Harford County Education Ass'n v. Board of Education

Smith, J., delivered the opinion of the Court. In this case we have before us for the first time a charge that school teachers are in criminal contempt'of one of the courts of this State. The matter arises from the alleged failure of certain teachers to obey the terms of an ex parte injunction issued by a circuit judge in Harford County (Close, J.) as a result of a work stoppage. He found them to be in contempt and levied fines accordingly.

We shall affirm his determination. A strike of public school teachers in Harford County began on Tuesday, May 11, 1976. On the morning of May 12 the Board of Education of Harford County filed a petition in the Circuit Court for Harford County against Harford County Education Association (the Association) and others seeking a declaratory decree “that a strike by the certificated professional teachers of the Board or a concerted withholding of or refusal to perform services by such teachers [was] illegal.” It also asked for a permanent injunction restraining the named defendants, “all certificated professional teachers employed by the Board,” and others “from engaging in a strike against or concertedly withholding or refusing to perform services for the Board or from calling, directing, inducing, encouraging or ordering any employee of the Board or any other persons to engage in or assist in calling or directing a strike against ... the Board.” A permanent injunction was likewise sought against picketing or otherwise delaying or interfering with “the normal operations of the free public schools of Harford County.” The petition prayed that, pending final hearing and determination of the issues, ⁵⁷⁷ an ex parte injunction might be issued along the lines of the requested permanent injunction. Named as defendants in the petition were the Association, Margaret Hughes, Eddie L. Robinette, Charles Meese, Helen Davis, Mary P. King, Nathan Moore, Eleanor D. Hammond, Clarence Morey, Anthony Sarcone, Elizabeth Feeney, Everett Sillers, Maryland State Teachers Association, Inc., John F. Burke, Charles H. Wheatley, Robert L. Haugen, and Chet Elder (Elder).

Messrs. Burke, Wheatley, and Haugen were all returned non est. No return was made as to Maryland State Teachers Association, Inc. (the State Association). Those three individuals and the State Association are not parties to this proceeding.

All of the other named defendants are appellants here. All of the individuals other than Elder were teachers (the Teachers) in Harford County. Miss Hughes and Messrs. Robinette and Meese were sued in their individual capacities and as president, first vice-president, and second vice-president of the Association, respectively.

Miss Feeney and Mr. Sillers were sued individually and as representatives of the General Council of the State Association. The remaining individual teacher defendants were sued individually and as members at large of the Association. The Teachers were all members of the board of the Association. Elder was an employee of the State Association assigned to Harford County and employed by the Association as a consultant on leave from the State Association.

He was sued individually and as “Field Service Representative” of the State Association. Relative to Elder the trial judge said in his opinion: “He testified that his job was one of directing the activities and to provide a more aggressive direction. He was the professional strike leader. He had been involved in the election of the County Executive on behalf of the teachers and in salary requests of the teachers of Harford County for a lengthy period of before and up to and including the teachers’ strike.” The chancellor met with counsel for the Board and counsel for the Association on May 12.

At 9:33 a.m. on that date an ⁵⁷⁸ ex parte injunction was issued. The court’s order referred to the fact that the defendants named were “collectively, concertedly and individually participating in” a strike which was interfering “with the normal operation of public schools of Harford County,” that there appeared “to be a present danger that immediate, substantial and irreparable injury” would result if such conduct were permitted to continue which would include “intolerable disruption to the lives of some 33,600 school children and their families, the economic waste of operating costs to the County and the taxpaying public, and the disruptions generally affecting the peace, safety, good order, general welfare, and morals of the community —” It said that “the granting of an Ex Parte Injunction under th[o]se circumstances [would] result in less damage to the Defendants than the failure to grant such an injunction would cause to Plaintiff.” It then directed that the named defendants and others, including “all certificated professional teachers employed by the Board,” be “enjoined and restrained from engaging in a strike against, or concertedly withholding and refusing to perform seryices for the Board or from calling, directing, inducing, encouraging or ordering any employee of the Board or any other persons to engage in or assist in calling or directing a strike against or withholding and refusing to perform services for the Board----” The defendants were further ordered to “take whatever affirmative action [was] necessary to bring about a cessation of the strike____” By its terms the order was to expire on May 24 unless a request was made before that day for an extension for a, longer period of time. The petition for permanent injunction was set for hearing on May 24 with the proviso “that Defendants m[ight] move for an earlier hearing on not more than two (2) days notice” in accordance with Maryland Rule BB72 b. No such motion was ever made.

