Young v. U.S. ex rel. Vuitton et Fils
481 U.S. 787 (1987)
Argued January 13, 1987; Decided May 26, 1987*
* Together with No.
85-6207, Klayminc
v. United States ex rel. Vuitton et Fils S.A. et al., also on certiorari to the same court.
Footnotes omitted.
BRENNAN, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III-A, and IV, in which
REHNQUIST, C.J., and MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ.,
joined, and an opinion with respect to Part III-B, in which MARSHALL, BLACKMUN,
and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 481 U. S. 814. SCALIA, J., filed an opinion
concurring in the judgment, post, p. 481 U. S. 815. POWELL, J., filed an opinion
concurring in part and dissenting in part, in which REHNQUIST, C.J., and
O'CONNOR, J., joined,post, p. 481 U. S. 825. WHITE, J., filed a dissenting
opinion, post, p. 481 U. S. 827.
JUSTICE BRENNAN delivered the opinion of the Court with respect to
Parts I, II, III-A, and IV, and an opinion with respect to Part III-B, in which
JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join.
Petitioners in these cases were found guilty of criminal contempt
by a jury, pursuant to 18 U.S.C. § 401(3), for their [481 U. S. 790] violation of the District
Court's injunction prohibiting infringement of respondent's trademark. They
received sentences ranging from six months to five years. [Footnote 1] On
appeal to the Court of Appeals for the Second Circuit, petitioners urged that
the District Court erred in appointing respondent's attorneys, rather than a disinterested
attorney, to prosecute the contempt. The Court of Appeals affirmed, 780 F.2d
179 (1985), and we granted certiorari, 477 U.S. 903 (1986). We now reverse,
exercising our supervisory power, and hold that counsel for a party that is the
beneficiary of a court order may not be appointed to undertake contempt
prosecutions for alleged violations of that order.
I
The injunction that petitioners violated in these cases is a
result of the settlement of a lawsuit brought in December, 1978, in the District
Court for the Southern District of New York, by Louis Vuitton, S. A. a French
leather goods manufacturer, against Sol Klayminc, his
wife Sylvia, his son Barry (the Klaymincs), and their
family-owned businesses, Karen Bags, Inc., Jade Handbag Co., Inc., and Jak Handbag, Inc. Vuitton alleged in its suit that the Klaymincs were manufacturing imitation Vuitton goods for
sale and distribution. Vuitton's trademark was found valid in Vuitton
et Fils S. A. v. J. Young Enterprises, Inc., 644
F.2d 769 (CA9 1981), and Vuitton and the Klaymincs
then entered into a settlement agreement in July, 1982. Under this agreement,
the Klaymincs agreed to pay Vuitton $100,000 in
damages, and consented to the entry of a permanent injunction prohibiting them
from, inter alia,
"manufacturing, producing, distributing, circulating,
selling, offering for sale, advertising, promoting or displaying any product
bearing any simulation, reproduction, counterfeit, copy, or colorable
imitation" of [481 U. S. 791] Vuitton's
registered trademark. App. to Pet. for Cert.195-A to 196-A.
In early 1983, Vuitton and other companies concerned with possible
trademark infringement were contacted by a Florida investigation firm with a
proposal to conduct an undercover "sting" operation. The firm was
retained, and Melvin Weinberg and Gunner Askeland,
two former Federal Bureau of Investigation agents, set out to pose as persons
who were interested in purchasing counterfeit goods. Weinberg expressed this
interest to petitioner Nathan Helfand, who then
discussed with Klayminc and his wife the possibility
that Weinberg and Askeland might invest in a Haitian
factory devoted to the manufacture of counterfeit Vuitton and Gucci goods. Klayminc signed documents that described the nature of the
factory operation and that provided an estimate of the cost of the
counterfeited goods. In addition, Klayminc delivered
some sample counterfeit Vuitton bags to Helfand for
Weinberg and Askeland's inspection.
