United States v. Railroad Barnett/Dissent Goldberg

Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.

In response to the certified question, I would answer that defendants have both a statutory and a constitutional right to have their case tried by a jury.

Defendants claim that 62 Stat. 844, 18 U.S.C. § 3691, entitles them to a jury trial in this case. That statute provides in relevant part that 'the accused, upon demand therefor, shall be entitled to trial by a jury' whenever the alleged contempt 'shall consist in willful disobedience of any lawful writ, process, order, rule, decree, or command of any district court of the United States by doing or omitting any act or thing in violation thereof, and the act or thing done or omitted also constitutes a criminal offense under any Act of Congress * *  * ,' except if the alleged contempt is 'committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the Unit d States.' The statutory right to a jury trial thus turns on three essential factors: (1) the source of the order; (2) the nature of the alleged violation; and (3) the character of the party that 'brought or prosecuted' the 'suit or action.' I conclude for the reasons stated below that the District Court was the source of the basic order in this case; that the nature of the alleged violation would make it a criminal offense under 74 Stat. 86, 18 U.S.C. (Supp. IV) § 1509; and that the 'suit or action' in the case was brought and prosecuted not by the United States, but by James Meredith, a private party. It follows that defendants have a statutory right to be tried for their alleged contempt by a jury of their peers.

1. The Source of the Order.

The show-cause order entered by the Court of Appeals on January 4, 1963, specified three earlier orders which defendants allegedly violated. The acts committed were alleged to be 'for the purpose of preventing compliance with this Court's (the Court of Appeals') order of July 28, 1962, and of the similar order of the United States District Court for the Southern District of Mississippi, entered on September 13, 1962, and were in wilful disobedience and defiance of the temporary restraining order of this Court (the Court of Appeals) entered on September 25, 1962.' A brief analysis of the background and content of each of these three orders is necessary to an understanding of the problem.

After James Meredith was denied admission to the University of Mississippi, he filed suit in the United States District Court for the Southern District of Mississippi, which denied the requested relief. On appeal, the United States Court of Appeals reversed the judgment and directed the District Court to order Meredith's admission. The mandate of the Court of Appeals was then stayed by a single judge of that court. The Court of Appeals immediately recalled its mandate, issued a new one explicitly directing the District Court forthwith to issue a permanent injunction compelling Meredith's admission to the University, and vacated the stay granted by the single judge. On July 28, 1962, the Court of Appeals, in aid of its appellate jurisdiction, issued its own preliminary injunction, '(p)ending such time as the District Court has issued and enforced the orders herein required and until such time as there has been full and actual compliance in good faith with each and all of said orders * *  * .' The Court of Appeals' preliminary injunction, which ran against 'the *  *  * (defendants,) all persons acting in concert with them, as well as any and all persons having knowledge of the decree *  *  * ,' was substantially the same as the permanent injunction which the Court of Appeals directed the District Court to enter. A single judge again stayed the mandates of the Court of Appeals, but on September 10, 1962, MR. JUSTICE BLACK, after consultation with the members of this Court, vacated all the stays issued by the single judge of the Court of Appeals.

Three days later, on September 13, 1962, the District Court, declaring that the 'matter is now before (it) by virtue of the Mandate of the United States Court of Appeals for the Fifth Circuit and the Mandate of MR. JUSTICE BLACK * *  * ,' issued a permanent injunction as directed by the Court of Appeals. This injunction was substantially identical with the preliminary injunction issued by the Court of Appeals on July 28, 1962.

At this juncture, therefore, two substantially id ntical injunctions appear to have been in effect: the 'preliminary' one issued by the Court of Appeals on July 28, 1962; and the 'permanent' one issued by the District Court on September 13, pursuant to the mandate of the Court of Appeals. The show-cause order subsequently entered against defendants by the Court of Appeals alleges separate violations of both injunctions. It seems clear, however, that any act allegedly committed by contemners in violation of the preliminary injunction would necessarily have violated the permanent injunction as well. This Court has held that a single act or course of conduct alleged to be in violation of two identical orders cannot be punished as two separate contempts. See Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95. Also see United States v. Costello, 2 Cir., 198 F.2d 200. This is no less true if the two orders were issued by different federal courts, especially if the earlier order was designated 'preliminary' and the later one 'permanent.' I would conclude therefore that, at least for purposes of a contempt conviction, the preliminary injunction entered by the Court of Appeals on July 28, 1962, to protect its appellate jurisdiction, was superseded by the substantially identical permanent injunction entered by the District Court on September 13, pursuant to the mandates of the Court of Appeals and MR. JUSTICE BLACK.

It is argued, however, that the preliminary injunction entered by the Court of Appeals on July 28, 1962, explicitly applied until James Meredith's 'actual admission' to the University. This part of the Court of Appeals' order must be construed in the context of the other orders entered on July 28, 1962, and the immediately preceding days. During this time the Court of Appeals was attempting finally and definitively to secure James Meredith's admission to the University. To accomplish this, it concluded, correctly I think, that there should be no lapse in the operation of the substantive terms of the injunction until the desired end had been achieved. Therefore, the Court of Appeals announced the terms of the injunction which would be in effect from that time until Meredith's admission was secured. It also issued a mandate requiring the District Court to incorporate these terms into a permanent injunction. The operative effect of these orders was that, in the event that the District Court's permanent injunction failed fully to incorporate the substantive terms of the Court of Appeals' preliminary injunction, then the unincorporated provision would remain in effect as an order of the Court of Appeals. But in the event that the District Court's permanent injunction fully incorporated the substantive terms of the Court of Appeals' preliminary injunction, then the injunction would become an order of the District Court. In this way, the Court of Appeals was assured that each of the substantive terms of its injunction would remain in effect from the time of the order until Meredith's admission and that none of the terms of the injunction would simultaneously be incorporated in orders of two courts. The District Court's permanent injunction did in fact incorporate all the substantive terms of the Court of Appeals' preliminary injunction. Thus so long as it remained in effect, as it did until Meredith's admission, it necessarily superseded the Court of Appeals' preliminary injunction. It follows from this, that defendants' acts which allegedly violated both the Court of Appeals' order of July 28, 1962, and the District Court's order of September 13, 1962, must be deemed only alleged violations of the District Court's permanent injunction of September 13, 1962. Any allegation of contempt of the Court of Appeals' preliminary injunction of July 28, 1962, must be deemed without legal significance for purposes of this proceeding.

