Girard v. Goins
| Decision Date | 08 May 1978 |
| Docket Number | No. 78-1043,78-1043 |
| Citation | 575 F.2d 160 |
| Parties | 83 Lab.Cas. P 10,533 John GIRARD, John E. Taylor, Eugene P. Grossman, Charles E. Kelting, Louis H. Feldhaus, Dudley Alsop, Ronald McKenzie, Wray Hambrick, Jerry Becht, Michael Manion and Ron Hosfeld, Appellants, v. Benjamin GOINS, Sheriff of the City of St. Louis, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jerome Duff, St. Louis, Mo., for appellant; James E. Heckel, St. Louis, Mo., on brief.
John P. Emde, St. Louis, Mo., for appellee; John P. Emde of Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., on brief.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
The eleven petitioners 1 appeal from the District Court's denial of habeas corpus relief under 28 U.S.C. § 2254 from fines and sentences imposed upon their conviction for criminal contempt by the Circuit Court of St. Louis. Their principal contention is that the failure of the Circuit Court to offer them a jury trial violated their constitutional right to a jury trial. They also contend that the record is void of evidence to support their convictions and that the Circuit Court's orders of commitment and judgment are fatally defective. We reverse and remand for further proceedings consistent with this opinion.
The petitioners are all members or officers of the Brewery Drivers and Helpers Local Union No. 133 of St. Louis. 2 The incidents forming the basis for the convictions occurred during the course of a long strike by the local union against the wholesale beer distributors in the St. Louis metropolitan area and are described in detail in State ex rel. Girard v. Perpich, 557 S.W.2d 25 (Mo.Ct.App.1977). During the course of the strike, the Circuit Court 3 issued orders restraining members of the local union from harassing, intimidating, frightening and interfering with customers of the beer distributors. The orders were issued on April 22 and 28, 1976. On May 28, the beer distributors filed a motion for the issuance of contempt citations for violations of the restraining orders. The Circuit Court held a preliminary hearing from June 1 to 3, and found probable cause to issue contempt citations. Each of the petitioners 4 was served with a notice of prosecution and was ordered to appear on June 10 to show cause why they should not be held in contempt of court. The attorney for the beer distributors was appointed special prosecutor and further testimony was taken at the June 10 hearing. The parties stipulated that evidence presented at the preliminary hearing be admitted for consideration by the Circuit Court. On June 24, the Circuit Court found the petitioners guilty of criminal contempt and imposed the following sentences and fines:
CONFINEMENT FINE
----------- -------------
John J. Girard 40 days $10,000
John E. Taylor 40 days $10,000
Eugene P. Grossman 10 days $ 2,500
Charles E. Kelting 10 days $ 2,500
Louis H. Feldhaus 10 days $ 2,500
Dudley Alsop 10 days $ 2,500
Ronald McKenzie 30 days $ 5,000 5
Wray Hambrick --- $ 2,500
Jerry Becht --- $ 2,500
Michael Manion --- $ 5,000 6
Ron Hosfeld --- $ 2,500
None of the petitioners has as yet been confined or paid their fines. In a hearing before the Circuit Court on December 28, the petitioners stipulated that the local union had agreed to pay their fines.
The petitioners sought, and were denied, habeas corpus relief in the Missouri Court of Appeals. State ex rel. Girard v. Perpich, supra. They then sought habeas corpus relief from the Missouri Supreme Court which denied relief for the reasons stated by the Court of Appeals "plus the fact that the additional allegations in the petition(s) filed in this court state no basis on which petitioner(§ are) entitled to relief(.)" State ex rel. Girard et al. v. Benjamin Goins, Sheriff, 442 F.Supp. 1250 (E.D.Mo., 1977). The petitioners finally brought this action in federal district court for the Eastern District of Missouri seeking relief under 28 U.S.C. § 2254. The District Court denied relief in an order on January 11, 1978.
We consider whether the petitioners had a constitutional right to a jury trial in light of the severity of the fines and sentences imposed upon them for their conviction for criminal contempt. Before we reach the merits of this issue, however, we must initially determine whether they waived any right to a jury trial that they might have and whether they exhausted their state remedies.
