Warren E. Burger: We will hear arguments next in 5485, Johnson against Mississippi. Mr. Porter, you may proceed whenever you're ready.
Stephen W. Porter: Mr. Chief Justice, may it please the Court. My name is Stephen Porter of the law firm Williams & Connolly, seated in counsel table is Richard Rugo of the law firm Hogan & Hartson. We are co-counsel for petitioner in this matter. This case arises out of the conviction and sentencing of a Mississippi civil rights worker under circumstances which would appear to ignore every pronouncement and every limitation and every cautionary statement that this Court has over the years ever made on the issue of the use by a trial court of the power, without the ordinary requirements of due process to punish allegedly contumacious behavior summarily. The salient facts briefly reviewed are as follows. On January 27, 1969, petitioner Robert Johnson was summarily convicted by Grenada County, Mississippi Circuit Court Judge Marshall Perry for a remarked allegedly made in Judge Perry’s Court more than two years earlier. Judge Perry sentenced petitioner for four months in jail although the maximum sentence is one month to which the Supreme Court of Mississippi later reduced the sentence. The conviction resulted from an incident which occurred on January 24, 1967 in the judge’s courtroom. At 9 A.M. that morning, prospective jurors of the January term occupied benches near courtroom doors, a section normally reserved for the public.
Hugo L. Black: Is this one month sentence was stayed?
Stephen W. Porter: Yes, Your Honor.
Hugo L. Black: With serious evidence?
Stephen W. Porter: Yes. Yes, Your Honor. This one month sentence has been stayed. The most direct route to seats reserved for defendants in pending cases before the term involved walking in front of these jurors. Judge Perry announced that anyone entering the Court while in session would be required to use an aisle in the rear and this announcement was made approximately five or ten minutes before Robert Johnson appeared in Court. When petitioner Johnson arrived, he walked via the most direct route to the seats reserved for the prospective defendants and as he did he walked in front of the jurors.
Potter Stewart: And he was there as a defendant in case that’s going to be tried that day?
Stephen W. Porter: Yes, Your Honor whether or not he was going to be tried that day. It was the opening day of the --
Potter Stewart: Trial.
Stephen W. Porter: -- of this term.
Potter Stewart: And he was --
Stephen W. Porter: And he was required --
Potter Stewart: A defendant in one of the cases that the Court was going to try during that term.
Stephen W. Porter: Yes, Your Honor. Petitioner Johnson was apprehended by the Deputy Sheriff who ordered him to walk around to the rear. This point, according to the state’s show cause petition, Johnson there upon said in a loud and offensive voice, “What the hell do you mean, go around to the rear?” That is the sum total of any allegation of contumacious behavior on petitioner’s part.
Warren E. Burger: What would be your view if the judge then and there or upon the adjournment of Court that had imposed the sentence of 30 days for contempt of Court?
Stephen W. Porter: Your Honor. First of all, I think that that would be a far different matter than what he did do and --
Warren E. Burger: Yes. Obviously, what happens --
Stephen W. Porter: And I think even then, the behavior of petitioner Johnson who was alleged is far less than the outrageous behavior which is present in many of the decided cases to this Court on this subject. Furthermore, I think there's another issue which ought be raised and faced, and determined, that is the question of whether a judge ought involved a summary contempt power against a person who is not then involved in a proceeding before the Court or whether or not the ordinary fuller hearing ought be required.
Warren E. Burger: What difference does it make whether it’s a spectator, a tourist, a defendant, or a member of the bar of the Court?
Stephen W. Porter: Well, I think Your Honor that there are --
Warren E. Burger: And except that it might be a higher degree of culpability on the part of the lawyer of course.
Stephen W. Porter: Leaving aside the question of a lawyer for the moment. I think the difference is this, is that in the case of the defendant before the Court, it is possible -- it’s much more difficult to invoke a summary punishment because it involves the possibility of prejudicing the case, possibly prejudicing the jury, and possibly interrupting the proceedings. There is a lesser remedy available in respect of a spectator. He can be removed from the Court. The Court can proceed with its business and still take care of in due course charging the contemnor with the responsibility for his act.
Hugo L. Black: Is the judge on the bench at the time this --
Stephen W. Porter: Yes, Your Honor. The judge was on the bench. Although, --
Potter Stewart: What was going on in the courtroom? Was a trial then in progress or doesn’t the record show?
Stephen W. Porter: The record does not show what was going on whether or not if it was going on -- it appears the petitioner arrived in Court shortly after the judge was making his opening announcements with respect to a -- I don’t believe it, a trial was going on because I don’t think jurors had been chosen yet, with respect to any of the pending cases.
Potter Stewart: Just some preliminary matters at time.
Stephen W. Porter: It’s a preliminary matter -- I believe that’s correct, Your Honor.
Warren E. Burger: You haven’t indicated your view of the matter but you don’t need to, the view of the Court’s power summarily to deal with utterance of that kind in the courtroom, do you question the Court’s power to deal with that kind of an utterance in the courtroom by any person?
Stephen W. Porter: I don’t question Your Honor, the power of the court to deal with an utterance of that kind in a courtroom. Although, I think traditionally, it would have to have been the kind of behavior which would have disrupted the proceedings. The state’s show cause petition alleges that the chair from his deputy brought petitioner before the judge and related to the judge what had happened, indicating that the judge had never heard the disruption which had taken place. And again, I think that although the Court that has the power to dispose off a disruption in the Court, questions of whether or not, it should deal with it in a summary proceeding, where some other method would be appropriate and still reserving the possibility of a prosecution for contemptuous behavior is a reasonable and proper result.
