DeSaulnier, In re

• Decision Date: 15 December 1971
• Citation: 360 Mass. 769,279 N.E.2d 287
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: In the Matter of Edward J. DeSAULNIER, Jr. et al.

Page 287

279 N.E.2d 287

360 Mass. 769

In the Matter of Edward J. DeSAULNIER, Jr. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 15, 1971.

Monroe L. Inker, Newtonville, for I. Charles Baker.

Edward B. Hanify and Ohn M. Harrington, Jr., Special Counsel, Boston.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and BRAUCHER, JJ.

BY THE COURT.

On November 29, 1971, the Supreme Judicial Court (this court) made certain findings and rulings of law, 276 N.E.2d 278, regarding the refusal of the witness I. Charles Baker to answer questions put to him by special counsel, and denied Baker's attempt to assert a general claim of privilege in advance of being questioned. Special counsel then asked Baker a series of thirty-five questions (appended hereto as Exhibit A), each of which he declined to answer, 'relying on the Fourth and Fifth Amendments to the Constitution of the United States.' After each refusal to answer, the court ordered Baker to answer, eliciting only the same refusal. The court adjudged Baker to be in contempt for each refusal to answer, and reserved sentence. At the end of the day's proceedings, the court sentenced Baker to serve five months in the common jail for failure to answer each of questions 1, 3--12, and 22 (Group I). The twelve sentences were to be served concurrently. On each of the other contempts, the court deferred sentencing until December 1, 1971.

On December 1, 1971, prior to sentencing by this court, the United States Court of Appeals, First Circuit, affirmed the action of a Federal District Court judge who rejected Baker's request to be released on bail. The Court of Appeals stated that it saw 'no substantial merit in (the) petitioner's attempt to challenge the Commonwealth's grant of immunity that would remove the danger of self-incrimination,' and concluded that his 'request for transactional immunity as to certain complaints brought against him for larceny committed in 1968 from his employer seems but a blatant attempt to horse-trade the Commonwealth.' Baker v. Eisenstadt. ^a

On December 1, 1971, following argument by Baker's counsel, who made it clear to this court that he and his client were fully aware of the action and opinion of the United States Court of Appeals First Circuit, this court stated that 'if Mr. Baker wants to testify . . . he is at liberty to do so as of now. We have not ended the hearing.' Counsel for Baker indicated that his client still intended to stand on his claim of privilege. The court then, as to each of four specific groups of questions, imposed six months concurrent sentences to be served in the common jail because of Baker's refusal to answer each of the questions in that group. Each of the following questions fell into one of these four groups; 13, 14, 16, 17, 21, 23, 24, 25, 26, 28, 29, 30, 31, 32, 18, 19, 20, 27, 37, 39, 33, 34 and 35.

The sentences imposed were to be served as follows:

GROUP II:

on each of the contempts on questions 13 and 14, concurrently with each other, and from and after the sentences for contempt imposed on November 29, 1971.

GROUP III:

on each of the contempts on questions 16, 17, 21, 23, 24, 25, 26, 28, 29, 30, 31 and 32, concurrently with each other, and from and after the sentences for contempt imposed for Group II.

GROUP IV:

on each of the contempts on questions 18, 19, 20, 27, 37 and 39, concurrently with each other, and from and after the sentences imposed for Group III.

GROUP V:

on each of the contempts on questions 33, 34 and 35, concurrently with each other, and from and after the sentences imposed for Group IV. (See Exhibit A.)

Counsel at that point in effect moved for a jury trial for his client, which this court denied. The court then ordered the hearing closed 'unless otherwise ordered by this Court on its own motion or on motion of counsel.'

1. Massachusetts law has long refused to distinguish rigidly between the civil and criminal aspects of contempt of court. McCann v. Randall, 147 Mass. 81, 90, 17 N.E. 75. New York Cent. R.R. v. Ayer, 253 Mass. 122, 129, 148 N.E. 567. Root v. MacDonald, 260 Mass. 344, 357--358, 157 N.E. 684. Stow v. Marinelli, 352 Mass. 738, 745, 227 N.E.2d 708. Reed, Equity Pleading & Practice, § 971, 292--293. A sentence for contempt in Massachusetts may be 'partly remedial and partly punitive, partaking both of civil and criminal features.' Root v. MacDonald, supra, 363--365, 157 N.E. 684, Stow v. Marinelli, supra, 745, 227 N.E.2d 708, 713. Nothing, however, precludes a Massachusetts court from giving an unconditional sentence for contempt which is largely or entirely 'for the purpose of inflicting punishment upon one who has willfully disobeyed a lawful order of the court,' McCann v. Randall, 147 Mass. 81, 90, 17 N.E. 75, 83, where this is necessary to vindicate the authority of the court and to deter other like derelictions, Root v. MacDonald, supra, Stow v. Marinelli, supra, 745, 227 N.E.2d 708, Ex parte Grossman, 267 U.S. 87, 111, 45 S.Ct. 332, 69 L.Ed. 527, or where the acts of the contemnor are an affront to the law tending to obstruct or degrade the administration of justice. Cartwright's Case, 114 Mass. 230, 238. Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 347, 65 N.E.2d 555. To the extent that such a contempt sentence is for purely punitive purposes and is absolute, not conditional, in nature it constitutes a sentence for criminal contempt. See Hurley v. Commonwealth, 188 Mass. 443, 447, 74 N.E. 677; Blankenburg v. Commonwealth, 260 Mass. 369, 372, 157 N.E. 693; Opinion of the Justices, 301 Mass. 615, 618--619, 17 N.E.2d 906; Corcoran v. Commonwealth, 335 Mass. 29, 35, 138 N.E.2d 348. This is in accord with the Federal law. See Shillitani v. United States, 384 U.S. 364, 369--370, 86 S.Ct. 1531, 16 L.Ed.2d 622.

