United States v. Ross R. Barnett and Paul B. Johnson, Jr

QQ Quercia supra, damages States, at finding $25,000 v. United and a 472, 53 both defendants. Virginia Ry. See also Co. Armen- v. right recognize that the We trout, F.2d 4 A.L.R.2d 1064 Judge on the evi a District to comment 1948). (C.A.4, firmly dence is established judge’s We believe the trial comment States, Quercia system. See v. beyond on the licensee-invitee issue went L.Ed. 1321 289 U.S. 53 S.Ct. judicial and in- the limits of comment (1933), cases recited therein. We finding function vaded the ultimate fact right narrowly to confine this do not seek jury. jury inform the when it is used to they problems must consider. which Reversed remanded new trial recognize that the District We also Pettway Company. as to defendant Oil a laudable desire motivated was clearly prevent a mistrial and that he jury had ultimate told the

right to decide the issue concerned.

Nonetheless, we believe that under enumerated, trial

circumstances

judge’s opinion on the licensee-invitee opinion fact

issue on an ultimate

question jury peculiarly consideration an instructed verdict and amounted to of America UNITED STATES Pettway Company. to defendant Oil Quercia States, supra, In v. United BARNETT and Paul B. R. Hughes Chief Justice commented: Johnson, Jr. privilege judge “This No. 20240. on the inher- comment facts Appeals United States Court of ent limitations. His discretion is not Fifth Circuit. arbitrary uncontrolled, judi- but May 5, 1965. cial, conformity to be exercised in governing with the standards commenting upon office.

testimony may he not assume the may analyze

role of a witness. He evidence,

and dissect the but he

not either add it. distort it or privilege

His of comment in order give appropriate assistance to the

jury important too left with- safeguards out abuses.

******

“Nor do think that the error we

was cured the statement of the judge opinion

trial that his binding jury evidence was not on the agree they and that did not with it if find the should defendant

guilty. His definite and concrete as- fact, sertion of he made Tuttle, judi- Judge, R. and John persuasiveness Judges, Wisdom, dis- utterance, Brown and of his cial as to basis ” * * opinion, sented. was not withdrawn. ing Ross R. Barnett and Paul John- B.

son, Jr., contempt tempo- in civil of the rary restraining orders of this Court September 25, entered 1962. There has compliance since been substantial appears this Court’s orders. It therefore proceedings that no con- further in civil tempt needed, appro- are and that it is priate formally enter order termi- nating contempt proceedings. CRIMINAL CONTEMPT contempt gen Criminal sui proceeding protection eris for the integrity of the Court. The criminal proceedings Ross R. Jr., Johnson, Barnett and Paul B. were pursuant instituted order di rection of this Court of November (J. dissenting). pro 1962. Gewin Those ceedings are, therefore, con within the trol the Court and the Court has the power authority to order dism them issed.1 present

