Richmond Black Police Officers Ass'n v. City of Richmond, Va.

Decision Date10 January 1977
Docket NumberNos. 76-1043-76-1045,s. 76-1043-76-1045
Citation548 F.2d 123
Parties14 Fair Empl.Prac.Cas. 391, 13 Empl. Prac. Dec. P 11,383 The RICHMOND BLACK POLICE OFFICERS ASSOCIATION et al., Appellees, v. The CITY OF RICHMOND, VIRGINIA, et al., Appellees, v. Theodore M. THORNTON, Appellant. The RICHMOND BLACK POLICE OFFICERS ASSOCIATION et al., Appellees, v. The CITY OF RICHMOND, VIRGINIA, et al., Appellees, v. Jack M. FULTON, Appellant. The RICHMOND BLACK POLICE OFFICERS ASSOCIATION et al., Appellees, v. The CITY OF RICHMOND, VIRGINIA et al., Appellees, v. James R. SAUL, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Bradfute W. Davenport, Jr., Richmond, Va. (John S. Davenport, III, Mays, Valentine, Davenport & Moore, Richmond, Va., on brief), for appellants.

Conard Mattox, Richmond, Va., for appellees.

Before CRAVEN, RUSSELL, and HALL, Circuit Judges.

K. K. HALL, Circuit Judge.

The defendants are all officials of The City of Richmond, Virginia. Jack M. Fulton is Director of Public Safety, Theodore M. Thornton is Director of Personnel, and James R. Saul is Assistant City Attorney. All three were adjudged guilty of contempt and fined by the district judge for failure to obey a consent decree approved by the court. We reverse.

On July 3, 1975, a civil rights suit was brought pursuant to 42 U.S.C. §§ 1981, 1983, 1988, 2000e et seq., 28 U.S.C. §§ 2201 and 2202, and the First, Thirteenth, and Fourteenth Amendments to the United States Constitution, in which The Richmond Black Police Officers Association and others were plaintiffs and The City of Richmond and certain officials were defendants. The district court entered a consent decree resolving all issues among the parties. The decree required certain affirmative action on the part of the three defendants in this litigation.

Unanticipated events occurred which caused these defendants to deviate from the terms of the decree and, in response to plaintiffs' motion filed November 5, 1975, the court, on November 14, 1975, entered an order directing Fulton, two other individuals, and the city (but not defendants Thornton and Saul) to show cause on November 19, 1975, why they had "not violated" the consent decree. The three defendants appeared in their official capacities. The district court refused to accept their explanations for the failure to carry out the agreed order, found them in contempt of court, and directed that each of them pay a fine of $250, not to be reimbursed by the city. Defendants paid their fines and appealed the contempt finding.


A threshold question presented in this case is whether the unspecified contempt citations of the appellants were for "civil" or "criminal" contempt.

The motion for an order to show cause, the show cause order, the transcript of the hearing, and the findings of fact, conclusions of law and order of the district court collectively show that the proceedings held and orders entered were clearly in the nature of criminal contempt. The proceedings were conducted so as to vindicate the authority of the court and to penalize the appellants for their asserted non-compliance with the consent decree which was previously entered. The fines that were imposed were unconditional and punitive. They had to be paid by the appellants personally and could not be paid by the city. The fines were not intended as compensation for any losses they might have sustained due to the asserted violations of the consent decree. Rather, they were paid to the United States for the alleged past misbehavior. The proceedings so held were for "criminal" contempt even though the nature of the contempt was otherwise unspecified. The contempt citations are appealable. Carbon Fuel Co. v. United Mine Workers, 517 F.2d 1348 (4th Cir. 1975); See also: United States v. Rizzo, 539 F.2d 458, 462-463 (5th

Cir. 1976); Windsor Power House Coal Co. v. District 6, U.M.W., 530 F.2d 312, 316-317 (4th Cir. 1976); 3 C. Wright, Federal Practice and Procedure, Criminal, § 704 (West 1969); 9 J. Moore, Moore's Federal Practice, § 110.13(4) (2nd ed. 1975).


