Spalter v. Wayne Circuit Judge , 35 Mich. App. 156 ( 1971 )

Levin, J.

In 1970 the Legislature amended the provisions of the Code of Criminal Procedure concerning grand juries with a view to strengthening the power of grand juries composed of citizens of the community. PA 1970, No 9.¹ This case arises under the 1970 amendatory act.

Louis Spalter was convicted of contempt for failing to answer questions put to him by a citizens’ grand jury after he was granted immunity pursuant to §§ 19a, 19b of the amended statute.² His conviction was affirmed by our Court.³

Spalter was sentenced to serve six months and he commenced service of the sentence on March 31, 1971. When the term of service of the grand jurors expired on May 10, 1971, he sought release on the alternative grounds that (1) under the express terms of the order of sentence he was to he released upon the expiration of the “term” of the grand jury; (2) he was convicted of civil contempt and upon expiration of the term of the grand jury he no longer had a forum before which he could purge himself of the contempt.

After the circuit court refused to release him, Spalter filed in our Court an application for a writ of superintending control or a writ of habeas corpus. When we declined to issue a writ, he applied to the Supreme Court. On June 3, 1971, the Supreme Court entered the following order:

“On order of the Court, emergency complaint by plaintiff and appellant for superintending control is considered and treated as a motion for superintending control pursuant to OCR 1963, 862.5, and so treated, the motion is granted and the cause remanded to the Court of Appeals for issuance of an order to show cause why habeas corpus should not issue. See, Shillitani v. United States (1966), 384 US 364. Plaintiff-appellee’s motion for bond pending decision on the merits is denied without prejudice.”

A hearing was held by our Court on July 15,1971, and on the following day we entered an order denying Spalter’s application for a writ, Judge O’Hara dissenting, with the opinions of the Court to follow. Our order further provided that Spalter would be released upon posting a surety bond in the amount of $5,000.

I.

Contempt may be civil or criminal. Whether it is one or the other depends on the purpose sought to be achieved. If it is to punish the offender for his disobedience or contumacious behavior, then it is criminal contempt. If, however, the purpose is to compel obedience to an order of the court, then it is civil contempt.⁴

Since the purpose of civil contempt is to enforce compliance with a court’s order rather than to punish for disobedience, one convicted and sentenced for civil contempt may not be incarcerated beyond the time that he is able to comply with the court’s order.⁵ In Shillitani v. United States (1966), 384 US 364, 371 (86 S Ct 1531, 1536; 16 L Ed 2d 622, 627, 628), the United States Supreme Court declared :

“However, the justification for coercive imprisonment as applied to civil contempt depends upon the ability of the contemnor to comply with the court’s order, [citation omitted] Where the grand jury has been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of contempt.”

In Shillitani, the Court ruled that the contempt orders entered against the contemnors were “improper insofar as they imposed sentences that extended beyond the cessation of the grand jury’s inquiry into petitioners’ activities. Having sought to deal only with civil contempt, the District Courts lacked authority to imprison petitioners for a period longer than the term of the grand jury”.

This limitation on the length of a contempt sentence has been a source of considerable confusion. Understandably, contemnors incarcerated beyond the term of a grand jury have claimed that the contempt is civil and that they are entitled to be discharged.⁶ When the State, in response, has asserted that the conviction was for criminal contempt, it has encountered other limitations ⁷ see, e.g., People v. Johns (1971), 384 Mich 325, 333, where the Michigan Supreme Court held that “in order to obviate the confusion arising from such proceedings we hold that conviction for criminal contempt can be sustained only upon a record which shows compliance with the procedural safeguards established for the prosecution of any other crime of equal gravity”, and that, since it was unclear whether the proceedings against Johns were civil or criminal and he could have reasonably expected that he was being charged with civil contempt, he could not be convicted of criminal contempt because he did not have the “adequate and clear notice required in all criminal proceedings”, (p 332.)

The Legislature, in the 1970 amendatory act, provided for the recall of a citizens’ grand jury after the expiration of the term of service of the grand jurors:

“Sec. 7a. Notwithstanding the provisions of section 1343 of Act No. 236 of the Public Acts of 1961, as added, being section 600.1343 of the Compiled Laws of 1948, the term of service of grand jurors shall be 6 months unless extended by specific order of the judge who summoned such jurors or his successor for an additional period not to exceed 6 months, except that the grand jurors may be recalled at any time by the judge who summoned such jurors or by his successor to conclude business commenced during their term of service.” (Emphasis supplied.) MCLA 1971 Cum Supp § 767.7a (Stat Ann 1971 Cum Supp § 28.947 [1]).

