No. 101.

65 S.E.2d 356 (1951)

233 N.C. 699

PONDER v. DAVIS et al.

Supreme Court of North Carolina.

June 7, 1951.

Attorney(s) appearing for the Case

J. Walter Haynes, Asheville, A. E. Leake, Marshall and Shuford, Hodges & Robinson, Asheville, for plaintiff, appellee.

J. M. Baley, Jr., and Clyde M. Roberts, Marshall, for defendants, appellants.

STACY, Chief Justice.

The principal question for decision is whether the judgment of Judge Nettles, finding the defendants guilty of contempt, and the judgment of Judge Rudisill, imposing punishments on such finding, or either of them, can be sustained. The record impels a negative answer.

I. The Judgment of Judge Nettles

In the first place, it should be noted that by G.S. § 5-9, "In all proceedings for contempt and in proceedings as for contempt, the judge or other judicial officer who issues the rule or notice to the respondent may make the same returnable before some other judge or judicial officer"; and "When the personal conduct of the judge or other judicial officer * * * is involved, it is his duty to make the rule or notice returnable before some other judge or officer", unless the proceeding be for some act or conduct "committed in the presence of the court and tending to hinder or delay the due administration of the law", or "for the disobedience of a judicial order rendered in any pending action". This last limitation, or proviso, we apprehend, was not intended to cover an order entered in the same cause by the same judge when the propriety of his acting in the premises, and issuing the very order alleged to have been violated, is called in question. The statute declares a sound public policy that no judge should sit in his own case, or participate in a matter in which he has a personal interest, or has taken sides therein. Moses v. Julian, 45 N.H. 52, 84 Am.Dec. 114 and note. Here, it is alleged the judge took part on behalf of the plaintiff in the very election in which the plaintiff and one of the defendants were running for sheriff and about which they are now contending. We think the case comes within the spirit of the act requiring removal, if not within the letter, for the gravamen of the petition and affidavit of bias is, that the presiding judge took a partisan interest in the election contest, out of which the present controversy arose. State v. Hartley, 193 N.C. 304, 136 S.E. 868; State v. Byington Utah, 1948, 200 P.2d 723, 5 A.L.R.2d 1393. "If self the wavering balance shake, It's rarely right adjusted"—Burns (Epistle to a Young Friend)

Aside from the statute, however, "Every litigant, including the state in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge." State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331, 332; 15 R.C.L. 539; 30 Am.Jur. 76 and 778. A fair jury in jury cases and an impartial judge in all cases are prime requisites of due process. Chesson v. Kieckhefer Container Co., 223 N.C. 378, 26 S.E.2d 904. There is nothing on the record to contradict the petition and affidavit of Bristol Crowder or to support the findings of fact made by the judge in his order of 9 December, 1950. If he deemed it necessary or wise to challenge the matters set out in the petition and affidavit—and the plaintiff was not able to do it for him—it would seem that he might have transferred the matter to some other judge and filed his affidavit in reply thereto or asked to be permitted to testify orally in the case. Sigourney v. Sibley, 21 Pick., Mass., 101, 32 Am.Dec. 248; 48 C.J.S., Judges, § 94, p. 1097. To declare the petition and affidavit scurrilous and untrue and order it stricken from the record on the court's own motion without any counteraffidavit or evidence to contradict it, would seem to be making short shrift of the matters interposed by the defendants, notwithstanding the verified allegation of good faith. Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577; Kendall v. Stafford, 178 N.C. 461, 101 S.E. 15; White v. Connelly, 105 N.C. 65, 11 S.E. 177; Gregory v. Ellis, 82 N.C. 225; See, also, Advisory Opinion, 227 N.C. 705, 41 S.E.2d 749.

It is true a party ought not be permitted to disqualify a judge or to interrupt a proceeding by a false and scurrilous attack upon the presiding officer, and if the instant petition and affidavit of Bristol Crowder should prove to be such, he may be dealt with summarily and punished accordingly. Precedent decrees that a judge should recuse himself in contempt proceedings where they involve personal feelings which do not make for an impartial and calm judicial consideration and conclusion in the matter. Snyder's Case, 301 Pa. 276, 152 A. 33, 76 A.L.R. 666; 30 Am.Jur. 786. And it has been declared the better practice in recusations for prejudice to call upon some other judge whose rulings have not been ignored or disregarded, especially in cases of indirect or constructive contempt. Ex parte Pease, 123 Tex.Cr.R. 43, 57 S.W.2d 575; 48 C.J.S., Judges, § 83, p. 1064. Indeed, in the instant case the fact the judge felt constrained or impelled to transfer the matter to another judge for judgment lends color to the view that it should have been transferred before any findings were made, since the judgment of contempt, to be effective, needs to recite the facts upon which it is founded. In re Odum, 133 N.C. 250, 45 S.E. 569. He evidently recognized some impropriety in finally disposing of the matter.