The District Court held that the petitioners had waived their right to a jury trial because they agreed that the Circuit Court could consider testimony from the preliminary hearing in determining whether or not they were guilty of criminal contempt. It also noted that the petitioners did not request a jury trial. We cannot agree that the petitioners waived their constitutional right to a jury trial. Both the Missouri and the Federal Rules of Criminal Procedure provide that the right to a jury trial persists until it has been appropriately waived. Fed.R.Crim.P. 23(a); Mo.R.Crim.P. 26.01(a). In order for such an important constitutional right to be waived "there must be an express, positive waiver as distinguished from mere failure to request a jury." Douglass v. First Nat Rlty. Corp., 177 U.S.App.D.C. 409, 415, 543 F.2d 894, 900 n.37 (1976). We have carefully reviewed the record, paying particular attention to the agreement that the Circuit Court could consider the evidence given at the preliminary hearing and find nothing indicating that the petitioners expressly waived their right to a jury trial. The petitioners were not offered a jury trial they merely acquiesced in non-jury proceedings. 7 Such acquiescence does not amount to an express waiver of the right to a jury trial, see Douglass v. First Nat. Rlty. Corp., supra, 177 U.S.App.D.C. at 414-415, 417, 543 F.2d 899-900 n.37, 902, particularly when none of the petitioners were aware that the Circuit Court contemplated imposing fines and sentences as severe as those imposed here.
We next must consider whether the petitioners exhausted their state remedies with respect to their right to a jury trial. The petitioners first made a claim with respect to the denial of a jury trial when they contended, in their motion for a new trial, that their punishment was cruel and unusual because they had been denied a jury trial. The issue was next raised by four of the petitioners in their petitions for writs of habeas corpus in the Missouri Court of Appeals. 8 However, the issue was not pursued in briefs or oral argument before the Court of Appeals, and that court did not mention the issue in its opinion. Each of the petitioners raised the issue in their petitions for writs of habeas corpus in the Missouri Supreme Court. The special prosecutor devoted four of fifteen pages in his responsive brief to arguments answering the petitioners' contentions on this issue. The Missouri Supreme Court did not specifically address the issue. It denied the writs on the basis of the opinion of the Missouri Court of Appeals. However, it also stated that petitioners were not entitled to relief on any of the additional issues raised before it. The United States Supreme Court has recently stated that:
It is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner's brief in the state court, and, indeed, in this case, vigorously opposed in the State's brief.
Smith v. Digmon, --- U.S. ----, ----, 98 S.Ct. 597, 599, 54 L.Ed.2d 582 (1978).
In light of Smith v. Digmon, supra, and under the circumstances of this case, we hold that the petitioners have exhausted their state remedies with respect to their constitutional claim of a right to a jury trial.
Since we have held that the petitioners did not waive their right to a jury trial and have exhausted their state remedies, we consider the merits of the petitioners' constitutional claim. Historically, both the state and federal courts have exercised the power to punish criminal contempt without a jury trial. See generally Bloom v. Illinois 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Note, Constitutional Law: The Supreme Court Constructs a Limited Right to Trial by Jury for Federal Criminal Contemnors, 1967 Duke L.J. 632; Annot., Supreme Court's Views as to Right to Trial by Jury in Contempt Proceedings, 45 L.Ed.2d 815 (1974) (hereinafter cited as Annot.). However, in 1966, the Supreme Court recognized the right to a jury trial in serious federal criminal contempt cases. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). After the Supreme Court held, in 1968, that the Sixth Amendment right to a jury trial was binding on the states, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), it then held that the right to a jury trial extended to serious state criminal contempts. Bloom v. Illinois, supra. Thus, the petitioners are only entitled to a jury trial if the criminal contempt was a "serious" as opposed to a "petty" offense.
The "exact location of the line between petty offenses and serious crimes" has not been clearly established. Duncan v. Louisiana, supra at 161, 88 S.Ct. at 1454. The seriousness or pettiness of an offense is usually determined by reference to the punishment authorized by the statute. See Annot., supra at 819. The Supreme Court has held that "when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the...
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Mitchell v. Superior Court
... ... (Cf., Muniz v. Hoffman, supra, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319; Girard v. Goins (8th Cir.1978) 575 F.2d 160 [applying a flexible, ad hoc standard to determine the level of fine that makes an offense "serious," and ... ...
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