Four days after Helfand met with Klayminc, on March 31, 1983, Vuitton attorney J. Joseph Bainton requested that the District Court appoint him and
his colleague Robert P. Devlin as special counsel to prosecute a criminal
contempt action for violation of the injunction against infringing Vuitton's
trademark. App. 18. Bainton's affidavit in support of
this request recounted the developments with Helfand
and Klayminc and pointed out that he and Devlin
previously had been appointed by the court to prosecute Sol Klayminc
for contempt of an earlier preliminary injunction in the Vuitton lawsuit. Bainton also indicated that the next step of the
"sting" was to be a meeting among Sol and Barry Klayminc,
Weinberg, and Askeland, at which Sol was to deliver
25 counterfeit Vuitton handbags. Bainton sought
permission to conduct and videotape this meeting, and to continue to engage in
undercover investigative activity.
The court responded to Bainton on the
day of this request. It found probable cause to believe that petitioners were
engaged [481 U.
S. 792] in conduct contumacious of
the court's injunctive order, and appointed Bainton
and Devlin to represent the United States in the investigation and prosecution
of such activity, as proposed in Bainton's
affidavit. Id. at 27. A week after Bainton's
appointment, on April 6, the court suggested that Bainton
inform the United States Attorney's Office of his appointment and the impending
investigation. Bainton did so, offering to make
available any tape recordings or other evidence, but the Chief of the Criminal
Division of that Office expressed no interest beyond wishing Bainton good luck.
Over the course of the next month, more than 100 audio and video
tapes were made of meetings and telephone conversations between petitioners and
investigators. On the basis of this evidence, Bainton
requested, and the District Court signed, an order on April 26 directing
petitioners to show cause why they and other parties should not be cited for
contempt for either violating or aiding and abetting the violation of the
court's July, 1982, permanent injunction. App. to Pet. for Cert. 205-A.
Petitioners' pretrial motions opposing the order to show cause and the
appointment of Bainton and Devlin as special
prosecutors were denied, United States ex rel. Vuitton et Fils S. A. v. Karen Bags, Inc., 592 F.Supp. 734 (SDNY 1984), and two of the defendants
subsequently entered guilty pleas. Sol Klayminc
ultimately was convicted, following a jury trial, of criminal contempt under 18
U.S.C. § 401(3), and the other petitioners were convicted of aiding and
abetting that contempt. The trial court denied their post-trial motions. United
States ex rel. Vuitton et Fils S. A. v. Karen Bags,
Inc., 602 F.Supp. 1052 (SDNY 1985).
[481 U. S. 793] On appeal
to the Court of Appeals for the Second Circuit, petitioners argued, inter
alia, that the appointment of Bainton and
Devlin as special prosecutors violated their right to be prosecuted only by an
impartial prosecutor. The court rejected their contention, 780 F.2d 179 (1985),
citing its decision in Musidor, B. V.
v. Great American Screen, 658 F.2d 60 (1981), cert. denied, 455
U.S. 944 (1982). It suggested that an interested attorney will often be the
only source of information about contempts occurring
outside the court's presence, 780 F.2d at 183, and stated that the supervision
of contempt prosecutions by the judge is generally sufficient to prevent the
"danger that the special prosecutor will use the threat of prosecution as
a bargaining chip in civil negotiations. . . ." Id. at
184. Furthermore, the court stated that the authority to prosecute encompasses
the authority to engage in necessary investigative activity such as the
"sting" conducted in this case. Id. at 184-185. The
Court of Appeals therefore affirmed petitioners' contempt convictions.
II
A
Petitioners first contend that the District Court lacked authority
to appoint any private attorney to prosecute the contempt action against them,
and that, as a result, only the United States Attorney's Office could have
permissibly brought such a prosecution. We disagree. While it is true that
Federal Rule of Criminal Procedure 42(b) does not provide authorization for the
appointment of a private attorney, it is long settled that courts possess
inherent authority to initiate contempt proceedings for disobedience to their
orders, authority which necessarily encompasses the ability to appoint a
private attorney to prosecute the contempt.