At the time no sufficient prosecution reasons exist for the further proceedings Jr., Jaworski, Vaughan, H. Leon W. light Houston, Johnson. Tex., appellant. In substantial com for pliance orders, consid Motley, York Constance Baker New respect erations of for do not City, for James Meredith. H. require prosecution the further Dugas Atty. Shands, Asst. Gen. contempt proceedings. criminal does Nor Miss., Clark, Charles Malcolm B. Mont- prosecution appear such further neces gomery, Miss., Jackson, Smith, B. Fred sary purpose deterring for the others Ripley, Miss., Roberts, M. Hatties- M. committing from offenses like or similar burg, Miss., Green, Sr., Jack- Garner W. alleged acts of The son, Miss., appellee. Rights gen Civil Act 1964 has been erally recognized creating status ORDER under which the “law of the land” is now TUTTLE, Judge, Before beyond question. Indeed has been there RIVES, JONES, WISDOM, BROWN, widespread, voluntary compliance with Judges. GEWIN, BELL, Circuit provisions highly of said Act. It is improbable persons that other here BELL, RIVES, JONES, GEWIN after commit similar to herein acts those Judges: charged. CIVIL CONTEMPT lapse of time since this entered contempt proceedings dered criminal findings law, fact, conclusions instituted, changed to be circum- judgments contempt adjudg- of civil stances and conditions have rendered Cir., 1954, Fletcher, 1075; Contempt 162; 63, p. See re 17 C.J.S. § 81, 915; States, 1 Contempt, F.2d MacNeil p. v. 17 Am.Jur.2d § Cir., 1956, 149, 61 236 F.2d A.L.R.2d some, present contempt Thus or all criminal member further ship unnecessary. disqualified rationale of this Court sitting City part Rock trial on merits of on a least in of Hamm at hill, charges.4 315, 317, these 85 S.Ct. 379 U.S. provision makes where the Civil statute5 re 13 L.Ed.2d placement judge Rights applied retroac sit on this en was to banc Act of 1964 tively prosecutions, one court and whether can we doubt to abate state sit-in judicial properly by purpose Act the "to be invention. was the of devised based on distressing chap It merits follows a fair trial on the effect of the obliterate subject doubt, history.” no is of It held that the of and dismissal ter of our proceeding in con served the criminal open is the course interest was clearly tinuing prosecution. And so is that is with fun the consistent appro here. In what we consider fairness. damental priate application of restraint contempt judgments civil power, part of another the we close out imposed. stand but no sanctions will be chapter. same proceeding criminal is dismissed the reasons above. stated conclude It is fortunate that we can so It sois ordered. no fair alternative because there right Jury of course. trial as a matter TUTTLE, Judge, and JOHN R. has been out Court. ruled Judges WISDOM, BROWN and stated, For reasons which need not be (dissenting). jury would as a matter of discretion trial majority granted by of this not be vote Judge (dissenting): TUTTLE, Chief Court. For the same acts for which deference, I With dissent. charged contempt, stand criminal with January 4, criminal 1963-commenced already tried been defendants have adjudged by contempt proceedings Ross Bar- in Court to be Johnson, Jr., upon 2 fol- nett and Paul already contempt. This has found Court among assertions, lowing others: of them on of all elements excepting only contempt, that of criminal “Probable cause has made been intent, application That state of mind of willfulness. from 21, Attorney must inference from be determined filed December General evidence, 1962, most if not of which of on behalf in name Septem- been introduced and considered the United States having contempt Barnett, proceedings. 25,1962, the civil R. in ber Ross every judge having of this While we know that actual served with and been temporary best to re- Court would do conscientious of this Court’s notice contempt 25, try straining the criminal order doubtful, fairly impartially, wilfully prevented 1962, we James H. are say least, entering whether we the offices from Meredith judges may a fixed not have formed the Uni- other opinion the Board Trustees guilty.3 Jackson, versity are defendants States, contemplates granting compare 2. This v. United statement also Juelich government Cir., to dismiss motion 214 F.2d 955. and 4. These counts relate to Counts 3 42(b), Compare provision Rule maintain failure defendants that, “if F.R.Crim.P. university. law and order at charged disrespect to or criticism involves remaining frus- two involve the counts disqualified judge judge, of a registration tration Meredith hearing presiding trial ex- at the by the defendants. cept consent.” defendant’s U.S.Code, disqualication pro- 46(c) 3. See discussion of the of Title Section judges opinion viding part, Jones “A court in banc shall con- al., Cir., regular judges ac- States v. Barnett et of all circuit sist 419-421; pages F.2d tive service.” Mississippi, deliberately thereby just recently out, par point often and prevented H. James Meredith from proceeding. takes much of major distinction, A enrolling Uni- however, a student is the iden versity pursuant tity initiating to this