Warren E. Burger: 70-112, Groppi against Leslie. Mr. Coffey you may proceed.
William M. Coffey: Mr. Chief Justice and may it please the Court. This matter is before the Court on a petition for a Writ of Certiorari United States Court of Appeals for the Seventh Circuit. The pertinent facts out of which this matter arose are as follows. On October 1, 1969 the Assembly, one of the two Houses of the State of Wisconsin legislature passed a resolution reciting that two days earlier on September 29th, 1969, the petitioner led a gathering of the people which by its presence on the floor of the Assembly during a meeting prevented the Assembly from conducting its business. The resolution found the petitioner's conduct constituted disorderly conduct in the immediate view of the House and directly tending to interrupt its proceedings. The resolution then cited the petitioner for contempt and ordered that he be imprisoned in the Dane County Jail for a period of six months or for the balance of the legislative session whichever was briefer. Petitioner was given no notice of the charge against him and was given no hearing of any kind, either before the resolution was passed or after the resolution was passed.
Warren E. Burger: Was the petitioner taken in to custody in the house itself where the disorder was --?
William M. Coffey: No your honor. Chief Justice, the disturbance had occurred two days previously and --
Warren E. Burger: What I was asking, was there any effort to take him into custody at the time he was on the floor?
William M. Coffey: None at all. At the time, the resolution was passed, the petitioner was in fact incarcerated in the Dane County Jail under a disorderly conduct charge which had been placed against him arising out of the same conduct dealt with the legislative resolution. The petitioner was served with copy of the resolution and he was then confined in the Dane County Jail pursuant to the authority of the resolution. After this, he was served with the copy of the resolution, he instituted various legal actions contesting the constitutionality of the procedures employed by the legislature in imprisoning him for six months. Writs of Habeas Corpus were denied by the Circuit Court of Dane County and by the Wisconsin Supreme Court. A petition for writ of habeas corpus was filed in the United State District Court for the Western District of Wisconsin. A response was filed and the District Court thereupon released the petitioner on bail, pending the determination of the writ of habeas corpus. Bail had been denied to the petitioner by both the Circuit Court of Dane County and by the Wisconsin Supreme Court. All of the petitions for habeas corpus filed by the petitioner alleged that he had been denied Due Process law and that he had been denied the right to be represented by counsel, the right to a trial or a hearing of any kind, the right to compulsory process. The right to be informed of the nature and cause of the accusation against him. The right to confront his accusers and the right to present his defense, the alleged charges. On April 8th, 1970 the District Court held that the legislative assembly could not summarily impose a jail sentence for a legislative contempt without first providing the petitioner some minimal opportunity to appear and respond to the charge. The Court granted the writ and ordered the petitioner, release under any further restrain or custody pursuant to the resolution. The respondent appealed the decision of the District Court of Seventh Circuit Court of Appeals and on appeal the judgment of the District Court was reversed. Subsequently the Court of Appeals granted petitioner's request for re-hearing on bond and in a 4:3 decision affirmed the earlier decision of the Court of Appeals. The issues presented on the appeal are whether a legislative body can consistent with due process law two days after alleged contemptuous conduct, ex parte impersonate person under its contempt power without giving the person any notice of the charge against him or any opportunity, whatsoever to appear before the legislative body and respond to the charges. The second issue is whether consistent with a due process clause, a person can be found in contempt to the legislative body when the contempt resolutions sets forth mere conclusion and failed to set forth any of the underlying facts and circumstances which constituted the alleged contemptuous behavior. The petitioner respectfully contend that the Wisconsin legislature did not have the power to summarily punish for contempt. The petitioner --
Speaker: Back to your second point. I noticed in the opinion, the per curiam opinion of the Supreme Court of Wisconsin. Getting on 109 (a) of the appendix and the chapter begins on 113 (a) of the appendix. The Supreme Court seems to reciting the fact -- reciting a fairly detail statement of facts. Where did that come from?
William M. Coffey: Your Honor that was one of the problems that was confronted in the matter and that no record of these proceedings was made.
Speaker: Oh, that is what I was attempting to say, I just want to hear where the statement and facts came from --
William M. Coffey: That was a judicial notice taken of accounts in the mass media, newspapers and television accounts of what had occurred.
Speaker: Is that indicated anywhere? Is that the source of it?
William M. Coffey: That is indicated in the opinion, Your Honor, of the District Court in that. The actual language of the District Court, I do not know, but there had been no hearing of any kind and was indicated that that was judicial notice of those facts and those media sources.
Speaker: They do say we take judicial notice and then they go on with a fairly detailed statement of what happened in the State legislature.
William M. Coffey: And with the only available source of those facts or material at that time because there had been no evidentiary hearing either in a Court or in the legislative body. No record made of the proceeding by the legislature was the media.
Speaker: Is their any substantial claim that the petitioner did not know with what he was being charged or that these facts are inaccurate in any way?
William M. Coffey: I do not believe Justice that there is any contention that the petitioner was not in fact on the floor of the assembly. I think there maybe some contention as to whether or not the petitioner personally engaged in conduct that was disorderly.
Speaker: Because your point is, I suppose that he was not given any opportunity to make any such contention.