[481 U. S. 794] By its
terms, Rule 42(b) speaks only to the procedure for providing notice of
criminal contempt. The court is required to "state the essential facts
constituting the criminal contempt charged and describe it as such." This
notice must be given by the judge in open court,
"or, on application of the United States attorney or of an
attorney appointed by the court for that purpose, by an order to show cause or
an order of arrest."
The Rule's reference to the appointment of a private attorney to
submit a show cause order assumes a preexisting
practiceof
private prosecution of contempts, but does not itself
purport to serve as authorization for that practice. Rule 42(b) simply requires
that, when a private prosecutor is appointed, sufficient notice must be
provided that the contempt proceeding is criminal in nature.
[481 U. S. 795] The
Rule's assumption that private attorneys may be used to prosecute contempt
actions reflects the longstanding acknowledgment that the initiation of
contempt proceedings to punish disobedience to court orders is a part of the
judicial function. As this Court declared in Michaelson v. United
States ex rel. Chicago, St. P., M., & O. R. Co., 266 U. S. 42(1924):
"That the power to punish for contempts
is inherent in all courts, has been many times decided and may be regarded as
settled law. It is essential to the administration of justice. The courts of
the United States, when called into existence and vested with jurisdiction over
any subject, at once became possessed of the power."
Id. at 266 U. S. 65-66.
[481 U. S. 796] The
ability to punish disobedience to judicial orders is regarded as essential to
ensuring that the Judiciary has a means to vindicate its own authority without complete
dependence on other Branches.
"If a party can make himself a judge of the validity of
orders which have been issued, and by his own act of disobedience set them
aside, then are the courts impotent, and what the Constitution now fittingly
calls 'the judicial power of the United States' would be a mere mockery." Gompers
v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 450 (1911).
As a result, "there could be no more important duty than to
render such a decree as would serve to vindicate the jurisdiction and authority
of courts to enforce orders and to punish acts of disobedience." Ibid. Courts
cannot be at the mercy of another Branch in deciding whether such proceedings
should be initiated. The ability to appoint a private attorney to prosecute a
contempt action satisfies the need for an independent means of self-protection,
without which courts would be "mere boards of arbitration whose judgments
and decrees would be only advisory." Ibid. 8 [481 U. S. 797]
B
Petitioners contend that the ability of courts to initiate
contempt prosecutions is limited to the summary punishment of in-court contempts that interfere with the judicial process. They
argue that out-of-court contempts, which require
prosecution by a party other than the court, are essentially conventional
crimes, prosecution of which may be initiated only by the Executive Branch.
[481 U. S. 798] The
underlying concern that gave rise to the contempt power was not, however,
merely the disruption of court proceedings. Rather, it was disobedience to the
orders of the Judiciary, regardless of whether such disobedience interfered
with the conduct of trial. See Bessette v. W.
B. Conkey Co., 194 U. S. 324, 194 U. S. 333 (1904) (contempt power
"has been uniformly held to be necessary to the protection of the court
from insults and oppressions while in the ordinary course of its duties, and to
enable it to enforce its judgments and orders necessary to the due
administration of law and the protection of the rights of suitors")
(emphasis added); Ex parte Robinson, 19 Wall.
505, 86 U. S. 510 (1874) (existence of
contempt power "essential to the preservation of order in judicial
proceedings, and to the enforcement of the judgments, orders,
and writs of the courts, and consequently to the due administration of
justice") (emphasis added); Anderson v. Dunn, 6 Wheat. 204, 19 U. S. 227 (1821) (courts by their creation
vested with power "to impose silence, respect, and decorum in their
presence, and submission to their lawful mandates")
(emphasis added).
The
distinction between in-court and out-of-court contempts
has been drawn not to define when a court has or has not the authority to
initiate prosecution for contempt, but for the purpose of prescribing what
procedures must attend the exercise of that authority. . . .
* * *
Petitioners' assertion that the District Court lacked authority to
appoint a private attorney to prosecute the contempt action in these cases is
thus without merit. While contempt proceedings are sufficiently criminal in
nature to warrant the imposition of many procedural protections, their
fundamental purpose is to preserve respect for the judicial system itself. As a
result, courts have long had, and must [481 U. S. 801] continue to have, the
authority to appoint private attorneys to initiate such proceedings when the
need arises.
