United States v. Barnett

• Decision Date: 05 May 1965
• Docket Number: No. 20240.,20240.
• Citation: 346 F.2d 99
• Parties: UNITED STATES of America v. Ross R. BARNETT and Paul B. Johnson, Jr.
• Court: U.S. Court of Appeals — Fifth Circuit

346 F.2d 99 (1965)

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

No. 20240.

United States Court of Appeals Fifth Circuit.

May 5, 1965.

Leon Jaworski, W. H. Vaughan, Jr., Houston, Tex., for appellant.

Constance Baker Motley, New York City, for James H. Meredith.

Dugas Shands, Asst. Atty. Gen. of Miss., Charles Clark, Malcolm B. Montgomery, Jackson, Miss., Fred B. Smith, Ripley, Miss., M. M. Roberts, Hattiesburg, Miss., Garner W. Green, Sr., Jackson, Miss., for appellee.

ORDER

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

RIVES, JONES, GEWIN and BELL, Circuit Judges:

CIVIL CONTEMPT

This Court, in September 1962, entered its findings of fact, conclusions of law, and judgments of civil contempt adjudging Ross R. Barnett and Paul B. Johnson, Jr., in civil contempt of the temporary restraining orders of this Court entered September 25, 1962. There has since been substantial compliance with this Court's orders. It therefore appears that no further proceedings in civil contempt are needed, and that it is appropriate to enter an order formally terminating the civil contempt proceedings.

CRIMINAL CONTEMPT

Criminal contempt is a sui generis proceeding for the protection of the integrity of the Court. The criminal contempt proceedings against Ross R. Barnett and Paul B. Johnson, Jr., were instituted pursuant to the order and direction of this Court of November 15, 1962. (J. Gewin dissenting). Those proceedings are, therefore, within the control of the Court and the Court has the power and authority to order them dismissed.¹

At the present time no sufficient reasons exist for the further prosecution of the proceedings against Barnett and Johnson. In the light of substantial compliance with the Court's orders, considerations of respect for the Court do not require the further prosecution of the criminal contempt proceedings. Nor does such further prosecution appear necessary for the purpose of deterring others from committing offenses like or similar to the alleged acts of contempt. The Civil Rights Act of 1964 has been generally recognized as creating a status under which the "law of the land" is now beyond question. Indeed there has been widespread, voluntary compliance with the provisions of said Act. It is highly improbable that other persons will hereafter commit acts similar to those herein charged.

The lapse of time since this Court ordered the criminal contempt proceedings to be instituted, and the changed circumstances and conditions have rendered the further prosecution of criminal contempt proceedings unnecessary. The rationale at least in part of Hamm v. City of Rockhill, 1964, 379 U.S. 306, 315, 317, 85 S.Ct. 384, 391, 13 L.Ed.2d 300, where the Civil Rights Act of 1964 was applied retroactively to abate state sit-in prosecutions, was based on the purpose of the Act "to obliterate the effect of a distressing chapter of our history." It was held that no public interest was to be served in continuing the prosecution. And so it is here. In what we consider an appropriate application of restraint to judicial power, we close out another part of the same chapter.

It is fortunate that we can so conclude because there may be no fair alternative course. Jury trial as a matter of right has been ruled out by the Supreme Court. For reasons which need not be stated, jury trial as a matter of discretion would not be granted by majority vote of this Court. For the same acts for which they stand charged with criminal contempt, the defendants have already been tried and adjudged by this Court to be in civil contempt.² This Court has already found against them on all of the elements of criminal contempt, excepting only that of intent, willfulness. That state of mind must be determined by inference from evidence, most if not all of which has been introduced and considered by the Court in the civil contempt proceedings. While we know that every judge of this Court would do his conscientious best to try the criminal contempt proceedings fairly and impartially, we are doubtful, to say the least, whether we and the other judges may not have formed a fixed opinion that the defendants are guilty.³ Thus some, or all of the present membership of this Court may be disqualified from sitting on a trial on the merits of these criminal contempt charges.⁴ The statute⁵ makes no provision for any replacement judge to sit on this en banc court and we doubt whether one can properly be devised by judicial invention. It follows that a fair trial on the merits is the subject of doubt, and dismissal of the criminal proceeding is the only course open that is clearly consistent with fundamental fairness.

