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A man merely wants to walk into the , park, but the officials are obstructing his constitutional right to do so.
I do not have to recall the case in Arkansas, and also the recent case in Mississippi, which finally culminated in the Barnett decision, wherein the district court had granted relief, the court of appeals affirmed it, and finally the Supreme Court of the United States affirmed it.
After all that, and after the courts had acted, the officials and the Governor of the State himself, took steps to obstruct the orders of the court for the purpose of denying a constitutional right which had been determined by the Supreme Court of the United States.
My point in referring to these three titles, and in not providing a jury trial as a matter of right, is that, as I have said, I believe there is a greater obligation upon the part of public officials to obey the law.
The Senator is a great constitutional lawyer. He knows the Constitution much better than I do. He knows that under article VI, section 3, of the Constitution officials are sworn to defend and obey the Constitution and the laws enacted pursuant thereto.
My amendment, by not providing to those officials the right of trial by jury in criminal contempt cases, does not take anything away from them. They do not enjoy that right now. The judge who tries the case, who knows the difficult situation better than anyone else, is under the admonition of the court in the Barnett case that there is a point beyond which he may not go, that he cannot impose too severe a penalty, and that in that case he would have to submit the case to trial by jury.
My amendment provides that right. Further, as we know, after the court cites a party for criminal contempt, he still enjoys all the protection of due process which he would have in other cases.
Senators who support the DirksenMansfield amendment are also making a judgment of policy. They are not claiming any constitutional basis for that amendment. It is a judgment of policy. What they are saying is that they believe that in every case under this act there should not be an absolute right of trial by jury, but in every case the court without a jury should have the right to punish up to a $300 fine or 30 days in jail. A $300 fine for some criminals might not amount to much, but a
day in jail for a man who is a decent, honest citizen places a blot on him that he can never wipe out.
Also, I say to my friends who say there ought to be a jury trial in every case involving criminal contempt, that they are not being entirely consistent. They assert that there should be a jury trial in every case of criminal contempt because it is a crime. It is a crime, of course, because it is defined as a crime; but the infamy of criminal contempt is the punishment-the imprisonment or the fine. But if their position is absolutely consistent I could say that in civil contempt a man could be put in jail for months, for as much as a year. That is just about as detrimental to him and as infamous as it would be if he were put in jail for 30 days under the Dirksen-Mansfield amendment.
I offered my amendment, first, because, as I have said, it more nearly accords with the decision in the case of the United States against Barnett where the Court did not set a 30- or 60-day limit, but merely said there shall be no punishment more than that given for a "petty offense" in cases tried without a jury. A petty offense in section 1 of title 18, United States Code, is defined as one for which punishment shall not exceed 6 months or $500. That is what the Court said. The second reason is that in every case Congress makes a judgment as to the circumstances under which it will afford a jury trial in a criminal contempt proceeding.
I have felt that, under those titles where the proceedings would be between individuals, and where no constitutional right was involved, there should be a trial by jury. But under title I, title IV, and section 301 of title III where a constitutional right is being denied, and where the chief parties in the proceeding are public officials who have had their day in court, but who still resist and refuse to obey the court orders, I believe the judge should be given, as he has been given throughout the centuries, the same kind of deterrent power to secure compliance with his orders and to be able to protect and enforce the constitutional rights of all our citizens.
Mr. LAUSCHE. Mr. President, will the Senator yield?
Mr. COOPER. I yield. Mr. LAUSCHE. Would the Senator's amendment make mandatory the right of a trial by jury in any of the provisions of the bill?
Mr. COOPER. Yes.
Mr. LAUSCHE. In which instance? Mr. COOPER. If the party claims it, under the public accommodations section, title II; under the employment section, title VII; under the Federal assistance section, title VI; and under section 302 of title III, which relates to public facilities. The last-mentioned section is so broad in its scope that I find it difficult to know exactly what behavior this section will reach.
That is correct.
Mr. LAUSCHE. Under certain provisions, if the accused asks for a jury trial, he is entitled to it as a matter of right, without any discretion in the court to deny it? Mr. COOPER. Mr. LAUSCHE. The other important phase of the Senator's amendment is that whenever the U.S. Government is the complainant, and the respondent is a public, governmental official, there will be no right of a trial by jury as a matter of right. But the court may grant it if it so desires.
Mr. COOPER. That is correct, except that I refer to three titles. It does not make any difference whether the United States is a party or not. That is another question. There is a section of the code which provides that if the United States is a party, there is no right of trial by jury. But even if Congress should strike out that part of titles I, III, and IVwhich would give the Attorney General the right to intervene and thus take out the United States as a party, my amendment would still apply.
