State ex rel. Burrell-El v. Autrey

• Decision Date: 10 May 1988
• Docket Number: No. 54401,R,BURRELL-E,54401
• Citation: 752 S.W.2d 895
• Parties: STATE ex rel. Tyroneelator, v. Honorable Henry E. AUTREY and Honorable James R. Dowd, Respondents.
• Court: Missouri Court of Appeals

Page 895

752 S.W.2d 895

STATE ex rel. Tyrone BURRELL-EL, Relator, v. Honorable Henry E. AUTREY and Honorable James R. Dowd, Respondents.

No. 54401.

Missouri Court of Appeals,

Eastern District,

Division Five.

May 10, 1988.

Motion for Rehearing or Transfer to Supreme Court Denied

June 21, 1988.

Application to Transfer Denied July 26, 1988.

Doris Gregory Black, St. Louis, American Jewish Congress, et al., amicus curiae.

Leonard J. Frankel, Edward M. Roth, Clayton, for relator.

Edward James Hanlon, James J. Wilson, St. Louis, for respondents.

SIMEONE, Senior Judge.

This is an original proceeding in prohibition to prohibit the respondents, Hon. Henry E. Autrey and Hon. James R. Dowd, Associate Circuit Judges in the City of St. Louis, from enforcing their orders of direct criminal contempt directed to relator for refusing to remove his headdress or "fez" while in court because of relator's alleged religious beliefs. We have jurisdiction. Mo. Const., Art. V, § 4. On March 2, 1988, we issued our preliminary order. We now make our preliminary order permanent.

I.

These proceedings began when relator was arrested on December 10, 1987, for carrying a concealed weapon. Bond was set.

On three separate occasions, relator appeared in court and was cited for contempt of court for refusing to remove his "fez" ¹ in the courtroom, because he alleged it was part of his religious attire as a member of the Moorish Science Temple of America. He claimed that wearing of the fez was part of his religious beliefs, and that he was required to wear it and was authorized to do so as a part of his constitutional right of the free exercise of religion under the United States and Missouri constitutions.

On December 18, 1987, relator appeared before respondent, Henry E. Autrey, Presiding Judge of Division 25 wearing his fez. Relator was told to remove his headdress. He refused on religious grounds. Relator was found in contempt, and sentenced to two days in jail, but was released on bond, which was reduced to $250.00. On December 22, 1987, respondent Autrey delivered "Findings of Fact in Order of Contempt" to relator's attorney.

On January 21, 1988, relator and his counsel again appeared in court on his bond before respondent, James R. Dowd, now presiding in Division 25, and again wore his fez. He was advised to remove the headdress but refused to do so. He was told he would be in contempt, but refused because the headdress was a part of his religious practices. Relator was found in contempt and assessed a fine of $1,000.00, which was stayed pending a ruling from a higher court.

Again, on February 17, 1988, relator and his counsel appeared before Judge Dowd for purposes of arraignment. Relator was requested to remove his headdress or be found in contempt. Again he refused on religious grounds. Relator refused to testify to explain his religion unless his leaders were present wearing their headdress. The court found relator in contempt and fined him another $1,000 which again was stayed.

On February 18, 1988, relator filed his petition for prohibition alleging that relator is a member of the Temple, a religious organization, and in accordance with the tenets of his religion is required to wear his head covered with a fez. The petition alleged that relator faced the untenable alternatives of not appearing in court and forfeiting his bond, or appearing in court with his headdress because of his religious beliefs, and being held in contempt. The petition prayed that the respondents be prohibited from enforcing their orders of contempt, and for an order prohibiting respondents, as well as other judges of the "Associate Circuit Court" from enforcing any written or unwritten local rule which prohibits the wearing of "hats" to the extent that such rule forbids the wearing of a religious headdress in observance of religious beliefs, and prohibiting respondents from holding relator in contempt or fining relator for refusal to remove his fez.

On February 29, 1988, respondents filed a motion to dismiss, or in the alternative to remand the cause, to determine the issues of good faith and sincere religious belief for the reason that relator has failed to prove that his religious beliefs and the practice of wearing a fez are sufficiently religious in nature to warrant the protection of the First Amendment, or that such religious belief is sincere. The motion was overruled.

In due time respondents filed their joint answer to the petition.

On March 22, 1988, the American Jewish Congress and the American Civil Liberties Union of Eastern Missouri sought leave to file a brief as amici curiae. The motion was granted.

II.

