Wiley Rutledge

“ Nevertheless, as I view Congress' action, I am unable to believe that it has acted to meet, or authorized the courts to meet, the situation which arose in the manner which has been employed.
No man or group is above the law. All are subject to its valid commands. So are the government and the courts. If, as I think, Congress has forbidden the use of labor injunctions in this and like cases, that conclusion is the end of our function. And if modification of that policy is to be made for such cases, that problem is for Congress in the first instance, not for the courts. ”

“ Those guaranties are in no way inconsistent with the court's proper and complete discharge of its function in contempt. And they would seem to be essential to any conception of a fair trial as the Fifth Amendment's due process clause comprehends this.
When the assertion and securing of all other rights depends upon one, that one is the core of all. Here the right 'to know that it was a charge, and not a suit' comprehended all other procedural rights in the trial and appellate courts. ”

“ Surely the rights to a speedy and public trial, to have compulsory process for obtaining witness in his favor, to have the assistance of counsel for his defense, and, as the Gompers case held, to be informed of the nature as well as the cause of the accusation, cannot be denied in our system to any person charged with crime, with the single exception of contempts committed in the immediate presence of the court by way of interference with the proceedings. ”

“ Hence, whatever may be true of indictment and jury trials, I see no compelling reason whatever for not applying the other limitations of the Sixth Amendment. None of them is inconsistent with the due and proper performance of the court's function in criminal contempt. ”

“ And that being true, if it can be done at all, not simply a loophole but a very large breach has been left in the wall of procedural protections thrown around the citizen's punishment for crime. For it is to be recalled that under the Court's ruling here upon the Shipp doctrine not merely the violation of valid judicial orders, but also the disobedience of invalid orders issued in excess of any court's jurisdiction becomes a crime and punishable as such by summary proceedings in criminal contempt, although the substantive rights involved in the litigation are wholly civil ones. ”

“ Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. ”

“ And if it should become the law, for every case raising a question not frivolous co cerning the court's jurisdiction to enter an order or judgment, that punishment for contempt may be imposed irrevocably simply upon a showing of violation, the consequences would be equally or more serious. The force of such a rule, making the party act on pain of certain punishment regardless of the validity of the order violated or the court's jurisdiction to enter it as determined finally upon review, would be not only to compel submission. ”

“ Power there is to take adequate measures when violation is clearly shown and adequate proof is made to sustain them. For proven violation, criminal penalty within the Eighth Amendment's limits as we would measure similar impositions placed by Congress, at the most; for damages proven and found, civil award commensurate with the finding; and for coercion, civil relief by way of imprisonment or 'fine,' but in either case contingent only, not final, giving opportunity for compurgation and for termination, on its being made, of further penalty for the future. ”

“ Equally certain is it that under 'a government of laws and not of men' such as we possess, power must be exercised according to law; and government, including the courts, as well as the governed, must move within its limitations.
This means that the courts and all other divisions or agencies of authority must act within the limits of their respective functions. Specifically it means in this case that we are bound to act in deference to the mandate of Congress concerning labor injunctions, as in judgment and conscience we conceive it to have been made. ”

“ If the fine or other penalty in such a case can be multiplied twice or any other number of times, merely by bringing a civil suit, securing a temporary restraining order and then convicting the person who violates it of criminal contempt, regardless of the order's validity and of any of the usual restraints of criminal procedure, the way will have been found to dispense with substantially all of those protections relating not only to the course of the proceedings but to the penalty itself. ”

“ The Court said:
'There was therefore a departure-a variance-between the procedure adopted and the punishment imposed, when, in answer to a prayer for remedial relief, in the equity cause, the court imposed a punitive sentence appropriate only to a proceeding at law for criminal contempt. The result was as fundamentally erroneous as if in an action of 'A vs. B, for assault and battery,' and judgment entered had been that the defendant be confined in prison for twelve months.' 221 U.S. at page 449, 31 S.Ct. at page 501.
Not only must the punishments be kept separate and distinct. ”

“ The Shipp decision therefore was in fact simply an application of the long established rule that punishment in contempt may be inflicted on proof of violation of a valid order of court as determined finally on review. It did not overrule, nor was it in any way inconsistent with the long prior course of decisions holding that when an order is void for want of jurisdiction it may be disobeyed with impunity pending but depending upon determination of its invalidity by appeal, habeas corpus, or other mode of review. Gompers v. Buck's Stove & Range Co., supra; Ex parte Young, supra. ”

“ In my opinion, our system does not comprehend a power so unconfined anywhere within its broad borders, and it is time the large confusion about this were swept away. [32] It is not necessary in this case to ask or decide whether all of the Constitution's criminal procedural protections thrown about all other criminal prosecutions, without suggestion of explicit exception, apply to criminal contempt proceedings. It is enough that we are sure some of them apply, as this Court has ruled repeatedly. ”

“ The Court thus purports to make separate the distinct items of relief commingled in the District Court's action. But in doing so, in my opinion, it wholly disregards the established standard for measuring criminal fines and its own as well as the District Court's function relating to them. If Lewis and the union had been convicted on indictment and jury trial in a proceeding surrounded by all the constitutional and other safeguards of criminal prosecution for violating the War Labor Disputes Act, the maximum fines which could be applied by that Act's terms would be $5,000 for each. ”