Mr. LAUSCHE: In the Senator's opinion, does the amendment go beyond, or not as far as, the Dirksen-Mansfield amendment in providing the right of a trial by jury to a person who is charged with criminal contempt?
Mr. COOPER. In the titles that I have mentioned. title II. title VI. and title VII, and a part of title III, it would go beyond the Mansfield-Dirksen substitute in providing to parties an absolute right to a trial by jury in proceedings under those sections. It would not change the other titles as to existing law
Mr. LAUSCHE. I thank the Senator Mr. TALMADGE. Mr. President, I shall be very brief. First, I hold the Senator from Kentucky in very high. esteem, as he knows. I served with the Senator on the Committee on Agriculture and Forestry, and on the Subcommittee on Watershed Projects.
I have great respect for the ability of the Senator. The amendment which he
proposes strikes me as being very unusual, indeed. In the first place, it is being offered to a bill the purpose of which is to eliminate discrimination and segregation. The amendment of the Senator from Kentucky would institute both segregation and discrimination. It proposes to segregate certain classes of American citizens. It provides that some classes of American citizens are entitled to a jury trial, and some are not. It discriminates against certain classes of American citizens. It provides that some are entitled to a jury trial in criminal contempt cases, and that some are not. I cannot understand the logic of it.
The Senator has argued that if the United States is a party to a suit, the defendant ought not to have the right to a jury trial in criminal contempt cases. To my mind, that is all the more reason why a defendant should be entitled to a jury trial in criminal contempt cases.
If A sues B in any county or in any State in the country, the odds are constantly equal, unless it is some giant corporation with tremendous resources which is suing some small individual with limited assets. But when the United States of America files a suit in the name of the United States, 190 million are arrayed against one. The resources of an expenditure in excess of $100 billion a year are arrayed against those of one individual. The Justice Department, with its myriad of lawyers, is arrayed against one individual. That, to my mind, is all the more reason why a defendant should be entitled to a jury trial than under ordinary circumstances. The scales are uneven at the very outset. Then we propose to raise the might and the power of the Government of the United States against one small individual.
Mr. COOPER. Mr. President, will the Senator yield?
Mr. TALMADGE. I yield.
Mr. COOPER. The Senator was very kind when I had the floor. I do not wish to interrupt him but I must clarify that point. I did not argue as a basis for support of the amendment that it was because the United States was a party.
I do not care whether the United States is a party to the suit under title I, title III, or title IV at all.
My argument was not based upon the fact that the United States may be a party. I do not care whether it is a party or not-my argument is that titles
I, III, and IV involve the constitutional rights of citizens which we are trying to secure. Second, under these titles, the proceedings would be for the most part against officials who are obstructing the law. Otherwise there would be no necessity for criminal contempt proceedings against them.
Mr. TALMADGE. The Senator has made his point very clear. But I point out that some of the officials involved are officials in name only. The school trustee in the average county in America is rendering a patriotic service in the performance of his duty. He makes his living otherwise. He may be employed on the lake; he may plow; he may mine coal; he may operate a service station, but as a patriotic duty also, sometimes he serves on the school board. Sometimes he is elected by the citizens. Sometimes he is elected by the grand jury. The situation varies in different sections of the State, and in different States. But the Senator's amendment would deny to citizens, small and humble though they may be, the right of a trial by jury, when the power, the might, the finances, and the legal resources of the United States are arrayed against them.
I point out further that the Senator's amendment, on page 2, section 1103, is even more restrictive than the puny, mongrelized amendment which was agreed to in 1957 on the voting provisions. In 1957, the Senate passed the same identical amendment that I have at the desk; namely, the right of a jury trial in all criminal contempt cases, unless the contempt were committed in the presence of the court or the immediate presence of the court, or in the service of the summons or process.
It passed the Senate at that time by a vote of 51 to 42, if my memory serves me correctly. It was supported by the President of the United States, then Senator Lyndon B. Johnson, who made the concluding address. It was supported by John F. Kennedy, who was one of the cosponsors. It was cosponsored by the Democratic majority leader, the Senator from Montana (Mr. MANSFIELD].
It is utterly inconceivable to me that a Federal judge could put me in jail for 30 days without a jury trial in a criminal contempt case, and could not put me in jail for 30 days and one second without a jury trial. It is utterly inconceivable to me that a Federal judge could fine me $300 without a jury trial, but could not fine me $300.01 without a jury trial.
I do not believe that the scales of the Constitution on the jury trial provision can be weighed in values of 1 cent or 1 second.