William M. Coffey: He was never given such an opportunity to respond in any way to the charge.
Warren E. Burger: The citizens have the privileges of the floor of the legislative houses of the Wisconsin legislature.
William M. Coffey: Not during the session Chief Justice. It was the presence of the body of the people on the floor, the assembly was in violation of a rule of the assembly.
Warren E. Burger: That alone could probably warrant the charge of contempt independent of whether it was in fact disorderly, I suppose. I said warrant, warrant of charge not the conviction.
William M. Coffey: Yes, that may well is a violation of the rule where we would probably proceed on some basis that as we have been indicated here, we have proceeded throughout these proceedings that the legislature of the state of Wisconsin like all legislatures has a contempt power. The question is what is the scope for that contempt power and what procedures must they follow in exercising the contempt power.
Warren E. Burger: I suppose the disorderly conduct charges never then pursued. Is that correct?
William M. Coffey: No, Chief Justice and as a matter of fact, the day prior to the passing of this resolution by the assembly. The petitioner had, in fact, then charged with disorderly conduct, he in fact, after the resolution was issued had a jury trial on that charge of disorderly conduct and after the jury had deliberated and was unable to return a verdict. The trial Court granted the defendants motions for dismissal or judgment of acquittal which he had taken under advisement at the conclusion of all the cases. He, in fact, successfully defended the criminal disorderly conduct charge. In regard to the summary contempt powers, Courts have clearly exercised summary contempt policy. However, the decisions of this Court have always limited the exercise to the exercise of that power to those situations where the misconduct is actually observed by the Court and where immediate punishment was necessary to restore order and maintain the dignity and authority of the Court because of the dangers inherent in the summary contempt power which has been described as perhaps nearest akin to despotic power of any power existing under our form of Government, this Court has construed it as an exception to the normal requirements of Due process and has refused to extend it particularly in Johnson versus Mississippi, Mayberry versus Pennsylvania. The summary power has never before in the history of this country prior to October 1, 1969 ever been exercised by a legislative body. A good reason exists for not extending that power to the legislature. First, and I think foremost, Courts differ significantly from legislatures. It is the duty and the business of Courts to determine and decide particular cases free from the exercise of the external influences as Judge Stevens noted in his dissenting opinion on the unbound hearing without reflecting adversely on the importance and dignity of the legislative function. It must be recognized that legislators are more responsive to the temporary moods of the body politics than our judges. And further in this case, in Johnson v. Mississippi, this Court held that a judge who was so enmeshed in matters involved was so enmeshed that matters involving a defendant that it was appropriate for another judge to seat and determine the question of this contempt and indicate noting that the trial before an unbiased judge was essential to due process. In this case given the responsiveness of the body power or legislatures through the pressures or the mood, in particular political mood at the time, I do not think you could view the Wisconsin assembly at this point as an unbiased judge.
Potter Stewart: That argument seems to be going to the proposition that there could not have been any finding of contempt, because certainly a trial by biased judge is deprivation of due process of law in and of itself, is it not?
William M. Coffey: Yes it is.
Potter Stewart: Well, but you are not making that ultimate argument, are you?
William M. Coffey: I am saying that there must be a hearing and I would suggest that it not be before the legislature.
Potter Stewart: It could not be before a different legislature very well. Could it -- there is only one of the state --
William M. Coffey: As in the federal system Justice Stewart, the matters are referred to the United Sates attorney for persecution in the judicial process where the full panoply of the procedural due process rights are observe.
Potter Stewart: I did not understand your argument went that far, at least from reading your brief, I thought that your argument was confined to the proposition that there had to be notice and an opportunity to respond. Secondly that the charge it could not be conclusary, but that you were not questioning the basic right of legislature to find your client in contempt.
William M. Coffey: Well, I think --
Potter Stewart: You have this legislature under these circumstances.
William M. Coffey: I think at this juncture I would say that notice and hearing even before that legislature is minimal, but I would think that there is some considerations to the idea that it should not be before the assembly and that other procedures could be available and the particularly --
Warren E. Burger: When you say available, do you mean by that constitutionally, the state of Wisconsin has to adopt some counterpart of a federal reference to a additional proceedings?
William M. Coffey: I think Justice that if they are -- it has been the position of the respondent that they cannot afford the petitioner due process, because that would overburden the legislative system and may draw the legislature to a halt and I feel that if the legislature is unable to afford due process, then yes, I would think that constitutionally are mandated to adapt some other procedure where by due process will be afforded.
William J. Brennan, Jr.: May I ask Mr. Coffey, I think you answered Justice Stewart of the fact that was citied in the Supreme Court per curiam at page 113 (a). You thought were obtained from news media?
William M. Coffey: Yes.
William J. Brennan, Jr.: Well, I notice at page 61 (a), a proceeding apparently brought by the State against Groppi and others, a statement at page 62 (a) that the complaints and the affidavits attached in this case in substance to cite most of the facts that were stated, the balance having them confined by testimony and what precedes at page 61 (a) and 62 (a) seem to be substantial like that which appears in the per curiam of the Supreme Court at 113A, am I wrong about that?
