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In re Eskay.

September 3, 1941

IN RE ESKAY.


Appeal from the District Court of the United States for District of New Jersey; Thomas Glynn Walker, Judge.

Author: Clark

Before CLARK, JONES, and GOODRICH, Circuit Judges.

CLARK, Circuit Judge.

Fifteen years ago the writer of this opinion, speaking then for this Court by assignment,*fn1 expressed our concern at the revelations of a record from New Jersey.*fn2 That record portrayed a condition in the aministration of bankruptcy in that District of somewhat the unfortunate character afterwards so graphically described in the Donovan Report.*fn3 It is therefore discouraging to have the record in the case at bar disclose very little, if any, improvement in that same field, a branch of the administration of justice all too prone to abuse.*fn4 The appellant is a former employee of a bankrupt shirt*fn5 corporation. He was called for examination under Section 21, sub. a.*fn6 He was examined on four different days.*fn7 Thereafter and as a result thereof the referee in bankruptcy filed a certificate,*fn8 the pertinent part of which reads:

"I do hereby find and certify to the Judges that the said witness repeatedly and continually made answers to pertinent questions put to him which desplayed a perfectly transparent case of intentional iand willful evasion and refusal to made any explanation of the facts connected with said bankruptcy under the pretense of defective memory, and a manifest and deliberate determination to conceal all material facts within his knowledge; that during his examination he repeatedly and continually testified (as the reading of his testimony will show) in ia vague, unsatisfactory, ambiguous, and contradictory manner, with the intention of obstructing the administration of justice and preventing the collection and distribution of the bankrupt's property and the discovery of the whereabouts of the same; that when he was asked regarding transactions directly within his knowledge, and facts which he must have known, he expressed ignorance or lack of recollection. * * * "

"I do hereby find and certify to the Judges that the witness' conduct shows beyond any doubt whatever that he is refusing to tel what he knows." Referee's Certificate, Appendix, pp. 5, 6.

In response to this Certificate, a judge of the District Court signed an order to show cause why the witness-appellant "should not be adjudged guilty of contempt."*fn9 One week later, the same learned District Judge signed another order, which as we intend to refer to it later, we set forth in full in a footnote.*fn10 The firm of attorneys designated therein represented the receiver and now represents the trustee, later appointed. Beginning on June 28, 1938, the learned District Judge signed thirty-three separate orders continuing the contempt proceedings, the last one entered February 26, 1940. On April 15, 1940, the respondent-appellant filed an answer. One year later another District Judge wrote an opinion,*fn11 entered an order,*fn12 and filed findings of fact and conclusions of law.*fn13 Pertinent parts of the order read:

" * * * A summary hearing having thereafter been held before this Court at which the said Henry H. Eskay appeared in person and by attorney and the facts and law were argued, this Court now finds that the said Henry h. Eskay, after taking the eath, refused to be examined according to law in the matter of Winton Shirt Corporation, a corporation, bankrupt, and, therefore, it is, on this 9th day of April, 1941. "Ordered, that the said Henry H. Eskay shall appear before this Court, in the Federal Building, Federal Square, Newark, New Jersey, on Tuesday, the 15th day of April, 1941, at 10:00 o'clodk in the forenoon or as soon the thereafter as the court can attend thereto, at which time sentence will be imposed upon him." Order Adjudging Appellant in Contempt of Court, Appendix, p. 87.

Before any sentence was imposed and on April 22, 1941, notice of this appeal was filed and on the same day a supersedeas order and bond were entered.

The record discloses no reason for the failure to sentence. One can perhaps hazard the guess that it was because of a misunderatanding of the law. We quite agree with the learned District Judge that the contempt is a criminal one. We cannot pretend satisfaction with the state of the authorities re the distinction between criminal and civil contempt. That distinction is important because it may determine the contemnor's liability to removal for trial,*fn14 his right to a pardon by the chief executive,*fn15 the type of penalty imposed,*fn16 the avilability of certain defenses,*fn17 the applicable Statute of Limitations,*fn18 and, as here, the method of review.*fn19 Where the contempt has not been committed in the ipresence of the court and evidence must be taken to establish the contempt, the court's summary powers have been curtailed to the extent that the accused must be presumed to be innocent,*fn20 need not testify against himself*fn21 and must be found guilty beyond a reasonable doubt.*fn22

A former professor in the Yale Law School has poured cold water on the whole idea, saying:

"Few legal distinctions are emptier than that - except of procedural technicality. * * *

"Courts punish for contempt sparingly. Their main use of the power is an in terrorem use- preventive, not punitive; and on the rare occasions when something that lookds like a moderate punishment is ummarily imposed, the remedial or preventive aspect usually outweighs the punitive. And in the still rarer instances of clearly punitive summary sentences for serious contempts, the qualms of distinterested observers are strong evidence of the occurrence of an abnormality approaching enormity." Nelles, The Summary Power to Punish for Contempt, 31 Columbia Law Review 956, 960, 963.

And the Supreme Court of Massachusetts has described the distinction as resting "in shadow."*fn23 So courts have determined the nature of contempt proceedings by resort to various formalities such as the method of intiating prosecutions,*fn24 the title of the proceedings,*fn25 the nature of the relief sought,*fn26 the fact that the contemnor has or has not testified,*fn27 the person who ...


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