Harvey v. Commonwealth Brief on Behalf of the Commonwealth
Public Court Documents
July 15, 1968

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Brief Collection, LDF Court Filings. Harvey v. Commonwealth Brief on Behalf of the Commonwealth, 1968. 0f7a6095-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c79e6a64-8009-4837-9407-6b341850f4ee/harvey-v-commonwealth-brief-on-behalf-of-the-commonwealth. Accessed August 19, 2025.
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Supreme Court of Appeals of Virginia AT RICHMOND R ecord N o. 6782 RUTH L. HARVEY, v. Appellant, COMMONWEALTH OF VIRGINIA, Appellee. BRIEF ON BEHALF OF THE COMMONWEALTH R obert Y. B u tton Attorney General of Virginia■ R ich a rd N . H arris Assistant Attorney General Supreme Court-State Library Building Richmond, Virginia 23219 Printed Letterpress by LEWIS PRINTING COMPANY Richmond, Virginia Page TABLE OF CONTENTS P r e lim in a r y S ta te m e n t ............................................... ...... ............... 1 Q u estio n s P resented by t h is A p p e a l ......................................... 2 A r g u m en t I. The Court Possessed the Power to Summarily Punish for Contempt and No Constitutional Guarantees are Involved............................. ..... ...................... ............ ..... . 2 II. Summary Punishment was Fully Warranted ............... 11 Conclusio n ...................................................................................... ........... 15 C er tific a te 16 TABLE OF CITATIONS Cases Burdett v. Commonwealth, 103 Va. 838, 48 S.E. 878 (1904) .. 12 Carter v. Commonwealth, 96 Va. 791, 32 S.E. 780 (1899) .. 7, 15 Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 67 L.Ed. 767 (1925) ............................................................... ............. . 10 Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888) 7 Fisher v. Pace, 336 U.S. 155, 93 L.Ed. 569......................... . 8 Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed. 2d 672 (1958) ......... ............. ..................... ........................ . 9 Higginbotham v. Commonwealth, 206 Va. 291, 141 S.E.2d 746 (1965) .............................................................................. 5 Holt v. Commonwealth, 205 Va. 332, 136 S.E.2d 809 (1964), rev’d on other grounds, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965) ...................................................... 2, 5, 12 In re Matter of Ruffalo,..... U.S....... , 88 S.Ct. 1222, 20 L.Ed. 2d 117 (1968) 10 Page In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948 ) 9 In re Osborn, 344 F.2d 611 (9th Cir. 1965) ........................... . 9 Kidd v. Safe Deposit, etc., Corp., 113 Va. 612, 75 S.E, 145 (1912) ...................................................................................... 12 Olimpius v. Butler, 248 F.2d 169 (4th Cir. 1957) ............. ..... 9 Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952) .............................................. 9 Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) ................................................. 9 United States v. Anonymous, 214 F.Supp. I l l (E.D. Tenn. 1963) .................- ........................................... ....................... 9 Yoder v. Commonwealth, 107 Va. 823, 57 S.E.2d 581 (1907) .. 12 Statutes Section 18.1-292, Code of Virginia (1950) ................... 4, 12, 15 Other Authorities 4 Mich. Jur., Contempt, § 4 ...................................................................................... 7, 12 § 14 ........................................................ 15 § 22 ................................................................................................................................ 12 § 26 ............................................ ............................................. 