U.S. v. Baker

• Decision Date: 29 April 1981
• Docket Number: 80-1205,80-1206,80-1117,80-1088,80-1219,80-1086,80-1116,80-1118,Nos. 80-1085,80-1208,s. 80-1085
• Citation: 641 F.2d 1311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin James BAKER, Ray Murrell Honea, Stuart P. McLean, William Ryan Sibbett, Edward J. Lansing, Charles E. Peterson, Jr., John P. Holmes, Wayne Johnson and Eugene Wright, Defendants-Appellants. , and 80-1214.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1311

641 F.2d 1311

UNITED STATES of America, Plaintiff-Appellee, v. Martin James BAKER, Ray Murrell Honea, Stuart P. McLean William Ryan Sibbett, Edward J. Lansing, Charles E. Peterson, Jr., John P. Holmes, Wayne Johnson and Eugene Wright Defendants-Appellants.

Nos. 80-1085, 80-1086, 80-1088, 80-1116, 80-1117, 80-1118,

80-1206, 80-1219, 80-1208, 80-1205, and 80-1214.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 5, 1981.

Decided April 9, 1981.

As Corrected April 29, 1981.

Alexander W. Wirt, Mikkelborg, Broz, Wells & Fryer, Seattle Wash., for baker.

Irwin Schwartz, Seattle, Wash., for Honea.

Stephen C. Schroeder, Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before, WRIGHT and NELSON, Circuit Judges, and THOMPSON, Senior United States District Judge. ^*

EUGENE A. WRIGHT, Circuit Judge:

I. INTRODUCTION

In 1977 and on June 6, 1978, District Judge Boldt issued injunctions to manage the Washington salmon fishing industry while the state and the United States litigated the fishing rights of treaty Indians. ¹ Defendants are nine of more than 200 fishers prosecuted for criminal contempt for violating the 1978 injunction. We affirm in part and reverse in part.

II. NOTICE

A. Actual Notice is Required

The 1977 and 1978 injunctions instructed all commercial salmon fishers to ascertain from a "hotline" ² prior to fishing what areas were open for fishing by non-treaty fishers.

The 1977 injunction directed the State of Washington and the United States to serve

by certified mail return receipt requested or otherwise copies of this preliminary injunction on all state-licensed commercial salmon net fishermen ... and to furnish the court with proof of service or written statement of the reason for the inability to serve any particular licensee.

Reprinted in United States v. State of Washington, 459 F.Supp. 1020, 1117 (W.D.Wash.), aff'd sub nom., Puget Sound Gillnetters Association v. U. S. District Court, 573 F.2d 1123 (9th Cir. 1978), vacated on other grounds and remanded sub nom., Washington v. Washington State Commercial Passengers Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823, on remand, Puget Sound Gillnetters Association v. U.S. District Court, 605 F.2d 492 (9th Cir.) and on remand Puget Sound Gillnetters Association v. Moos, 92 Wash.2d 939, 603 P.2d 819 (1979).

Non-party fishers violating the 1977 order after having received notice of it could be prosecuted for criminal contempt. Id. Only those served personally with the injunction were convicted. See United States v. Olander, 584 F.2d 876 (9th Cir. 1978), vacated and remanded sub nom., Harrington v. United States, 443 U.S. 914, 99 S.Ct. 3104, 61 L.Ed.2d 878 (1979).

The 1978 injunction also allowed criminal prosecution of fishers who violated it after notice of it. It did not require personal service of copies of the injunctions on fishers. United States v. Washington, supra, 459 F.Supp. at 1130.

Defendants Stuart McLean, Edward J. Lansing, Ray Murrell Honea, Martin Jones Baker, Charles E. Peterson, William Ryan Sibbett, and John P. Holmes are non-party fishers ³ found in criminal contempt for violating the 1978 injunction. The district court found they had notice of it although none was served personally with a copy. In some cases, the court took judicial notice of the widespread publicity of Judge Boldt's 1974 decision allocating fishing resources (herein Boldt decision) ⁴ and concluded that all commercial fishers had notice of the 1978 injunction.

These defendants argue non-party fishers may be held in criminal contempt for violating the injunction only if they receive actual notice of the terms of the order.

The government argues that actual notice is unnecessary and that as citizens of the state or as members of tribes, these defendants are in privity with the parties in the underlying case, and are bound by the injunction and charged with the notice to the parties.

