Ex Parte Krupps

¶1dissenting.

¶2Since they are unique the problems in this cause may not be resolved routinely by trying to find the right light of classification of kind and nature of contempt to focus on the several scenarios that one or more applicants played out an afternoon and some again the following morning. The notion seems to be that once the proper light is turned on given active and passive conduct, one will know he is seeing a particular type of contumacious conduct and then is enabled to critique it according to its narrow contextual classification and surrounding traditional trappings. Sometimes, however, a problem defies classification by label, and thus may not be resolved by rote. Of first impression in Texas, this cause surely presents just such an occasion.

¶3At the threshold it is observed that although some applicants did not rise when respondent judge left the courtroom the first afternoon, that particular “act” is not in issue here, for the judge did not remotely suggest that any applicant was held in contempt for that behavior. Thus, we are not presented with the bare question of whether just an “act” of not rising when a bailiff intones “all rise” is in itself “an affront to the dignity of the court or disruptive conduct in the courtroom,” Ex parte Gordon, 584 S.W.2d, 686, 688 (Tex.1979).

¶4Here, however, the initial failure to rise triggered what followed, commencing with a prompt admonition from the bailiff, response of some applicants and the bailiff’s reporting those developments to respondent judge. Thus the stage was set for the players, but a script had not yet been written. And from the record before this Court we are unable to identify all the players, to determine their respective role or how each played his own. There are serious factual conflicts and some sensitive matters lurking about in this particular cause — not the least of which is an asserted religious belief.

¶5Nevertheless, unless performing an act of respect to the court is to be at will of every person in the courtroom according to his own lights, this Court must require of applicants that which we demand in our own courtroom or recognize a justification for not rising the next morning.

¶6Since the statutes do not define contempt of court, except in certain instances, Texas courts are relegated to the common law in *154determining meaning, scope and extent of the doctrine, in the light of our constitutional safeguards and the spirit and genius of our institutions. As pertinent here, one is guilty of contempt when one’s conduct is an affront to the dignity of the court or is disruptive in the courtroom, Ex parte Gordon, supra;Ex parte Landry, 65 Tex.Cr.R. 440, 144 S.W. 962 (1912); Ex parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531 (1911), or “tends to bring the authority and administration of the law into disrespect or disregard ... or to impede, embarrass, or obstruct the court in the discharge of its duties.” 13 Tex.Jur.3rd 182, Contempt § 1; Ex parte Norton, 144 Tex. 445, 191 S.W.2d 713, 714 (1946).

¶7Article 1911a, V.A.C.S., provides that a court “has the duty to require that proceedings shall be conducted with dignity ...” Under a statute granting power to punish for contempt “misbehavior [that] obstruct[s] the administration of justice,” Federal courts have found that because “the traditional rising in unison of persons present in a court can reasonably be thought to contribute to the functioning of the court ..., the court may require such rising, in the interest of facilitating its functions” and, therefore, may enforce that requirement — though against a claim of religious freedom vouchsafed by the First Amendment they lack unanimity. United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (CA7 1969); In re Chase, 468 F.2d 128, 133 (CA7 1972); see United States v. Seale, 461 F.2d 345, 371 (CA7 1972) and Comstock v. United States, 419 F.2d 1128 (CA9 1969). Contra: United States v. Snider, 502 F.2d 645, 657-660 (CA4 1974); see also In re Dellinger, 461 F.2d 389, 401 (CA7 1972).

¶8Pointing out that acts of applicants occurred in the presence of the court, respondent judge argues from Ex parte Norton, 610 S.W.2d 512, 513 (Tex.Cr.App.1981) and Ex parte Supercinski, 561 S.W.2d 482, 483 (Tex.Cr.App.1977), that he was empowered summarily and without a hearing to hold applicants in contempt. The rationale is that since the court sees or hears actual misbehavior in the courtroom the judge “knows of all the facts which constitute the contempt,” Supercinski, supra;Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928).

¶9Although in his brief respondent judge insists that “in the direct contempt proceedings before [him], no such consitutional rights were asserted,” p. 7, “in a reasonable and intelligent manner,” p. 9, the majority has found otherwise; it says that he “offered applicants, through Krupp, the alternative of remaining outside the courtroom until court had convened.” But Judge Campbell correctly points out, “The record is silent as to whether Krupps conveyed any message from the judge to any of the other six applicants.”