12 IN THE Supreme Court of Appeals of Virginia AT RICHMOND R ecord No. 6782 RUTH L. HARVEY, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee. BRIEF ON BEHALF OF THE COMMONWEALTH PRELIMINARY STATEMENT The Commonwealth contends that the order of judg ment of the Corporation Court of the City of Danville, entered December 20, 1966, convicting Ruth L. Harvey (hereinafter referred to as the “appellant” ) of contempt of that court and ordering her to pay a fine of $25.00 is plainly correct and should be affirmed. It is from this order that this appeal is taken. The statement of the proceedings in the court below and the statement of facts in the appellant’s brief are essentially correct. However, the Commonwealth adopts the Additional Statement of Facts in the printed record (R. 18, 19) as its basic 2 statement of facts. The Additional Statement of Facts was certified by the court below and is, of course, in cluded in the manuscript record. Additional and sig nificant facts, pertinent to the questions presented, will be referred to in the Argument. References to the printed record will be designated as “R......” QUESTIONS PRESENTED BY THIS APPEAL The several errors assigned by the appellant present two fundamental issues: (1) The power of the court to summarily punish for contempt; and (2) Whether summary punishment was warranted. ARGUMENT I. The Court Possessed The Power To Summarily Punish for Contempt and No Constitutional Guarantees Are Involved The power of a court to punish for contempt was clear ly stated by this court in Holt v. Commonwealth, 205 Va. 332, 136 S. E. 2d 809 (1964), revd on other grounds, 381 U. S. 131, 85 S. Ct. 1375, 14 L. Ed. 2d 290 (1965), at 205 Va., pp. 336-8: “The power of the court to punish for contempt can no longer be challenged. Such power is inherent in the nature and constitution of a court. It is a power not derived from any statute, but arising from from the exercise of all other powers. Without such power the administration of the law would be in continual danger of being thwarted by the lawless. The power to fine and imprison for contempt is incident to every court of record. Such courts ex necessitate rei have the power of protecting the ad- 3 ministration of justice with a promptitude calculated to meet the exigency of the particular case. The right of punishing contempts by summary conviction is a necessary attribute of judicial power. See Common wealth v. Dandridge (1824) 2 Va. Cas. (4 Va.) 408; 4 M.J., Contempt, Sec. 5 pages 244-245. ‘That the English courts have exercised the power in question from the remotest period does not ad mit of doubt. Said Chief Justice Wilmot: “The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a neces sary incident to every court of justice, whether of record or not, to fine and imprison for a contempt acted in the face of the court; and the issuing of attachments by the Supreme Court of Justice in Westminster Hall for contempts out of court, stands on the same immemorial usage which supports the whole fabric of the common law; it is as much the lex terrae, and within the exception of Magna Charta, as the issuing of any other legal process whatsoever,” ’ Carter v Commonwealth, 96 Va. 791, 806, 807, 32 S.E. 780,45 L.R.A. 310. 3 Campbell’s Lives of Chief Justices, 153; United States v. Hudson, 7 Cranch (11 U.S.) 32, 3 L. ed. 259; Wells v. Commonwealth, 21 Gratt. (62 Va.) 500. The ingrained principles above recorded had their origin in the genesis of the court itself, having been settled long before the founding of this country. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of the power to protect themselves and the dignity and authority of the court. Ex parte Robinson, (Ark.) 86 U.S. (19 Wall.) 505, 22 L. ed. 205. One of the earliest, if not the earliest, United 4 States cases was decided in 1788. This involved a contempt citation against a newspaper, the style of the case being Respublica v. Oszvald, 1 U.S. (1 Dali.) 319, 1 L. ed. 155, 1 Arn. Dec. 246. There, the Chief Justice had this to say: ‘Having yesterday considered the charge against you, we were unanimously of opinion, that it amounted to a contempt of the Court. Some doubts were suggested, whether even a contempt of the Court was punishable by attachments; but, not only my brethren and myself but, likewise, all the judges of England, think, that without this power no Court could possibly exist:—nay, that no contempt could indeed, be committed against us, we should be so truly contemptible. The law upon the subject is of immemorial antiquity; and there is not any period when it can be said to have ceased, or discontinued. On this point, therefore, we entertain no doubt.’ See Board of Supervisors v. Bazile, 195 Va. 739, 80 S.E 2d 566, 12 Am. Jur., Contempt § 3, at page 390, 17 C.J.S. § 8, page 16, et seq.” It is unnecessary to consider whether the conduct of the appellant here warrants summary punishment at com mon law, for her offense is clearly within the purview of § 18.1-292 of the Code of Virginia (1950), as amended. That section prescribes the instances in which the court may punish summarily for contempt, and reads in part as follows: “The courts and judges may issue attachments for contempt, and punish them summarily, only in the cases following: (1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice; * * * 5 (4) Misbehavior of an officer of the court in his official character.” The appellant has sought to inject into this proceeding the suggestion that her constitutional rights under the due process clause of the Fourteenth Amendment are impinged upon by the summary manner in which the court below called her to task. Specifically she contends that the trial court should have accorded her a formal hearing and permitted her to call and cross-examine wit nesses in her behalf. This identical contention was made in Holt v. Commonwealth, supra, and in Higginbotham v. Commonwealth, 206 Va. 291, 141 S. E 2d 746 (1965). In Higginbotham this court disposed of this argument at 206 Va., pp. 295-6: “Defendant says that the trial judge should have accorded him a formal hearing and permitted him to call witnesses in his behalf. Code § 18.1-292 gives a judge the power to punish summarily for disobedience of his rulings and orders and the intemperate behavior of any at torney which obstructs the course of a trial, but the power to punish for contempt without a hearing is discretionary under the statute.” And in Holt v. Commonwealth, supra, the argument was rejected at 205 Va., p. 341: “Lastly, appellants have sought to inject into this proceeding the suggestion that their constitutional rights are impinged upon by the summary manner in which the trial court called them to task. Their arguments are devoted to a dissertation on questions which do not exist in this case and, even if present, have long been settled. The conduct for 6 which they are being punished was a direct and open criminal contempt of court and as such was punish able summarily by the court when committed. No constitutional guaranties relating to indictment, rights to counsel, and trial by jury are here involved and appellants’ effort to raise these questions indicate either a lack of knowledge of the established law, or a novel attempt to avoid the force of the doctrine of stare decisis on a point where the law has been settled for hundreds of years. In Local 333B, United Marine Division of I.L.A. (A.F.L.) v. Commonwealth, 193 Va. 773, 71 S.E. 2d 159, it is said: ‘(1) Proceedings for contempt of court are of two classes,—those prosecuted to preserve the power and vindicate the dignity of the court and those to preserve and enforce the rights of private parties. The former are criminal and punitive in their nature; the latter are civil, remedial and coercive in their nature, and the parties chiefly interested in their conduct and prosecution are those individuals for the enforcement of whose private rights and remedies the original suit was instituted. Roanoke Water Works Co. v. Roanoke Glass Co., 151 Va. 229, 144 S.E. 460; Deeds v. Gilmer, 162 Va. 157, 261, 174 S.E. 37; Drake v. National Bank of Commerce, 168 Va. 230, 190 S.E. 302, 109 A.L.R 1517; Gloth v. Gloth, 158 Va. 98, 163 S.E. 351; * * * Michie’s Jur., Contempt, sec. 3, p. 242; 12 Am. Jur., Con tempt, sec. 6, p 392.’ Gompers v. Bucks Stove, etc. Co., 221 U.S. 418, 441, 31 S. Ct. 492, 55 L. ed. 797, 34 L.R.A. (N.S.) 874; Bessette v. Conkey Co., 194 U.S. 324, 329, 24 S. Ct. 665,48 L, ed. 997.” Thus, a direct and open contempt of court is punish able summarily by the court when committed. In such cases no necessity exists to proceed by indictment or to 7 impanel a jury or to call witnesses. 4 Mich. Jur. Contempt § 4, p. 243. Any effort on the part of the General As sembly to so require would meet with the same fate as the statute which was vitiated by this court in Carter v. Commonwealth, 96 Va. 791, 32 S. E. 780 (1899). It is well established that constitutional guarantees relating to indictment, right to counsel, trial by jury, and the calling of witnesses are not involved in summary punish ment for contempt by the courts. The principle that due process does not require notice and hearing in summary punishment for contempt is fully supported by the Supreme Court of the United States. In Ex Parte Terry, 128 U. S. 289, 9 S. Ct. 77, 32 L. Ed. 405 (1888), in refusing to grant relief in a habeas corpus proceeding, it was held that a court could punish summarily for contempt without giving the de fendant an opportunity to be heard. The Court stated at 32 L. Ed. 405, 410: “We have not overlooked the earnest contention of petitioner’s counsel that the circuit court, in dis regard of the fundamental principles of Magna Charta, in the absence of the accused, and without giving him any notice of the accusation against him, or any opportunity to be heard, proceeded ‘to accuse, to try, and to pronounce judgment, and to order him to be imprisoned; this, for an alleged offense committed at a time preceding, and separated from, the commencement of his prosecution.’ 