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In re Buehrer

Decided: December 18, 1967.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.


Defendants, who number 30, were convicted in summary proceedings for contempt of court arising out of the violation of an order enjoining a strike by school teachers of the City of Newark. We certified defendants' appeals before argument in the Appellate Division.

Twenty-seven of the defendants pleaded guilty. Three were convicted upon a trial. All but one (Sista) attack the

sentence imposed. Yacenda and Seeley, who stood trial, also complain because they were refused a jury trial. Yacenda adds that his motion for acquittal at the end of the prosecution's case should have been granted. Defendant Sista claims the evidence against him is insufficient.


We see no merit in the claim of defendant Sista that the evidence is insufficient to establish his guilt beyond a reasonable doubt. He was served on February 9, 1966 with the restraining order in which he was specifically named. The strike began the following morning. He went to the school but would not work. The most that can be said is that he had trouble deciding whether to comply with the court's order, being torn between an awareness of the possible consequences if he did not and what fellow teachers might think of him if he did. His decision to stay out in support of the strike was willful, notwithstanding his claim that he was unable to reach a lawyer for advice. The circumstances defendant presses did not excuse the wrong. They could bear only upon punishment, and the trial court took them into account in imposing only a fine.

As to Yacenda, he does not question the sufficiency of the evidence upon the whole case, but says the prosecution failed to establish his guilt in its case. He claims there was no proof that he knew of the restraining order prior to conduct violative of its terms. On February 9, the day before the strike, the principal at Yacenda's school arranged for the distribution to each teacher of a written notice of the restraining order with a caution to comply. The viceprincipal, who did not testify because of illness, made the distribution with the aid of some students. Yacenda was at school that day, and none of the notices was returned as undelivered. The next day Yacenda telephoned that he would not come in because of illness, but he appeared in the picket line, and after being served there with a

copy of the order, he continued to picket for some 10 or 15 minutes. Although it was about 10:00 A.M. when he was thus served, he did not seek to work that day, and the following day he again reported illness. On February 15 he filed a certificate in which he claimed personal illness on the 11th and expressly disavowed illness on the 10th.

The foregoing proof, all in the State's case, was sufficient to support an inference that Yacenda received notice of the order on February 9, that he continued to picket even after service of the order on February 10, and that he refused to work on both the 10th and 11th in defiance of the order. State v. Fiorello, 36 N.J. 80, pp. 86-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2 d 396 (1962).


Each defendant, other than Sista, was sentenced to a term in jail, the execution of the jail sentence was suspended, and each was placed on probation for one year, the minimum period of probation permitted by statute. N.J.S.A. 2A:168-1. The suspended jail term was 90 days as to three defendants, 60 days as to three more, and 30 days as to the others. Three were fined $1,000 and the others $500. Defendants attack only the imposition of probation.

The trial court was not sure that anything less than actual imprisonment would suffice to protect the public interest. The strike here involved was the second to hit the Newark school system within a period of nine or ten weeks. The Newark Teachers Association (N.T.A.) had bested a rival organization, the Newark Teachers Union (N.T.U.), in a representative election in December 1964. On July 27, 1965 the Board of Education entered into a written agreement with N.T.A. to run for one year but subject to reopening at N.T.A.'s option on or after December 1, 1965 for negotiations as to teacher salaries and certain other matters bearing upon the Board's budget for 1966-1967. N.T.A. chose to reopen on December 1, 1965 whereupon

N.T.U., claiming there should be another representative election, called a strike for December 2, 1965. A restraining order was obtained, and the order being violated, contempt proceedings ensued in which, on pleas of guilty, fines were imposed. Despite those convictions, the membership of N.T.A. on January 13, 1966 resolved to impose "sanctions" in support of their demands upon the Board, and called for a membership meeting on January 27, 1966 "to hear reports from the Negotiation Team and Strike Strategy Committee." On February 2 and 3, by a vote of 1,712 out of 2,498, the membership voted to strike on February 10 if an "acceptable economic package" was not agreed to by the Board by that date. On February 9 the court issued the temporary restraining order here involved. Notwithstanding the order, more than 1,700 out of 3,500 did not report for work on February 10 and on the following day more than 1,800 were absent. When the strike ended, the president of N.T.A. publicly proclaimed that "The purpose of the strike has been served."

Thus there was a second illegal strike by Newark teachers within a short span, demonstrating that the prospect of a fine, the punishment imposed in connection with the first strike, was not enough to insure compliance with law. It is understandable that the trial court concluded that sterner measures were needed in the public interest. Defendants say the trial court gave no weight to their claim that they struck and defied the order because of a frustration born of an inability to obtain for the school system what they believed it had to have. The prosecution disputes this claim of high purpose. The trial court of course did not evaluate the teachers' demands upon the Board, and neither do we. The notion that some higher right justifies concerted defiance of law can have no role in the courtroom. It cannot excuse; on the contrary, it emphasizes the deliberate nature of the violation. Nor can it meliorate the wrong, especially when the plea comes from public servants who should set the good example.

Being of the view that a fine would be inadequate and being reluctant to send defendants to jail, the trial court took the intermediate course of a suspended jail sentence with probation and a fine. Defendants say the trial court intended the sentence to be punitive and thereby departed from the thesis that probation is meant to rehabilitate. The argument assumes that punishment and rehabilitation are somehow incompatible. Of course they are not. Even a lengthy jail term is imposed with the hope that it will rehabilitate. That hope is implicit in the requirement that all sentences to state prison shall consist of a maximum and a minimum term, N.J.S.A. 2A:164-17, in the indeterminate sentence, and indeed in the parole structure itself. Punishment and rehabilitation are not antagonists.

Probation assumes the offender can be rehabilitated without serving the suspended jail sentence. But this is not to say that probation is meant to be painless. Probation has an inherent sting, and restrictions upon the freedom of the probationer are realistically punitive in quality.*fn1 Hence the trial court did not err in recognizing that probation involves punishment. Nor can it be maintained that probation may not be ordered to the end that others may be deterred from lawlessness. See Herlands, "When and How Should a Sentencing Judge Use Probation?" 35 F.R.D. 487, 492-493 (1964). Probation is meant to serve the overall public interest as well as the good of the immediate offender. Thus N.J.S.A. 2A:168-1 authorizes the use of probation "[w]hen it shall appear that the best interests of the public as well as of the defendant will be subserved thereby."

Hence we see no basis for complaint that the trial court, aware that fines imposed after the first strike did not deter these defendants, and unwilling to send them to jail if lesser measures might do, chose to place defendants on probation, with the hope and intent to convince these defendants of the error of their thinking and to deter others who might thereafter be inclined to ignore orders of a court in these matters. Indeed, it would hardly serve these defendants to ...

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