For affirmance -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judges Conford and Lewis. For reversal -- None. The opinion of the Court was delivered by Weintraub, C.J.
[63 NJ Page 113] This is a contempt proceeding arising out of an illegal strike of school teachers employed in Fair Lawn. The strike was continued in violation of an
injunction and was still in process when these proceedings were instituted. Fourteen individuals and Fair Lawn Education Association (herein Association), a nonprofit corporation which represented the teachers in that school district, were convicted of contempt consisting of violations of the injunction. The convictions were affirmed by the Appellate Division. We granted the Association's petition for certification, 60 N.J. 500 (1972), to consider whether a fine was lawfully imposed upon it in the sum of $17,350 notwithstanding that a demand for trial by jury had been overruled. At the time of the strike, 347 teachers in the Fair Lawn system were dues-paying members of the Association. The fine thus amounts to $50 per member.*fn1
It would not be fruitful to explore the subject of summary trials at common law. The history is not the clearest. As to the contempt process, the history in our country is definitive and sufficient for this case.
The principles which have emerged may be summarized. All contempts of court are penal offenses and may be prosecuted like other offenses. Some, however, may be prosecuted summarily, that is, without indictment or trial by jury. The offenses thus triable summarily consist of misbehavior in the actual presence of the court, misbehavior of an officer of the court in his official transactions, and violation of an order of the court. These categories were established in 1831 by an act of Congress, now 18 U.S.C.A. §§ 401, 402, and in our State in 1917 by a statute, now N.J.S.A. 2A:10-1. New Jersey Department of Health v. Roselle, 34 N.J. 331, 340-342 (1961); In re Buehrer, 50 N.J. 501, 513-516 (1967).
The sole credible basis for the summary contempt process is necessity, a need that the assigned role of the
judiciary be not frustrated. But since the summary contempt process lends itself to arbitrary action, the power has been increasingly circumscribed, and this in two ways. One is by the careful recourse to the reason for the summary power, i.e., the need for it, to the end that a summary power be not invoked beyond that need. Indeed the statutory categories referred to above evolved out of a grand debate with respect to that underlying necessity. The other safeguard against the risk of arbitrariness consists of procedural requirements designed as antidotes for that risk.
With respect to procedural antidotes, our practice in contempt matters is calculated to limit the risk of arbitrariness and the appearance of arbitrariness. So, for example, when the charge is a violation of a court order, the penal proceeding may not be heard by the judge whose order was allegedly contemned unless the defendant consents to his sitting. R. 1:10-4. Thereby obviated is the risk which inhered singularly in the contempt area when the offended judge sat in judgment of his own charge. For further assurance, R. 2:10-4 provides that a summary conviction for contempt shall be reviewable on the facts as well as the law and thus affords a scope of review not available when guilt has been found by a jury. And our rule forbids a single proceeding both to punish for contempt and to give relief to the litigant injured by the contumacious act or omission, unless the defendant consents to that course. The punitive proceeding, which the court alone may initiate, must be plainly marked so that the defendant will know that the aim is to punish him. R. 1:10-2, 4, 5. See New Jersey Department of Health v. Roselle, supra, 34 N.J. at 342-344; In re Buehrer, supra, 50 N.J. at 515-516. The rules governing criminal trials apply fully, save only indictment and trial by jury.
As we have said, the summary power rests upon necessity. With respect to court orders, the subject matter before us, the court must be able to compel immediate compliance if the court is to be equal to its responsibility under government.
Therein lies the critical difference between a violation of a court order and a violation of some penal statute. A court order is not intended merely to restate some underlying duty or obligation, civil or criminal. Rather, a court order reflects an underlying wrong already done or threatened, coupled with an urgency or some inadequacy in the ordinary remedy which mandates a coercive remedy. So, here, the subject matter was a strike by public employees in the face of the settled rule that such strikes are illegal. Board of Education, Borough of Union Beach v. New Jersey Education Association, 53 N.J. 29, 36-37 (1968). The Board of Education obtained a restraining order to end this public wrong, but the strike continued in defiance of the order. The power must be the court's to end the public wrong by a procedure which, while not impairing the truth-finding process, will not deny relief by a delay in affording it.
We heretofore considered whether it would be compatible with the necessity underlying the summary contempt power to place a limit upon the punishment which may be imposed upon an individual who disobeys an injunctive order. More precisely we asked whether it would be adequate to hold the consequences within those which ensue upon conviction for a "petty offense" as opposed to conviction for "crime." We concluded the underlying need could be met upon that basis. More precisely, we held the maximum jail term which may be imposed upon a summary trial is six months, and that a summary ...