Sacher v. United States, 343 U. S. 1 (1952)

McFarland, Janet C.

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Buffalo Law Review Volume 2 Number 1 Article 52 12-1-1952 Courts—Summary Punishment of Criminal Contempt Janet C. McFarland Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Courts Commons Recommended Citation Janet C. McFarland, Courts—Summary Punishment of Criminal Contempt, 2 Buff. L. Rev. 153 (1952). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol2/iss1/52 This Recent Decision is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. RECENT DECISIONSBut the foregoing rules as to "quotient verdicts" have noapplication to a judgment rendered by a trial judge without ajury; in the absence of a statute to the contrary, a verdict is adecision by a jury, while a finding by a judge results in an orderor judgment and not a verdict. fancock v. Oliver, 228 Ala. 548,154 So. 571 (1934). This rule is applied not only to findings offact, Scott v. People, 64 Colo. 396. 172 Pac. 9 (1918), but also toconclusions of law stated by the judze, whether made during orafter the trial of the case, Amsinck & Co. v. Svringfield Grocer Co.,7 F. 2d 855 (8th Cir. 1925). Since the decision of the court is itsjudgment, while its opinion represents the reasons given for thejudgment, such reasons are no essential part of the decision. Crellv. Hamrnans, 232 Iowa 95. 5 N. W. 2d 169 (1942), Ombrello v.Duluth, S. S. & A. Ry.. 252 Mich. 396, 233 N. W 357 (1930);Galiger v. McNulty, 80 Mont. 339, 260 Pac. 401 (1927), and in theeyes of the reviewing court are not material if the decision itselfis proper. Thus, it has been held permissible for a court to changeits oral decision, before judgment has been entered. Ritter v.Johnson, 163 Wash. 153, 300 Pac. 518 (1931); Gates v. Green, 151Cal. 65, 90 Pac. 189 (1907).The instant case, therefore, does not depart from establishedrules. However, it seems to be one of the rare instances where ajudge sitting as a trier of fact and law expressly referred to aquotient method. While the trial judge may not have used thequotient method mechanically, it seems remarkable that, if he gavedue consideration to the credibility and intelligence of the wit-nesses, he treated them all as equally credible and intelligent.While the holding is technically correct, it is submitted that the lawshould not condone the substitution of any mechanical process forthe time-tested judicial process. In every case the decision orverdict should be the result of reason, reflection, and conscientiousconviction.John J. CallahanCOURTS--SUMMARY PUNISHMENT OF CRIMINALCONTEMPTPetitioners were defense counsel for the eleven communiststried for violations of the Smith Act, Dennis v. United States,341 U. S. 494 (1950). At the conclusion of the trial, and afterentry of verdict, the trial judge, relying on petitioners' miscon-duct during the course of the trial, cited them for criminal con-tempt. In so doing he acted summarily under Rule 42(a) of FED-ERAL Rums OF CRMIMINAL PROCEDURE. The sole question before theBUFFALO LAW REVIEWSupreme Court was whether the contempt was one which theaccusing judge was authorized under Rule 42(a) to determineand punish himself, or whether it was one to be adjudged andpunished under Rule 42(b), by a judge other than the accusingone, and after notice and hearing. The Supreme Court affirmedthe convictions, and held (6-3) that the word "summary" as usedin Rule 42(a) does not refer to the time in which a judge mustact, but rather to the procedure to be followed. A judge does notlose his power to punish summarily by waiting until the conclu-sion of the trial if the exigencies of the trial require delay. Sacherv. United .States, 343 U. S. 1 (1952).Federal courts have by statute the power to punish summarilyspecified criminal contempts. 62 STAT. 701, 18 U. S. C. §401(1948); 63 STAT. 90, 18 IT. S. C. §402 (1949). The Supreme Courthas recognized that punishment without a trial is a departure fromthe usual requirements of procedural due process, Cooke v. UnitedStates, 267 U. S. 517 (1924), and must be exercised within thelimits of the Constitution. Hudgivgs v. United States, 249 U. S.378 (1918). There is, however, a narrow category of contemptswhich are an exception to the usual requirements of proceduraldue process. See In re Oliver. 