In this original proceeding, relator contends that while Missouri judges are given substantial discretion to maintain order, dignity and courtroom decorum, and may subject persons to deprivation of their liberty or rights granted by law, individuals have and possess the inalienable right to free exercise of religion subject only to the state's interests of preserving safety, peace and the good order of society. Relator also contends that the extraordinary remedy of prohibition is proper.

The brief of amici stresses that the contempt orders were issued in violation of the United States and Missouri constitutional protections of the free exercise of religion and thereby constitute an excess of jurisdiction. They seek a "vindication" of relator's right to free exercise of religion, and contend that respondents exceeded their jurisdiction by imposing orders of contempt against relator for his refusal to remove his fez--"an adornment of holy observance of his faith." Amici admit that the orderly administration of justice is an important, compelling interest of the state, and they recognize that adherents to any religious faith do not have a license to engage in irrational, disruptive conduct in the courtroom. They contend, however, that the respondents have not satisfied their heavy burden of showing that the wearing of a headdress impedes or obstructs the administration of justice or that it offends the dignity of the court.

III.

We need not discuss the substantive issues in detail for, in these proceedings, the proper procedures were not meticulously followed. We deal here with an alleged direct criminal contempt, as distinguished from other forms of contempt. Contempts fall into two categories, civil and criminal. Criminal contempt's purpose is to protect In direct contempt the court is entitled to act summarily. Certain acts, which are disruptive, disorderly, contemptuous, and insolent, or which attempt to intimidate the trier of fact to influence a decision, committed in the presence of the court during its session, and in the immediate view and presence of the court, and directly tending to interrupt the proceeding or to impair the respect due to its authority, are punishable as criminal contempt. See Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev., 183, 185 (1971); Dobbs, Remedies, 93 (1973). ² Of course, courts, by the nature of the judicial office, have the inherent power and authority to punish for contempt. State ex rel. Girard v. Percich, supra, 557 S.W.2d at 36. That authority extends to protect, preserve and vindicate the power and dignity of the law. Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976); Ramsey v. Grayland, 567 S.W.2d 682, 686 (Mo.App.1978).

                the dignity of the court and to protect the authority of its orders.  Criminal contempt, from the earliest days of the common law, springs from the inherent power of the courts to protect the judicial system established by the people as the proper and official method of settling disputes.   Mechanic v. Gruensfelder, 461 S.W.2d 298, 304 (Mo.App.1970);   Ex parte Ryan, 607 S.W.2d 888, 890 (Mo.App.1980);   State ex rel. Girard v. Percich, 557 S.W.2d 25, 36 (Mo.App.1977);   Osborne v. Purdome, 244 S.W.2d 1005, 1012, 29 A.L.R.2d 1141 (Mo. banc 1951), cert. den., 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952).  Contempts are also logically arranged and divided into direct and constructive or indirect.   Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 996 (1907);   McMilian v. Rennau, 619 S.W.2d 848, 851 (Mo.App.1981).  A direct contempt is one that occurs in the view and presence of the court or so near thereto so as to interrupt the proceedings.   Ex parte Ryan, supra, 607 S.W.2d at 890.   If the judge certifies the conduct was seen or heard and committed in the actual presence of the judge, a direct criminal contempt may be punished summarily provided that certain procedures laid down in the Rules and statutes are followed.  Criminal contempt, whether direct or constructive, embraces acts which are committed against the dignity of the law and the primary purpose of a sanction for criminal contempt is the vindication of public authority.   Curtis v. Tozer, 374 S.W.2d 557, 568-69 (Mo.App.1964).  The acts here, if contemptuous, are in this category
                

The Rules and statutes of Missouri define and establish the procedure for contempt. Section 476.110, R.S.Mo., 1986, provides that "[e]very court of record shall have the power to punish as for criminal contempt persons guilty of:

(1) Disorderly, contemptuous or insolent behavior committed during its session, in its immediate view and presence, and directly tending to interrupt its proceeding or to impair the respect due its authority;

(2) Any breach of the peace, noise or other disturbance directly tending to interrupt its proceedings;

(3) Willful disobedience of any process or order lawfully issued or made by it;

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Section 476.130 provides that any contempt committed in the immediate view and presence of the court may be punished summarily.

The proper procedure for direct, criminal, summary contempt is outlined in the Supreme Court Rules, statutes and judicial decisions. The proper procedure is "absolutely necessary" to any punishment for contempt. See R. Byers & J. Swaney, Jr Supreme Court ...