The third and last order which defendants were accused of violating was 'the temporary restraining order of this Court (the Court of Appeals) entered on September 25, 1962.' That order specifi ally named defendant Barnett and others and temporarily restrained them 'and all persons in active concert or participation with them' from 'interfering with or obstructing' compliance with the Court of Appeals' order of July 28, 1962, and with the District Court's order of September 13, 1962. It also restrained them from committing other designated acts which were not specifically covered by the earlier orders (e.g., instituting civil or criminal actions against Meredith). Defendants, however, were not accused in the show-cause order of violating the entire temporary restraining order of September 25, 1962, but only that part of the order restraining them 'from interfering with or obstructing the enjoyment of rights or the performance of duties under the order of this Court (the Court of Appeals) of July 28, 1962, in the case of Meredith v. Fair, and a similar order of the District Court for the Southern District of Mississippi in that case * *  * .' Each specified violation in the show-cause order related to the permanent injunction of September 13, 1962, and the preliminary injunction of July 28, 1962. Defendants, in their notice of 'the essential facts constituting the criminal contempt charged,' Rule 42(b), Fed.Rules Crim.Proc., received no notice that they were being charged with violating any provisions of the Court of Appeals' temporary restraining order of September 25, 1962, other than those derived directly from the earlier orders.

With respect to the alleged contempt here charged, therefore, the Court of Appeals' temporary restraining order added nothing to the earlier orders, except to name specifically one of the defendants. But this was obviously unnecessary, as the Government must concede. Governor Barnett must be deemed included within the coverage of the earlier orders enjoining 'all persons acting in concert with (the named defendants), as well as any and all persons having knowledge of the decree * *  * .' Were this not so, Governor Barnett's alleged contempts of the earlier orders would have to fall, as would Lieutenant Governor Johnson's alleged contempt of all the orders he is accused of violating, since he was not specifically named in any of them.

Thus, unless form is to prevail over sustance, we must conclude that there has been no independently alleged violation of the Court of Appeals' temporary restraining order of September 25, 1962. That order therefore has no bearing on whether defendants have a statutory right to a jury trial.

In sum, therefore, I conclude that the District Court's permanent injunction of September 13, 1962, superseded and replaced the Court of Appeals' substantially identical preliminary injunction of July 28, 1962, and that the Court of Appeals' temporary restraining order of September 25, 1962, as it is relevant here, added nothing to the earlier orders. Thus, although the show-cause order alleged contempts of two orders of the Court of Appeals and one order of the District Court, I would hold that for purposes of deciding whether 18 U.S.C. § 3691 is applicable, defendants have been charged with violating only one order, which was issued by a 'district court of the United States.'

Even if I were to agree with the Court, however, that defendants were effectively charged with contempt of all three orders, my conclusion would remain the same. The statute does not say in negative terms that whenever the alleged contempt 'shall consist in willful disobedience of any lawful * *  * order' of any Court of Appeals, the accused shall not be entitled to a trial by a jury. It says in affirmative terms that whenever the alleged contempt 'shall consist in willful disobedience of any lawful * *  * order *  *  * of any district court *  *  *, the accused *  *  * shall be entitled to trial by a jury.' (Emphasis added.) Defendants here are charged with disobedience of an order of a District Court. The fact that they are charged also wi h disobedience of orders of a Court of Appeals should not defeat their statutory right to a jury trial.

The second relevant question in deciding whether defendants have a statutory right to a jury trial is whether 'the act or thing done or omitted also constitutes a criminal offense under any Act of Congress * *  * .' 18 U.S.C. § 3691. This is not in dispute here. The question certified by the Court of Appeals specified that 'the acts charged as constituting the alleged disobedience were of a character as to constitute also a criminal offense under an Act of Congress * *  * .' While the Court is not bound by the facts assumed in a certified question, it is clear here that contemners' alleged acts would constitute violations of 18 U.S.C. (Supp. IV) § 1509. The Government does not dispute this.

3. The Character of the Party Which Brought the Suit or Action.

The third and final question in deciding whether defendants have a statutory right to a jury trial is whether the alleged contempt was 'committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.' 18 U.S.C. § 3691.

The Government contends that it entered the case on September 18, 1962, and that the Court of Appeals' temporary restraining order of September 25, 1962, which was issued on its motion, was thus an order entered in a suit or 'action brought or prosecuted in the name of, or on behalf of, the United States.' My previous conclusion-that the Court of Appeals' order of September 25, 1962, was of no legal significance so far as the charged contempts are concerned-provides a complete answer to the Government's contention. If I am correct in concluding that the only operative order was the permanent injunction entered by the District Court on September 13, 1962, at a time when no one claims the United States had any formal interest in the case, then it necessarily follows that defendants are charged with contempt of an order entered in a suit brought in the name of, and on behalf of, a private party, and not the United States.

Even assuming, arguendo, that the Court of Appeals' order of September 25, 1962, had some independent legal significance, I could not conclude, as the Court does, that it was 'entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.' The Court of Appeals' order authorizing the United States to participate in the case, authorized it to participate 'as amicus curiae,' not as a party. It also authorized the United States 'to submit pleadings, evidence, arguments and briefs and to initiate such further proceedings, including proceedings for injunctive relief and proceedings for contempt of court * *  * .' The Court of Appeals entered the temporary restraining order of September 25, 1962, on motion made by the United States pursuant to this authorization. But the applicable statute does not exempt from the protection of a jury trial 'contempts committed in disobedience of any lawful * *  * order *  *  * entered' upon motion by the United States. It only exempts contempts committed in disobedience of 'any lawful * *  * order *  *  * entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.' (Emphasis added.) The touchstone of the exemption is thus the party who brought or prosecuted the basic suit or action, not the party upon whose motion the violated order was entered. This reading of the statute is buttressed by the repea ed references in the congressional debates to suits where the United States is a 'party.' See, e.g., 48 Cong.Rec. 8780, 8785; 51 Cong.Rec. 9672, 14413, 15946.

