Senate

6-8-64

pp. 12953, 12954

Mr. MANSFIELD. Mr. President, we have spent an inordinate amount of time considering the various arguments, proposals, and delicacies in the field of criminal contempt and its alleged conflict with the constitutional right to a trial by jury. The pending amendment does not constitute a fresh approach or answer to the conflicting view but rephrases that which has already been offered to the Senate for consideration.

As I said some days ago when I spoke against the original Morton amendment, there is no constitutional right to a jury trial in criminal contempt cases in the Federal courts, nor has the Constitution ever been so interpreted by the Supreme Court since the founding of our Republic; however, there is no constitutional prohibition against the legislature granting a jury trial in such cases. The question therefore is whether Congress, as a matter of legislative policy, should grant such a privilege. I urge meeting the issue on these terms rather than beclouding it by declaring that there is a constitutional abridgment in continuing the traditional and essential power of the judiciary to try criminal contempt without a jury, as has been argued the past several weeks.

The pending Morton amendment clearly would take away the discretion and right of the judiciary to try criminal contempt without a jury in all cases arising under this bill with the exception of title I. The accused would have the discretion to determine whether the court should submit the question to the jury. The issue therefore presented by

the Morton amendment is whether we should dilute the traditional and constitutional power of the Federal judiciary in criminal contempt cases to enforce its own orders, vindicate its own dignity, and protect itself from insult without the assistance of a jury.

Although I dislike repeating the thought and argument I made weeks ago in opposing the original Morton amendment, I feel justified because the basic issue is the same. What is the nature of a criminal contempt under this act and what would be the background and proceedings necessary before ever reaching the issue of a possible criminal contempt citation?

A suit would be brought under the act claiming a violation of one of its provisions. The court would consider the complaint on its merits, and after notice to and hearing argument by the named respondent, the court would issue its order. If this order were objected to as invalid by force of the Constitution, by force of a misapplication of the law, or because the basis of the order was not founded upon fact, it could be appealed through the court of appeals to the Supreme Court. If the court order could withstand these appellate attacks and still be found just, fair, and valid, the party subject to the order would then be under compulsion to comply. If he then failed to abide by the order, he would be directed to show cause why he should not be cited for criminal contempt; thus, he would be afforded additional notice and hearing prior to any final citation for contempt. This is the nature of the act we are discussing. This is the background necessary to reach the question of whether the then recalcitrant litigant should be afforded a jury trial as a matter of right, regardless of the punishment to be inflicted. In this context,

The South Carolina Supreme Court recently held in the case of State v. Goff (88 S.E. 2d 788, 1955) that the power to punish contempt summarily is an "implied and necessary power without which contumacious conduct could well destroy the authority of the court." The South Carolina Code, 1962, in title 10, section 1738, provides that disobedience of a court order "may be punished by the judge as for a contempt."

In North Carolina the principle is set out in Sofie Mfg. Co. v. Arnold (228 N.C. 375, 389), decided in 1947; in Texas the leading cases are Crow v. The State (24 Tex. 12, 13) and Ex parte Winfree (153 Tex. 12)—the former decided in 1859, the latter in 1953; in Virginia, the general assembly attempted to authorize by statute the right to a jury for contempt, but the Virginia Supreme Court of Appeals declared such right to a jury trial violative of the State constitution; The Virginia Supreme Court said in Carter v. Commonwealth (32 S. E. 780) in rendering its decision:

The power to punish for contempt is inherent in the courts, and is conferred upon them by the Constitution by the very act of their creation. It is a trust confided and a duty imposed upon us by the sovereign people, which we cannot surrender or suffer to be impaired without being recreant to our duty.

In Alabama the leading case is Ex Parte Evett (264 Ala. 675) decided in 1955; in Arkansas, the Supreme Court of Arkansas said in Freeman v. State (188 Ark. 1058, 1934):

The power of punishment for contempt is Independent of statutory authority, being inherent in and an immemorial incident of Judicial power, its conclusions to be reached and judgments found without the intervention of a jury.