Thurgood Marshall: You mean, staying in front of the courtroom he says, and to judge, look to him and say -- and say, “Go to hell.” The judge can’t do anything about it?
Stephen W. Porter: I'm not suggesting that that the judge cannot do anything about it, Your Honor. I'm suggesting --
Thurgood Marshall: What do you suggest he could do?
Stephen W. Porter: There's several things he could do and it depends, I think --
Thurgood Marshall: He could put him in jail for 30 days right then and there, could he?
Stephen W. Porter: I think he could probably put him in jail for 30 days right then and there. Although,--
Thurgood Marshall: Legally?
Stephen W. Porter: Yes, Your Honor, legally. He could put him in jail for 30 days right then and there, if the judge saw and heard the -- this is the old distinction between direct and indirect contempts.
Thurgood Marshall: And if the Sheriff heard it and told the judge that that’s different. He can go attend the courtroom.
Stephen W. Porter: I think that’s correct. Yes, Your Honor.
Thurgood Marshall: What would he do then --
Speaker: Is there a state statute against him?
Stephen W. Porter: Pardon me Your Honor?
Speaker: Is there a state statute that covers it?
Stephen W. Porter: There is a state statute that covers contempt of -- direct contempt of Court punishable by one month. It empowers the judge to sentence a contemnor to one month in jail in a direct contempt under Mississippi statute.
Byron R. White: Well, this judge indicated later, he heard it himself.
Stephen W. Porter: This charge later indicated the, Your Honor, two years -- after two years had gone by that he did hear it himself. Although, he had in the intervening of time schedule a show cause hearing. Twice scheduled a show cause hearing and then he canceled it.
Byron R. White: Oh, I don’t know that is inconsistent with his having heard it and I wouldn’t think it’s inconsistent with his having heard it that the sheriff brought the man up to him and told him what he said?
Stephen W. Porter: Your Honor, I think it may begin inconsistent in this respect and that is --
Byron R. White: Well, he perhaps didn’t say, “Well, I have heard it by myself so you don’t need to tell me.” But he let him tell him.
Stephen W. Porter: And then he scheduled a show cause hearing and which would be the proper procedure under Mississippi statute for an indirect contempt.
Byron R. White: It wouldn’t be improper for the direct one, would it?
Stephen W. Porter: No, it would not be improper to provide a fuller hearing, that’s correct. The judge ordered the show cause hearing -- a show cause petition be filed and within the two days of the such order, petitioner filed a motion that Judge Perry disqualify himself from the pending show cause hearing alleging personal prejudice and further alleging that since the judge had ordered his arrest, he could not fairly decide the action. On February 1, 1967, approximately a week after these events, petitioner filed a petition for removal to the United States District Court for the Northern District of Mississippi. It was not until some 21 1/2 months that elapsed that the United States District Court remanded the prosecution to the Grenada County Circuit Court holding that petitioner’s remedy in the federal system could lie only after he demonstrated that he had been deprived of his constitutional rights by the state courts. On January 22, 1969, prior to any action in Grenada County on the contempt charge and two months after, the federal court had returned the prosecution to the state system. Petitioner and others filed an action in the United States District Court, the Northern District of Mississippi wholly separate action to restrain trials of Negroes and women until such time as those persons were not systematically excluded from juries in violation of the U.S. Constitution. Judge Perry was named as one of the defendants in that action and served with the process on January 23, 1969. On January 24, 1969, a summons was issued directing Johnson to appear in Judge Perry’s courtroom on January 27th, to show cause why he should not be punished on the old contempt charge. On January 27th, petitioner and his attorney did appear in front of Judge Perry for the show cause hearing at which time the judge canceled the hearing instead reading a contempt conviction sentencing petitioner to four months in jail. Bail was set at $2,000.00 and subsequently reduced to the statutory maximum of $300.00 for the Supreme Court of Mississippi. Later that same morning at the second appearance before Judge Perry, in an effort to obtain the judge’s signature on a bill of exceptions, the judge refused. And when the petitioner’s attorney prepared the bill of exceptions, the judge summarily, and charged hearing contempt, a conviction which was later reversed by the Supreme Court of Mississippi.
Hugo L. Black: Why was the record show -- why was it the judge knew this episode happens? Did he punish summarily?
Stephen W. Porter: I'm sorry Your Honor. You mean, why didn’t punish him in 1967?
Hugo L. Black: Yes. Why not --
Stephen W. Porter: The record --
Hugo L. Black: Immediately when the episode happened?
Stephen W. Porter: The record does not show why he didn’t. The record only shows that he just elected to travel the show cause route rather than to invoke such summary powers as he might had have under the Mississippi statute.
Speaker: When was the order to show cause given?
Stephen W. Porter: The order to show cause was returnable on February 1st, I think, nine days after the alleged contumacious behavior.
Warren E. Burger: Then I take it, it was issued almost immediately?
Stephen W. Porter: Yes, Your Honor. It was issued almost immediately following the judge’s order that a show cause order be issued.
Byron R. White: Why wasn’t it heard?
Stephen W. Porter: Why was it not heard immediately? The judge ordered that -- I believe the judge ordered that the show cause petition be issued within 48 hours and why he didn’t set it down for an earlier hearing is just not in the record, Your Honor.
Byron R. White: Then he issued another one?
Stephen W. Porter: The second one was two years later.
Byron R. White: Yes.
Stephen W. Porter: The February 1st show cause hearing was not held because by that time a removal petition had been filed in the federal court.
Byron R. White: Do you respond writing to the show cause order in that jurisdiction?
Stephen W. Porter: I'm not aware of whether or the doer, I don’t know Your Honor.
