered by natural persons and
the protection offered them by the jury trial right.
No precedential case before this Court had a corpora-
tion as a party. The abuses to which this Court re-

ferred are, however, equally applicable to entities <
they are to natural persons: “arbitrary in its Rena
and Tishie. Sm,” Ex parte Terry, 128 U.S. 289,

iS[ndeed, in that case, this Court cited cases where corpora-
tions, including unions, had been cited for contempt. Toledo
Newspaper Co. v. United States, 247 U.S. 402 (1918); United
States v. United Mine Worker:, 330 U.S. 258 (1947) ; ‘and cases
cited at n. 3 of Bloom.

41 : |

313 (1888) ; and “arbitrary exercise of official power,”
Bloom v, Illinois, supra, 391 U.S. at 202. Moreover,
as to a corporate entity a jury is “an inestimable
safeguard against the corrupt or overzealous pros-
ecutor, and against the complacent, biased, or eecen-
tric judge,” Duncan v. Louisiana, 391 U.S. 145, 156
(1968).

Contrary to respondent’s position, neither Art. ITI,
§ 2 nor Amend, VI is limited in application to natural
persons.’® Corporations have asserted rights guaran-
teed by these constitutional provisions in this Court.
Platt v. Minnesota Mining & Mfg. Co., 376 US. 240,
245 (1964). Respondent’s position is simply unten-
able. ‘

B. Respondent’s Suggestion That a Flexible Standard Be
Adopted With Respect to the Seriousness of Fines Is Un-
workable.

Respondent’s position is that whether a contempt
is serious or petty must depend on “such factors as
the economic resources of the defendant and the
amount of economic damage flowing from the offense.”
Res. Brief, pp. 15-16. This position is incorrect for
several reasons.

First, this formula would impose the “nature of

__ the offense” test, which this Court has eschewed since
District of Columbia v. Colts, 282 U.S. 63 (1930).
See Baldwin v. New York, 399 U.S. 66, 69, n. 6 (1970).
Respondent would permit one test as to imprisonment
(the penalty imposed), and another as to fines (the

16Art. IIT, § 2 speaks of “the trial of all crimes,” while Amend.
VI speaks of the “accused.” Cf. 18 U.S.C. § 3692. (“accused”).

leanne

\

12

\
nature of the offense) to determine the seriousness of

the offense for jury trial entitlement.

The impracticality of such @ scheme is reflected in
this Court’s discussion of the nature of fines in United
States v. United Mine Workers, supra, 330 U.S. at
302-306. The multitude of factors in determining the
appropriate fine in those circumstances suggests the
enormous difficulty involved in deciding whether jury
entitlement exists in a particular ase. No trial court
could adequately weigh such factors prior to a trial
to determine whether a jury was requisite. Cf. Arger-.
singer v. Hamlin, 407 U.S. 25, 40 (1972) (jury must
be impanelled if judge contemplates incarceration).
And no trial court would want to engage in the ex-
tensive fact-finding requisite to support its failure
to grant a jury after imposing substantial fines.’”
Finally, this proposal confuses the Eighth Amend-
ment’s protection against excessive fines with that
of jury entitlement under Art. ITI, §2 and Amend.
VI."* The right to a jury trial arises, not from the
excessive penalty, but rather, from the seri@usness of
the cr'me as measured by the penalty imposed. |

For these reasons, this Court chose the Congres-
sional standard of 18 U.S.C. §1 as a. dividing line

17In this case, the trial court asked for certain pre-sentence
information, solely for the purposes of determining the amount
of sentence, and summarily rejected the contention that the
evidence was relevant for jury purposes. G.A. 46a-48a.

18The discussion in United States v. United Mine Workers,
supra, concerned the excessiveness of the fine imposed. “Finally,
over the years in the Federal system, there has been a recurring
necessity to set aside punishments for criminal contempt as either
unauthorized by statute or too harsh.” Bloom v. Illinois, supra,
391 U.S. at 206.