While a court has the authority to initiate a prosecution for criminal
contempt, its exercise of that authority must be restrained by the principle
that "only [t]he least possible power adequate to the end
proposed' should be used in
contempt cases." United States v. Wilson, 421 U. S. 309, 421 U. S. 319 (1975) (quoting Anderson v. Dunn, 6
Wheat. at 231). We have suggested, for instance, that, when confronted with a
witness who refuses to testify, a trial judge should first consider the
feasibility of prompting testimony through the imposition of civil contempt,
utilizing criminal sanctions only if the civil remedy is deemed inadequate. Shillitani v. United States, 384 U. S. 364, 384 U. S. 371, n. 9 (1966).
* * *
In this case, the District Court did not first refer the case to
the United States Attorney's Office before the appointment of Bainton and Devlin as special prosecutors. We need not
address the ramifications of that failure, however. Even if a referral had been
made, we hold, in the exercise of our supervisory power, that the court erred
in appointing as prosecutors counsel for an interested
party in the underlying civil litigation.
* *
*
III
A
In Berger v. United States, 295 U.S. 78,
88 (1935), this Court declared: [481 U.S. 787,
803]
"The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt
shall not escape nor innocence suffer."
This distinctive role of the prosecutor is expressed in Ethical
Consideration (EC) 7-13 of Canon 7 of the American Bar Association (ABA) Model
Code of Professional Responsibility (1982): "The responsibility of a
public prosecutor differs from that of the usual advocate; his duty is to seek
justice, not merely to convict."
Because of this unique responsibility, federal prosecutors are
prohibited from representing the Government in any matter in which they, their
family, or their business associates have any interest. 18 U.S.C.
208(a). Furthermore, the Justice Department has applied to its attorneys
the ABA Model Code of Professional Responsibility, 28 CFR [481
U.S. 787, 804] 45.735-1(b) (1986). which contains numerous
provisions relating to conflicts of interest. The concern that
representation of other clients may compromise the prosecutor's pursuit of the
Government's interest rests on recognition that a prosecutor would owe an
ethical duty to those other clients. "Indeed, it is the highest claim on
the most noble advocate which causes the problem - fidelity, unquestioned,
continuing fidelity to the client." Brotherhood
of Locomotive Firemen & Enginemen v. United States, 411 F.2d. 312, 319
(CA5 1969).
Private attorneys appointed to prosecute a criminal contempt
action represent the United States, not the party that is the beneficiary of
the court order allegedly violated. As we said in Gompers, criminal contempt proceedings arising out of civil
litigation "are between the public and the defendant, and are not a part
of the original cause." 221 U.S.,
at 445 . The prosecutor is appointed solely to pursue the public
interest in vindication of the court's authority. A private attorney appointed
to prosecute a criminal contempt therefore certainly should be as disinterested
as a public prosecutor who undertakes such a prosecution. [481
U.S. 787, 805]
* * *
The requirement of a disinterested prosecutor is consistent with
our recognition that prosecutors may not necessarily be held to as stringent a
standard of disinterest as judges. "In an adversary system, [prosecutors]
are necessarily permitted to be zealous in their enforcement of the law," Marshall v. Jerrico,
Inc., 446 U.S.
238, 248 (1980). We have thus declined to find a conflict of interest
in situations where the potential for conflict on the part of a judge might
have been intolerable. See id., at 250-252 (fact that sums collected as civil
penalties returned to agency to defray administrative costs presented too
remote a potential for conflict in agency enforcement efforts). Ordinarily we
can only speculate whether other interests are likely to influence an
enforcement officer, and it is this speculation that is informed by
appreciation of the prosecutor's role. In a case where a prosecutor represents
an interested party, however, the ethics of the legal profession require that
an interest other than the Government's be taken into account. Given this
inherent conflict in roles, there is no need to speculate whether the
prosecutor will be subject to extraneous influence. [481 U.S.