¶10Ordinarily purpose or intent is irrelevant in determining whether an offensive act is contemptuous; the nature of the act itself is determinative. 13 Tex.Jur.3rd 182, Contempt § 1. The judge may convict and punish summarily on his own personal knowledge and observations taking into consideration “all the circumstances of aggravation, provocation, or mitigation,” 13 Tex.Jur.3rd 248, Contempt § 50. However, where — as the majority has found here — a judge is aware that an alleged contemnor claims his quiet and peaceful behavior is protected by the First Amendment or Article I, § 6 of our Bill of Rights, the court does not “know of all the facts.” Requisites of due process and due course of law dictate a hearing be held to determine whether that claim is founded on a sincerely held religious belief, and to what extent it may excuse otherwise contemptuous behavior or mitigate against punishment. See United States v. Snider, supra, 502 F.2d at 657-658.1

¶11*155Accordingly, I would vacate the commitment orders without prejudice to respondent’s holding a proper hearing should he be advised to pursue the matter of contempt.

¶14dissenting.

¶15I first point out that this is not an active disorderly trial or courtroom case, as the majority opinion implicitly tries to make it out to be. It is instead a passive disrespectful courtroom case in which several persons refused to adhere to the ancient, traditional, ceremonial, or symbolic act of persons in a courtroom rising or standing in unison upon command of the court bailiff at the commencement of the court session. I further point out that my research reflects that dignity and decorum in a courtroom are not achieved, nor do they turn on, whether a defendant, a spectator, or a witness refuses to stand or rise or does not refuse to rise or stand in a courtroom when commanded to do so. Given the facts and circumstances of this cause, there is, very simply, insufficient reason to invoke in this cause the awesome power of direct contempt to cope with the petty form of disrespect that the applicants exhibited in the trial court. See Dorsen and Friedman, Disorder in the Courtroom: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct (Pantheon Books, 1973 edition), at page 113.

¶16Concerning the applicants’ refusal to rise or stand, I am in agreement with the approach that the Justice of the Peace in this cause took when the applicant Krupps’ criminal case, for operating a motor vehicle without liability insurance, was pending in that court. I believe, as the record reflects or indicates that the Justice of the Peace apparently believed, that this kind of problem is best handled much in the same way as you deal with young children. There are just a lot of things you don’t see. In that kind of situation, I believe that it is just better that one not see it. It is obvious to me that the applicants in this cause, for whatever reason, are seeking attention, much like a young child craves attention. Given the facts and circumstances of this cause, I, for one, would not give the applicants the attention they seek, by putting this Court’s seal of approval on their contempt convictions — let them go elsewhere, if they can, to get their attention.

¶17Those who join the majority opinion, however, do not subscribe to my kind of thinking, but trudge onward and try to give legal reasons why the applicants’ convictions for direct contempt of court must be sustained. The majority opinion totally fails to justify sustaining the contempt orders of the trial court. Therefore, I must, like Judge Campbell has done, see the dissenting opinion that he has filed in this cause, because the majority opinion presents such an inviting target, dust off my hunting license and don one of those marvelous British safari hats for the occasion, and a hunting I shall go.

¶18Because of one of the issues in this cause, Ben Milam of Texas history fame’s declaration that “Texans do not stand for any man, but only for their God” is applicable to this cause. What Henry Thoreau declared in A Week on the Concord and Merrimack Rivers, which I have carefully reworded to fit this cause, “All men are partially buried in the grave of custom, and of some we see only the crown of their heads and the robes that they wear,” may also be applicable to this cause.

¶19The record reflects that Charles Edward Krupps and six other persons were held in direct contempt of court by Hon. Donald J. Floyd, the duly elected judge of County Court at Law No. 3 of Jefferson County, only because they did not rise or stand when ordered to do so after Judge Floyd entered his courtroom on the day in question. Judge Floyd assessed punishment *156for each person at 30 days’ confinement in the Jefferson County Jail. The majority opinion affirms the orders of contempt. I respectfully dissent to such decision.

