STATE EX REL. STANTON v. MURRAY

BOBBITT, J.

Relator and appellant herein, David P. Stanton, is the prosecuting attorney of Lake County, Indiana, and will hereafter be referred to as appellant.

Respondent herein, William J. Murray, is judge of the Lake Criminal Court and, for convenience, will hereafter be referred to as appellee when discussing both the original action and appeal.

Both are, and were, during the time of the alleged acts herein, candidates for re-election to their respective offices.

The original action, cause numbered 28,909, and appeal, cause numbered 28,943, are concerned with the same subject matter, and involve the same records of the trial court. They are so closely related that we may consolidate and dispose of them in one opinion.

It should be said in the outset that we have had no help in the appeal from the alleged brief filed in behalf of the appellee, State of Indiana.

On April 4, 1952 appellant, as prosecuting attorney, and in the performance of his duty as such, appeared in the Lake Criminal Court for the purpose of arguing a motion to quash in a certain criminal case pending in said court. At the opening of court on that day when the prosecuting attorney appeared, the court announced that it had come to his attention that "some days" prior to April 4, 1952, appellant was quoted extensively in a newspaper published in Lake County to the effect that he, as prosecuting attorney of Lake County, had not had cooperation from the judge of the criminal court, "that a climate of hostility existed in the courts, that obstructionist tactics were confronting him, that his efforts to do his job in this court had been met with sneers, ridicule, scorn, abuse, and personal vilification, and that the attitude of the judge of this court [Lake Criminal Court] toward law enforcement was intolerable, and that this judge's system of having mutual back-scratching pro-tem substitution of lawyers as judge pro-tem in this court all constitute roadblocks to effective law enforcement and that the conduct of this court [Lake Criminal Court] indicates that a person was right who had demanded, `let's kick the rascals out.'"

The judge (appellee) then asked appellant if he was responsible for said article which had appeared in The Hammond Times on March 25, 1952, to which the appellant replied that he did not intend to stand and be interrogated on matters other than business pertaining to the prosecuting attorney, and that he would not answer any other questions than those pertaining to the business then before the court. Appellee then replied, "You have a constitutional right to answer or not" to which the appellant replied, "I do not want to answer." Appellee then said, "At this point, because I don't know if I should bar you from this Court room or whether I should cite you for contempt or whether I should be like the Irishman who was kicked by a mule and consider where it came from. I intended to do this yesterday but we were held up by a jury trial and before I hear any more cases or before I let you practice in this Court, I am going to decide what I am going to do about this article in the paper. I think, as an officer of this Court, you owe this Court an apology." After some further exchange of remarks between the appellee and appellant, and after the judge had told appellant that he had a right to leave the courtroom, he then said: "I [appellee] am not going to try anything before you [appellant] until you apologize to this court."

On April 7, 1952 appellant filed in this court his verified petition for writ of mandate and prohibition alleging therein that he, as prosecuting attorney, was present, ready, willing and able to present the argument which had been set on April 4, 1952 on said motion to quash, and that appellee arbitrarily refused to proceed in said matter or to permit appellant to attend the hearing or to participate therein, and further alleging that appellee refused to allow appellant to represent the State of Indiana in any matters pending in the Lake Criminal Court until such time as the appellant apologized to appellee for the statements allegedly made by appellant and published in The Hammond Times concerning appellee as an individual and as a candidate for re-election to the office of Judge of the Lake Criminal Court, and therein praying that an alternative writ issue directing appellee to set the cause of State of Indiana vs. William Vinovich for hearing on said motion to quash and permit and allow the appellant to appear at said hearing and represent the State of Indiana therein.

On this petition we issued an alternative writ on April 9, 1952 commanding appellee, William J. Murray, as Judge of the Lake Criminal Court, to allow and permit appellant to appear as Prosecuting Attorney and participate in all criminal matters pending in the Lake Criminal Court.

On April 19th appellee filed his return which was verified on April 17th, 1952. Among other things appellee states in said return that "Relator [appellant] may participate in the Vinovich or any other case where defendant sits as judge so long as relator well demeans himself.

"The Vinovich case may be set at any time that the calendar of the court will permit on request of either party to that proceeding.

"With respect to the alternative writ and its command the defendant states that he presently is and will continue to be willing to permit participation by relator as prosecutor in any matters pending before defendant as judge in the Criminal Court of Lake County, Indiana, so long only as relator properly conducts himself in the court."

Appellee further states in his return that he is making no demand on appellant to apologize to him for anything and recognizes that appellant may appear as prosecuting attorney in the Criminal Court of Lake County "so long as he remains such prosecutor and well conducts himself." Appellee further states that appellant is not suspended from practicing in said court, and no attempt will be made to prevent his full participation in any matter pending therein.