787, 808]
As we said in Bloom,
"In modern times, procedures in criminal contempt cases have come to
mirror those used in ordinary criminal cases." 391 U.S.,
at 207 . The requirement of a disinterested prosecutor is consistent
with that trend, since "[a] scheme injecting a personal interest,
financial or otherwise, into the enforcement process may bring irrelevant or
impermissible factors into the prosecutorial decision."
The use of this Court's
supervisory authority has played a prominent role in ensuring that contempt
proceedings are conducted in a manner consistent with basic notions of
fairness. See, e. g., Cheff, 384 U.S.,
at 380 (requiring jury trial for imposition of contempt sentences
greater than six months); Yates v. United
States,356 U.S.
363, 366 -367 (1958) (reducing contempt sentence in light of
miscalculation [481 U.S. 787, 809] of
number of offenses committed); Offutt v.
United States, 348 U.S. 11,
13 , 17-18 (1954) (contempt conviction reversed in case in which judge
involved in personal conflict with contemner). The
exercise of supervisory authority is especially appropriate in the
determination of the procedures to be employed by courts to enforce their
orders, a subject that directly concerns the functioning of the Judiciary. We
rely today on that authority to hold that counsel for a party that is the
beneficiary of a court order may not be appointed as prosecutor in a contempt
action alleging a violation of that order.
* * *
Reversed.
[Footnote 8]
JUSTICE SCALIA's concurrence suggests that our precedents regarding a court's inherent
contempt authority have lost their force because of our decision in Bloom v. Illinois, 391 U. S. 194 (1968). Post at 481 U. S. 823-824. The argument is
that, since Bloom rejected the holding in In re Debs, 158 U. S. 564 (1895), that courts have inherent
power summarily to punish serious contempts, and
since the cases between Bloom and Debs assumed the existence of this summary
power, these precedents cannot provide guidance for a court's authority with respect
to contempt of court. These precedents, however, both acknowledge the inherent
power of a court to institute contempt proceedings, and assume that, in such
proceedings, the court may summarily determine guilt with respect to serious
criminal contempts. Bloom held that the second assumption was
incorrect, but did nothing to undermine the first. Bloom's rejection of arguments regarding the
need to vindicate judicial authority relates solely to exercise of the summary
contempt power. See 391 U.S. at 311 U. S. 208 ("[W]hen serious punishment for
contempt is contemplated, rejecting a demand for jury trial cannot be squared
with . . . the desirability of vindicating the authority of the court"); ibid. ("We place little credence in the
notion that the independence of the judiciary hangs on the power to try contempts summarily"). That case therefore cannot
justify ignoring our consistent pronouncements on the inherent authority of a
court to institute contempt proceedings.
Nor is
it the case that, "as a practical matter, the impairment of judicial power
produced by requiring the Executive to prosecute contempts
is no more substantial than the impairment produced by requiring a jury." Post at 481 U. S. 824.
The
concern about impairment of a court's authority is based on the fear that an
alleged contemnor will consider himself or herself beyond the reach of the law.
As we said in Gompers, supra:
"If
a party can make himself a judge of the validity of orders which have been
issued, and by his own act of disobedience set them aside, then are the courts
impotent, and what the Constitution now fittingly calls the 'judicial power of
the United States' would be a mere mocker."
221 U.S.
at 221 U. S. 450. The need to vindicate a
court's authority is thus satisfied by ensuring that an alleged contemner will have to account for his or her behavior in a
legal proceeding, regardless of whether the party is ultimately convicted or
acquitted. A Court's ability to institute a contempt proceeding is therefore
essential to the
[Footnote 10] JUSTICE SCALIA's concurrence suggests that the logic of resting a court's ability to institute a contempt proceeding on the need to vindicate the court's authority would support "an inherent power on the part of Congress to prosecute and punish disobedience of its laws." Post at 481 U. S. 821. A court's authority is inherently limited, however, by the nature of the judicial power, for the court has jurisdiction in a contempt proceeding only over those particular persons whose legal obligations result from their earlier participation in proceedings before the court. By contrast, the congressional prosecutorial power the concurrence hypothesizes would admit of no such limit; the parties potentially subject to such power would include the entire population. Acknowledging the limited authority of courts to appoint contempt prosecutors thus provides no principle that can be wielded to eradicate fundamental separation of powers boundaries.
