*1 HEALTH, JERSEY, DEPARTMENT OF STATE OF NEW PLAINTIFF-RESPONDENT, AL., ROSELLE, v. PETER ET ETC., DEFENDANTS-APPELLANTS. Argued January 9, 1961 Decided March 1961.
Mr. A. Samuel Lamer the cause argued for defendants- Budd, Kent, & appellants Lamer (Messrs. Mr. attorneys; Lamer, of Samuel A. counsel).
Mr. L. Boyan, William General, Deputy Attorney argued Furman, the cause for David D. plaintiff-respondent {Mir. General of Dew Attorney Jersey, attorney; Messrs. William Sill, L. and William D. Boyan counsel). opinion the court was delivered by J. Plaintiff moved for C. an order holding
Weirtbaub, in contempt defendants for failure to with a comply final That judgment. entered with judgment, defendants’ consent, *5 336 Air New Jersey
had ordered them to “cease violating as and adopted Code, promulgated Pollution Control they which on premises Ah’ Pollution Control Commission” in turn provided a refuse The Code dump. operate suffer, open burning shall allow or cause, permit “No person * * about the out- revolved refuse The charge The trial fires, unknown. of which was origin break “to estab- sustained its burden plaintiff court found had not act violative of the judgment lish a willful and deliberate” found Division motion. The Appellate and hence denied the and reversed injunction” “in civil contempt defendants N. J. refer. 61 which will later we for further proceedings petition defendants’ We 363 Super. (1960). granted 119 33 N. J. (1960). certification.
I. for “criminal were contend the proceedings Defendants the trial no from hence there could be contempt” appeal Smith, N. J. v. 22 in their Danes court’s favor. judgment runs that Div. 1952). argument Super. (App. upon “civil” depends is “criminal” or contempt whether if the order order, and that injunctive nature of the criminal, but act, an a violation can be doing forbids act, doing if the order commands whereas distinction, defendants cite Eor this is “civil.” contempt Co., 83 Jersey Realty v. South Staley other cases among v. & A. Buck’s 300, 1914) Gompers 304 (E. N. J. Eq. L. Co., Ct. Ed. & 221 U. 31 S. Range S. Stove was at order injunctive prohibitory, Here the 797 (1911). defendants say alleged and hence least in its phrasing, criminal. can be but a distinction found to support No can be language doubt command, but injunctive the character of upon based the sense the subject. foreign distinction As area is semantic. is so often in this The trouble the villains. case, descriptions are Short-hand labels *6 invented fox one purpose lead to results else- thoughtless where. The word a offense. It “contempt” signifies public refers to a contempt of there is such government; no thing as a contempt of “criminal con- litigant. expression is tempt” as crime,” redundant as “criminal and to talk of “civil is to contempt” talk of “civil crime.” We do not speak of “criminal and “civil manslaughter” manslaughter” to describe either the public private or the wrongs public and private remedies. Rather we use “manslaughter” describe the crime and the prosecution, and death” “wrongful to describe the private and the civil action wrong for a private recovery. Unhappily, respect contempt, the public was remedy denominated “criminal contempt” and the private was remedy called “civil contempt.” result has been confusion both as to substance and procedure, con- fusion which stems from loose expression rather than the nature of the subject.