“Sec. 19c. Any witness who neglects or refuses to appear or testify or both in response to a summons of the grand jury or to answer any questions before the grand jury concerning any matter or thing of which the witness has knowledge concerning matters before the grand jury after service of a true copy of an order granting the witness immunity as to such matters shall be guilty of a contempt and after a public hearing in open court and conviction of such contempt shall be fined not exceeding $10,000.00 or imprisoned not exceeding 1 year, or both. If the witness thereafter appears before the court to purge himself of such contempt, the court shall order the recalling of the grand jury to afford such opportunity, and after appearance of the witness before the grand jury upon a transcript of the testimony there and then given, the witness shall be brought before the court and after examination, the court shall determine whether the witness has purged himself of the contempt and shall commute the sentence upon a finding that the witness has purged himself(Emphasis supplied.) MCLA 1971 Cum Supp § 767.19c (Stat Ann 1971 Cum Supp §28.959 [3]).

We construe these statutory provisions, read together, to mean that after the expiration of the term of service of the grand jurors the judge who summoned the citizens’ grand jury may, in his discretion, recall the grand jurors at any time to conclude business commenced during their term of service; however, a witness who has been convicted of contempt for neglecting or refusing to appear or testify before a grand jury who thereafter appears before the court expressing a desire to purge himself of the contempt has the absolute right at any time to have the court order the recalling of the grand jury so as to afford Mm an opportunity to purge himself. If, after the grand jury is recalled, the witness appears before the grand jury and testifies, he has an absolute right to have his sentence commuted upon a finding by the court that he has in fact purged himself.

Section 19c differs from the statute construed in Shillitani in that the statute there construed was a Federal statute which sets an absolute time limit on the term of a grand jury and does not provide for its recall. Section 19c likewise differs from the Michigan statutory provisions concerning one-man grand juries, which do not in terms provide for the recall of a one-man grand jury, and, indeed, do not require that a judge commute the sentence of a person convicted of contempt of a one-man grand jury who later purges himself.⁸

It would appear from the language of § 19c, which gives a witness neglecting or refusing to appear or testify the absolute right to purge himself at any time, that all contempt citations under § 19c are, what has come to he called, civil contempts, that in every case a witness convicted and sentenced under § 19c “carries in his pocket the keys to his cell”. A sentence for contempt under § 19c is necessarily conditional and coercive, not unconditional and punitive, and that is the established distinction between civil and criminal contempt sentences.⁹

II.

Under the provisions of § 19c, although the term of service of the grand jurors before whom Dr. Spalter appeared has expired, he may yet purge himself. If he desires to purge himself, he is entitled to have the grand jurors recalled and to appear before them. If he were in fact to purge himself, he would be entitled to have his sentence commuted. Therefore, he is not being held beyond the time that he has an opportunity to purge himself.

We do not read the language of the orders of sentence as entitling Spalter to be released.¹⁰ Although the orders say that the sentence is for six months or “until the expiration of the grand jury term or until he purges himself to the satisfaction of the sentencing judge”, it is apparent that the condition subsequent was inserted only to make clear that the sentence was conditional — civil, not criminal — that if Spalter were to purge himself he would be released and, additionally, that he would be released when he no longer has an opportunity to purge himself.

It had become customary in civil contempt cases to enter the form of order entered by the court in this case.¹¹ This form of order was drafted and came into customary use at a time when there was no provision in the statute for recalling a grand jury. Under the circumstances, and having in mind that the purpose of the condition subsequent requiring discharge upon the expiration of the term of the grand jury is merely to make explicit that which is implicit as to all civil contempts, namely, that the contemnor must be released when he no longer has an opportunity to purge himself, we are persuaded that Spalter who, although the grand jurors’ term of service has expired, can still purge himself, is not entitled to be released.

Under the statute the court must fix a definite period as the term of the sentence, not exceeding one year. The court did so. It set the sentences at six months, minus, in one case, five days. The condition subsequent, a circumlocution expressive of the court’s intention that the sentence is conditional, civil not criminal, is not part of the sentence, it does not fix or change the term of the sentence.