Byron R. White: Was there any response from the person’s show cause order?
Stephen W. Porter: I think the only response was a motion filed that Judge Perry recused himself from hearing the matter and that motion was never heard and never determined by the judge.
Byron R. White: And was it? There was then any suit filed against him?
Stephen W. Porter: There was then a suit filed against Judge Perry that was after 21-and-a-half months had elapsed and after the federal system had returned the case to the Grenada County Circuit Court. About two months after the case had been returned and still without any action taken in Grenada County, the separate suit was filed by petitioner naming Judge Perry as the defendant.
Hugo L. Black: What case was being tried at the time this occurred?
Stephen W. Porter: You mean Your Honor, the proceeding that was going on in the courtroom?
Hugo L. Black: Over the court at the time the court was interrupted.
Stephen W. Porter: I don’t believe there was any proceeding going on at that time. I believe they were in a process of choosing jurors --
Hugo L. Black: Well, what case?
Stephen W. Porter: I believe they were selecting jurors, eligible jurors, for all the pending cases in that term.
Hugo L. Black: Didn’t we --
Stephen W. Porter: Yes.
Hugo L. Black: Was there any complaints to the Court about anything that had been done?
Stephen W. Porter: Not that I know of, Your Honor. The record suggests none.
Hugo L. Black: It was just a disorder that happened.
Stephen W. Porter: Just --
Hugo L. Black: Without any reason.
Stephen W. Porter: The reason appears to have been the request by the deputy sheriff that petitioner walk around the rear of the room when he take his seat rather than take the more direct route and pass in front of the prospective jurors.
Hugo L. Black: Well, was he on trial or charged for that term?
Stephen W. Porter: He was scheduled for trial during that term.
Hugo L. Black: For what?
Stephen W. Porter: I believe it was a -- although, it is not indicated in the record. I believe it was a trespass case which was, although, there wasn’t --
Hugo L. Black: What kind of trespass? What was it about?
Stephen W. Porter: I don’t know what it was, Your Honor. It’s not in the record and the only thing that is in the record which we have in the footnote in our brief is that the -- there was never any prosecution on the matter. The prosecution on the substantive charge against petitioner was dropped. I believe it was a trespass arriving out of a civil rights demonstration.
Hugo L. Black: In a restaurant or something like a Court has or where?
Stephen W. Porter: I've no idea Your Honor. It’s not in the record. From its earliest decisions, this Court has recognized that the use of summary procedures to convict must be carefully controlled since they do not encompass the ordinary procedural safeguards incorporated in our system of justice, the right of an accused to be apprised fully of the nature of the charges against him, the right to put on defense, the right to counsel. Generally, the Merrill area within which summary contempt proceedings have been permitted is where the trial judge has observed the contumacious conduct and then acts swiftly by conviction of the contemnor rather than by an alternative remedy in order to quell a disturbance threatening to upset the sanctity of the courtroom. Other remedies have been held constitutionally permissible in dealing with an obstreperous defendant. This Court recently in Illinois v. Allen mentioned at least two others restraint and removal from the courtroom. Other non-summary conviction procedures suggests themselves, contempt procedures suggests themselves were appropriate such as a civil contempt. A postponement of the proceedings in a proper case or by the judge, informing the defendant that charges will be preferred against him for contempt after the conclusion of the trial and refer to another judge. In light of these other possible remedies and in light of these Court’s recent holding in Mayberry versus Pennsylvania which we stripped to the use of a summary conviction after a trial’s conclusion. Since at that time, immediate restoration of order is no -- or vindication of the authority of the Court is no longer the primary requisite. Petitioner’s conviction and its affirmance by the Supreme Court of Mississippi must be reversed for the follow --
Byron R. White: It wasn’t a major part of Mayberry though that the judge who is going to later hear the case had himself then slandered and insulted personally, and hence, there might have been some question about his fairness?
Stephen W. Porter: I think that’s correct Your Honor. I think that’s -- that is also --
Byron R. White: And why do you rely on this case to suggest that the judge trying this contempt later might have had a personal animus and would be biased?
Stephen W. Porter: Well, there are several possible alternatives which suggest themselves Your Honor. There’s several affidavits in the records suggesting the judge’s personal bias against defendant and its members of his race and civil rights workers --
Byron R. White: Based on what? Base on what note? I mean, just generalized allegations would suffice every --
Stephen W. Porter: Yes. And also allegations of prejudice or part of the possibility of prejudice as a result of a lawsuit filed by petitioner naming the judges or defendant --
Byron R. White: Yes.
Stephen W. Porter: At the time of the second show cause hearing. That might -- I would suggest might even be a greater possibility of bias than most present in the exchange --
Byron R. White: What was the charge? What was the charge in the suit against the judge?
Stephen W. Porter: Well, the suit Your Honor against the judge was against the judge and several others for systemically restraining and preventing Negroes and laymen from serving on juries in Grenada County, Mississippi.
Byron R. White: But this didn’t have anything to do with this petitioner? I mean, was the petitioner, a plaintiff?
Stephen W. Porter: No. But the petitioner was plaintiff.
Byron R. White: But that he wasn’t suing him for anything that the judge did to him?
Stephen W. Porter: No, Your Honor. Other than as a member of class.
William O. Douglas: Mr. Porter, you were not counsel for Johnson at the time of this incident, were you?
Stephen W. Porter: No, I was not Your Honor.
William O. Douglas: Do I correctly infer that the attorney, which he had at that time, was also cited for contempt?
Stephen W. Porter: Yes, Your Honor. Both attorneys that he --
William O. Douglas: And with what result?
