In re Green

PETITIONER:In Re Green
LOCATION:Vilage of Kake

DOCKET NO.: 312
DECIDED BY: Warren Court (1962)
LOWER COURT:

CITATION: 369 US 689 (1962)
ARGUED: Apr 09, 1962
DECIDED: May 21, 1962

Facts of the case

Question

  • Oral Argument – April 09, 1962 (Part 2)
  • Audio Transcription for Oral Argument – April 09, 1962 (Part 2) in In re Green

    Audio Transcription for Oral Argument – April 09, 1962 (Part 1) in In re Green

    Earl Warren:

    First case for argument is Number 312, the Matter of the Petition for Writ of Habeas Corpus for Merritt W. Green, II, Petitioner.

    Mr. Green, you may proceed with your argument.

    Merritt W. Green:

    Mr. Chief Justice, and may it please the Court.

    This Court has issued certiorari to the Supreme Court of Ohio in this particular case.

    Petitioner in this case was judged to be guilty of contempt to court, an indirect contempt to court by a trial court in Ohio after a written citation for indirect contempt had been filed by a court, the judge of the Court of Common Pleas, pursuant to provisions of the Ohio statutes.

    The circumstances out of which the citation for a contempt arose or the citation arose out of the petitioner’s representation of members of a labor union, the petitioner being a lawyer in Ohio have then about three and a half years admission.

    Whose members, the union members were then engaged in a labor dispute with an interstate employer which had started some time previous to that time.

    The acts, claimed acts of contempt on the part of the petitioner where that, he have advised his client who really was the original counsel in Chicago that the Court of Common Pleas in this labor dispute which was involved in interstate commerce had issued an ex parte temporary injunction and he had told his client that in view of adamant and continuous refusal of the court issuing that ex parte injunction enjoining the continuation of pea — peaceful picketing.

    That — it appeared that the only way that would be possible to get a hearing on the question of the conflict of jurisdiction between the state court and the federal court would be if the union chose to continue picketing and the court entertained a citation for contempt of the injunction and the filing of the writ of habeas corpus.

    The petitioner was sentenced to jail and fined $500, the maximum amount of the Ohio law without being given a trial or hearing, which was provided for in the statutes.

    Immediately thereafter, upon the refusal of the trial court to issue or grant a bond so an appeal to be taken, the petitioner filed his application with the Court of Appeals in immediate appellate court in Ohio and the original action for a writ of habeas corpus seeking his release.

    The contention —

    Earl Warren:

    Does the trial court —

    Merritt W. Green:

    — at that time of the petitioner —

    Earl Warren:

    Do you say the trial court denied him bail on appeal?

    Merritt W. Green:

    Yes sir, that’s right.

    Immediately on pronouncing sentence, he — he called to some deputies that he had already had in the court and take him to jail and refuse to issue a bond.

    In the original action in the Court of Appeals for writ of habeas corpus, it was contended — three things were contended that first that the temporary injunction issued prohibiting peaceful picketing in the labor dispute arising in interstate commerce was void by reason of the fact that the court did not have jurisdiction over the subject matter, number one.

    Number two, it was contended that the — the lawyer being a part of the rights given to a legal advice and that the use of a lawyer being part of the rights given to people who are in labor unions engaged in interstate commerce and so forth, that the denial of counsel to them by reason of this type of an action and the — and the refusal for these or the sentencing a lawyer to jail for honest advice given to — to a client and the subsequent refusal to give him a trial or hearing on citation, a written citation for contempt was the denial of due process and equal protection of the law.

    The Court of Appeals —

    (Inaudible)

    Merritt W. Green:

    He just said at the outset that the — at the day that the petitioner was summons in on this written petition or written charge.

    After some difficulty, we tried to find out what these — what the posture of the case was, what we were there for and the judge finally, we — as the record would show, says that you’re not here for any hearing or trial.

    The trial court apparently took the position that previously on two separate days when members of the union were before the court for a violation of the injunction.

    They were before the court pursuant to agreement made between counsel and the presence of the court to that’d be a way to test the — test the court’s order.

    The trial court apparently, when the petitioner in answer to a question by the court, “I want to know who told these men to do so and so and to violate this injunction.

    You honestly and truthfully told the court that I can tell the court now they were told by me.”

    And then he went on to explain to the court that after the continuou — continuous denial of the hearing at the outset an issuance of the ex parte injunction, that he’d called his client in Chicago and said to the people in Chicago, now here’s what’s happened today and even though —

    (Inaudible)

    Merritt W. Green:

    This was at the first hearing where the men were in for — on contempt and that the petitioner was not —

    (Inaudible)

    Merritt W. Green:

    That’s right, sir.

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    This was the contempt of the — of the union people.

    John M. Harlan II:

    That was before (Inaudible) proceeding until it followed here.

    Merritt W. Green:

    Yes, that’s right.

    (Inaudible)

    Merritt W. Green:

    Yes, I can bring that on the focus.

    For instance, the men were in to answer the citation for a contempt of the injunction on June 1st.

    At the conclusion of the June 1st hearing or in the June 1st hearing, let me say this first, there was a hearing on the men on the 1st and on the 3rd of June and then on the 7th of June is when the petitioner was summons in for hearing on his alleged contempt.

    The — the charge of contempt was filed against the petitioner on the 6th.

    But on — in the — on the hearing of the 1st during the hearing of the men is when the judge after they had stipulated what had taken place so that as there was agreement the day before in the judge’s office.

    Let me go back that far.

    The — when we went in, they — they talked about this and the (Inaudible) of the other side said, “Why don’t you bring these four men in who were not pickets.

    They were — they weren’t even on the picket line.

    They have been officers of the union.

    And then why don’t you stipulate and then we can — and if the court finds him guilty then you can immediately file your writ of habeas corpus to get them out to test this jurisdictional question on the federal preemption of question.”

    (Inaudible)

    Merritt W. Green:

    That took — the hearing — what do you mean?

    The — the — where the judge in — in the —

    (Inaudible)

    Merritt W. Green:

    That was on the 31st.

    (Inaudible)

    Merritt W. Green:

    Yes, that’s in — that’s in the record.

    (Inaudible)

    Merritt W. Green:

    Well, to — the 7th, that’s in the — in the hearing of the June 7th.

    That is in the offer to prove.

    When the trial court denied the petitioner the right to testify and just said there’s going to be no hearing or trial and they want to put the petitioner on so he could relate what took place as — as his proviso of statutes.

    He refused that and then we read into the record the offer to prove in which the petitioner related this whole thing right from the beginning to the end.

    Now, in the Court of Appeals hearing on the writ of habeas corpus for the petitioner —

    Earl Warren:

    Well, Mr. Green before — before you get to that, I wonder if you couldn’t start right in at the very beginning of this controversy —

    Merritt W. Green:

    I think that’d be wrong Mr. Chief Justice Warren.

    Earl Warren:

    — and tell us — tell us briefly just what the facts were in — in succession so we can —

    Merritt W. Green:

    I’d be glad to.

    Earl Warren:

    — (Voice Overlap) in our — our minds.

    Merritt W. Green:

    And then I think at the same time that will pick up —

    Earl Warren:

    Yes, we’ve got everything —

    Merritt W. Green:

    — Mr. Justice Harlan.

    Earl Warren:

    — if you just take us through the steps.

    Merritt W. Green:

    Well, the labor union involved in this dispute reach an impasse in the negotiations for renewal of a contract on May 15, 1960.

    The picket line was set up.

    There were negotiations during the picketing.

    On the 24th of May, there was a verbal agreement as everybody thought there was an agreement to stop the strike.

    The men went back to work on the 24th and 25th.On the 26th, the evening of the 26th, they’ve got together to sign the contract as the petition shows.

    Apparently, upon reaching, and I think this is a fair assumption from the record, when it was done on writing, that wasn’t what they agreed on, at least the man had signed, this is in the evening of the 26th, the man had signed it, the president of the company signed it but the international, who was really the certified bargaining agent here refused to sign.

    And in the record it says, “Not signed” and that’s the printers put in their shoulder.

    This was not signed by the international.

    So there was a disagreement that night and the next morning, the picket line was started again.

    That’s on the 27th.

    That morning, the morning of the 27th, the petitioner was — had a phone call and was retained to represent the union if necessary.

    These four people who were the respondents in the original contempt action were in Chicago.

    This was in 1960, although the courts were down, they were negotiating for all the late part but they were in Chicago.

    So the petitioner called the people in Chicago and talk to them about it.

    He also called the lawyer for the company.

    He called all the clerks office to alert them that if the petition was filed, he like to be notified it.

    He informed the lawyer for the company that he was the lawyer for the — for the union.

    An unfair labor practice charge had been filed that morning.

    It was filed that morning charging the employer with refusal to bargain.

    About 1 o’clock that afternoon, 1:15 or something, he got — the petitioner got a call from the clerk’s office saying that the petition — petitioner had been filed for injunction and had been assigned to a particular judge in our county, when the case is assigned to a judge it stays with him throughout the whole case.

    He called, immediately, called Judge McKay and said he understood that Mr. Regan, the lawyer for the company was on his way down to his office with the petitioner.

    Merritt W. Green:

    And if there was a request for immediate injunction, would — he would be in his office and would he please to call him and he’d like to be heard on this — on — on the question before it was issued, the judge says, “Fine, you stay in your office and I’ll call you.”

    Well, the next thing the petitioner heard, not from the lawyer or the judge, one of the attachés in the court called him and told him there’d been an injunction issued against these people.

    Well, the petitioner —

    Potter Stewart:

    (Voice Overlap) or was it a temporary restraining order or what was?

    Merritt W. Green:

    It was a temporary injunction as distinguished from a restraining order pending a hearing on a — on a temporary injunction.

    In Ohio, you — you — a restraining order is issued under the statute only where a petition for temporary injunction is set for a hearing.

    In the meantime, the statute says, “You maybe restrained”.

    Yes.

    You don’t have a rule (Inaudible)?

    Merritt W. Green:

    No, no, we do not.

    Well, upon the hearing of this issuance of this ex parte injunction, the petitioner and his associate, who happen to be me, went over to see the judge and talked him about this thing and pointed out some very serious problems in connection with interstate commerce and a labor disputed and all that sort of thing.

    And after — and he said — we — we explained it to him and he said, “Well, I didn’t really read the petition.

    I just took his word for it.

    I understood these men were satisfied with the contracts and some hoodlums down in Detroit and — and made him go back to work.”

    Well as I say, we tried to explain it to the Judge and said we — suggested that he didn’t have any jurisdiction.

    He said, “Well, he wouldn’t get every of this Detroit hoodlums.

    This is in the record from this town.

    We’ll make some jurisdictions or have any.”

    And for — finally, after his —

    Hugo L. Black:

    Where is that in the record?

    Merritt W. Green:

    It’s — it’s also in the record — it would be under the June 7th —

    Hugo L. Black:

    Under June 7th.

    Merritt W. Green:

    — proceedings, which is the uncontradicted testimony of the petitioner at the writ of habeas corpus hearing before the Court of Appeals.

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    There’s no dispute but there was at the — at the —

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    No, there’s no dispute.

    There’s no dispute about that.

    Well, after some conversations, the judge finally said to his clerk, “When you get a hold of Mr. Regan, you tell him to come on over here and we’ll give you a hearing, we’ll have a hearing.”

    Well what about 4 o’clock that afternoon, the petitioner then called — called back to the court, not having heard anything and they asked about it and — this is Friday before Declaration Day.

    Merritt W. Green:

    By the way, Declaration Day was on Monday.

    We were faced a long weekend.

