Young v. United States ex rel. Vuitton et Fils (1987)
Young v. United States ex rel. Vuitton et Fils (1987)
481 U.S. 787
In the settlement of a lawsuit brought by Louis Vuitton, a leather-goods manufacturer, against trademark infringers who manufactured and distributed imitations of its goods, the United States District Court for the Southern District of New York entered a permanent injunction against the defendants prohibiting them from further trademark infringing activity. Subsequently, however, the district court found, based on the submission of an affidavit by Louis Vuitton, that there was probable cause to believe that the defendants had continued to engage in conduct in violation of the injunction. The court then appointed a private attorney employed by Louis Vuitton to serve as special counsel and represent the United States in an investigation and possible prosecution of the defendants for criminal contempt. Although other issues were present (and ultimately proved controlling) when the U.S. Supreme Court granted certiorari in this case, the edited passages below address only the question of whether federal courts have the authority to appoint private attorneys to prosecute contempt-of-court actions. Justice Brennan argued that federal courts do have this authority, even though he ruled against the appointment in this case on other grounds; Justice Scalia held that federal courts never have this authority.
Opinion of the Court: Brennan, Marshall, Blackmun, Powell, Rehnquist, Stevens, O’Connor.
Concurring opinion: Blackmun.
Concurring in the judgment: Scalia.
Concurring in part and dissenting in part: Powell, O’Connor, Rehnquist.
Dissenting opinion: White.
JUSTICE BRENNAN delivered the opinion of the Court.
Petitioners . . . 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. . . . [I]t 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. . . .
The initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function. . . . 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. . . . 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.”
. . .
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. . . .
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. . . . Thus, . . . contempt committed in the presence of the court . . . may be summarily punished, . . . [while] all other contempts . . . may be punished only upon notice and hearing. . . . Thus, while the prosecution of in-court and out-of-court contempts must proceed in a different manner, they both proceed at the instigation of the court.
The fact that we have come to regard criminal contempt as “a crime in the ordinary sense,” does not mean that any prosecution of contempt must now be considered an execution of the criminal law in which only the Executive Branch may engage. . . . That criminal procedure protections are now required in such prosecutions should not obscure the fact that these proceedings are not intended to punish conduct proscribed as harmful by the general criminal laws. Rather, they are designed to serve the limited purpose of vindicating the authority of the court. In punishing contempt, the Judiciary is sanctioning conduct that violates specific duties imposed by the court itself, arising directly from the parties’ participation in judicial proceedings. . . . 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 continue to have, the authority to appoint private attorneys to initiate such proceedings when the need arises.
JUSTICE SCALIA, concurring in the judgment.
Prosecution of individuals who disregard court orders (except orders necessary to protect the courts’ ability to function) is not an exercise of “the 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.
With the possible exception of the power to appoint inferior federal officers, which is irrelevant to the present cases, the only power the Constitution permits to be vested in federal courts is “the judicial power of the United States.” That is accordingly the only kind of power that federal judges may exercise by virtue of their Article III commissions.
The judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. 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. 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—executive power, vested by the Constitution in the President. These well-settled general principles are uncontested. The Court asserts, however, that there is a special exception for prosecutions of criminal contempt, which are the means of securing compliance with court orders. Unless these can be prosecuted by the courts themselves, the argument goes, efficaciousness of judicial judgments will be at the mercy of the Executive, an arrangement presumably too absurd to contemplate.
Far from being absurd, however, it is a carefully designed and critical element of our system of Government. There are numerous instances in which the Constitution leaves open the theoretical possibility that the actions of one Branch may be brought to nought by the actions or inactions of another. Such dispersion of power was central to the scheme of forming a Government with enough power to serve the expansive purposes set forth in the preamble of the Constitution, yet one that would “secure the blessings of liberty” rather than use its power tyrannically. Congress, for example, is dependent on the Executive and the courts for enforcement of the laws it enacts. Even complete failure by the Executive to prosecute law violators, or by the courts to convict them, has never been thought to authorize congressional prosecution and trial. The Executive, in its turn, cannot perform its function of enforcing the laws if Congress declines to appropriate the necessary funds for that purpose; or if the courts decline to entertain its valid prosecutions. Yet no one suggests that some doctrine of necessity authorizes the Executive to raise money for its operations without congressional appropriation, or to jail malefactors without conviction by a court of law. Why, one must wonder, are the courts alone immune from this interdependence?
The Founding Fathers, of a certainty, thought that they were not. It is instructive to compare the Court’s claim that “courts cannot be at the mercy of another branch in deciding whether [contempt] proceedings should be initiated,” with the views expressed in one of the most famous passages from The Federalist: “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. . . . The judiciary . . . has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (emphasis added).
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 Executive’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. . . .
I would therefore hold that the federal courts have no power to prosecute contemners for disobedience of court judgments, and no derivative power to appoint an attorney to conduct contempt prosecutions. That is not to say, of course, that the federal courts may not impose criminal sentences for such contempts. But they derive that power from the same source they derive the power to pass on other crimes which it has never been contended they may prosecute: a statute enacted by Congress criminalizing the conduct. . . .