State v. King

• Decision Date: 07 February 1978
• Docket Number: AFL-CI,Nos. 77-176 and 77-188,D,s. 77-176 and 77-188
• Parties: , 98 L.R.R.M. (BNA) 2371 STATE of Wisconsin, Plaintiff-Respondent, v. Thomas KING, Executive Director, AFSCME, Council 24, Wisconsin State Employees Union,efendant-Appellant, Wisconsin State Employees Union et al., Defendants. STATE of Wisconsin, Plaintiff-Respondent, v. WISCONSIN STATE EMPLOYEES UNION, COUNCIL 24, et al., Defendants-Appellants, Thomas King, Executive Director, AFSCME, et al., Defendants.
• Court: Wisconsin Supreme Court

Page 80

262 N.W.2d 80

82 Wis.2d 124, 98 L.R.R.M. (BNA) 2371

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas KING, Executive Director, AFSCME, Council 24,

Wisconsin State Employees Union, AFL-CIO,

Defendant-Appellant,

Wisconsin State Employees Union et al., Defendants.

STATE of Wisconsin, Plaintiff-Respondent, v. WISCONSIN STATE EMPLOYEES UNION, COUNCIL 24, et al.,

Defendants-Appellants,

Thomas King, Executive Director, AFSCME, et al., Defendants.

Nos. 77-176 and 77-188.

Supreme Court of Wisconsin.

Argued Jan. 5, 1978.

Decided Feb. 7, 1978.

Richard V. Graylow, argued and on brief for appellant Thomas king.

Lawton & Cates, Madison, on brief for appellants Thomas King and Wisconsin State Employees Union, James Campbell, Norma Chance and Rosalie Randall.

David C. Rice, Asst. Atty. Gen., argued and on brief for respondent.

Bruce F. Ehlke, Madison, argued and on brief for appellants, Wisconsin State Employees Union, James Campbell, Norma Chance and Rosalie Randall.

John D. Niemsto, Asst. Atty. Gen., argued and on brief for respondent.

Bronson C. La Follette, Atty. Gen., on brief for State of Wisconsin and Special Counsel to the Circuit Court for Chippewa County.

BEILFUSS, Chief Justice.

These two cases arise from a labor dispute between the Wisconsin State Employees Union, Council 24, representing the state employees, and the State of Wisconsin. The orders appealed from in both cases deal with contempt of court proceedings for the alleged violations of temporary injunctions which required the employees at two state mental health centers to refrain from picketing and to return to work.

The parties in both cases are the State of Wisconsin, the Union, and certain named officers and employees. The issues in both cases are basically the same and for that reason these issues will be decided in one opinion. For convenience, Case No. 77-186 will be referred to as "Central Center," and Case No. 77-178 as "Northern Center."

Judge BARDWELL, a circuit judge for Dane county, presided over the Central Center case, and Judge PFIFFNER, the circuit judge for Chippewa county, presided over the Northern Center case. Central Center is located in Dane county and Northern Center in Chippewa county. Both institutions are state owned and operated by the State for the care, consultation, training and education for developmentally disabled persons.

Because of an unresolved labor dispute between the State and the Wisconsin State Employees Union, a statewide strike of state employees represented by the Union was called in the summer of 1977.

In both cases, during the strike, the State of Wisconsin commenced civil actions against the Wisconsin State Employees Union and some of its officers and agents. The State sought an injunction restraining the defendants from engaging in or encouraging others to engage in the strike at the two centers. These actions were commenced by the Attorney General at the request of the secretary of the Department of Administration and the Acting Governor.

On July 11, 1977, a temporary injunction was issued in the Central Center action enjoining the defendants from engaging in or encouraging others to engage in the strike. On July 8, 1977, a like temporary injunction was issued in the Northern Center Case.

The employees in both cases ignored the temporary injunction and continued to strike in defiance of the injunction.

The strike was settled on July 17, 1977, and the employees returned to work forthwith. On July 20, 1977 the Attorney General received instructions from the secretary of the Department of Administration to compromise and discontinue all pending litigation pursuant to a non-recrimination clause agreed to by the Union and the State.

However, earlier in the day, on July 20th, the Attorney General had filed petitions for orders to show cause why the Union and designated employees should not be found in contempt of court for violating the temporary injunction. In the Central Center case the order to show cause was issued and the hearing set for July 28th. In the Northern Center case a like order to show cause was issued and the hearing set for July 27, 1977.