The Legislature having decreed that in the case of a citizens’ grand jury the contemnor has an absolute right to purge himself even after the expiration of the term of service of grand jurors, there was no need to express in the order of sentence that it was conditional; the condition subsequent may, therefore, be treated as surplusage. Indeed, as the statute spells out both the right of the contumacious witness to purge himself and the juridical consequence if he does so, any language in an order of sentence incompatible with the statute would be invalid.¹²

The argument that the sentencing judge does not have the power to recall the grand jurors because another judge convened the grand jury and, thus, it was not within the power of the sentencing judge to provide a means by which Spalter could purge himself is manifestly without merit. In order to decide this case we need not decide in whom resides the discretionary power granted by § 7a to recall the grand jurors to conclude business commenced during their term of service. It is enough to say that under § 19c a witness convicted of contempt for neglect or refusal to appear or testify has an absolute right to have the court recall the grand jurors. If Dr. Spalter appears before the Wayne Circuit Court and expresses a desire to purge himself, the court is obliged to recall the grand jurors to afford him that opportunity.

In light of our ruling that the expiration of the term of service of the grand jurors does not deprive Spalter of the opportunity to purge himself and that it does not entitle him to be relieved of serving the balance of his sentence, there need be no concern that by allowing him to be at large on bail during an appeal he would escape service of the entire sentence, thereby blunting the coercive impact of the sentence.¹³ If Spalter appeals our Court’s order and the Supreme Court affirms our order, then, since the grand jurors could still be recalled, Spalter would still have the opportunity to purge himself and, if he does not avail himself of that opportunity, he could be required to serve the balance of his sentence, approximately 71 days. On the other hand, if he is not released on bail pending appeal, the likelihood is that he would serve the entire 71 days before any appeal could be heard and decided.

The questions presented are of importance to the jurisprudence of this state and it is, therefore, important that the Supreme Court have an opportunity to decide the questions before the matter becomes moot.

If on appeal our order were to be reversed, it would be an injustice to Spalter to require that he be incarcerated further under a sentence which, in that hypothesis, he was entitled to be discharged from serving when the term of service of the grand jurors ended on May 10, 1971.

It is those considerations which prompted us to grant bail. Additionally, we note that Spalter has appeared after being released on bail on a number of occasions and there is no reason to believe that he would fail to appear to avoid serving a 71-day sentence and thereby expose himself to other and more serious penalties.

Danhoe, P. J., concurred.

1 MCLA § 767.7a (Stat Ann 1971 Cum Supp § 28.947[1]).

2 SMCLA §§ 767.19a, 767.19b (Stat Ann 1971 Cum Supp §8 28.959 [1], 28.959[2]).

3 In re Spalter (1971), 31 Mich App 458. Leave to appeal was denied by the Michigan Supreme Court on April 8, 1971, 384 Mich 823.

4 In re Colacasides (1967), 6 Mich App 298, 301, 302; People v. Nowicki (1969), 17 Mich App 525, reversed on other grounds (1971), 384 Mich 482.

5 People v. Johns (1971), 384 Mich 325, 333; In re Colacasides, supra, p 304.

6 People v. Johns, supra, p 330; People v. Joseph (1970), 384 Mich 24, 32; People v. Nowicki, supra, p 527.

7 On the authority of People v. Johns, the Supreme Court reversed Roman Nowieki’s conviction for criminal contempt even though the issue decided in Johns had not been preserved in Nowiehi at the trial level or raised on appeal before the Court of Appeals. People v. Nowicki, supra.

8 A witness neglecting or refusing to appear or testify before a one-man grand juror may be punished by a fine not exceeding $1,000 or imprisonment in the county jail not exceeding one year, or both, at the discretion of the court. It is further provided “that if such witness after being so sentenced shall offer to appear before such judge to purge himself of such contempt, the judge shall cause such witness to be brought before him and, after examination of such witness, the judge may in his discretion commute or suspend the further execution of such sentence”. MOLA § 767.5 (Stat Ann 1954 Rev § 28.945).