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 the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the of fender may, in its discretion be instantly apprehended 8 and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an un broken 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. To say, in case of a contempt such as is recited in the order below, that the offender was accused, tried, adjudged to be guilty, and imprisoned, without previous notice of the ac cusation against him and without an opportunity to be heard, is nothing more than an argument or pro test against investing any court, however exalted, or however extensive its general jurisdiction, with the power of proceeding summarily, without further proof or trial, for direct contempts committed in its presence.” (128U. S.412.) (Italics supplied.) In Fisher v. Pace, 336 U. S. 155, 159, 93 L. Ed. 569, 573 : “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 pre vent the administration of justice from falling into disrepute. Such summary conviction and punishment accords due process of law.” * * * “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 pic 9 ture 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 ob jectivity of the presiding judge.” In addition, see Sacher v. United States, 343 U. S. 1, 8, 72 S. Ct. 451, 96 L. Ed. 717 (1952); Green v. United 356 U. S. 165, 78 S. Ct. 632, 2 L. Ed. 2d 672 (1958) and Ungar v. Sarafite, 376 U. S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964), in which the Supreme Court held that to punish summarily for contempt com mitted in the presence of the court does not violate due process requirements Federal courts consistently summarily punish officers of the court for contempt committed in the court’s pres ence. United States v. Anonymous, 214 F. Supp. I l l (E. D. Tenn. 1963) (failure of attorney to appear); In re Osborn, 344 F. 2d 611 (9th Cir. 1965) (attorney’s refusal to cross-examine); Olimpius v. Butler, 248 F. 2d 169 (4th Cir. 1957) (improper language to another attorney). Appellant cites In re Oliver, 333 U. S. 257, 68 S. Ct 499, 92 L. Ed. 682 (1948). (See p. 7 appellant’s brief). Similarity between Oliver and the instant case is total ly lacking. In Oliver the petitioner appeared before a circuit court judge who was conducting a “one-man grand jury investigation” in accordance with Michigan law. The hearing was conducted in the court’s chambers, the public being excluded. After hearing evidence in this secret session, the judge did not believe that Oliver was telling the truth and therefore summarily held him in contempt. The Supreme. Court of the United States re 10 versed on the ground that Oliver was tried in secret ses sion and not in open court. See 68 S. Ct. 503-04. But in so doing the Court recognized that summary punishment without a hearing does not violate due process require ments when the contempt is committed in open court and is observed by the judge. 68 S. Ct at 508. Thus Oliver is clearly distinguishable from the instant case, there being no “secret session” here. Appellant also relies upon Cooke v. United States, 267 U. S. 517, 45 S. Ct. 390, 67 L. Ed. 767 (1925). (See p. 7, appellants’ brief.) That opinion is also clearly dis tinguishable from the facts in the instant appeal. There the Supreme Court reversed a summary punishment for contempt because the evidence indicated that the act com plained of had not been committed in open court. Con temptuous remarks had been made in a letter addressed to the judge. The Supreme Court reversed the conviction on the ground that no contempt had taken place in open court. Additionally, the contempt punishment had been imposed after an eleven month delay. In the instant appeal the contempt clearly occurred in open court and there was no delay in the court’s punishment. Appellant cites In the Matter of John