United States v. Barnett, No. 20240.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
PartiesUNITED STATES of America, v. Ross R. BARNETT and Paul B. Johnson, Jr.
Decision Date09 April 1963
Docket NumberNo. 20240.

330 F.2d 369 (1963)

UNITED STATES of America,
v.
Ross R. BARNETT and Paul B. Johnson, Jr.

No. 20240.

United States Court of Appeals Fifth Circuit.

April 9, 1963.


Before TUTTLE, Chief Judge, RIVES, CAMERON, JONES, BROWN, WISDOM, GEWIN and BELL, Circuit Judges.

PER CURIAM.

The above members of the Court of Appeals for the Fifth Circuit, sitting en banc, being evenly divided in their opinion as to the correct answer to a question of law arising in this cause, and the Court, desiring instruction concerning it for the proper decision of the cause which is now pending before the Court, hereby certifies the following question to the United States Supreme Court:

Where charges of criminal contempt have been initiated in this Court of Appeals against two individuals, asserting that such individuals willfully disobeyed a temporary restraining order of the Court, which order was entered at the request of the United States, acting as amicus curiae pursuant to its appointment by an order of the Court which granted to it, among other rights, the right to initiate proceedings for injunctive relief, and the acts charged as constituting the alleged disobedience were of a character as to constitute also a criminal offense under an Act of Congress, are such persons entitled, upon their demand, to trial by jury for the criminal contempt with which they are charged?

A statement of the nature of this cause and of the facts on which the certified question arises, as required by Supreme Court Rules 28-29 follows:

1. The case presents the certified question of law relating to criminal contempt arising out of the case of Meredith, et al. v. Fair, et al., 5 Cir., 313 F.2d 534. This Court in the opinion of June 25, 1962, in Meredith v. Fair, 5 Cir., 1962, 305 F.2d 343, cert. denied, 1962, 371 U.S. 828, 83 S.Ct. 49, 9 L.Ed.2d 66, reversed the decision of the District Court and remanded it with directions.1

Thereafter on July 27, 1962, this Court by opinion and order at 306 F.2d 374, took further action. After setting aside a stay of execution of this Court's mandate pursuant to 28 U.S.C.A. ? 2101(f) by one of the Judges of this Court, the Court then directed that its mandate be

330 F.2d 370
recalled and amended in order to make "explicit the meaning that was implicit in this Court's conclusions as expressed throughout its opinion in this cause, dated June 25, 1962." 306 F.2d 374, 378. The opinion then prescribed the terms of the amended mandate and order. The case was reversed and remanded with directions to the District Court "to grant all relief prayed for * * * and to issue forthwith a permanent injunction against each and all of the defendants-appellees * * * enjoining and compelling each and all of them to admit * * * Meredith, to the University of Mississippi * * *. Such injunction shall in terms prevent and prohibit said defendants-appellees, or any of the classes of persons referred to from excluding the plaintiff-appellant from admission to continued attendance at the University of Mississippi. * * *" This Court then said it would order its own injunction in these terms
"Pending such time as the District Court has issued and enforced the orders herein required and until such time as there has been full and actual compliance in good faith with each and all of said orders by the actual admission of plaintiff-appellant to, and the continued attendance thereafter at the University of Mississippi, this Court herewith issues its own preliminary injunction enjoining and compelling each and all of said parties to admit plaintiff-appellant to, and allow his continual attendance at the University of Mississippi, further prohibiting and preventing said parties or any of them from excluding said plaintiff-appellant from attendance to and continued attendance thereafter on the same basis as other students at the University of Mississippi." 306 F.2d 374, 378.

2. On July 28, 1962, a formal order was entered by this Court in like terms to effectuate the amended mandate and orders to the District Court and providing for the preliminary injunction issued by this Court. This order was also stayed, but on August 4, 1962, this Court vacated the stay or stays granted on July 28 and July 31, 1962.2

This order likewise being stayed, the matter was presented by Meredith to Mr. Justice Black, Circuit Justice, who on September 10, 1962, vacated all of these stays with the further order "that the judgment and mandate of the Court of Appeals shall be effective immediately" and "pending final action by this Court on the petition for writ of certiorari" the "respondents be, and they are hereby enjoined from taking any steps to prevent enforcement of the United States Court of Appeals' judgment and mandate."3 83 S.Ct. 10, 9 L.Ed.2d 43, 7 Race Relations Law Reporter, Fall 1962, p. 745.

3. On September 18, 1962, this Court (Judges BROWN, WISDOM and BELL), after first ascertaining from the District Court that it declined to enter an order in this form, entered its order allowing the United States to appear in the case. The order recited "It appearing from the application of the United States, filed this day, that the interests of the United States in the due administration of justice and the integrity of the processes of its courts should be presented in these proceedings * * *"; the order then prescribed:

"It is ordered that the United States be designated and authorized to appear
330 F.2d 371
and participate as amicus curiae in all proceedings in this action before this Court and by reason of the mandates and orders of this Court of July 27, 28, 1962, and subsequently thereto, also before the District Court for the Southern District of Mississippi to accord each court the benefit of its views and recommendations, with the right to submit pleadings, evidence, arguments and briefs and to initiate such further proceedings, including proceedings for injunctive relief and proceedings for contempt of court, as may be appropriate in order to maintain and preserve the due administration of justice and the integrity of the judicial processes of the United States."4

4. On September 20, 1962, the United States filed an application for further injunctive orders. This verified petition brought to the attention of this Court the fact that on September 19, 1962, in Meadors et al v. James Meredith et al, the Chancery Court, Second District, Jones County, Mississippi, Cause No. 19365, had issued its injunction against Meredith, the Board of Trustees, various University officials, the United States Department of Justice, the Federal Bureau of Investigation, the Office of the Attorney General of the United States, and all United States Marshals and Deputy Marshals. The order of the State Court enjoined and prohibited such persons "from doing anything or performing any act, the execution of which is intended to enroll and register the Negro, James Meredith, as a student in the University of Mississippi; * * *."5

The Government's application also advised the Court of the enactment by the Mississippi Legislature approved by the Governor of Mississippi Senate Bill No. 1501, the effect of which made it a criminal offense for a person against whom any "criminal proceeding is pending" to "* * * attempt * * * to enroll in any of the institutions" of higher learning specified in the Act.6 The application likewise informed the Court of the action of the Justice of the Peace Court in Jackson, Mississippi, on September 20, 1962.