    And he said, “Yes, he talked to Mr. Regan but he wasn’t going to hold night court,” and petitioner said, “Well, what about can we have a hearing in the morning?”

    explaining that — for the situation.

    He said, “No, I’m not going to be in town and I won’t be here.

    Well, how about some other judge?”

    “Well, all the other judges are busy.

    There’s couple a way of fishing.”

    “And, well, can we have a hearing then Tuesday?”

    “No, I’m going to busy next week.

    You’ll just have to wait your turn.”

    Well that means six or seven months in — under our dock.

    Well —

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    You could file — you could file — yes, you could come in and you could file a — a motion to dissolve a temporary injunction and then the court would set that down for hearing.

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    It depends on just the court’s discretion.

    I know nothing in the statute that says that have preference.

    It’s — it’s a matter of discretion of the court.

    Tom C. Clark:

    How long does that court operated?

    Merritt W. Green:

    It operated until the end of the strike, Mr. Justice Clark until or the following week.

    Tom C. Clark:

    (Inaudible)

    Merritt W. Green:

    Yes, sir.

    Now that what —

    Earl Warren:

    Was the terminal date fixed in the —

    Merritt W. Green:

    No, sir.

    Earl Warren:

    — in it?

    Merritt W. Green:

    No.

    Earl Warren:

    It was — I supposed to look further only to the court, is it not?

    Merritt W. Green:

    That’s right.

    Merritt W. Green:

    Actually it would be — it would be under the part of the petition until finally termination of the case, I mean —

    Earl Warren:

    Yes.

    Well, this is not (Inaudible) temporary injunction.

    Merritt W. Green:

    It was temporary injunction, yes, sir.

    (Inaudible)

    Merritt W. Green:

    But or — I was — there was a motion filed that dissolved.

    (Inaudible)

    Merritt W. Green:

    Yes.

    He never filed, wasn’t he?

    Merritt W. Green:

    No, that’s right because you see that afternoon, I mean after this 4 o’clock conversation, the petitioner then called these people in Chicago and explained the whole situation to him and said, “Now, the only thing I would know that a few people want to continue picketing, then if they — if you’ll file — if the employer of the other side will file a — a contempt citation then we could probably get a hearing on a writ if they find few people in — in contempt.

    So —

    Earl Warren:

    Is there any, in Ohio, is there any appeal from a temporary injunction of that kind?

    Merritt W. Green:

    Mr. Chief Justice Warren, there is not.

    It cannot — on Ohio — temporary orders are not appeal.

    It was just final orders.

    Well —

    Tom C. Clark:

    Did the court have the authority of this temporary injunction (Inaudible)?

    Merritt W. Green:

    If he had, if the court had jurisdiction over the subject matter of the action.

    Does not appeal?

    Merritt W. Green:

    There’s no — there’s no appeal from a temporary order in Ohio.

    (Inaudible)

    Merritt W. Green:

    Motion to dissolve and then what —

    (Inaudible)

    Merritt W. Green:

    That’s right.

    You’re still —

    (Inaudible)

    Merritt W. Green:

    That’s right.

    Now, what — what usually happens?

    I wouldn’t say usually, but what can happen.

    Now, under those circumstances, you can say that the court now — let’s — after you — you’d bring in most all of the evidence to dissolve the temporary and then you ask the court to make it a final order.

    (Inaudible)

    Merritt W. Green:

    Yes, that’s right.

    (Inaudible) Court of Appeals then how is that possible (Inaudible)?

    Merritt W. Green:

    The Court of Appeals would probably take four months now, three to four months.

    So this — this is a Friday afternoon —

    Potter Stewart:

    Isn’t it (Voice Overlap)–

    Merritt W. Green:

    I’m sorry.

    Potter Stewart:

    In Ohio, isn’t it — isn’t it generally the practice to hold a hearing before a temporary injunction is issued?

    Merritt W. Green:

    That’s — that’s the normal — I think every — I think I can say this is without fear contradiction, every judge in our Court of Common Pleas except this one judge does have that as a rule that they — in a labor dispute particularly, they will not — unless there is some outstanding violence that everybody knows about or something like this.

    Potter Stewart:

    Well, a restraining order is something else.

    That can — that is — can be and — and often it’s done ex parte —

    Merritt W. Green:

    Oh, yes.

    Potter Stewart:

    — pending a hearing on a temporary injunction.

    Merritt W. Green:

    That’s right.

    Potter Stewart:

    But before a temporary injunction is issued, it was — everything has changed and everything can handle a county or different but I thought that the practice was and I really thought that the law required that a hearing be held before a temporary injunction was issued.

    Merritt W. Green:

    The statute in Ohio says that at the beginning of a case, an injunction maybe issued.

    It doesn’t say which — if the Court can issue the final relief grant — or requested.

    In other words in this case for instance, if the Court would had been — been able to have jurisdiction, an issue to relief, the final relief in — in the — the injunction, this type of a case, then it — it might have been able under that statute to issue a temporary injunction at the start of a case.

    In other words, that — that’s an issue of this case.

    (Inaudible)

    Merritt W. Green:

    Yes, they can — they — they can but it — it’d be very, very unusual as it was in this situation here.

    In other words, the Court really has to determine its jurisdiction at that time by saying, “Well, I have jurisdiction to issue that — that all of it relief requested which is an injunction.”

    And therefore it — I think the statute says where it appears clear that the court has the right you see which of course was not — we don’t think in this case.

    Well, anyway — I’m sorry.

    Earl Warren:

    Was there — was there any violence in the picketing?

    Merritt W. Green:

    No — none whatsoever, none whatsoever.

    That was agreed all the way through.

    Wasn’t — there wasn’t any — that was agreed right at the first day and as a matter of fact, there’s a — in the record at page 3, I think, there’s a description of the picket line, there were some pictures of the picket line of — of the site.

    And they were — they are not in the record but there’s a description of it just saying that there was a picket sign against the building and the men were apparently sitting in an automobile some place.

    Well, anyway at 4 o’clock in the afternoon —

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    Sir?

    John M. Harlan II:

    There was not a (Inaudible).

    Merritt W. Green:

    Well, Mr. Justice Harlan, I think what you referred to is at the very conclusion of the next to the last paragraph in the petition, there’s a conclusion of the plea.

    They’re saying that this picketing was illegal by reason of a breach of a contract, really the contract was never came in existence.

    And if this illegal conduct is permitted to continue, the imminence of violence there — there’s imminence of danger to life living property to the employees.

    And it’s — it’s a typical equity pleading of the — at the conclusion.

    But in the body of a petition on — in Ohio, you have to plea like you — if they were else I presume, operative facts.

    There is a one fact —

    William J. Brennan, Jr.:

    But you’re saying is that there was no fact.

    Merritt W. Green:

    There wasn’t one fact.

    William J. Brennan, Jr.:

    (Inaudible)

    Merritt W. Green:

    That’s right.

    William J. Brennan, Jr.:

    Well, I think possible (Voice Overlap)–

    Merritt W. Green:

    That’s right, Mr. Justice Brennan, yes, sir.

    And that’s clear I think in the record.

    Well, now we’re back to this 4 o’clock situation, well, now, this young (Inaudible) find the situation, he calls his people in Chicago and explains to them but — what they can do and what they can’t do what they’re up against.

    William J. Brennan, Jr.:

    Just Friday afternoon?

    Merritt W. Green:

    Friday afternoon.

    This is after the 2nd that we haven’t heard from the court.

    So they said, “We’ll call you back.

    All the people are here in Chicago.”

    And that and that night at 8 o’clock, they called back and said, “We have decided to ask the men to go ahead and picket so we can get this thing before the court.

    Will you relay that message to the headquarters?”

    Now that is the — that’s the entire picture of the petitioners advised to his client.

    That’s it.

    That’s the whole — that’s — that’s what — that’s what the petitioner did.

    After being confronted with these situations, seeing it, checking the law in Ohio, just checking the — the Garmon case and very other cases, called his people and told them, they made the decision at 8 o’clock that night and called them back and said, “We relayed this on”.

    So next Tuesday, Monday being a holiday, a contempt citation was filed contempt of the injunction.

    They met in the chambers of the judge —

    William J. Brennan, Jr.:

    (Inaudible)

    Merritt W. Green:

    No, that’s right.

    That’s right.

    And not really against — it developed not against the pickets but the lawyer for the em — employer said, “Well, why don’t you bring these four fellows in and — and stipulate and then we can get this right on the road” and so that’s what they decided to do.

    So the next morning, that was the first to —

    Potter Stewart:

    More fellows were union officers?

    Merritt W. Green:

    Yes, that’s right, sir.

    The next morning where they met in court pursuant to that, there’s a — the employer’s attorney made a statement.

    The petitioner made a statement to bring dollars, stipulating of this thing.

    And then their judge says, “Now, I wonder who told these men.

    They went into a lecture on the signing of a contract” and that is all he assumed that there was a little — there was a valid contract and so forth and so forth.

    He’s now wondering who told these men.

    Well, the petitioner was caught a little bit by surprise, this whole situation because he had in his pocket the application to writs for the men.

    And he finally said to him, “Well, I can tell you, I told him.”

    And the judge said, “Have you told him?”

    He said, then he went on to explain with some interruptions what had taken place.

    They called the people in Chicago then it ends up by the petitioner being able to say they were ordered to do so, maybe that’s not the word “order” but they were instructed to do so by their superiors in the union.

    Well, the judge might have said then you’re in contempt of court or somebody is contempt to court but he did say to the man this, “You can even —

    Earl Warren:

    What was that?

    I didn’t get that last statement.

    You say, might have said that or —

    Merritt W. Green:

    There’s something in the record that saying that that’s contempt of court and I don’t know whether he was referring to what the union officers told the man to do or what the petitioner had related to him was contempt to court.

    That’s not too clear except from happened later on.

    There’s some suspicion that he might have been talking about the petitioner.

    He wasn’t contempt to court.

    But that June 1st hearing ended on this note.

    But the judge said the men, “Now, you can either go back to work or you can come in Friday and answer — and show cause or answer to contempt to court.”

    And he’s told this for union people.

    Well, I — I know of no authority in law that — that you can do something like that.

    Remember, the — the petition in this case was not for specific performance.

    Merritt W. Green:

    It wasn’t for really for the violation of a — of a labor contract under 301.

    It wasn’t that type an action.

    It was just plain and simple, an injunction to prohibit peaceful picketing.

    So the next Friday, people come back — the man came back in court.

    They didn’t return to work and then they went through about the same thing, ending up the — after the evidence was in so-called, the petitioner said to the Court, “Well, we don’t care to proceed any further.”

    That is the — no testimony in behalf of the union officials because still wanting to get this thing on its way upstairs.

    There was some intemperate remarks I fear from the court and — and which he said, “And you also told these men to disobey the court’s order.”

    The petitioner said, “I did” obviously referring to the context of this whole situation.

    And thereupon, the court said, “That’s contempt to court.”

    Earl Warren:

    Who said that?

    Merritt W. Green:

    The court?

    Earl Warren:

    The court, yes.

    Merritt W. Green:

    And in effect saying — and then said — went on to say after some more works, the petitioner, “You come back in here next Monday with a lawyer” and so forth and so forth.

    Well, on Monday, for the first time, the following Monday, the court did file a written charge under the sections of the statute, name the sections which were indirect contempt charging the petitioner with contempt to court.

    This hearing was held on Tuesday in the — just was just this, after a lot of difficulty, the court finally said, “You’re not here for any hearing, you’re not here for any trial.

    You’re just here to be sentenced.”

    We asked them to put petitioner on said, “No, that — that’s — you’re too late for that.

    I would let what petitio — petitioner testify.”