¶20In dissenting, I first point out that there is not a scintilla of evidence in the record before us that would indicate or reflect that the applicants’ act of not rising or standing was accompanied by any disorder, disturbance, or interruption of the court’s business. At no time did any of the applicants ever speak maliciously, antagonistically, or belligerently either to Judge Floyd or his bailiff, or anyone else for that matter, either inside or outside of the courtroom. Notwithstanding these facts, a majority of this Court sustains Judge Floyd’s orders of contempt. I suppose it does so on the feeble reasoning that not to uphold Judge Floyd’s orders would somehow destroy order in all of our courtrooms, which argument I find closely resembles the one that if a trial judge does not wear a robe when he is on the bench he will not get the respect and attention of those in attendance, and chaos will then reign in our courtrooms. And Judge Pete, we all know that the latter is a bunch of poppeycock, don’t we?

¶21I believe that if one will carefully give the ancient subject of rising and standing in the courtroom, which my research has yet to reveal its real source, a little thought, he will conclude, as I have done, that the ancient, traditional, ceremonial, or symbolic act of persons in a courtroom rising or standing in unison upon command of the court bailiff, or some other person who is directed by the judge to give the command, is not necessary to the carrying out of the court’s business in an orderly fashion.1

¶22The usual reasons given why persons must rise or stand after a trial judge or an appellate court judge enters his courtroom are the following: It is a way of marking the beginning of the court’s session; it probably serves to remind all that attention must be concentrated upon the business before the court; it reminds those present that the judge’s control of the courtroom must be maintained at all times with as little burden on the judge as possible; and it probably instructs all persons present that there must be silence, except as the orderly conduct of business calls for speech. See U.S. ex rel. Robson v. Malone, 412 F.2d 848, 850 (7th Cir.1969). If there was no other way than to require those in the courtroom to rise or stand in unison upon command in order to accomplish the court’s orderly conduct of its business, I might agree with the majority opinion. However, there is another and very simple way to accomplish the above objectives.

¶23If the per se act of refusing to stand or rise in a courtroom actually obstructs or tends to obstruct the proper administration of justice, constitutes disrespect for the court, or its process, interrupts the normal proceedings of the court, causes the formality and seriousness of the court’s business to be disregarded, and directly conflicts with the “imperative need of the community in having an established forum in which controversies between man and man and citizen and sovereign may be decided in a calm, detached, neutral atmosphere,” as the majority claims, I must ask the author of the majority opinion, and those who join his opinion, whether they have actually ever been in a courtroom filled with persons, where the bailiff declares in a rather loud voice, “All rise,” with the trial judge then ascending the bench, and thereafter *157the courtroom sounding much like a stampeding herd of cattle? And, after the bailiff declares in another rather loud voice, “All please sit,” the courtroom’s sound repeats itself? Having witnessed such sights many times in my legal career, in both rural and urban courtrooms, I must state that if the per se act of failing to rise or stand upon command constitutes an obstruction of the proper administration of justice, the rising or standing in unison by persons in the courtroom, upon the command of the bailiff or some other authorized person, equally constitutes an obstruction of the proper administration of justice. The majority opinion’s dog might have been a good hunting dog many years ago, but I find that today, if one carefully examines him, he will easily find that the dog has gotten too old and will no longer hunt as he once did.

¶24If one also places the majority opinion under the microscope, in order to find valid reasons that might justify its holding that the applicants are guilty of direct or criminal contempt of court, he will not find any valid reasons therein why the mere act of the applicants refusal to stand or rise “interrupted the normal proceedings of the formality and seriousness of the court’s function”; or that their mere act of not standing or rising “directly conflicted with the imperative need of the community in having an established forum in which controversies between man and man and citizen and sovereign may be decided in a calm, detached, neutral atmosphere.”

¶25The majority opinion also makes the ludicrous statement that if the rising or standing requirement that was imposed in this cause created a burden on Krupps’ religious beliefs, that burden was removed when Judge Floyd gave him the option of remaining outside the courtroom until after court convened. Would this Court hold that a state statute which authorizes a minute “for meditation or voluntary prayer” in public schools would be a valid statute provided that the statute also contained a provision that those persons who did not wish or desire to participate were given the option of leaving the classroom? Cf. Wallace v. Jaffree, — U.S. -, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). Would this Court uphold a law that made it mandatory that a person in attendance at a public school must salute the American flag if the statute also contained a provision that those persons who did not wish or desire to salute the flag were given the option of leaving? Cf. West Virginia v. Barnett, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). I do not believe that even the present United States Supreme Court would sustain these kinds of state statutes.

