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December 31, 1969

Andrew Backo et al., Plaintiffs,
Local 281, United Brotherhood of Carpenters and Joiners of America, et al., Defendants

The opinion of the court was delivered by: MACMAHON

MacMAHON, D. J.:

This is a motion for judgment notwithstanding the verdict, pursuant to Rule 50(b), Fed. R. Civ. P., as to all defendants who were found guilty by a jury of civil contempt, and a motion for a judgment of acquittal, pursuant to Rule 29, Fed. R. Crim. P., as to two defendants, Rudy Colton and Ervin B. Lambert, who were found guilty by the same jury of criminal contempt.

Plaintiffs, members of defendant Local 281, United Brotherhood of Carpenters and Joiners of America and candidates in the June 6, 1968 election of union officers, brought an action against defendants, Local 281, Rudy Colton, the president, Duane Kane, the vice president, Sebastian Paterninti, the treasurer, and the Election Committee and its chairman, Julius Amadio. The suit was to enforce plaintiffs' rights to equal treatment in the distribution of campaign literature under Section 401 of the Labor Management Reporting & Disclosure Act. *fn1"

 The Honorable Edmund Port, United States District Judge for the Northern District of New York, at approximately 10:30 A.M. on June 6, 1968, signed a temporary restraining order enjoining defendants, pending a determination of plaintiffs' main claim, from holding the election scheduled to commence at 1:00 P.M. on June 6, 1968.

 There was evidence from which the jury could have found the following facts beyond a reasonable doubt:

 Judge Port telephoned the union headquarters in Binghamton, New York and spoke with Elizabeth J. Wilke, office secretary for Local 281. He asked to speak with either Mr. Rudy Colton, the union president, or Mr. Ervin B. Lambert, the business representative. Mrs. Wilke replied that neither man was available. Judge Port then notified Mrs. Wilke that she should inform Mr. Colton and Mr. Lambert that he had just signed an order restraining the impending election and that they could reach him by telephone in his chambers in Auburn, New York, to verify the message. Mrs. Wilke wrote the message on a piece of paper and handed it to Mr. Lambert at 12:30 P.M. She told him that it was an important message for Mr. Colton, and Mr. Lambert said he would see to it that Mr. Colton received the message. Neither man ever telephoned Judge Port to verify or clarify the relayed message.

 Judge Port appointed Angelos P. Romas, Esq., attorney for plaintiffs, to serve the order to show cause containing the temporary restraining order on the union at 1:00 P.M., or as soon as possible before 6:00 P.M., on June 6, 1968.

 Mr. Romas, accompanied by Mr. Leslie, served the order on Rudy Colton at approximately 1:00 P.M. At the time, Colton and Lambert were standing next to each other. Mr. Romas explained to both of them that the paper he had just served was a temporary restraining order, signed by Judge Port, enjoining the impending election. According to both Mr. Leslie and Mr. Romas, the doors had just been opened to the area where the election balloting was to take place, and no one had as yet entered.

 The election proceeded in spite of the restraining order.

 Defendants were tried for criminal contempt on September 25, 1969, in Syracuse, New York. The jury found only defendants Lambert and Colton guilty and acquitted the remaining defendants.

 On September 26, 1969, defendants were tried for civil contempt, and the jury found all defendants guilty and awarded plaintiffs $4,700. We reserved decision on defendants' motions for judgment of acquittal and judgment notwithstanding the verdict until submission of briefs. Sentencing was deferred until after decision of the motions.

 Although there are different procedures for the trial of civil and criminal contempts, the classification of conduct as constituting a civil contempt or a criminal contempt is difficult because the distinction between them does not depend on the nature of the conduct, but rather on the purpose for the proceeding. *fn2" If the purpose is remedial, either to coerce compliance or to compensate an aggrieved party, then the proceeding is said to be civil. If, however, the purpose is punitive, then the proceeding is said to be criminal. *fn3" Unfortunately, when the contempt is not committed in its presence, it is impossible for the trial court, before hearing the evidence, to determine whether the purpose of the proceeding will be to coerce compliance, to compensate an aggrieved party or to punish a wrongdoer. *fn4" Often, the same conduct can amount to both civil and criminal contempt because it may justify a court in resorting to both remedial and punitive measures. In such a case, both the civil and criminal charges may be tried together, as long as this does not result "in substantial prejudice" to defendant. *fn5"

 Here, defendants were charged with "deliberate" disobedience of a court order restraining an election. The order to show cause initiating this action requested both remedial and punitive relief, and, therefore, we were involved with that type of conduct which can constitute both civil and criminal contempt.

 The dual nature of the charge created a risk, not only prejudicing the defendants, but also of confusing the jury as to the different burdens of proof and the different elements of the charge. We, therefore, tried the criminal contempt first, and after the jury returned its verdict, we tried the civil contempt to the same jury. Defendants do not claim, nor do we find from a careful review of the record, any prejudice to them from this mode of ...

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