Ungar v. Sarafite/Dissent Goldberg

Mr. Justice GOLDBERG, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.

I agree with my Brother DOUGLAS that due process of law requires that this contempt be tried before a different judge.

This Court has recognized that the power of a judge to impose punishment for criminal contempt without notice or hearing is:

'capable of grave abuses, and for that reason (the Court has     never given any) encouragement to its expansion beyond the      suppression and punishment of the court-disrupting misconduct      which alone justified its exercise.' In re Oliver, 333 U.S.      257, 274, 68 S.Ct. 499, 508, 92 L.Ed. 682.

The Court has also 'marked the limits of contempt authority in general as being 'the least possible power adequate to the end proposed." Ibid., quoting Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242.

I would hold, therefore, that the Constitution forbids a judge to impose punishment for such contempt without notice or hearing, except when (1) the contempt creates such "an open threat to the orderly procedure of the court * *  * (that if) not instantly suppressed and punished, demoralization of the court's authority will follow," In re Oliver, supra, at 275 of 333 U.S., at 508 of 68 S.Ct., 92 L.Ed. 682, quoting Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767, and when (2) 'no explanation could mitigate (contemner's) offence, or disprove the fact that he had committed such contempt of (the court's) authority and dignity as deserved instant punishment.' Ex parte Terry, 128 U.S. 289, 310, 9 S.Ct. 77, 81, 32 L.Ed. 405.

The power to punish in so summary a fashion is, as the New York Court of Appeals recognized, fraught with danger, particularly when the alleged contempt consists of a charge of wrongdoing against the very person sitting in judgment of the contempt.

Mr. Justice DOUGLAS has convincingly demonstrated that the contempt charged here was not such an open threat to the orderly procedure of the court as to necessitate instant punishment, that an explanation or the introduction of evidence could have mitigated or disproved the offense, and that it consisted essentially of a charge of wrongdoing against the very person sitting in judgment of the contempt.

I conclude, therefore, that this contempt could not constitutionally have been tried summarily, and that it should have been tried before a different judge.