On the side, substantive the labels have invited confusion as to the of the ingredients public private to whether wrongs those are exclu wrongs mutually e., The contempt, i. the public sive. consists wrong, of a defiance of governmental authority. In the case of injunc orders, tive it is more than the of the forbidden doing act or failure to do what is ordered. The act or omission rea, must be a mens accompanied by willfulness, an in difference to the court’s command. The breach, if accom mind, that state of panied by challenges authority whether the order be government or mandatory prohibitory. With to the respect private state of wrong, mind is Co., irrelevant. McComb v. Jacksonville Paper 336 U. S. Hilton, 497, 93 L. Ed. 69 Ct. 599 S. Hilton v. (1949); 89 N. 477 affirmed 90 (Ch.), N. J. Eq. J. 564 Eq. v. & A. 62 1919); Ashby Ashby, N. J. (E. Eq. 618, Co., v. 1901); Pennsylvania R. R. Thompson (Ch. 105, 108 reversed 1891), N. J. on other Eq. (Ch. grounds 318, 319 & 1892). 49 N. J. A. If the Eq. (E. has litigant him order, denied what is due under the been he has suffered relief. is to supplemental for which he entitled injury whether depend upon his relief does not And right The nature prohibitory. order is disobeyed mandatory supple bear the nature may upon of the command If to it. upon litigant’s right mental redress but not ability has the is and the violator mandatory the order until offender jail will perform, ordinarily the court the offender again If the order is complies. prohibitory, he if he has until undoes the violation incarcerated he be may if barrier erected it. Eor ability example, undo it, the defendant in violation of an order prohibiting situation, until In either the court it is removed. jailed *7 viola if that the withhold coercive satisfied remedy the may But will forthwith tion was innocent ensue. compliance the or event, mandatory prohibitory whether order be any or the not, be appropriate and whether civil incarceration compensate for damages be awarded litigant may injured order which was dishonored. loss the benefit interim Workers, 258, Mine 330 U. v. S. United States United Cramer, Ed. Lamb v. 677, 91 L. 884 (1947); 67 Ct. S. 715, 76 221, 315, 52 L. Ed. 719-720 217, S. S. Ct. 285 U. Co., Krentler-Arnold Last 284 Hinge Leman v. (1932); 238, Ed. 389 448, 52 Ct. 76 L. National (1932); U. S. S. v. F. 2d Ackoff, Mach. Co. 245 192 certiorari (3 Cir.), Drying 47, ; 78 2 44 832, 355 U. S. Ct. Ed. 2d. denied S. (1957) L. City v. N. J. Ashby Ashby, supra (62 Eq. 618); Scranton Co., A. 63, 117 v. Coal 274 Pa. 673 Ct. 1922); People’s (Sup. Mantell International Plastic Harmonica 138 v. Corp., cf. 562, 141 N. J. 1946), 379, N. J. 578 modified Eq. Eq. (Ch. 1947). & A. 394-395 (E. has side,
On the confusion been procedural equally aIf is merely evident. man to be alleged “contempt” whether is hailed not know he to answer he criminal or to to a prayer supplemental relief respond charge object for the Yet the of the adversary party. proceeding for if is moment, criminal, is it he is entitled to great crime, accorded one safeguards charged except
339 constitutional of the indictment guarantees and trial by jury, and even as to them we note passing dissent vigorous States, in Green v. United 356 U. 165, 632, 78 S. Ct. S. 2 L. 2d Ed. 672 finds those are (1958), assured. rights Comment, See 57 Mich. L. Eurther, Rev. 258 if (1958). criminal, is proceeding judgment must be finite sentence, if whereas civil, is proceeding incarceration ends e., when the need for ceases, coercion i. defendant’s upon compliance with the order. Hence the defendant must be informed at once of the of the purpose It will proceeding. not do to find its nature from the terms of the resulting A judgment. defendant must told where he is going; it is not to tell him where he enough has been. It would be to our contrary fairness conception permit proceeding in which the defendant must “manslaughter” surmise whether the is to convict for purpose crime or to award victim’s next of damages kin.