agency tradi —for 1962; July 28, Sep- proceedings, der of that on tional criminal the Execu Johnson, tive; Paul tember Jr., B. contempt, for criminal the Court. acting Despite differences, under authorization some fundamental Barnett, parallel direction of R. close, think the and therefore agent agent agree and as his and as an that a initiat Mississippi, officer of charge ing State of criminal must having power while actual notice have the to determine whether the restraining temporary Sep- proceeding order of must once commenced inevi 25, 1962, wilfully pre,vented tably go resulting tember forward trial and entering H. James Meredith from acquittal. Judiciary conviction or campus University the Mississippi particular clothed in instance with this Oxford, Mississippi, powers comparable awesome to those of thereby deliberately prevented in criminal Executive enrolling H. James Meredith from right, probably has the unreview pur- University, a student in the duty, pub able whether the determine suant to of this Court. lic interest will best be served a now: the As the Court believed then I believe ^[*] require ^[*] *» charges a trial. The were sufficiently grave gravity furthered or ence, therefore, discontinuance short of trial. public interest and how will be hindered inis this assessment of action.2 My differ charges enhanced, lessened, by concluding public that the interest gov- that fact were a requires that continue we governor ernor and lieutenant state. of a remaining charges trial of the we set agree I the Court now full has motion, Judge emphasize, I does would power prosecution to continue the or to dissent, Wisdom in V of that I Part his respect fully dismiss it without I more. guilt prejudge neither intimate nor judgment of those who believe the merely outcome. Our dissents reiterate public interest, including integrity as echoes what our earlier order declared judicial system, calls now for dis- probable —there is cause and reasonable judgment. I missal. do not share that instituting trying for need then, now, As I I believed believe that the charges. To should ad- conclude we public requires interest that a trial be judgment pre is no than here more a guilt held and that the or innocence of entry charges. initiating of the order respondents these two be determined. Surely, assaying the act of the Court in the case interest its Judge (dis- BROWN, JOHN R. further continuance transmute the cannot senting) : pre- dissenters’ voice into a of difference Court, quite almost if not unani judgment on the merits. mously, recently declared1 that Executive has demonstrating any the uncontrolled discretion without to determine whether once support factual its conclusion that all for go prin commencedmust ciple, by way That now, proceed- forward. should halt dismisses the analogy, pertinent ings. Within announced the Court’s contempt, here. opinion, gen- Criminal as the cases support this find no 1965], (and easy join [Jan. United States v. Cox find it a severance Cir., Hauberg 26, 1965], postponement) [Jan. Cox former of the case Governor, Governor, 342 F.2d 167. Lieutenant now Johnson, Paul B. Jr. Although proceeding against I think the go forward, I Ross Barnett should would gaged examining conclusion, protecting I find nor can eralized right, possible asserted the Gov reasons. examine when interposed ernor obstruction dealing with conduct We are here subverting will, au the federal highest That conduct the State’s officer. thority. The such assertion that ac might legal sufficiency —whatever proof tion can be taken as conclusive ingredient supply of will the essential necessity must be its own ac by Gov and was intended fulness —was cepted process as in due of law itself physical obstruc to be a ernor support has no decisions that Meredith tion to this Court’s decree this Court.” 287 U.S. at 53 S. University. The con to the be admitted Ct. at 197. words,3 flict, on own Governor Barnett’s writing as if in 1932 of Almost Gov- versus was the State Consequently, ernor actions in Barnett's United States of America. through unanimous Justice in Part Wisdom as articulated Hughes clearly duty dissent, lies: con outlines where is more than IV of his “contempt tempt of this Court. The “If it be assumed that the Governor governor charge” “the declare of in- was entitled to a state against the state Nation.” bring military surrection and officially authority, Barnett, reasons force aid pre- proper power in proclaimed, physically use undertook very thing admission, was instance to maintain the Meredith’s vent jurisdic- specifically by He in the this court exercise of its Court. ordered short, tion, attempt was, marshaling the whole force and not to to override it; making upholding, process opposing, to aid in not ef- of compliance nullify it, fective and not to re- orders. to with the Court’s create, move, closely parallels of not to obstructions action another governor by complainants to the exercise earlier whose was the conduct rights Constantin, judicially subject Sterling 1932, of their de- of 375. clared.” 287 U.S. at 53 S.Ct. at L.Ed. U.S. justify of state 197. his effort to the use Of