333 U. S. 257 (1947). It includesacts of a violent nature, Ex parte Terry, 128 U. S. 289 (1888),committed in open court, In re Oliver, supra, where all essentialelements are observed by the judge. Ex parte Terry, supra, andwhich threaten to disrupt the court's business, Anderson, v. Dornn)e.6 Wheat. 204 (U. S. 1821), so that immediate punishment is neces-sary to prevent demoralization of the authority of the court. Inre Oliver, supra.The only basis for the existence of the power to punish sum-marily a criminal contempt is the necessity of immediate punish-ment. In re Oliver, supra. The Supreme Court has advocatedextreme caution in the exercise of this power, Ex parte Terry.supra; Cooke v. United States, supra; and has stated that the useof such procedure should be limited "to the least possible poweradequate to the end proposed." Anderson v. Donne, supra at 231;see also Frankfurter and Landis, Power of Congress over Pro-cedure in Criminal Contemnpts in Inferior Federal Courts, 37H. v. L. REv. 1010 (1923).The holding of the Sacher case permits a judge to punishsummarily a criminal contempt, long after the acts constituting thecontempt were committed, and after any necessity for preservingthe orderly conduct of the trial has ceased. Therefore, the hold-ing in the instant case is an extension of the rule that summaryprocedure may be used only where the misconduct must be in-stantly suppressed. It is also a departure from previous holdings154RECENT DECISIONSthat the statute defining the power to punish summarily must bestrictly interpreted and its application narrowly limited. SeeNye v. United States, 313 U. S. 32 (1940).Janet C. MoFarlan4LABOR LAW-DEFENSIVE LOCKOUT ASUNFAIR LABOR PRACTICEWhen negotiations between a multi-employer association andunion had reached an impasse, over an association-wide contract,the union struck against one member. The other eleven membersimmediately notified their employees that their stores were closedbecause of the union's action. The National Labor RelationsBoard ruled that the employers had committed an unfair laborpractice. Davis Furniture Co., 94 N. L. R. B. 279 (1951). On ap-peal, the Court of Appeals held that the evidence upon which theBoard relied did not support its finding that such action was amere reprisal to defeat the strike, and remanded the case to theBoard for a determination of whether such a temporary lockoutwas lawful when used in a labor dispute solely as a counter-economic force to resist the strike. Davis Furniture Co. v.N. L. R. B. - F. 2d 1 30 L. R. R. M. 2294 (9th Cir. May 29,1952). The Board again found that this temporary lockout vio-lated §8 (a) (1) and (3) of the LABOR MANAGEMENT RELATIoNs ACT,June 23, 1947, 29 U. S. C. §158 (a) (1) and (3). Davis FurnitureCo., 100 N. L. R. B. No. 158 (Sept. 5, 1952).At common law the lockout was considered a lawful device toresist the threat of the labor movement. Iron Moulders Union v.Allis Chalmers Co., 166 Fed. 46 (7th Cir. 1908); Sinsheimer v.United Garment Workers, 77 Hun 215, 28 N. Y. Supp. 321 (Sup.Ct. 1894); see also M-Willis and Montgomery, ORGANIZED LABOR 555,(1945). The NATIONAL LABOR RElATIONs ACT, 49 STAT. 449 (1935),29 U. S. C. §§151-166 (1947) which proscribes as unfair labor prac-tices any interference with protected union activity does not ex-pressly forbid or sanction lockouts. The Board has declared alockout to be in violation of the Act where the plant was closed bythe employer in circumstances that indicated that the real reasonfor the closing was to avoid and destroy the rights of the em-ployees as provided by the Act. N. L. R. B. v. Hopwood RetinningCo., 98 F. 2d 97 (2d Cir. 1939); N. L; R. B. v. Stremel, 141 F. 2d317 (10th Cir. 1944). See also, Teller, LABOR DISPUmEs Am CoLTZc-TivE BARGAINING (1940 ed.), I, 247, 494, and II, 771-772.Lockouts have been permitted where the employer wouldotherwise be subjected to undue economic hardship, e. g.: (1) until

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Courts—Summary Punishment of Criminal Contempt

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Courts—Summary Punishment of Criminal Contempt

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