Berry, In re

• Citation: 68 Cal.2d 137,436 P.2d 273,65 Cal.Rptr. 273
• Decision Date: 24 January 1968
• Docket Number: Cr. 11117
• Parties: , 436 P.2d 273 In re Colin Scott BERRY et al., on Habeas Corpus.
• Court: United States State Supreme Court (California)

Page 273

65 Cal.Rptr. 273

68 Cal.2d 137, 436 P.2d 273

In re Colin Scott BERRY et al., on Habeas Corpus.

Cr. 11117.

Supreme Court of California,

In Bank.

Jan. 24, 1968.

Coleman A. Blease and Lawrence K. Karlton, Sacramento, for petitioners.

Albert M. Bendich, Berkeley, Paul N. Halvonik, San Francisco, Bodle, Fogel, Julber & Reinhardt, George E. Bodle, Daniel Fogel, Stephen Reinhardt and Loren R. Rothschild, Los Angeles, as amici curiae on behalf of petitioners.

Thomas C. Lynch, Atty. Gen., Arlo E. Smith, Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., John M. Price, Dist. Atty., Robert Puglia, Chief Deputy Dist. Atty., John B. Heinrich, County Counsel, and L. B. Elam, Deputy County Counsel, for respondent.

SULLIVAN, Justice.

Petitioners are charged with criminal contempt, a misdemeanor, for willful disobedience of an order of the superior court. (Pen.Code, § 166, subd. 4.) Prior to the entry by them of a responsive pleading to the complaint (see Pen.Code, §§ 949, 1002, 1003, 1004, 1016) but subsequent to their release upon posting bail, they applied for a writ of habeas corpus in the superior court, alleging that they were being illegally restrained of their liberty because the order they are charged with disobeying is void and unenforceable in that it constitutes a violation of their constitutional rights. The petition was denied without argument or opinion, and petitioners thereupon applied, on the same ground, for a writ of habeas corpus in the Court of Appeal Third District. The Court of Appeal granted the writ as prayed for and filed an opinion. We granted the petition of the People ¹ for a hearing in this court. (Pen.Code, § 1506; Cal.Rules of Court, rules 28, 29, 50.)

The facts ² are undisputed in all relevant respects: On February 2, 1967, the County of Sacramento (County) commenced an action in the superior court seeking an injunction. Named as defendants in this action were the Sacramento chapter of the Social Workers Union (Union), certain officers and members of the executive board thereof, 750 individual Does and 150 John Doe associations. The complaint alleged on information and belief that the Union had voted to engage in a strike against the plaintiff County, such strike to commence on February 7 unless 'meaningful negotiations' as to compensation and other matters were instituted prior to that date; that such a strike would involve mass picketing at various county facilities; and that defendants had actively encouraged county workers not members of the Union to participate in such strike and related activities. The complaint further alleged 'That said strike, picketing, demonstrations and other concerted activities will inhibit, impair and frustrate the ability of Plaintiff to comply with its statutory obligations to provide public welfare services, including financial assistance to those persons entitled thereto, medical care and treatment, and other governmental services, all to the great and irreparable injury of the Plaintiff and the citizens thereof.'

Plaintiff prayed, inter alia, for the following relief: 'That Defendants and each of them, their officers, agents, servants, employees, representatives and members, and all persons in active concert or participation with them, or in concert among themselves, be restrained and enjoined from doing directly or indirectly by any means, method or device whatsoever any and all of the following things:

'a. From ordering or continuing to order, or asking or requesting, or otherwise inducing or attempting to induce any employee of the Plaintiff to cease work for or not to work for the Plaintiff;

'b. From intimidating, threatening, molesting or coercing the Plaintiff or Plaintiff's agents, employees, suppliers, contractors, guests or invitees;

'c. From striking or engaging in a work stoppage or other similar concerted activity against Plaintiff, or inducing or calling a strike, work stoppage or other concerted activity against Plaintiff; and

'd. From picketing, and from placing, stationing or maintaining, or causing any picket or pickets to be stationed or maintained, and from causing, participating in or inducing others to participate in any demonstration or demonstrations on any grounds, or that portion of any private or public street which adjoins any grounds, or on any sidewalk which is contiguous to any portion of any private or public street which adjoins any grounds which are owned, possessed or controlled by the Plaintiff and on which are situated any building, buildings or structures of any kind whatsoever which are occupied by Plaintiff and in which employees of Plaintiff are assigned to work.'