¶26In holding that if the rising or standing requirement created a burden on the religious beliefs and freedoms of the applicant Krupps, because he was a party litigant in court that day, the majority opinion overlooks the fact that the Constitutional right to a public trial does not mean one in which a party litigant is permitted to be present in the courtroom part of the time, but not all of the time, as the majority opinion implicitly holds; he is entitled to be present all of the time — provided he behaves himself. Cf. Allen v. Illinois, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Also see Antieau, Vol. 1, Modem Constitutional Law, Section 5:57. I emphasize the fact there is not a scintilla of evidence that the applicant Krupps ever misbehaved when he was in Judge Floyd’s courtroom.

¶27Furthermore, the record is totally absent of any evidence that any applicant made or attempted to make Judge Floyd’s courtroom a forum or circus in order to make their religious beliefs known, or to solicit converts, nor is there any evidence that any applicant ever caused any actual interruption, interference, or obstruction of the judicial process or the operation of Judge Floyd’s courtroom.

¶28Trial judges do not have the untrammeled discretion to punish every act that they might find to be personally offensive as a criminal contempt. Furthermore, summary contempt procedure is to be invoked and applied only as a last resort. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); In re Oliver, *158333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); United States v. Flynt, 756 F.2d 1352 (9th Cir.1985); In re Gustafson, 650 F.2d 1017 (9th Cir.1981); Ex parte Elmore, 161 Tex. 585, 342 S.W.2d 558 (Tex.Sup.Ct.1961).

¶29The use of the summary contempt power by a trial judge must be consistent with the reasons for criminal or direct contempt, and the bare fact that an individual’s behavior might be offensive to a particular trial judge’s personal sensibilities does not necessarily render it contumacious behavior. See Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 625, 2 L.Ed.2d 589 (1958).

¶30I return to the question that Judge Campbell in the dissenting opinion that he has filed in this cause partly answers as to the applicants except Krupps, whether the applicants’ conduct in intentionally or knowingly failing or refusing to rise or stand when Judge Floyd entered his courtroom is sufficient without more to sustain a direct or criminal contempt conviction?

¶31Notwithstanding my views toward the ancient, traditional, ceremonial, or symbolic act of persons in a courtroom rising or standing in unison upon command of the court bailiff, or some other authorized person, at the commencement of the court session, before the power of summary contempt may be invoked and applied it is universally held that the conduct must interfere with and disrupt the orderly process of a court before it will constitute direct contempt.

¶32The majority opinion states that it finds the Federal Seventh Circuit Court of Appeals’ opinion of In re Chase, 468 F.2d 128 (7th Cir.1972), “persuasive.” Although a number of federal courts have determined that under the federal statutory counterpart to our contempt statute, the rising or standing requirement may be enforced with criminal contempt, they also hold that this kind of contempt power may be exercised only when the failure or refusal to rise or stand is accompanied by a disruption of the proceedings. See, for example, United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); United States v. Flynt, 756 F.2d 1352 (9th Cir.1985); In re Chase, supra;United States v. Abascal, 509 F.2d 752 (9th Cir.1975), cert. denied 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975); In re Dellinger, 461 F.2d 389 (7th Cir.1972); United States ex rel Robson v. Malone, 412 F.2d 848 (7th Cir.1969); Comstock v. United States, 419 F.2d 1128 (9th Cir.1969). Also see Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981).

¶33In finding that In re Chase, supra, is “persuasive” authority to sustain the contempt convictions of the applicants, the majority opinion overlooks the fact that the Seventh Circuit in Chase, supra, rejected out of hand the government’s argument that the failure to rise or stand in itself created a per se obstruction of judicial administration punishable by criminal contempt. In affirming the defendant’s contempt conviction, the Chase court found it significant that the deputy marshal had to assist the defendant Chase to his feet and that the trial was interrupted at least four times in order for the judge to read the contempt citations. It was these interruptions, and not the mere refusal to rise or stand, that were found to constitute an “actual, material obstruction” contemplated by the federal contempt statute. The Chase court was also careful to point out that the failure or refusal to rise or stand in the courtroom may amount to an actual and material obstruction of judicial administration if it distracts others in the courtroom or provokes a reaction on the part of others in the courtroom or is accompanied by a failure to become silent or focus attention on the business before the court. In re Chase, supra,468 F.2d at 133.

