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June 2, 1983


Original Proceeding in

Before Stephan, P.j., Dowd, Gaertner, JJ.

The opinion of the court was delivered by: Stephan

This is an original proceeding in in which the petitioners attack the lawfulness of their detention by the Director of St. Louis County Department of Justice Services. An outline of the facts leading up to their incarceration follows. On November 10, 1980, petitioners Ryan, Lee, O'Brien, Andrews and thirty-six others were enjoined by the Circuit Court of St. Louis County, Provaznik, J., from certain activities related to the conduct of the business of the Del Crest Plaza and, in particular, its tenant, the Ladies Center, Inc., in University City, Missouri. Thereafter, on October 4, 1982, October 21, 1982, October 29, 1982, and November 3, 1982, petitioners were ordered to show cause why they should not be held in contempt of court for various violations of the injunction. A hearing was held on the contempt citations on November 22, 1982; and, on December 2, 1982, the Circuit Court issued its judgments finding petitioners Ryan and Andrews guilty of five counts of indirect criminal contempt and petitioners O'Brien and Lee guilty of six counts of indirect criminal contempt. Each petitioner was sentenced to a jail term for each of the violations, the terms to be served consecutively. Ryan's and Andrews' sentences total 225 days each; O'Brien's and Lee's sentences total 314 days each. Ryan, O'Brien, and Lee began serving their terms on December 3, 1982, and filed their petitions for on that same day. This Court issued its writs on that day and released Ryan, O'Brien, and Lee on bond forthwith. Petitioner Andrews began serving her sentence on January 3, 1983, filed her petition for on the same day, and was also released on bond forthwith. Andrews' case was consolidated with those of the other petitioners. In the cases of Ryan, O'Brien, and Lee, the writs were initially addressed to Harold Hoeh, Sheriff of St. Louis County. By consent of the parties, Edward Moreland, Director of the St. Louis County Department of Justice Services was substituted for Sheriff Hoeh as respondent, and Mr. Moreland has made returns in the cases of all petitioners. Answers were duly filed, and the matter has been briefed and argued before this Court.

The body of the injunction which petitioners were found guilty of violating, omitting the names of the others enjoined, reads as follows:

"That Defendants . . . Joan E. Andrews . . . Samuel H. Lee, . . . Ann Lamb O'Brien, . . . John P. Ryan, . . . are hereby enjoined from entering upon any portion of the premises, lawns, and parking lot of the Del Crest Plaza, 8420 through 8452 Delmar Boulevard, University City, Missouri, and in particular, although not limited to, the premises and entry at 8448 Delmar Boulevard, with the intent, purpose, or result of interfering, disturbing, disrupting, confronting, undermining, or dissuading the operation, activities, or conduct of any of Plaintiffs' normal and ordinary business, or that of its tenant the Ladies Center, Inc., or any other tenant of Plaintiffs, or of the business of the employees, patients, and/or business invitees of Plaintiffs, the Ladies Center, Inc., or any other tenant of Plaintiffs, or from engaging in any other unlawful acts with those intents, purposes, or results, including, without limitation thereof, the blocking of the entry at 8448 Delmar Boulevard and the encouragement, solicitation, or direction of such blocking or any other of the foregoing proscribed activities. All persons receiving notice of or a true copy of this Order and acting in concert or in privy with any of the above-named Defendants in the planning or commission of any acts herein enjoined or restrained are hereby similarly enjoined and restrained themselves."

The order was entered as a result of negotiations in the underlying case which sought injunctive relief against petitioners and others. The negotiations resulted in a stipulation between the plaintiffs and defendants to the effect that defendants had "no objection to the entry of a permanent injunction against them" in the terms set out above. An earlier draft had provided that defendants "consented" to the entry of the injunctive order; but, at their request; the phraseology was changed to show they had "no objection" to its entry. Petitioners received advice of counsel throughout the negotiations as well as after the stipulation was entered into.

We glean from the transcript of the contempt proceedings conducted before Judge Provaznik, from the pleadings, briefs and representations of the parties' counsel during various appearances before this Court that this matter had its genesis in many demonstrations by petitioners and others at the Ladies Center, an abortion clinic in the Del Crest Plaza. These demonstrations, according to petitioner Lee, had as their "foremost" purpose the protection of fetuses which were to be the subjects of abortions and the counseling of women seeking abortions. Plaintiffs in the underlying injunction proceedings, on the other hand, obviously regarded the petitioners' activities as unlawful disruptions of their business and that of their tenant, the Ladies Center, as well as harassment of the business invitees of the Center. Petitioners and others were charged with a multitude of city ordinance violations arising out of the demonstrations, and they became the defendants in a suit by the owners of the clinic seeking to enjoin such activities in the future. The injunction set out above was to be in settlement of all disputes between the clinic owners and petitioners.

