Fisher v. Pace/Opinion of the Court
While participating as counsel in the trial of a cause the petitioner, Joe J. Fisher, was adjudged guilty of contempt committed in the presence of the court by the District Court of Jasper County, Texas. The petitioner's client was the plaintiff in an action under the state Workmen's Compensation Law. Vernon's Ann.Civ.St.Tex. art. 8306 et seq. The case was being tried before a jury and the parties had stipulated as to the average weekly wage of the claimant and the rate of compensation per week. The only remaining questions to be determined were as to the extent and duration of the incapacity resulting from an injury to the claimant's foot. Seven special issues, designed to furnish an answer to these problems and limited to them, were submitted to the jury.
Thereafter petitioner began his opening argument to the jury during which the following occurrence took place, as shown by the trial court's order of contempt and commitment:
'Opening Argument to Jury of Plaintiff's Attorney, Joe J. Fisher
'Now, bear in mind, gentlemen, that this is what we call a specific injury. A general injury is an injury to the entire body. This is what is known as a specific injury, and it is confined to the left foot. We have specific injuries where you have injuries to the eye, to your hand, and to your foot; this is an injury to the foot, to the left foot; and the law states the amount of maximum compensation which a person can receive for such an injury, that is, one hundred and twenty-five weeks. That is the most compensation Anderson Godfrey could receive, would be one hundred and twenty-five weeks, because his injury is confined to his left foot. That is all we are asking. Now, that means one hundred and twenty-five weeks times the average weekly compensation rate.
'By Mr. Cox: Your Honor please-
'By the Court: Wait a minute.
'By Mr. Cox: The jury is not concerned with the computation; it has only one series of issues. That is not before the jury.
'By the Court: That has all been agreed upon.
'By Mr. Fisher: I think it is material, Your Honor, to tell the jury what the average weekly compensation is of this claimant so they can tell where he is.
'By the Court: They are not interested in dollars and cents.
'By Mr. Fisher: They are interested to this extent-
'By the Court: Don't argue with me. Go ahead. I will give you your exception to it.
'By Mr. Fisher: Note our exception.
'By the Court: All right.
'(By Mr. Fisher:) This negro, as I stated, can onl recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.
'By Mr. Cox: I am objecting to that discussion, Your Honor, as to what the plaintiff can recover.
'By the Court: Gentlemen! Mr. Fisher, you know the rule, and I have sustained his objection.
'By Mr. Fisher: I am asking-
'By the Court: Don't argue with me. Gentlemen, don't give any consideration to the statement of Mr. Fisher.
'By Mr. Fisher: Note our exception. I think I have a right to explain whether it is a specific injury or general injury.
'By the Court: I will declare a mistrial if you mess with me two minutes and a half, and fine you besides.
'By Mr. Fisher: That is all right. We take exception to the conduct of the Court.
'By the Court: That is all right; I will fine you $25.00.
'By Mr. Fisher: If that will give you any satisfaction.
'By the Court: That is $50.00; that is $25.00 more. Mr. Sheriff come get it. Pay the clerk $50.00.
'By Mr. Fisher: You mean for trying to represent my client?
'By the Court: No, sir; for contempt of Court. Don't argue with me.
'By Mr. Fisher: I am making no effort to commit contempt, but merely trying to represent the plaintiff and stating in the argument-
'By the Court: Don't tell me. Mr. Sheriff, take him out of the courtroom. Go on out of the courtroom. I fine you three days in jail.
'By Mr. Fisher: If that will give you any satisfaction; you know you have all the advantage by you being on the bench.
'By the Court: That will be a hundred dollar fine and three days in jail. Take him out.
'By Mr. Fisher: I demand a right to state my position before the audience.
'By the Court: Don't let him stand there. Take him out.'
The sheriff held the petitioner in custody upon the verbal order of the court until an amended order in conformity with Texas law,  setting forth in full the above proceedings together with a formal commitment, was filed later the same day. Upon his application for a writ of habeas corpus from the Supreme Court of Texas to secure his release from the commitment, the judgment for contempt was upheld and the petitioner was denied any relief by that court and was remanded to the custody of the sheriff to undergo the punishment adjudged by the trial court. Ex parte Fisher, Tex.Sup., 206 S.W.2d 1000. As the application alleged a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States, we granted certiorari to consider its application to this conviction for contempt. 334 U.S. 827, 68 S.Ct. 1339. The claimed denial of due process consists of an alleged refusal to review the facts to ascertain whether a contempt was committed and in the alternative, if the facts were reviewed, due process was denied because no facts constituting contempt appear.