The remarks of Chief Justice Taft in the case of Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 395, 69 L.Ed. 767, involving a similar petition for recusation, would seem to be appropriate here:

"The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court, is most important and indispensable. But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward, and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency, but it is not always possible. Of course, where acts of contempt are palpably aggravated by a personal attack upon the judge, in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that, where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge, called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place."

And it was said in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 234, 65 L.Ed. 481, that the policy or solicitude underlying the Federal statute on the subject, Section 21 of the Judicial Code, 28 U.S. C.A., applicable in the Federal Courts, is that "the tribunals of the county shall not only be impartial in the controversies submitted to them but shall give assurance that they are impartial, free, to use the words of the section, from any `bias or prejudice' that might disturb the normal course of impartial judgment"; i. e., shall also appear to be impartial. Whitaker v. McLean, 73 App.D.C. 259, 118 F.2d 596.

Nor do we think the subsequent partial transfer of the proceedings to Judge Rudisill for judgment is in keeping with the usual course and practice in such cases. One judge may transfer a case to another, but it is unusual for one judge to transfer a case to another and still hold on to it for ultimate disposition. Then, too, a partial or half-way transfer is more likely to produce suspicion of prejudice than to avoid it—the very thing it seeks to eschew. Like appeasement, it defeats its own ends.

It is important that the judgments of the court should be respected. To insure this, however, the court must first make sure that they merit respect. The issue here raised transcends any consideration of the immediate personalities or parties to the proceeding. "The law is not so much concerned with the respective rights of judge, litigant, or attorney in any particular cause, as it is, as a matter of public policy, that the courts shall maintain the confidence of the people". U'Ren v. Bagley, 118 Or. 77, 245 P. 1074, 1075, 46 A.L.R. 1173; 30 Am.Jur. 768. As stated in People ex rel. Roe v. Suffolk Common Pleas, 18 Wend., N.Y., 550: "Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge". Or as a former member of this Court, Allen, J., was wont to say: It is not enough for a judge to be just in his judgments; he should strive to make the parties and the community feel that he is just; he owes this to himself, to the law and to the position he holds. It is a great thing to have power, but it is an awful thing to have to use it in contempt proceedings, for in such hearings the wisdom and patience of the judge are often put to their severest test. "The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the courts"—Wolfe, J., in Haslam v. Morrison, 113 Utah. 14, 190 P.2d 520, 523.

To like effect is the announcement of the Michigan Court in Talbert v. Muskegon Const. Co., 305 Mich. 345, 9 N.W.2d 572, 573: "One of the fundamental rights of a litigant under our judicial system is that he shall be entitled to a hearing before a court to which no taint or prejudice is attached". To which the language of the Florida Court in State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615, may be added: "It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question."

Again in Kentucky Journal Publishing Co. v. Gaines, 139 Ky. 747, 110 S.W. 268, 272—a case arising out of a political campaign in which the judge made speeches for the candidate opposed by the defendant—it was said: "It is but the utterance of a legal platitude to say that it is of the utmost importance that every man should have a fair and impartial trial of his case, and that to secure this great boon two things are absolutely essential—an impartial jury, and an unbiased judge. But we go further and say that it is also important that every man should know that he has had a fair and impartial trial, or, at least, that he should have no just ground for the suspicion that he has not had such a trial."

The central allegation of the petition and affidavit filed herein is that the resident judge "personally came to the rural sections of Madison County immediately prior to the last political campaign in November 1950 and took an active part in the campaign for the plaintiff and other Democratic candidates". If this averment be true,—and it is not denied or challenged on the record—we think it must be conceded the resident judge was disqualified to hear the case, and he should have granted the petition for an order of recusation. State ex rel. La Russa v. Himes, 144 Fla. 145, 197 So. 762. Characterizing the entire petition and affidavit as "scurrilous and untrue" and striking it from the record, in and by the order of 9 December, 1950, doubtless increased or heightened rather than lessened or allayed, the defendants' fears and suspicions of bias or prejudice. Kentucky Journal Publishing Co. v. Gaines, supra.

II. The Judgment of Judge Rudisill

There is no finding of contempt in Judge Rudisill's judgment, nor was he authorized to make any under the order of transfer, hence it is without sufficient foundation to support the imposition of the fines.

In contempt proceedings it is essential that the facts upon which the contempt is based should be found and filed in the proceedings, especially the facts concerning the purpose and object of the contemner, and the judgment should be based on the facts so found. In re Odum, 133 N.C. 250, 45 S.E. 569.

Since the unchallenged petition for recusation, prima facie at least, sets out a legal objection to prejudice, the order of 9 December, 1950, and all subsequent orders and judgments entered in the cause or proceeding will be vacated, and the matters remanded for further consideration not inconsistent herewith. 48 C.J.S., Judges, § 97, p. 1105.

Error and remanded.


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