Ungar v. Sarafite

• Decision Date: 30 March 1964
• Docket Number: No. 167,167
• Citation: 11 L.Ed.2d 921,376 U.S. 575,84 S.Ct. 841
• Parties: Sidney J. UNGAR, Appellant, v. Hon. Joseph A. SARAFITE, Judge, etc
• Court: U.S. Supreme Court

376 U.S. 575

84 S.Ct. 841

11 L.Ed.2d 921

Sidney J. UNGAR, Appellant,

v Hon. Joseph A. SARAFITE, Judge, etc.

No. 167.

Argued Feb. 24, 1964.

Decided March 30, 1964.

Rehearing Denied May 4, 1964.

See 377 U.S. 925, 84 S.Ct. 1218.

Osmond K. Fraenkel and Emanuel Redfield, New York City, for appellant.

H. Richard Uviller, New York City, for appellee.

Mr. Justice WHITE delivered the opinion of the Court.

The appellant, Ungar, was adjudged guilty of criminal contempt for his conduct as a witness in a state criminal trial in a hearing presided over by the judge before whom the contempt occurred at trial. The New York Court of Appeals affirmed the conviction, 12 N.Y.2d 1013, 1104, 239 N.Y.S.2d 135, 240 N.Y.S.2d 168, 189 N.E.2d 629, 190 N.E.2d 539, and we noted probable jurisdiction to consider whether the procedures seemingly authorized by § 750 and 751 of the New York Judiciary Law, McKinney's Consol.Laws, c. 30, were consistent with the Due Process Clause of the Fourteenth Amendment. 375 U.S. 809, 84 S.Ct. 51, 11 L.Ed.2d 46. We have decided that the constitutional objections which this record shows to have been seasonably tendered to the New York courts and decided by them are without merit.

I.

The contempt proceeding grew out of the trial of Hulan Jack for conspiracy to obstruct justice and for violation of New York's conflict of interests laws. Ungar, a lawyer, was an important prosecution witness, familiar with the matters on which the charges were based and immune fro prosecution for his testimony on these matters before the grand jury. From the outset of the second Jack trial, Ungar, a hostile prosecution witness, engaged in much wrangling with the prosecutor over the form of the questions asked and was unresponsive to various questions. Although counsel for the defendant did not object, the witness believed that the prosecutor's ques- tions presented the defendant's case in a bad light or failed to elicit the whole truth.¹ On several occasions the trial judge instructed the witness to answer the questions as they were asked, if he could, but not to rephrase the questions or to offer testimony gratuitously.² When Ungar failed to heed these instructions, the judge admonished him in chambers 'to confine his answers to the questions' and to leave the defense to the accused's counsel; he warned the witness that he would hold him to the natural consequences of his acts. The pattern however, continued. On November 25, the third day Ungar was on the stand, the court instructed him to give a responsive answer to a question of apparent significance to the State's case. Thereupon Ungar, before answering, requested a recess, claiming that he was being 'pressured and coerced and intimidated into testifying' and that he was being 'badgered by the Court and by the District Attorney.' When the court granted a short recess but refused Ungar permission to leave the stand, the following ensued:

'The Witness: I can't testify, I'm sorry, your Honor. I am not in any physical or mental condition to testify.

'The Court: Mr. Witness, no one asked you anything. Nobody is questioning you. You are not testifying. We have taken a recess for about three minutes of silence, and we will take a few minutes.

'The Witness: I would like to leave the stand, your Honor.

'The Court: No, you may not leave the stand.

'The Court: Proceed, Mr. Scotti.

'The Witness: I am not going to answer questions, your Honor. I am not going to testify in this confusion, and the Court nor anyone else will make me testify in this emotional state. I am absolutely unfit to testify because of your Honor's attitude and conduct towards me. I am being coerced and intimidated and badgered. The Court is suppressing the evidence.

'The Court: You are not only contemptuous but disorderly and insolent.'³

The judge called a recess, during which coun el for the defendant requested the court to appoint a doctor to determine whether Ungar was malingering or incapable of testifying. Upon resumption, Ungar represented that he obtained his own medical assistance, the court agreed with Ungar that he was competent to testify, and denied the request. Ungar testified for another day without further incident.