    We then read into the record what the petitioner would have testified to have been permitted to testify.

    Well obviously, there wasn’t any use under those circumstances to call other witnesses who were in the courtroom because courts there had been no trial nor hearing.

    William J. Brennan, Jr.:

    What was the formal appointment at the time (Inaudible)?

    Merritt W. Green:

    That it’s — that the record is — has devoid of any pinpointing of — of that except that it — I would say under the court’s situation of this — of when the petitioner was in for — for the so-called “trial”.

    He said that he’s only here for sentencing of the contempt already found then which would have to be the — which would have to be his statement when he related truthfully to the court what he had told the union officials.

    It had to be before that time.

    (Inaudible)

    Merritt W. Green:

    Either Wednesday or Friday, the first or the third.

    (Inaudible)

    Merritt W. Green:

    Yes, that’s right.

    Well, as I —

    (Inaudible)

    Merritt W. Green:

    No, we don’t know.

    No, this was — as I say, the — when — when the judge said, “$500 in 10 days, take him away”.

    There was a couple of deputies right at the back of the courtroom already waiting for it and we asked for bond, no bond and then we immediately filed an application for a writ which we had prepared.

    Then that was heard —

    William J. Brennan, Jr.:

    (Inaudible)

    Merritt W. Green:

    Sir?

    William J. Brennan, Jr.:

    (Inaudible)

    Merritt W. Green:

    Yes, that’s right.

    He was taken over to jail.

    He wouldn’t — wouldn’t let him do that, wait there.

    And then he was released.

    The court released him until a — another Court of Appeals came in.

    Hugo L. Black:

    What court released him?

    Merritt W. Green:

    The Court of Appeals.

    The Court of Appeals released him because our — the court before whom the — to which the writ — application of writ had been made.

    Hugo L. Black:

    They gave the bond?

    Merritt W. Green:

    They gave the bond because they didn’t hear it immediately, heard it the next day.

    They — they asked the — another court to come in from out of town to hear it.

    Well, at that — at that session before the court, Court of Appeals while all we did was put the petitioner on the stand, swore him and then we stipulated that if he were to testify, the testimony, it was read into the record would be the testimony in support of his application and mitigation and so forth as statute provided.

    Well now, the Court of Appeals refused to release the petitioner saying, one, that the trial court had a right to issue the temporary injunction in order to preserve existing conditions until such time as it could determine its jurisdiction.

    Earl Warren:

    Now, when you say refuse to release him, you mean in its final opinion, they did release him on bail, didn’t they?

    Merritt W. Green:

    Oh, no, I meant the — I meant the —

    Earl Warren:

    Then you had it on hearing before the Court of Appeals?

    Merritt W. Green:

    Yes, Mr. Chief Justice.

    I mean they refused to release him on the writ — on application of writ.

    Earl Warren:

    Yes.

    Merritt W. Green:

    Yes, sir.

    They also said that they couldn’t find anything in the record where the plaintiff or whether the petitioner was denied a trial or a hearing on June 7th.

    And they also said that being a lawyer in effect, getting the right to advise the clients as he did.

    These holdings or findings were in — were upheld by the Supreme Court of Ohio.

    Merritt W. Green:

    The Supreme Court of Ohio treated the — the due process issue just in one sentence saying that after all, the one little paragraph maybe a sense in his petition.

    The — the court that sentenced them also was the court that tried the — was trying the petitioner or the pickets and therefore, that court heard him say that this and so therefore, a trial or hearing wasn’t necessary.

    The court also made a pronouncement — the Supreme Court of Ohio, I’m talking about now.

    I’m not leaving my time on the due process thing, the denial of a trial and so forth because that’s terribly important but I think it’s terribly clear.

    William J. Brennan, Jr.:

    (Inaudible)

    Merritt W. Green:

    Sir?

    William J. Brennan, Jr.:

    We agree with you that he should have a hearing at the end of (Inaudible).

    Merritt W. Green:

    That’s right, Your Honor.

    And but — there are other issues in the case, I think, that would — that would complete the case in — in its entirety although if you agreed on that one point, Mr. Justice Brennan, it made me and then we would have to go back for — before that trial.

    Now, the Supreme Court also said that an individual against whom an order was issued could violate the order and if the order was void, they could set that up in defense of a — of a contempt action.

    But the Supreme Court said, “A lawyer is different.

    If a lawyer advises his client that that order is void then he is, right then and there, guilty of contempt to court.”

    Earl Warren:

    Whether it’s void or not?

    Merritt W. Green:

    Whether it’s void or not.

    And then the court went on to say that in those circumstances, the — the order is not subject to the same vulnerability.

    That would be for the individual.

    Well, now if the court in this type of a case in a — in an interstate labor case can deprive union officials and pickets of counsel by silencing him which he was tried to jail if he tells him what is accurate legal advice, it’s — though I — I don’t think I have to pursue any further but —

    William J. Brennan, Jr.:

    Well, that thing he needed (Inaudible)

    Merritt W. Green:

    That’s right, just a merit of advisory.

    Now, let me — I — I’ve —

    William J. Brennan, Jr.:

    Even though you’re right?

    Merritt W. Green:

    That’s right.

    I must apologize to the Court for not pursuing this phase.

    I’m going to talk about now in — in the brief.

    But I think it maybe the — maybe the one most important parts in this whole case.

    In Ohio, there’s a — there’s a case, Albert versus Juengling and Sons, 115 Ohio State 64 which is almost identical to this case except, instead of being a lawyer who gave the advice, it was the president of the union.

    The pickets were in — being tried for contempt of — of an injunction.

    The court learned that the union president was sitting back in the audience.

    And they said, “Come here.

    Are you the president?”

    Merritt W. Green:

    “Do you know about this injunction?”

    “Yes.”

    “Did you advise your men to go ahead and violate this order?”

    “Yes, I did.”

    “That’s all I want to hear.

    You’re in contempt to court”, our Supreme Court said.

    “You can’t do that.

    You got to give me a hearing.

    I mean the statute provides.”

    The — the court said that that’s an indirect contempt.

    The statute provides he — he’s got every hearing.

    He has to have notice.

    He has to have a hearing and which time he can come in with everything he has in order to explain his — his situation to the court.

    Now, there’s one other case after that that goes along with that same theory.

    So in Ohio, we have this situation that a union person or a person who’s not a lawyer is entitled to a trial in situation like this for advice given to — of sound advice to violate an — an injunction order but you got another — apparently, a lawyer has denied that same protection to the law.

    The lawyer just because he’s a lawyer, he’s then in a criminal action because that’s what it has to be is denied the equal protection of those Ohio laws and just because he’s a lawyer, he’s — by giving correct advice, that’s one of the most do, he’s guilty of — of contempt.

    Well —

    Earl Warren:

    Did the Supreme Court recognize this is an indirect contempt?

    Merritt W. Green:

    Yes, I think that — I think that’s — they did not say anything about.

    Now, the Court of Appeals alluded to the fact that this might have been a direct contempt because he told them, told them the truth, told the court what he had done and that might be.

    But however, the court said in as much as the trial judge filed that the charges which are indi — which are charges under our statutes for indirect attempt, then it was indirect contempt you see.

    Now, then our Supreme Court said, number one, that this was a status quo order.

    This was the effect of it.

    They followed the Court of Appeals saying that a — a court could issue a temporary order and without any consideration to where they had jurisdiction of the subject matter.

    It had to be a bidden until the court got around to deciding it.

    They alluded — they acquainted it to the true status quo cases like the Mine Workers case back during the war when John L. Lewis got in trouble with — with the Government when they — when the Government is running the mines.

    And in that case, the — the Court will remember, the — the Government filed a declaratory judgment action on the District Court.

    And prior to the — to the contract expiring because there’d been some threat that no contract, no work.

    There was declaratory judgment action and then the case was set for hearing on a temporary injunction.

    And in the meantime, Lewis’ miners were restrained but when they went ahead and — and struck anyway, and the court brought contempt action against them.

    Merritt W. Green:

    Now, that is a true, as I see it, a true status quo question where you are really preserving something.

    It’s not the main relief sought like it was in this case, the injunction, but it’s ancillary to the main relief sought until we can determine this then we — you hold everything here.

    They also acquainted this with the Ship case.

    That was one of the landmark cases of this Court where the Tennessee court had sentenced the man to death.

    The Court of — the District — the Circuit Court affirmed that decision and a petition was filed in this Court, an application to appeal.

    And one of the justices on Friday granted the proper jurisdiction and noted I guess, then Monday, the court did take it on appeal then issued an order that — to the Tennessee people not to do anything in the meantime.

    While the sheriff and some people that night hung this man and they — this court said well let — when we issued a — and we’re the only ones that could determine our own jurisdiction, and when we issue — that was — to preserve the status quo, well that’s what it was for.

    Well now, I can’t — I don’t believe there’s any resemblance between the two cases.

    This is not a true statu — status quo order because first place, the judge didn’t mean it to be a status quo order and there’s nothing to preserve.

    This prohibited the picketing.

    Had there been a temporary injunction set for hearing and a restraining order issue, then we might get close to a status quo order.

    Well, the — the Supreme Court of Ohio did not even allude — the Court of Appeals never even alluded to the federal preemption doctrine as to where the — that — that part where the jurisdiction has been withdrawn where it’s arguably or potentially a matter of — in Section 7 or 8 of Labor Management Relations Act you see.

    They never even mentioned that.

    The Supreme Court just alluded to it in — in passing almost looking over it shoulder and saying, “Well, anyway, we have — you have a right even though there’s no violence and — and no semblance of violence”, we have a right because of the petition says there was imminence of violence so therefore, an injunction could be issued.

    Well now, I don’t think it takes much for me to point out what that does to labor-management relations.

    If a court can issue without any consideration and when it’s almost — it’s evident on the phase of the petition that this is interstate labor matter.

    When a court can issue an ex parte injunction and then refuse to give anybody a hearing, well, you just takeaway from workers their right to — that’s guaranteed to him under Section 7.

    You just — you just paralyze the — this phase of — I think I actually if these were to be the law that continued in Ohio, this sort of performance that the preemption doctrine has no longer in existence in Ohio because all you have to do is plead and then by conclusions saying that if you don’t do something, something’s might be able to happen in the future.

    This is going to be harmful to the property of these people without any basis for it.

    Now, the petitioner, I mean the respondent here meets this question of the lack of due process or denial of due process in the trial by saying well that was cured because the petitioner read into the record he’s offered a proof.

    Well, I — I hardly think that that meets the standards of due process that has been established by this Court where they even go as far within the one Michigan case where the one-man grand jury who cited — who issued the citation, the court said that the due process and not only includes notice on the right to counsel or right to a hearing but a right to a hearing before a judge who hasn’t already found the person guilty.

    William J. Brennan, Jr.:

    The proper litigation here is what (Inaudible)?

    Merritt W. Green:

    Yes, that’s right.

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    That’s right.

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    That’s right Mr. Justice.

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    No.

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    No, that was just a — just a proper and that was with some great difficulty that we — the court even let us put that in before he said he didn’t want the record all put it up with that sort of stuff and — but anyway, that’s in the record.

    Hugo L. Black:

    What did the Supreme Court say about the Oliver case?

    Merritt W. Green:

    Mr. Justice Black, the Supreme Court never mentioned — you mean Supreme Court of Ohio?

    Hugo L. Black:

    Yes.

    Merritt W. Green:

    Never mentioned any — Oliver case, the Murchison case or none of those cases.

    They never — the only thing they said about the lack of a trial was after all the judge who sentenced them was also the judge who heard the testimony against the pickets and therefore, it wasn’t necessary for them to have another hearing.

