Kinoy v. District of Columbia

Decision Date29 July 1968
Docket NumberNo. 21262.,21262.
Citation400 F.2d 761,130 US App. DC 290
PartiesArthur KINOY, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Anthony G. Amsterdam, Philadelphia, Pa., with whom Messrs. Morton Stavis, Newark, N. J., and Philip J. Hirschkop, Alexandria, Va., were on the brief, for appellant.

Mr. Ted D. Kuemmerling, Assistant Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee.

Mr. David Rein, Washington, D. C., filed a brief on behalf of National Lawyers Guild, as amicus curiae, urging reversal.

Messrs. William M. Kunstler, New York City, and Joseph Forer, Washington, D. C., filed a brief as amicus curiae, urging reversal.

Messrs. Robert F. Drinan, Robert B. McKay and Wm. Warfield Ross, et al., filed a brief as amicus curiae, urging reversal.

Before DANAHER, WRIGHT and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellant was convicted after a trial without a jury in the District of Columbia Court of General Sessions of disorderly conduct purportedly in violation of 22 D.C.Code § 1107 (1967). His conviction was affirmed by the District of Columbia Court of Appeals in a per curiam opinion and this court granted leave to appeal.

I

The charge of disorderly conduct relates to appellant's activities on August 17, 1966, before a subcommittee of the House Committee on Un-American Activities. Appellant was present in the hearing room that day for the purpose of representing two of his clients who had been subpoenaed to appear as witnesses. During the testimony of another witness, a so-called friendly (to the Committee) witness, the name of one of these clients was mentioned. Appellant rose from his seat and approached the rostrum from which other lawyers voicing objections had addressed the subcommittee. With Chairman Pool's acquiescence appellant began his legal argument, but within a very short period of time the two men were involved in a heated exchange. Voices were raised, others began to enter the debate and even the audience started to get into the spirit of the thing. Chairman Pool then ordered appellant to be seated: "Now sit down. Go over there and sit down. You have made your objection. You are not going to disrupt this hearing any further."

At this point, two of the United States Deputy Marshals stationed in the hearing room began to move toward appellant and, when appellant started to speak again,1 Chairman Pool, without consulting the other members of the subcommittee, ordered the marshals to "Remove the lawyer." Appellant responded: "Mr. Chairman, I will not be taken from this room. I am an attorney-at-law and I have the right to be heard." The marshals then physically ejected appellant from the hearing room.

Appellant's co-counsel immediately pressed for his return. Chairman Pool apparently had no objection and, in fact, at one point explicitly stated, "Bring the gentleman back in." Unfortunately, by this time the marshals had not only taken appellant out of the hearing room and placed him under arrest,2 but they had transported him, kicking and screaming, through the halls, down the elevator and into a waiting police wagon.

In the trial court, the DCCA and this court, appellant has attacked this prosecution with a battery of legal and policy arguments. He has contended that he had simply been functioning as a lawyer vigorously and persistently defending his client's interest and that a prosecution for disorderly conduct based on such activity infringed upon both the First and Sixth Amendments; that if his actions were disruptive of the subcommittee's proceedings, the proper means of prosecution is for that body to initiate or prosecute for contempt and not for a different tribunal to hear and adjudge the matter as an ordinary criminal proceeding; that the trial court entertained an erroneous view of the intent requisite to establish guilt; that each and every element of the crime of which he was convicted was not charged or proved; and that not only was the information defective in that it failed to charge a specific offense, but the entire prosecution was tainted by the uncertainty as to which statute was the basis for his conviction. Since we are in agreement with some of these contentions, we reverse appellant's conviction.

II

At the outset, we wish to make it clear that, although a lawyer has a duty to defend vigorously the rights of his clients,3 there is a corollary obligation that he conduct himself with decorum.4 And this is equally true whether he be addressing a court or a legislative committee. In neither instance may he so conduct himself that he disrupts the proceedings and obstructs the orderly administration of the law. At the same time, the courts and committees before which a lawyer appears are governed by specific rules of order and just as the lawyer must stay within the boundaries of legitimate legal argument, so too the committee must respect its own rules. Gojack v. United States, 384 U.S. 702, 86 S.Ct. 1689, 16 L.Ed.2d 870 (1966); Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963).