Stephen W. Porter: Both, the first attorney who represented him the day of the alleged contumacious behavior was cited for contempt for protesting in Judge Perry’s Court that the show cause hearing was improper and that trial was restrained by a temporary restraining order issued by the U.S. District Court for the Northern District of Mississippi and the case had never -- was just never just brought to trial after the temporary retraining order expired. His second attorney, the attorney who represented him at the time of the second show cause hearing or the time the second show cause hearing was scheduled was also cited for contempt and that contempt conviction, that summary conviction was reversed by the Supreme Court of Mississippi on the grounds that it was not direct contempt before the judge and that the summary procedure did not apply.
Warren E. Burger: Well, now the summary procedure then was the correct procedure under Mississippi law to use in Johnson’s case, I take it, since it was not in your view a direct contempt.
Stephen W. Porter: Your Honor, If were -- if it were not a direct contempt, the summary procedure would not be.
Warren E. Burger: Well, but he didn’t use the summary procedure here, did he?
Stephen W. Porter: No, he did not. I thought you were suggesting that the summary procedure would be then.
Warren E. Burger: Oh no.
Stephen W. Porter: It would not be the correct procedure --
Warren E. Burger: So, that you don’t have any quarrel with the procedure that the judge used to deal with contemnor?
Stephen W. Porter: The show cause procedure, no sir. No quarrel with the procedure that was scheduled. We are alleging that the failure to then hold the show cause hearing or to hear the motion that the judge recused himself and that the show cause hearing be before an unbiased judge was improper.
Warren E. Burger: Do you suggest that a person in the posture of Johnson may disqualify a judge by bringing a lawsuit against him?
Stephen W. Porter: No, Your Honor. I don’t suggest that. I don’t think that there's any suggestion here that this lawsuit was brought to divest the judge of his power to hear the contempt charge.
Warren E. Burger: But in your earlier argument, you suggested that this is one of the large factors I think that’s the way you put it, in a probable bias since he was a defendant in the lawsuit. The judge was the defendant in the lawsuit.
Stephen W. Porter: Yes, Your Honor. I think it is a major factor and I -- but I think that if -- I think when you have an elapse of two years time, you have your petitioner who is a civil rights worker, who is working actively in that field, when he brings a lawsuit which --
Warren E. Burger: What difference does it make whether he’s civil rights worker or a plumber if he is guilty of contumacious conduct in the courtroom?
Stephen W. Porter: Well, I think, if you have an intervening legitimate lawsuit with merits which is not brought simply to divest -- some charge in order to divest the judge of his jurisdiction to hear the contempt charge, I think you have an intervening factor which simply requires the judge to excuse himself.
Warren E. Burger: Has that lawsuit been tried?
Stephen W. Porter: That lawsuit -- according to the record was won by petitioner of the federal District Court, issued an order enjoining the judge and the other defendants from any further acts which would violate the civil rights of the plaintiffs and members of the class. As a matter of fact that order, Your Honor, was issued and Judge Perry and others were enjoined prior to the time that the judge canceled the show cause hearing. In other words, the suit was filed within the matter of 48 or 72 hours. The United States District Court issued its injunction.
Hugo L. Black: Supposing a judge here has contempt committed in his presence, (Inaudible) he says, “I find you in contempt.” I oppose the wrong sentencing to the inclusion of the trial until I get through with this case and he brings (Inaudible) impose 30 days on you. Would you hold bar with that procedure?
Stephen W. Porter: No, Your Honor. I would not. I think that’s --
Hugo L. Black: Could that be equivalent of what's happened here or is it different?
Stephen W. Porter: I think something far different has happened --
Hugo L. Black: I was trying to get at that --
Stephen W. Porter: I think something far different has happened here. There was no finding of contempt by the judge. First of all, it’s not clear that this was a proper case in which there could be a finding of contempt by the judge without a hearing. Secondly, even if this were the case, that power was not invoked by the judge. He did not specifically find petitioner in contempt. He instead ordered a show cause hearing. He ordered two show cause hearings and he later canceled those hearings. And we’re suggesting that once the judge has elected to use another procedure, unless there is intervening obstreperous behavior, there may not be a cancellation of the due process hearing and a return to the summary procedure because at that point, two years down the road or 30 days or even one day down the road, there's no longer any need to call the disorder in the courtroom that summary procedure has historically been reserved for just that purpose, to quell a disruption and if the judge elects not utilize it for the purpose of quelling the disruption, he ought not have it later.
Hugo L. Black: When the ‘69 show cause order was issued that was the operative one in your view, was the response put in and answer put in by your client? What I’m getting at with the issues in fact tendered?
Stephen W. Porter: No, Your Honor, I think there were no issues of fact tendered. The petitioner pointer out or petitioner appeared for the show cause hearing and asked through his attorney to put on a defense and was -- and that request was denied in the bill of exceptions which is in the record. The petitioner’s attorney states that she was prepared to present evidence of the fact that petitioner did not behave contumaciously.
Speaker: Open the bench, please!
Warren E. Burger: You may go right on counsel.
Stephen W. Porter: Sir. The power to punish summarily in any event if this Court is to permit its limited -- in limited instances its continued use, should only be sanctioned or all else is proved unavailing. Otherwise, the defendant stands confronted with the conviction, never having had a chance to assert a defense but the only protection remaining between him and the jailhouse door an appeal in which the record is often scanty at best and non-existent at worst. Such an appeal even if ultimately successful, might be long arduous and expensive and might have been completely avoided if all the facts had been examined in unbiased fashion at the trial level. In summary, we have before us and I think is an outrageous case which amply demonstrates the perils of the misuse of the power to punish summarily. His power was here employed with the state’s own petition admits the alleged misconduct do not occur within the second hearing of the judge or an alternative remedy had been selected or swiftness was not a prerequisite and whether was ample evidence of possible bias. Finally, there is wholly absent from the record in this case, the unusual exceptional or flagrant nature of behavior which is ordinarily a condition precedent to the invocation of summary procedures.