The civil contempt judgments will stand but no sanctions will be imposed. The criminal proceeding is dismissed for the reasons stated above.

It is so ordered.

TUTTLE, Chief Judge, and JOHN R. BROWN and WISDOM, Circuit Judges (dissenting).

TUTTLE, Chief Judge (dissenting):

With deference, I dissent. This Court, on January 4, 1963 commenced criminal contempt proceedings against Ross Barnett and Paul Johnson, Jr., upon the following assertions, among others:

"Probable cause has been made to appear from the application of the Attorney General filed December 21, 1962, in the name of and on behalf of the United States that on September 25, 1962, Ross R. Barnett, having been served with and having actual notice of this Court\'s temporary restraining order of September 25, 1962, wilfully prevented James H. Meredith from entering the offices of the Board of Trustees of the University of Mississippi in Jackson, Mississippi, and thereby deliberately prevented James H. Meredith from enrolling as a student in the University pursuant to this Court\'s order of July 28, 1962; that on September 26, 1962, Paul B. Johnson, Jr., acting under the authorization and direction of Ross R. Barnett, and as his agent and as an agent and officer of the State of Mississippi, and while having actual notice of the temporary restraining order of September 25, 1962, wilfully prevented James H. Meredith from entering the campus of the University of Mississippi in Oxford, Mississippi, and thereby deliberately prevented James H. Meredith from enrolling as a student in the University, pursuant to the orders of this Court. * * *"

As the Court believed then I believe now: the charges were sufficiently grave to require a trial. The gravity of the charges was enhanced, not lessened, by the fact that they were against a governor and lieutenant governor of a state.

I agree that the Court now has full power to continue the prosecution or to dismiss it without more. I fully respect the judgment of those who believe the public interest, including the integrity of the judicial system, calls now for a dismissal. I do not share that judgment. As I believed then, I believe now, that the public interest requires that a trial be held and that the guilt or innocence of these two respondents be determined.

JOHN R. BROWN, Circuit Judge (dissenting):

This Court, almost if not quite unanimously, has recently declared¹ that the Executive has the uncontrolled discretion to determine whether a prosecution once commenced must go forward. That principle, by way of analogy, is pertinent here. Criminal contempt, as the cases often and just recently point out, partakes much of a criminal proceeding. A major distinction, however, is the identity of the initiating agency — for traditional criminal proceedings, the Executive; for criminal contempt, the Court. Despite some fundamental differences, I think the parallel is close, and I therefore agree with the Court that a Court initiating a charge of criminal contempt must have the power to determine whether the proceeding once commenced must inevitably go forward to trial and resulting conviction or acquittal. The Judiciary clothed in this particular instance with awesome powers comparable to those of the Executive in criminal proceedings has the right, and probably the unreviewable duty, to determine whether the public interest will best be served by a discontinuance short of trial. My difference, therefore, is in the assessment of the public interest and how it will be furthered or hindered by this action.²

In concluding that the public interest requires that we continue on with the trial of the remaining charges we set in motion, I would emphasize, as does Judge Wisdom in Part V of his dissent, that I neither intimate guilt nor prejudge the outcome. Our dissents merely reiterate as echoes what our earlier order declared — there is probable cause and reasonable need for instituting and trying the charges. To conclude that we should adhere is no more a prejudgment than the entry of the order initiating the charges. Surely, the act of the Court in assaying the case and the public interest in its further continuance cannot transmute the dissenters' voice of difference into a prejudgment on the merits.

The Court, without demonstrating any factual support for its conclusion that all should halt now, dismisses the proceedings. Within the Court's announced opinion, I find no support for this generalized conclusion, nor can I find any when I examine all possible reasons.

We are dealing here with conduct of the State's highest officer. That conduct — whatever might be its legal sufficiency to supply the essential ingredient of willfulness — was and was intended by Governor Barnett to be a physical obstruction to this Court's decree that Meredith be admitted to the University. The conflict, on Governor Barnett's own words,³ was the State of Mississippi versus The United States of America. Consequently, as articulated by Judge Wisdom in Part IV of his dissent, this is more than contempt of this Court. The "contempt charge" is "the contempt of a governor of a state against the Nation."

Governor Barnett, for reasons officially proclaimed, undertook physically to prevent...