William M. Coffey: Justice Brennan, in an answer to your question, testimony, the pages to which you are refer are the findings of a Circuit Judge in Dane County who had conducted a hearing on the respondents motions for temporary restraining order. And then there was a hearing on the preliminary. This record where this testimony to my knowledge was not available to Wisconsin Supreme Court at the time it rendered its decision.
William J. Brennan, Jr.: Oh! I see. Did that happen after the decision?
William M. Coffey: Yes, the Court beliefs --
William J. Brennan, Jr.: The decision is dated October 17, 1969.
William M. Coffey: Correct, and I believe the action of the Wisconsin --
William J. Brennan, Jr.: And the hearing was October 6 of the Circuit Court.
William M. Coffey: Yes, and I believe the action of the Wisconsin Supreme Court in denying --
William J. Brennan, Jr.: Do you have those transcripts here? Particularly hearing of October 6?
William M. Coffey: No, they are not part of the record, Justice Brennan. The action of Wisconsin Supreme Court in denying the petitioner’s writ of habeas corpus was October 10.
William J. Brennan, Jr.: October 10?
William M. Coffey: Yes.
Harry A. Blackmun: Mr. Coffey, in this connection, I think you conceded that there is no issue of fact about how the Groppi being on the assembly floor on the Dane question. The Wisconsin Supreme Court stated that the occupation of the assembly by Groppi and the protesters lasted approximately midday to well toward midnight is, do you go that far to concede that part?
William M. Coffey: Yes, I would concede that fact and that I know of my knowledge that it occurred Justice Blackmun, but it was never established in any proceeding that I am aware of with the Wisconsin Supreme Court where there was one testimony that was obviously reported in the media. Now, in this particular action, the people led in the assembly or people that were present in the assembly were in fact there to object to or make known objections to regard to legislative action in terms of cutting back welfare payment.
Warren E. Burger: You do not contempt they have any right to do that of course?
William M. Coffey: No, I did not Chief Justice I only --
Warren E. Burger: It is only necessary in your case, is it?
William M. Coffey: No, it is not and I only bring that up, because I believe that it raises some question as to the ability of the legislature to sit as fair and impartial judge of the contempt. Secondly in terms of the legislative contempt, the physical contours of most legislative chambers along with the comings and goings of the people in the legislature during the session, the absence of transcribed records make it reasonable as the District Court found and as Judge Stevens noted in his dissenting opinion that there is the room for error in perception and evaluation of the alleged contemptuous conduct is far greater and in a legislative body then before a court in the restricted area in which a court may make a summary contempt finding. Additionally, a review of the action taken by the legislature is almost impossible. It is extremely difficult if not almost impossible. In the instant case --
Warren E. Burger: No review is provided of the legislative determination of that kind. Is there?
William M. Coffey: There was none in this case Chief Justice Burger and that was one of the problems, is that when the petitioner filed his petition for a writ of habeas corpus in the Wisconsin Supreme court, there was authority, and all cases prior to that time in Wisconsin which indicated that, in fact, the Court would not review a finding of a legislature.
Warren E. Burger: Well, if we take just that part of your arguments about the contours of the room and the other factors about the functioning of a legislative body, then it would not have been feasible on your theory that you have tried Justice Samuel Chase for impeachment by the Senate 180 years ago, 170 years ago or to try President Johnson for impeachment 100 years ago.
William M. Coffey: No, the trial for impeachment, I do not see any difficult--
Warren E. Burger: The Contour of the room are the same. Are they not?
William M. Coffey: But the people are there taking part, and they were having a trial. What I am suggesting is that the contours of the legislative body make it difficult to perceive a heavy uniform perception and evaluation of conduct that it is going on in that large an area.
Warren E. Burger: You are speaking now of the body. The members of the legislative body in a sense as the witnesses who observed the event, not of the trial of the man for contempt before the body. That is correct or I misunderstood you?
William M. Coffey: That is correct.
Warren E. Burger: The posture but would you make the same argument with reference to the un-feasibility of conducting on the trial before the body?
William M. Coffey: No, I would not clearly believe that a trial could be conducted. I would hate to see that portion under the legislative machinery and that obviously it would cause a great disruption of the normal legislative process. If they would have a full blown trial, but I clearly think the chamber with the special place to have the trial.
Warren E. Burger: Then it follows from your argument, I take it that the only remedy of the state of Wisconsin has against someone occupying legislature for ten or twelve hours is to charge or just sort of a conduct as there was here.
William M. Coffey: Or to -- yes they could bring charges under the ordinary criminal code, unlawful assembly and all other sorts of criminal offenses, but additionally I believe that they could certify one as the Federal Government US Attorney for contempt or they could in fact have a hearing. They could have in fact had a hearing in District Court. All the District Court said that was constitutionally mandated was a minimal opportunity to appear in the response, in all of the cases cited in the respondent's brief of a legislative contempt. That is in fact the procedure that was followed. The contemnor was just brought in before the bar of the house or the Senate and advised that the house or the legislative body viewed certain of his conduct as contemptuous. What if anything did he have to say as to why he should not be held in contempt? And, that is what the District Court said was constitutionally mandated. The District Court did not conceive a full blown trial. I feel that the petitioner is entitled to that at a minimum and that he may well be entitled to more procedural Due Process than just that minimum or minimal due process.