The Government contends, however, that it was, in effect, a party to the suit, because of:

'(t)he critical fact * *  * that in instituting and      prosecuting those proceedings the United States was asserting      an interest of its own separate and distinct from that of the      plaintiff in the original action.

The interest of the United States was the sovereign's     independent concern for preserving the integrity of its      courts and vindicating their authority.'

But this alone does not convert the United States from an amicus curiae into a party. A traditional function of an amicus is to assert 'an interest of its own separate and distinct from that of the (parties),' whether that interest be private or public. It is 'customary for those whose rights (depend) on the outcome of cases * *  * to file briefs amicus curiae, in order to protect their own interests.' Wiener, Briefing and Arguing Federal Appeals (1961), 269. This Court has recognized the power of federal courts to appoint 'amici to represent the public interest in the administration of justice.' Universal Oil Products Co. v. Root Rfg. Co., 328 U.S. 575, 581, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447. In this case the Government was serving essentially in that capacity. Its ultimate interest-securing compliance with the courts' orders requiring Meredith's admission-was identical with the interest of the private plaintiff, and it was invited by the court to render necessary aid in that direction.

The Government's argument thus goes too far. 'After all, a federal court can always call on law officers of the United States to serve as amici' 'to represent the public interest in the administration of justice.' Ibid. The Government has 'an interest of its own' in vindicating its authority in every instance where the orders of its courts are violated, no matter how private or insignificant the suit. (This is evidenced by the fact that criminal contempt proceedings are typically prosecuted by the sovereign, not the private litigant.) In this respect every criminal contempt proceeding is actually (or at least potentially) a 'suit or action brought or prosecuted in the name of, or on behalf of, the United States.' Such a reading would, of course, make the statute a dead letter. It would bestow no 'right' to a jury trial at all.

We are dealing here with a remedial statute broadly designed to afford the right to a jury trial in all but a narrowly limited category of contempts constituting violations of criminal statutes. Accordingly, the statute should be construed to effectuate its basic purpose, and its exemptions should not be unduly expanded by judicial construction. The Government concedes that the precise problem involved here-the United States entering a private litigation as amicus curiae and obtaining the order allegedly violated-'did not arise in the course of the legislative history.' In my view, therefore, since a reading of the statute inclines against applying the exception here, and since there are no countervailing policy considerations, the statutory exemption should be read so as not to apply to the defendants.

The foregoing satisfies me that the alleged contempt was of an order of a District Court; that the alleged acts also constitute a criminal violation under an Act of Congress; that the relevant order was not entered in a suit or action brought or prosecuted in the name of, or on behalf of, the United States; and that, accordingly, defendants are entitled to a jury trial pursuant to 18 U.S.C. § 3691. Insofar as there may be lingering doubts concerning the application of that statute to the circumstances here, I would resolve those doubts in favor of the statutory right to a jury trial in order to avoid the grave constitutional questions inherent in the practice of punishing contempts such as the one here charged without trial by jury. Since the Court has not acce ted this statutory analysis, I must consider these constitutional questions.

B. THE CONSTITUTIONAL RIGHT TO A JURY TRIAL.

The Court, in denying defendants' constitutional claim to a jury trial, rests on the history of criminal contempts relied on in its past decisions. The most recent of these decisions is Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672, which was decided by a closely divided Court. The Court said:

'The principle that criminal contempts of court are not     required to be tried by a jury under Article III or the Sixth      Amendment is firmly rooted in our traditions.' Id., 356 U.S.,      at 187, 78 S.Ct., at 644, 2 L.Ed.2d 672.

'Against this historical background (of the power to punish     criminal contempts summarily at the time of the      Constitution), this Court has never deviated from the view      that the constitutional guarantee of trial by jury for      'crimes' and 'criminal prosecutions' was not intended to      reach to criminal contempts.' Id., 356 U.S., at 186, 78      S.Ct., at 644, 2 L.Ed.2d 672.

A review of the original sources convinces me, however, that the history relied on by the decisions of this Court does not justify the relatively recent practice of imposing serious punishment for criminal contempts without a trial by jury. My research, which is confirmed by the authorities cited in the Appendix to the opinion of the Court, suggests the following explanation as to why criminal contempts were generally tried without a jury at the time of the Constitution: the penalties then authorized and imposed for criminal contempts were generally minor; and the courts were authorized to impose minor criminal penalties without a trial by jury for a variety of trivial offenses including, but not limited to, criminal contempts.

1. Criminal Contempts at About the Time of the Constitution.

In 1821, this Court recognized that there were 'known and acknowledged limits of fine and imprisonment' for criminal contempt. Anderson v. Dunn, 6 Wheat. 204, 228, 5 L.Ed. 242. What these limits were at about the time of the Constitution can best be derived from the contemporary statutory and case law.

When the Bill of Rights was ratified, at least five of the original 13 States had specific statutory limitations on the punishment which could be imposed summarily for criminal contempts. The Connecticut statute permitting summary punishment for certain types of contempts contained a proviso '(t)hat no single minister of justice shall inflict any other punishment (for criminal contempt than) * *  * putting them in the stocks, there to sit not exceeding two hours; or imposing a fine, not exceeding five dollars.' (Emphasis in original.) The Delaware statute permitted a contemner to 'be fined in any sum not exceeding Five Pounds'; it did not permit imprisonment for criminal contempt. The Maryland statute permitted the court to hold the contemner 'in close custody until the said process, rule or order, shall be fully performed * *  * ' (civil contempt), but it permitted no punishment 'exceeding ten pounds current money.' The New Hampshire provision permitted imprisonment for contempt not exceeding 10 days and a fine 'not to exceed ten pounds.' The South Carolina statute permitted a fine not exceeding 10 pounds for any contempt 'by word or gesture,' and a fine 'at the discretion of the said court,' for anyone who shall 'strike or use any violence in the said courts'; it did not permit imprisonment.