The power of criminal contempt in the federal courts is specifically defined by various statutes, rules of procedure 1 and by judicial decisions. Accordingly, for the reasons set forth in this opinion, it is essential that a determination he made at the earliest practicable time regarding the true nature of the contempt that is allegedly involved in a case in order that the proceedings which are held thereafter are conducted in such a manner as to satisfy the appropriate rules of procedure, the requirements of the various statutes, and accord due process to the parties. More particularly, an early determination regarding the nature of the contempt involved enables the court to determine whether the requisite "notice" requirements have been satisfied, whether a trial by jury will be required, and whether, in appropriate cases, counsel must be appointed.



We hold that the court below failed to require that the appellants receive legal and sufficient notice that the proceedings held were being conducted as "criminal contempt" proceedings, thereby violating due process.

Rule 42(b) of the Federal Rules of Criminal Procedure prescribes the precise procedure to be followed regarding the "notice" which must be given to the party or parties charged with criminal contempt that has allegedly occurred outside the presence of the court. Bloom v. Illinois, 391 U.S. 194, 205, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Harris v. United States, 382 U.S. 162, 167, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965); United States v. Rizzo, 539 F.2d 458, 463 (5th Cir. 1976); United States v. Leyva, 513 F.2d 774, 778 (5th Cir. 1975).

In such cases,

" . . . (the) criminal contempt . . . shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. * * * "

(Fed.R.Crim.P. 42(b)).

Here, the defendants were not given a specification of the essential facts constituting the criminal contempt nor was it described as such. 2 Moreover, two of the three appellants herein, namely James R. Saul and Theodore M. Thornton, were not even directed to show cause, yet they were held in contempt due to their alleged violation of the consent decree. Finally, no notice was given to the appellants orally in their presence, nor was any notice given on application of the appropriate United States The "notice" requirements of Rule 42(b) of the Federal Rules of Criminal Procedure were not followed. Due process was violated. See: Taylor v. Hayes, 418 U.S. 488, 496-500, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974).

attorney or by an attorney appointed by the court for that purpose.


We hold that the court below failed to accord the appellants the right to demand trial by jury, a right to which they were entitled in "criminal contempt" proceedings.

Rule 42(b) of the Federal Rules of Criminal Procedure requires, in part, that:

"The defendant is entitled to a trial by jury in any case in which an act of Congress so provides."

The instant case was brought, in part, as a "Title VII" civil rights action stating a cause of action under 42 U.S.C. § 2000e et seq. 3 Congress has provided for trial by jury in criminal contempt cases arising under Title VII suits as follows:

"In any proceeding for criminal contempt arising under title II, III, IV, V, VI, or VII of this Act, the accused, upon demand therefor, shall be entitled to a trial by jury, which shall conform as near as may be to the practice in criminal cases. Upon conviction, the accused shall not be fined more than $1,000 or imprisoned for more than six months." (42 U.S.C. § 2000h)

Because of the failure to comply with the "notice" requirements of Rule 42(b) of the Federal Rules of Criminal Procedure, as heretofore noted, we also hold that the appellants did not have an opportunity to "demand" a trial by jury and therefore could not have "waived" that right under 42 U.S.C. § 2000h. The failure to at least accord the appellants the statutory right to "demand" trial by jury likewise violated due process.

Additionally, and independent of congressional enactments, the appellants, upon "demand," had a right to trial by jury based upon constitutional principles 4 where they were charged with criminal contempt 5 and where the penalty actually imposed or which could be imposed would elevate the contempt from "petty" to "serious." "Serious contempt" occurs where the imprisonment exceeds or can exceed six months or, generally, where the fine exceeds $500. Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975); Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 Since 18 U.S.C. § 401(3) does not contain statutory maximums regarding penalties which may be imposed, then, absent some indication by the prosecuting authority and/or the court that the fine if assessed will not exceed $500, or the sentence if imposed will not exceed six months' incarceration, a party charged with criminal contempt should be afforded the opportunity to demand trial by jury. As above noted, the appellants were not provided with "notice" regarding the nature of the criminal contempt proceedings and had no opportunity to "demand" trial by jury as guaranteed by the Constitution. However, since the penalty which actually was imposed squares with the definition of "petty"...

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