I do not believe that Congress ought to put the same valuation on it.
I hope the Senate will reject the amendment offered by the Senator from Kentucky and will approve the amendment I have offered.
After passing the Senate, it went to the House, and the House placed a condition on it. The condition was that if a man were fined in excess of $300 or imprisoned in excess of 45 days, he would be entitled to a jury trial, but not otherwise. That puny, little, mongrelized jury trial provision that was agreed to by Congress would be wiped out by the Senator's amendment.
from Kentucky [Mr. COOPER] to the amendments offered by the Senator from Georgia [Mr. TALMADGE] for himself and other Senators. The yeas and nays have been ordered.
Mr. DIRKSEN. Mr. President, & parliamentary inquiry.
The PRESIDING OFFICER. Senator from Illinois will state it. Have the yeas and
Mr. DIRKSEN. nays been ordered?
The PRESIDING OFFICER. The yeas and nays have been ordered.
What is the question
Mr. DIRKSEN. before the Senate?
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Kentucky [Mr. COOPER), Amendment No. 573, to the amendments of the Senator from Georgia [Mr. TALMADGE] for himself and other Senators.
Mr. COOPER. Mr. President, my amendment would provide a jury trial as a matter of right in every title except in three particular titles. With regard to title I, section 301 of title III and title IV, it would not provide a jury trial as matter of right, but would leave that question to the discretion of the court. The distinction is that in those titles constitu tional rights are involved. The proceedings are chiefly against public officials, who are obstructing constitutional rights. But even then it would not take away from them any existing right which they have today under law.
Further, my amendment is in close accord with the decision of the Supreme Court in the case of the United States I support the civil against Barnett. rights bill in substance, and I believe my amendment is in accord with our system of law.
The PRESIDING OFFICER (Mr. McGOVERN in the chair). The question is on agreeing to the amendment of the Senator from Kentucky Mr. COOPER] to the amendments offered by the Senator from Georgia [Mr. TALMADGE], for himself and certain other Senators.
On this question, the yeas and nays have been ordered; and the clerk will call the roll.
The legislative clerk called the roll.
Mr. HUMPHREY. I announce that the Senator from Arkansas Mr. FULBRIGHT) is absent on official business.
I also announce that the Senator from California [Mr. ENGLE] is absent because of illness.
I further announce that the Senator from Arkansas [Mr. MCCLELLAN], and
Title XI: Jury Trial for Criminal Contempt
EDITORS' NOTE: Senator Morton introduced two amendments to the Talmadge amendment. The first would have limited the right of the accused to demand a jury trial in criminal contempt proceedings to cases arising under the Civil Rights Act. The first roll call vote on this amendment resulted in a tie, 45-45. After considerable parliamentary maneuvering, the amendment was rejected by a vote of 45-46. A second jury trial amendment introduced by Senator Morton was adopted by a roll call vote, 51-48. That amendment which appears in Section 1101 of the Act, provides for a jury trial, upon demand of the accused, in criminal contempt cases under all titles of the Act except Title I (voting cases). It also specifies maximum penalties upon conviction of fines of not more than $1,000 or imprisonment for not more than six months. The first four excerpts from the debate that appear below refer to the original Morton amendment; the last two excerpts deal with the modified version that ultimately was adopted.
struction of, as distinguished from punishment for violations of, any lawful writ, process, order, rule, decree, or command of the court in accordance with the prevailing usages of law and equity, including the power of detention.
"SEC. 1102. Section 151 of part V of the Civil Rights Act of 1957 (71 Stat. 638; 42 U.S.C. 1995) is hereby amended by striking out the second and third provisos to the first paragraph thereof, and inserting in lieu thereof the following: 'Provided further, That in any such proceeding for criminal contempt, the accused, upon demand therefor, shall be entitled to a trial before a jury, which shall conform as near as may be to the practice in other criminal cases.'
On lines 15, 16, and 17 of page 11, strike out subsection (c) of section 205.
On line 8 of page 54, change the designation of title XI to title XII.
On lines 9, 14, 22, and 24 of page 54, change the designations of sections 1101, 1102, 1103, and 1104, to sections 1201, 1202, 1203, and 1204, respectively.
Mr. MORTON. Mr. President, the purpose of my amendment is to limit the application of the Talmadge amendment to criminal contempt cases arising under this bill alone. This change should accomplish two things. First, by limiting the jury trial provisions to the provisions of II.R. 7152, the Senate could expedite consideration of the business at hand. Should Senators continue to discuss the original Talmadge amendment. granting jury trial to all criminal con