That “contempt” offense signifies against State from evident In his history treat- subject. public ment of Blaekstone included wrongs, “contempts palaces courts of as a against king’s justice” species Blaclcstone, of offenses 4 against king government. States, Commentaries *124. In v. United Gompers 610, 693, L. U. S. S. Ct. Ed. 1120 (1914), which involved a violation of an order, injunctive Mr. *8 Holmes Justice said: contempts “It not follow does that of class under considera- crimes, rather, language statute, not tion are in the of jury offenses, by gradually because trial as it has been worked fought thought and has out out been not extend to them as right. contempts of
matter constitutional These are infractions of law, punishment visited with If as such. acts such are not criminal, we in error are as the most fundamental characteristic English speech. as of crimes that word has been understood in So truly they proved early are crimes that it seems be in that only they punished by procedure, law were the usual criminal Royal Society, p. (1885), 3 Transactions of the Historical N. S. 147 England, that, they may and at least in it seems still that be and ** *” preferably way. in are tried 340 305), the Court
In N. J. at Staley, supra p. (83 Eq., excerpt of Errors and from Appeals quoted foregoing “Criminal con- from p. 304) said Gompers (at hand, as the are offences implies, on the other term tempts, in arise which, they against although organized society but, thereof, of a part the course are not private litigation, offences, like raise an issue between the public other criminal Jibb, 251, In 123 N. J. accused.” also re Eq. See 177, & v. N. J. 252 A. 35 1938); Zarafu, Super. State (E. Janiec, 197, J. 182 v. 25 N. Super. Div. State 1955); (App. Zimmerman, 12 N. J. 200 Div. Zimmerman v. (App. 1953); Bozorth, N. J. In re 61, 1950); Div. Super. (App. 184, 188 Div. Super. (Ch. 1955). 2A of the courts “to
N. J. S. :10~1 deals the power word used contempt.” “contempt” The there punish has an offense. The statute correctly identify public in As Mr. Holmes out history. pointed Justice interesting no could contempt there is doubt that Gompers, supra, punished criminal it remains by process, regular J. punishable so law under N. S. 2A :85—1. common crime a court power historical issue revolved about in the punish than one actual presence (other e., of the in i. without indict- summary court) proceeding, In the 1800’s a ment and trial jury. early spate consist- prosecutions contempts “out-of-door” summary criticisms of ing impeachment courts precipitated pro- who power claimed the to deal ceedings against judges with their critics. The also summarily subject perhaps whether are involved substantive criticisms question all if fall libel, offenses at short of but the they procedural seems to have been the aspect center storm. Landis, in Frankfurter and is told “Power of story Congress over Procedure Criminal Contempts 'Inferior’ Federal Powers,” Study Separation Courts—A Earv. L. 1023 ei As there pointed Rev. seq. (1924). out the adoption resulted in the on controversy by Congress March “An Act the law declaratory 1831 of con- concerning
341 of tempts court” 487), 8tat. and the of similar (4 adoption statutes in number of states 1027). (p.
In our own State, it was almost a century later that Legislature expressed its view. As in case of federal statute, it was claim of to with power deal summarily “out-of-door” criticism aof see Croasdale v. court, Court Sessions, Quarter 88 N. J. L. 506 Ct. (Sup. 1916); of Verdon, In re 89 L. 16 J. on 1916), N. Ct. reversed (Sup. other 90 N. 494 & grounds J. L. A. which led to 1917), (E. legislation. responded 37 of Legislature Chapter 1917, Laws entitled “An contempt Act concerning of of court and jurisdiction and restricting defining courts of this State with respect thereto.” The statement 272; attached the bill Eeb. 20, 1917) asserted (S. power “to judge’s summarily summon before them persons their official acts and to fine or such criticizing imprison will persons at without trial” jury “truth-stifling, despotic, dangerous liberty.” It stated exceedingly “to abuses purpose prevent of this noted power” and was the bill “modelled after the Act of Congress March 1831” 2, to which we have already referred.
essence of the 1917 now act in N. J. appears S. 2A:10-1 which we cited above and which reads: power any punish “The this court of state to shall any except not be construed to extend to case the: any person presence court; a. Misbehavior of in the actual of the any b. Misbehavior officer of the his court official trans- ; actions by any officer, by any party, c. or or Disobedience resistance court any juror, person any writ, process, witness whatsoever lawful order, judgment, or command of the court. Nothing contained this section shall deemed he affect jurisdiction superior punish contempt.” inherent court we note the final was Parenthetically added in paragraph 1951, revision of because the probably constitutionality Bowers, the 1917 statute had In been See re questioned. Caruba, 89 J. 309 In re Eq. (Ch. 1918); N. 139 1947), N. J. affirmed N. Eq. J. (Ch. Eq. *10 342
(E. Ct. 846, & 335 69 S. A. certiorari denied 1947), U. S. aside, 396 in today’s 93 L. Ed. As an we add that (1948). ferment are claimed respect with to this these statutes subject some to the by summary power. overstate
The interest the point Legislature, immediate is that power, the summary offense within the defining public * * * included lawful any “Disobedience or resistance writ, order, or command of the court.” process, judgment, No distinction a order and mandatory was drawn between a one, and for the reason that the defiance prohibitory plain is of constituted is whichever the evident authority equally character the command.