    That’s I think on —

    (Inaudible)

    Merritt W. Green:

    I beg your pardon?

    The Supreme Court of (Inaudible)

    Merritt W. Green:

    No, it was a five to two.

    Judge Bell wrote the dis — the dissenting opinion joined in by Taft.

    Hugo L. Black:

    What did they rely on for finding if this lawyer had violated him justice?

    Merritt W. Green:

    Do you mean the Supreme Court?

    Hugo L. Black:

    Yes.

    Merritt W. Green:

    Just the fact that he was a lawyer, and the lawyer had — and they said that the lawyer was held to a higher duty than the layman in effect saying, Mr. Justice Black, that the layman if —

    Hugo L. Black:

    But what evidence did they rely on for the purpose of showing that he had violated the order?

    What evidence?

    Merritt W. Green:

    None.

    Just that he was a lawyer and he — and he should obey — he should obey or see that his clients obey the order so as long as they remain in existence.

    William J. Brennan, Jr.:

    Well, I don’t understand this, Mr. Green.

    I thought this supposed or the content in which he stands convicted was having advised his client as he did, is that what his contention?

    Merritt W. Green:

    That’s right.

    William J. Brennan, Jr.:

    In other words, he’s not himself convicted of having violated any order.

    It’s only for having given advice to his client, do you think?

    Merritt W. Green:

    That’s the effect of it.

    In other words, the — the way the — the way the court said it that he bra — brazenly, not ordered, but I think maybe direct to their — or advised his clients to violate the order.

    Now, actually as I’ve explained it, the only thing he did was to call his people in Chicago and said, “Now, here’s a situation, an ex parte order has been issued.

    We’ve talked to the judge and again and again and — and he’s not going to give us a hearing.

    You’re not going to get one next week and so forth.

    Merritt W. Green:

    Now, the only way I know you’re going to get a hearing is that you want your men to go ahead and violate the order.

    And then if there’s application —

    William J. Brennan, Jr.:

    Yes, but I gather what he said to the judge, I forgot the date you used, the 1st and the 3rd of June, when the judge asked, “Well, who told you fellows to do this?”

    He spoke up and said, “They did it on my advice” or something to that in effect.

    Merritt W. Green:

    He said, “I can tell the court now that they were advised by me”.

    And then he went on to explain just what I’ve told you here.

    William J. Brennan, Jr.:

    Well, did he go on to say at that time —

    Merritt W. Green:

    Yes, that’s right.

    William J. Brennan, Jr.:

    — the advice that (Voice Overlap)–

    Merritt W. Green:

    That’s right.

    And that the final instructions have come from his superiors and from the superiors of the union to the men.

    And then on the 3rd, it was just that one two words, when the judge apparently was a little put out because the — the pickets were not brought forth on the stand because actually, they were still just want to get a — get a conviction on that so they could go upstairs.

    Hugo L. Black:

    Did the court treat that as a confession of valid and —

    Merritt W. Green:

    Apparently.

    Hugo L. Black:

    Well, in Oliver, we said, this Court has said that knowing the knowledge required from the testimony of others or even from the confession of the accused were not just a fact conviction without a trial in which there was an opportunity to present.

    Merritt W. Green:

    That’s right.

    Our Supreme Court only used that one — I think the one sentence on — it’s on page 69 of the record.

    And here — here is all, there’s a paragraph, read the whole paragraph to it.

    As to the hearing had on such charge on June 7th, 1960 was not conducted with the decorum and restrain that should have been but to say that it was such a (Inaudible) deny the appellant due process of laws are hardly justified.

    The contempt had already occurred as disclosed in a hearing on June 1st and June 3rd and the judge presiding over that hearing was the same judge who issued a restraining order and who conducted the proceedings on June 7th.

    Now, of course, the petitioner was not — before the court on the 1st and 3rd except in a representative capacity representing the — as a lawyer, representing the people, he was not there pursuant to notice or he didn’t even know that he’s the most priced person in the courtroom that he was — the judge says your in contempt of court.

    But that’s all it said about the denial of a trial, Mr. Justice Black.

    John M. Harlan II:

    Is there any type of proceeding (Inaudible)?

    Merritt W. Green:

    They were the ones that were brought in for contempt on the 1st and 3rd but they never —

    John M. Harlan II:

    (Inaudible)

    Merritt W. Green:

    There was never an order of — of contempt for which we get appealed.

    See, on — on Friday, the judge says, “Well, you’ve taken the onus on yourself, you stand in their shoes, you’re guilty of contempt, come back here”.

    And he dismissed the other people by just saying, “Well, don’t be too afraid.

    I know what I’m going to do with you fellows.

    And after this, whenever you get an order, no matter whether that’s right or wrong, obey the order of the court, just like in the army and –”

    William J. Brennan, Jr.:

    Well, he did not find the four guilty?

    Merritt W. Green:

    No.

    I think — he may have said that they were — they were guilty but he never filed it up with an order and then — you see the day we’re in the Court of Appeals, arguing on the application for writ of habeas corpus.

    The — it was announced there to the court that the — that the injunction action was dismissed that morning.

    Strike was over.

    That over you see.

    They had entered into a — to a — to a new one different agreement.

    I mean, that — they finally concluded their agreement, let me put that way.

    And at that time of course, it was evident to — to that court and the Supreme Court but not only was there NLRB proceedings against the — pending against the employer but —

    William J. Brennan, Jr.:

    What happened to them by the way?

    Merritt W. Green:

    That was dismissed as part of the strike settlement, and — and that was also agreed that there was no — there was no violence and then violence never came in to the play.

    Earl Warren:

    I understood you just to say, Mr. Merritt, that on the 2nd and 3rd, whenever it was that it was agreed between counsel that the way to — the way they could get at this thing would be to — to continue the — the picketing and — and taken up with the court, isn’t that (Voice Overlap) about it.

    Merritt W. Green:

    Yes, that’s right.

    Earl Warren:

    Counsel on both sides agreed to that?

    Merritt W. Green:

    That was agreed in the judges chambers that that was — that was a — the procedure was agreed by them that — to do — to follow the next day and on that effect —

    Earl Warren:

    (Voice Overlap) right there?

    Merritt W. Green:

    Sir — oh, yes, oh, yes.

    That’s in the record and the recitation of what the — what the petitioner would have testified to.

    Now, that is as a matter of fact both the dissenting opinion in the Court of Appeals and in the Supreme Court.

    Both speak of that thing that after all, he has announced the (Inaudible) part of a lawyer within the framework of the law to — to still continue to see justice for his clients when he keep bumps up against the stone wall.

    There’s no — there’s nothing in this record despite what the respondent would like to have you believe in his brief.

    There’s nothing in this record to justify that anything that the petitioner did, the only thing he did was this — this 4 o’clock call to — to people in Chicago.

    And they made the decision that this was a matter of defiance that this was done in the spirit of defiance of — of a court or this was just a — an honest and maybe dangerous, it appears to be up to this point, effort on the part of the petitioner to — and the pursue to justice for his people.

    That’s about what I’m talking to.

    I think I will reserve what time I have left for rebuttal.

    Earl Warren:

    You may, Mr. Green.

    Merritt W. Green:

    Unless the Court has some other question.

    Earl Warren:

    No, that’s — that’s all.

    Thank you.

    Mr. Neidlinger.

    Ben Neidlinger:

    Mr. Chief Justice and members of the Honorable Court.

    I think in the first place, it might be well for us to point out to the Court that as attorneys for the respondent in this case, we are actually, although, technically representing the sheriff of Lucas County, Ohio in the habeas corpus proceedings.

    Neither Mr. Friberg, as prosecuting attorney of this county, nor I, as one of his assistants, were interested in nor did we partake in the case involving the longshoremen’s union and the two-leader terminal.

    We came in to the matter when the habeas corpus proceedings were filed originally in our Court of Appeals and have then in the matter ever since that time.

    I say that this not in apology for our position today, only an explanation.

    Now, the chronological order of this matter might become important.

    Let us remember that in the first place, this petition, that is the petition for an injunction and equitable relief, was filed on May the 27th.

    That is the day that the temporary order was issued.

    Now, I will read just a moment from the record because I believe that we have a little misunderstanding here possibly as to what was requested in that.

    On page 11 of the record at the bottom of the page item number 12, the prayer for relief set forth for plaintiff phrase that pending final hearing and determination of the issues herein, a restraining order be issued forth with against the defendants and each of them etcetera.

    On the next page at the bottom, just above the attorney for the plaintiff, plaintiff further phrased that upon final hearing said restraining order be made permanent, so much for whether or not a restraining order was asked in issue.

    Earl Warren:

    Is it your contention this was a restraining order and not the temporary injunction?

    Ben Neidlinger:

    That is our opinion, Your Honor.

    The distinction made between a restraining order and an injunction is not always so very clear in our state.

    I may say that.

    I may say the words are used quite loosely and quite interchangeably.

    I believe that —

    William J. Brennan, Jr.:

    Well, this — this contemplated only two kinds of orders, what’s called the “restraining order” and what’s called the “permanent injunction”.

    In other words, this doesn’t speak in terms at least of a temporary injunction.

    Ben Neidlinger:

    It does not, Your Honor but I will —

    William J. Brennan, Jr.:

    But this sounds to me — it sounds to me whatever the label maybe more like a request for temporary injunction that it does for what I understand to be a restraining order.

    Ben Neidlinger:

    Well, as I believe and as I’ve said it to the Court, those words are quite loosely and quite interchangeable in Ohio practice.

    Now, I may also say that I disagree quite strongly with counsel when he has said to this Court that it is not the practice to issue temporary orders ex parte.

    I would say, and Mr. Friburg agrees with me, that in our experience, which encompasses together about 65 years of practice in that county, that it is very common.

    Perhaps it should not be Your Honors but I’m telling you what it is.

    And the custom and the practice is, and our objection in this case is that the petitioner now in the habeas corpus proceeding did not go into court and do what all other lawyers do, immediately file a motion to dissolve that injunction to have a hearing on it.

    That’s the crux of our matter, Your Honor.

    That’s a crux of it.

    He didn’t do that.

    He chose his own method.

    Ben Neidlinger:

    He chose his own method and he did not choose the method which the court himself suggested to him as I would show you.

    Potter Stewart:

    Is the — going back to the question of whether this was a temporary restraining order or a temporary or permanent judge, is the copy of the court’s order here?

    You — you’ve referred us to the petition but I haven’t been able — I don’t seem to be able to find the — the court’s order.

    Ben Neidlinger:

    Mr. Green agrees with me that a formal order was not important but on the petition and on the docket, an order either temporary injunction or temporary restraining order, I don’t know which granted has paid for.

    Potter Stewart:

    Or just endorse on the petition or what?

    Ben Neidlinger:

    No, probably not only on the petition but also upon the —

    Potter Stewart:

    Headed by the court —

    Ben Neidlinger:

    — the docket sheet of the court.

    Potter Stewart:

    Yes.

    Ben Neidlinger:

    And that is all no formal journal entry, is that correct?

    Hugo L. Black:

    Is that here?

    Ben Neidlinger:

    I defer to Mr. Green in that matter because he was in that case and I wasn’t.

    Hugo L. Black:

    Is that here?

    Ben Neidlinger:

    I beg your pardon?

    Hugo L. Black:

    The docket sheet here?

    Ben Neidlinger:

    Oh, yes, Your Honor.

    Hugo L. Black:

    But where is it so we can see the order he’s given?

    Ben Neidlinger:

    I don’t think it’s in the record.

    You prepared the record Mr. Green.

    Is it in the record?

    Merritt W. Green:

    No.