Historically and rationally the inherent power of courts to punish contempts in the face of the court without further proof of facts and without aid of jury is not open to question.  This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute. Such summary conviction and punishment accords due process of law. 
There must be adequate facts to support an order for contempt in the face of the court. Contrary to the contention of the petitioner the state Supreme Court evaluated the facts to decide whether there was sufficient evidence to support the judgment of the trial court and held that there was. The opinion of the Texas Supreme Court (206 S.W.2d 1003), states that the court set out to review the facts 'for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court' to enter the contempt order.  In other words, the highest court of the state proposed to satisfy itself that there was substantial evidence to validate the judgment of contempt and to insure that petitioner was not 'restrained of his liberty without due process of law.' After a careful analysis of the facts as disclosed by the judgment of the trial court, the conclusion was reached that the conduct of the petitioner was clearly sufficient to support the power of the court to punish summarily the contempt committed in its presence.
The judgment of the Supreme Court of Texas must be affirmed. In a case of this type the transcript of the record cannot convey to us the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing, and attitude of the petitioner. Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of. 
The state Supreme Court pointed out that its practice of submitting special issues to the jury was adopted in order to remove from the jury's consideration the effect on the ultimate outcome of the case of their answers to questions of disputed facts.  In this case, the jury might be tempted to find a long incapacity or a severe injury if they knew the amount of recovery was limited by the employee's wage and rate of compensation. Counsel are required to confine their arguments to the evidence and must not touch upon matters withdrawn from the consideration of the jury.  Yet here, petitioner, a member of the Texas bar, ignored this rule and at the outset of his address to the jury exceeded the bounds of permissible argument by trying to tell the jury the maximum compensation which their answers to the special issues would allow his client. On objection of the opposing counsel petitioner was stopped by the trial judge, but in the face of the court's decision he persisted in trying to tell the jury the effect of their answers. He switched his explanation of the stipulated amou t of recovery from the words 'one hundred and twenty-five weeks times the average weekly compensation rate' to 'one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.' The change obviously brought before the jury information on the limitation to the amount of recovery-a factor held by the trial judge inadmissible under the special issues. In addition to this stub-born effort to bring excluded matter to the knowledge of the jury, the petitioner twice refused to heed the court's admonition not to argue the point. As the Supreme Court said, 'It was the duty and power of the trial judge in the trial of the compensation suit to determine the type, manner and character of the argument before the jury. Of course his rulings thereon were subject to review in the appellate courts, but he has the power to make them whether right or wrong. If they are erroneous the injured party has the plain, simple and adequate remedy of appeal. It was thus the duty of counsel to abide by his decisions even if erroneous; and if any rights of his clients were violated the remedy was by exception and appeal. Any other procedure would result in mockery of our trial courts and would destroy every concept of orderly process in the administration of justice.'  This judgment of the Supreme Court turned on their understanding of Texas law and practice. We see nothing in their opinion or conclusion that indicates any disregard of petitioner's rights. The conduct of a judge should be such as to command respect for himself as well as for his office. We cannot say, however, that mildly provocative language from the bench puts a constitutional protection around an attorney so as to allow him to show the contempt for judge and court manifested by this record, particularly the last few sentences of the altercation.
The judgment of the Supreme Court of Texas accordingly is
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
^2 4 Bl.Com. 286; Ex parte Terry, 128 U.S. 289, 302-304, 313, 314, 9 S.Ct. 77, 78, 79, 82, 83, 32 L.Ed. 405; Ex parte Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 701, 33 L.Ed. 150; Eilenbecker v. District Court of Plymouth County, Iowa, 134 U.S. 31, 36, 37, 10 S.Ct. 424, 426, 33 L.Ed. 801; Cooke v. United States, 267 U.S. 517, 534, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767; In re Oliver, 333 U.S. 257, 274, 275, 68 S.Ct. 499, 508.
^3 Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405: 'We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with he liberty of the citizen, that, for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.'
^4 This rule is well established in Texas. Ex parte Testard, 101 Tex. 250, 106 S.W. 319; Ex parte Dulaney, Tex.Sup., 203 S.W.2d 203. For other cases see the opinion in the instant case, Ex parte Fisher, Tex.Sup., 206 S.W.2d 1000, 1003.