Our rules the “nature” of court refer to unfortunately of a as “criminal civil.” But if it is contempt or clearly that a contempt” public prose remembered “criminal means cution for the and that “civil means contempt” only offense a relief on behalf of supplemental private proceeding the the correct litigant, procedure readily appears. can with, To be begin prosecution contempt initiated court itself. The court institute only by may the the on its own motion or do so in prosecution may upon v. supplied Sweringen formation Van Van by litigant. 34 402 Div. Sweringen, N. J. Super. (App. 1955), J. 440, reversed on other The (1956). N. grounds court, role is the rather than to level litigant’s acquaint rules That charge. contemplate court, shall is prefer charge rather than evident litigant, R. from the of R. 4:87-2: language “® * * any In in which the cause court determines may contempt in nature— be criminal orally by given judge open (a) The notice be court charged contempt presence person by or an in the order * * * arrest, by an order cause.” show same is R. R. 3:8-2(a). To the effect why
There are reasons decision important court’s. only must be the court’s harsh to be because everywhere acknowledged process its nature plays and the roles the summary many court A should be used proceeding. power sparingly. not criminal litigant should to invoke the permitted A process as a thumbscrew to result. private judge achieve should be alert this misuse and should possible guard it in against whether and when a criminal deciding prose- cution should be instituted.
If a court criminal proceed decides to with the it must order charge, prose individual designate cute the unless matter it concludes is unneces prosecutor *11 General, "the sary. prosecutor be the may Attorney or county prosecutor other any of this State.” attorney R. R. discretion, R. In its the 4:87-2(e); R. 3:8-2(e). court so the who may designate attorney the represents unless litigant it senses that unfairness complaining may ensue, if so the the designated, attorney represents State and not his private client. Co. Whippany Paperboard v. Local No. United 11 N. J. Paperworkers, (1952). it is a
Hence clear that prosecution for contempt not mere may be instituted the upon by notice of motion a the the litigant alleged to offender. where court Except has arrest, notice in an given open by oral court or order for the be an given notice order cause. may only to show by hand, On the other for litigant’s application supplemental relief in his own interest made by be motion on notice may to the party. used, If a motion is is no opposing there the procedural ambiguity, but notice litigant’s since of the cause, application also be order to may given show 4:87—2, B. B. confusion arise unless may gives the court clear notice in the order whether as to the is respondent directed to cause he show should not (1) why be adjudged of and for guilty punished contempt or the (2) why moving should not receive litigant relief supplemental because of an violation of an alleged order. Although provides B. B. 4:87-3 that the "upon * * *
hearing of the for charge contempt the court criminal or civil the was determine whether shall not be should both,” or the nature, quoted language e., i. nature the proceeding, to mean that the understood the at conclusion shall first ascertained civil, criminal or be order show Rather it means that if the to hearing. informative, respondent may not sufficiently cause is of the pro- statement of unequivocal purpose seek is hearing. of the The better course at outset ceeding whether it intends criminal prose- for the court decide to Indeed, cause. at the time it the order show signs cution at decision he cannot stage, makes that unless judge he whether, if or prosecutor know whether to designate violated, make matter the order allegedly signed he if the must purpose returnable before another judge make before himself as it returnable punish, is to furnish he will if ordinarily purpose may R. Moreover when relief for the R. litigant. 4:87-2(e). is first made clear at proceeding purpose if the required respondent hearing, postponement may notice. is unable to want prepare adequate para of the rule portion quoted preceding contemplate for the appears prosecution graph with the litigant’s quest private offense be coupled *12 questions. That involves serious See dissent relief. course Mr. in United v. Rutledge of Justice States opinion ing Workers, 258, 342, 677, 67 S. Mine 330 U. S. Ct. United his and in 884, concurring 91 L. Ed. 938 (1947), opinion SEC, 585, 595, v. 330 U. Co. Cal 67 S. Ct. S. Penfield of Smith, 1117, 918, 91 L. and see Danes v. Ed. (1947), N. at We need Super., 295). J. not now (22 p. supra charges may determine whether both be combined or tried over a respondent’s objection, a but it hearing in common doubts is to note which would attend appropriate grave a proceeding. double-barrelled mind, we these in come to the
With views question was present case proceeding punish whether contempt. for
The matter notice of a un- motion, was initiated mode if authorized is to purpose prosecute criminally. The did court not and hence counsel designate prosecutor, for plaintiff could have as appeared only representative of a in a civil litigant proceeding.