Ruffalo, Jr., .....U. S..........88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968). (See p. 10 appellant’s brief.) This is not remotely anal ogous to the instant appeal. It involved a disbarment proceeding, not a summary punishment for contempt. Ad ditionally, the alleged offense did not occur in open court. In a disbarment proceeding before the Ohio Board of Bar Commissioners on Grievances and Discipline, the petitioner was found to have engaged in misconduct consisting of hiring a railroad car inspector, during his 11 off-duty hours, to investigate claims against the in spector’s employer under the Federal Employers Lia bility Act. However, this charge of misconduct was not in the original charges against the petitioner, but was added as a result of testimony presented during the dis barment hearings. Although the petitioner was granted a continuance in order to have time to respond to the new charge, his motion to strike the charge was denied. Properly, we think, the Supreme Court reversed the finding of misconduct and held that since there was a lack of fair notice as to the reach of the state disbarment proceedings and the precise nature of the charges, the petitioner was deprived of procedural due process. But we simply cannot imagine why those facts and that finding are in any way analogous to the issues in this appeal. Clearly a bar grievance committee possesses no inherent summary punishment power, and its proceedings must therefore conform to procedural due process require ments. In sum, the Commonwealth contends that the appellant is not entitled to the guarantees of the due process clause of the Fourteenth Amendment. Such guarantees simply are not required in summary punishment for contempt by the courts. II. Summary Punishment Was Fully Warranted As we have shown, where the contempt is in the presence of the court, as here, it may proceed on its own knowledge of the facts and punish the offender without further proof, and without issue or trial in any form. 12 It is not required that the offender be confronted with or have the opportunity to examine witnesses for or against him. Burdett v. Commonwealth, 103 Va. 838, 48 S. E. 878 (1904); Holt v. Commonwealth, supra; 4 Mich. Jur. Contempt §§ 4, 26, p. 271. Before a party can be summarily punished for contempt, he must be brought clearly within the terms of the statute by which the legislature has delegated this power. See, § 18.1-292, quoted supra, p. 4. Kidd v. Safe Deposit, etc., Corp., 113 Va. 612, 75 S.E. 145 (1912). The power granted by the statute to punish summarily for contempt is the power to punish without the intervention of a jury or other due process requirements and is limited to the classes of contempt set forth in the statute. Yoder v. Commonwealth, 107 Va. 823, 57 S.E. 2d 581 (1907); 4 Mich. Jur. Contempt § 22, pp. 267-8. The Commonwealth contends that the acts of the ap pellant clearly fall within the provisions of subparagraphs (1) and (4) of § 18.1-292: “ (1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice . . . . (4) Mis behavior of an officer of the court in his official ca pacity . . . . ” In Virginia, attorneys are officers of the court. Holt v. Commonwealth, supra. It is undisputed that Miss Harvey is a practicing attorney at law and was acting in this capacity at the time of the offense. The portions of the printed record directly related to the questions presented by this appeal are found at R. 6 through the top of R. 7, at R. 9 through the top of R. 11 and at the bottom of R. 17 through R.19. On December 13, 1966, during the calling of the docket to ascertain which of the defendants were present 13 and the whereabouts of those absent, Miss Harvey an swered on behalf of and as counsel for Leonard W. Holt, indicating to the court that Mr. Holt was in Washington, D. C., and that she was expecting him to be present for trial on December 20 (R. 6). She agreed that his trial could take place on December 20 (R. 6-7). During the early part of December, 1966, a conference was held in the judge’s chambers relative to the trial of those persons charged with contempt arising from the court’s restrain ing order of June 19, 1963, and during the discussion, Miss Harvey indicated that she represented Mr. Holt and that he would personally appear for trial (R. 18, 19). When Mr. Holt’s case was called on December 20, 1966, he failed to appear and Miss Harvey then stated that she did not represent him (R. 9-11, 17-19). Al though she had