The evidence adduced at the contempt hearings before Judge Provaznik clearly indicates that, commencing on September 18, 1982, all four of the petitioners participated in demonstrations which included blocking the doorway to the Ladies Center and attempting orally to dissuade women who wished to enter from doing so, refusing to leave the area of the doorway when asked to do so by police officers and representatives of the Ladies Center, and generally attempting to interfere with the business of the Ladies Center. These activities were repeated by all four petitioners on October 2, October 9, and October 16, 1982. On October 6, petitioner Andrews stationed herself at the entrance to the Ladies Center and urged persons not to enter the premises. Petitioners O'Brien and Lee engaged in such activities on October 23 and 30, and were joined by Ryan on October 30, 1982. That the petitioners were aware of the terms of the injunction at the time each act was committed is made abundantly clear from the record. For example, Lee, O'Brien, and Ryan were present in court on November 10, 1980, when Judge Provaznik read the order to them. Thereafter, all four of the petitioners were provided with copies of the injunction on numerous occasions and heard it read several times over bullhorns at the scene of their demonstrations. In finding the petitioners guilty, Judge Provazni, made meticulous findings of fact as to each violation by each petitioner, found the facts to be true beyond a reasonable doubt, and that each act in disobedience of the injunction was a willful, deliberate and knowing violation. In short, the activities of the petitioners as charged in the orders to show cause and the evidence adduced at the trial present, on the surface, a classic example of indirect criminal contempt: conduct outside of the presence of the contemned court in violation of the dignity of the court and in derogation of its decress. See Mechanic v. Gruensfelder, 461 S.W.2d 298, 304-305 (Mo. App. 1970); Curtis v. Tozer, 374 S.W.2d 557, 568-569 (Mo. App. 1964). Each sentence was entered by separate judgment, with those subsequent to the first being entered in chronological order of the violations involved, each referring to the previous sentences and providing that they were to be served consecutively. *fn1

Petitioners raise two points in support of their contention that their incarceration would be unlawful: that they were denied a jury trial on the issue of their guilt of the contempt charges; and that the judgment and orders of commitment are void because they lack specificity "in that they do not state the essential facts constituting the criminal contempt and fixing the punishment and for the reason that the petitioners did not intend to be disrespectful of the court."

Examination of the transcript of the trial of November 22, 1982, reveals that, after a brief opening statement, the special prosecutor called his first witness and the taking of evidence proceeded without any reference to a jury. Respondent has conceded that the failure of the petitioners or their counsel to demand a jury trial does not, in itself, constitute a waiver of that right. Although, "a proceeding for criminal contempt is sui generis, and as such is controlled by its own rules . . .," one charged with criminal contempt is entitled to essentially the same rights of procedural due process as a defendant in a criminal case. Mechanic v. Gruensfelder, supra, 309. Accordingly, we hold that waiver of the right to a jury may be accomplished in a case of criminal contempt only by affirmative act of the defendant, with the assent of the trial court, entered of record. Rule 27.01; Girard v. Goins, 575 F.2d 160, 162 (8th Cir. 1978). The threshold issue in this case, however, is whether the right to trial by jury existed at all.

A jury trial in "serious" contempt cases has been recognized as a right secured by the Sixth Amendment to the United States Constitution. The right is guaranteed to contemnors in state cases through the Fourteenth Amendment. The development of this rule is traced in Codispoti v. Pennsylvania, 418 U.S. 506, 511-512, 41 L.Ed.2d 912, 919 (1974):

In Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444 (1968), the Court held that the Fourteenth Amendment guaranteed to defendants in state criminal trials the right to jury trial provided in the Sixth Amendment. In a companion case, Bloom v. Illinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S.Ct. 1477 (1968), the Court held that while petty contempts, like other petty crimes, could be tried without a jury, serious criminal contempts had to be tried with a jury if the defendant insisted on this mode of trial. Although the judgment about the seriousness of the crime is normally heavily influenced by the penalty authorized by the legislature, the Court held that where no legislative penalty is specified and sentence is left to the discretion of the Judge, as is often true in the case of criminal contempt, the pettiness or seriousness of the contempt will be Judged by the penalty actually imposed. Finally, the Court recognized that sentences up to six months could be imposed for criminal contempt without guilt or innocence being determined by a jury, but a conviction for criminal contempt in a non-jury trial could not be sustained where the penalty imposed was 24 months in prison.

Since that time, our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes. (Emphasis added).

Codispoti had been a defendant in a state criminal trial in which he acted as his own counsel and engaged in activities seriously disruptive of the trial. After the jury returned a verdict of guilty, the trial Judge pronounced him guilty of seven separate acts of contempt, and sentenced him to consecutive sentences of one to two years for each contempt. One of Codispoti's co-defendants in that trial who had similarly been held in contempt and sentenced was granted certiorari by the United States Supreme Court, which vacated the contempt convictions and remanded them for retrial before "a Judge other than the one reviled by the contemnor." Mayberry v. Pennsylvania, 400 U.S. 455, 466, 27 L.Ed.2d 532, 540 (1971). Upon retrial before another Judge, Codispoti demanded a jury trial. The demand was denied; he was found guilty of the seven contemptuous acts and sentenced to six months in prison for six of the offenses and three months for another. The sentences were ordered to run consecutively. After affirmance by the Pennsylvania Supreme Court, Codispoti's case and that of another co-defendant came before the Supreme Court on certiorari on the issue of whether they should have been afforded a jury trial. The Supreme Court noted that the question of ...

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