In the notice stated it plaintiff of motion would seek an order the defendants in (1) “Holding contempt failure comply “That Judgment”; (2) they cease the of matter” in open refuse and other viola- burning Code; tion of the “That the defendants be committed (3) and held in close until the and custody Judgment Order of with”; the Court are “That complied defend- (4) ants be fined payable $50.00 State of New Jersey as provided by N. J. S. 2A:10-5.”
The first is in the prayer equivocal light past usage, since the expression “to hold has been contempt” employed whether civil, was criminal or proceeding but it is there was no statement significant purpose “punish.” seeond third items relate to plainly item, further relief for plaintiff. fourth which seeks a fine under :10-5, N. J. 8. 2A also evidences the civil nature of the the usual proceeding despite connotation of An “fine.” is explanation necessary show that this is so.
N. J. 2A :10-5 8. that “where the provides is civil in nature” the shall primarily court “a sum impose not as a fine” the use exceeding $50 of “the state or county, the case be.” The quoted terminology reflects the confusion to which have referred, we already section, as does also the caption to the “Civil Contempt; Punishment.” The historical note states the source of this 1902, section section Laws chapter 538. p. The 1902 was a act revision of Act. Section Chancery with the opened phrase, “To enforce obedience to the rules and of the Court of process, orders Chancery,” after for the fine not providing imposition exceeding $50, it then directed that “the said court, person being otherwise, upon process contempt or shall stand com- *13 346 until the said custody process, in and remain close
mitted until the and performed, obeyed shall be rule or order costs, be fully with the contempt, such for imposed fine so reveal that plainly provisions quite paid.” quoted the relief of one for in mind was civil proceeding In Frank contempt. for prosecution rather than litigant dis Herold, & A. 1901), appeal 371 (E. 64 N. J. Eq. v. L. 844, Ct. Ed. (1903), missed 191 24 S. U. S. the earlier the identical provision the court held the civil solely was intended to deal Act Chancery punish limit the court’s power and not to remedy in B. S. later appeared The section public wrong. In Chancery. limited to the Court of 2:15-7 and was still to the whole 1951 the act was extended revision of and in lieu of the courts, and the county court superior was described above, proceeding we phraseology quoted civil nature.” primarily as one “where the contempt “fine,” Lathrop the usual connotation of penal Hence despite Div. J. 1959), 57 N. Lathrop, Super. (App. v. an to describe only the word must be understood here in the nature of costs favor of State or imposition the pecuniary to reimburse county government civil the breach of the order imposed by burden It which breach precipitated. might proceeding area the word “fine” is also added that in this muddled sense, in still another to describe non-penal sometimes used awarded for violation compensatory damages litigant short, In one must look the label to through order. it. discover what lies beneath was nothing support Hence we think there All that the here was criminal. the indicia proceeding claim nowhere that de suggests are the other record way. if the were misled or prejudiced, phrasing fendants under review be said to reveal what the judgment we note it throughout, understood describes everyone are contempt.” motion as one for “civil We satisfied that *14 such was the The motion. was judgment therefore appeal- Richardson, able. In re N. J. 395 (1960).