In Florida, section 38.22 of the Annotated Statutes (1961) provides that in contempt cases "the court shall proceed to hear and determine all questions of fact and law." This power of the State court was judicially confirmed in State v. Lewis (80 So. 2d 685) decided in 1955.

In Georgia, a jury trial may be had in the court's discretion for a criminal

In Iowa, section 665.2 of the Iowa Code provides that any court may punish for contempts of its orders without a jury trial. This policy was judicially confirmed in State v. Baker (222 Iowa 903, 1937); in Senator MORTON'S State of Kentucky, section 432.260 of the Kentucky Revised Statutes, 1953, provides for punishing criminal contempt without a jury; in Idaho the leading case is McDougall v. Sheridan (23 Idaho 191); in Delaware, see Klein v. State (36 Del. Ch. 111, 127), decided in 1956; in Colorado see Gutrand v. Canal Co. (245 P. 485).

In my speech of some days ago I cited the statutes of my own State and other areas of the country.

Thus, the partial survey of the State's handling of this issue of providing a jury trial in criminal contempt eases is at variance with that proposed for the Federal judiciary under the proposed amendment.

The Dirksen amendment in the nature of a substitute to H.R. 7152, contains a jury trial provision which would limit the heretofore unlimited power of the judiciary to punish without the assistance of a jury for criminal contempt in cases brought by the United States. I proposed several weeks ago that if the opponents of the Dirksen amendment sincerely feel that, since the founding of the Republic, the individual liberties of our citizens have been abused by permitting the courts, during this entire period, to enforce their orders by criminal contempt proceedings without a jury, let us change this traditional power of the judiciary in all the courts of the land-Both Federal and State-by the adoption of a constitutional amendment. If the principle of trying criminal contempt without a jury is unfair and abusive of constitutional rights or any standard of fair play, its heinous

character does not stop at the boundary of Federal jurisdiction.

Mr. President, the Dirksen amendment strikes a reasoned balance among the heretofore unlimited power of the judiciary in the trying of criminal contempt without a jury, the constitutional right of a trial by jury and the essential power of the judiciary to have its orders enforced and its dignity protected. I urge the rejection of the Morton amendment which, in my opinion, would unduly dilute only the Federal judiciary.

Mr. PASTORE. Mr. President, will the Senator yield for a question?

Mr. DIRKSEN. Mr. President, will the Senator yield?

Mr. MANSFIELD. I yield to the Senator from Illinois.

Mr. DIRKSEN. Mr. President, the Senate is entitled, of course, to work its will upon the proposition that has been submitted by the distinguished Senator from Kentucky [Mr. MORTON]. We have had literally weeks and weeks of debate on this one single subject. It was almost resolved heretofore, but not quite; and in that interim period the distinguished majority leader and I offered the substitute amendment which modified somewhat the language of the 1957 act. It provided, in the case of a $300 fine, that that would be the aggregate, and beyond that the judge could not go. In the case of a sentence, it was reduced from 45 days to 30 days, and was made cumulative, so that beyond that period of time the court could not go.

Notwithstanding all that, if it is the will of the Senate to adopt the Morton proposal, it can be incorporated in the substitute package which we have offered for the House version of H.R. 7152. I shall most cheerfully abide by the result.

In the nature of things, I am compelled to support the proposal I made, joined in by the distinguished Senator from Montana [Mr. MANSFIELD]. That I propose to do.

I am glad that finally the lightning comes out of the sky, and that we shall get this issue down to earth and resolved, once and for all, so that we can then proceed with the other amendments for which agreement has been granted.

Mr. PASTORE. Mr. President, will the Senator from Montana yield, so that I may ask the minority leader a question? Mr. MANSFIELD. I yield.

Mr. PASTORE. There has been much discussion this afternoon and before this session today, to the effect that we are

not being consistent, that we have from time to time passed jury trial amendments on various legislation. The fact still remains that in 1957 we had the question of civil rights before the Senate. At that time, we did debate the question of jury trial, and the junior Senator from Rhode Island and the senior Senator from Rhode Island voted for it.

