Mechanic v. Gruensfelder

• Decision Date: 04 December 1970
• Docket Number: No. 33891,33891
• Citation: 461 S.W.2d 298
• Parties: Howard MECHANIC, Joel Achtenberg, Margaret Murphy, Michael Ryan, William Bothwell, Dennis Winkler and Lawrence Kogan, Petitioners, v. Robert GRUENSFELDER, Director of Correctional Institution, Respondent.
• Court: Missouri Court of Appeals

Page 298

461 S.W.2d 298

Howard MECHANIC, Joel Achtenberg, Margaret Murphy, Michael Ryan, William Bothwell, Dennis Winkler and Lawrence Kogan, Petitioners, v. Robert GRUENSFELDER, Director of Correctional Institution, Respondent.

No. 33891.

St. Louis Court of Appeals, Missouri.

Dec. 4, 1970.

Joseph Cohn, E. St. Louis, for Dennis Winkler, Lawrence Kogan and Margaret Murphy.

Irving Achtenberg, Kansas City, for Joel Achtenberg.

Francis L. Ruppert, Clayton, for William Bothwell and Michael Ryan.

Louis Gilden, St. Louis, for Howard Mechanic.

Joseph B. Moore, County Counselor, Andrew Minardi, Associate County Counselor, Clayton, Bryan, Cave, McPheeters & McRoberts, C. Perry Bascom, William R. Bascom, St. Louis, for respondent.

PER CURIAM.

In this habeas corpus proceeding petitioners seek review of their convictions for contempt of court for violation of a temporary restraining order issued by the Circuit Court of St. Louis County. In their application for writ and their answer to the return of the warden of the county jail certain contentions were advanced which have not been carried forward to their brief filed in this Court. In view of counsels' assertions at various court appearances that the brief would set forth all contentions seriously urged we treat only of the matters briefed and consider other contentions abandoned.

On March 24, 1970, Washington University filed its petition for injunction against seven individuals 'individually and as representatives of an unnamed class of persons whose identities are unknown but who are participating in the acts referred to (t)herein.' Petitioner Mechanic was one of the seven. The entire class was referred to as 'defendants.' The petition stated that on March 23, 1970, the named defendants and other defendants, numbering some 250, invaded certain premises belonging to plaintiff, namely South Brookings Hall and the Army Air Force Reserve Officers Training Corps facilities (hereinafter R.O.T.C.) without permission, and engaged in conduct which, stripped of its legal verbiage, constituted a riot. This conduct and its threatened continuation hampered and interfered with the conduct of the University's business, damaged and threatened damage to its property and that of others by which the University would be irreparably injured and for which it had no adequate remedy at law. The University prayed for issuance of a temporary restraining order, a temporary injunction and a permanent injunction against 'all defendants (including all others who are members of the class aiding, abetting and assisting those defendants specifically named herein and all other individuals who may gain actual knowledge of such order) and each of them' from a broad range of activities which would interfere with the operation of the University, the activities of other persons using the University facilities, or would damage the property of the University or of others within or about the University premises.

On the same day, ex parte, the Court issued its temporary restraining order and order to show cause which is set forth in the margin. ¹ Bond as called for in the Order was filed and upon application of the named defendants was ordered increased on two occasions, which was done. Additional parties, including petitioner Kogan, were added by motion. Of the seven petitioners before us, two--Kogan and Mechanic--were named parties to the original suit as amended and five were not named parties.

On the night of May 4, and the early morning of May 5, 1970, while the restraining order was in full effect, there occurred on the Washington University Campus the events giving rise to the contempt convictions now before us. At approximately 10:30 P.M. a 'rally' began at the quadrangle, at which a large number of individuals gathered. Speeches were made, and the crowd left the quadrangle area and marched through the dormitory area of the campus to the R.O.T.C. facilities arriving there at approximately 11:45 P.M. The crowd at those facilities was large, estimated by various witnesses as 600 to 2000 persons.

Much shouting occurred, volleys of rocks were thrown at the R.O.T.C. facility breaking windows and otherwise damaging the building, the door was ripped off the building, the interior furniture and papers were strewn about and damaged, the building was set on fire, firemen attempting to fight the blaze were driven off by volleys of rocks and firecrackers, policemen and security guards of the University attempting to control the crowd and protect the building were subjected to additional violleys of rocks and firecrackers. The building was extensively damaged. Although euphemistically referred to as a 'demonstration' by some of the witnesses, the activities of the night constituted a riot.