II. This us to the merits The brings case. Appellate Division held that correctly upon litigant’s appli cation for enforcement of an order, relief injunctive should not be refused because the merely violation was not willful. It then concluded that defendants breached mandate of judgment “cease they the New violating Jersey Air Code,” Pollution Control but that since the mandate lacked specific directions, the trial court should have granted relief to plaintiff “by means to be used specifying hereafter by defendants to themselves into bring compliance.” With respect to the “fine” :10-5, authorized N. J. 2A by S. the Appellate Division said the trial court could reflect finding innocent failure “in the size or the denial of fine.” requested
We must It disagree. seems us that the restraint was too vague to sustain a aof finding violation on the us, record before and that the specificity which the Appel late Division ordered should have been the attribute of the original itself. judgment
The Air Pollution Control Act 212; (1954) (L. c. N. A. J. 8. 26:2C—1 et Air seq.) created the Pollution Commission within the State Health. Department of Commission and the Department are wide given powers meet the of air pressing dangers pollution. The Commis- is sion authorized code adopt or rules and regulations air “controlling prohibiting pollution,” N. J. 8. A. 26 :2C-8. The Department directed to “control air pollu- tion in code, accordance with any rule or regulation promul- gated commission,” by with power to Receive “(e) * * * initiate compliants and institute legal proceedings for the of air prevention pollution and for the recoveiy of penalties, in accordance with this act.” N. J. 8. A. 26:2C-9. for enforcement steps statute down the lays violation, Depart reveals a If
the code. investigation or cause source eliminate any ment shall “endeavor to conference, by violation from such air pollution resulting If A. 26:2C-14. N. J. 8. conciliation and persuasion.” a notice shall serve fail, efforts the Department such tried 26:20-15, which shall A. N. J. 8. complaint, A. J.N. 8. manner provided administratively *15 of in a finding results and 17. If the hearing 26:2C-16 time during a reasonable “shall fix violation, the Department such measures take to said shall be person required which and to give periodic to the same bemay necessary prevent A. J. 26 :2C-18. N. 8. reports.” (Emphasis added) progress in to determine the Department Thus the statute directs end, If to that necessary shall be done. terms what plain limitation, wholly some constitutional absent may, the order If it appears operation. business offending prohibit to the ordered, do, subject should be less will it something ban the operation more or to compel to authority continuing The order inadequate. lesser measures prove if completely is directly and that order made after hearing, be must which reads: J. A. 26:2C—20 under N. 8. reviewable by department by any or or action the of final decision “Review prerogative by procedure in lieu of writs. shall the commission regulation promulgated validity any code, or rule of of Review the by procedure preroga- by in lieu of likewise be shall the commission tive writs.” 26:20-19 provides: N. J. 8. A. Finally in preventive measures are not taken or corrective “If such department may department, the order of the with the accordance jurisdiction any competent of action court institute a civil code, any prevent injunctive of such rule further violation relief injunctive power grant regulation. such shall have court or Said by Any person hearing. upon the thus determined and notice relief code, regulation promulgated department or rule to have violated per penalty by of week $100.00 for a shall be liable the commission expiration day beginning of the the time 10th after the taking preventive or corrective measures the of the fixed department’s order. In the event he continues maintain permit any or the of maintenance condition which has been by department violation, determined such constitute recovery penalty pursuant method of said shall be to the Penalty Enforcement Law.”