In Central Center the Attorney General filed a notice to dismiss. At the July 28th hearing Judge BARDWELL denied the motion and issued another order to show cause directing the Union to appear on September 12, 1977, in the contempt proceeding. On August 3d the trial court denied a motion by Thomas King, executive director of the Union, to dismiss the action and all proceedings.

The Attorney General was ordered to serve as special counsel for the September 12th hearing. King's subsequent motion to stay was denied. This court granted a temporary stay on August 31, 1977, and on September 8, 1977 King appealed from the various orders of the trial courts.

The proceedings in the Northern Center case were quite similar, but different in some important aspects. The Attorney General and the Union made motions to dismiss both motions were denied. Judge PFIFFNER announced the contempt hearing would be held and decided to hear the alleged contempt of one of the employees, Norma Chance. Counsel for the Union moved for substitution of judge, which was denied. Judge PFIFFNER then proceeded to hear the matter. He called and examined witnesses and found Norma Chance in contempt of court for her violation of the temporary injunction. A fine of $10 per day for six days was imposed. Judge PFIFFNER then ordered the Attorney General to represent the court as special counsel in contempt proceedings against other named individuals.

There is no real challenge to the validity of the orders granting the temporary injunctions. The legislature has said it is an unfair labor practice for state employees to strike, ¹ further, the only employees enjoined were those engaged in what may be regarded as essential services for the mentally disadvantaged at Central Center and Northern Center.

The Union and Norma Chance have appealed from the various orders.

The major issue is whether the court can conduct a civil contempt proceeding after the principal action has been settled.

In general there are two categories of contempt: civil and criminal. ² In some instances the same conduct can constitute civil or criminal contempt. ³ Several general rules have become well accepted. Usually a contempt action which seeks to vindicate the authority and dignity of the court is a criminal contempt, while a contempt which seeks to enforce a private right of one of the parties in an action is a civil contempt. This distinction is often expressed in the results which flow from the particular finding of contempt. If the order is coercive or remedial, the contempt is civil. If the order is purely punitive, the contempt is criminal. ⁴

When invoked to enforce a right of a party the contempt power manifests itself in fines or imprisonment (usually of an indeterminate duration), which can be purged if the party found in contempt obeys the order which led to the contempt. For example, if a party desires information and another party refuses to give it in spite of a court order commanding that he do so, that party may be held in civil contempt. ⁵

The fact that civil contempts are remedial or coercive, i. e., designed to force one party to accede to another's demand, is demonstrated by the statutory requirement that the sentences be purgable. ⁶ Civil contempt looks to the present and future and the civil contemnor holds the key to his jail confinement by compliance with the order. ⁷ On the other hand, the criminal contemnor is brought to account for a completed past action, his sentences are not purgable and are determinate. Criminal contempt is punitive. It is not intended to force the contemnor to do anything for the benefit of another party. ⁸

The distinction between the two forms of contempt is important because most of the constitutionally required bill of rights procedures and due process protections apply only to criminal contempt. With the major exception of contempt committed in the physical presence of the trial court (direct contempt), a criminal contemnor is entitled to, inter alia, an unbiased judge, In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 (1955), Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); a presumption of innocence until found guilty beyond a reasonable doubt, a right against self-incrimination, State ex rel. Rodd v. Verage, 177 Wis. 295, 317, 187 N.W. 830 (1922), Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911); notice of the charges, the right to call witnesses, time to prepare a defense, Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925); and a right to a jury trial if the sentence is for more than six months, Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). ⁹

The courts have evidently declined to extend these rights to the civil contemnor, not because he may not serve sentences as long or even longer than those served by a criminal contemnor but on the theory that these rights are unnecessary because he holds the key to his confinement.

In these cases both the parties and both the trial courts agree that the procedures utilized were for civil contempt. In the cases at hand the acts complained of could have been the basis for criminal contempt. ¹⁰ Although everyone concerned proclaims this to be a civil contempt, all the indicia of contempt point toward criminal contempt. These cases would have presented no foreseeable problems if they had been brought as criminal contempt.

On July 17, 1977, the strike by the Wisconsin State Employees Union against the State was settled. On July 20, 1977, the Attorney General petitioned the circuit courts for Dane and Chippewa counties to find the Union in contempt. Therefore at the time the...