State v. Cohen
| Decision Date | 07 October 1971 |
| Docket Number | No. 2,CA-CR,2 |
| Parties | The STATE of Arizona, Appellee, v. Eddie COHEN and Peter T. Bollander, Appellants. 238. |
| Court | Arizona Court of Appeals |
Roger C. Wolf, Tucson, for appellants.
Appellants, hereinafter referred to as defendants, were found to be in contempt of court for willfully violating a Preliminary Injunction issued by the Superior Court of Pima County which provided, Inter alia:
'NOW THEREFORE, IT IS ORDERED that you and each and all of you and those acting in concert with you are hereby immediately enjoined, pending a final disposition of this case on the merits, from interfering in any manner so as to unreasonably impede or interfere with the orderly administration and function of the University of Arizona and the buildings and/or grounds located thereon, and more particularly to refrain from:
1. Violent or disorderly conduct;
2. Injury to person or persons;
3. Injury to or destruction of property;
4. Interference with free access ingress or egress of anyone lawfully upon said property;
5. Seizure or exercise of unpermitted control of properties of the University of Arizona 7. Interference with the safety and/or welfare of the public or others properly using the buildings and/or grounds of the University.'
6. Conduct disruptive to or which interferes with scheduled educational functions at the University;
Defendant Cohen was sentenced to serve four months in the county jail and defendant Bollander three months. 1 Both defendants appeal from the judgment and sentences.
On May 5, 1970, at a time when college campuses across the nation were in turmoil as a result of United States involvement in Cambodia and the Kent State killings, the State of Arizona, on behalf of the University of Arizona, sought an injunction to enjoin and restrain certain named defendants and all those acting in concert with them from occupying or threatening to occupy buildings and grounds at the University. At the time some 150 to 200 students had occupied the building known as Old Main, which houses both Army and Air Force R.O.T.C. departments at the University, and had indicated that they would not leave the building that night. A hearing was held on the evening of May 5, before Judge Fenton in Superior Court and following the hearing, at approximately 11:00 p.m., Judge Fenton issued a Temporary Restraining Order which directed that the students were enjoined and restrained from occupying Old Main or other buildings on campus and that such order would remain in effect until May 8, 1970, when the court would hold a show cause hearing to determine whether 'the restraining order would become permanent pending final disposition of the matter on the merits.' Old Main was cleared later that evening.
On May 8, 1970, the show cause hearing was held after which the court issued a Preliminary Injunction which, by its terms, enjoined the named defendants and all persons acting in concert with them, or who received notice of the order, from interfering in any manner so as to unreasonably impede or interfere with the orderly administration and function of the University of Arizona and the buildings and/or grounds located thereon.
On May 15, 1970, a Petition for Citation for Contempt and Order to Show Cause was filed with the Superior Court based upon the sworn affidavit of Marvin D. Johnson, Vice-President of the University of Arizona, which alleged certain acts on the part of defendants Cohen and Bollander which affiant claimed violated the Preliminary Injunction of May 8, 1970.
After a five day trial, the court entered a Decision and Order which included the following:
'Among other things, the defendants openly defied reasonable requests from University officials including an attempt to bring in a second 'rock band' after a 10:30 curfew had been imposed; participated in mass marching and chanting activities on May 11, 1970, which march resulted in an interference with classes and a temporary physical 'take over' of the Administration building by filling the entire lobby with demonstrators, sitting on the floor, beating on countertops, banging sticks on the floor, etc; actions and words obviously designed to incite the large, noisy and unruly crowds, and lit gasoline soaked torches in a large crowd, near burnable property.'
The court's order found both defendants to be in contempt for violating the Preliminary Injunction of May 8. Defendants present the following questions for review:
'1. Did the failure of the trial court specifically to make findings of fact as to each defendant render the judgment insufficient to support conviction?
2. Does the evidence support a finding of contempt on the part of appellants as a matter of law?
3. Did the trial court's failure to indicate whether the proceeding was civil or criminal contempt constitute reversible error?
4. Was the failure of the plaintiff to pray for a temporary injunction a fatal defect in the jurisdiction of the court to enter a judgment of contempt of the temporary injunction?'
While contending that the proceedings in this case were governed by A.R.S. § 12--861 through § 12--863, defendants likewise contend that it was incumbent upon the trial court to make findings of fact or otherwise specify the facts upon which each defendant was found to be in contempt. In support of this contention, defendants cite several cases, none of which are in point.
Article 4, Chapter 7 of Title 12, Arizona Revised Statutes, deals with three distinctive types of contempt. A.R.S. §§ 12--861 through 12--863, set forth the procedure to be followed in those cases where a person willfully disobeys a lawful writ, process, order or judgment of a superior court by doing an act or thing therein or thereby forbidden which act also constitutes a criminal offense. Under the latter statutes procedure is set forth regarding the notice to be given to the alleged contemnor and the manner in which the alleged contempt is to be heard. Under A.R.S. § 12--863, the contemnor is given a trial and is entitled to a jury upon demand. Furthermore, the trial is to be conducted in the same manner as a trial for a misdemeanor. A.R.S. § 12--863 also provides for an appeal as in criminal cases. Nowhere in A.R.S. § 12--863 do we find any requirement that there be findings of fact or that there be a judgment setting forth facts of contempt. A.R.S. § 12--863, subsec. B simply provides that 'if the person allegedly in contempt is found guilty, judgment shall be entered * * *.'
A.R.S. § 12--864 provides that direct contempts and constructive contempts may be punished in conformity to the practice and the usage of the common law. Because direct contempts and constructive contempts are handled under the common law in a summary manner (constructive contempts in a little less summary manner, but still nevertheless summary), there is a requirement, for the purposes of appellate review, that there appear somewhere in the record a recitation of the facts constituting the contempt. This is the rule enunciated in Weiss v. Superior Court, 106 Ariz. 577, 480 P.2d 3 (1971), a direct contempt case, and Ellison v. Mummert, 105 Ariz. 46, 459 P.2d 306 (1969), a constructive contempt case.
Although the trial judge made several remarks during the course of the trial indicating that he thought he was trying a civil contempt, it is clear that the affidavit of contempt charged the defendants with the crimes of trespassing and disorderly conduct thereby requiring trial pursuant to A.R.S. § 12--863. It is equally clear that although the trial judge was laboring under a misapprehension as to the nature of the proceeding, all the procedural safeguards and requirements of A.R.S. § 12--862 and § 12--863 were met.
Defendant Cohen readily admitted on the witness stand the temporary take-over of the administration building. He further candidly admitted that the take-over was intended to be disruptive.
Defendant Bollander admitted that he lighted a torch. This occurred after he was warned by university officials, campus leaders, and other state officials that this would be a violation of the Preliminary Injunction. In spite of these warnings, defendant Bollander lighted a gasoline-soaked torch.
We do not agree with defendants' contention that the lighting of the torch did not constitute a violation of the restraining order. The events on the campus of the University of Arizona took place shortly
after the tragedy of Kent State where several students were killed when the National Guard attempted to put down a student demonstration. R.O.T.C. buildings across the nation had been the subject of destruction by arson or explosives by dissident forces on the campus. The R.O.T.C. facilities on the campus of the University of Arizona are located in a...
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