State v. Heath

• Decision Date: 02 June 1970
• Docket Number: Nos. 8607--8609,s. 8607--8609
• Citation: 177 N.W.2d 751
• Parties: 75 L.R.R.M. (BNA) 2204, 63 Lab.Cas. P 52,383 STATE of North Dakota, Plaintiff and Respondent, v. Mary HEATH, Defendant and Appellant. STATE of North Dakota, Plaintiff and Respondent, v. Carol DORSEY, Defendant and Appellant. STATE of North Dakota, Plaintiff and Respondent, v. Dwight REDFERN, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 751

177 N.W.2d 751

75 L.R.R.M. (BNA) 2204, 63 Lab.Cas. P

52,383

STATE of North Dakota, Plaintiff and Respondent, v. Mary HEATH, Defendant and Appellant.

STATE of North Dakota, Plaintiff and Respondent, v. Carol DORSEY, Defendant and Appellant.

STATE of North Dakota, Plaintiff and Respondent, v. Dwight REDFERN, Defendant and Appellant.

Nos. 8607--8609.

Supreme Court of North Dakota.

June 2, 1970.

Syllabus by the Court

1. Criminal contempt is a crime in every essential respect, and, where the offense is of sufficient gravity to be classified as a serious criminal contempt, a defendant so charged would be entitled to trial by jury under the decision of the United States Supreme Court in Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522.

2. The charge amounts to petty criminal contempt where the maximum penalty provided by statute for the offense is thirty days in jail and a $250 fine, and a defendant so charged may constitutionally be tried without a jury.

3. Picketing, although peaceful, where conducted for the purpose of aiding an illegal strike against a governmental employer, may be enjoined.

4. For reasons stated in the opinion, the final order and warrant of commitment entered against each of the defendants is affirmed.

Helgi Johanneson, Atty. Gen., Bismarck, and Richard B. Thomas, States Atty., and Wallace D. Berning, Asst. States Atty., Minot, for plaintiff and respondent State.

Pringle & Herigstad, Minot, for defendants and appellants.

Bruce M. Van Sickle, of McGee, Van Sickle, Hankla, Backes & Wheeler, Minot, amicus curiae.

STRUTZ, Judge, on reassignment.

The defendants in the three above-entitled actions were convicted of criminal contempt of court, under Section 27--10--01(3), North Dakota Century Code. This section provides that a court of record of this State may punish, as for a criminal contempt, any person guilty of any:

'3. Willful disobedience of any process or order lawfully issued or made by it; * * *.'

The record discloses that more than 100 persons teaching in Minot Public School District No. 1 went on strike on April 2, 1969, and the Minot schools were forced to close. As a result of the teachers' action, the school district commenced a civil suit to enjoin the strike. A temporary restraining order was issued by the district court on April 7, 1969. Such temporary order was followed, on April 9, 1969, after a hearing, by a permanent order. At that hearing, prior to the issuance of the permanent order, the court found, among other things, that the defendants were employed by Minot Public School District No. 1 for the school year 1968--1969; that the defendants had been on strike and were engaged in picketing and that such strike and picketing were unlawful; and that the defendants did intentionally violate and disregard the temporary restraining order issued by the court on April 7, 1969. On this record, the trial court ordered that the temporary restraining order be made permanent, and that the defendants, and each of them, be permanently restrained and enjoined from conducting any picketing, work stoppage, or strike against Minot Public School District No. 1, and the individual defendants were restrained from continuing to remain unlawfully absent from their posts of duty as public employees.

The record further shows that copies of the permanent restraining order were served, by the sheriff or one of his deputies, upon each of the defendants named, as shown by the returns of service, and that at the time such copies were served upon the defendants each one of them was shown the original signature of the Honorable Roy A. Ilvedson, judge of the district court, who issued the permanent restraining order, as such signature appeared on the original copy of the permanent restraining order.

