In Re Mcconnell

PETITIONER: In Re Mcconnell
LOCATION: Herricks School District

DOCKET NO.: 498
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 370 US 230 (1962)
ARGUED: Apr 10, 1962
DECIDED: Jun 18, 1962

Facts of the case

Question

Media for In Re Mcconnell

Audio Transcription for Oral Argument - April 10, 1962 in In Re Mcconnell

Earl Warren:

Number 498, in the matter of criminal contempt of Thomas C. McConnell, Petitioner.

Mr. McConnell.

Thomas C. Mcconnell:

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

I am appearing here in my own behalf, being the petitioner in the case, and the matter comes here on certiorari to review a decision of the Court of Appeals for the Seventh Circuit, which affirmed in part a conviction for criminal contempt against me under one of some seven specifications that was entered against my co-counsel and myself in a case that was tried before Judge Julius H. Miner in United States District Court in Chicago.

Two citations of contempt which were entered by Judge Miner against me were reversed as a matter of law by the Court of Appeals.

You know, as all -- as I have already stated, four citations against Mr. Lee Freeman, who was my co-counsel, were also reversed totally because insufficient as a matter of law.

The part of the specification that was affirmed as against me is described by the Court of Appeals as follows.

I won't attempt to characterize it.

I'll read what they say.

As to Specification 6, we hold that with the exception of one statement attributed to respondent, nothing with which he is charged has been supported by proof of contemptuousness or disrespect.

The exception in Specification 6 to which we have just referred charges that respondent said, “We don't have a right to read the answers but we have a right to ask the questions and we propose to do so unless some bailiff stops us.”

The majority opinion held that this constituted contempt and Judge Duffy who, former chief judge of the Court of Appeals in the Seventh Circuit, said that, in his opinion, it did not and that there was no obstruction to the administration of justice required by the statute, and that he would reverse as to that specification, as well as the other two, which the Court of Appeals had reversed.

Now, to understand the context and the background in which these remarks were made, and to understand the issue which is presented for review here in this Court, it is necessary for me to advert briefly to the case that was being tried.

I represented the plaintiff, the Parmelee Transportation Company in an antitrust suit which was brought against six railroads, four railroad presidents, and a man by the name of Hugh W. Cross who is former Chairman of the Interstate Commerce Commission.

And, it was alleged, and we sought to prove, that Mr. Cross, as Chairman, had importuned the presidents of these railroads to transfer the transfer of business that is carrying passengers between terminals in Chicago from the Parmelee Company which had enjoyed the business for some 102 years to a company to be formed by a Mr. Keeshin, and we alleged conspiracy in damages and our complaint was tested by a judge who is now dead, calling that it constituted, as a matter of law, a good complaint.

We spent three years taking depositions and spent thousands and thousands of dollars, and we got down to the trial of the case and Judge Miner called us all in and he said he had decided.

No motion was made to this at all, that he was going to try an issue which he designated as the issue of public injury.

We'd ask for a jury trial on all issues in the case and Judge Miner said, “We're not going to try anything before this jury except the issue of whether the public has been injured in money damages by the shift of this transfer contract from the Parmelee Company to the Keeshin Company.”

I took the position before Judge Miner, citing this Court's decisions in the Klor's and Radovich case, that that was not an issue in an antitrust case.

It was only an attempt to hedge us in and keep us from trying our lawsuit.

And, my objections were overruled and that court said we will proceed to trial on the sole issue of public injury.

At that point, I offered to stipulate with opposing counsel as to offers of proof which I would make on the issue of conspiracy and monopoly.

I saw right away that we we're not going to try anything of an antitrust nature in the case, but I want to get it out of the court up to the Court of Appeals as quickly and expeditiously as I could, and I offered in open court to make that stipulation and opposing counsel said, “No.

We will not stipulate.

The issue must be tried and must be tried before the jury as specified by Judge Miner.”

Although, they themselves took that the position that that was not a proper issue in the case.

In that situation, we attempted to make offers of proof and there's a rule -- better Rule of Civil Procedure 43 (c), a rule promulgated by this Court under the directions and the authority of the Congress, which provides how offers of proof can be made.

And, it provides that, in order to make an offer of proof -- a proper offer of proof in a case before a jury, you must put a witness on the stand or at least if you're reading a deposition, you must read the question that was asked to the witness.

And then, when the court rules, whether or not it's a proper question, then you can read the answer if it's a deposition or you can outside the presence of the jury, you can make your offer of proof.

Now, there was never any question in the case that that's the proper way to proceed, at least otherwise, there was never any such question.