The Jack trial ended on December 6, 1960, and during the afternoon of December 8, 1960, Judge Sarafite, the trial judge, pursuant to the New York procedure governing nonsummary trial of contempts, had served on Ungar a showcause order charging that Ungar's remarks from the stand on November 25 constituted a willful and disruptive contempt of court and ordering that the appellant appear on December 13 at 10 a.m. to defend against the charges. Judge Sarafite, presiding at the hearing, denied several motions for a continuance, and Ungar's retained counsel was permitted to withdraw upon informing the court that he had agreed to undertake the defense only if Ungar could obtain a continuance. After exhibits material to the charges were admitted into evidence, Ungar was asked to defend. He declined, arguing that a continuance and a hearing before another judge should be granted. The court found Ungar guilty of contempt and, taking into consideration Ungar's emotional state from the stress of the Jack trial, sentenced him to 10 days' imprisonment and imposed a fine.

The Appellate Division of the New York Supreme Court dismissed the appeal, the state procedure for review of nonsummary contempt proceedings, and denied the petition under Article 78, Civil Practice Act, the procedure for review of summary contempt convictions,⁴ both without opinion. 16 A.D.2d 617. The New York Court of Appeals affirmed, also without opinion. 12 N.Y.2d 1013, 239 N.Y.S.2d 135, 189 N.E.2d 629. It denied the appellant's motion for reargument, the only part of the record before this Court in which appellant's federal constitutional claims were asserted, and granted in part appellant's motion to amend the remittitur to show that certain constitutional questions were passed upon in the appeal. Treating both the appeal and the Article 78 proceeding identically, the Court of Appeals ruled in the amended remittitur that rights under the Fourteenth Amendment had been raised and passed upon and stated that 'appellant argued that such rights were violated by (1) the trial judge's refusal to grant an adjournment of the contempt proceeding upon proof of the engagement of his counsel; (2) the trial judge's invoking of summary power under section 751 of the Judiciary Law (Consol.Laws, c. 30), seven days after the end of the trial during which the contempt was committed, and (3) the same trial judge's presiding in the resulting contempt proceeding even though he was the judge 'personally attacked." In response to the third contention, the court ruled that the appellant's remarks were not a personal attack upon the judge. 12 N.Y.2d 1104, 240 N.Y.S.2d 169, 190 N.E.2d 539.

II.

We have determined that the appeal must be dismissed for want of jurisdiction. The Jurisdictional Statement contains a statutory attack on the validity of § 750, Judiciary Law, as unduly vague, and on § 751 as authorizing a judge who is personally attacked to preside over a contempt hearing and as authorizing summary proceedings after the trial in which the contempt occurs. Nothing in the record shows that these issues were tendered to the Appellate Division or the Court of Appeals prior to the motion for reargument or to amend the remittitur. Only the latter was granted and then only in part. Therefore the amended remittitur is determinative in this Court on the constitutional issues raised and necessarily passed upon in the state courts. Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3. That remittitur speaks of rights asserted and passed upon under the Fourteenth Amendment and does not indicate that a state statute was 'drawn in question' and sustained over constitutional objections. See Mergenthaler Linotype Co. v. Davis, 251 U.S. 256, 259, 40 S.Ct. 133, 134, 64 L.Ed. 255; Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 185—186, 65 S.Ct. 624, 627, 89 L.Ed. 857. The appeal is accordingly dismissed.⁵ Treating the appeal as a petition for certiorari, certiorari is granted, 28 U.S.C. § 2103, Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, limited, however, to the three constitutional issues which the amended remittitur states petitioner had argued and which, we assume, were the constitutional questions the New York Court of Appeals passed upon.

III.

Petitioner, Ungar, claims his constitutional rights to a fair hearing were violated because his contemptuous remarks were a personal attack on the judge which necessarily, and without more, biased the judge and disqualified him from presiding at the post-trial contempt hearing. The New York Court of Appeals rejected the claim and we see no error in this conclusion. Assuming that there are criticisms of judicial conduct which are so personal and so probably productive of bias that the judge must disqualify himself to avoid being the judge in his own case, we agree with the New York court that this is not such a case.

It is true that Ungar objected strongly to the orders of the court and to its conduct of the trial during his examination. His final outburst, the subject of the contempt, was a flat refusal to answer, when directed by the court, together with an intemperate and strongly worded comment on the propriety of the court's ruling. But we are unwilling to bottom a constitutional rule of disqualification solely upon such disobedience to court orders and criticism of its rulings during the course of a trial. See Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415.⁶ We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions. Apparently because Ungar was being required to...