Warren E. Burger: Would you make the same argument if a sentence penalty of 30 days had been imposed?
Stephen W. Porter: Immediately, Your Honor?
Warren E. Burger: Anytime.
Stephen W. Porter: Rather than a -- rather than a sentence of four months? Yes, Your Honor. We would make the same argument.
Warren E. Burger: So, it isn’t your -- it isn’t the length of the penalty you’re complaining about, it’s the process?
Stephen W. Porter: It is the process. The penalty has already been reduced to fit to the statutory maximum by the Supreme Court of Mississippi.
Hugo L. Black: Already been reduced to what?
Stephen W. Porter: To the statutory maximum. Judge Perry’s sentence exceeded the statutory maximum and it was reduced by the Supreme Court of Mississippi to the statutory maximum of 30 days.
Warren E. Burger: Mr. Lyell.
G. Garland Lyell, Jr.: Mr. Chief Justice, may it please the Court. I might say this at the outset that Judge Perry is an old friend of mine, a classmate and I've known him for years and he has his way of doing things sometimes rather unpredictable frankly.
William O. Douglas: Who’s this? The judge of the --
G. Garland Lyell, Jr.: Judge that imposed this sentence.
Potter Stewart: Is this the same -- this was in Grenada County which you are addressing?
G. Garland Lyell, Jr.: Grenada County, yes.
Potter Stewart: But is this the same Judge Perry who was involved in the proceedings in Winston County and as related in the appendix C to your brief? This is the same Judge Perry?
G. Garland Lyell, Jr.: Same judge and I come to my reason for making that opinion (Inaudible) in the appendix to the brief what the defendant published a report at the time, this brief once affirmed. Without all the fly outs of bias and prejudice that may have existed, assuming for argument on in front Judge Perry towards this so-called civil rights worker or whoever he might be, I don’t see it he’s in any position to complain of the procedures that was used against him. If Judge Perry heard those contemptuous remarks --
Thurgood Marshall: Did he hear him?
G. Garland Lyell, Jr.: Mr. Justice Marshall --
Thurgood Marshall: (Voice Overlap)
G. Garland Lyell, Jr.: He said he did in the petition that he instructed the show cause petition or information which he instructed to prosecute it to prepare. I think that’s where the prosecutor who decided and who prepared it said, it was reported to Judge Perry.
Thurgood Marshall: Yes.
G. Garland Lyell, Jr.: But you’ll find in the record that Judge Perry himself stated that he heard it.
Thurgood Marshall: I see.
Warren E. Burger: But would there be anything inconsistent between hearing it and having it reported to him?
G. Garland Lyell, Jr.: It could have been both and like here is a question of counsel. But I might add this, even though, the punishment was not summarily imposed which he had a right to do for direct contempt in his presence and he directed the prosecution at time to file an information on show cause order, if it occurred out of his presence or out of his hearing, it would have been constructive or indirect and he wouldn’t had have to start the day maximum stays on. He could got six months for example and I liked this thing you mentioned the way Justice Harlan did, I forgot the word you described the last show cause order of a hearing, nothing every opportunity was given to this man and his counsel to file some sort of response to show something in mitigation, something to purge himself, nothing was ever done. As true as he noted along went the time the way it imposed of grounded for contempt but they never appeared to defend themselves and I don’t like Judge --
Thurgood Marshall: It was never denied.
G. Garland Lyell, Jr.: Sir?
Thurgood Marshall: There never was denial on what was said.
G. Garland Lyell, Jr.: No, sir.
Thurgood Marshall: Never, never. Up until this one.
G. Garland Lyell, Jr.: No, sir. And to me, it gets back. I don’t know what the aspects the usual contempt in Mississippi is unique, and I didn’t have the time to research it from other states with this tremendous task. But I agree thoroughly with the rationale of Mayberry and other similar cases that if summary punishment is not immediately imposed at that judge ought to get some other judge to hear the thing. Hear the evidence and defend on whether or not, first, it is contempt and what the penalty ought to be. Some judges are unstrung by the contemptuous conduct or unbiased, unprejudiced, and unattached. But I suggest this, I mean I have been through the court, I felt it like a sort of thin ice in this case for a while and I tried to get counsel to agree, in spite of the fact I think Rule 37, being find on submissive through that argument. I tried to get them to agree to submit it. But instead in the thing and the statute on appeals from contempt convictions, I found an interesting thing I've pointed out in my virtual brief that that statute accomplishes, I think to greater degree what would be accomplished by having one single judge hear this thing at a later date when summary punishment not imposed. That statute on appeal from contempt conviction provides that the Supreme Court of Mississippi, nine judges will review the thing on a record and decide one. Was there a contempt? Then, if they determined that there was a contempt from that cold printed record uninfluenced by courtroom atmosphere and what not they can do one of four things. At the time when the statute said, whether the appellant was guilty of contempt and the sentence or decree or order of the court below maybe affirmed, reversed, annulled or modified. According to the judgment of the appellate court, that of course was a reason I have attested Boston opinion as an appendix to the brief, to show just how our State Supreme Court has handled these things. Now, there was a case where the same Judge Perry found a man in Boston who was a lawyer on Winston County, Mississippi. They ran against Judge Perry, the Circuit judge in contempt and they appealed to their Supreme Court and they completely annulled the conviction. They didn’t reverse, remand, vacate, or modify. They completely annulled it as you see from that appendix.