Within a short time after the ratification of the Bill of Rights other States enacted statutes containing specific limitations on the punishments which could be imposed summarily for criminal contempts. These statutes, which appear to be codifications of existing practices and court decisions rather than newly created legislative limitations, shed additional light on the practice at about the time of the Constitution.

The New Jersey statute permitted a contemner to be punished by a fine 'not exceeding fifty dollars.' The Kentucky statute specified that '(n)o court or judge shall, for any contempt against such court or judge, pass judgment for, decree, order or inflict, or cause to be inflicted, any fine exceeding the sum of ten pounds, nor any imprisonment exceeding one day, without the trial by jury to assess the quantity of such fine, and determine the duration of such imprisonment.' The Pennsylvania statute permitted an unspecified fine and if the contemner 'shall be unable to pay such fine, such person may be committed to prison by the court for any time not exceeding three months.' The New York statute permitted a maximum fine of $250 and imprisonment for 30 days in summary proceedings for criminal contempts.

The Alabama criminal contempt statute declared that:

'whereas, the trial by jury in all penal, as well as criminal     cases, is both a safe and adequate mode of investigation and      decision, and should only be suspended in cases of absolute      necessity. Be it enacted, that no court shall, for any     contempt against such court, *  *  * inflict *  *  * any fine      exceeding the sum of twenty dollars, nor any imprisonment      exceeding twenty-four hours, without the trial by jury, to      assess the amount of such fine, and determine the duration of      such imprisonment.'

The Virginia statute was quite detailed. It contained the following proviso:

'That no court shall, without the intervention of a jury, for     any such contempt of misbehaviour in the presence of the      court, or so near thereto as to obstruct or interrupt the      administration of justice therein, impose any fine on any person or persons, exceeding      fifty  ollars, or commit him, her or them, for a longer      period than ten days: And provided, That in any case of      aggravated contempt *  *  *, the court may impannel a jury,      without any indictment, information or pleadings, in a      summary manner, to ascertain the amount of fine or term of      imprisonment, proper to be inflicted for such offence, and      may impose the fine or imprisonment ascertained by the jury      in manner aforesaid.'

The laws of other States similarly limited the maximum penalties which could be imposed summarily for criminal contempts.

The available evidence of the practice in criminal contempt cases also suggests that punishments were trivial. This practice was described by Chief Justice Kent in 1809 as follows: 'There is no such thing as an abuse of this power in modern times. The case probably is not to be found. An alarm cannot be excited at its existence, in the extent now laid down. * *  * The tendency of the times, is rather to induce the courts to relax, than increase in the severity of their ancient discipline, to exercise their power over contempts with extreme moderation *  *  * .' In the case of Yates, 4 Johnson's Rep. (N.Y.1809) 317, 375-376. And, in 1916, the Supreme Court of Iowa summarized a century and a quarter of practice in criminal contempt cases in the following terms:

'The authorities may be searched in vain for any precedent     under our constitutional form of government holding it to be      in the power of a state to clothe its courts with authority      to visit infamous punishment upon any person for contempt, or      in any proceeding whatever other than the orderly process of      trial *  *  * .' Flannagan v. Jepson, 177 Iowa 393, 400, 158      N.W. 641, 643-644, L.R.A.1918E, 548.

2. Petty Offenses at About the Time of the Constitution.

'At the time of the adoption of the Constitution there were     numerous offenses, commonly described as 'petty,' which were      tried summarily without a jury, by justices of the peace in      England, and by police magistrates or corresponding judicial      officers in the Colonies, and punished by commitment to jail,      a workhouse, or a house of correction.' District of Columbia      v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 662, 81 L.Ed. 843.

New Jersey statutes, for example, permitted trial by a judge for offenses such as 'Profanely swearing' (punishable by a fine of 'one half of a dollar,' four hours in the stocks, or four days in the 'common gaol'); 'excessive use of spirituous, vinous, or other strong liquor' (fine of one dollar, four hours in the stocks, or four days in 'gaol'); and disorderly conduct (three months in the workhouse). In New York, trial by jury was not required for offenses such as unlicensed practice by a physician (fine of five pounds); offering copper coins of known inferior quality or weight (fine of six pounds or five times the value of the coins, whichever is less); 'drunkenness or swearing' (fine of three shillings or four hours in the stocks); and false pretenses (imprisonment for six months). Maryland statutes permitted trial by a judge for offenses such as refusal by the mother of a bastard child to 'discover' the father (fine of 30 shillings), and disorderly conduct (three months in the workhouse). Virginia permitted summary punishment for offenses ranging from improper issuing of notes (fine of 25 shillings) to disorderly conduct (20 lashes and three months' imprisonment).

This history has led the Court to conclude that 'the intent (of the Framers) was to exclude from the constitutional requirement of a jury the trial of petty criminal offenses.' Schick v. United States, 195 U.S. 65, 70, 24 S.Ct. 826, 827, 49 L.Ed. 99. It has similarly led the Court to conclude that '(e)xcept in that class or grade of offences called petty offences * *  * the guarantee of an impartial jury to the accused in a criminal prosecution *  *  * secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged,' Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223, and that 'the severity of the penalty' must be considered in determining whether a violation of law, 'in other respects trivial and not a crime at common law, must be deemed so serious as to be comparable with common-law crimes, and thus to entitle the accused to the benefit of a jury trial prescribed by the Constitution.' District of Columbia v. Clawans, 300 U.S. 617, 625, 57 S.Ct. 660, 662, 81 L.Ed. 843.

There has been a dramatic increase in recent years in the severity of the punishment imposed in the federal courts without trial by jury for criminal contempt. For example, in Green v. United States, supra, and Collins v. United States, 9 Cir., 269 F.2d 745, sentences of imprisonment for three years were imposed; in Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028, a sentence of imprisonment for 18 months was imposed; in Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609, a sentence of imprisonment for 15 months was imposed; in Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415, a sentence of imprisonment for one year and one day was imposed; and in Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989, a sentence of imprisonment for one year was imposed.