Counsel for the Association testified that sometime between 1:30 and 2:30 in the afternoon of May 12 she met with Miss Hughes, the president of the Association, at which time counsel advised of the issuance of the injunction and discussed the matter with Miss Hughes. All of the individual parties here were served on May 13. Elder was served at 5:25 ⁵⁷⁹ a.m. The last party served appears to have been Mrs. Hammond who appeared at the sheriff’s office to accept service at 1:00 p.m. on May 13.

The attorney for the Association met with the Association’s entire executive board around noon on Thursday, May 13. She testified that she discussed the injunction with them “so that they were fully aware of what it meant, what it said, and what to do.” At about 10:30 a.m. on Friday, May 14, the teachers agreed to return to work. They actually returned to classes the following Monday. Rule P4 a provides, “Constructive contempt proceedings may be instituted by the court of its own motion ....” Rule P4 b 1 provides that if the court determines to cite a defendant for contempt a show cause order shall be issued which “shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the contempt charged.” Rule P4 d 1 states that in such event the court “may designate the State’s attorney or any other member of the bar to prosecute the proceeding.” The docket entries reflect: “May 24, 1976 Matter taken up before the Court (Judge Close) on Pltf’s Motion for Ex Parte Injunction.

Parties appeared. No action taken. Appearance of Susan Russess [sic], Esq. entered (Short) for Deft, (on motion).” The next docket entry after May 24 was on August 17. It shows the filing of what was called “Statement of Essential Facts Constituting Constructive Contempt and Show Cause Order Pursuant to Rule P4 of The Maryland Rules of Procedure.” On that date there were in fact two statements filed by the chancellor who had issued the original temporary restraining order.

One concerned only those teachers who are parties here other than those who were officers of the Association. It recited their employment as public school teachers in Harford County, the strike, the issuance of the temporary restraining order, its timely service, and their absence from their assigned duties until the termination of ⁵⁸⁰ the strike on May 17, referring specifically to their absence on May 11,12,13, and 14. The second statement was directed at the Association, Elder, and Miss Hughes. It, too, recited the strike, the issuance of the temporary restraining order, and its timely service.

It referred to the fact that Miss Hughes was absent from her assigned duties as a public school teacher during the same period. It cited statements by Miss Hughes and Elder prior to the issuance of the injunction to the effect that they would ignore any court order; a statement by Miss Hughes after the issuance of the injunction that “the strike will continue”; a publication by the Association which noted the issuance of the injunction and spoke of the importance of contacting nonstrikers, urging them to join the strikers; and a meeting between Elder and the Superintendent of Schools on May 13 at which Elder indicated that he “would call off the strike that afternoon because an economic proposal offered to him was acceptable, but he did not then take the actions necessary to call the strike off after the proposal was withdrawn....” In each instance the parties were directed to show cause on or before September 27 why they should not be adjudged in contempt. The State’s Attorney for Harford County “or one of his designated assistants” was appointed prosecutor in accordance with Rule P4 d 1. The orders each further directed that the matter be heard on October 25.

In this instance the trial judge who issued the citation for constructive contempt was not disqualified from presiding at the hearing since Rule P4 d 2 provides that he shall not be disqualified “where such contempt consists of failure to obey an order or judgment in a civil case.” Evidence was adduced at the hearing on the citation for contempt showing, in addition to the facts we have heretofore recited: The service of the ex parte injunction upon the Association, Elder, and each of the Teachers and the absence of each of the Teachers from their schools on May 11, 12,13, and 14. Elder was quoted as having said prior to the injunction that one would be issued and would be ignored. He acknowledged that he was the individual who “approved the content and the message that would go out in” the publication ⁵⁸¹ of the Association known as “HCEA Powerline.” That issued under date of May 13 stated: “The injunction has been issued naming all HCEA officers and a few others. This is a temporary injunction.

The hearing date for the permanent injunction is set for May 24.” It suggested: “[I]t is still important that you contact nonstrikers and urge them to join us.” A newspaper reporter testified that prior to the issuance of the injunction Miss Hughes told him, as reported in the press: “I knew the chances we took when we called the strike. If an injunction is filed, it is filed. I am ready to go to jail----The job action will continue as long as it takes.” Subsequent to the issuance of the injunction she issued a press release on behalf of the Association saying: “We believe that the injunction issued this morning will not help to solve the problem. We are also determined to achieve our goals and, therefore, the strike will continue.” The record reflects interrogation of Miss Hughes relative to this press release and her explanations: “Q Now, why did you indicate that the strike was going to continue in spite of the injunction? * * * “A Sir, this was Wednesday afternoon, and Mr. Elder had been in continuous contact with Doctor Roberty [(County Superintendent)] and with the County Council, negotiations were coming to a close, and we were so near a settlement that I felt it important that the pressure be kept on the County Council in fact to come to an agreement with the School Board and with us. ⁵⁸² “I felt that to say anything else publicly would have possibly taken the pressure off and softened the position of the County Council. “Q Couldn’t you have made no statement at all? “A Sir, I guess that would have been — that would have been an option.