Potter Stewart: I have two problems with your argument and I may say so unless you can straighten it out Mr. Lyell. About your argument as to the Mississippi statute that gives the Supreme Court reviewing power. In this particular case in its opinion, the Supreme Court of your state said, “Upon appeal with this Court from a conviction of direct contempt, the statement of the substantive facts set out in the judgment of the trial court will be taken as true and correct.” So that’s pretty far away from any sort of factual review that I had understood you were suggesting. And secondly, since there was no hearing, there really wasn’t anything to review in this case if they took the findings in the trial court's judgment as true and correct. And if the trial judge didn’t conduct a hearing on the show cause order. There was just no review at all.
G. Garland Lyell, Jr.: Well, I think what they mean by the statement Mr. Justice, as I understood is this, that they had to accept as a fact from the finding of the trial court, what this contemnor did? There was -- as Mr. Justice Marshall asks this, there's never been any denial of the fact that he did what he did. Then under this appeal statute, they will determine if that is the contempt and go ahead and vacate, reverse, --
Potter Stewart: Now, there's never been a denial of this or is there ever been any opportunity for a denial. As I read the statement of the facts in the petitioner's brief, it boiled out to the fact that at nine o’clock in the morning on January 27, 1969, Johnson with his lawyer appeared before Judge Perry and denying Johnson’s request for a hearing. Judge Perry read the order, judging Johnson in criminal contempt and sentencing him to four months in prison.
G. Garland Lyell, Jr.: Well, he had --
Potter Stewart: Therefore, if there was no hearing or opportunity for a hearing, if there was denial of a hearing and if the appellate court takes the facts stated in the judgment of the trial judge as true and correct, I don’t see how there could’ve been any appellate review at all?
G. Garland Lyell, Jr.: Summarily, --
Potter Stewart: Unless the dumb noble kind of a review that you suggest that Mississippi statute requires?
G. Garland Lyell, Jr.: My recollection is that there at least two of these show cause order who served and to give him an answer or opportunity to file a written response. I forgot which Justice -- asking for written response as required in Mississippi I don’t think it is. But that any contemnor who -- that I never heard of who desired to purge himself was -- has done so, for having anything to say in litigation or by way of apology.
Hugo L. Black: I heard you say, it means offers some excuse for doing something, admits you’ve done something?
G. Garland Lyell, Jr.: Yes. That’s my understanding of the word.
Potter Stewart: But you -- on page 40 of the appendix, it stated that Martha M. Wood, and that was his lawyer as I understand it. At that time, requested a hearing which request was denied now, is that true?
G. Garland Lyell, Jr.: What date was that, sir?
Potter Stewart: I think it was 1969, 9:00 AM on January 27, 1969. At that day, at which Johnson was found to be in contempt and there was a denial of a request for a hearing according to the --
G. Garland Lyell, Jr.: But had not he’d been previously afforded an opportunity to file a response in earlier.
Potter Stewart: Now, where is that in the record?
G. Garland Lyell, Jr.: Part of Mississippi --
Potter Stewart: Or in the appendix? I've looked through it and I can’t find it.
G. Garland Lyell, Jr.: I haven’t seen the printed record. In fact, this is an informal corpus appeal, is it not?
Potter Stewart: Or you have --
G. Garland Lyell, Jr.: Then, I think the original record was up there, when I have to thank sheriff Almeda.
Potter Stewart: Well, this was filed here on February 10, 1971.
Warren E. Burger: Which cannot be found in the appendix?
G. Garland Lyell, Jr.: From my information was that he had -- there were two hearings set and the first one, he didn’t even show up.
Warren E. Burger: Is it your position he defaulted in his opportunity to present evidence and litigation, or to purge or to claim
G. Garland Lyell, Jr.: I think so.
Warren E. Burger: And that the occasion that Justice Stewart is referring to then in your view was just the occasion to hear this judge’s sentence for contempt?
G. Garland Lyell, Jr.: Perhaps on second one but it is there on the second one. My recollection is that he has given other judge to hear it and the rather make any defense which gets back to the proposition that if Judge Perry heard it, took testimony and actually had denial of whether or not he uttered these contemptuous words and conduct that and still found him in contempt, then under these various statutory statute on appeal which I think is even better than having a single judge, you got nine Supreme Court Judges just passionately reviewing the thing from a cold printed record and as illustrated by this Boston case completely annulling the contempt conviction.
William O. Douglas: Mr. Lyell.
G. Garland Lyell, Jr.: Sir.
William O. Douglas: As I understand, I'm looking at page 40 Mr. Justice Stewart referred to. These are the proceedings and so it’s stated here before Judge Perry at nine o’clock in January 27, 1969, here, it’s cited that Martha M. Wood requested a hearing. Her request was denied. She then objected to the denial and this appears, Judge Perry stated that he had intended to give respondent a hearing under the contempt charge as the Court files ordering him to appear in a show cause proof. But that since respondent had the audacity to go to federal court, and whether Judge Perry meant by that the original removal order or the affirmative jury suit or both is not clear, he was not going to give him a hearing?
G. Garland Lyell, Jr.: Well, I can’t answer that --
William O. Douglas: You can’t say whether that did or did not occur?
G. Garland Lyell, Jr.: I can’t say it no.
Byron R. White: Would you think that --
G. Garland Lyell, Jr.: What, sir?
Byron R. White: When doing that brings this case within Mayberry?