military prevent compliance with force to Precisely high, duty so because his was positive order of Federal likely consequences his inter had this United States position devastating, responsi so say: leadership in main bilities of moral affording protec tenance of law and order in face “Instead of them awesome, unpopular

tion rights of their situations so it is in the lawful exercise important by held courts Governor Barnett be as determined sought, by ex he his accountable for his actions which [.the Governor] orders, import make would be first to minimize ecutive that exercise judicial impossible. place ance. To be held accountable is not to procedure, forecast the outcome. To be ac available in courts held functioning, speak open he countable is not to punishment in terms which were certainty up of it. set commands which even executive merely delay appeal. In To quire nor be held accountable is to re trial,4 brooked neither particular, through orderly, process fair Fed actually properly eral en court determined whether the conduct skilled, pages) accompanying highly Part filed en- 2 and text See note responsible ergetic Judge counsel Gov- Wisdom’s dissent. VI remotely hint at ernor even candidly by Although discussed Govern- disqualification more or one or ment counsel its own motion this the members of sit on pretrial precipitated hear- briefs charged ing because the order case, in the fall of none held ours, (numbering in the or that initiated briefs hundreds violated was we high legally WISDOM, (dissenting): officer was or not justifiable, not dis was or was a willful my respectfully mind, dissent. To to a of this Court. obedience lawful order represents the Court’s decision exer- judicial license, cise of not of pub Now one will ever know. The restraint. try lic—whose interest is stake as we complain doI not of Ross Barnett's to make constitutional work— federalism escaping punishment. complain of a governor will know that a success governor’s escaping punish- the risk of fully interposed prevent himself com ordinary or, perhaps, ment an citizen pliance. only that, It will know save for registrar of voters runs if indicted he is procedural problems skirmishes over for criminal years, course three such Governor charges5 never had to answer to the Sunday, September 30, awas thought enough which this Court serious day On climactic James Meredith. brought being to warrant their sub day, the three before that Gov- occasions enough occupy stantial its attention ernor and of Mis- Lieutenant-Governor highest and that of the Nation’s tribunal highway troopers, sissippi, with state occasions, on several one of con police officers, sheriffs, local propor cerned an issue of constitutional way barring formed a wall Meredith’s tions closer in its 5-to-4 outcome than University Mississippi. No into the chapter,6 the 4-to-3 vote here. one will ever know whether the Governor violence, with its death and is indeed a Mississippi could have made Sun- regrettable one. But it is so because day marking day a to be remembered as Bather, a Court order was issued. it is peaceful Deep South’s turn toward because Court order was not affirma problems. What we solution its racial tively, actively enforced those now rioting do know is that the and insurrec- charged with obstruction of it. In the tion in Oxford on supremacy Constitution, in the su many days was the worst bad premacy law, of the rule of much suffers by bloodshed, Deep South bomb- marked governor things when a can here do the ings, burnings. If the indict- and church charged facing up without ever to either may be the interest ment dismissed in consequences the or even a de public, the that interest should be tested legality illegality. significance public termination or Gov- analysis Judge agree the show cause order and the order I6. with Wisdom’s charging (Part dissent) con- criminal On the III of his of Hamm v. trary, they assiduously City Hill, 1964, have refrained of Rock 379 U.S. to, discussing, replying or from Govern- 13 L.Ed.2d 300. aspect ment counsel’s comments suggesting this or agree says 7. I with what Wisdom our- that we should recuse interposi- sure, jury trial, IV in Part of his dissent about To be a ei- selves. consequences tion, discretionary, likely mandatory