4. Historical Conclusions.

The available evidence seems to indicate that (a) at the time of the Constitution criminal contempts triable without a jury were generally punishable by trivial penalties, and that (b) at the time of the Constitution all types of 'petty' offenses punishable by trivial penalties were generally triable without a jury. This history justifies the imposition without trial by jury of no more than trivial penalties for criminal contempts. The Court, in light of the history reviewed here and in the Appendix to the opinion of the Court, has failed sufficiently to take into account the possibility that one significant reason why criminal contempts were tried without a jury at the time of the Constitution was because they were deemed a species of petty offense punishable by trivial penalties. Since criminal contempts, as they are now punished, can no longer be deemed a species of petty offense punishable by trivial penalties, defendants' constitutional claim to trial by jury should not be denied on the authority of the history of criminal contempt at the time of the Constitution nor on the authority of the past decisions of this Court which relied on that history. Their claim should be evaluated by analyzing the real nature of criminal contempts and applying the policy of the constitutional requirement of trial by jury in 'allcrimes' and 'all criminal prosecutions.'

5. The Nature of Criminal Contempts and the Policy of Trial by Jury.

I wish to make it clear that I am not here concerned with, nor do I question, the power of the courts to compel compliance with their lawful orders by the imposition of conditional punishment-commonly referred to as civil contempt. In such cases, it may be said that 'the defendant carries the keys to freedom in his willingness to comply with the court's directive. * *  * ' Nor am I here concerned with the imposition of the trivial punishments traditionally deemed sufficient for maintaining order in the courtroom. Cf. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841. I am concerned solely with the imposition, without trial by jury, of fixed nontrivial punishments after compliance with the court's order has been secured.

Thus limited, criminal contempts are not essentially different from other 'crimes' or 'criminal prosecutions.' In each case punishment is imposed for a past violation of a mandate of a coordinate organ of government: criminal contempt involves punishment for violation of an order of a court; 'crime' involves punishment for violation of a statute enacted by a legislature. I can see no greater need for certain and prompt punishment for the former than for the latter.

It may be true that a judge can dispose of a charge of criminal contempt, or any other criminal charge, more expeditiously and more cheaply than a jury.

'But such trifling economies as may result have not generally     been thought sufficient reason for abandoning our great      constitutional safeguards aimed at protecting freedom and      other basic human rights of incalculable value. Cheap, easy     convictions were not the primary concern of those who adopted      the Constitution and the Bill of Rights. Every procedural     safeguard they established purposely made it more difficult      for the Government to convict those it accused of crimes. On     their scale of values justice occupied at least as high a      position as economy.' Green v. United States, supra, 356 U.S.      at 216, 78 S.Ct. at 660, 2 L.Ed.2d 672.

Nor are criminal contempts substantially different from other crimes when measured by the 'tests traditionally applied to determine whether (a given sanction) is penal or regulatory in character * *  * .' Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644. In the Mendoza-Martinez case, the tests were enumerated in the following terms:

'Whether the sanction involves an affirmative disability or     restraint, whether it has historically been regarded as a      punishment, whether it comes into play only on a finding of      scienter, whether its operation will promote the traditional      aims of punishment-retribution and deterrence, whether the      behavior to which it applies is already a crime, whether an      alternative purpose to which it may rationally be connected      is assignable for it, and whether it appears excessive in      relation to the alternative purpose assigned *  *  * .' Id., 372      U.S. at 168-169, 83 S.Ct  at 567, 568, 9 L.Ed.2d 644.

Criminal contempt, when punished by a nontrivial penalty, certainly 'involves an affirmative disability or restraint' under any reasonable definition of these terms. The sanction imposed for criminal contempt has always been 'regarded as a punishment' designed to deter future defiances of the court's authority and to vindicate its dignity. No 'alternative purpose' has been suggested to justify its existence. Scienter is generally required to support a charge of criminal contempt. And the behavior to which a charge of criminal contempt applies is generally 'already a crime.'

In my view, therefore, there is no justification, either in the history or policy of criminal contempt or in the history or policy of the Constitution, for treating criminal contempt differently from other 'crimes' or 'criminal prosecutions.' If a criminal contempt (or any other violation of law), is punishable only by a trivial penalty, then the Constitution does not require trial by jury. If a violation of law is punishable by a nontrivial penalty, then the Constitution does require trial by jury whether the violation is labeled criminal contempt or anything else.

C. APPLICATION OF THE CONSTITUTIONAL RULE TO THE FACTS OF THIS CASE.

It remains only to apply this conclusion to the facts here. Although the certified question does not specify the severity of the punishment which could be imposed upon the defendants if the allegations against them are proved, it would defy reality to assume that the contempt with which they are charged is a 'trivial' one punishable by a minor penalty. The Solicitor General of the United States described the nature of the contempt to this Court in oral argument in the following words:

'(T)he Governor and Lieutenant Governor of a State sought to     array the whole panoply of the State against a final      adjudication by the federal courts. The contempt with which     they are charged was rioting, loss of life, and the need for      federal troops to uphold the law of the land *  *  * .'

One judge in the Court of Appeals said: 'Never before has such a charge been brought by or in a Court of Appeals * *  * against either a state officer or a private citizen.' The certified question indicates that 'the acts charged as constituting the alleged disobedience were of a character as to constitute also a criminal offense *  *  * ,' punishable by imprisonment for a year. 18 U.S.C. (Supp. IV) § 1509. Another judge in the Court of Appeals said that: 'Respondents are charged with what amounts to a crime.' 330 F.2d, at 432. These indicia, taken together with the severity of the sanction imposed in the civil contempt case which grew out of the same conduct, compel the conclusion that the contempt here charged was not 'trivial.' It was extraordinarily serious, among the most serious in this Nation's history. If Green's contempt-jumping bail-was punishable by imprisonment for three years, and if Piemonte's contempt-refusal to answer a question before a grand jury-was punishable for imprisonment for a year and a half, it would be wholly unrealistic for us to assume that under the standards of punishment sanctioned by this Court in the past the present contempt may be characterized as a petty offense punishable by no more than a trivial penalty. For these reasons, I would answer the certified question in the affirmative and remand the case to the District Court so that the accused may be tried by a jury and receive at a trial all the safeguards which our Constitution affords a criminal defendant.