Before it Code, adopted Commission held public The record hearing. causes fires likely indicates other than one purposely started operators are fires dump (1) so started by ashes strangers; hot and dumping (2) like; spontaneous combustion. It was (3) generally there agreed are two ideal approaches to the problem. One is the use of incinerators, which is the antithesis open other dumping, is the “sanitary landfill” method whereby of soil layer over refuse spread and combustible materials as are they At the dumped. public hearing, some emphasized the large capital expenditures involved incinerator approach and the substantial costs which the sanitary landfill method would entail which ultimately would be on to passed the municipalities or their citizens. considerations, Doubtless because these the Code did not either the require incinerator landfill sanitary methods *16 for refuse us disposal. Plaintiff informs that virtue of action later taken under other land- legislation, sanitary fill method became for all mandatory dumps throughout 30, 1960, on State June a fact which simply emphasizes that did take step. the Code not short, therefore,
In the Commission deliberately incinerators, omitted to thus disposal by require permitting continue, and to also omitted to open dumping deliberately landfill, thus the continuance require sanitary permitting in of which the outbreak fires was dump operations of Rather likely. understood to be it in Code provided suffer, “shall cause, that no allow or person permit open of refuse.” The word “cause” is clear burning and enough, if had set the fires in defendants their question, violation would injunction plain, and of vagueness or “suffer, allow would not relieve permit” words them of that defend- disavowed a responsibility. plaintiff charge But of knowledge ants the fires disavowed started and indeed their origin. or
What, then, “suffer, allow permit”? is the of meaning that the mere At the us conceded plaintiff before argument violation, se of a not constitute outbreak fire would per a number of fires of but that occurrence seemingly argued We a breach. over of time somehow demonstrated period inhere are not breach is claimed to sure whether the fires or act failure to take available measures to prevent unin- out. The motion was put more them expeditiously plaintiff apparently also was evidence since formative. So occurred. Plaintiff the fires it thought enough prove have done to what defendant should testimony offered no to fire prevention what did either with beyond they respect or fire fighting. “suffer, if unimple- of allow permit,” vagueness direction, when one striking
mented becomes by specific “be committed that defendants ponders plaintiff’s prayer Order held until custody Judgment in close brief, are with.” In its plaintiff sajrs Court complied defendants to not direct is true that the does judgment “It burn- open the occurrence any take single step prevent and then observes that dump on the which they operate” ing choice flexibility “this defendants more liberty gives than themselves they the means purging if a act had been directed” and have single specific would had, not their own single key prison “They Quite the How could keys.” contrary. but pocket, many defendant know what measures would suffice an imprisoned specific him? Plaintiff does not what suggest to liberate deemed sufficient. Rather plaintiff seemingly measures it when so determine defendants are contends a court should would be late and That jail. quite unnecessarily sent to are, have so; measures, they whatever should been *17 the order. A defendant departmental enjoined in specified of a criminal specter prosecution. such faces terms
3S1 True he he if may is acquitted uncertainty found to willfulness, dispel but an is at acquittal best but some comfort. a So also there fear is of a civil possibility commitment terminable upon with the uncertain. lia- compliance And for the bility should not a statutory penalty depend upon defendant’s ability to what will be found to be a guess sufficient provision to fires them. prevent extinguish The Appellate Division the absence of recognized adequate criteria, for it directed further relief “by specifying means to be used hereafter defendants to them- bring into compliance.” selves contemplates statute that such shall specifics appear in departmental order.
It that defendants a disturbing consented to final now initial judgment they question vagueness. The reaction is to leave them with the burden they accepted. But leads all, reflection to another view. After as defend- ants consented they simply in the judgment terms very relief prayer complaint. To them the order well meant have must they employ reasonable methods with the problem. cope Perhaps restraining order should be so construed and defendants held to civil liability that standard upon consent, because of their but not seek plaintiff prove did violation upon that theme. Nor, in terms future can a compliance, restraint such be a lazy generality truly effective remedy public interest. As the demonstrates, it litigation merely delays a solution controversies over what by inviting was meant and the of what sufficiency was done. Plaintiff increases its it own workload when resorts to generalities since sooner or later must they be made concrete. Plaintiff use ample should its to deal with power problem decisive clarity.
We considered remand the trial court for retrial do but to so would be original complaint to require court to make initial determination which the Legis- lature confided to an administrative agency. Hence we think it better start plaintiff to have the administrative *18 with, the Legislature in the plan accordance anew
hearing prescribed. is accordingly Division Appellate of the
The judgment is affirmed. the the trial court and judgment reversed No costs.