Governor or either ther acknowledged upon actions, and Barnett’s before this Court or reference a necessity Mississippi, all officials from Gov- that state to the two District Courts earnestly sought. ernor to the constable “must know that But if it is is impunity by Judges, complaint flout with federal cannot is tried uttered Likewise, lot, VI law.” I concur in Part im- it falls our rather than clearly unques- points ported, Judges, an out so certified to assume liability responsibility. tioned accrued sanctions inescapable that Meredith fact During jousting, admitted, this not reason of the Gov- yet up compliance” Barnett has not had to face to a ernor’s “substantial decree, with our guilty plea guilty and, superior formal not mili- but force of matter, yet tary for that he has arms. counsel) (save by before this Court though repeatedly person ordered in to do so. registered Uni- at the after Meredith Barnett’s actions on ernor versity Court, Mississippi, Oxford, day Missis- 1962. On judge dissenting, one directed sippi, flouted the Governor of State Department to file criminal explicit struck a Justice R. federalism, proceedings American blow Johnson, Decem- Paul Jr. Nation. B. defied the re-weighed these ber show I. it issued the considerations when contempt. No cause order for purport does Court not base its matter, majority says, have there holding any principle law. changes been in “conditions” since holding Court on its bases confidence Turning calipers, the ma- inward for prescient majority’s knowledge jority of these has measured effect public. Working what is best for the changes general on the attitude Gallup with what Dr. would consider officials, public public, the reaction statistically for a small number reliable high probabilities of officials’ state poll, dismisses indictments interfering the future poll because its indicates that 4/3 court orders. public reaction to a trial would adverse time. defendants at this occasions have been several Since there publication of sitting such equity; since 1962 when The Court is unpre- opinion with certain coincident defendants are accused of criminal con- might have this circuit tempt. therefore, dictable events in order, to dismiss ability questions case, raised the Court had to start with majority public reaction assumption measure that criminal timing everything. future, proceedings, although foresee for a majority finds that public wrong, are so unlike other criminal general amnesty decree for sit-in be dis- the case City trespassers Rock in Hamm missed, trial, after indictment and before appropriate “close now to Hill makes whenever the Court concludes that dis- chapter”. reach- have whether we doubt missal interest. Two chapter. IBut know years ago, however, enough ed the close this case was long way long, that we prosecutions are a like other criminal for the evenly question end of the book. to divide on the whether the defendants are to a entitled II. jury trial under III Article and the sixth proc- amendment. the decisional It is evident requires precision majority a ess of the arriving judgment In at value as timing clairvoyant crystal-gazing prosecution to whether further would be permits haze or latitude for cloud that no public interest, gave in the seriously, speak crystal not on the ball. weight high to the state office Governor rightness facetiously. say that if the Barnett once held Governor Johnson ability of on teeters decision holds, now the assumed adverse effect a only collec- majority to read not might trial rela- have federal-state minds of but the the Public tive mind of tions, “substantial com- defendants’ high of- past, present, state future pliance” (a with the ficials, lesser of- extent which and the thinking reversal of the Court’s that leadership, there ficials follow executive surprise defendants), come to the basing wrong something de- is degree necessity prose- of felt majority’s appreciation cision on the “highly improbable it cution since that public interest. is in the what might persons other commit” hereafter knows, judge is a cer- every there weighed As similar acts. But this Court policy-making in decision- tain amount of these considerations no less than ap- especially long making. 15, process 1962, times. November four 106