“ But if in the capacity of temporary 'employer' the Government is to have the benefits of that status, it should be subject also to its limitations except as Congress otherwise provides. To jumble the two c pacities as is done here is only to nullify the rights in trial and remedy of employees and others.
59 The limitations upon criminal contempt, procedural and remedial, always apply to the Government, for it alone can bring that proceeding. It cannot defeat them by mingling that proceeding and relief with civil ones, merely by virtue of being also the complaining civil litigant. ”

“ For this is exactly what Congress has done with reference to all plants not subject to the seizure power. Besides imputing to Congress the purpose to do with one hand what the other denied was being done, the identification of these two very distinct things serves only to confuse and make obscure the real question. This is simply whether Congress intended to abrogate for seized plants or to continue in force the established policy against labor injunctions as a method of exercising the powers of ultimate control conferred upon the Government. ”

“ Ex parte Fisk, supra.
The issues concerning the manner in which the contempt proceeding was conducted are in themselves of great moment, apart from the foregoing conclusions which I think are dispositive of the controversy. And the Court's ruling upon them are of such a character that I cannot accede by silence.
At times in our system the way in which courts perform their function becomes as important as what they do in the result. In some respects matters of procedure constitute the very essence of ordered liberty under the Constitution. ”

“ So great a revolution hardly could have been wrought unanimously or without attentive recognition of what was being done. There was indeed reference in the opinion to the previous decisions. The Court stated: 'It has been held, it is true, that orders made by a court having no jurisdiction to make them may be disregarded without liability to process for contempt,' citing the Sawyer, Fisk, and Rowland cases. ”

“ The Court said: 'Not only is no such power (of examination) conferred, but it is prohibited by the plain language and the equally plain purpose of the acts of Congress. * * * The Circuit Court was therefore without authority to make the orders for the examination of petitioner in this case, and equally without authority to enforce these orders by process for contempt.' Pages 724, 726 of 113 U.S., page 729 of 5 S.Ct. Had Fisk submitted, as Shipp is now said to require should be done, not only would the specific commands of Congress have been nullified. ”

“ For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. ”

“ Indeed it was because these were so often the effects, not simply of final orders entered after determination upon the merits, but of interlocutory injunctions and ex parte restraining orders, that the Norris-LaGuardia Act became law and, as I think, the War Labor Disputes Act continued in force its policy. For in labor disputes the effect of such orders, it was pointed out officially and otherwise, [14] is generally not merely failure to maintain the status quo pending final decision on the merits. ”

“ The basis asserted was the invalidity of the order allowing the appeal in Johnson's case, for alleged want of jurisdiction of this Court to enter it. [22] That contention was rejected and the order was held valid. It was in this connection only that the Court stated it had 'jurisdiction to determine its jurisdiction' in doubtful cases. That statement was not a ruling that, regardless of a violated order's ultimate validity as determined on review, [23] punishment in contempt for violating it could be irrevocably imposed. It was merely a statement of the reason for the order's validity. ”

“ That power includes the power to deny jurisdiction as well as to confer it. Ibid. And where Congress has acted expressly to exclude particular subject matter from the jurisdiction of any court, except this Court's original jurisdiction, I know of no decision here which holds the exclusion invalid, or that a refusal to obey orders or judgments contravening Congress' mandate is criminal or affords cause for punishment as for contempt. ”

“ The question cuts more deeply than the application of any specific guaranty. It affects the right to insist upon or have the benefit of any.
The case is characteristic of the long existing confusion concerning contempts and the manner of their trial, among other things, in that most frequently the question of the nature and character of the proceeding, whether civil or criminal, is determined at its end in the stage of review rather than, as it should be and as in my opinion it must be, at the beginning. Gompers v. ”

“ The legislative history he marshals so accurately and cogently compels the conclusion that the War Labor Disputes Act of 1943, 57 Stat. 163, not only confirms the applicability of the earlier statute, but itself excludes resort to injunctive relief for enforcement of its own provisions in situations of this sort.
That Act expressly provides the remedies for its enforcement. Beyond seizure of plants, mines and facilities for temporary [2] governmental operation, they are exclusively criminal in character. [3] They do not include injunctive or other equitable relief. ”

“ Union Tool Co. v. Wilson, supra, 259 U.S. at page 111, 42 S.Ct. at page 428, 529; Nye v. United States, 313 U.S. at pages 42-43, 61 S.Ct. at pages 812, 813.
36 There as here the contempt proceedings were entitled and conducted as collateral to civil litigation between the parties and the order for contempt had been grounded upon disobedience to a restraining order issued in the course of the litigation, conduct which would have sustained either civil or criminal penalty. The Court of Appeals had held the proceeding criminal. ”

“ The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. * * *' Rule 42 (b) , Federal Rules of Criminal Procedure.
45 Judge L. Hand's opinion in the McCann case reads in part as follows: '* * * The respondent will often find it hard to tell whether the prosecution is not a remedial suit, undertaken on behalf of the client. ”

“ In the case of corporations or unincorporated associations, the default provision is either that the responsible officers be imprisoned, Parker v. United States, 1 Cir., 126 F.2d 370, 379, or perhaps that execution issue against the contemnor's property. ”

“ Almon's Case, Wilmot's Notes, p. 243. And although this opinion was not published until thirty-seven years later, 'there is ample evidence that as a result of private communication between Wilmot and Blackstone, Wilmot's views of 1765 found their way 'both in phrase and matter' into the four volumes of the famous Commentaries published in 1769. * * *' Frankfurter and Landis, supra, at 1046, n, 128. Wilmot's error 'has bedevilled the law of contempt both in England and in this country ever since.' Id. ”