In re Herndon

United States Supreme Court

394 U.S. 399

In re Herndon

 Argued: today, was argued with the motion filed by appellants on November 19, 1968, 'for an order to show cause why Judge Herndon should not be hel in contempt and for other relief.' 393 U.S. 996, 89 S.Ct. 489, 21 L.Ed.2d 462. On September 18, 1968, the three-judge court entered a temporary restraining order enjoining appropriate Alabama officials from using any ballots at the general election of November 5, 1968 which did not include the ---

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names of the candidates of the National Democratic Party of Alabama (NDPA). This order was dissolved on October 11, 1968, one judge dissenting. 295 F.Supp. 1003. The appellants sought interim relief from this Court pending appeal, and on October 14, 1968, we entered an order that: 'The application for restoration of temporary relief is granted pending oral argument on the application * * *.' 393 U.S. 815, 89 S.Ct. 138, 21 L.Ed.2d 90 (1968). Oral argument was heard on October 18, and on October 19 we entered an order that: 'The order entered on October 14, 1968, restoring temporary relief is continued pending action upon the jurisdictional statement which has been filed.' 393 U.S. 904, 89 S.Ct. 227, 21 L.Ed.2d 208. Nevertheless, Judge Herndon, who was responsible for the preparation of the Greene County ballot for local offices, did not place the NDPA candidates for such offices on the ballot. We conclude that decision on the motion should await timely initiation and completion of appropriate proceedings in the District Court to determine whether Judge Herndon's failure to place NDPA candidates on the ballot constituted contempt of the order of September 18 of the District Court. Decision on the motion is therefore postponed. It is so ordered. Decision postponed. Mr. Justice BLACK took no part in the consideration or decision of this case. djQ Mr. Justice DOUGLAS, whom Mr. Justice HARLAN joins, dissenting. This is a motion requesting that we initiate a proceeding against Herndon, Probate Judge in Greene County, Alabama, for disobedience of our order as described in Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336, decided this day. Our order, if obeyed, would have resulted in the black candidates, sponsored by the National Democratic Party of Alabama (NDPA), having been on the

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ballot for county offices in Greene County in the general election of November 1968. They were, it is alleged, left off the ballot due to the actions of Judge Herndon, as related in Hadnott v. Amos. This motion, filed by appellants in No. 647, states they are informed and believe that Judge Herndon's failure to place these nominees on the ballot was done 'wilfully and with actual knowledge of the order of this court.' Judge Herndon filed his response to that motion, in which he denied that the omission of the NDPA candidates for county office was 'willfully or contumaciously done with actual knowledge of the said orders of this court.' This motion was briefed and argued when No. 647 was presented on the merits. I have studied the record and read the briefs; and as presently advised I think there is probable cause to conclude that Judge Herndon knowingly and purposefully evaded our order. What the ultimate conclusion will be depends, of course, on a full hearing at which Judge Herndon receives that notice and that opportunity to be heard which is required by due process. But if what appears to be probable cause matures into full-fledged findings, we have a flagrant violation of our order, which involves a vital problem of civil rights, involving the command of the Fifteenth Amendment, that extends the ballot to the blacks. In a case of far less consequence the Court, proceeding by contempt on an information filed by the Attorney General, United States v. Shipp, 214 U.S. 386, 439, 29 S.Ct. 637, 651, 53 L.Ed. 1041, held a sheriff and his deputies in contempt for silent cooperation with a mob in hanging a prisoner whose case was before this Court. That sheriff acted by merely turning his back and letting the mob run wild. In the present case, if the facts alleged are proved, Judge Herndon's

[402] affirmative acts unlawfully kept the NDPA candidates off the ballot. Rule 42(a) of the Federal Rules of Criminal Procedure governs contempt in the presence of the court. Rule 42(b) covers the contempt alleged here, viz., disrespect or violation of this Court's order. Rule 42(b) provides: 'A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.' I would issue the notice prescribed by Rule 42(b), designate an attorney to represent the Court, appoint a Master, and get on with the hearings. Reservation of action on the motion implicates the Double Jeopardy Clause. Successive federal prosecutions of the same person based on the same acts are prohibited by the Fifth Amendment. ^[1] See United States v. Lanza, ----------1.'Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense.' State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422 (opinion of Reed, J.).

Notes

1. Section 33, as amended in 1959, 73 Stat. 391, as set forth in 33 U.S.C. § 933, reads as follows:

'(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.

'(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.

'(c) The payment (of such compensation into the fund established) in section 944 of this title shall operate as an assignment to the employer of all right of the legal representative of the deceased (hereinafter referred to as 'representative') to recover damages against such third person.

'(d) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may

compromise with such third person either without or after instituting such proceeding.

'(e) Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows:

'(1) The employer shall retain an amount equal to-

'(A) the expenses incurred by him in respect to such proceedings, or compromise (including a reasonable attorney's fee as determined by the deputy commissioner);

'(B) the cost of all benefits actually furnished by him to the employee under section 907 of this title;

'(C) all amounts paid as compensation;

'(D) the present value of all amounts thereafter payable as compensation, such present value to be computed in accordance with a schedule prepared by the Secretary, and the present value of the cost of all benefits thereafter to be furnished under section 907 of this title, to be estimated by the deputy commissioner, and the amounts so computed and estimated to be retained by the employer as a trust fund to pay such compensation and the cost of such benefits as they become due, and to pay any sum finally remaining in excess thereof to the person entitled to compensation or to the representative; and

'(2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one-fifth of such excess which shall belong to the employer.

'(f) If the person entitled to compensation institutes proceedings within the period prescribed in subdivision (b) of this section the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the amount recovered against such third person.

'(g) If compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled to (sic) under this chapter, the employer shall be liable for compensation as determined in subdivision (f) of this section only if such compromise is made with his written approval.

'(h) Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier

shall be subrogated to all the rights of the employer under this section.

'(i) The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.'