Francis, I that agree in part). J. (dissenting and be reversed Division should of the Appellate judgment affirmed. that the trial court however, Court, beyond goes opinion and B. B. 4:87-3 and in the ease in revises issues effect Practice, regulate procedure Civil which of the Rules of practice that the in matters. There is no contempt denying clarification, I am inclined to think that revision but requires await advantageously in area more important might such and, perhaps, the Rules Committee consideration study by will give Pursuit of that course Conference. at Judicial the trial many practical experiences the benefit of us of the rules their operation with the bench bar a more form, just perdurable produce present at course, by once may proceed Of this court practice. here, it make any as has done process, opinion we seem But in such instances that desirable. changes the new at by be certain regulation (arrived should and most represents expe- the best way interpretation) in the area under ditious avenue to consideration. justice view that is reached my goal Because not court’s I feel adhere to the compelled existing interpre- opinion, which, in rules one at pertinent particular tation least, more to the needs of responsive specific seem matter. subject the current when order
Generally, practice under court defied, an ex verified parte have been motion is alleged an order to show cause the violator why petition seeking contempt presented not be adjudged should who issued the contemned order. order to show judge is made returnable before the who judge cause when issued it. On the return at signed the outset of the day, proceed- ing, court hears counsel for the as whether parties the disobedience should be charged prosecuted criminal or, contempt as the Chief Justice under the rightly says, misleading label of “civil” If contempt. he concludes should be criminal, treated as then a prose- *19 cutor is appointed and the matter is referred to another for R. judge plenary R. hearing. 4:87-2(<2).
The important factor to be in mind in kept connection with the modus is that existing operandi in rare except instances on the return of the order to show cause the alleged offender has the the opportunity persuade judge whose order was allegedly disobeyed, by way argument affidavits, if (supported by he that chooses), the matter should not be or tried a charged as criminal the affront to of the R. R. dignity court. 4:87-3 a imposes mandate that a decision of that preliminary shall made. question be It that “the court shall says etc., determine” and its internal sense that the determination shall be made in the presence of the parties involved. This valuable has opportunity in the grown up administration of the a rule—as matter right, my view of the judgment, used— language and it not be taken ought new away by interpretation at this late date.
The construction now adopted for future application removes the effectively right to be heard on that important The preliminary opinion issue. the ear the gives of- court to one as party alone to whether the violator of the alleged order should be with a charged criminal contempt.
plain import of the used is that language henceforth the whether to question prosecute criminally should be decided the it by court before the order to show signs cause. With where, extremely exceptions for infrequent (as example, the read of the disobedience of his order in judge might and on his own newspaper, motion) act litigant, executed, whose the order was advantage would instigate Thus, forward, from this proceedings. day such an seek fashion to allowed in ex parte will be party interested that decision self-serving argument through obtain contempt his should tried criminal adversary be vindi- adequately cannot be that the court prestige con- allegedly relief in aid of cated by supplemental noted, the order show has been temned directive. As another will be returnable before cause in criminal as directed the latter will Obviously, proceed judge. as to whether question will the preliminary regard infraction as having matter should be tried as criminal been settled his by colleague. from authorized existing departure practice It the rule is a substantial violates one.
majority opinion has admin- as it been construed and my experience indicates be istered. I it would more to deter- agree expedient mine to issuance of order show cause whether prior of the order transgression court’s should alleged But criminal mind prosecuted contempt. having court, I contempt power awesome believe *20 under B. B. 4:87-3 and 3 their form present such grave must be after notice to question only settled the alleged and not ex contemnor parte. on votes to reverse the merits for the reasons
Jacobs, J., in Part II of expressed majority opinion. J., in result. concurring
Francis, For reversal—Chief Justice and Justices Weintraijb, and Haneman—6. Francis, Proctor, Jacobs, Hall For affirmance—Hone.