    Ben Neidlinger:

    It is not in the record, Your Honor.

    Earl Warren:

    But how long was this order whether it was a restraining order or an injunction, how long was it to last?

    Ben Neidlinger:

    Last until — he either two — one or two things happened.

    Either it was dissolved like further order of the court or made permanent by further order of the court.

    I don’t think there’s any dispute about it.

    Earl Warren:

    At the conclusion — at the conclusion of the main case?

    Ben Neidlinger:

    Unless as is the practice a motion to dissolve it were filed.

    Earl Warren:

    Yes.

    Well, what is the procedure to dissolve?

    Ben Neidlinger:

    You have filed a motion to dissolve and have a hearing.

    Earl Warren:

    Well, what kind of notice must be given?

    Ben Neidlinger:

    What kind of notice?

    Well, usually simply advise other counsel and set a date for a hearing of it which is usually heard very rapidly on a date to which is convenient to the counsel for both sides.

    William J. Brennan, Jr.:

    But this judge said he couldn’t hear anybody.

    They seem too crowded.He couldn’t find his time for it.

    Ben Neidlinger:

    No, Your Honor.

    That is a statement by my learned counsel.

    He said he couldn’t hear in such a hurry and that’s why I wanted to get to the chronology of the events and show you the holidays that intervene.

    Earl Warren:

    Well, on the motion of that kind to dissolve, isn’t there some requirement of law as to how much notice a person is entitled to?

    Ben Neidlinger:

    No, we hear them — we hear them in our jurisdiction almost immediately.

    He would have had no trouble hearing it.

    Earl Warren:

    Well, I — it might not have any trouble but isn’t there any — any statutory requirement as to — to what notice the person is entitled to on the dissolution of an injunction?

    Ben Neidlinger:

    No, Your Honor.

    Earl Warren:

    It’s rather — rather strange.

    It wouldn’t be some requirement as to how much notice could have be done without notice?

    Ben Neidlinger:

    No, Your Honor.

    Notice would have to be given but the court would set it up and would not broke any delay in hearing a thing of that kind anymore that’s necessary but the calendar when something has been said here earlier this morning about some five or six months, I say to — to Your Honors categorically that that is not true, would be heard within five or six days.

    Hugo L. Black:

    And yet, when you take it up to the judge I suppose, it sounds like practicing and take it? Take it up with the judge, signing up, file a motion, dissolve a restraining order —

    Ben Neidlinger:

    Your Honor —

    Hugo L. Black:

    (Voice Overlap) be and then he would say, “Well, I’ll hear you next Saturday.”

    Ben Neidlinger:

    Yes, Your Honor.

    Hugo L. Black:

    (Voice Overlap) you’d notified the counsel.

    Ben Neidlinger:

    Our concern some 30 years of practice, I have had my share of experience with injunction orders both on one side and on the other.

    We never had any difficulty on having a hearing on a motion to dissolve any type of temporary order within the time of satisfactory for both counsel.

    I never heard such a thing.

    Hugo L. Black:

    Was there a writ issued on the order that you say is on the docket sheet, an actual paper that was written or issued that the sheriff served on the union?

    Ben Neidlinger:

    I am sorry, Your Honor, that is a question I cannot answer.

    And I only can say that I wasn’t — and should perhaps have been prepared for that question but I again remind you, Your Honors, that we did not participate in that case.

    Hugo L. Black:

    But what if we could have be — be agreeable if we had the original paper?

    Hugo L. Black:

    It seems this record doesn’t have the, for my purposes, the papers that are necessary to decide the issue.

    Ben Neidlinger:

    Well, of course, Your Honor, if there are any papers that this Court wants, we have within our power to get them to him, we will do so immediately.

    You are now talking about to make a specific — actually, we’d better mark it down, Mr. Friberg.

    The — the copy of the petition itself if it has any notations on it by the court, am I correct Your Honor?

    Hugo L. Black:

    The copy of the papers in the or rather the written notes in the injunction sue.

    Ben Neidlinger:

    Yes.

    Hugo L. Black:

    Out of which this contempt arose.

    Ben Neidlinger:

    Yes, Your Honor.

    Hugo L. Black:

    That would include the — I suppose the petition and any papers that were issued on a petition or any notation.

    Ben Neidlinger:

    And also any returns from the sheriff showing —

    Hugo L. Black:

    No.

    Ben Neidlinger:

    — who of any received them.

    Hugo L. Black:

    I thought perhaps this writ, we would call it had some notation whether it was a restraining order, whether it was an attempt for injunction or whether this is what it was, what he thought it was.

    Ben Neidlinger:

    Very happy to get them for Your Honor.

    Hugo L. Black:

    That’s agreeable to by —

    Earl Warren:

    Very well if you will.

    Do you know if there was any order to the sheriff?

    As I understood counsel, he was in court and — and asked for a bond and he said, “No, take him over and lock him up” or words to that effect.

    And they just took him into — into custody.

    Now, was there an order or written order after that to the sheriff or — or was that (Voice Overlap)–

    Ben Neidlinger:

    Well, Your Honor, we are now talking about two — two different things.

    The justice was referring to the order in the —

    Earl Warren:

    Yes, we are.

    Ben Neidlinger:

    — civil proceeding.

    Earl Warren:

    We — we are — we are in (Voice Overlap)–

    Ben Neidlinger:

    You are now proceeding — referring to some things that —

    Earl Warren:

    Yes.

    Ben Neidlinger:

    — were said —

    Earl Warren:

    That — that’s right.

    Ben Neidlinger:

    — the counsel about that.

    Earl Warren:

    Yes.

    Ben Neidlinger:

    I think you will find that all of the record relating to the habeas corpus proceedings are in the printed record in chronological form.

    We examined this record and we agreed that those things happened.

    Yes, there was a definite order given to the sheriff.

    Earl Warren:

    Alright.

    Well, just —

    Ben Neidlinger:

    But as long as —

    Earl Warren:

    –talk about it then.

    You’re right on (Voice Overlap) —

    Ben Neidlinger:

    But as long as we are now on that subject, perhaps, I should correct something which has been said —

    Earl Warren:

    Yes.

    Ben Neidlinger:

    — about this dragging off to jail.

    I don’t know whether it’s important or not.

    But the hearing on June 7th, 1960, now, that’s a hearing on contempt.

    Earl Warren:

    On whose contempt?

    Ben Neidlinger:

    On the contempt to the petitioner.

    Earl Warren:

    What date was that?

    Ben Neidlinger:

    June 7, 1960

    Earl Warren:

    Yes, yes.

    Ben Neidlinger:

    It was at 10:30 a.m.

    It was comparatively short.

    It’s in the record, however.

    And the record will also show in chronologically events that the writ of habeas corpus was issued and the petitioner released immediately afterwards at 11 a.m.

    I just say that to this Court so that you may not get any notions from what has been said by counsel that the petitioner, who is one of our own brother at the bar, languished in our local Bastille.

    Here’s — custody was entirely a technical one.

    And I also want to point out some thing else.

    There is not a thing in the record.

    And if there is, I haven’t been able to see it and I took this case through both of Court of Appeals and the Supreme Court of Ohio to indicate that he asked for or was refused bond by the trial court.

    It was a little more quite summary.

    You are in contempt.

    Ben Neidlinger:

    I find you so much and so on, but there’s nothing in the record to indicate that he asked for, it was denied bond.

    As a matter of fact, before anything could happen, they were all prepared and they were in the Court of Appeals which is one floor up with the writ habeas corpus and it was signed.

    He was released.

    Now, those are the facts and counsel knows it.

    Hugo L. Black:

    May I ask you if there was a contempt here, where it was committed?

    Ben Neidlinger:

    Yes, Your Honor.

    I — I think that that’s a — I think that’s exactly the point.

    We had —

    Hugo L. Black:

    Where was it committed if it was committed?

    Ben Neidlinger:

    Where was it committed?

    Hugo L. Black:

    Yes.

    And what was it?

    Was it committed in open court?

    Ben Neidlinger:

    I think it was, Your Honor.

    Hugo L. Black:

    It was something (Voice Overlap) —

    Ben Neidlinger:

    I think it was.

    Hugo L. Black:

    Were something said to the court?

    That (Voice Overlap)–

    Ben Neidlinger:

    Your Honor, well, bear with me just a moment.

    Hugo L. Black:

    Did he give an order to the union men to — to disobey the court’s order in the court’s presence?

    Ben Neidlinger:

    No, Your Honor, he did not.

    Hugo L. Black:

    Where did he if he gave it?

    Ben Neidlinger:

    Outside of the court’s premise.

    Hugo L. Black:

    Outside the courtroom?

    Ben Neidlinger:

    Yes.

    Hugo L. Black:

    Was — is it your view that a man who commits the contempt outside the courtroom engages in conduct outside the courtroom can be brought out by a judge inside without a charge, serve no name with notice, and without producing evidence and that having a hearing to determine not merely what the evidence was against him, but what were the excuses if he had it so that he is given a hearing in court?

    Ben Neidlinger:

    In the first place —

    Hugo L. Black:

    In — in your judgment, does — does the law permit such a conviction of contempt committed outside the court where it requires evidence outside the court — from outside the court, a witness, without a notice, without a charge and without a hearing of witness, a chance for the defendant to put on his witness?

    Ben Neidlinger:

    Without for one moment admitting that this man did not have a hearing on June 7th, which I will advert to later.

    I would say that when on the June 1st and the June 3rd, he stated in open court in unequivocal language that he had not, as counsel says in his brief and orally, advise his clients that in his opinion the injunction or restraining order as it may be was invalid because of lack of jurisdiction, but that he deliberately advised him to disobey that order, told the court he advised him to obey that order.

    Hugo L. Black:

    Can you show me — show me that, would you?

    Ben Neidlinger:

    Yes, Your Honor.

    Hugo L. Black:

    Assuming that you could try that way — have you read Oli — Oliver and Murchison cases and others?

    Ben Neidlinger:

    Oh, yes, Your Honor, of course.

    Hugo L. Black:

    And do you think that in Ohio, they can without violating due process of law under those cases, try a man for conduct committed outside the courtroom, without a charge, not him being allowed to come in and hear the witnesses against him and to let the witnesses be heard by him, merely because the court said that he heard he make a statement somewhere that he had done something.

    Ben Neidlinger:

    Your Honor —

    Hugo L. Black:

    Would that — would that — not that more likely called but trial by different judge on our opinion rather than to let the judge depend on what he says he heard about what a man had done outside the courtroom?

    Ben Neidlinger:

    Well, let us see, Your Honor, what just — what the petitioner did say to the court before I attempt to answer your question —

    Hugo L. Black:

    Alright.

    Ben Neidlinger:

    — which I may add, just put in a way that makes it extremely difficult for me to answer.

    Earl Warren:

    What page Mr. —

    Hugo L. Black:

    I would think so.

    Ben Neidlinger:

    The record — I beg you pardon?

    Hugo L. Black:

    I say I would think so if you refer to our case the court’s restraining order.

    Ben Neidlinger:

    I referred to your cases and I will answer your question, Your Honor, to the best of my ability.

    Page 24 of the record, the fourth.

    Now, Mr. Green, in the middle of the page, “I had only two ways to go at it, let me say this, that this court had no jurisdiction.”

    Mr. Green, “And consequently, a contempt on the basis of any own valid order cannot stand.”

    The court, “That is beside the point.”

    Mr. Green, “Well, it is not beside the point.”

    Hugo L. Black:

    What date was that?

    Ben Neidlinger:

    What date was this?

    Hugo L. Black:

    Yes.

    Was that the date where you say the contempt proceeding would be done and finished against him?