On September 20, 1962, this Court (Circuit Judges BROWN, WISDOM and BELL) entered its further injunctive order. It recited that "This matter is now before this Court on Petitions for Orders supplementing this Court's Order of July 28, 1962, to (1) restrain the enforcement of S.B. 1501 * * *; (2) restrain any compliance with or enforcement of the injunction issued by the Chancery Court of Jones County, Mississippi, dated September 19, 1962 * *; (3) restrain the arrest of James Meredith on a conviction had in the Justice of the Peace Court in Jackson, Mississippi, on September 20, 1962 * * *." The Court further recited that it "appearing that S.B. 1501; the aforesaid injunction issued by the State Court and the conviction of James Meredith each constitute an interference with and obstruction of this Court's injunction of July 28, 1962." This Court thereupon ordered "that the appellees-respondents, their agents, employees and persons acting in concert with them or persons having actual notice of this order, including law enforcement and public officials in Mississippi, State, County and Municipal * * *" were enjoined and restrained from "(1) enforcing * * * the provisions of S.B. 1501 against James Meredith, or any other persons * * *. (2) taking any steps to effectuate the conviction and sentence on September 20, 1962, in the Justice of the Peace Court in Jackson, Mississippi * * *; or arresting him or any other persons including federal officials or taking * * * any other action which has the purpose or effect of interfering with the enrollment of James Meredith * * *. (3) taking or tion issued by the Chancery Court of refraining from taking any action to

330 F.2d 372
comply with or to enforce the injunc-Jones County, Mississippi, on September 19, 1962 * * *." The order concluded with this paragraph: "(4) This order is not intended to limit the authority of the District Court to proceed with respect to the matters referred to in paragraphs (1) and (2) of this order.7

5. On September 21, 1962, the United States, amicus curiae, filed an application seeking an order to show cause why the Board of Trustees and certain administrative officials of the University should not be held in civil contempt.

This Court (Circuit Judges BROWN, WISDOM and BELL) on September 21, 1962, entered its show cause order. The order recited that it "appearing from the application of the United States, amicus curiae, filed this day, that each of the defendants above...

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21 practice notes
  • Entergy Arkansas, Inc. v. Nebraska, No. 02-3747.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 18, 2004
    ...Our research has uncovered no original action between sovereigns in which a jury has been empaneled. Cf. United States v. Barnett, 330 F.2d 369 (5th Cir.1963) (opinion of Gewin, J.) (describing the three known instances of trial by jury in the Supreme Nebraska's contract analogy might have ......
  • United States v. Pyle, Crim. No. 80-218 to 80-221.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 14, 1981
    ...that it had not. See Clark v. Boynton, 362 F.2d 992, 996-999 (5th Cir. 1966). Of the reported cases found, only United States v. Barnett, 330 F.2d 369 (5th Cir. 1963), certified question answered in the negative, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), discusses the applicability ......
  • M.E. v. T.J., No. COA18-1045
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 31, 2020
    ...a new question raised only in a brief filed by an amicus curiae, by leave of court, will not be considered.’ " United States v. Barnett , 330 F.2d 369, 423 n.6 (5th Cir. 1963) (citations omitted), certified question answered , 376 U.S. 681, 84 S.Ct. 984, 12 L. Ed. 2d 23 (1964). Further, ami......
  • Hoots v. Com. of Pennsylvania, No. 80-2116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 26, 1981
    ...F.2d 425 (5th Cir. 1963). An even more compelling example of the power of the Court of Appeals was evidenced in United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) (the James Meredith case), cert. denied, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), where the appellate court, sittin......
  • Request a trial to view additional results
20 cases
  • Entergy Arkansas, Inc. v. Nebraska, No. 02-3747.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 18, 2004
    ...Our research has uncovered no original action between sovereigns in which a jury has been empaneled. Cf. United States v. Barnett, 330 F.2d 369 (5th Cir.1963) (opinion of Gewin, J.) (describing the three known instances of trial by jury in the Supreme Nebraska's contract analogy might have ......
  • United States v. Pyle, Crim. No. 80-218 to 80-221.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 14, 1981
    ...that it had not. See Clark v. Boynton, 362 F.2d 992, 996-999 (5th Cir. 1966). Of the reported cases found, only United States v. Barnett, 330 F.2d 369 (5th Cir. 1963), certified question answered in the negative, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), discusses the applicability ......
  • M.E. v. T.J., No. COA18-1045
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 31, 2020
    ...a new question raised only in a brief filed by an amicus curiae, by leave of court, will not be considered.’ " United States v. Barnett , 330 F.2d 369, 423 n.6 (5th Cir. 1963) (citations omitted), certified question answered , 376 U.S. 681, 84 S.Ct. 984, 12 L. Ed. 2d 23 (1964). Further, ami......
  • Hoots v. Com. of Pennsylvania, No. 80-2116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 26, 1981
    ...F.2d 425 (5th Cir. 1963). An even more compelling example of the power of the Court of Appeals was evidenced in United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) (the James Meredith case), cert. denied, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), where the appellate court, sittin......
  • Request a trial to view additional results
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