Harry A. Blackmun: Mr. Coffey before you sit down or conclude your argument, would you work in for my benefit your comments as to the suggestion of the mootness of the case?
William M. Coffey: Yes.
Harry A. Blackmun: Somewhere along the lines.
William M. Coffey: Mr. Justice Blackmun in terms of mootness, the resolution in addition to holding the petitioner in contempt, there was also a second part of the resolution which under pursuant to the Section 1327 of the statutes of the state of Wisconsin referred the matter to the District Attorney of Dane County. Section 1327, that the statute to the State of Wisconsin sub-paragraph 2, provides that any person who is adjudged guilty. I am sorry this on page 24 (a) of the petition for a petition for writ. I am sorry it is not in the appendix. The statute provides that any person that is adjudged guilty of any contempt of the legislature or either house thereof shall be deemed guilty also by misdemeanor and after the adjournment of such a legislature maybe prosecuted therefore in Dane County and maybe fined not more than $200.00 or imprisoned not more than one year in the County Jail. The legislative assembly that held the petitioner in contempt adjourned Sini Die on either January 6th or January 7th of 1971. The prosecution contemplated by the resolution of the assembly has not been to this date commenced, but there is the thread of this prosecution. I would indicate that I think in terms of collateral estoppel or double jeopardy, there maybe some defenses to that prosecution, but there is the thread of that prosecution which I believe would bring this matter under the doctrine of this Court in Sibron versus New York and Carafas v. LaVallee, and I would suggest that the matter is not moot. Thank you.
Warren E. Burger: Thank you Mr. Coffey. Mr. Tinglum.
Sverre O. Tinglum: Mr. Chief Justice and May it please the court. My name is Sverre O. Tinglum, Assistant Attorney General from Wisconsin. I am representing the respondent here today. Respondent sees the issue before this Court as an extremely narrow issue and that issue is whether legislative body as a State legislature, House of the State legislature or the Congress of the United States, whether, any such legislative body may exercise its contempt power in a summary fashion, that is in the same manner as the Courts exercised their contempt powers where there has been contemptuous conduct in the immediate presence of the Court tending to obstruct the Court's proceedings. Question is whether the legislature in the case of a direct contempt as contrasted with a constructive contempt. Whether it may in a words of the Terry case cited in our brief proceed upon its own knowledge of the facts and punish the offender without further proof and without issue or trial in any form. The District Judge who first considered these issues acknowledged that the conduct described in the assembly’s resolution, if it had been committed in open Court would justify summary contempt procedure in Court. And then the District Judge said “Alright, now he have to look to see if the legislature has the same power to proceed summarily as any Court would”. The District Judge held that the legislature did not have such a power. The Court of Appeals for the Seventh Circuit held that it did reversing the District Judge.
Thurgood Marshall: What is the problem? How do you answer my problem which is for the same people there the second day as to thereafter the day that it happened?
Sverre O. Tinglum: I am not sure, I understand --
Thurgood Marshall: You do not. Do you? You talk about the body.
Sverre O. Tinglum: Oh! I am sorry. I understand your question now Mr. Justice Marshall.
Thurgood Marshall: If a Judge had one Judge, but did you tell me if legislative is there?
Sverre O. Tinglum: This was --
Thurgood Marshall: How many House members are there?
Sverre O. Tinglum: There are a hundred.
Thurgood Marshall: Well, do I assume that it is no different from other legislature, you never had a hundred on two days in a row.
Sverre O. Tinglum: There is a presumption of a regularity of the legislative proceedings.
Thurgood Marshall: That all hundred are there?
Sverre O. Tinglum: That there were sufficient numbers there and that those who voted witnessed the content, the condemnations conduct.
Thurgood Marshall: Where they have assumed.
Sverre O. Tinglum: This is a presumption that has been acknowledged by this Court.
Thurgood Marshall: Well, how many was there the day the act occurred?
Sverre O. Tinglum: I have no idea.
Thurgood Marshall: Why should not I know?
Sverre O. Tinglum: Only if the question had been raised as a factual a question in this habeas corpus proceeding. The District Court made an assumption that that was a question of fact and he decided that question of fact against the respondent. And as a part of our appeal to the Seventh Circuit we pointed to the after the Seventh Circuit Court of appeals.
Thurgood Marshall: I assumed that someone that second day only knew what happened by hearsay and that they were not present the day it happened, but they did both?
Sverre O. Tinglum: I do not think that assumption can be made. That would be presuming an irregularity in legislative procedure.
Thurgood Marshall: Considered regularity mean that there are hundred people there everyday?
Sverre O. Tinglum: No.
Thurgood Marshall: You do not assume that.
Sverre O. Tinglum: No.
Thurgood Marshall: Please do not ask me to assume it.
Sverre O. Tinglum: All I am saying is that there is presumption of regularity of legislative proceedings.
Thurgood Marshall: Well, that is not what is before me now. It is not the regularities of the legislative proceeding, it is a regularity of a contempt action which puts a man in Jail.
Sverre O. Tinglum: Yes sir.