The fact is that this particular Morton amendment does exclude title I. As I understand the minority leader now, the version embodied in the compromise package which has been suggested by the majority leader and the minority leader, is even more lenient than the 1957 version which is being excluded from the Morton amendment. I ask the question: Why? Why?

If the Morton amendment is good for titles II, III, IV, V, VI, and VII, then why is it not good also for title I?

The nearest thing to title I is what is being substituted as the compromise. I really do not understand the argument being made that we are becoming inconsistent when, in fact, the compromise amendment is the nearest thing to consistency.

Mr. DIRKSEN. I make only this response. After this matter was concluded in 1957, all we undertook to do in the substitute proposed by the majority leader and myself was to modify the terms of the 1957 act and let it apply across the board.

I even went so far as to indicate my willingness to drop from 45 days to 10 days; but I did wish to see the court have at least some kind of weapon in the case of criminal contempt. I shall concur, however, if that is the will of the Senate, because then the amendment can be incorporated into the substitute package.

Mr. PASTORE. If I may make a further observation-this is my interpretation of the Morton amendment, and if I am wrong I should like to be correctedthe Morton amendment would limit the judge's power to treat criminal contempt in the various titles covered to a tongue lashing, or a lecture not to do it again. The fact is that even in those cases, the respondent would be entitled to a trial by jury if he requested it. Naturally, he is going to request it even if it is not a serious matter which in all probability would be straightened out with a lecture or a tongue lashing; for even in those cases the accused would be brought be

fore the court and he could say, "Your Honor, I claim a trial by jury," and he would have to be granted a trial by jury. When the trial was completed and the accused was found guilty, the judge in that instance would then say, "Don't do it again."

Mr. MORTON. Mr. President, I yield myself 5 minutes.

The

The PRESIDING OFFICER. Senator from Kentucky is recognized for 5 minutes.

Mr. MORTON. Mr. President, first, there, is a difference between title I and other titles of the pending bill. If a man refuses to sell someone a hot dog, he is cited for civil contempt and put in jail until he sells that man a hot dog. If a man is denied the right to vote in an election and the election is over, nothing can be done to restore that man's right to vote in that election.

In my opening remarks, I explained that this did not only allow a court to proceed without a jury trial in title I, but it also repealed that provision of the 1957 act which granted a jury trial for any penalty greater than 45 days or $300. This, it has been pointed out to me, gives no protection to a man who is being cited for contempt under title I, and gives no limitation; and in cases of certain bail bond cases contempt of court, I believe, has been invoked up to 3 or 4 years.

Therefore, Mr. President, I ask unanimous consent that I may alter my amendment, as follows: On page 4 of the Talmadge amendment, beginning at "SEC." line 5, strike out everything through "respectively" on line 14. This will have the effect of leaving the 1957 act as it is.

I ask unanimous consent that I may so do.

Mr. HUMPHREY. Mr. President, reserving the right to object-although I shall not object-I should like to say to the Senator from Kentucky that I am very pleased he is doing this, because I was about to ask him, in reference to his amendment, if there had been some inadvertence in not restricting that provision to the law of 1957. I believe what

the Senator has suggested places it now in conformity with the existing practice; am I not correct?

Mr. MORTON. The Senator is correct. I was inadvertent in that respect. I had assumed that the $1,000 and 6month limitation prevailed on all criminal contempt cases. I was in error in that assumption. This occurred, as the Senator will recall, when we got into the "hassle" Friday night on the unanimousconsent request; and the amendment was prepared rather hastily. So I ask unanimous consent that this change be made.

Mr. HOLLAND. I should like to check the result that would be achieved if the Senator's request were granted. Will the Senator please repeat his request? I have a copy of the amendment before me.

Mr. MORTON. In effect, it will strike out, on page 4 of the amendment, everything from line 4 to the end of the amendment.

Mr. HOLLAND. Am I correct in my understanding that this would perfect the Senator's amendment insofar as title I is concerned, but leave in effect all of his amendment as it applies to other titles in the act?

Mr. MORTON. Yes. A man who is convicted of contempt under title I will have the same right as will a man who is convicted under the 1957 act. Title I refers to the 1957 act.