G. Garland Lyell, Jr.: Well, I think Mr. Justice White that he is guilty of a summary contempt which would bear immediate imposition of punishment.
Speaker: Well, how do you know he said --
G. Garland Lyell, Jr.: But, but --
Speaker: How do you know he said these things?
G. Garland Lyell, Jr.: The only thing in the printed record is that he did it.
Speaker: Except that he never had an opportunity for a hearing to --
G. Garland Lyell, Jr.: Well, he didn’t --
Speaker: Testify the proceeding --
G. Garland Lyell, Jr.: Then the record show that he had one previous opportunity to appear and did not appear.
William O. Douglas: I simply say Mr. Lyell.
G. Garland Lyell, Jr.: What?
William O. Douglas: That appears here. Well, from this it appears that he didn’t. So, we don’t know whether had he have a hearing? Perhaps to take in the stand and had denied that stayed?
Byron R. White: The only determination that he ever said it is by Judge --
G. Garland Lyell, Jr.: Judge Perry’s statement.
Byron R. White: Who, perhaps, arguably at least shouldn’t have heard it at all?
G. Garland Lyell, Jr.: Well, I can only say this Mr. Justice White that when the conviction was appealed on the State Supreme Court, there was no complaint made that no effort made in the State Supreme Court and that you have a written record here that based on that ground that he didn’t have a chance to deny that he did this thing.
Hugo L. Black: So, why is that statement on page 40? What was it put there for?
G. Garland Lyell, Jr.: I'm talking about the previous opportunity.
Hugo L. Black: Well, I'm talking about this time?
G. Garland Lyell, Jr.: This time? What --
Hugo L. Black: If the man has gotten up, he could be tried for contempt and he has asked for a hearing and they say they won’t give it to him in part of his audacity in going into the federal court.
G. Garland Lyell, Jr.: Well, my po --
Hugo L. Black: Would that be accepted as a good defense by the Supreme Court of Mississippi to reject a man’s claim to be heard?
G. Garland Lyell, Jr.: I don’t think Supreme Court of Mississippi or this Court ought to say it except for anything other than the fact, did he commit this act which is gone under that completely and no complaints --
Hugo L. Black: But he is asking here for a hearing only which means that he is denying something.
G. Garland Lyell, Jr.: Well, we accepted the fact in the record and I think we can (Inaudible) deny and nobody’s claiming that they won’t need a hearing to deny --
Hugo L. Black: But, it is not --
G. Garland Lyell, Jr.: -- to deny that he did this thing.
Hugo L. Black: You have this defense but didn't ask, didn't you? His defense was not that he had previously been given an answer but he had the audacity to go on to federal court and try to get relief.
G. Garland Lyell, Jr.: Well, that was -- that was after the first show cause was issued.
Hugo L. Black: Whenever it was, is that correct in Mississippi and do you consider it correct to his Attorney General to tell a defendant who is gone into federal Court that he has had the audacity to go there and you won’t hear anything else upon him?
G. Garland Lyell, Jr.: All I can say Your Honor that I wouldn’t have done a thing.
Hugo L. Black: I thought of that.
Warren E. Burger: But counsel, counsel as I understand it. This material on page 40, 41 etcetera beginning in 38 are the allegations set forth in the bill of exceptions, that’s not evidentiary matter in the sense of a record made at that time. These are in the nature of allegations that would appear in a compliant.
Potter Stewart: If I may suggests, it seems to me what they are -- they are the bill of exceptions, isn't this what the Supreme --
G. Garland Lyell, Jr.: Yes.
Speaker: Court of Mississippi decides to repeal upon?
G. Garland Lyell, Jr.: They have all of it in the record --
Speaker: Yes. I mean, they have the bill of exceptions, do they not?
G. Garland Lyell, Jr.: I pursue it was in and I suppose the Court --
Speaker: And I gather that these are the exceptions which were taken to the proceedings, isn’t that right?
G. Garland Lyell, Jr.: I'm sure that was in the record of Supreme Court Your Honor.
Speaker: Yes.
Warren E. Burger: Well, my point counsel --
G. Garland Lyell, Jr.: Let me say --
Hugo L. Black: In Alabama --
G. Garland Lyell, Jr.: Sir?
Hugo L. Black: I think there is some similarity between Mississippi and Alabama proceedings. If you have an exception in Alabama and I think it is in Mississippi, the statements of the facts tested to by the judge or exemplified as being the truth of what appeared as shown in the bill of exceptions?
G. Garland Lyell, Jr.: Well in Mississippi, you can get it two ways up. You take the bill of exceptions and someone transpires in the courtroom which is not taken down by the Court reporter.
Hugo L. Black: Because some of them are not there?
G. Garland Lyell, Jr.: And some things that are not there --
Hugo L. Black: But what about those report that that is there and accepted as the bill of exceptions?
G. Garland Lyell, Jr.: The judge -- prepare the bill of exceptions, the judge if he agrees that those are transpired, he will sign it.
Hugo L. Black: And then --
G. Garland Lyell, Jr.: And if he refuses to sign it, you can get two members of the bar who are present in the Court to sign it and then --
Hugo L. Black: That’s what you call a bystanders bill of exceptions.
G. Garland Lyell, Jr.: Yes.
Hugo L. Black: But here, you have a bill of exceptions appearing to us as being signed and being the bill of exceptions which states the facts that we should accept these facts, isn’t that right?
G. Garland Lyell, Jr.: Well, bill of exception that for what --
Warren E. Burger: What signatures -- what signatures appear on -- well, if I'm reading the correct document on page 44, you have three lawyers for Johnson have signed this petition and then the clerk of the Court had certified that this is the true and certified copy of what the lawyers have filed?