[Footnote 12] Bainton did send
the following letter to the United States Attorney's Office one week after his
appointment as special prosecutor:
"Dear
Mr. Pedowitz:"
"At
the suggestion of Judge Brieant, I am bringing to
your attention an order signed by Judge Lasker in
Judge Brieant's absence in the above-entitled
criminal contempt proceedings, together with an affidavit of mine submitted in
support of that order."
"The
criminally contumacious events predicted in my affidavit have come to pass.
Should anyone from your office have any interest in this matter, I am obviously
willing to make the tape recordings and other evidence available for your
review in a manner which will not compromise its chain of custody."
"Very
truly yours,"
"J.
Joseph Bainton"
* * *
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court that the District Court's appointment of J.
Joseph Bainton and Robert P. Devlin as special
counsel to prosecute petitioners for contempt of an injunction earlier issued
by that court was invalid, and that that action requires reversal of
petitioners' convictions. In my view, however, those appointments were
defective because of a failing more fundamental than that relied upon by the
Court. Prosecution of individuals who disregard court orders (except orders
necessary to protect the courts' ability to function) is not an exercise of
"[t]he judicial power of the United States," U.S.Const.,
Art. III, §§ 1, 2. Since that is the only grant of power that has been advanced
as authorizing these appointments, they were void. And since we cannot know
whether petitioners would have been prosecuted had the matter been referred to
a proper prosecuting authority, the convictions are likewise void.
I
With the possible exception of the power to appoint inferior
federal officers, which is irrelevant to the present cases, [Footnote 2/1] [481 U. S. 816] the only
power the Constitution permits to be vested in federal courts is "[t]he
judicial power of the United States." Art. III, § 1. That is accordingly
the only kind of power that federal judges may exercise by virtue of their
Article III commissions.Muskrat v. United
States, 219 U. S. 346, 219 U. S. 354-356,
(1911); United States v.
Ferreira, 13 How. 40 (1852).
The judicial power is the power to decide, in accordance with law,
who should prevail in a case or controversy. See Art. III, §
2. That includes the power to serve as a neutral adjudicator in a criminal
case, but does not include the power to seek out law violators in order to
punish them -- which would be quite incompatible with the task of neutral
adjudication. It is accordingly well established that the judicial power does
not generally include the power to prosecute crimes. See United States
v. Cox, 342 F.2d 167 (CA5) (en banc), cert.
denied, 381 U.S. 935 (1965), and authorities cited therein; 342 F.2d
at 182 (Brown, J., concurring); id. at 185 (Wisdom, J.,
concurring); see generally United States v. Thompson, 251 U. S. 407, 251 U. S. 413-417
(1920). Rather, since the prosecution of law violators is part of the
implementation of the laws, it is -- at least to the extent that it is publicly
exercised [Footnote 2/2] -- executive power, vested by the Constitution in the [481 U. S. 817] President. Art. II, § 2,
cl. 1. See Heckler v. Cheney, 470 U. S. 821, 470 U. S. 832 (1985); Buckley
v. Valeo, 424 U. S. 1, 424 U. S. 138 (1976).
* * *
Even as a purely analytic proposition, the Court's thesis is
faulty, because it proves too much. If the courts must be able to investigate
and prosecute contempt of their judgments, why must they not also be able to
arrest and punish those whom they have adjudicated to be in contempt? Surely
the Ex ecutive's refusal to enforce a judgment of
contempt would impair the efficacy of the court's acts at least as much as its
failure to investigate and prosecute a contempt. Yet no one has ever supposed
that the Judiciary has an inherent power to arrest and incarcerate. [481 U. S. 819]
II
The Court appeals to a "longstanding acknowledgment that the
initiation of contempt proceedings to punish disobedience to court orders is a
part of the judicial function."
Ante at 481 U. S. 795.