Thurgood Marshall: Well that regularity, I can assume things in to that?
Sverre O. Tinglum: I think until the question is raised. It must be presumed.
Thurgood Marshall: Raised by whom?
Sverre O. Tinglum: Raised by the --
Thurgood Marshall: Are you trying to uphold this or not?
Sverre O. Tinglum: Yes, Sir.
Thurgood Marshall: Well, I am asking the question? Is there anything in the record to show that people who voted on this knew and were present when the action occurred?
Sverre O. Tinglum: No.
Potter Stewart: There is a presumption I suppose only that there was a quarrel on each day or something of that kind.
Sverre O. Tinglum: I think there is such a presumption and I think there is a further presumption that has been acknowledged by this Court as a presumption of the regularity of proceedings.
Potter Stewart: Well.
Sverre O. Tinglum: Which would include --
Potter Stewart: But as my brother Marshall says that the presumption of regularity certainly does not embrace the presumption that every single one of the 100 legislators within a hall on each of the 2 days that has nothing to do with the presumption of regularity. What it is quarrel in Wisconsin?
Sverre O. Tinglum: Majority.
Potter Stewart: So 51 could have been there on one day and 51 the next day and this means that of the two days, it would only possibly have been one person who was there both days.
Sverre O. Tinglum: That is possible. This is as we pointed out to a Court Appeals was a “not a non-issue of fact,” that the District Court assumed to determine without giving the State an opportunity to prove in an evidentiary hearing, that in fact the legislators who did vote for the contempt resolution were in fact present on the day that the contempt took place and were in fact those who voted for the contempt resolution?
Potter Stewart: Well, I thought the whole point of the petitioner's second preposition was that until there was a detailed statement of what the alleged content consisted of that people voting on the contempt would have known what it was and the implication of that is that there were not there. They did not see it with their own eyes two days earlier.
Sverre O. Tinglum: I do not understand that to be petitioner's argument that maybe what he is driving at--
Potter Stewart: That is by implication what his argument has to depend upon?
Sverre O. Tinglum: I interpreted petitioner’s argument to be that the resolution failed to State sufficient probable cause as this Court has interpreted probable cause and this appears in Judge Kiley (ph) dissent in the Court of Appeals.
Potter Stewart: It sets forth mere conclusion and fails to set forth any underlying facts and circumstances which constitute the alleged contemptuous behavior and I assume that the implication of that whole argument is that there where people who voted on this who did not see this with their own eyes. Otherwise the argument does not --.
Sverre O. Tinglum: I have never—
Potter Stewart: I thought that point did raise the factual issue.
Sverre O. Tinglum: I have never understood that to be petitioner’s argument. There was no such an allegation in the original petition in the District Court. This sort of recitation of fact as to who voted and who saw has never appeared to my knowledge in any resolution of contempt passed by any legislative body at anytime and it has never been required by any Court at anytime. This I see as a non issue I take it to be conceded. I believe it to be conceded by the petitioner that a legislative body such as State House of the State Legislature has the power to punish. It is house having authority to commit for contempt. For example, precedent for that is the cases cited in both briefs, I take it to be a non issue that there have been very grave and serious abuses of the parliamentary powers of contempt in past. The amicus brief dwells at some length on this and I am certain that if there had been search made even more grievous abuses could have been cited than were cited in the briefs. However I do not see that as an issue in this case because what is happened in the past, this Court has said that simple abuses of the power are no reason for denying its existence. Another thing that is conceded and is not at issue in this case, is that the contempt power and particularly the summary contempt power is an extremely delicate power to be used sparingly as this Court has said and is to be exercised with the greatest sense of responsibility, this is conceded. There is an other non issue in this case and that is the constitutionality of Wisconsin’s legislative Contempt Statute. That is the statute that was referred to by counsel, Section 1326. The issue of the constitutionality of that statute was litigated in a companion case to this one. The Freylik case and their a three Judge District Court ruled that the statute constitutional that it was not big over broad, that it did not call for involuntary servitude and other issues. There was no appeal from that decision by the Three Judge District Court. This case incidentally is a spin off from that case. This case started as the federal civil rights action for Declaratory Judgment and then when the Federal District Judge ruled that the portion of that action, the request for an injunction actually was a request for habeas corpus relief then this case Groppi versus Leslie became a spin off of Groppi versus Frelly and proceeded as a habeas case. It is also conceded and I see it to be a non issue in this case that a legislative body has other courses, it may fallow in the event of a direct disorderly contempt of its proceedings. It may refer the matter to the Courts. In the Watkins case, this Court observed that Congress has rarely exercised its contempt powers but had preferred at that time to refer matters of contempt to the United State Attorney for prosecution. There is no issue about this. The legislative --
William J. Brennan, Jr.: (Inaudible) to expressly authorize --
Sverre O. Tinglum: Yes, it had.
William J. Brennan, Jr.: That is not the 13.72?
Sverre O. Tinglum: Yes, 13 that is what I am referring to.
William J. Brennan, Jr.: Well, this applied only in the case of one, actually a judge guilty by the house?