In the instant case, Chairman Pool acting alone and without consulting other members of the subcommittee ordered appellant's removal from the hearing room. But Rule VIII of the House Committee on Un-American Activities specifically provides:

"Counsel for a witness shall conduct himself in a professional, ethical and proper manner. His failure to do so shall, upon a finding to that effect by a majority of the Committee or Sub-committee before which the witness is appearing, subject such counsel to disciplinary action which may include warning, censure, removal of counsel from the hearing room, or a recommendation of contempt proceedings." (Emphasis added.)

Although the discipline initiated was within the scope of the rule, the procedure leading to such discipline clearly was not.5 Given the absence of a finding by a majority of the subcommittee that appellant's behavior extended beyond legitimate legal argument, we cannot say that appellant's removal from the hearing room was a lawful application of the subcommittee's rules. Gojack v. United States, supra.

In light of the unusual situation presented by this case, we think it appropriate to make an additional preliminary observation: Where a participant in a legislative hearing behaves in such a manner as to raise a question as to the propriety of his behavior, the initial determination that criminal proceedings should be instituted against that party ordinarily lies with the body before which he is appearing, not an independent tribunal. Here we have a case in which the District of Columbia Government, supported only by United States Deputy Marshals, took complete charge in initiating and pursuing appellant's prosecution for activity before a House subcommittee. No member of the subcommittee even testified at the trial.

The trial court in its written opinion denying appellant's motion in arrest of judgment supports its conclusion that, in a case such as this, prosecution on a straight criminal charge of disorderly conduct is to be preferred over contempt proceedings on the ground that the numerous procedural safeguards attending a criminal prosecution are dispensed with in summary contempt proceedings.6 However, as appellant has correctly noted, in this case it is highly doubtful that the committee would have initiated a contempt proceeding, since Chairman Pool did attempt to have appellant returned to the hearing room, and even if a contempt proceeding were begun, it seems clear that it would not have met with any success in view of the sub-committee's noncompliance with its own rules. Gojack v. United States, supra; Yellin v. United States, supra. Surely if the subcommittee itself is unwilling or unable to initiate contempt proceedings, we may observe without deciding that it is difficult to understand how or why an independent tribunal can lawfully proceed. It is unnecessary, however, to pursue the matter; we find that this conviction must be reversed in any event since, in light of the record before us, the information filed against appellant does not charge an offense under the District of Columbia Code.

III

The information filed against appellant reads as follows:

"that ARTHUR KINOY, late of the District of Columbia aforesaid, on or about the 17th day of August in the A.D., nineteen hundred and sixty-six, in the District of Columbia, aforesaid, and on New Jersey and Independence Street-Avenue, east, and in a public place, to wit: Cannon Building did then and there engage in disorderly conduct, to wit: engage in loud and boisterous talking and other disorderly conduct.
"Contrary to and in violation of an Act of Congress Police Regulation in such case made and provided, and constituting a law of the District of Columbia."

The section of the D.C.Code under which the District Government prosecuted and the trial court apparently7 found appellant guilty is Section 22-1107 which in pertinent part provides:

"§ 22-1107. Unlawful assembly — Profane and indecent language.
It shall not be lawful for any person or persons within the District of Columbia to congregate and assemble in any street, avenue, alley, road, or highway, or in or around any public building or inclosure, or any park or reservation, or at the entrance of any private building or inclosure, and engage in loud and boisterous talking or other disorderly conduct, or to insult or make rude or obscene gestures or comments or observations on persons passing by, or in their hearing, or to crowd, obstruct, or incommode, the free use of any such street, avenue, alley, road, highway, or any of the foot pavements thereof, or the free entrance into any
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