In sum, therefore, I conclude that defendants' trial should be by a jury. This would accord with the basis policy of Congress, that contempts which are also crimes should be tried by a jury. And it would accord with the fundamental policy of the Constitution, that contempts which are punishable as crimes must be tried by a jury.

I reject the Government's 'necessity' argument, that '(t)he independence of the federal courts * *  * would be seriously undermined if their orders could be nullified by an unsympathetic jury.' That is but another way of putting the oft-rejected assertion against trial by jury, that some guilty men may be acquitted. This possibility, however, is the price we have chosen to pay for our cherished liberties. 'The imperative necessity for safeguarding these rights * *  * under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action.' Kennedy v. Mendoza-Martinez, 372 U.S., at 165, 83 S.Ct., at 565, 9 L.Ed.2d 644. 'The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.' Ex parte Milligan, 4 Wall. 2, 120-121, 18 L.Ed. 281.

APPENDIX A TO OPINION OF MR. JUSTI E GOLDBERG, DISSENTING.

This Court having entered an order on September 18, 1962, in the case of James H. Meredith, et al. v. Charles Dickson Fair, et al., No. 19475, designating and authorizing the United States to appear and participate in that case as amicus curiae with the right to submit pleadings, evidence, arguments and briefs, and to initiate such further proceedings, including proceedings for injunctive relief, as might be appropriate in order to maintain and preserve the due administration of justice and the integrity of the judicial processes of the United States, and

The Attorney General having instituted, pursuant to this Court's order of September 18, 1962, an action in the name of and on behalf of the United States, as amicus curiae, which action was entitled United States v. State of Mississippi, et al., restraining the State of Mississippi and Ross R. Barnett, their agents, employees, officers, successors, and all persons in active concert or participation with them, from interfering with or obstructing the enjoyment of rights or the performance of duties under the order of this Court of July 28, 1962, in the case of Meredith v. Fair, and a similar order of the District Court for the Southern District of Mississippi in that case, requiring the enrollment of James H. Meredith at the University of Mississippi, and

This Court having ordered on November 15, 1962, that the Attorney General, and such attorneys in the Department of Justice as he may designate, be appointed to institute and prosecute criminal contempt proceedings against Ross R. Barnett and Paul B. Johnson, Jr., and

Probable cause having been made to appear from the application of the Attorney General filed December 21, 1962, in the name of and on behalf of the United States that on September 25, 1962, Ross R. Barnett, having been served with and having actual notice of this Court's temporary restraining order of September 25, 1962, wilfully prevented James H. Meredith from entering the offices of the Board of Trustees of the University of Mississippi in Jackson, Mississippi, and thereby deliberately prevented James H. Meredith from enrolling as a student in the University pursuant to this Court's order of July 28, 1962; that on September 26, 1962, Paul B. Johnson, Jr., acting under the authorization and direction of Ross R. Barnett, and as his agent and as an agent and officer of the State of Mississippi, and while having actual notice of the temporary restraining order of September 25, 1962, wilfully prevented James H. Meredith from entering the campus of the University of Mississippi in Oxford, Mississippi, and thereby deliberately prevented James H. Meredith from enrolling as a student in the University pursuant to the orders of this Court; that on September 27, 1962, Ross R. Barnett and Paul B. Johnson, Jr. Wilfully failed to take such measures as were necessary to maintain law and order upon the campus of the University of Mississippi and did, instead, direct and encourage certain members of the Mississippi Highway Safety Patrol, Sheriffs and deputy Sheriffs and other officials of the State of Mississippi to obstruct and prevent the entry of James H. Meredith upon the campus of the University that day; that on September 30, 1962, Ross R. Barnett, knowing of the planned entry of James H. Meredith upon the campus of the University of Mississippi, knowing that disorders and disturbances had attended and would attend such entry, and knowing that any failure of the Mississippi Highway Safety Patrol to take all possible measures for the maintenance of peace and order upon the campus could and would result in interferences with and obstructions to the carrying out of the Court's order of July 28, 1962, wilfully failed to exercise his responsibility, authority, and influence as Governor to maintain law and order upon the campus of the University of Mississippi; and that all of said acts, omissions and conduct of Ross R. Barnett and Paul B. Johnson, Jr., w re for the purpose of preventing compliance with this Court's order of July 28, 1962, and of the similar order of the United States District Court for the Southern District of Mississippi, entered on September 13, 1962, and were in wilful disobedience and defiance of the temporary restraining order of this Court entered on September 25, 1962,

IT IS ORDERED that Ross R. Barnett and Paul B. Johnson, Jr., appear before this Court in the courtroom of the United States Court of Appeals for the Fifth Circuit in New Orleans, Louisiana, on February 8, 1963, at 9:30 o'clock a.m., to show cause, if any they have, why they should not be held in criminal contempt, and should either of them at said time and place show such cause, either by pleading not guilty to the charges contained in the application of the United States, or by other means, he shall thereafter appear before this Court for hearing upon said charges at a time and place to be fixed by the Court.

This 4th day of January, 1963.

APPENDIX B TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING.

This Court on July 26, 1962 entered its opinion and judgment forthwith (1) vacating a stay issued herein by Judge Ben F. Cameron, July 18, 1962, (2) recalling its mandate issued herein July 17, 1962, (3) amending and reissuing its mandate, for the purpose of preventing an injustice, by ordering the District Court to issue forthwith an injunction against the defendants-appellees ordering the immediate admission of the plaintiff-appellant, James H. Meredith, to the University of Mississippi, (4) which opinion and judgment includes an order of injunction by this Court against the defendants-appellees herein.

Now therefore, the following injunctive order is issued:

Pending such time as the District Court has issued and enforced the orders herein required and until such time as there has been full and actual compliance in good faith with each and all of said orders by the actual admission of plaintiff-appellant to, and the continued attendance thereafter of the University of Mississippi on the same basis as other students who attend the University, the defendants, their servants, agents, employees, successors and assigns, and all persons acting in concert with them, as well as any and all persons having knowledge of the decree are expressly:

(1) Ordered to admit the plaintiff, James H. Meredith, to the University of Mississippi, on the same basis as other students at the University, under his applications heretofore filed, which are declared to be continuing applications, such admission to be immediate or, because of the second summer session having started, such admission to be in September, at Meredith's option, and without further registration.