13

between serious and petty crime.’ This further re-
flects the need for “objective criteria reflecting the
seriousness with which society regards the offense.”
Baldwin v. New York, 399 U.S. 66, 68 (1970).

Contrary to respondent’s understanding, this line
reflects the limits imposed by most states as to con-
tempt penalties. See Pet. Brief, n. 19.2° In California,
where this action arose, contemnors may not be fined
more than $500, whether the contempt is brought
under the relevant civil or penal provisions.”!

Only under the Federal system, where the penalty
for criminal contempt has not been so limited, does
the problem exist of developing an approximate divid-
ing line with respect to either imprisonment or fine.
Neither are the civil penalties emphasized by re-
spondent relevant. Res. Brief, p. 46-49. The distine-
tion between civil penalties and criminal punishment
is plain. Shillitani v. United States, supra.

18The genealogy of this dividing line was noted in Codispoti
v. Pennsylvania, supra, 418 U.S. at 512, n. 4. Suffice it to say
that the case before the Court does not involve the more difficult
issue of imposing such a line through the due process clause of
the Fourteenth Amendment upon the states. Rather, this involves
those factors which impelled this’Court in Cheff v. Schnacken-
berg, supra, 384 U.S. at 379-380, to implement the 18 U.S.C.
§1 dividing line “in the exercise of the Court’s supervisory
power.”

20Indeed, this Court has recognized that “[l]imitations of the
maximum penalties for criminal contempt are common in the
States.” Bloom v. Illinois, supra, 391 U.S. at 206, n. 8.

21California Code of Civil Procedure § 1218 and California
Penal Code §§ 166 and 19 impose this absolute limit.

14

C. The Penalties Imposed Upon Local 70 Reflect A Serious
Respondent now argues that in any case, the penal?
ties imposed upon Local 70 were not serious enough
to warrant the impanelling of a jury. This a com-
‘plete reversal of position from that argued \in the
trial court. In the respondent’s formal submission to
the trial court prior to the imposition of fines, re-
spondent asserted:
“Although petitioner [Mr. Hoffman, respondent
herein] considers the contumacious conduct of
respondents as having been of extremely serious
nature, and has given great consideration to rec-
, ommending the imposition of both fines and im-
prisonment for the individual respondents, he is
presently of the view that the authority and dig-
nity of the court can as well be vindicated by the
imposition of substantial fines only.” J.A. 47,

In oral argument, attorney Milo -Price stated re-
spondent’s position:
“Your Honor, the petitioner considers the viola-
tion of the Act here, absent (sic) orders of this
Court, as having been extremely serious in na-
ture. This is not a minor frolic engaged by the
unions. This was a deliberate course of conduct,
well planned, well defined, and petitioner feels
that the sanctions for it and for the transgres-
sions encouraged should be substantial...” J AL
76.

The trial court concluded that it wished to impose
criminal penalties which would “be not too heavy nor |
too light.” G.A. 45a. The court imposed the full

15

$25,000 fine requested by Respondent as to Local 70 |
although it suspended a portion, ;

The respondent’s' assertion to the contrary conflicts
with the record that it established in the trial court
below.” : :

In summary, the principles established from Bloom
v. Illinois, supra, to Codispoti v. Pennsylvania, supra,
are applicable both to unincorporated associations and |
to the imposition of fines. Neither logie nor practi-
cality dictates an opposite result. :

Dated, March 14, 1975,

Respectfully submitted,
VAN Boura, ALLEN, WEINBERG,
WILLIAMS AND Roser,
Victor J. VAN Bovra,
Davin A. ROSENFELD,
Attorneys for Petitioners,
SHELDON OrIs,
Of Counsel. |

22Respondent asserts that a trial court should consider “the
amount of loss suffered by the firms which were victims of ‘the
repeated boycott activity . . .’’ Res, Brief, p. 54. Such alleged
damage should be the subject of the statutory remedy provided,
29 U.S.C. § 187 (suit for violation of secondary boyeott pro-
visions), or for imposition of the relevant civil penalties. G.A. 52a
and 53a. ,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0439%3A14. Public record. Not legal advice.