Education Ass'n of Passaic, Inc., In re

• Decision Date: 06 December 1971
• Parties: , 79 L.R.R.M. (BNA) 2420, 67 Lab.Cas. P 52,724 In the Matter of EDUCATION ASSOCIATION OF PASSAIC, INC., Thane Emerson Bowen, Audrey Thalsheimer, Rachel Prather, Paula Claire Fuydal, Irving Goldstone, Nicholas S. D'Agostino, Manlio Boverini and William J. Flynn, Defendants-Appellants, Charged with Contempt of Court.
• Court: New Jersey Superior Court — Appellate Division

Page 255

117 N.J.Super. 255

284 A.2d 374, 79 L.R.R.M. (BNA) 2420,

67 Lab.Cas. P 52,724

In the Matter of EDUCATION ASSOCIATION OF PASSAIC, INC.,

Thane Emerson Bowen, Audrey Thalsheimer, Rachel Prather,

Paula Claire Fuydal, Irving Goldstone, Nicholas S.

D'Agostino, Manlio Boverini and William J. Flynn,

Defendants-Appellants, Charged with Contempt of Court.

Superior Court of New Jersey,

Appellate Division.

Argued Oct, 18, 1971.

Decided Dec. 6, 1971.

Emil Oxfeld, Newark, for appellants (Rothbard, Harris & Oxfeld, Newark, attorneys).

Before Judges CONFORD, MATTHEWS and FRITZ.

The opinion of the court was delivered by

FRITZ, J.A.D.

Defendants appeal from judgments convicting them of contempt of court for violating an injunctive order enjoining a strike or work stoppage by teachers in the Passaic public school system, or promoting, aiding or abetting the proscribed activity.

Our duty on such appeal, as appellants correctly suggest, is to try the matter De novo on the record below, upon the law and the facts, toward the end of adjudging both guilt and punishment. N.J.S.A. 2A:10--3 and R. 2:10--4; Bd. of Ed. of Newark v. Newark Teachers Union, 114 N.J.Super. 306, 316, 318, 276 A.2d 175 (App.Div.1971); Sarner v. Sarner, 28 N.J. 519, 525, 147 A.2d 244 (1959), app. dism. 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028 (1959), reh. den. 360 U.S. 940, 79 S.Ct. 1446, 3 L.Ed.2d 1552 (1959); State v. Gussman, 34 N.J.Super. 408, 112 A.2d 565 (App.Div.1955), and Zimmerman v. Zimmerman, 12 N.J.Super. 61, 69, 79 A.2d 59 (App.Div.1950).

Recognition of our obligation in this regard moots for purposes of this appeal the argument here forwarded that the trial court intruded unreasonably at the hearing to the extent of having 'assumed the function of prosecutor.' Even were such a charge soundly grounded, defendants would suffer no prejudice, for the 'extraordinary review' (Zimmerman, supra, at 69, 79 A.2d 59) afforded by our law remains as a bulwark against an attenuation of the rights of an accused.

We are constrained to note, however, that we do not find defendants' argument to be soundly grounded in the record. The trial judge, sitting without a jury, did on occasion extend his questioning of witnesses, but this was, on its major occurrence, in respect to records produced during the testimony of the first witness relating to various meetings, and the inquiry by the court obviously intended no more than a coherent, succinct, chronological recitation of events and an identification of the people involved. Prior to his examination of the witness in this respect the trial judge assured counsel (who had already utilized the first trial day in examining the witness) of his intention to afford them 'plenty of chance to ask' questions, but expressed the hope he could save time by his procedure. We believe that relatively early in the trial as it was, this method served the salutary purpose of objectively setting the stage on which the attorneys involved then performed their proper function of strategic advocacy.

Later comments by the court deploring the conduct of defendants and vocalizing the extent to which the sensibilities of the judge were shocked by the fact that

* * * people of this knowledge and ability and position of power over the children of the City of Passaic (referring to defendants) can nevertheless absolutely, unqualifiedly, refuse to follow the law, publish it in the newspaper and tell the whole world, 'We simply will not comply with the order of the Court,' and then come in and plead not guilty. * * *.

Came after the adjudicatory phase of the action, and during the court's findings and conclusions. Defendants, obviously offended by this determination, equate the understandable reaction with an erstwhile and persistent attitude of resentment for 'the fact that the defendants had availed themselves of their constitutional right to plead not guilty and ask for a trial,' an equation without record support. We believe this comment and others cited by appellant not indicative of permeating prejudice.

Cf. In re Buehrer, 50 N.J. 501, 508, 236 A.2d 592 (1967).

We find the trial court's inquiries and comments a far cry from the participation castigated in State v. Homer, 86 N.J.Super. 351, 206 A.2d 905 (App.Div.1965) and remain totally unconvinced that such 'was so prejudicial as to prove unfairly devastating and detrimental to the rights of the defendant(s).' Id. at 364, 206 A.2d at 912.