On April 17, 1952, the same day on which appellee's return was verified, appellant appeared before appellee in the Lake Criminal Court and argued a motion to dismiss in a criminal action there pending. At the completion of the arguments appellant was stopped by appellee as he was attempting to leave the courtroom and the following proceedings were had:

First: Considering the record before us as it applies to the original action, it appears from certain statements in appellee's return, as above set out, that he does not intend to continue the acts complained of in appellant's petition, and that he will permit appellant to appear in his court and perform his duties as Prosecuting Attorney. However, an examination of the entire record, both in the contempt proceedings and in the appeal, of which we take judicial notice, Rooker v. Fidelity Trust Co., Trustee (1931), 202 Ind. 641, 651, 177 N.E. 454; Indianapolis Dairymen's Co-op. v. Bottema (1948), 226 Ind. 260, 261, 79 N.E.2d 409, 412, discloses conduct of appellee which speaks so loud that the statements in his verified return become but whispers.

It seems clear from the whole record before us that on the very first occasion when appellant appeared in appellee's court in a criminal matter subsequent to April 4, appellee attempted to prevent appellant from appearing there in violation of the alternative writ issued by this court on April 9, 1952 by the subterfuge of summarily sentencing him for direct contempt of court for the same identical acts for which he was expelled from appellee's court on April 4th. It clearly appears that respondent has attempted to use the power of the court to punish for contempt to do indirectly the thing which he was prevented by the alternative writ from doing directly. Whether such action by appellee constitutes a contempt of this court is a question which is not presented and we are not called upon to decide.

The prosecuting attorney is a constitutional judicial officer, elected by the people, and he may be removed from office only by impeachment. Judges of courts cannot temporarily vacate the office by arbitrarily barring the prosecuting attorney from appearing in court so long as he properly conducts himself. State ex rel. Spencer v. Criminal Court, Marion Co. (1938), 214 Ind. 551, 556, 15 N.E.2d 1020, 16 N.E.2d 888.

In light of the entire record in the two cases here under consideration, we are of the opinion that in the interest of unimpeded justice the temporary alternative writ heretofore issued should be made permanent regardless of the statements in appellee's return.

Second: The appeal herein arises out of the action of the Lake Criminal Court in finding and adjudging appellant guilty of direct contempt of said court. The questions presented in this appeal involve not only the right of the court to enforce due respect for its authority, and punish acts which tend to impair and diminish such respect and interfere with the performance of its judicial functions, but they involve as well the preservation of personal liberty as against summary imprisonment, the right of free speech, and the proper limit which may be placed upon the discussion of the fitness of candidates for public office.

Six separate errors are assigned, all of which may be summarized as follows:

We shall first consider the trial court's ruling on appellant's motion to reconsider.

A direct contempt of court is an act committed in the presence of the court, or so near thereto as to interrupt its proceedings, while it is in session. Snyder et al. v. State (1898), 151 Ind. 553, 52 N.E. 152; 17 C.J.S., Contempt, § 3, p. 6, § 25a, p. 33.

This court will accept as true the statement entered of record by the lower court of the matter constituting the contempt. Blankenbaker v. State (1929), 201 Ind. 142, 166 N.E. 265, but will also examine the record, if necessary, to determine whether the acts alleged to be contemptuous do, in fact, constitute acts of contempt. Chula v. Superior Court in and for Orange County (1952), 109 Cal.App.2d 24, 240 P.2d 398.

Appellant contends that the finding of the court is void for failure to recite the acts constituting contempt.

An examination of the record and finding in the case at bar fails to disclose a recital of specific acts of appellant or any facts surrounding any alleged acts of his which would sustain a judgment against appellant for contempt. There does, however, appear in the record a recital by way of conclusion by the court that appellant made certain statements in open court while the court was in session, and that the statements were made in a "rude, insolent and disrespectful manner."

The mere recital of the conclusions of the court herein is not sufficient to satisfy the requirement that the acts constituting the alleged direct contempt shall be distinctly stated in the order of the court, but the finding itself must recite in detail the acts found to have been committed and which constitute the contempt for which the defendant is punished. Section 3-907, Burns' 1946 Replacement, Acts 1879, (Spec. Sess.) ch. 35, § 7, p. 112, supra; Gallagher v. Municipal Court of City of Los Angeles (1948), 31 Cal.2d 784, 192 P.2d 905; People v. Tavernier (1943), 384 Ill. 388, 51 N.E.2d 528; Smithwick v. Smithwick (1940), 218 N.C. 503, 11 S.E.2d 455; People v. Harrington (1939), 301 Ill.App. 185, 21 N.E.2d 903.

Affidavits of persons who were present in the courtroom on April 4, 1952 and heard the statements and observed the conduct of appellant at the time and under the circumstances herein were filed by appellant with his motion to reconsider the court's opinion and judgment, and are a part of the record herein.