(2) Prohibited from any act of discrimination relating to Meredith's admission and continued attendance, and is

(3) Ordered promptly to evaluate and approve Meredith's credits withot discrimination and on a reasonable basis in keeping wih the standards applicable to transfers to the University of Mississippi.

In aid of this Court's jurisdiction and in order to preserve the effectiveness of its judgment, this Court entered a preliminary injunction on June 12, 1962. The injunction was against Paul G. Alexander, Attorney for Hinds County, Mississippi, his agent, employees, successors, and all persons in active concert and participation with him and all persons who received notice of the issuance of the order, restraining and enjoining each and all of them from proceeding with the criminal action instituted against James H. Meredith in the Justice of the Peace Court of Hinds County, Justice District No. 5, or any other court of the State of Mississippi, charging that Meredith knowingly secured his registration as a voter in Hinds County but was a resident of Attala County, Mississippi. In further aid of this Court's jurisdiction and in order to preserve the continued effectiveness of its judgment and orders, the said preliminary injunction is continued against the same parties and all other parties having knowledge of this decree pending the final action of the United States Supreme Court if and when the defendants-appellees should apply for a writ of certiorari or for any other appropriate action in this cause by the United States Supreme Court.

It is further ordered that a copy of this order be served upon the defendants-appellees, through their attorneys, and upon Paul G. Alexander, County Attorney for Hinds County, Mississippi, and Joseph T. Patterson, Attorney General for the State of Mississippi.

Entered at New Orleans, Louisiana this 28th day of July, 1962.

United States District Judge APPENDIX C TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING.

DISTRICT COURT'S ORDER GRANTING PERMANENT INJUNCTION.

This matter is now before his Court by virtue of the Mandate of the United States Court of Appeals for the Fifth Circuit and the Mandate of Mr. Justice Black of September 10, 1962 setting aside all stays granted by Judge Ben F. Cameron and putting into effect the mandates of the Court of Appeals for the Fifth Circuit enjoining the Trustees and officials of the University of Mississippi from taking any steps to prevent enforcement of the mandates of the Court of Appeals for the Fifth Circuit, and this Court having now considered the mandates of the Court of Appeals for the Fifth Circuit of July 17, 1962, July 27, 1962 and its final order of August 4, 1962, and this Court having considered the mandate of July 17, 1962 wherein the Court of Appeals reversed the judgment of the District Court with directions to this Court to issue an injunction as prayed for in the complaint and by its mandate of July 27, 1962 ordered that the judgment of that Court issued as and for the mandate on July 17, 1962, be recalled and amended by making explicit the meaning that was implicit as expressed in its opinion dated June 25, 1962 and ordering that this Court 'forthwith grant all relief prayed for by the plaintiff and to issue forthwith a permanent injunction against each and all of the defendants-appellees, their servants, agents, employees, successors and assigns, and all persons acting in concert with them, as well as any and all persons having knowledge of the decree, enjoining and compelling each and all of them to admit the plaintiff-appellant, James H. Meredith, to the University of Mississippi under his applications heretofore filed, which are declared by us to be continuing applications. Such injunction shall in terms prevent and prohibit said defendants-appellees, or any of the classes of persons feferred to from excluding the plaintiff-appellant from admission to continued attendance at the University of Mississippi.'

And by its mandate of August 4, 1962 the Court of Appeals reaffirmed its orders of July 17, 1962 and July 27, 1962 in the following language: 'All of our orders of July 17, July 27 and this date, therefore continue in full force and effect and require full and immediate obedience and compliance.'

Now, therefore, it is here ordered, adjudged and decreed that the plaintiff, James Howard Meredith, be and he is hereby granted all the relief that is prayed for by him in his complaint and that the defendants, Charles Dickson Fair, President of the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, Louisville, Mississippi; Euclid Ray Jobe, Executive Secretary of the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, Jackson, Mississippi; Edgar Ray Izard, Hazlehurst, Mississippi; Leon Lowrey, Olive Branch, Mississippi; Ira Lamar Morgan, Oxford, Mississippi; Malcolm Mette Roberts, Hattiesburg, Mississippi; William Orlando Stone, Jackson, Mississippi; S. R. Evans, Greenwood, Mississippi; Verner Smith Holmes, McComb, Mississippi; James Napoleon Lipscomb, Macon, Mississippi; Tally D. Riddell, Quitman, Mississippi; Harry Gordon Carpenter, Rolling Fork, Mississippi; Robert Bruce Smith, II, Ripley, Mississippi an dThomas Jefferson Tubb, West Point, Mississippi, Members of the Board of Trustees of State Institutions of Higher Learning; James Davis Williams, Chancellor of the University of Mississippi, Oxford, Mississippi; Arthur Beverly Lewis, Dean of the College of Liberal Arts of the University of Mississippi, Oxford, Mississippi, and Robert Byron Ellis, Registrar of the University of Mississippi, Oxford, Mississippi, and each of them, their agents, servants, employees, successors, attorneys and all persons in active concert and participation with them be and they hereby are permanently restrained and enjoined from:

(1) Refusing to admit plaintiff, James Howard Meredith immediately to the University of Mississippi and that they shall each of them be, and they are hereby required to admit him to the University of Mississippi upon the same terms and conditions as applicable to white students;

(2) From interfering in any manner with the right of plaintiff, James Howard Meredith to matriculate in, or attend the University of Mississippi;

(3) From taking any action or doing any act or being guilty of any conduct which will impair, frustrate or defeat his right to enter the University of Mississippi;

(4) Refusing to admit the plaintiff, James Howard Meredith to the University of Mississippi upon his applications heretofore filed, all of which are continuing applications.

It is further ordered that said defendants, or any of the classes of persons referred to, are prohibited and enjoined from excluding the said James Howard Meredith from admission to continued attendance at the University of Mississippi.

