State University of New York v. Denton

• Decision Date: 05 November 1970
• Citation: 316 N.Y.S.2d 297,35 A.D.2d 176
• Parties: STATE UNIVERSITY OF NEW YORK, Respondent, v. Robert K. DENTON et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 297

316 N.Y.S.2d 297

35 A.D.2d 176

STATE UNIVERSITY OF NEW YORK, Respondent, v. Robert K. DENTON et al., Appellants.

Supreme Court, Appellate Division, Fourth Department.

Nov. 5, 1970.

Herald Price Fahringer, Jr., and Philip B. Abramowitz, John W. Condon, Jr., Willard H. Myers, III, Buffalo, for appellants.

John C. Crary, Jr., Albany, for respondent (Thomas H. Winfield, Albany, of counsel).

Saul Touster, New York City, for amicus curiae American Assn. of University Professors.

Before DEL VECCHIO, J.P., and MARSH, WITMER, BASTOW and HENRY, JJ.

OPINION

FRANK DEL VECCHIO, Justice Presiding:

Appellants, 45 members of the faculty of the State University of New York at Buffalo, appeal from a judgment adjudging them guilty of criminal contempt for violating a preliminary injunction issued by Supreme Court, Erie County. Execution of the 30-day jail sentence has been stayed pending determination of the appeal.

In the course of student disturbances and disorders on the University campus in late February 1970 the administration requested the aid of the Buffalo city police. As a consequence, a sizable number of the public police force moved onto the campus where clashes with students ensued. Members of the University administration were barred from campus offices and a basketball game was disrupted by students demanding the removal of the police officers. The State concedes that the appellants here, as distinguished from the students, 'were not party to the violent and disruptive actions leading to the injunction.'

In an attempt to prevent further acts of violence, the University on February 27, by order to show cause, commenced an action against 13 named students and John Doe and Jane Doe for a permanent injunction. The order to show cause, which was coupled with a temporary restraining order, required the named students to show cause why a temporary injunction restraining certain conduct on the campus should not issue. On March 5, the return day of the show cause order, no appearance was made on behalf of the students, and an order was made enjoining the students 'and all other persons receiving notice of this preliminary injunction, whether acting individually or in concert' (1) from acting within or adjacent to plaintiff's buildings in such unlawful manner as to disrupt or interfere with plaintiff's lawful and normal operations or unlawfully to interfere with ingress to or egress from such properties or otherwise to disrupt the lawful educational function of the university, and (2) from employing unlawful force or violence or the unlawful threat of force and violence against persons or property.

The preliminary injunction was served by posting copies at various locations on the campus.

On March 11 the Faculty Sentate of the University passed a resolution urging the acting president of the institution to order the withdrawal of the police from the campus, but he took no such action.

The judgment we are reviewing found appellants faculty members guilty of willfully violating the provisions of the preliminary injunction of March 5 in that on March 15, acting individually and in concert with each other and in concert with others with notice of the preliminary injunction, they entered the office of the president of the University located on the campus and unlawfully refused to leave the office when asked to do so. Appellants were not among the named defendants in the injunction action, were not parties to the application for the temporary injunction and were never personally served with the order of March 5.

The threshold question to be considered, therefore, is whether appellants were bound by the order of March 5, which was addressed to the named student defendants and 'all persons having knowledge' of the order, and whether accordingly appellants may be found guilty of criminal contempt for its violation. Well settled principles of law require a negative answer to the inquiry. The rules respecting preliminary injunctions were laid down in the landmark case of Rigas v. Livingston, 178 N.Y. 20, 70 N.E. 107. There, speaking of the statutory authority for the issuance of such injunctions (Code of Civil Procedure § 604, which is substantially identical in its critical aspect to the present authority, CPLR § 6301), the Court of Appeals said: of Appeals said:

'In terms the Code authorizes an injunction against the defendant only, not the whole world. * * * Therefore, so far as the order purported to restrain all other persons having knowledge of the injunction, this provision was inoperative to enlarge its effect. It is true that persons not parties to the action may be bound by an injunction if they have knowledge of it, provided they are servants or agents of the defendants, or act in collusion or combination with them. * * * but the underlying principle in all cases of this class, on which is founded the power of the court to punish for the violation of its mandate persons not parties to the action, is that the parties so punished were acting either as the agents or servants of the defendants, or in combination or collusion with them or in assertion of their rights or claims. Persons, however, who are not connected in any way with the parties to the action, are not restrained by the order of the court.' (pp. 24--25, 70 N.E. p. 108)

These principles were reaffirmed in People ex rel. Stearns v. Marr, 181 N.Y. 463, 74 N.E. 431; Briddon v. Briddon, 229 N.Y. 452, 128 N.E. 675; Chase National Bank v. Norwalk, 291 U.S 431, 54 S.Ct. 475, 78 L.Ed. 894; International Brotherhood, etc. v. Keystone Freight Lines, 10 Cir., 123 F.2d 326, and in the frequently cited opinion of Judge Learned Hand in Alemite Mfg. Corp. v. Staff, 2 Cir., 42 F.2d 832, in which he said at pages 832--833:

'* * * (N)o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is Pro tanto brutum fulmen, and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court. Thus, the only occasion when a person not a party may be punished, is when he has helped to bring about, not merely what the decree has forbidden, because it may have gone too far, but what it has power to forbid, an act of a party. This means that the respondent must either abet the defendant, or must be legally identified with him.'

Measured by these criteria, the appellants were not made subject to the preliminary injunction by the language 'all persons receiving notice of this preliminary injunction'. There is no basis on the facts presented for the conclusion that appellants, who had no opportunity to be heard in the injunction proceedings, were subject to punishment for violation of the order of March 5. (Dixon v. Talerico, 217 App.Div. 191, 217 N.Y.S. 482.) 'The courts * * * may not grant an enforcement order or injunction so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.' (Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 13, 65 S.Ct. 478, 481, 89 L.Ed. 661.)

We need not reach the question whether there was an adequate showing to justify Special Term's conclusion that appellants had knowledge of the preliminary injunction because we conclude that...