It was also prayed that a temporary restraining order 'in accordance with this prayer' be issued ex parte, and the affidavit of the county welfare director was filed in support of this application. The affidavit stated, inter alia, that the membership of the Union included 564 persons in nine separate job classifications employed by the welfare department; that the welfare department was responsible for admistering grants of assistance under various public social service programs; that the calling of a strike by the Union would result in irreparable damage to the ability of the welfare department to discharge its obligations to administer such programs in that (a) substantial delays in the processing of new applications for assistance would result, (b) the function of continually investigating and examining the status of recipients in such programs would be substantially impaired, (c) counselling and other specialized services to recipients would be substantially impaired, and (d) child adoption and temporary child placement programs would be substantially impaired; and that it would be impossible to recruit a sufficient number of temporary or permanent appointees with the requisite background and skill to fill vacancies resulting from a strike.

On February 2, the date of filing the complaint for injunction, the superior court issued its order that defendants show cause on February 16 why the relief prayed for in the complaint should not be granted during the pendency of the action. It also issued ex parte a temporary restraining order as prayed for by the County. (Code Civ.Proc. § 527.) This order, in language identical in all relevant respects to that contained in the prayer of the complaint, enjoined the persons named in such prayer from doing the acts therein enumerated pending the February 16 hearing on the order to show cause In re preliminary injunction; it additionally stated, however, that 'Nothing in this Order shall be so construed as to affect the right of any employee of Plaintiff to abandon or resign his employment.' Copies of this order, along with the summons, complaint, and other supporting documents, were personally served upon those eight persons who were specifically named in the complaint as officers and/or members of the executive board of the Union.

It appears that Union officials and attorneys made it known ³ that in their opinion the temporary restraining order suffered from constitutional defects which rendered it void, and that the strike would proceed as scheduled in spite of such order. On February 7 approximately 40 percent of the workers employed by the welfare department failed to appear for work, and pickets appeared in front of each of two welfare department buildings. Estimates of the number of persons involved in each of these picket lines range as high as one hundred, but it is not disputed that the picketing was orderly and peaceful. A substantial number of the pickets carried signs indicative of a strike against the County and bearing the name of the Union. Police arrived, served pickets with copies of the summons, complaint for injunction, and temporary restraining order, and ordered the pickets to disperse. Those who refused to do so were arrested.

For approximately thirty days following February 7 members of the Union, together with private persons in sympathy with their aims, continued peaceful picketing activities on sidewalks in front of the two welfare department buildings and in front of the County Administration Building. ⁴ As a result of these activities over eighty persons were arrested and charged with violation of section 166 subdivision 4 of the Penal Code--criminal contempt of court. ⁵

At no time during the five days intervening between the issuance of the temporary restraining order and the commencement of the strike did the Union or any other defendant seek to have the order vacated or modified. (See Code Civ. Proc. §§ 532, 533, 937.) On February 16, the date set for hearing on the order to show cause in re preliminary injunction, the Union through its attorneys requested and was granted a continuance of the hearing until February 27. Hearing was had on that date, and on March 3 the preliminary injunction was granted; this order, in language identical in all relevant respects to that contained in the prayer of the complaint and in the temporary restraining order, enjoined the same persons from engaging in the same acts during the pendency of the action for permanent injunction.

The four petitioners herein were among those arrested and charged with criminal contempt for willful disobedience of the temporary restraining order. In their verified petition it is alleged that each is a private citizen and is in no way affiliated with the Union, the County, or the welfare department; that each picketed before a county building on a date after commencement of the strike; that each, after being served with a copy of the temporary restraining order while so picketing, refused to disperse after being ordered to do so and was arrested; that each was charged with criminal contempt for disobedience of the temporary restraining order; and that each has been released on bail pending trial. ⁶ They seek habeas corpus on the ground that the temporary restraining...