It is further ordered that the defendants, their servants, agents, employees, successors and assigns, and all persons acting in concert with them, are enjoined to admit the plaintiff, James Howard Meredith to the University of Mississippi upon his applications heretofore filed and they are enjoined from excluding the said James Howard Meredith from admission to continued attendance at the University of Mississippi or discriminating against him in any way whatsoever because of his race.

It is further ordered that a copy of this order and injunction be served by the United States Marshal on each of the defendants herein.

ORDERED, this the 13th day of September, 1962.

APPENDIX D TO OPINION OF MR. JUSTICE GOLDBERG. DISSENTING.

COURT OF APPEALS' TEMPORARY RESTRAINING ORDER.

This Court having entered its order in this action on July 28, 1962, and the District Court for the Southern District of Mississippi having entered a similar order on September 13, 1962, pursuant to the mandate of this Court, requiring the defendant officials of the University of Mississippi and the defendant members of the Board of Trustees of the Institutions of Higher Learning of the State of Mississippi to enroll James Howard Meredith as a student in the University of Mississippi, and

It appearing from the verified petition of the United States, Amicus Curiae herein, that the State of Mississippi, Ross R. Barnett, Governor of Mississippi, Joe T. Patterson, Attorney General of Mississippi, T. B. Birdsong, Commissioner of Public Safety of Mississippi, Paul G. Alexander, District Attorney of Hinds County, William R. Lamb, District Attorney of Lafayette County, J. Robert Gilfoy, Sheriff of Hinds County, J. W. Ford, Sheriff of Lafayette County, William D. Rayfield, Chief of Police of the City of Jackson, James D. Jones, Chief of Police of the City of Oxford, Walton Smith, Constable of the City of Oxford, the classes consist ng of all district attorneys in Mississippi, the classes consisting of the sheriffs of all counties in Mississippi, the classes consisting of all chiefs of police in Mississippi, and the classes consisting * of all constables and town officials in Mississippi, threaten to implement and enforce unless restrained by order of this Court, the provisions of a Resolution of Interposition adopted by the Mississippi Legislature, the provisions of Section 4065.3 of the Mississippi Code, and a Proclamation of Ross R. Barnett invoking the doctrine of interposition with respect to the enforcement of the orders of this Court in this case; that Paul G. Alexander has instituted two criminal prosecutions against James Howard Meredith on account of the efforts of James Howard Meredith to enroll in the University of Mississippi pursuant to the orders of this Court; that A. L. Meador, Sr., and the class of persons he represents, on September 19, 1962, instituted in the Chancery Court of the Second Judicial District of Jones County, Mississippi, a civil action against James Howard Meredith to prevent him from attending the University of Mississippi; that on September 20, 1962, James Howard Meredith, while seeking to enroll at the University of Mississippi in Oxford, Mississippi, pursuant to the orders of this Court, was served with a writ of injunction issued by the Chancery Court of Lafayette County, Mississippi, at the instance of Ross R. Barnett, enjoining James Howard Meredith from applying to or attending the University of Mississippi; that on September 20, 1962 the State of Mississippi enacted Senate Bill 1501, the effect of which is to punish James Howard Meredith should he seek enrollment in the University of Mississippi; that the effect of the conduct of the defendants herein named in implementing the policy of the State of Mississippi as proclaimed by Ross R. Barnett will necessarily be to prevent the carrying out of the orders of this Court and of the District Court for the Southern District of Mississippi; and that the acts and conduct of the defendants named in the petition will cause immediate and irreparable injury to the United States consisting of the impairment of the integrity of its judicial processes, the obstruction of the due administration of justice, and the deprivation of rights under the Constitution and laws of the United States, all before notice can be served and a hearing had,

IT IS ORDERED that the State of Mississippi, Ross R. Barnett, Joe T. Patterson, T. B. Birdsong, Paul G. Alexander, William R. Lamb, J. Robert Gilfoy, J. W. Ford, William D. Rayfield, James D. Jones, Walton Smith, the class consisting of all district attorneys in Mississippi, the class consisting of the sheriffs of all counties in Mississippi, the class consisting of all chiefs of police in Mississippi, and the class consisting of all constables and town marshals in Mississippi, their agents, employees, officers, successors, and all persons in active concert or participation with them, be temporarily restrained from:

1. Arresting, attempting to arrest, prosecuting or instituting any prosecution against James Howard Meredith under any statute, ordinance, rule or regulation whatever, on account of his attending, or seeking to attend, the University of Mississippi;

2. Instituting or proceeding further in any civil action against James Howard Meredith or any other persons on account of James Howard Meredith's enrolling or seeking to enroll, or attending the University of Mississippi;

3. Injuring, harassing, threatening or intimidating James Howard Meredith in any other way or by any other means on account of his attending or seeking to attend the University of Mississippi;

4. Interfering with or obstructing by any means or in any manner the performance of obligations or the enjoyment of rights under this Court's order of July 28, 1962 and the order of the United States District Court for the Southern District of Mississippi entered September 13, 1962, in this actio, and 5. Interfering with or obstructing, by force, threat, arrest or otherwise, any officer or agent of the United States in the performance of duties in connection with the enforcement of, and the prevention of obstruction to, the orders entered by this Court and the District Court for the Southern District of Mississippi relating to the enrollment and attendance of James Howard Meredith at the University of Mississippi; or arresting, prosecuting or punishing such officer or agent on account of his performing or seeking to perform such duty.

IT IS FURTHER ORDERED that Paul G. Alexander and J. Robert Gilfoy be temporarily restrained from proceeding further, serving or enforcing any process or judgment, or arresting James Howard Meredith in connection with the criminal actions against him in the Justice of the Peace Court of Hinds County, Mississippi.

IT IS FURTHER ORDERED that A. L. Meador, Sr., be temporarily restrained from taking any further action or seeking to enforce any judgment entered in the case of A. L. Meador, Sr. v. James Meredith, et al.

IT IS FURTHER ORDERED that Ross R. Barnett be temporarily restrained from enforcing or seeking to enforce against James Howard Meredith, any process or judgment in the case of State of Mississippi, Ex Rel Ross Barnett, Governor vs. James H. Meredith.

September, 1962, at 8:30 A.M.