United States ex rel. Robson v. Malone
| Decision Date | 11 July 1969 |
| Docket Number | No. 17677.,17677. |
| Citation | 412 F.2d 848 |
| Parties | UNITED STATES of America ex rel. Judge Edwin A. ROBSON, Plaintiff-Appellee, v. Joanne MALONE and Patricia Kennedy, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James B. O'Shaughnessy, David Goldberger, John Henry Schlegel, David C. Long, Chicago, Ill., for defendants-appellants.
Thomas A. Foran, U. S. Atty., Michael B. Nash, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before KILEY, SWYGERT and FAIRCHILD, Circuit Judges.
These are appeals from ten and thirty day sentences of confinement for contempt of court. The district court denied bail. This court ordered release on bond and expedited the appeals.
The events involved occurred in the court room of the Honorable Edwin A. Robson, District Judge, on June 5, 1969. One proceeding before the court was the arraignment of fifteen persons charged with destroying selective service records.
Appellants are two young women. Joanne Malone is a high school teacher at St. Louis and a member of a religious order. Patricia Kennedy resides principally in California. She dropped out of high school at age 16 and has attended classes and lectures at several colleges, but without being enrolled. Each holds the opinion that the courts are often instruments of injustice.
Appellants were both present as spectators when court opened at 10 a.m. Miss Malone did not rise when the bailiff asked everyone to rise nor when the request was specifically directed to her. Judge Robson directed the marshal to take her into custody and stated that she was in direct contempt of court. She remained in the marshal's custody in another part of the building until brought back to court at 2 p.m.
Miss Kennedy left the court room after the arraignment, but returned about 11 o'clock during trial of a patent case. When a recess was called at 11:30, the bailiff directed that everyone rise. Miss Kennedy did not rise; Judge Robson ordered the marshal to take her into custody.
At 2 p.m. the court proceeded summarily under Rule 42(a) F.R.Cr.P. The court's certification of contempt included findings based on his observation of the events of the morning and appellants' responses to the court's questions in the afternoon. In so far as the court found that appellants' refusal to stand was wilful and was intended to express their disapproval of the manner in which courts administer justice, the proceedings support the findings.
The court sentenced Miss Malone to ten days, Miss Kennedy to thirty. The heavier penalty for Miss Kennedy probably reflects the court's conclusion that she returned to the court room at 11 o'clock with the intent to refuse to rise, and the court's finding (not supported by the transcript, but perhaps based on personal observation) that her "demeanor in responding to the court's questions was insolent, defiant and disrespectful."
Counsel for appellants argues that appellants' silent inaction was protected by the first amendment because it was intended as an expression of their opinions about courts and justice. He cites Tinker v. Des Moines Community School District (1969), 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. We think, however, that if the court could properly require people to rise in order to facilitate performance of the court's functions, the first amendment would not excuse performance of the requirement.
Appellants were spectators, and not parties to proceedings before the court, nor officers of the court. Whatever the case with respect to the latter two groups, we have some doubt about the power of the court to require spectators to perform purely ceremonial or symbolic acts. See West Virginia State Bd. of Educ. v. Barnette (1943), 319 U. S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. But we conclude that the traditional rising in unison of persons present in a court can reasonably be thought to contribute to the functioning of the court. It is a way of marking the beginning and end of the session, and probably serves to remind all that attention must be concentrated...
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U.S. v. Snider
...are inclined to think it is not, but at least one circuit has reached a conclusion directly to the contrary. 26 In United States ex rel. Robson v. Malone, 412 F.2d 848 (1969), the Seventh Circuit, in the context of a refusal to stand, expressed some doubt that a district judge was empowered......
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Sioux Falls Argus Leader v. Miller
...... the court has the authority to issue such proper orders as may be necessary from time to time.") (citing United States ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir.1969); Comstock v. United States, 419 F.2d 1128 (9th Cir.1969)); and Sheppard, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 6......
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In re Chase
...obstructing the administration of justice within the meaning of the contempt statute.4 We ruled to the contrary in United States ex rel. Robson v. Malone, 412 F.2d 848, 850, stating that the rising "requirement is sufficiently related to maintaining order in the actual presence of the court......
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Ex parte Krupps
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