Petition for Green

• Decision Date: 17 May 1961
• Docket Number: No. 36830,36830
• Citation: 175 N.E.2d 59,172 Ohio St. 269
• Parties: , 15 O.O.2d 449 Petition for a Writ of Habeas Corpus for GREEN.
• Court: Ohio Supreme Court

Page 269

172 Ohio St. 269

175 N.E.2d 59, 15 O.O.2d 449

Petition for a Writ of Habeas Corpus for GREEN.

No. 36830.

Supreme Court of Ohio.

May 17, 1961.

Syllabus by the Court.

1. The term, 'contempt of court,' embraces a despising of the authority, justice or dignity of a court, and one is guilty of such contempt whose conduct is such as tends to bring the administration of the law into disrepute and disregard or otherwise tends to impede, embarrass or obstruct the court in the performance of its functions.

2. Ordinarily, the Court of Common Pleas, a court of general jurisdiction, is competent to determine its own jurisdiction over the subject matter and parties in an action instituted therein and should be accorded fair opportunity to do so.

3. Affected persons having notice of a temporary restraining order forbidding the doing of certain acts alleged to be unlawful, which order is issued on a verified petition by the Court of Common Pleas, must obey the same until such order is set aside by orderly judicial process, and an attorney at law who deliberately advises his clients against whom the order is directed to disobey and disregard it, which they do upon such advice, is guilty of contempt of court and may be punished therefor.

This cause originated in the Court of Appeals for Lucas County upon the filing of a petition in habeas corpus on behalf of Merritt W. Green, II, a Toledo attorney. The petition is grounded on the claim that Green is (constructively) imprisoned and restrained of his liberty in the county jail of Lucas County without legal authority.

Previously, a written charge of contempt of court had been lodged against Green under the provisions of Sections 2705.02 and 2705.03, Revised Code, by a judge of the Court of Common Pleas of Lucas County in a case pending in that court, numbered 188631 and entitled Toledo Marine Terminals, Inc., v. International Longshoremen's Assn., AFL-CIO, Local 1317-A, wherein the court granted an order rest aining and enjoining the defendants and persons associated with them from committing certain acts involving the picketing of the plaintiff's premises in Toledo and interfering with its business operations. Such charge alleged that Green, legal counsel for defendants, with full knowledge of the restraining order did order and advise the defendants to disobey the same, and that the defendants, acting upon such counsel and advice, did so. Such charge further alleged that Green, after being notified in open court by the judge that he was in contempt of court, did and does continue to advise defendants to continue to disobey such order of the court. Green was then formally and specifically charged with being in contempt of court and a hearing was set for Tuesday morning, June 7, 1960.

Such hearing took place as scheduled, and Green was found guilty, sentenced to serve 10 days in the county jail and fined $500. The present action in habeas corpus followed. Upon the hearing before it, the Court of Appeals decided, by a two-to-one vote, against Green and found that he was not being unlawfully restrained of his liberty.

An appeal as of right brings the cause here for review.

Fred A. Smith, Robert A. Burns, Merritt W. Green, Toledo, and Irving A. Friedman, Chicago, Ill., for appellant.

Harry Friberg, Pros. Atty., and Ben Neidlinger, Toledo, for appellee.

ZIMMERMAN, Judge.

Seeking a reversal of the judgment of the Court of Appeals, Green, hereinafter referred to as appellant, makes three principal contentions: (1) That the Court of Common Pleas in the case instituted in that court was without jurisdiction to issue the restraining order described since the controversy was exclusively within the jurisdiction of the National Labor Relations Board under the National Labor Management Relations Act of 1947 (Section 141 et seq., Title 29 U.S.C.A.), and hence a contempt proceeding based on any violation by appellant of such restraining order was a nullity; (2) that advice given by appellant to his clients relating to the disobedience of such order was within appellant's rights and duties as an attorney and did not represent contempt of court; and (3) that appellant was denied due process of law in the hearing of the contempt charge against him.

In the original verified petition filed in the Court of Common Pleas, plaintiff, Toledo Marine Terminals, Inc., alleged that at the time of filing the petition no labor dispute existed between it and the defendant association; that a labor contract binding on both plaintiff and defendant association had been signed on May 26, 1960 (effective until April 1, 1961); that on the day of the filing of the petition, viz., May 27, 1960, the defendant association began picketing at the entrance to plaintiff's property in direct violation of such labor contract which provided, inter alia, that 'there shall be no stoppage of work caused by lockouts, walkout, sit-down, or slow-up of any kind or nature whatsoever, during the term of this agreement'; that the conduct of the defendant association in picketing plaintiff's premises and calling a strike are illegal acts; that a continuation of the same, unless enjoined, will result in damage to the life and limb of plaintiff's employees and irreparable loss to plaintiff's property; and that such conduct has created a serious emergency of such a nature as to require the issuance forthwith of a temporary restraining order.

In such petition, plaintiff prayed as follows:

'Wherefore, plaintiff prays that pending final hearing and determination of the issues herein, a restraining order be issued forthwith against the defendants and each of them, their officers, agents, members and other persons associated with and acting in concert with the defendants, and all others to whom knowledge of this order should come, restraining and enjoining them * * *.'

Then followed a description of the acts sought to be enjoined in relation to the picketing of plaintiff's premises and other interferences with its operations.

On the same day, viz., May 27, 1960, the court issued the restraining order as prayed for. At a hearing held on June 1 and 3, 1960, on charges of contempt brought against certain of those connected with the defendant association who were alleged to have disobeyed the court's restraining order, and again on June 7, 1960, at the hearing of the charge of contempt against appellant, the evidence established that appellant deliberately advised his clients to disobey the court's restraining order. During the hearing on June 1 and 3 the following took place:

'The Court: I want to know from them [those charged with contempt] before that can be done [an appeal], give them an opportunity to purge themselves. * * * I want them to explain to me why they violated the order of the court. * * * I want them to tell me whether they just did that or whether they were told by some one to do that; I want to know.

'Mr. Green [appellant herein]: I can advise the court now that they were told by me.

* * *

* * *

'The Court: * * * The opportunity is always given, of course, to any one who has violated an order of the court, to purge themselves if they choose to do so; so I think they [the ones charged with contempt] should be called upon; well, I don't know whether they are represented by any one or not.

* * *

* * *

'Mr. Green [appellant herein]: They are represented.

'The Court: By an attorney?

'Mr. Green: They haven't taken my license away yet.

'The Court: Well, what do you propose to do?

'Mr. Green: If the court please, assuming they are resting, I propose to rest also, Your Honor. We are really here in a criminal proceeding and my clients are not required to testify in such a general action, they are not required----

'The Court: You also advised them to violate an order of the court, too.

'Mr. Green: I did.'

At the contempt hearing on June 7, 1960, Merritt W. Green, appellant's associate in the law practice and one of his attorneys, read from a written statement prepared by appellant and containing the language, 'that regardless of the private opinions of the court respecting the validity of the contract that the court had no jurisdiction over this matter and that he was forcing us to advise our clients * * * of their rights not to obey the order.'

In its broad sense, a contempt is a disregard of, or disobedience to, the order or command of a public authority, legislative or judicial. In its restricted and more usual sense, contempt comprehends a despising of the authority, justice or dignity of a court; and one is guilty of contempt whose conduct is such as tends to bring the administration of the law into disrespect and disregard or otherwise tends to impede, embarrass or obstruct the court in the performance of...