Sverre O. Tinglum: Yes, I am sorry Mr. Justice Brennan. What I was think of was the disorderly conduct statute. Yes, disorderly conduct occurring anywhere within the State maybe prosecuted and the legislative -- the assembly could have treated this simply as a case of disorderly conduct.
William J. Brennan, Jr.: Under the general statute?
Sverre O. Tinglum: Yes, under general statute.
William J. Brennan, Jr.: But federal statute is expressed is it not?
Sverre O. Tinglum: Yes.
William J. Brennan, Jr.: It authorizes reference expressly in the case that contempts found by the house. That is required to make a federal statue first is it not?
Sverre O. Tinglum: It is, and what I should say is Wisconsin has no parallel to that statute.
Thurgood Marshall: Was it -- the disorderly conduct at this time on same about same business?
Sverre O. Tinglum: No.
Thurgood Marshall: Or is that a different affair?
Sverre O. Tinglum: That the arrest was made, as I remember was made at the later time.
Warren E. Burger: For conduct occurring where?
Sverre O. Tinglum: On the assembly floor.
Warren E. Burger: That it was the same conduct?
Sverre O. Tinglum: Yes, the same conduct.
Warren E. Burger: Your response I think was a little confusing.
Sverre O. Tinglum: I am sorry.
Warren E. Burger: Just to make sure we have it clear. It was at time of contempt citation, he was in custody on a disorderly conduct charge for the same conduct that the legislature was deeming with.
Sverre O. Tinglum: Exactly the same.
Warren E. Burger: And that is the case that ended in a mistrial and it was followed by dismissal?
Sverre O. Tinglum: That is correct. I am sorry, I did not intent to mislead. It is exactly the same conduct that was tried in the disorderly conduct case under the general statute.
Potter Stewart: It was just under a charge he had been not convict?
Sverre O. Tinglum: That is correct. He was never convicted of disorderly conduct in the Court. There as Mr. Chief Justice Burger point it out there never was a -- there was a mistrial and never any new trial.
Potter Stewart: There the charge still hanging over him now, would it?
Sverre O. Tinglum: Conceivably there could be a charge under section 13.27 of the statutes.
Potter Stewart: There was a mistrial but it was charge ever dismissed? Yes, it was dismissed.
Sverre O. Tinglum: It was dismissed.
Speaker: Well 13.27 requires a prior resolution to the convicting and contempt with the legislature?
Sverre O. Tinglum: Yes, Sir.
Speaker: For this case it was –
Sverre O. Tinglum: The State has never contented that it is moot. I would feel that as long as the possibility exists, that someone could prefer charges under section 1327. I would feel that under Grafus versus Low Valley that the there was sufficient interest left here in the petitioner and a sufficient hazard involved at least theoretically.
Speaker: Is the facts limitations applicable to that 1327 type?
Sverre O. Tinglum: I know of none.
Speaker: But certainly there would be extremely almost insurmountable double jeopardy problems too?
Sverre O. Tinglum: Absolutely. That is my opinion. It is not an issue here but that would be my opinion.
Speaker: Well if that so, why do you not urge this?
William J. Brennan, Jr.: If we sustain that a resolution that you want us to do -- and that there was a problem of double jeopardy, nothing else could happen anyway.
Sverre O. Tinglum: That is correct.
William J. Brennan, Jr.: So, sort of an empty argument is it not?
Sverre O. Tinglum: As I understand Carafas versus LaVallee and the principles in that case, if there is a theoretical possibility that a previous judgment if allowed to stand could work to someone’s disadvantage in the future, then the issue is not moot. So we certainly have not urged.
Speaker: It was because its advantage is it could not be tried.
Sverre O. Tinglum: But that issue is not before the Court at this time and all I can say is that in my personal opinion, yes. There would be –-
Speaker: New argument on that ground.
Sverre O. Tinglum: I do not believe under the cases that have been decided by this Court that I cannot argue on -- I am not urging that.
Speaker: In other word you are not arguing would --?
Sverre O. Tinglum: I am not.
Speaker: This is why I raised the question with Mr. Coffey a little while ago. I want to be sure about your position. You are not arguing this?
Sverre O. Tinglum: That is correct. It is also a non issue in this case that the assembly could have taken different courses of action as Congress has the power to take different courses of action in contempt cases. The question before this Court is whether the constitution requires that the legislative body must take some different course of action. Whether it must refrain and ignore the contempt altogether or whether it must rely on general criminal statutes or whether it must somehow refer the matter to the executive and rely upon the executive or upon the judiciary to vindicate its authority. It is also a non issue in this case that if this had been a case of indirect or constructive contempt, obviously the procedure followed by the assembly would have been invalid. Good many of the case cited in both of the briefs, in petitioner's brief or respondent's brief refer to cases of indirect constructive contempt where the legislative bodies have brought the contemnor before the bar of the house or of the Senate and there have heard evidence of what occurred outside the Legislative (Inaudible). These are constructive contempt cases. This is not, this is direct contempt case involving the disorderly conduct.
Thurgood Marshall: Is anything in the record to show why the resolution was not passed the same day?
Sverre O. Tinglum: None.
Speaker: Well, there is an indication in the opinion of the Supreme Court of the State based on judicial notice that the legislature could not act that day. There was so much disruption.