Nor do we labor under any illusion that the absence of a jury of itself insures against the possibility of prejudicial intervention by the judge.

* * * However, the necessity of judicial self-restraint is no less important where the judge sits alone; if he participates to an unreasonable degree in the conduct of the trial, even to the point of assuming the role of an advocate, what he does may be just as prejudicial to a defendant's rights as if the case were tried to a jury. (Band's Refuse Removal, Inc. v. Fair Lawn, 62 N.J.Super. 522, 549, 163 A.2d 465, 479 (App.Div.1960), certif. den. 33 N.J. 387, 164 A.2d 849 (1960)).

The sharp and apparent contrast between the proscribed activity in Band's Refuse Removal, Inc. v. Fair Lawn and the conduct of the trial judge here confirms our conviction, upon a review of the whole record, that the latter did not overstep permissible bounds of judicial inquiry or bring to the case any predetermination or innate prejudice.

The principal legal thrust of defendant's appeal challenges the constitutionality of a prohibition against striking by school teachers, asserting at length the oft-repeated argument that the 'New Jersey Constitution authorizes public employees to strike and that the distinction between public and private employment in the New Jersey Constitution is not with reference to the right to strike, but with reference to the matters about which organizations of public and private employees may deal with their employers.' Their brief acknowledges at the same time that our Supreme Court has consistently held otherwise, and has refused to hold that 'teachers are beyond that ban.' Bd. of Ed., Union Beach v. N.J.E.A., 53 N.J. 29, 36, 247 A.2d 867 (1968); In re Block, 50 N.J. 494, 499--500, 236 A.2d 589 (1967). Without respect to the question as to whether the instant order may be thus questioned in a contempt proceeding, in re Block, Supra, at 499, 236 A.2d 589, we observe that defendants thus answer their own question. Simply put, the issue has been squarely decided adversely to their position by our court of last resort. In such a situation it is not our function to alter the rule. Orlik v. De Almeida, 45 N.J.Super. 403, 409, 133 A.2d 55 (App.Div.1957); Murray v. Michalak, 114 N.J.Super. 417, 420, 276 A.2d 866 (1970), aff'd o.b. 58 N.J. 220, 276 A.2d 857 (1971).

Defendants seek refuge in an argument that service upon them of the order said to have been violated and for the contempt of which they are charged was effectuated by 'two lay persons designated by the plaintiff,' and accordingly lacked compliance with R. 4:4--3. The asserted ground is without merit. the rule specifically authorizes service alternatively to that of 'the sheriff or other officer authorized by law' in a provision for service 'by a person specially appointed by the court for that purpose.' Such an appointment was made here when the court, in its order, authorized service by 'plaintiff's attorney or agent.' Service was effected by plaintiff's agents.

Mention is made of the fact that a later order, extending time for service, referred only to plaintiff and not to a designee. The later order obviously dealt with nothing more than the time limit previously imposed. Nothing in it remotely suggests an intent to vary the prior specific authorization.

All of this is of no moment in any event. Among the earliest of our reported cases appears:

* * * There are cases where the party will be considered in contempt when the injunction was not regularly served, provided they were present in court at the time it was ordered, or had other certain knowledge that the same had been ordered. (Corey v. Voorhies, 2 N.J.Eq. 5, 7 (Ch. 1838).)

This rule has retained its vitality through the years. In In re Buehrer, Supra, an inference that defendant had received notice of the injunctive order was held sufficient to permit a conviction upon proofs of defiance of the order. 50 N.J. at 506--507, 236 A.2d 592.

We are satisfied from our review of the record that all defendants had actual and timely notice of the injunction and at least so much of its contents as it is now claimed they violated. Actual notice or knowledge of a restraint compels compliance, and a defendant will not be saved from sanctions for wilful disobedience by a crafty suggestion that while he knew better, no one handed him the formal documentary embodiment of restraint.

Finally, defendants urge that the record does not support a finding of proof of their guilt beyond a reasonable doubt. We have independently and carefully reviewed the record, as is our duty, and our determination is in accord with that of the trial judge in all respects save one. We are convinced beyond doubt of the actual knowledge of defendants of the restraints imposed, and of the intentional disobedience to that order by all other than the defendant william J. Flynn. We adopt as our own the findings of the trial court, except as they relate to Flynn, satisfied that they represent a concise and accurate distillation of the facts and reasonable inferences to be drawn therefrom, and even mindful of the proposition that conviction for this contempt must be predicated on nothing less than proof of guilt beyond a reasonable doubt.

On the other hand, we admit to an uncertainty with regard to violation of the order by defendant Flynn, and it is this dubiety which requires our adjudication of his innocence of the charge of contempt.

William J. Flynn is a field representative employed by the New...