    Ben Neidlinger:

    No, Your Honor, I didn’t say that.

    Hugo L. Black:

    You didn’t?

    Ben Neidlinger:

    This — this is a transcript to the proceeding —

    Hugo L. Black:

    I understood you to say it was on contempt, was I wrong?

    Ben Neidlinger:

    Yes, you were wrong (Voice Overlap)–

    Hugo L. Black:

    What date did you say the contempt proceeding was started against Green?

    Ben Neidlinger:

    Actually, the indirect proceedings were filed on June 6th and the hearing was on June the 7th, the previous hearings on —

    Hugo L. Black:

    Where — where are the charges that were made on June the 6th, if you say he was charged for contempt?

    William J. Brennan, Jr.:

    That’s a contempt we had before us, isn’t it?

    The one that was initiated on the 6th included on the 7th?

    Ben Neidlinger:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    That’s the one on which we don’t have, isn’t it?

    So what had happened before that, except it has a bearing on that charge, is the only — only relevance he would have?

    Ben Neidlinger:

    Well, I think it does have quite a bit of bearing on the charge.

    Yes, Your Honor, I agree with you.

    May I proceed?

    On June the 1st, these were — this was said, “You —

    Hugo L. Black:

    Where is that?

    Ben Neidlinger:

    Of the record page 24, continue where I’ve been reading Your Honor.

    “You could at least obey the order of the court and then come in and expressed whatever criticism you had and put yourself.”

    Mr. Green, “There were only two ways we could do these.”

    The court, “You could wait until we had a final hearing on the entire matter.

    That was the only way you could have done it.

    You could obey the order of the court.”

    Mr. Green, “No, we could not have done it that way.

    Then my client would have to give up the only vital right to have to bargain.

    The only other way the — this matter could have come up is the way it did come up that is by a contempt action in this Court, because this is the only way this matter could have been heard, etcetera.”

    And then at the top of the next page, finishing the sentence, “And it was apparent that this court had made a court order that was invalid on its face.

    That’s been his contention all along.

    The court, “But that was before it was ever submitted in the court who did that.”

    Mr. Green, “Well, sure, Your Honor, there is no question about that.”

    Then there’s some — some more and then later, after he says “I can advise that they were told by me”, which he now claims his advice.

    And if it his advice may I say to Your Honors that of all that this petitioner did was advised his clients that in his opinion, the court was without jurisdiction, we want it distinctly understood to this Court that we believe he would have been acting within his rights, not only within his rights that he would have been his duty.

    Hugo L. Black:

    Well, how could that have been shown except by showing what he told them by witnesses in the courtroom?

    Ben Neidlinger:

    He said so and his counsel said so.

    Hugo L. Black:

    He said so?

    Ben Neidlinger:

    He said so.

    Page 27, the court, “You also advised them to violate an order of the court, too.”

    Mr. Green, “I did, unequivocally.”

    Hugo L. Black:

    Page 27?

    Ben Neidlinger:

    Page 27 of the record, Your Honor.

    It’s referred to a number of times in brief but I know Your Honors do not like to have read from the brief.

    We’ll read from the record.

    “I did —

    Hugo L. Black:

    (Voice Overlap) in the statement about what was actual said between these people?

    I’m not talking about conclusions of the witness or somebody to ask the question or the court.

    Where do we have in this record statement of what he actually told these clients?

    Ben Neidlinger:

    The only portion of the record is that (Voice Overlap) —

    Hugo L. Black:

    While witness is under oath.

    Ben Neidlinger:

    I beg your pardon?

    Hugo L. Black:

    While witness is under oath.

    Ben Neidlinger:

    None under oath.

    Hugo L. Black:

    He had no hearing.

    Did his witness put under oath?

    Ben Neidlinger:

    His counsel, this Mr. Green, Merritt Green, the petitioner is Merritt Green, II, his counsel, Merritt Green, at that time asked for and was granted permission to read into the record what he would have testified too if the court would have heard him.

    That was granted and he read at alumnus —

    Hugo L. Black:

    Did the court hear then?

    Ben Neidlinger:

    It’s heard in the court.

    Hugo L. Black:

    Or did the court excluded?

    Ben Neidlinger:

    No, the court heard it.

    There’s no question about that.

    William J. Brennan, Jr.:

    Did they heard it after refusing —

    Hugo L. Black:

    After refusing (Voice Overlap) —

    William J. Brennan, Jr.:

    He would let — he would let the witness take the stand and lawyers says, “Well, this is what he testified too” that’s hearing, is it?

    Ben Neidlinger:

    Well, that’s what happened.

    Hugo L. Black:

    But he said he wouldn’t.

    William J. Brennan, Jr.:

    What happened?

    Is that hearing it?

    Ben Neidlinger:

    Well, I — I’m afraid I don’t understand what — what Your Honor means by hearing it.

    I assumed that he listened to it.

    Hugo L. Black:

    What statement was made for purposes of appeal?

    It was just completed field.

    Ben Neidlinger:

    I didn’t hear Your Honor.

    Hugo L. Black:

    I said the statement would be one that was made the purposes of appeal to perfected bill.

    Ben Neidlinger:

    Yes, Your Honor.

    I think that’s correct.

    I think that is correct

    Hugo L. Black:

    What page is that on?

    I like to read the sentence.

    Ben Neidlinger:

    At page 36 of the record, Mr. Green, whom I now beg the indulgence of the Court again, calling your attention that this is now Mr. Green Senior, counsel from Mr. Green Junior as he’s very statements.

    And then beginning at the middle of the page 36 and going on, he relates his in — the entire reference but in the words of the now petitioner in this case everything that he would have testified too had even permitted to testify, that is what was heard.

    Hugo L. Black:

    Whenever it’s put in the (Inaudible) the court solemn, he would not let them testify to those facts, wasn’t it?

    Ben Neidlinger:

    That was —

    Hugo L. Black:

    In connection with finding whether he was guilty of contempt or not?

    Ben Neidlinger:

    Yes.

    The court certainly was there at that time as far as that was concerned for the purpose of hearing things in mitigation.

    That is correct, Your Honor.

    Now —

    Potter Stewart:

    You said that earlier, Mr. Neidlinger, that it was your theory that this could be view — viewed as a contempt committed in the presence of the court rather than as indirect contempt.

    And I think you were not — didn’t have it to pursue that this way.

    Ben Neidlinger:

    I say that the language used by this man in the court on June the 1st and on June the 3rd, in my estimation, had the court wish to stand upon his rights as finding him guilty of direct contempt could have done so.

    (Inaudible)

    Ben Neidlinger:

    Well, I refer to a number of places.

    On June the 1st when he says that he could advise the court now that the pickets had been told — oh, I’m sorry, I have to refer to my brief on that page 25, I regret doing so, but I could find it quicker.

    The record its page 23, when he asked the respondents of the union, officials had been told by someone to valid the court order.

    He’s answer was, “I can advise now that they were told by me.”

    Ben Neidlinger:

    Then the court later on said, “You could wait until we had a final hearing” which I read before.

    That’s on record 24.

    He said, “No, we couldn’t have done it that way” and told why.

    At June the 3rd and the resumption of the same session, he used the language, record page 27, “You also advised them to violate an order of this court”.

    Now, petitioner on the same page said, “I did”.

    At record 28 of the lower half, he state to the court, “Your Honor, I have taken the only course open to me referring of course to advising these pickets to violate the injunction.

    But I don’t feel that we are contempt to court.”

    And then he said these significant words Your Honor to a judge of 30 years experience on the bench, “I don’t want to discuss that at this time.

    I’m not concerned with that at all.”

    Now, I say it then and there say in that, that language coupled with the other taken that way that he was indirect contempt.

    And even though the court shows whether wisely or wisely to granting a further hearing on June the 7th, I don’t think he had to do so.

    I think the conduct of the —

    William J. Brennan, Jr.:

    But that’s not the question before us, is it?

    That’s what I’m — the question before us is whether the conviction in fact ended up content.

    Ben Neidlinger:

    Yes, Your Honor and the question before this Court, if Your Honor would respectfully bear with me, is also as to whether or not substantial justice has been done to this man.

    Potter Stewart:

    To me, that you’re answer — answering a question that I asked you and I appreciate it, would it not?

    Ben Neidlinger:

    I tried to Your Honor.

    I don’t quite over succeed.

    Earl Warren:

    Mr. Niedlinger, you — you pointed out to us the statement, the proper of proof that — that Mr. Green made after he was denied the opportunity to — to testify.

    And then I notice there’s some colloquy at the end of that to go this way.

    Mr. Green, “Then, I don’t know what it is coming to.

    I think we have that right and that’s what we have done.

    All the circumstances arising before and meeting up to the advice of this lawyer to his clients, if that is excluded then I presumed as the court said, it has decided then the only thing here today is the question of punishment.”

    The court, “That’s right.

    At last, you have arrived at the conclusion.

    That’s all is before the court.”

    And then Mr. Green says, “This thing, apparently, in the last few minutes has become — has become dangerously close to — to generate in him to an emotional thing.

    And I would like to suggest this to court that before sentence is imposed that the court will go back and read what is in the record and to do the record”, obviously referring to his offer of proof.

    And the court says, “I’m not going to read all that,” that Mr. Greene, “I will just going to make the suggestion.”

    “You may make your suggest.”

    Earl Warren:

    The court has previously held that Merritt W. Green II, is in contempt to court.

    Therefore, he is ordered, committed to the Lucas County Jail for a period of 10 days and to pay a fine of $500 on a stand committed until the fine is paid.

    That’s all there is to it.

    Now, my point is simply this.

    In the — in the light of that colloquy, how can you say that he considered that of proper of — of proof as evidence on which he — he could convict this man with anything.

    Ben Neidlinger:

    Justice Brennan’s question I think was whether he heard it.

    Earl Warren:

    Beg your pardon?

    Ben Neidlinger:

    I think the Justice’s question as to whether — as to whether he heard it.

    William J. Brennan, Jr.:

    No, the question was whether he had a hearing.

    Earl Warren:

    Yes.

    William J. Brennan, Jr.:

    Is that a hearing?

    What I asked, not whether he heard it.

    He’s not deaf.

    I supposed he has heard it.

    Ben Neidlinger:

    Yes, Your Honor.

    And as I —

    William J. Brennan, Jr.:

    It’s a different thing from whether he had a hearing, isn’t it?

    Ben Neidlinger:

    It’s a difference as to whether he considered it too, Your Honor.

    I recognized that quite well.

    But I was not in the entire conformity with what’s you are meaning when you asked the question.

    I would not mean to be facetious in my answer.

    I assure you Your Honor, that he had — I — I shown it’s a matter of foursquare and not have be (Inaudible).

    If Your Honor presents the question directly to me as to whether he thinks — whether I think that the court had his mind made up, that what had happened on June the 1st and on the June the 3rd in the presence of the court, and also what had happened outside of the court, what was admitted by counsel, I mean admitted by the petitioner and also by his counsel and that therefore his mind was made up for all practical purposes before he’s heard the statement of Mr. Green, I’ll answer, yes, I think it was.

    Wish to be as fair with the court as the court is with me.

    Earl Warren:

    And you think that’s an adequate hearing on which you commit a man to jail for a contempt?

    Ben Neidlinger:

    Let me say this, Your Honor.

    I would say that it would not be the type of hearing which I would advocate —

    Earl Warren:

    That isn’t the right question to you.

    I asked you —

    Ben Neidlinger:

    (Voice Overlap) Your Honor.

    Earl Warren:

    — if within the realm of due process, if that is an adequate hearing for a man before he’s sent to jail.