parent involving process, petitioners”. 317, in cases the due at 379 U.S. S.Ct. equal protection, and interstate at commerce 392. There is not the remotest im- concepts plication Supreme clauses and other that are opinion broad in the Court’s part living anyone Constitution as a the Court entertained ganism. Here, however, the Court is not notion that or the sit-in cases should following prescribed requiring majority’s course it could be dismissed on the statutes, interpret guess the Constitution or there would be an adverse fact-finding hearing. and is not after a to further reaction acting contrary own, agrees trespassers. Court is on its Whether one disagrees to a City course action itself v. Hamm of Rock Hill, resting chose after careful of all of principled consideration it ais decision analysis legal prior factors now before decisions, us. on an reasoning, accepted judicial meth- The Court is like a than it less court odology. example typical It is a king good is like St. Louis. The French process. decisional It rest on the does not tree, spreading to sit used under oak vagaries majority’s aof transcient ben- presiding even-handedly judge as a evolent excursion Mind. into Public trial, dispensing justice subjec- at a but tively, hit-or-miss, according arbitrarily, inability any prece- Court’s cite fancy the moment to what dent is itself im- indication subjects was propriety best for his it stopping when short of a trial him to tell best for them about it. after indictment. two each of the Coming home, closer authority, law decisions the Court did cite as Court’s decision is like the Law West of guilty the defendant was tried and found the Pecos. Fletcher, of criminal In re 1954, 915; Cir. 216 F.2d MacNeil III. States, 1956, 1 Cir. 236 F.2d 149. City Hill, 1964, Hamm v. of Rock In Fletcher the court observed: U.S. 85 S.Ct. 13 L.Ed.2d duty judge “It becomes the support lends to the action. to take when the affirmative action In that case the Court abated lawful commands of the court are de- pending trespass convictions “in accord- fied.” 216 at F.2d long-established (370 ance with the rule” 392) U.S. at at In MacNeil that “convic- court said: tions on direct at the time review “It would from these author- question longer conduct is rendered no ities, very and indeed from the na- may (379 unlawful statute” be abated function, ture of the 389). U.S. at 85 S.Ct. There was pub- the trial court can have question application a serious as to the distinguished private lic as from a principle of abatement because interest in the enforcement of its convictions state were in courts and us, own decrees. It seems there- abating statute, statute was a federal fore, regardless of what label Rights majority Civil Act 1964. The appended difficulty by of the Court overcame this court, action resorting Supremacy Clause; initiated its own mo- court convictions, federal, was clear that the if regarded tion must be as criminal in “policy” would abate. The comment on nature for the vindication of the “public and the interest” refers to the authority punish- court’s and the Rights policy declaration of in the Civil wrong.” public ment 236 F.2d pointed out, Act of 1964. As the Court 149 at 154. public policy country “the of to the IV. prohibit public discrimination in accom- defined, modations as therein there- and [and Fletcher MacNeil underscore the public there to fore] is no interest be fundamental in this Court’s weakness position. speaks prosecution in served the further of of the a con- duty court generis proceeding and unshirkable on the federal tempt as “a sui case rights of the Nation integrity to vindicate the bringing protection of the for the alleged to trial. the contemnor is no doubt And there Court”. it is. So play proceeding in has that a a been The confrontation should have holds, therefore, joints. the The Court pencils the Gov- duel with drawn between “light com- the that pliance in of substantial Mississippi ernor of it the with the orders of Attorney in Missis- the States General re- of that considerations would sippi it Law Journal. Or should have require spect the the Court do not stopped courts, as the well started and in con- further the might University’s have, the when tempt in- proceedings”. But case dignity Trustees, and Board of of re- considerations more than volves grace, agreed accept open in to court spect for this Court. University. Unfortu- Meredith at the upon calling nately, a insisted Governor Barnett The offense occurred at time highest of Oxford confrontation in the streets leadership order. moral University. campus and on great clairvoyance was needed to fore- No therefore, issue, resulting There more than at see and death disorder dignity when an affront to this Court’s No armed forces. confrontation of two Barnett, as the the State rioting Ross head say insurrec- one that the and can highway sheriffs, Mississippi, mobilized place September tion