Potter Stewart: That’s explain on page 43 an item in paragraph 15 under your statute of that two lawyers present in the Court as you told us to sign the bill of exceptions and he meant that the judge does not or will not and they sign it, and that’s the bill of exceptions.
William J. Brennan, Jr.: That’s what happened here, technically.
Potter Stewart: Paragraph 15.
William J. Brennan, Jr.: Paragraph on the conclusion it says that Judge Perry refused to sign it and therefore the alternative of having two lawyers who were present to sign it, was adopted, was it?
G. Garland Lyell, Jr.: Well, I still get back to the proposition if the Court please that since this was a direct contempt in the premises of the Court which I must accept to the fact, because there was never been any denial or they have attempted to deny anything and any document that was filed or any argument that was made, I think in that respect, the Supreme Court of Mississippi could accept the trial judge’s statement as to what transpired. But it seems to me it simply gets back to this and how can this man complain when Judge Perry could have summarily put this 30 days on him right then and there. But he gets it two years later and as fully reviewed by the Supreme Court how can he complain?
William J. Brennan, Jr.: Well, I suppose he could complain if he never had a chance to deny it and he says, he never said it.
William J. Brennan, Jr.: Well, --
William J. Brennan, Jr.: He never had a chance to say that. You hold premises that the judge in fact heard it and that he didn’t did say it.
G. Garland Lyell, Jr.: My premise is this Mr. Justice Brennan that while on that he heard it and he said he heard it but if he heard it, it was direct. If he did not he hear it, it was constructed.
William J. Brennan, Jr.: Yes, but I gather whether direct or indirect, there was no contempt unless he said --
G. Garland Lyell, Jr.: Unless he said it.
William J. Brennan, Jr.: -- what he was accused to say.
G. Garland Lyell, Jr.: And have contumacious --
William J. Brennan, Jr.: And I gather he saying, I never have the chance to be heard or on whether I've said it or not?
G. Garland Lyell, Jr.: Well, they never. I can only get back this, they never even intimated that this event did not transpire.
Warren E. Burger: Counsel in the appendix or anywhere else, do we have any record, any account of what took place when Johnson failed to appear in response to the first order to show cause as you said, he failed to appear?
G. Garland Lyell, Jr.: (Inaudible)
Warren E. Burger: Would the failure to appear in response to in order to show cause at a fixed time and place, be in itself a contempt under Mississippi law?
G. Garland Lyell, Jr.: Would it be what, sir?
Warren E. Burger: Would that in itself be a contempt, the failure to appear in response to an order?
Potter Stewart: What happened was there was a petition for removal in the District Court in response to the first order to show cause, was there not? To the federal court, do I misunderstand that?
G. Garland Lyell, Jr.: I understood that. From my understanding, that’s correct.
Potter Stewart: That’s what happened and that could hardly be contemptuous --
G. Garland Lyell, Jr.: It was remanded. No sir.
Potter Stewart: No. It was a petition to remove the case to the United States District Court and the Court held that petition for a matter of several months as I understand it. And has been added it to the state judge and there followed the second order to show cause, wasn’t that it? And then, they came to the Court in response to that and according to that what this record shows, they asked for a hearing and they were denied a hearing. Now, aren't those facts and if not, what are they?
G. Garland Lyell, Jr.: Well, I remove the first one to the federal court.
William J. Brennan, Jr.: Well, --
G. Garland Lyell, Jr.: Why not defend yourself, Your Honor.
Speaker: You wouldn’t, I gather is contempt to remove his --
G. Garland Lyell, Jr.: When he asked such a complete review by the State Supreme Court on any conviction contempt and to say on whether that type of statute is unique in Mississippi or wide spread but to me it’s --
Thurgood Marshall: But if you go and say that they could not consider disqualification on the trial judge where it's not in his presence. As if Mississippi Supreme Court is correct.
G. Garland Lyell, Jr.: Yes. Well, I think.
Thurgood Marshall: Where as if it had been tried before another judge, you could have petitioned the Court and sought to disqualify?
G. Garland Lyell, Jr.: Now, that’s -- that’s what it said. Yes sir.
Thurgood Marshall: Well, isn’t that additional reason, why it should have gone to another judge?
G. Garland Lyell, Jr.: Well, as I say Mr. Justice Marshall, we all have a different ways of doing things and I think if this have been transpired, he should have been summarily punished but I still I think he was better off when given an opportunity. And with the sheriff, the judge could’ve said, “Mr. Sheriff, take this man outside and (Inaudible) contempt take him up to the jail. He didn’t do that, he gave him a show cause hearing, an opportunity and he didn’t take it back. Then he removed at federal court.
Thurgood Marshall: What about a show cause hearing that says you can’t say anything?
G. Garland Lyell, Jr.: He didn’t say it that first show cause hearing --
Thurgood Marshall: Oh, I don’t know, what happened to the first hearing?
G. Garland Lyell, Jr.: They removed it at the federal court.
Thurgood Marshall: Well, I mean, we don’t know what happened to the first hearing.
G. Garland Lyell, Jr.: Nothing because this petitioner removed the thing to the federal court.
Thurgood Marshall: Which he had a perfect right to do.
G. Garland Lyell, Jr.: A perfect right to do it but they had perfectly proceeded to file in the state courts.
Warren E. Burger: You have anything further counsel?
Stephen W. Porter: No, Your Honor.
Warren E. Burger: Very well. Thank you, Mr. Porter. Thank you, Mr. Lyell. The case is submitted.