Sverre O. Tinglum: Yes.
Warren E. Burger: 12 Noon until approximately midnight, the legislature was in effect ousted of its own chamber. Is that not the case on this record?
Sverre O. Tinglum: That appears in the record. There has been no evidentiary hearing so that it has not been developed in that fashion.
Thurgood Marshall: What happened the next day?
Sverre O. Tinglum: I would have to go outside the record to tell you Mr. Justice Marshall.
Thurgood Marshall: I do not want to go outside the record, I just want to know as anything in the record to show why it took two days? We now have one day explained but there is no explanation for the next day?
Sverre O. Tinglum: Nothing.
Thurgood Marshall: Is there anything in the record to show what was brought before the house or is it just the resolution?
Sverre O. Tinglum: There is --
Thurgood Marshall: or is it discussion?
Sverre O. Tinglum: There is nothing in the record to show the debate that is not recited in the resolution.
Speaker: Was it two days, September 29th and October 1st over a weekend?
Sverre O. Tinglum: September 29th was a Monday, that was the day on which the legislature was to convene in special session.
Speaker: So it was right at the start of session?
Sverre O. Tinglum: It was right at the start of the session. As a matter fact, I cannot say that it was at the start of the session because the session did not start on the day that it was to have started. I have talked about the none issues and the issue as I see it again is a very narrow one. Does the constitution command that a legislative body exercise its contempt power different from the manner in which a Court is entitled to exercise the same power. There are no cases in point, at least neither of the parties to this action have been able to find a case precisely in point. Most cases discussing legislative contempt incidents of the legislative contempt are cases of constructive or indirect contempt. Whereas as I said previously the contemnor is brought before the bar because the house has not seen the conduct with its own eyes. In some of the precedents, some of the cases discussing legislative contempts, it is apparent that a summary procedure was in fact followed but there has never been any discussion of that in any of the cases that have a reason.
Speaker: Would Wisconsin's position be the same if a lapse of time instead of two day, it is two months?
Sverre O. Tinglum: I think yes. Wisconsin’s case would be much weaker.
Speaker: Why would it be weaker on the issue at the appendix?
Sverre O. Tinglum: Because without anything in the record to explain the delay. I think there would be, It would just be that much more difficult to explain a delay of that magnitude.
Speaker: I did not understand what Wisconsin's position was instead of --
Sverre O. Tinglum: We do not -- not as far as the two days are concerned.
Speaker: I do not understand why if you do not have to explain this two days, you would have explain it two months.
Sverre O. Tinglum: I believe in the first place that there have been instances, decisions by this Court, for example in the Terry case, ex parte Terry, In Re Morrey (ph) which is a second circuit case, that there have been delays unexplained in the record. And this Court has said that short delays do not have to be explained. For example, in the Terry case I believe there was delay of one day. The disorderly conduct occurred in open Court on one day and the contempt citation did not come out for the next day. Court said this delay is frivolous.
Warren E. Burger: There has been some reference to the procedure followed by Judge Medina in the contempt cases that occurred during prolonged trial in New York, years ago. Now, suppose hypothetically that the legislature decided deliberately to postpone the action on the contempt until the last day of the session or last week of the session in order to let tempers cool and get a more objective view, would that be a perfectly valid reason for waiting 30 days or 60 days or 90 days and who is to complain about that kind of a delay for that reason?
Sverre O. Tinglum: Well, if you delay to that extent. That would seem to undermine the assembly’s position that it needed protection. That it had the authority to remove this source of disturbance.
Warren E. Burger: That is only one of the reasons for the contempt powers. is it not?
Sverre O. Tinglum: Yes.
Warren E. Burger: It is not the whole basis for giving legislative body contempt power?
Sverre O. Tinglum: It is not. There is self reservation and there is what has been called by the Courts of indication of the body’s authority--
Warren E. Burger: Taking example of someone as a deterrent to similar future conduct by others?