that took troopers, police officers local Oxford, Mississippi, in death many arms overcame United States in disorder that have occurred force marshals enforcing law. places insur- other since that in the South due, part, rection, least in were not Mississippi, trained Governor imprimatur Mis- to law, known knew or should have placed sissippi defiance of lawless Supremacy hash of the Clause makes federal courts. Interposition. All Doctrine of so-called persons political informed that this great- know judges majority have recognized poppycock ability never been er confidence their read uninformed, court a uneducated, of law. But the say as future than I. I cannot very likely persons highly improbable says, “\i\t violence, were certain be mis- resort persons acts other commit hereafter led when their chief executive “inter- charged”. say similar herein to those posed” States himself between the United person the acts with who commits Mississippi. University charged must called which Barnett is guilty If account. he should be found happened to Governor Barnett punished, punishment may deter time. unfortunate at an committing others from similar acts. It would be mistake overestimate theory long- crim- That at least is the place obstructionist in the penalties inal complex problem rest. run solution chang- adjustment national social This action is cast in the form of con- ing relationship can- of the races. What significance tempt of this Court. But the overestimated, however, in a short- not be of the case for the lies in fact long-run import- solution, run or is the setting framing within that tion the the the ac- standing fast in ance of courts’ federal contempt charged was, effect, rights protecting federally guaranteed State a Governor To further violence individuals. avoid American Nation — including officials, bloodshed, federalism, all state as established Consti- governor, can- must know that tution and defined federal impunity law. not with courts. flout The serious threat Governor posed was to Rights deep the constitutional cuts Act of 1964 Civil relationship of the States to the regulated National lives into customs that have public wrong Government. A of such But this law has coffin. cradle enormity corresponding with long enough carries ait in effect to have not been any impact. had wide and In severe 1962 this Court concluded that the ef- country voluntary is at the threshold of of fectiveness federal courts and compliance Congress proper functioning system with this law. If of Voting Rights adopt proposed depend governor’s being should on a treated change ordinary Act of law too will citizen when he flouts fed- many lapse local customs and further exacer- eral of time decrees. urgency prompt bate state-federal frictions. Southern increases the for governors may in authority. federal courts of federal vindication many, many long for hot summers. I cannot see into the unknown. But VI. past the dark realities militate justification I see no for re whatever taking rosy, relaxed lieving obligation Barnett of his to com view of the future. ply judgment against him for I have concentrated on Bar- contempt. September 28, 1962, civil On nett because times most critical this Court civil found Barnett con preempted stage. he the center of the tempt September 25,1962.1 of order of spite my strong feeling that he should imposed day $10,000 We un fine tried, be guilty I do is not intimate that he less, 2,1962, October before he shown of criminal “Wilful- fully complying the Court that he was ness” is an essential of the of- element with the order and had notified all of distinguishing fense it from con- jurisdiction the officersunder his to cease tempt. proof In the of his absence of interfering the orders of the courts contempt, wilful trial a fair before cooperate and to the admission Court, Barnett is entitled the benefit University Mississip Meredith to the presumption of innocence. pi. pretense Barnett made com involving An action indirect criminal plying September with this order of contempt pro- like criminal other compounded On October he his con ceeding in that vindication of the Court’s by failing tempt before power need not be immediate. But having summoned, after been must be as certain as death and taxes. attorney instructed his to advise the recited The order of ing; unless on or 2nd, United States and shall with the ders, and that tody ficers 1962; enforcement officers and all other of- bo HUTCHESON, mand : BROWN, WISDOM, this Court of this Court entered AND BELL, “Before “IT IS “Ross R. Barnett committed to and remain in United States 1962 at : DECREED under his that such temporary TUTTLE, terms of the ORDERED, Attorney before 11:00 A.M. he Judges. he has notified all law he jurisdiction THAT: RIVES, [is] restraining Tuesday, R. in civil $10,000 per day General fully complying restraining September 25, GEWIN and pay ADJUDGED ifc Judge, is continu- shows