James E. Groppi v. Jack Leslie, Sheriff of Dane County ( 1971 )

KILEY, Circuit Judge

(dissenting).

I join in Judge STEVENS’ dissent for the reasons he gives.

1 dissent for the further reason that the Assembly Resolution does not state facts sufficient to support its conclusion that Groppi was guilty of disorderly conduct punishable as contempt. The effect upon Groppi of this fatal deficiency was denial of fundamental fairness because he is not informed of what he did in the “immediate view” of the Assembly which amounted to disorderly conduct.

Groppi’s habeas petition does not expressly cast the deficiency in the Resolution as a denial of due process as we have done. His petition alleges denial of his “right to be informed of the nature and cause of the accusation against him.” ¹ In this court Groppi argues persuasively the anomaly of a summary or direct contempt order reciting only a legal conclusion without a statement of the underlying facts supporting the conclusion. And he argues that “it is not clear” how a court can adequately review a contempt order unless the facts are stated.²

It is a fundamental rule that a judicial summary contempt order must carry, in itself, a statement of the acts or words constituting the contempt. This rule is implicit in Ex parte Terry, 128 U.S. 289, 305, 9 S.Ct. 77, 32 L.Ed. 405 (1888) ; and is stated in Tauber v. Gordon, 350 F.2d 843 (3rd Cir. 1965); Parmelee Transportation Co. v. Keeshin, 294 F.2d 310 (7th Cir. 1961); and Hallinan v. United States, 182 F.2d 880 (9th Cir. 1950). In Great Lakes Screw Corp. v. NLRB, 409 F.2d 375 (7th Cir. 1969), where an NLRB hearing examiner excluded defendant’s counsel from the hearing for “contumacious conduct,’ court held that the exclusion violated defendant’s due process rights, saying “[n]o compelling reason exists for not extending the requirement of adequate disclosure of the basis for contemptuous conduct findings to the quasi-judiciary, as well as the judiciary.” Id. at 379. Respondent-appellant’s brief concedes that legislative exercise of its summary contempt power parallels judicial exercise of that power, and I see no reason why the legislature should not be similarly required to state facts constituting the contempt. this

Here the contempt resolution states that “Groppi led a gathering of people * * * which by its presence on the floor of the Assembly during a meeting * * * prevented the Assembly from conducting public business and performing its constitutional duty” and that the “above-cited action” constituted “disorderly conduct in the immediate view” of the Assembly, an offense under Sec. 13.-26(1) (b) Wis.Stat. and Art. IV, See. 8 of the Wisconsin Constitution. According to the Resolution, anyone — however innocently — who leads a “gathering of people” on the Assembly floor is ipso facto guilty of contempt. There is no statement, for example, of what activities Groppi or the “gathering” engaged in, how they obtained admission to the floor of the Assembly, or how the Assembly was prevented from performing its constitutional functions. All of this is left to the speculation of the reviewing court.

A complaint for disorderly conduct drawn in words similar to the Resolution before us would not support a conviction. People v. Mulvey, 206 Misc. 771, 135 N.Y.S.2d 17 (1954); People v. Lee, 334 Ill.App. 158, 78 N.E.2d 822 (1948); State v. Hettrick, 126 N.C. 977, 35 S.E. 125 (1900). An indictment, where the subject law is general, must descend to particulars. Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Cruikshank, 92 U.S. 542, 548, 23 L.Ed. 588 (1875). See also United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882). A fortiori, where a person is punished by imprisonment without being informed of what he did that was unlawful, he is denied fundamental fairness. No meaningful review would be available to him. See Great Lakes Screw Corp. v. NLRB, 409 F.2d 375 (7th Cir. 1969).

Because Groppi has not been informed in the Assembly Resolution what acts or words of his constituted disorderly conduct so as to be contemptuous, I would affirm.

1 . Groppi made similar allegations in his petition for habeas corpus in the state proceedings.

2 . The Wisconsin Supreme Court took judicial notice of facts not in the record. These “facts” are contained in footnote 2 in the majority opinion here.