¶34In our cause, there is not any evidence that might warrant the inference that the act of the applicants not rising or standing provoked a reaction on the part of those other persons who were then in the courtroom or that the applicants were noisy or boisterous when they did not choose to rise or stand after Judge Floyd entered his courtroom on the day in question.

¶35*159Just recently, the Supreme Court of Pennsylvania, in Commonwealth v. Cameron, 501 Pa. 572, 462 A.2d 649 (Pa.Sup.Ct.1983), also see 38 A.L.R.4th 555, answered the question whether a defendant’s refusal to rise or stand, without more, is sufficient to sustain a direct contempt conviction in the negative. The Pennsylvania Supreme Court held that although the rising or standing requirement may constitute “misbehavior in the presence of the court,” it is the resulting obstruction of the proceedings that is critical to sustaining a criminal contempt citation.

¶36The annotation in 38 A.L.R.4th 563, entitled “Failure to rise in state courtroom as constituting criminal contempt,” points out that “The relatively few state cases considering the propriety of punishing any person for failing or refusing to stand in a courtroom when required to do so appear to indicate that such misconduct, standing alone, is not sufficient to justify a citation for criminal contempt, and that there must be some active disruption of court proceedings before such a penalty may be imposed.” (564). (My emphasis.) I pause to state the following: Just last week, see Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App.1986), an aggressive and assertive majority of this Court found an A.L.R. annotation “persuasive” as authority to support its holding that unobjected to hearsay has probative value in judging the sufficiency of the evidence. However, this week it does not even acknowledge that work. What’s going on here? If that work was authoritative last week, should it not also be authoritative this week? Or, is the reason the author of the majority opinion ignores it this week because what is stated therein is not to his and those judges who join his opinion’s likings?

¶37If one carefully analyzes the majority opinion, I believe that he or she will conclude, as I have done, that the bottom line in the opinion represents nothing less than the fact that the author of the majority opinion, and those members of this Court who join his opinion, believe that the applicants were discourteous to the trial judge in this cause by refusing to rise or stand after he entered his courtroom on the day in question, and that such was both an abuse of process and an obstruction of the administration of justice, and because of this they should be summarily punished for such act, which is, in the view of those who vote for the majority opinion, an act that is apparently “honored only by civilized and sensible men.” In short, they believe that without this ancient, traditional, ceremonial, or symbolic act, chaos would reign in our courtrooms. If there was no other way to mark the beginning of the court’s session; if there was no other way to remind all that attention must be concentrated upon the business before the court; if there was no other way to remind all that the judge’s control of the courtroom must be maintained with as little burden on the judge as possible; and if there was no other way to impress upon persons in the courtroom that at all times there must be silence, except as the orderly conduct of business calls for speech, I might agree with the majority opinion. However, if one subscribes to the agency theory, as the majority opinion apparently does, see the dissenting opinion filed by Judge Campbell in this cause, why cannot the above be reduced to writing and have the agent, whoever that might be, such as the bailiff, court reporter, clerk, court coordinator, probation officer, prosecuting attorney, defense attorney, or perhaps all doing it in unison, utter these admonitions loudly to those in attendance in the courtroom? If this is done, and after the trial or appellate court judge takes his bench, a member of the audience violates one or more of the admonitions, and that person is held in direct or criminal contempt of court, then the majority opinion might make a little sense. However, given the facts and circumstances of this cause, it presently makes no sense at all.

¶38Because the majority opinion erroneously holds that a person’s mere refusal to rise or stand upon command after the trial judge enters his courtroom, without more, is sufficient to sustain a direct criminal *160contempt conviction, I am compelled to respectfully dissent. I believe that opinions like this one do not cause our trial courts to gain respect from our citizenry, but, to the contrary, such opinions can actually breed disrespect for our courtrooms and our trial judges, and cause disturbances where before there were none.