Rosen v. State of North Carolina

• Decision Date: 12 July 1972
• Docket Number: No. C-C-72-148.,C-C-72-148.
• Citation: 345 F. Supp. 1364
• Court: U.S. District Court — Western District of North Carolina
• Parties: Richard ROSEN, Plaintiff, v. STATE OF NORTH CAROLINA, Defendant.

345 F. Supp. 1364

Richard ROSEN, Plaintiff, v. STATE OF NORTH CAROLINA, Defendant.

No. C-C-72-148.

United States District Court, W. D. North Carolina, Charlotte Division.

July 12, 1972.

George S. Daly, Jr., Charlotte, N. C., for plaintiff.

Charles A. Lloyd, Associate Atty., State of North Carolina, Dept. of Justice, Raleigh, N. C., for defendant.

TEMPORARY RESTRAINING ORDER

McMILLAN, District Judge.

Monday, July 10, 1972, was the start of a week of criminal court in Mecklenburg County, North Carolina, and was also the start of the criminal trial of Charles Parker, T. J. Reddy, James Earl Grant and Clarence Harrison for allegedly burning a barn several years ago.

Richard Rosen, plaintiff, alleges that about nine o'clock on Monday, July 10 (an hour or so before court opened) he and fifteen or twenty other persons commenced peaceful picketing and leafleting in front of the Mecklenburg County Courthouse, Charlotte, North Carolina,

"between the courtyard obelisk and East Trade Street. Plaintiff and his compatriots carried placards reading such as `Free T. J.,' `Free Jim,' `Free all Political Prisoners,' and `Railroading is Alive in our Fascist Court.' Plaintiff and his compatriots also passed out leaflets regarding Angela Davis and Jim Grant. All of these actions were taken in prospect of the trial of Charles Parker, T. J. Reddy, James Earl Grant and Clarence Harrison, scheduled to commence at 10:00 A.M., July 10, 1972, in the said Mecklenburg County Courthouse. None of the actions of plaintiff or his compatriots were interlaced with verging violence or brigaded with action, but were entirely peaceful. At about 9:45 A.M., all such picketing and leafleting ceased, and the group repaired to the courtroom to witness the said trials."

Shortly after ten o'clock the same day, Judge Frank W. Snepp, judge presiding over the Criminal Term, without notice to the plaintiff or any of his associates, and without a hearing, entered an ex parte order reading as follows:

"It having come to the attention of the Court that certain persons are picketing the Mecklenburg County Courthouse and are walking in front of the main entrance to the courthouse carrying placards bearing captions such as `Free the Political Prisoners' and `Free T. J.', and are carrying and passing out leaflets describing one of the defendants in the above cases as a `Political Prisoner';

"And it further appearing to the Court that jurors and witnesses engaged in the above trials enter the courthouse by this and other entrances, and that the conduct of these persons will tend to influence or intimidate the said jurors and witnesses,

"NOW, THEREFORE, IT IS HEREBY ORDERED:

"(1) No picketing, parading or congregation of persons, or the passing out of handbills shall be permitted during the trial of these cases along either side of East Trade Street between South McDowell Street and South Alexander Street; along either side of South Alexander Street between East Trade Street and East Fourth Street; along either side of East Fourth Street between South Alexander Street and South McDowell Street, or on any part of the courthouse grounds, lawns, walkways or in the courthouse building.

"(2) The Sheriff of Mecklenburg County is hereby ORDERED AND DIRECTED to read a copy of this Order to those persons who are assembled or may assemble in the above area for the purposes stated and to post a copy of this Order in conspicuous places about the area described above.

"(3) Persons disobeying this Order shall be subject to being taken into custody and be subjected to proceedings as for contempt of Court."

Plaintiff was immediately served with a copy of the order and filed the suit on the same afternoon, seeking a declaration that the quoted order is unconstitutional and seeking a temporary order restraining its enforcement.

After due notice, hearing was conducted at nine o'clock on July 11, 1972, at which time plaintiff was represented by his counsel, Mr. George S. Daly, Jr., and the defendant, the State of North Carolina, was represented by Mr. Charles A. Lloyd, Staff Attorney from the office of the Attorney General of North Carolina.

The court takes judicial notice of the facts that the westernmost of the two adjacent city blocks described in the order of the Superior Court embraces the Courthouse and the ten-story Law Building, occupied almost exclusively by lawyers; that the easternmost of the two blocks is occupied by the City-County Law Enforcement Building and the Attorneys Building, also a large office building for lawyers; and that the local jail occupies portions of both of the two blocks in question; the main courtrooms air-conditioned rooms on the second for criminal jury trials are windowless, floor of the Courthouse, a massive, columned building of classic beauty which was constructed in the late 1920's. The area described by plaintiffs where they did their alleged picketing is 100 to 150 feet or so north of the front doors of the building.

A court sitting for the trial of cases has certain inherent powers, including powers to regulate the order of proceedings in the courtroom and to regulate activities in areas nearby which impede or threaten the processes of justice, and to prevent or punish for acts which directly interfere with the independence of judicial deliberations and the integrity of judicial decisions. The conduct and atmosphere of a trial must, of necessity, be calm and deliberative, and the proceedings must be as free as practicable from untoward interference. This is not to say that fairness can be guaranteed by a cordon sanitaire around judge, jury and witnesses during the actual trial; influences before the trial opens and anticipated reaction following a trial are bound to play a part in the thinking of jurors. It is an illusion to pretend that a few hours or days of isolation of court and jury from the outer world can guarantee fair trial; of more importance is the serious effort by court and jury to concentrate on the facts and issues before them in spite of outside influences, but to recognize such outside influences frankly and openly and to determine not to be affected by them. Nevertheless, protection of the judicial process does occasionally require some restraint upon participants and bystanders; and the ramifications of the power to punish for contempt and the power to make orders for the protection of court proceedings are extensive. See, for example, In Re Hennis, 276 N.C. 571, 173 S.E.2d 785 (1970); Blue Jeans Corporation v. Amalgamated Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969); McLucas v. Palmer, 309 F.Supp. 1353 (D.Conn.1970), affirmed, 427 F.2d 239 (2nd Cir. 1970), cert. denied, 399 U.S. 937, 90 S.Ct. 2271, 26 L.Ed.2d 808 (1970); 2 Strong's North Carolina Index 2d, "Contempt of Court," pp. 277, et seq.; 17 Am.Jur.2d, "Contempt," pp. 1, et seq.

The state has a legitimate interest in the fairness of judicial proceedings and is entitled to protect them by constitutional means.

A factual issue in all actions taken by courts to protect their processes is whether the conduct in question is in the "presence" of the court, or is a direct improper approach to a witness or juror, or constitutes what amounts to a "clear and present danger" to the integrity of the proceedings — an imminent rather than merely a likely threat to the administration of justice. Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Galyon v. Stutts, 241 N.C. 120, 84 S.E.2d 822 (1954).

Under the decisions just cited, freedom of speech and freedom of the press are accorded special protection against impairment through contempt procedures.

It needs also to be borne in mind that the emotional feelings of judges (the same may well be said of jurors) do not justify heavy-handed measures.

"Therefore, `The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil . . . The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.' Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947). `Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.' Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958)." In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). (Emphasis added.)

Factual questions, of course, exist in this case, whether the picketers with their particular placards and handbills exercising claims of free speech in fact constituted a clear and present danger to the fairness and integrity of the forthcoming judicial proceedings. Legal questions exist whether one with these handbills or placards is or is not entitled to the...