Except, however, for a line of cases beginning in 1895 with In re Debs, 158 U. S. 564,
whose holding and rationale we have since repudiated, no holding of this Court
has ever found inherent judicial power to punish those violating court
judgments with contempt, much less to appoint officers to prosecute such contempts. Our first reference to the special status of the
federal courts' contempt powers appeared in United States v.
Hudson, 7 Cranch 32 (1812), where the question presented
was whether circuit courts had the power to decide common law criminal cases.
Congress had not conferred such power, but the prosecution argued that it was
part of the National Government's inherent power to preserve its own
existence. Id. at 11 U. S. 33-34.
The Court ruled that such an argument could establish, at most, that Congress
had inherent power to pass criminal laws, not that the federal courts had
inherent power without legislation to adjudge common law crimes. At the end of
its discussion, the Court noted:
"Certain implied powers must necessarily result to our Courts
of justice from the nature of their institution. But jurisdiction of crimes
against the state is not among those powers. To fine for contempt -- imprison
for contumacy -- inforce the observance of order, &c. are powers which cannot
be dispensed with in a Court, because they are necessary to the exercise of all
others: and so far our Courts no doubt possess powers not immediately derived
from statute; but all exercise of criminal jurisdiction in common law cases we
are of opinion is not within their implied powers."
Id. at 11 U. S. 34.
Thus, the holding of Hudson was against the existence of broad
inherent powers in the federal courts. Its discussion [481 U. S. 820] recognized as inherent only
those powers "necessary to the exercise of all others," that is,
necessary to permit the courts to function, among which it included the
contempt power when used to prevent interference with the conduct of judicial business.
It made no mention of the enforcement of judgments, much less of an
investigative or prosecutory authority.
Nine years later, in Anderson v.
Dunn, 6 Wheat. 204, 19 U. S. 227 (1821),
the Court reiterated its view that the contempt power was an inherent component
of the judicial power. That case presented an issue more closely related to the
questions of the source and scope of the federal courts' contempt power,
although still not directly on point: whether the House of Representatives
could direct its Sergeant at Arms to seek out a person who had disrupted its
proceedings, bring him before the House to be tried for contempt, and hold him
in custody until completion of the proceedings. The Court noted that
"there is no power given by the constitution to either House to punish for
contempts, except when committed by their own
members," id. at 19 U. S. 225,
and that "if this power . . . is to be asserted on the plea of necessity,
the ground is too broad, and the result too indefinite; . . . the executive, and
every coordinate, and even subordinate, branch of government, may resort to the
same justification, and the whole assume to themselves, in the exercise of this
power, the most tyrannical licentiousness."
Id. at 19 U. S. 228.
Nevertheless, the Court upheld the House's action, concluding that any other
course "leads to the total annihilation of the power of the House of
Representatives to guard itself from contempts, and
leaves it exposed to every indignity and interruption that rudeness, caprice,
or even conspiracy may meditate against it." Ibid.
It was in the course of recognizing this limited power of
self-defense in the House that the Court pronounced the dictum cited in today's
opinion that "[c]ourts of justice are
universally [481 U. S. 821] acknowledged
to be vested, by their very creation, with power to impose silence, respect,
and decorum, in their presence, and submission to their lawful mandates, and,
as a corollary to this proposition, to preserve themselves and their officers
from the approach and insults of pollution." Id. at 19 U. S. 227.
[Footnote 2/1] Article II, § 2, cl. 2, provides that "Congress
may by Law vest the Appointment of such inferior Officers, as
they think proper, . . . in the Courts of Law." (Emphasis added.) There
was some suggestion in the Solicitor General's brief that the appointments in
the present cases might be authorized by that provision. Brief for United
States as Amicus Curiae 17-19, and n. 14. The contention was
abandoned at argument, however, Tr. of Oral Arg. 26-28, and properly so, since
regardless of whether Congress could "by
law" authorize judicial appointment of an officer of this sort -- a
question we need not decide here -- it has in fact not done so. The closest
thing to a law cited by the Government was Federal Rule of Criminal Procedure
42(b), which, as the Court notes, ante at 481 U. S. 794-796,
and n. 6, does not purport to bestow appointment, power but rather assumes its
preexistence. In any event, the Rule could not confer Article II appointment
authority, since it is a Rule of court, rather than an enactment of
Congress. See 18 U.S.C. § 3772 (1982 ed. and Supp. III).