    Ben Neidlinger:

    Yes, Your Honor, I do.

    Earl Warren:

    Alright.

    Ben Neidlinger:

    I do, because of the other things, which courts have related, and because of the fact that since there is no question, no question at all from the record, no question at all that this man repeatedly informed the court in brash terms, and I used the term “brash” not to characterize the petitioner in anyway but because it happens to be the terminology used by the Ohio Supreme Court.

    When he told the court brashly that he not only had advised them to disobey an order of the court but in effect told them that he was going to continue, he didn’t want to hear anything about what that was contempt to court.

    Yes, Your Honor, in that case I would say substantial justice had been done and that therefore he had a hearing within the purview of the due process.

    Earl Warren:

    And that was all done before he was charged with this charge with contempt?

    Ben Neidlinger:

    Yes, it was all done at the hearing on June the 1st, June the 3rd and the charge of June 6th.

    I don’t hesitate in order to get the chronology correctly on my mind.

    Earl Warren:

    So your — your conclusion is that in the mind of the judge, a man can be convicted of indirect contempt and then can thereafter file a complaint against him, permit him to offer no evidence in his defense and find him — him guilty on his state of mind at the time he came into the courtroom.

    Ben Neidlinger:

    I would put it just a little differently, Your Honor.

    Earl Warren:

    Put it your way.

    Ben Neidlinger:

    I — I can’t put it your way or I would be glad to.

    Earl Warren:

    No, I say put it your way.

    Ben Neidlinger:

    Yes.

    I would say that where a direct contempt has been committed, I thought —

    Earl Warren:

    Is this a direct contempt?

    Ben Neidlinger:

    We think so.

    Your Honors will decide.

    Earl Warren:

    Why — why did he then file charges of indirect?

    Ben Neidlinger:

    It’s just what I was going to get to.

    Earl Warren:

    Very well.

    Ben Neidlinger:

    I don’t believe he should have.

    I — I think that he was mistaken in filing the charges of indirect contempt.

    I — I believe that — that I know Judge McKay well enough, and the 30 years he has been on the bench and happened to be one of my law instructors, law school long before that, I think I know him well enough to say that, well, he may have been somewhat incensed, if I may use that terminology, the hearings on June the 1st and on the June the 3rd of this young man of three and a half years experience.

    His counsel says, addressing him in that way that over the weekend, that he cooled off or somewhat and probably decided that formal charges were better.

    He did say at all times that he wanted him to have counsel before he can sentence him.

    Earl Warren:

    (Voice Overlap)

    Ben Neidlinger:

    And I believe, and I told the Ohio Supreme Court this, in fact an answer to his suggestion I believe it was where the Chief Justice of that court, that long sense had a little temperedness have been displayed upon a part to this young man, to this man, 30 years is senior, and infinitely he is senior as far as judicial experience is concerned, we would not be here in this Court, and he would had no need to be here.

    I think that all could have been taken care of by nothing with an apology, a statement that if I have — if I haven’t reached myself and I’m sorry, my intent only was to carry out my duty to advise my clients and not to tell them not to do something which the court had ordered and we wouldn’t be here, Your Honor.

    Earl Warren:

    Was he offered that opportunity?

    Ben Neidlinger:

    He was offered that opportunity, Your Honor.

    Earl Warren:

    Where in the record?

    Ben Neidlinger:

    It is not in the record.

    John M. Harlan II:

    The substance of your position as I understand it is, that what realistically happened here, do view the record, is that he committed — this young man committed a contempt in the presence of the court on June 1 and June 3, and that the record should be taken as if the judge had said, “We are now in contempt.

    You turn on June 7th for sentencing.”

    Ben Neidlinger:

    I think the court could very well do that, Your Honor.

    John M. Harlan II:

    Is that what you’re arguing?

    Ben Neidlinger:

    I think the court could very well do that.

    John M. Harlan II:

    Well, is that your position?

    I’m not suggesting it.

    Ben Neidlinger:

    Well, it is our position, Your Honor, accepting that we do not believe that if the — these were only a charge of indirect contempt that a hearing was denied to this man.

    We believe that he did have a hearing and answer to Chief Justice’s question.

    Earl Warren:

    What here — what evidence was — was introduced against him at the hearing that you say he had?

    Ben Neidlinger:

    Evidence introduced against him?

    Earl Warren:

    Yes.

    Ben Neidlinger:

    Only the evidence of the record of his previous statements on June the 1st and June the 3rd.

    Earl Warren:

    Well, how was that presented in the court?

    Ben Neidlinger:

    In a formal way, it wasn’t.

    Earl Warren:

    Well —

    Ben Neidlinger:

    In accepting —

    Earl Warren:

    — informal then tell us how informally it was done.

    Ben Neidlinger:

    The statement by his counsel, statement by his counsel.

    William J. Brennan, Jr.:

    Well, if the counsel wasn’t a witness, was he?

    Ben Neidlinger:

    Well, not exactly but —

    William J. Brennan, Jr.:

    How did the state pull he’s case in other words?

    Ben Neidlinger:

    If Your Honor please, although, as an assistant prosecuting attorney, I do represent the State of Ohio.

    We are not contending that the State had any part in this case of contempt.

    William J. Brennan, Jr.:

    Alright, but how one of the state either than that — how was the case for contempt pulled?

    Ben Neidlinger:

    I think essentially providing statements of the petitioner himself, coupled with his attitude, coupled with — it was necessary, the corroborative statements of his counsel at the hearing on June the 7th.

    Hugo L. Black:

    May I ask you a question about the merits, you — and it’s about the merits I guess.

    Is it your position that if a lawyer honestly believes that his clients can only get a test by appeal by violating an order temporarily to get that test?

    And he communicates that information to them that he is a bad man or guilty of a contempt or (Inaudible) man, if that’s what’s done, is it your judgment that he should restrain himself from seeing what he honestly believes as the law when he talks to his clients?

    Ben Neidlinger:

    No, Your Honor.

    Hugo L. Black:

    Then you cannot then get anything, can you, from the fact that he told his clients as he said over the phone or somewhere in Chicago, that the only way he saw it could be raised was for them to picket?

    You do not think that was contempt, do you?

    Ben Neidlinger:

    When he told them that that was the way to raise it?

    Hugo L. Black:

    When he told them that was the only way he saw to raise it.

    Ben Neidlinger:

    Yes, sir.

    Hugo L. Black:

    Would you — would you put a lawyer in to jail for contempt who advises his clients what he honestly believes to be the law, when he says that the only one way that I see you can raise it, and that is by picketing?

    Ben Neidlinger:

    Let me answer that by reading from page —

    Hugo L. Black:

    Well — well, do you — I — I’m taking that part of it because it has to be based on that.

    There has been no — no hearing to determine how much further he went from that in his statement, as I read it, said he went no further.

    And you continue to say that he acted bad before the court when all frankly I can see that he did was to continue to take the position.He had told him that and that was the only way he saw to raise it, and you think he should go to jail for that, do you?

    I continue to take the position that he did not merely advise them that the order (Voice Overlap) —

    Ben Neidlinger:

    But suppose he had — suppose that had been all that he did, what would you say?

    I would say he would not be guilty of contempt.

    Hugo L. Black:

    You would say then that you cannot rest your contempt on the basis of the fact that he gave his lawyer honest advice that in his best judgment, the only way to raise it was by picketing.

    You do not rest your case of convic — base your conviction on that, do you?

    Ben Neidlinger:

    I’m — base mine on —

    Hugo L. Black:

    On that, just that alone?

    Ben Neidlinger:

    You would have divided that into two parts one of those the doctrine (Voice Overlap) — with the other.

    Hugo L. Black:

    He — if you assume that he honestly advised his clients that in his best judgment, seems to me like there’s plenty of room for argument because you’ve been arguing it once you said, the only way to raise this was by picketing and he told them that, would you, if that was all he did, say that the con — the conviction was justified?

    Ben Neidlinger:

    If he said disobey the order of the court —

    Hugo L. Black:

    I’m — I’m asking you if he told them that the only way as he use to get away from particular words, if he told them, gave them honest advice that in his judgment, that was the only way this question could be raised, and that was all you had and he believes that, would you say that he could be convicted for contempt?

    Ben Neidlinger:

    Yes.

    Hugo L. Black:

    You would.

    Ben Neidlinger:

    I would.

    And I will tell you why.

    Hugo L. Black:

    If so — if so than a lawyer —

    Ben Neidlinger:

    I will —

    Hugo L. Black:

    — cannot give his law — his clients advice, if — if there’s been an injunction issued against him which he thinks is bad, is there, you — you would say that he can’t advise his clients that “I have — I’m sorry but there’s no way I can’t raise this except for you to commit contempt”.

    Ben Neidlinger:

    I’m sorry, Your Honor, but I respectfully suggest that what you have said is a non sequitur.

    Hugo L. Black:

    I’m — I’m not talking about — I don’t understand non sequitur.

    What I’m asking you —

    Ben Neidlinger:

    I have come (Inaudible) believe so.

    Hugo L. Black:

    — what I’m — what I’m asking you is, if you say that a lawyer, that in Ohio, a lawyer can be sent to jail for contempt of court who does no more to give his client, who’s been in joint, he advised honest view which he honestly entertained in which is disputable as shown here, that’s all he does, that your court could convict him for contempt instead of (Inaudible).

    Ben Neidlinger:

    And if Your Honor please —

    Hugo L. Black:

    Would you say that you could or would not?

    Just on that.

    Ben Neidlinger:

    You will leave me at then nothing to your question.

    Hugo L. Black:

    I — no, I want to ask — I want you to answer this question.

    Ben Neidlinger:

    I will say, yes, you can.

    Hugo L. Black:

    You’ll say, yes, alright.

    Ben Neidlinger:

    I know I’m going to idem to plea Your Honors’ kind permission.Because that same lawyer knows very well that that isn’t the only way to test it, that the way to test it isn’t in irregular method by filing a motion to dissolve the injunction.

    Hugo L. Black:

    Well, if that’s a dispute in fact, why would — why didn’t they — didn’t they have a hearing on it?

    Ben Neidlinger:

    They wouldn’t file one.

    The record clearly shows that he gave us his excuse for not filing one that he couldn’t give a hearing soon enough.

    Hugo L. Black:

    What chance — what chance does this judge have, give him to go into the merits of what he had advised his clients an order?

    Ben Neidlinger:

    Well, I’m — I’m trying to answer your question and not get into that for a moment.

    And the reason I answered your question the way I did is because this lawyer, inexperienced as he may be, nevertheless, knew, if we give him credit for all the other things that he’s supposed to have known, that he examined the law, they decided that the question of the jurisdiction of a state court was debatable where the NLRB was involved etcetera, all of which is covered for the brief.

    If you knew all those things, he also knew that the proper way, and he shows it in the record, that the proper way was to file his motion and have a hearing and dissolve that injunction in the regular way.

    Therefore, it cannot follow that he told his client that the only way that they could do it was by violating the injunction and tell them to violate the injunction because if he told them that, that was not honest advice fearlessly given as quoted from this other case by counsel for the petitioner.

    That’s why I say this.

    Hugo L. Black:

    I have listen to your argument on that here, and I must say that I cannot agree that you are authorized to say after this argument that an honest lawyer couldn’t have honestly given his view.

    As I understand you, he had to go before this judge who had issued this injunction.

    He was already impatient.

    You say he had — he could have gone to the judge and the judge might in his discretion have — have decided it.

    Supposed he honestly believe that the judge wouldn’t do it, should he have told him that he did?