On May 5, plaintiff filed in the Circuit Court its 'Motion for Issuance of Attachment for Contempt Pursuant to Rules 92.15 and 35.01 Revised Statutes of Missouri 1959' against petitioners. ²

The motion set forth the specific acts of each petitioner claimed to be in violation of the restraining order, alleged actual knowledge of the order by each petitioner, and prayed that the petitioners be brought before the Court to show cause why they should not be held in contempt and punished accordingly. On the same day the Court issued its attachment for contempt and order to show cause and its writ of attachment to the sheriff of St. Louis County. Petitioners do not dispute that they received a copy of the motion for issuance of attachment and the writ of attachment.

Trial of petitioners for contempt began on May 25, 1970, and concluded on June 11, 1970. The Court filed its findings of fact, conclusions of law, decree, judgment and order of commitment as to each petitioner. The findings of fact were made 'both on a preponderance of the evidence and beyond a reasonable doubt.' As to each petitioner the Court found the specific act or acts constituting the contempt and made a finding that each petitioner had actual knowledge of the restraining order. Each petitioner was found guilty of criminal and civil contempt and sentenced to the county jail for periods ranging from three months to six months for the criminal contempt. Fines for criminal contempt were also imposed. Shorter jail sentences were imposed for the civil contempt subject to purging, which sentences run concurrently with the criminal sentences. ³

Some of the points raised by petitioners in this proceeding require a discussion of the basic concept of contempt of court. Contempts fall into two categories, civil and criminal. Although at times the line is hard to draw, the essential difference lies in who is sought to be protected by the contempt proceeding. Civil contempt is for the protection of a party to the litigation, the party for whose benefit the order, judgment or decree was entered. Its function is to provide a coercive means to compel the other party to the litigation to comply with relief granted to his adversary. The civil contemnor has at all times the power to terminate his punishment by compliance with the order of the court--i.e.: purging. Gompers v. Bucks Stove and Range Co., 221 U.S. 418, l.c. 441 et seq., 31 S.Ct. 492, 55 L.Ed. 797.

Criminal contempt on the other hand does not serve the function of aidinga litigant in achieving the relief granted but is for the purpose of protecting the dignity of the court and, more important, to protect the authority of its decrees. The thrust of criminal contempt is the intentional interference with the judicial process and the demonstrated refusal to be bound by judicial determinations. Gompers v. Bucks Stove and Range Co.,supra, In re Reese, 10 Cir., 107 F. 942. The power of criminal contempt springs not from the needs to protect a litigant, but from the inherent power of the courts to protect the judicial system established by the people as the method for solving disputes. Without this power courts are no more than advisory bodies to be heeded or not at the whim of the individual.

With this in mind we turn to the contention of petitioners Winkler, Murphy, Ryan, Bothwell and Achtenberg, that their convictions for contempt are fatally defective because: '(1) They were not parties bound by the proceedings (2) they were not properly within any purported class as required by law (3) there was no proof, as so found by the rrial court, of any concerted activity by them in aid of other defendants.'

We are cited by petitioners to Alemite Mfg. Corporation v. Staff, 2 Cir., 42 F.2d 832, an opinion by Judge Learned Hand, holding that a third party to a patent infringement suit could not be punished for contempt.

Alemite involved a civil contempt case in which the winning litigant was attempting to extend the protections of its decree to third parties against whom no relief had been granted. To the extent the case discusses the law in civil contempt cases it is persuasive; to the extent it purports to address itself to criminal contempt it is dicta.

The convictions here were for both criminal and civil contempt. Where both forms of contempt are present the proceeding takes on the cloak of the criminal proceeding and is governed by the rules pertaining to it. United States v. United Mine Workers of America, 330 U.S. 258, l.c. 300, 67 S.Ct. 677, 91 L.Ed. 884; Union Tool Co. v. Wilson, 259 U.S. 107, l.c. 110, 42 S.Ct. 427, 66 L.Ed. 848. We are unable, however, to find any elements of civil contempt in the punishment imposed in this proceeding. The relief sought by plaintiff in its original petition was restraint of activities which would interfere with the conduct of University operations, cause the destruction of University property, and allow the harassment of employees, students and the public on the University property. That was the nature of the restraints contained in the temporary restraining order. In determining the character of the proceeding we are guided by the test set forth in Gompers v....