The affidavit of A.M. Tipton, who is a retired farmer and trucker, and who is accustomed to visiting the Lake Criminal Court and observing criminal proceedings, states that he heard and saw all of the acts, signs, words, gestures, and conduct of appellant and appellee; that appellant did nothing by word, sign, act, or conduct which could be construed as rude, insolent or disrespectful; that appellant at all times conducted himself properly and with respect to the court; and that appellee appeared very angry and insisted that appellant apologize. Affiant further states that he had observed the appellant in the courtroom many times and that his demeanor, attitude and respect toward the court was always that of a gentleman, and that his conduct on April 4, 1952 was no different than on any other day when he had observed appellant in court.

The affidavit of Lawrence Gresh, who is a public officer of the city of Gary, Indiana, states that he was about fifty feet away from appellee and appellant on April 4th, and that he heard no loud or unusual statements from either of the parties, nor did he observe any unusual conduct on the part of either appellant or appellee.

The affidavit of Thomas Beggs, who is a retired electrical contractor, states that during the past three years he has been a visitor in the Lake Criminal Court, and that he was present on April 4, 1952 when appellant and appellee had a discussion concerning a newspaper article; that he at no time saw or heard appellant do or say anything in a rude, disrespectful or insolent manner, that he stood while addressing the court, did not move around and made no gestures; and that he frequently saw appellant in court and that his attitude, demeanor and actions were no different on April 4, 1952 than at any other time.

The affidavit of Herman Claussen, who is a retired automobile mechanic and was a visitor in the Lake Criminal Court on April 4, 1952, states that he had observed appellant in the trial of cases in said court on several occasions; that his conduct on April 4, 1952 was no different than on other occasions when he was in court, and that while addressing the court on April 4 he stood at the counsel table, did not walk about, did not use gestures nor raise his voice; that appellant said something about his being in court ready for trial, but appellee was speaking "rather loud" and wanted to know whether appellant was responsible for the article in The Hammond Times; that he finally said, "I won't let you practice here until you apologize for the article"; that appellant then said, "That's your decision", and picked up his books and left the courtroom; that appellant at no time made any discourteous, rude or insulting remark to the court.

The affidavit of James J. Clark, who is a practicing attorney of Lake County, states that he heard and saw the entire conversation, acts, words, signs and gestures and all the conduct of both appellant and appellee in the courtroom on April 4, 1952; that appellant at no time was rude, insolent or disrespectful, that his attitude toward the court was courteous and respectful; and that at no time did the court admonish the appellant concerning his attitude, manner or demeanor, and that at no time did appellant interfere with or impede the operation of the court.

When the above statements of disinterested parties, under oath, are weighed against the conclusions of the court as recited in the record, we are forced to conclude that the acts of appellant herein do not constitute acts of direct contempt.

We recognize that while certain statements in and of themselves might not constitute direct contempt of court, they might, if made in a rude, insolent and disrespectful manner, constitute direct contempt because of the manner in which the words were spoken. However, it appears from the record here that no such manner or conduct was employed by appellant at the time he made the statements referred to in the court's record.

The legislature in Indiana has, by statute, defined direct contempt and provided a procedure for the trial of one charged with such an offense. Acts 1879 (Spec. Sess.) ch. 35, §§ 1, 2, 6, and 7, §§ 3-901, 3-902, 3-906, 3-907, Burns' 1946 Replacement.

An examination of the record before us fails to disclose any action by appellant in the presence of the court which, when measured by the specifications laid down by the legislature in § 3-901, supra, could, even by the most liberal construction, be said to constitute acts of direct contempt, nor could such acts be so considered under any rule of law.

It clearly appears from the statements of appellee that in finding appellant guilty of direct contempt the court considered matters which occurred not only out of the presence of the court but which occurred outside of the building in which court was being held, and at a time thirteen days prior to the date on which appellant was found guilty.

Appellant contends that the attempt of the court to use its power to punish him under the circumstances in this case violates his right to free speech as guaranteed by both the federal and state constitutions and, in determining this question, we must weigh the right of free speech against the dangers of coercion and intimidation of courts as it appears from the factual situation presented by the record before us.

While it is the duty of an attorney to show proper respect to the court, it is likewise the duty of the court to show due respect and consideration to an attorney.

The rule which sets the measure of when the right of free speech ends and the right of punishment for contempt attaches, was ably stated by Justice Frankfurter as follows:

Pennekamp v. Florida (Concurring opinion) (1946), 328 U.S. 331, 66 S.Ct. 1029, 90 L.ed. 1295, 1315.