The sentences imposed on Baker for contempt of court were unconditional in terms. They were for the purpose of vindicating the authority of the court and punishing the contemnor for obstructing and degrading the administration of justice in an extraordinary proceeding of utmost importance to the State judicial system. His sentences were imposed, at least in large part, for specified criminal contempts of court. He does not have 'the keys of . . . (his) prison in . . . (his) own pockets.' See Shillitani v. United States, supra, 368, 86 S.Ct. 1534 In re Nevitt, 117 F. 448, 461 (8th Cir.). We are not now required to discuss the authority of this court, in its discretion, with respect to the sentences already imposed in the event that Baker makes full disclosure.

2. In a proceeding for contempt, there is no right to a trial by jury under Massachusetts State law, even when the proceeding's object and result are wholly punitive. Root v. MacDonald, 260 Mass. 344, 365, 157 N.E. 684. Dolan v. Commonwealth, 304 Mass. 325, 340, 23 N.E.2d 904. Commonwealth v. McHugh, 326 Mass. 249, 277, 93 N.E.2d 751. See Cartwright's Case, 114 Mass. 230, 238; Walton Lunch Co. v. Kearney, 236 Mass. 310, 317, 128 N.E. 429; Blankenburg v. Commonwealth, 260 Mass. 369, 373--374, 157 N.E. 693; Opinion of the Justices, 349 Mass. 786, 793, 17 N.E.2d 906. General Laws c. 220, § 13A, which provides for a jury trial in contempt proceedings growing out of labor disputes, specifically excludes any 'contempts committed in the presence of the court.'

3. In United States v. Barnett, 376 U.S. 681, 692, 84 S.Ct. 984, 12 L.Ed.2d 23, Mr. Justice Clark, speaking for the court, said, 'It has always been the law of the land, both state and federal, that the courts--except where specifically precluded by statute--have the power to proceed summarily in contempt matters.' This case ruled that there was no general right to a jury trial in criminal contempt proceedings, pp. 692--700, 84 S.Ct. pp. 984, 990--991, although some members of the court were of the view that the Constitution limited the punishment which could be imposed where the contempt was tried without a jury. Pp. 694--695, note 12, 84 S.Ct. p. 984. The general rule has been ree xamined in light of the decision of the Supreme Court of the United States that the constitutional guaranty to jury trial extended to State courts in serious criminal cases. Duncan v. Louisiana, 391 U.S. 145, 149--150, 159, 88 S.Ct. 1444, 20 L.Ed.2d 491.

In Bloom v. Illinois, 391 U.S. 194, 195, 210--211, 88 S.Ct. 1477, 20 L.Ed.2d 522, the Supreme Court held that where sentence by a State court for a single out-of-court criminal contempt reached twenty-four months imprisonment there was a right to a trial by jury. There was a short, but compelling, dissent by Mr. Justice Harlan, joined by Mr. Justice Stewart. P. 215, 88 S.Ct. p. 1477.

We are, of course, bound by the ree xamination in the Bloom decision of the general rule stated in the Barnett case. The case before us, however, is very different, in both the letter and the spirit of the law involved, from that in the Bloom case. Baker was guilty of a series of distinct contempts against the authority of this court, consisting of separate refusals to obey different orders of this court to answer questions. These the court separated into groups of questions, each question in each group relating to the same general subject as the other questions in that group. The refusal to answer the questions in no one of these groups was made the basis of a sentence of more than six months. The situation is entirely different from the single contempt in the Bloom case, where the contemnor wilfully sought to have admitted to probate a will falsely prepared and executed after the death of the putative testator, an act which was held to deserve a sentence of twenty-four months imprisonment. Bloom v. Illinois, supra, 195, 88 S.Ct. 1477.

The Bloom case specifically declined to carry over the jury trial requirement to 'petty' offences. Dyke v. Taylor Implement Mfg. Co. Inc.,391 U.S. 216, 219--220, 88 S.Ct. 1472, 20 L.Ed.2d 538. See Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 16 L.Ed.2d 629; Baldwin v. New York...