a fine to or com- the cus- JONES, October ^[*] shall part imposing such other and further orders as sent from that assertion of a tempt Mississippi; H. Meredith be Mississippi versity conditions ders of this Court “Jurisdiction is “Judges Jones, States and around the operate and remain as a ders ents. “Nothing ance to and interference with the or- appropriate. “(b) “(a) To cease forthwith all resist- this Court To maintain law and order at a fine with the officers and this Court and the District herein shall the execution of the or- the Southern District of to the end that Respondent. charge portion ,of apply upon University Southern permitted Gewin hereby and of student under the same prevent Respondent.” reserved for the District at the the United District of and to co- other stu- judgment Bell register a later agents James Uni- con- dis- unedifying purged moral himself There is an to be not he had that High Memin from contempt.2 drawn this case of mills Who the Nation: The Office of Defied University registered the at Meredith grind slowly in- law not the —but 1, Mississippi 1962. To win October slowly exorably. grind enough, If Army battle, had the United States they may unaccountably, come, to even Oxford, at arms more soldiers under gradual judg- stop, short trial and of the reserve, Mississippi, in or held close ordinary expects ment an citizen when Washington George Revolu in the than accused of criminal There is tionary one at commanded War ever just thought: compensating one Hubris time.3 grind grist mills, ex- for other $ # # ceeding small and sure. for counsel Governor October Governor, I be faith- would not their ful to questions Barnett, from to in answer my office, I sur- oath should Barnett was that Governor stated any to Federal or other Courts render compliance or- in full rights discretion- to exercise those fully comply with the and would ders placed me, ary powers in to the law has Oc- in future. ders order, prevent a law and to maintain for Governor counsel tober Barnett, peace, or violence blood- breach court, open retracted their in shed, my must and discretion remain in- that Governor statements eternally I shall ever and stand free. comply to the future in tended my the exercise of own discretion for of the Court. October repudiate my right, in own and shall counsel, through Barnett, his right anyone to that discre- take response to which was attached filed a away in tion from and exercise it me following statement: my behalf. Constitutions “The full statement follows: and of Missis- United States the State position provide separation sippi “I never taken have Legislative purged, myself, Judicial, have I have nor that Executive anyone people giv- to never I authorized take such functions. The have any any position my My position right to one of these de- en partments behalf. upheld and am act for other. I have the law to is that any any in act that I have done Gov- not Court. “If as my my position as Governor first ob- ernor or act I shall do “It any person Mississippi, ligation, be- in to the future causes as the Governor right, my uphold I lieve have violated oath to is to of office challenge open Mississippi me are the Courts Constitution and Laws proceeding. proper again in court the United and the Constitution of States, day yet Mississippi in preserve her has not order. law and Mississippi people Court. built position upon “My great University the Con- is based and their schools properties States and stitution of sacrifice. their These State, and Laws of State belong Constitution control My Mississippi. every in decision Court of the United States formed after care- Waugh this matter has been expressly so ruled consideration of what ful and deliberate University of [Board of Trustees of] law. I I to be the have Mississippi, believe U.S. 589 [35 changed my position slightest L.Ed. 1131]. apologize degree. I shall never “All of the I taken actions that have anything I have or done in this said my duty obey were taken because of regard good I because have acted my Governor, long as oath and as discharging en- the duties faith State, am Governor of this My to me. is clear. trusted conscience all actions I will take future abiding only by deep am moved obedience this oath. peo- all the for the welfare of affection ple conscientiously “I it is believe keep Mississippi. ever I shall my duty, Governor, deliberately, people of faith that the solemnly, fully, free their Gov- entrusted to me as have anyone control interference supplied.) (Emphasis ernor.” exercise, according my judg- own my discretion, Silver, ment and own the duties Mis- So an historian asserts. people Society (1964). sissippi: have entrusted me as The Closed

Case Details

Case Name: United States v. Ross R. Barnett and Paul B. Johnson, Jr

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 5, 1965

Citation: 346 F.2d 99

Docket Number: 20240_1

Court Abbreviation: 5th Cir.