[Footnote 2/2] In order to resolve the present cases, it is only necessary
to decide that the power to prosecute is not part of the "judicial
power" conferred on Article III courts. It is not necessary to decide
whether the Constitution's vesting of the executive power in the President,
Art. II, § 1, cl. 1, forbids Congress from conferring prosecutory
authority on private persons. At the time of the Constitution, there existed in
England a longstanding custom of private prosecution, see Comment,
The Outmoded Concept of Private Prosecution, 25 Am.U.L.Rev.
754, 758 (1976). I am unaware, however, of any private prosecution of federal
crimes. The Judiciary Act of 1789 provided for the appointment in each judicial
district of
"a
meet person learned in the law to act as attorney for the United States . . .
whose duty it shall be to prosecute in such district all delinquents for crimes
and offences, cognizable under the authority of the United States."
§ 35, 1
Stat. 92; see generally Comment, 25 Am.U.L.Rev., supra, at
762-764.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR
join, concurring in part and dissenting in part.
In this case, the District Court appointed counsel for a party in
a civil suit as a prosecutor in a related criminal contempt proceeding. The
Court of Appeals for the Second Circuit found that the District Court did not
abuse its discretion in making such an appointment. The Court today reaches a
contrary conclusion. I agree that the District Court abused [481 U. S. 826] its discretion in this
case, and that, as a general matter, courts should not appoint interested
private lawyers to prosecute charges of criminal contempt. But while I agree
with the underlying rationale of the Court's opinion, I do not believe that
this Court's precedents call for per se reversal. I therefore
cannot join the Court's judgment.
* * *
While the potential for prosecutorial impropriety may justify the
conclusion that such appointments are inappropriate, it does not justify
invalidation of the conviction and sentence in this case. Even where
constitutional errors are found to have occurred, this Court has found harmless
error analysis to be appropriate. Chapman v. California, 386 U. S. 18 (1967).
As the Court recently noted:
"[I]f the defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any other errors that may have
occurred are subject to harmless error analysis." Rose v. Clark, 478 U. S. 570, 478 U. S. 579 (1986).
Here, the error is not of constitutional dimension. Moreover, the
defendants had counsel and were convicted of criminal [481 U. S. 827] contempt by an impartial
jury. The Court of Appeals found "[no] reason to believe" that the
private prosecutor in this case acted unethically. 780 F.2d 179, 185 (CA2
1985). The court also found the evidence offered at trial "ample" to
support the convictions. Ibid. These findings strongly imply
that the error of appointing the private counsel in this case to prosecute the
contempt proceeding was harmless.
Although this Court has the authority to review a record to
evaluate a harmless error claim, United States v. Hasting, 461 U. S. 499, 461 U. S. 510 (1983),
I share the Court's concern that the effect of conflicting interests on the
integrity of prosecutorial decisions may be subtle. Accordingly, I would remand
these cases to the Court of Appeals -- in light of our decision today -- to
determine whether the error of appointing the private attorney to prosecute the
contempt proceeding at issue was harmless.
JUSTICE WHITE, dissenting.
I agree with the Court that, as a general rule, contempt cases
such as this should in the first instance be referred to the United States
Attorney, and that a district court's well-established authority to appoint
private counsel to prosecute should be exercised only after that official
declines to prosecute. I would also prefer that district courts not appoint the
attorney for an interested party to prosecute a contempt case such as this. But
as I understand Rule 42, it was intended to embrace the prior practice and to
authorize, but not to require, the appointment of attorneys for interested
parties. I would leave amendment of the Rule to the rulemaking process. I agree
with the Court of Appeals that there was no error, constitutional or otherwise,
in the appointments made in this action, and that petitioners were not denied
due process of law by being tried and convicted of contempt. Because I discern
no ground for concluding that petitioners did not receive a fair trial, I would
affirm the Court of Appeals.