It is charged that each of the three defendants whose cases now are before this court on appeal thereafter did violate and disobey the permanent restraining order of the district court. These three, together with twenty-one other teachers, were arrested for alleged willful disobedience of the permanent restraining order of the court. The acts of the defendants which were alleged to have been in violation of the court's order were not committed in the view or presence of the court, but affidavits setting forth the facts were presented to the court, and the court, on the strength of such affidavits, issued a warrant of attachment directed to the sheriff of Ward County, commanding him to arrest the accused and bring them forthwith before the court to answer for such alleged offenses.

It was found to be difficult to fix a time for hearing which was agreeable to all the parties, and a hearing on such contempt charges therefore was delayed. The matter finally came on for hearing before the court on Monday, August 18, 1969, at 10:10 p.m. At such hearing, Jan M. Sebby, of the firm of Pringle & Herigstad, appeared for and on behalf of the defendants, and Wallace D. Berning, assistant State's attorney of Ward County, appeared on behalf of the State. At such hearing, sworn evidence was produced on behalf of the State. Deputy Sheriff Heilmann testified that he had observed the defendant Mary Heath, on April 28, 1969--which was subsequent to the date of service of the permanent restraining order upon her--engage in picketing by walking back and forth across the entrance lane of the north gate of the Minot Air Force Base. The record discloses that as the defendant Heath walked back and forth across the entrance lane of Minot Air Force Base on such occasion, she accompanied other persons who were carrying picket signs referring to the Minot teachers' strike. Cross-examination of Deputy Sheriff Heilmann stressed that defendant Heath was not personally carrying a picket sign. However, we deem this immaterial because she was engaged in picketing.

Olaf Haaland, sheriff of Ward County, testified that he personally observed the defendant Carol Dorsey--at a time subsequent to service of the permanent restraining order upon her--engage in picketing by walking back and forth in front of Minot High School, carrying a picket sign.

Deputy Sheriff Soltis testified that he personally had seen the defendant Dwight Redfern--at a time subsequent to the date of service of the permanent restraining order upon him--engage in picketing by walking back and forth in front of the Board of Education building, carrying a sign on which appeared the words 'Happiness is Good Faith Negotiation.'

On this record, the court found the defendants guilty of criminal contempt and sentenced them to be confined in the county jail for a period of thirty days and to pay a fine of $250, plus $15 costs. The sentence imposed is the maximum sentence provided for under Section 27--10--02, North Dakota Century Code. The jail sentence in each case was suspended on condition of good behavior of the defendant, which was to include no further unlawful picketing.

From the final order and warrant of commitment entered in each case, each of the three defendants herein has appealed to this court.

In support of their appeals, the defendants urge a number of specifications of error. They first assert that the procedure provided for in Section 27--10-- 13, North Dakota Century Code, is unconstitutional, in that it permits the court to determine whether the accused has committed the offense charged, and that the defendant thus is denied his constitutional right to a trial by jury.

A contempt is a crime in every essential respect. Thus criminal contempt, which was the charge against each of the defendants, is a crime in the ordinary sense. It is a violation of the law, a public wrong, and it is punishable by fine or imprisonment, or by both. Sec. 27--10--02, N.D.C.C. As Justice Holmes said, in Gompers v. United States, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115:

'* * * These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.'

Since criminal contempt is a crime in every fundamental respect, our next question is whether it is a crime to which the jury provisions of the Federal and the State constitutions apply.

North Dakota has held that one charged with contempt is not entitled to a jury trial as a matter of right. State v. Markuson, 5 N.D. 147, 64 N.W. 934; State v. Finlayson, 41 N.D. 494, 170 N.W. 910.

Other courts have reached the same conclusion. Upper Lakes Shipping Ltd. v. Seafarers' International Union of Canada, 23 Wis.2d 494, 128 N.W.2d 73; Commonwealth v. McHugh, 326 Mass. 249, 93 N.E.2d 751; Weiss v. State ex rel. Cardine, 455 P.2d 904 (Wyo.1969).

Thus, in criminal contempt cases, a judge sits as both judge and jury, and his decision has the effect of a jury verdict. In re Adoption of Myers, 196 Tenn. 219, 265 S.W.2d 12.

So far as we have been able to determine, the above has been the law in a vast majority of jurisdictions, except where specific provision is made for trial by jury in contempt cases. In June of 1948, Congress enacted a law which provides that in all cases of contempt arising...