In the case at bar it is difficult to conceive how appellant, either by his actions in the courtroom or by the statement which appeared in The Hammond Times, could have disturbed the trial court in its sense of fairness, or influenced it in the decision of any case then pending before it. If there was any offense to appellee it resulted from criticism by appellant of what appellee, as judge, had already "put in the scales." There is no evidence here that appellant was attempting to "insert any weights."

Judges who seek re-election must run on their record. They may expect to be criticised and discussion of their conduct is both appropriate and desirable.

One of the prerogatives of American citizenship is the right to criticise public men, and it is essential to our form of government that the record of a candidate for office be subject to scrutiny and unlimited discussion subject only to the law of libel.

The Supreme Court of the United States in Craig v. Harney (1947), 331 U.S. 367, 67 S.Ct. 1249, 91 L.ed. 1546, 1550, said:

The words of caution uttered by Mr. Chief Justice Taft are relevant here: "The delicacy there is in the judge's deciding whether an attack upon his own judicial action is mere criticism or real obstruction, and the possibility that impulse may incline his view to personal vindication are manifest." Craig v. Hecht (1923), (Concurring) 263 U.S. 255, 279, 68 L.ed. 293, 300, 44 S.Ct. 103.

A situation similar to that in the case at bar was before the Supreme Court of Wisconsin in State ex rel. Ashbaugh v. Circuit Court of Eau Claire County (1897), 97 Wis. 1, 72 N.W. 193, 38 L.R.A. 554. In that case, at a time when the judge of the Circuit Court was a candidate for re-election, a lawyer who actively practiced in said court published an article in a newspaper charging the judge with being extravagant in the management of the court, with being partial and unfair in respect to his official conduct in the trial of cases, and with being influenced by corrupt motives. These charges all referred to proceedings and cases which had already been heard and decided, and did not pertain to matters then pending before the court. Subsequently, through the publication of said article, a newspaper ran an editorial covering the same subject matter. Both the lawyer and the editor of the newspaper were cited by the judge and charged with the commission of a criminal contempt. They were ordered to appear and show cause why they should not be punished for such alleged contempt. Both the editor and attorney appeared at the time set for hearing and when the court convened an alternative writ of prohibition from the Supreme Court was produced and served upon the presiding judge. Thereupon the judge announced that he would not proceed further with the pending proceedings, but at once made an order adjudging both the editor and lawyer guilty of direct contempt for the reason that they had filed affidavits alleging the truth of the published articles. At page 196, 72 N.W. 193, supra, the Supreme Court of Wisconsin said:

In the case at bar, as in the Wisconsin case, the statement complained of contained only criticism of the general character of the judge and of the conduct of his office. Likewise, as in the Wisconsin case, appellee is a candidate for re-election as judge of the Criminal Court of Lake County. We approve the statement of the Supreme Court of Wisconsin as above quoted and believe it applies with equal force in the case at bar.

In Francis v. People of Virgin Islands 3 Cir., (1926), 11 F.2d 860, 865, (Certiorari denied, 273 U.S. 693, 47 S.Ct. 91, 71 L.Ed. 843), it is said:

Judges in Indiana are elected, and every citizen may fully and freely discuss the fitness or unfitness of all candidates for office; they may criticise freely all decisions rendered and, by legitimate argument, establish their soundness or unsoundness, and comment on or discuss the efficiency or inefficiency, the fidelity or infidelity with which judicial officers discharge their duties. To hold otherwise would be a restriction of freedom of speech and of the press which is so necessary to the preservation of our system of government in its integrity. On the other hand, as stated by Judge Lairy, in Ray v. State (1917), 186 Ind. 396, 404, 114 N.E. 866, 869,

But when, as here, a judge becomes a candidate for re-election public policy permits a full discussion of his past record, subject only to the law of libel and not to the law of contempt.

It follows from the foregoing that appellee erred in refusing to reconsider his opinion and judgment, and appellant's motion for such relief should have been sustained.

Having decided that the court erred in overruling appellant's motion to reconsider, it is not necessary to consider the ruling of the court on appellant's motion for a new trial.

All available evidence purports to be in the records before us and no good purpose could be served by granting a new trial should one be ordered.

THEREFORE: 1. The alternative writ of mandate heretofore issued in the original action, cause numbered 28,909, by this court is made permanent, notwithstanding appellee's (respondent's) verified return; and 2. The judgment of the trial court is reversed in cause numbered 28,943 in this court, and the Judge of the Lake Criminal Court is instructed to vacate said judgment and discharge the defendant (appellant).

Alternative writ made permanent and judgment reversed.

Draper, J., not participating.

Jasper, C.J., concurs with opinion.

CONCURRING OPINION

JASPER, C.J.

I concur in the result reached in the majority opinion. Although the actions of the Prosecuting Attorney, a judicial officer, were not in keeping with the dignity of the office, his actions were not subject to being punished for a direct contempt of the court.

NOTE. — Reported 108 N.E.2d 251.