United States v. Ross R. Barnett and Paul B. Johnson, Jr

346 F.2d 99, 1965 U.S. App. LEXIS 5689

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 5, 1965
• Docket: 20240_1
• Status: Published

Opinions

ORDER

Before TUTTLE, Chief Judge, and RIVES, JONES, BROWN, WISDOM, GEWIN, and BELL, Circuit Judges.

RIVES, JONES, GEWIN and BELL, Circuit Judges:

CIVIL CONTEMPT

This Court, in September 1962, entered its findings of fact, conclusions of law, and judgments of civil contempt adjudging Ross R. Barnett and Paul B. Johnson, Jr., in civil contempt of the temporary restraining orders of this Court entered September 25, 1962. There has since been substantial compliance with this Court’s orders. It therefore appears that no further proceedings in civil contempt are needed, and that it is appropriate to enter an order formally terminating the civil contempt proceedings.

CRIMINAL CONTEMPT

Criminal contempt is a sui generis proceeding for the protection of the integrity of the Court. The criminal contempt proceedings against Ross R. Barnett and Paul B. Johnson, Jr., were instituted pursuant to the order and direction of this Court of November 15, 1962. (J. Gewin dissenting). Those proceedings are, therefore, within the control of the Court and the Court has the power and authority to order them dismissed.¹

At the present time no sufficient reasons exist for the further prosecution of the proceedings against Barnett and Johnson. In the light of substantial compliance with the Court’s orders, considerations of respect for the Court do not require the further prosecution of the criminal contempt proceedings. Nor does such further prosecution appear necessary for the purpose of deterring others from committing offenses like or similar to the alleged acts of contempt. The Civil Rights Act of 1964 has been generally recognized as creating a status under which the “law of the land” is now beyond question. Indeed there has been widespread, voluntary compliance with the provisions of said Act. It is highly improbable that other persons will hereafter commit acts similar to those herein charged.

The lapse of time since this Court ordered the criminal contempt proceedings to be instituted, and the changed circumstances and conditions have rendered the further prosecution of criminal contempt proceedings unnecessary. The rationale at least in part of Hamm v. City of Rockhill, 1964, 379 U.S. 306, 315, 317, 85 S.Ct. 384, 391, 13 L.Ed.2d 300, where the Civil Rights Act of 1964 was applied retroactively to abate state sit-in prosecutions, was based on the purpose of the Act "to obliterate the effect of a distressing chapter of our history.” It was held that no public interest was to be served in continuing the prosecution. And so it is here. In what we consider an appropriate application of restraint to judicial power, we close out another part of the same chapter.

It is fortunate that we can so conclude because there may be no fair alternative course. Jury trial as a matter of right has been ruled out by the Supreme Court. For reasons which need not be stated, jury trial as a matter of discretion would not be granted by majority vote of this Court. For the same acts for which they stand charged with criminal contempt, the defendants have already been tried and adjudged by this Court to be in civil contempt.² This Court has already found against them on all of the elements of criminal contempt, excepting only that of intent, willfulness. That state of mind must be determined by inference from evidence, most if not all of which has been introduced and considered by the Court in the civil contempt proceedings. While we know that every judge of this Court would do his conscientious best to try the criminal contempt proceedings fairly and impartially, we are doubtful, to say the least, whether we and the other judges may not have formed a fixed opinion that the defendants are guilty.³ Thus some, or all of the present membership of this Court may be disqualified from sitting on a trial on the merits of these criminal contempt charges.⁴ The statute⁵ makes no provision for any replacement judge to sit on this en banc court and we doubt whether one can properly be devised by judicial invention. It follows that a fair trial on the merits is the subject of doubt, and dismissal of the criminal proceeding is the only course open that is clearly consistent with fundamental fairness.

The civil contempt judgments will stand but no sanctions will be imposed. The criminal proceeding is dismissed for the reasons stated above.

It is so ordered.

TUTTLE, Chief Judge, and JOHN R. BROWN and WISDOM, Circuit Judges (dissenting).

1 . See In re Fletcher, 4 Cir., 1954, 216 F.2d 915; MacNeil v. United States, 1 Cir., 1956, 236 F.2d 149, 61 A.L.R.2d 1075; 17 C.J.S. Contempt § 63, p. 162; 17 Am.Jur.2d Contempt, § 81, p. 74.

2 . This statement contemplates granting the motion of the government to dismiss Counts 3 and 4. These counts relate to the failure of defendants to maintain law and order at the university. The remaining two counts involve the frustration of the registration of Meredith by the defendants.

3 . See discussion of the disqualication of the judges in opinion of Judge Jones in United States v. Barnett et al., 5 Cir., 1963, 330 F.2d 369, at pages 419-421; compare also Juelich v. United States, 5 Cir., 1954, 214 F.2d 950, 955.

4 . Compare the provision of Rule 42(b), F.R.Crim.P. that, “if the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent.”

5 . Section 46(c) of Title 28, U.S.Code, providing in part, “A court in banc shall consist of all circuit judges in regular active service.”