    Ben Neidlinger:

    I answer that question very clearly, Your Honor, if he honestly believe that the judge wouldn’t dissolve it —

    Hugo L. Black:

    That the judge was not going to dissolve that injunction and not going to act on it until the time had passed within which they would lose their right to test it out in the upper court.

    Ben Neidlinger:

    There’s no right to assume those things.

    He has no motion filed.

    He was asked to file a motion.

    He gave us his reason no.

    He couldn’t get an early enough hearing.

    Earl Warren:

    Where is that in the record?

    Ben Neidlinger:

    I’ll find it.

    I was trying to find it in answer to Justice at the same but — but it’s there.

    Alright, in record 43.

    I’ll read it from my brief and then find that with reverence.

    The peti — and then impertinently an informal discussion between the trial judge, the attorney for the employers and the petitioner himself, I am now reading from my brief page 28 —

    Hugo L. Black:

    Where is it in the record?

    Ben Neidlinger:

    Page 43, lower half of the page.

    And I quote from the record, “The court flatly refused saying that he would not hear the motion until the restraining order was obeyed”.

    I may say apparent that if we are — I think the court was certainly within his judicial rights and asking this restraining order to be obeyed and then you — your motions dissolve it.

    I then ask the court, that if the restraining order was obeyed, would it be possible to obtain a hearing within the week and he replied that it would not.

    Hugo L. Black:

    Now, what does that mean?

    Ben Neidlinger:

    That means that he’s going to bargain with the court.

    If he can get —

    Hugo L. Black:

    But what —

    Ben Neidlinger:

    — an early enough hearing, he is going to —

    Hugo L. Black:

    What does that mean about the court?

    What had the court told him?

    How long did the court tell him it would take?

    Ben Neidlinger:

    They didn’t tell him.

    Hugo L. Black:

    How long did he say — did he guarantee it would take, a week didn’t it?

    Ben Neidlinger:

    About a week.

    Said he couldn’t hear it that week.

    By the way that was a short week that had a holiday in it, started on a Tuesday, four days.

    Ben Neidlinger:

    And then, the dialogue occurred in which he said, “Well, then you could come obey the order of the court.”

    And he said no, “We couldn’t do that.”

    Earl Warren:

    Well, now, counsel, I’d like to go on that right after what Mr. Justice Black has read to you, and I’ll read the whole paragraph on page 43, this is folio 53, “I thereupon told the court that I had a motion to vacate, prepared and would gladly file it immediately if I could obtain an early hearing”.

    The court flatly refused, saying that he would not hear the motion until the restraining order was obeyed.

    “I then asked Judge McKay that if the restraining order was obeyed, would it be possible to obtain the hearing within the week, and he replied that it was not.

    Then, Mr. Ragan, whom I take it was counsel for the other side and —

    Ben Neidlinger:

    That’s correct.

    Earl Warren:

    — this is all in the chambers of the judge, is it not?

    Ben Neidlinger:

    I think so, Your Honor.

    Earl Warren:

    Yes.

    Mr. Ragan then suggested that, “As an alternative that I agree to submit to the court the four signators of the agreement to be dealt with on contempt.

    After some discretion, I agreed to do so and stated to both Judge McKay and Mr. Ragan that I would gladly stipulate all matters necessary to establish the contempt so that I could immediately appeal the decision or file habeas corpus proceedings.

    The entire atmosphere of the meeting was light and agreeable.

    And I was convinced that both the Judge and Mr. Ragan were aware that I had consented to bring them in before the court and stipulate the essential matters for the expressed purpose of testing the validity of the court’s order and his jurisdiction over the subject matter.

    So far as I was concerned, the matter was clear cut and the hearing the following day was to be short and to the point.

    To that end, I prepared the necessary habeas corpus proceedings.”

    Now, does that sound contemptuous or brash?

    Doesn’t — and doesn’t that sound as though he was honest and straightforward with the court and told him what he was going to do and — and with no objection from either the court or counsel on the other side?

    Ben Neidlinger:

    At that time, Your Honor?

    Earl Warren:

    I beg your pardon?

    Ben Neidlinger:

    Yes, indeed.

    Earl Warren:

    I beg your pardon?

    Ben Neidlinger:

    Yes indeed.

    I agree with Your Honor that as to that — your interpretation is that —

    Earl Warren:

    Yes.

    Ben Neidlinger:

    — is essentially correct.

    Earl Warren:

    Well, why was he — then he did that, didn’t he?

    He did that and then after that, he was — he was committed for contempt for having done it.

    Ben Neidlinger:

    No.

    No, I disagree with, Your Honor.

    Earl Warren:

    Well what —

    Ben Neidlinger:

    That is not quite the situation.

    Following that, he went out and he advised his clients according to his own statement that they didn’t have to pay any attention to the order of the court.

    Earl Warren:

    Well, what would he — what would they be up for contempt for if they obeyed the order of the court?

    Ben Neidlinger:

    They wouldn’t be up for contempt for anything, Your Honor.

    But we come back again to the distinction.

    Was he — should he tell them that the order of the court was and his opinion invalid?

    Earl Warren:

    Well, he —

    Ben Neidlinger:

    Should he tell them to disobey it?

    Earl Warren:

    It says right here that — that Mr. Ragan and — and the Judge apparently agreed with him that that would be the way to bring it up speedily.

    And he did it.

    Ben Neidlinger:

    I’m afraid I don’t follow, Your Honor, that that —

    Earl Warren:

    Well, let me read that part again.

    Here — here we are in the judge’s chambers and the counsels for both sides are there, the Judge is there.

    Mr. Ragan who is counsel for the employer then suggested that as an alternative, as an alternative to — to a hearing to — to set aside the injunction that I agree to submit to the court before signators of the agreement to be dealt with on contempt.

    After some discussion, I agreed to do so and stated to both Judge McKay and Mr. Ragan that I would gladly stipulate all matters necessary to establish the contempt so that I could immediately appeal the decision or file habeas corpus proceedings.

    The entire atmosphere of the meeting was light and agreeable.

    And I was convinced that both the Judge and Mr. Ragan were aware that I had consented to bring these men before the court and stipulate the essential matters for the expressed purpose of testing the validity of the court’s order and the jurisdictions of the subject matter.”

    Now, that’s — that is uncontradicted as I understand it on the 7th day of — of June even taking your own view of it that this was some evidence that — that would amount to a hearing.

    Hugo L. Black:

    Yes.

    Ben Neidlinger:

    I don’t think I quite followed Your Honor on that latter part.

    Would Your Honor repeat it for my benefit please?

    Earl Warren:

    Well, —

    Ben Neidlinger:

    I’ll appreciate it.

    Earl Warren:

    — as I understood it, you said there were, on the 7th of June, there were no witnesses against this man put on the stand.

    The only thing that you rely on for a conviction is the attitude of the defendant and what his counsel admitted in — in court.

    And — and that — that was sufficient hearing in your judgment to constitute due process and this was in the proper of proof.

    You having stated that you believe that this was some representation of a hearing.

    Now, if that is the fact and there’s nothing to contradict it, where is the — where is the brashness in the contempt that you speak of?

    Ben Neidlinger:

    If Your Honor is correct — in the first place, may I respectfully suggest that I did not say that the contempt consisted only of the attitude of the petitioner plus what his counsel said for him or related what he would have said, had he been permitted to testify on June 7th.

    Earl Warren:

    Did —

    Ben Neidlinger:

    I also couple that with what he, the petitioner himself, said to the court repeatedly on both June the 1st and June the 3rd.

    Earl Warren:

    Yes, but that was before — that was before the charges were filed against him.

    Did he say anything in court on the 7th, the petitioner?

    Ben Neidlinger:

    No, Your Honor.

    Earl Warren:

    Alright.

    So he said nothing and all you have are the statements of his counsel and this proper recruit.

    That’s — that’s the basis upon which the hearing was held and upon which he was convicted.

    Ben Neidlinger:

    That is the — that sums up the — the evidence on June the 7th, yes Your Honor.

    Earl Warren:

    Yes, but June 7th was — if — if there was a hearing, that was the day the hearing was held, wasn’t it?

    Ben Neidlinger:

    Yes, Your Honor.

    Earl Warren:

    Alright.

    Ben Neidlinger:

    Yes, that’s correct.

    Earl Warren:

    And on no other day.

    Ben Neidlinger:

    That is correct, Your Honor.

    Earl Warren:

    Alright, that’s it.

    Ben Neidlinger:

    I finally got so that I have — not obtuse as to what Your Honors driving out as I was earlier.

    That is correct.

    I tried to answer these questions as frankly and thoroughly as I can when I understand them.

    There was no hearing on the contempt except on June the 7th, 1960.

    What Your Honor wish to elicit from me, admission?

    Your Honor has it.

    Now, may I resume for just a moment.

    I want to say that we, as well as the Court of Appeals for our district and the Supreme Court, have distinguished and continue to distinguish between dishonest advice fearlessly given, that any attorneys considered in best opinion and order his invalid, and that therefore, if contempt proceedings are based upon that order, they will fall which I will reiterate, it’s not only the right but a duty, I believe, that when attorney so advise his clients and the out-announced statement to proceed and go ahead.

    If that distinction is a tenuous one, Your Honor, then we will freely admit that this conviction of contempt could not stand.

    That is our distinction.

    I wish to call the attention briefly and I will not take too much of Your Honors’ time to page 52 of the record.

    Earl Warren:

    52.

    Ben Neidlinger:

    The record in which counsel for the petitioner asked to make these opinions so far as the record and they have been made apart at page 52, and in — he — In re (Inaudible) is footed these words, “In the ordinary case of advice to clients, if an attorney acts in good faith and in the honest belief that his advice is well-founded and then the just interest of his client, he cannot be held liable for error in judgment.

    The preservation, independence of the bar is too vital to redo administration of justice to allow of the application of any other general rule.”

    Ben Neidlinger:

    We agree with that 100%.

    Further, not quoting, it will not be questioned that the petitioner was fully within his rights to advise his clients that in his opinion, a comment of this court did not have jurisdiction to issue the restraining order and to point out to his clients the legal remedies open to them to raise the question of jurisdiction.

    And I may say, parenthetically, I mean legal remedies.

    I should be — tell us — I think.

    When the petitioner went beyond advising his clients as to their legal rights and that the order of the Common Pleas in his court, court was in his opinion was invalid and advised them to violate the court’s order, his actions in so advising them ceased to be privileged and he acted at his parole.

    On page 54 of the same opinion, the last three lines of paragraph number 1, the petitioner, his attorney for the respondent, at the hearing on June the 1st and June the 3rd, admitted advising them to violate the restraining order.

    Now, there would be again —

    Earl Warren:

    That’s (Voice Overlap) to the Court of Appeals.

    Ben Neidlinger:

    That’s right and I shall proceed to the Supreme Court now.

    Earl Warren:

    I beg your pardon?

    Ben Neidlinger:

    And I shall now proceed to the opinion of the Supreme Court of Ohio.

    I quote that as an opinion of the Court of Appeals not because it is binding upon Your Honor but really because I wish to make our position wholly clear and say that we urged that argument on that court at that time and that we believe in it.

    We believe in it then.

    We believe in it now.

    At page 67, the 1st — the 3rd paragraph, the last sentence, “Consequently, an attorney who brashly advises his client to disobey an existing court order is in contempt of court not withstanding any vulnerability that may attach to such order.”

    Further down in the next paragraph, “The restraining order issued on the petition was preliminary and temporary in nature and no motion was filed to dissolve it nor was any other instrument challenging the court’s jurisdiction.”

    And that’s, Your Honors, is italicized by the court and is italicized by us.

    I see by the light on the (Inaudible).

    My time is up.

    Earl Warren:

    We’ll recess now.