earlier indicated to the court that she had contacted him in connection with the December 20 trial date (R. 6, 7, 18-19), she now stated to the court for the first time that she had not been in direct contact with Mr. Holt, but with members of his family at his home in Washington, D. C , and that this contact had not been made by her personally, but by her secretary (R. 10, 11, 17-19). None of this had she previously mentioned to the court. She admitted having told the court on previous occasions that she represented Mr. Holt (R. 10). But when questioned by the court on December 20, she, for the first time, admitted that she had not seen or talked with Mr. Holt since June 1963, over three years previously (R. 10-11, 17-19). The only explanation she offered for her statement that she did not represent him on December 20 was her inability to contact him (R. 10, 18). 14 Viewed in its entirety, the record clearly shows that prior to December 20, Miss Harvey led the court to be lieve that she was in personal contact with Mr. Holt, that she was his counsel and that he would be present on December 20 for trial. In fact, it was on this basis that the matter was continued from December 13 to December 20. It was not until December 20 that she revealed to the court her failure to contact Mr. Holt, and she made this revelation only as an attempt to explain her statement that she did not represent him. In fact, it was only after the court had asked for an explanation that she offered the information that there had been no direct contact with Mr. Holt by her, by her office, or by Mr. Williams, her co-counsel since June, 1963. Her statements on December 20 were verified by Mr. Williams, who also attempted to explain the situation to the court on December 20 (R. 10). The Commonwealth contends that the court was thoroughly justified in concluding that it had been mis led by Miss Harvey. She had stated that she represented Mr. Holt, and it was upon that statement, coupled with her assurance of Mr. Holt’s appearance on December 20, that the continuance on December 13 had been granted. It was not until after her December 20 statement of non representation and her calling to task by the court that she made any attempt to be candid and frank about the actual situation. Surely the court has the right to expect complete candor from its officers, not deception, direct or indirect. The Commonwealth contends that on these facts this officer of the court was less than candid and made no attempt to be candid and frank until pressed by the court for an explanation. 15 Although there are many Virginia cases dealing with misconduct of officers of the court ( 4Mich. Jur. Con tempt § 14), the case which we believe to be most anal ogous is that of Carter v. Commonwealth, 96 Va. 791, 802-03, 32 S.E. 2d 780 (1899), in which a defendant was summarily punished for contempt for obtaining a con tinuance of an action against him by means of a telegram in which he stated that he was ill with typhoid fever. This statement as to his health was false, and he knew it to be false. In affirming the conviction for summary contempt, this court found that his acts were in cleat- violation of what is now § 18.1-292 of the Code, and tended directly to impede and obstruct justice. We contend that the facts in this record demonstrate misbehavior by an officer of the court in her official ca pacity, and that the misbehavior occurred in the presence of the court and tended to obstruct or interrupt the ad ministration of justice by the court. CONCLUSION For these reasons, summary punishment for contempt was clearly warranted, and the judgment of conviction should be affirmed and this appeal dismissed. Respectfully submitted, R obert Y. B u tton Attorney General of Virginia R ic h a r d N . H arris Assistant Attorney General Supreme Court-State Library Building Richmond, Virginia 23219 16 CERTIFICATE I certify that on the 15th day of July, 1968, I mailed three copies of the foregoing brief to S. W. Tucker, Esq , 214 E. Clay Street, Richmond, Virginia 23219, J. L. Williams, Esq., 216 North Ridge Street, Danville Vir ginia 24541, Jack Greenberg, Esq., 10 Columbus Circle, Suite 2030, New York, New York 10019, and James M. Nabrit, III, Esq., 10 Columbus Circle, Suite 2030, New York, New York 10019, counsel of record for the ap pellants, prior to the filing of this brief with the Clerk of this Court. R ich a rd N. H arris Assistant Attorney General