In People v. Joseph, fn 6, supra, pp 32, 33, the Michigan Supreme Court ruled that a witness convicted of criminal contempt under this statute for refusing to answer questions did not have a right to be discharged upon expiration of the grand jury. The Court went on to hold that the proviso authorizing the judge in his discretion to commute or suspend further execution of the sentence if the witness purges himself of the contempt “is, so far as criminal contempt is concerned, an unconstitutional delegation by the Legislature to the judicial branch of government of a power [the pardoning power] which exists only in the executive”. The proviso was deemed severable from the remainder of the statute and the witness’s criminal contempt conviction was afSrmed.

9 In saying that this is a case of civil contempt, we follow the traditional definition that divides criminal and civil contempt. Under well-established law a witness sentenced for contempt who is entitled to be released upon purging himself has not been sentenced to serve a punitive or criminal sentence, but rather a civil sentence.

Now that it is clear that there is little or no advantage to reluctant witnesses charged with contempt under § 19e in having the contempt called civil rather than criminal — a witness convicted under § 19c has an absolute statutory right to purge himself in every case and expiration of the term of service of the grand jurors does not automatically entitle him to be released from serving a § 19e sentence — reluctant witnesses will, no doubt, insist that § 19c contempts are criminal and point to the possible one-year sentence and urge that they are entitled to a jury trial and other safeguards surrounding a criminal proceeding. In Bloom v. Illinois (1968), 391 US 194 (88 S Ct 1477, 20 L Ed 2d 522), the right to a trial by jury in a case of “serious criminal contempt,” i.e., where the contemnor faces a long sentence, was recognized and made applicable to the States. See, also, Frank v. United States (1969), 395 US 147 (89 S Ct 1503, 23 L Ed 2d 162); Baldwin v. New York (1970), 399 US 66 (90 S Ct 1886, 26 L Ed 2d 437). In People v. Johns, fn 5, supra, p 333, the Michigan Supreme Court declared “that conviction for criminal contempt can be sustained only upon a record which shows compliance with the procedural safeguards established for the prosecution of any other crime of equal gravity.” See, also, 17 Am Jur 2d, Contempt, § 64; 47 Am Jur 2d, Jury, §§ 54, 55.

Bloom v. Illinois was preceded by Green v. United States (1958), 356 US 165, 183, 197 (78 S Ct 632, 643, 650; 2L Ed 2d 672, 687, 688, 696), where the United States Supreme Court held that criminal contempts are not subject to jury trial as a matter of constitutional right. Mr. Justice Black, with whom Chief Justice Warren and Mr. Justice Douglas concurred, dissented; and, as indicated above, their view ultimately prevailed. Pertinent to our discussion is their intimation that there is no right to a jury trial where the court imposes conditional imprisonment for the purpose of compelling obedience to an order of the court. They declared, p 197:

“Before going any further, perhaps it should be emphasized that we are not at all concerned with the power of courts to impose conditional imprisonment for the purpose of compelling a person to obey a valid order. Such coercion, where the defendant carries the keys to freedom in his willingness to comply with the court’s directive, is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.”

We recognize that the law sometimes evolves- through a redefinition of terms. The terms “civil contempt” and “criminal contempt” are not used in § 19e itself. The terms are, nevertheless, useful shorthand distinguishing the two kinds of sentences, differentiating the kind of sentence which Spalter was sentenced to serve from a punitive, unconditional sentence. However the law may in the future evolve in terms of safeguards appropriate in cases of civil contempt, a sentence under § 19e is the kind of sentence which in present legal lexicon can properly be called a sentence for civil contempt.

10 Two orders of sentence were entered following Spatter’s convic_ tions for separate refusals to answer questions before the grand jury after he had been served with an order granting him immunity. The sentences were that he serve six months (in one case six months minus five days) in the Detroit House of Correction or “until the expiration of the grand jury term or until he purges himself to the satisfaction of the sentencing judge in which case the sentence shall be commuted.”

11 See In re Colacasides, fn 4, supra, p 301.

12 Cf. In re Duff (1905), 141 Mich 623, 624; In re Evans (1912), 173 Mich 25, 27; In re O’Dell (1962), 365 Mich 429; People v. Mellor (1942), 302 Mieh 537, 542.

13 Here the grand jury has already ceased to sit; a different question would be presented if a eontemnor sought bail on appeal while the jury was sitting. See In re Colacasides, fn 4, supra, p 304.