Mr. HOLLAND. I have no objection. Mr. HUMPHREY. To make it perfectly clear, the maximum penalty that could be imposed by a Federal judge in a criminal contempt proceeding would be 45 days' imprisonment or a fine of $300. Is that correct?

Mr. MORTON. The Senator is correct.

Mr. HUMPHREY. And the defendant will have a right of selection of either trial by jury or trial by a judge, will he?

Mr. MORTON. Does the Senator mean for the remaining titles of the bill?

Mr. HUMPHREY. Over and above the 45-day penalty, that is.

Mr. MORTON. Yes.

Senate

6-9-64

pp. 13050, 13051

CIVIL RIGHTS ACT OF 1963

The Senate resumed the consideration of the bill (H.R. 7152) to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

The ACTING PRESIDENT pro tempore. Under the unanimous-consent agreement, the question is now on agreeing to the Morton amendment No. 869, as modified, to the Talmadge amendment No. 513, relating to jury trial for criminal contempt.

The yeas and nays have been ordered, and the clerk will call the roll.

Mr. HUMPHREY. Mr. President, a parliamentary inquiry.

The ACTING PRESIDENT pro tempore. The Senator will state it.

Mr. HUMPHREY. Mr. President, the pending amendment would modify the Talmadge amendment, and if adopted, would deny a vote upon the DirksenMansfield jury trial substitute. Is that correct?

The ACTING PRESIDENT pro tempore. It is a perfecting amendment modifying the Talmadge amendment.

Mr. HUMPHREY. Mr. President, what is its effect upon the Dirksen-Mansfield substitute jury trial amendment?

Mr. MORTON. Mr. President, it would have no effect on it. I ask to be heard on this point of order.

This amendment is to the Talmadge amendment, which is an amendment to the bill. It has nothing to do with the substitute.

The ACTING PRESIDENT pro tempore. It is an amendment to the Talmadge amendment No. 513. It is a perfecting amendment, and, if adopted, would perfect the Talmadge amendment.

Mr. HUMPHREY. Mr. President, my parliamentary point was as follows: If adopted, would an opportunity for the

Dirksen-Mansfield jury trial amendment to be presented be denied?

The ACTING PRESIDENT pro tempore. That would be the next question that would be voted upon, if that were offered, unless another perfecting amendment to the Talmadge amendment No. 513 were offered.

Mrs. NEUBERGER. Mr. President, a point of order.

The ACTING PRESIDENT pro tempore. The Senator will state it.

Mrs. NEUBERGER. Before the vote is started, since it is so difficult to hear, may we ask that all those who are standing either leave the Chamber or be seated?

Mr. HUMPHREY. Or be quiet.

The ACTING PRESIDENT pro tempore. The point of order is well taken. Will all those in the rear of the Chamber either sit down or leave the Chamber? Mr. Presi

Mr. HICKENLOOPER.

dent, I demand the regular order. The ACTING PRESIDENT pro tempore. The rollcall will not proceed until the Senate is in order.

Mr. GORE. Mr. President, a parliamentary inquiry.

The ACTING PRESIDENT pro tempore. The Senator from Tennessee will state it.

Mr. GORE. Mr. President, will the Chair inform me who has the privilege of the floor of the U.S. Senate?

The ACTING PRESIDENT pro tempore. That is not a parliamentary inquiry. But every Senator has the privilege of the floor. The clerks have the privilege of the floor when they are here on official business in the performance of their regular duties.

The Senate is now voting. It is difficult for the Chair to understand how a clerk could be present in the performance of official duties while Senators are voting.

Mr. GORE. Mr. President, a point of order. Sometimes a Presiding Officer will ascertain who is present during a rollcall vote with or without proper consent.

The ACTING PRESIDENT pro tempore. The present Presiding Officer is now trying to obtain order, and has not removed the clerks from the Chamber. But if there is not order, the rule will be invoked so that Senators can be heard.

Mr. GORE. Mr. President, does not the Presiding Officer of the Senate have the power to direct the Sergeant at Arms to ascertain who is on the floor of the Senate without proper consent?