Court orders are binding upon

the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

F.R.C.P. 65(d).

We agree with the government that these defendants are bound by the 1978 injunction. In Washington v. Washington State Commercial Passenger Fishing Vessel Association, the Supreme Court held non-party fishers are bound by the district court's orders regulating salmon fishing because they are in privity with the parties. ⁵

However, we hold that non-party fishers must have actual notice of it before they can be held in criminal contempt. Persons bound by a court order may be found in criminal contempt for violating it only if the order is clear and definite, and the contemnor has knowledge of it. United States v. Powers, 629 F.2d 619, 627 (9th Cir. 1980).

Generally, non-parties must have actual knowledge. See Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 129 (2d Cir. 1979); United States v. Griffin, 525 F.2d 710, 713 (1st Cir. 1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1414, 47 L.Ed.2d 351 (1976); United States v. Hall, 472 F.2d 261, 268 (5th Cir. 1972); McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339, 344 (9th Cir.), cert. denied, 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966).

The same rule applies to non-parties in privity with parties. In Puget Sound Gillnetters Association, supra, 573 F.2d at 1133 (1979), this court held non-party fishers in privity with the parties could be found in criminal contempt for violating the court's injunction regulating salmon fishing if they had actual notice of the order. Id. at 1133. See also NLRB v. Sequoia District Council of Carpenters, 568 F.2d 628, 634 (9th Cir. 1977) (non-party union members were bound by an order served on the union's attorney and were held in criminal contempt for violating it because they knew the order had issued and may have had actual notice of its terms). ⁶

Due process protections attach to contempt proceedings. Powers, supra, 629 F.2d at 625; In re Grand Jury Proceedings, 600 F.2d 215, 217 (9th Cir. 1979). The Supreme Court recognizes that actual knowledge of a duty to act or proof of the probability of such knowledge is sometimes necessary to satisfy due process. In Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957) the Court held a Los Angeles ordinance requiring felons to register with the city violated due process. The act of being in Los Angeles was not per se blameworthy. Id. The court held the felon could not be punished criminally unless something alerted him to the consequences of his act. Id.

Requiring non-parties in privity with parties to have actual notice of the injunction before convicting them of criminal contempt satisfies due process. Fishing in Puget Sound is not per se blameworthy. Requiring a non-party fisher to have actual notice of the court's injunction before he can be found in criminal contempt precludes conviction when he is wholly unaware of any wrongdoing. Cf. United States v. Seale, 461 F.2d 345, 366 (7th Cir. 1972) ("an absence" of any warning that borderline conduct is regarded as contumacious could be fatal to a contempt citation).

B. What Constitutes Actual Notice

Our holding that criminal contempt requires non-parties to have had actual notice of the order does not end our inquiry. We must determine what constitutes actual notice.

The district court took judicial notice of the widespread publicity about the Boldt decision and concluded that the whole state had notice of the 1978 injunction. The government contends this satisfies due process.

In the alternative, the government argues that fishers are charged with implied or inquiry notice because their industry is highly regulated.

Defendants argue that notice must be shown by personal service or circumstantially as suggested by the government in its memorandum to the district court. ⁷ They contend it may not be assumed through judicial notice.

1. Judicial Notice

We agree with defendants that taking judicial notice of their knowledge of the injunction based on unproven, widespread publicity was improper. Federal Rule of Evidence 201 requires

(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

A non-party fisher's notice of the 1978 injunction is not a proper subject for judicial notice. It is a central and disputed issue. Evidence introduced by defendants contradicts the district court's assertion that anyone who is a gill netter and a resident of Washington must know of the injunction. The source of publicity referred to by the court, the news media, cannot be said to be unquestionably accurate.

Finally, nothing was introduced from which widespread knowledge of the order could be inferred. There was no evidence of broad public knowledge of the 1978 injunction or that a duty to call the hotline was common knowledge in the community.

We agree with the First Circuit's cautious approach to this issue. In Griffin the court noted "it might be appropriate" to judicially notice a person's knowledge of a court order based on publicity. 525 F.2d at 713 n.12. However, it declined to take judicial notice of a citizen's notice of a federal busing order because the government failed to introduce evidence of "broad neighborhood knowledge of publicity" from which awareness could be inferred. Id.

2. Inquiry Notice

The government also argues that those participating in a regulated industry are charged with notice of its regulations. We disagree.

The commercial salmon fishing industry in Puget Sound has a long...