But as spokesperson for the organization, I felt some statement should have been forthcoming from me. “Q Did you think of that statement at all in terms of being possibly a violation of the injunction or contempt of Court? “A Not at that time, sir, I didn’t. “Q Why didn’t you consider it in that light? “A Well, sir, I felt at the time that a settlement was so near that in fact we would be back to work within a day after the injunction. “Q But your statement is saying the strike is going to continue. “A Sir, as a public relations standpoint and in order to bring a strike to a close, which is in effect what I felt the injunction was asking me to do — end the strike as quickly as possible, I felt the only way to do that was to achieve a settlement. “Q So that was strictly for public relations to keep the Council under pressure; is that right? “A That was the prime purpose of it, sir. “Q The prime purpose? Was there a secondary purpose? “A No. I didn’t have any other purpose when I issued it. “Q Do you recall Mr. Elder yesterday suggesting that teachers felt that the — the teacher membership felt that the union leadership was in some cases weak and not as aggressive as they would have liked to have seen? “A Yes. ⁵⁸³ “Q Did you feel that way, too? “A Yes, sir.” The chancellor held all parties in contempt of court for their disobedience of the ex parte injunction of May 12, 1976. He levied fines of $500 on the Association, $350 on Miss Hughes and Elder, and $200 on the remaining parties. Costs were assessed against the Association.

An appeal was promptly noted to the Court of Special Appeals. We issued the writ of certiorari prior to consideration of the case by that court. Appellants contend: 1 — The Board of Education “sought and received the ex parte injunction to coerce the County political authorities,” hence the ex parte injunction was an “abuse of the injunctive process.” 2 — “The terms of the injunction are so unspecific and imprecise that Defendants cannot be punished for contempt.” 3 — Entrapment, it being claimed, “Defendants were induced by Plaintiff (a) to strike for the benefit of the total educational program and (b) to continue to strike following issuance of the injunction. This inducement is tantamount to entrapment, and the court below failed to consider this complicity as a defense or to consider it as legal justification.” 4 — Good faith, arguing that all of the defendants “acted in good faith to comply with the court’s injunction, so that the element of contumacious intent was absent.

The court below gave no consideration to this argument, and in its findings of fact the court ignored all evidence concerning it.” 5 — Impossibility, stating, “It was not possible under the existing circumstances for Defendants to end the strike or achieve the purpose of the court’s injunction in a shorter period of time or in any way other than in fact occurred. Literal and physical compliance with the injunction by Defendants would have unalterably ⁵⁸⁴ caused the strike to be continued by others and by the rank and file of the school teachers who ordered the strike in the first place.” 6 — Innocence of particular teachers, asserting, “The individual school teacher Defendants took no action constituting contempt following their knowledge of the injunction.” After first discussing the law, we shall consider these contentions seriatim. The Law The Association is an “employee organization” as defined in Maryland Code (1957,1975 Repl. Vol.) Art. 77, § 160 (a) (1).

Section 160 provides, among other things, for the right of public school employees to form employee organizations, the designation of an exclusive representative for employees in a specified unit, negotiations between the employer and the employee organization, a prohibition against strikes, and that enactment of § 160 “shall not be construed so as to make the provisions of the Maryland labor laws contained in Articles 89 and 100 of [the Maryland] Code applicable to public school employment.” Subsection (l) provides: “Employee organizations shall be prohibited from calling or directing a strike. If an employee organization designated as exclusive representative shall violate the provisions hereof, its designation as exclusive representative shall be revoked by the public school employer, and said employee organization and any other employee organization which violates any of the provisions hereof, shall be ineligible to be designated as exclusive representative for a period of two (2) years thereafter. If any employee organization violates the provisions hereof, the public school employer shall refrain from making payroll deductions for that organization’s dues for a period of one (1) year thereafter.” ⁵⁸⁵ Cf. Bennett v. Gravelle, 323 F. Supp. 203, 208 (D. Md. 1971), stating, “The accepted common law rule as adopted in Maryland and in other jurisdictions is that absent an authorizing statute, a public employee has no right to strike.” Prior to the enactment of