Sverre O. Tinglum: I think the juror has never been mentioned in any case that I have seen but I think as matter of logic and common sense, yes deterrence plays very large part in this. There was a case, where the United State Senate proceeded summarily and ex parte Nugent cited in the respondent's brief where the debate and the deliberations leading up to the contempt resolution and the contempt resolution itself were conducted in secret. There again, and the Circuit Court for the District of Columbia at that time held that this was a proper procedure but the precise point that we have here, that is whether or not the legislature has any less power than the Courts around the nation to proceed in a proper case in summary fashion has never been expressly discussed and decided by any Court. The closest decision that I know that it comes to it is Marshall versus Gordon. There, there is some dictum that suggests that the power -- that the Courts have to exercise summary contempt powers proceeds from the same source and that both the legislators and the Courts have identical summary contempt powers. The District Judge said “alright there are no cases, there is nothing to guide this Court, I am going to look to see if there are any reasons in logic or in the factual circumstances of the two bodies” that is the Court and legislature to warrant a different treatment before the law. And the District Judge said,” well, there are so many people observing disorderly conduct in the legislative chamber, that you can have a good deal of confusion as to just what took place whereas in the Court, you have only one Judge looking and it is easier if you would not have that confusion”. The District Judge said also, there is a second point, that there is no transcript of the proceeding in a legislative chamber whereas there is in Court. And on those two points, the District Court held that the legislature did not have summary contempt powers. The Seventh Circuit Court of Appeals disagreed and I think rightly so because if it is true that one pair of eyes is better than several pairs of eyes, then of course one juror better than many jurors. Appellate Courts, for example, would not be able to observe properly, according to the District Judge's theory, would not be able to observe a direct contempt. The differences that are pointed out in the respondent's brief between Courts and legislatures are such that the legislature should have summary contempt powers at least equal to those possessed by the Courts, because there are probably upward to 5000 Judges in this country who posses summary contempt powers. There are only 50 legislatures. When you stop a legislature, there is no other body that can pick up the ball and run with it and do the work of that that legislature. It stops. And a continual week by week disturbance in the legislature would forever stop that legislature. Further more, a legislative body when it is proceeding to act upon a contempt, acts publicly. There is publicity, there is deliberation. Usually, in the two party political system you can expect debate before action is taken. There are certainly similarities between legislatures and courts that again call for similar treatment, similar powers of self reservation. They have been cited. Cases have been cited going back to parliamentary times in England, Colonial times in this country. Anderson versus Dunn, up to Marshall versus Gordon, Jurney v. MacCracken, where this court has said the legislature is just as vulnerable as any Court to attack in disruption. It has also been acknowledged by this Court many times that it is essential to preserve the independence of the legislative body and you cannot force the legislature to rely upon the -- sometimes hostile Judiciary or an unfriendly executive taking those words from United States versus Johnson. There is certainly a need on the part of legislature as great as in the Courts to continue functioning and to continue the dialog that takes place in a legislature. There are no differences that warrant a denial of this power to legislature and the similarities between the two forums, to call for and demonstrate that both bodies must have equal powers to protect themselves from attack. The contempt power is certainly very – it is a radical power, it is drastic, it is subject to great abuse and it is very properly limited and back in 1848, the Wisconsin legislature did very severely limit the contempt power of the Houses of Legislature. It described a very-very narrow area in which the legislature could act upon a direct contempt. Only where there has been disorderly conduct on the floor of the House, in the immediate view of the House in which directly tends to disrupt, can the legislature act summarily. Thank you.
Warren E. Burger: Thank you. You have four minutes left Mr. Coffey.
William M. Coffey: Mr. Chief Justice, the inquiry, the respondent has preceded that the summary contempt power is very great power subject to abuse. In the instance case, there is no way that the petitioner has ever been able to get a review, the factual basis on which the legislature asked. The Wisconsin Supreme Court in denying the petition to writ habeas corpus suggested that some type of judicial review was available. We filed a motion of petition for rehearing in the Wisconsin Supreme Court, and requested -- indicated that their opinion indicated such a judicial review was available. All of the authority that we had found indicated to contrary, would the Court please advise the petitioner, what kind of hearing was available to him and grant him that hearing, but even assuming that he could have gotten the hearing at that time, I think we must recognize that hearing comes too late. The petitioner was already in jail pursuant to the contempt resolution and at that point he had been denied bail and I do not believe that he should have his right to a hearing on the factual basis of the contempt after he is already in jail. I think, the hearing should precede the right of anyone to place him in custody. I suggest that as the District Court held that at a very minimum, the petitioner was entitled to be given notice of the charges against him and be given an opportunity to respond to them. Thank you.
Warren E. Burger: Mr. Coffey do you suggest that judicial review of a legislative contempt determination would be available, for example on the weight of the evidence or just on procedural regularity?
William M. Coffey: I would suggest Mr. Chief Justice that it has to be available on both or there would be no basis on which to check the arbitrary exercised power by the legislature.
Warren E. Burger: What you are suggesting on is that the judicial branch would have the power to re-determine the fact as distinguished from passing merely on procedural regularity of the contempt process?
William M. Coffey: I think that is essential Mr. Chief Justice. Or there is no check on completely arbitrary incarceration of people that these please the legislative body and there has to be a check on that kind of party.
Warren E. Burger: Very well.
Speaker: Is that not what the Supreme Court of Wisconsin said is available, on page 23 (a) of the appendix?
William M. Coffey: The Wisconsin –
Speaker: The Wisconsin seems to say that is what is available and that the review of procedure is not available, and as the only issues presented that dealt primarily with procedure, not with issue of his innocence or with the merits of any defense implying that had they have you presented problems on the merits, they would review it.
William M. Coffey: They did suggest that which is contrary as the District Court opinion noted was contrary to the existing case, warned Wisconsin at the time and when the petitioner asked for that hearing the motion for rehearing was denied without hearing and without comment.
Warren E. Burger: Is it not contrary to the general line of authority in both the English and the early American cases also, the review of the merits?
William M. Coffey: Yes it is Mr. Chief Justice.
Warren E. Burger: So this was probably reasonably false in the category dicta by the Court in the Wisconsin case, does it not?
William M. Coffey: Either that or an overruling of other authority without expressly doing.
Warren E. Burger: And where it was not necessary to reach the point?
William M. Coffey: No.
Warren E. Burger: Thank you Mr. Coffey. Thank you gentleman. The case is submitted.