Esther Austin was adjudged guilty of contempt of the Superior Court in Denver. A fine of $100.00 (the approximate cost of a trial of the cause in which she was then a defendant) was assessed against her. It is this action of the trial court which is the subject of attack by the present writ of error.
Esther was convicted in the Municipal Court in Denver of violating an ordinance of that city. She appealed the judgment and sentence imposed to the Superior Court, where, on a trial de novo, the jury was unable to agree on a verdict.
The entire proceeding involving the contempt took place before the jury was discharged as the result of the belief of the trial court that the jurors were insolubly deadlocked. We quote the proceeding in its entirety:
On the following day, the trial court entered its order, to-wit:
Whether the court read the letters, and whether they were harmless, the record does not reveal. An assurance that they were innocuous and inoffensive, and an offer to the court that it verify whether such be the case were efforts at mollifying the court in the pursuit of whatever purpose it had in mind in conducting the hearing.
The power to punish for contempt, as a punitive measure or to coerce obedience, is an inherent and indispensable power of the courts. Such power "is not derived from the Legislature and cannot be made to depend upon the legislative will." Intrinsic in tribunals following the common law, such as ours, is the right to protect themselves against insults and indignities, interference with the administration of justice, and disobedience of their orders. People ex rel. Attorney General v. News-Times Pub. Co., 35 Colo. 253, 84 P. 912, error dismissed, Patterson v. People
Although there is no fixed procedural formula for contempt proceedings, so that technical nicety is not required, Schwartz v. United States, 4 Cir., 217 F. 866, courts should improvise a procedure which accords with due process of law. "No person shall be deprived of life, liberty or property, without due process of law." Art. II, Sec. 25, Constitution of Colorado.
Essential to due process in contempt proceedings is the right of one to know that the purpose of a hearing is the ascertainment of whether he is guilty of contempt. Federal Trade Comm. v. A. McLean & Son, Cir., 94 F.2d 802; McCann v. New York Stock Exch., 2 Cir., 80 F.2d 211; Dept. of Health v. Roselle, 34 N.J. 331, 169 A.2d 153; State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N.W. 830, 23 A.L.R. 491.
Where the purpose of the proceeding is or may be equivocal from the vantage of the person to be affected, it is the duty of the court to apprise him of the object of the hearing. "Hence the defendant must be informed at once of the purpose of the proceeding. It will not do to find its nature from the terms of the resulting judgment." Dept. of Health v. Roselle, supra; see Yates v. United States, 9 Cir., 227 F.2d 844.
An open, overt hearing before a fair tribunal is basic to due process. Clearly, due process of law would be thwarted where, as here, the manner in which the hearing is conducted makes it doubtful as to its nature, and the hearing may be looked upon by the person to be affected as one to determine whether the court should declare a mistrial and discharge the jury, or as one merely to ascertain if a juror was influenced by the irregular conduct of the party litigant, or as one to adjudge if the party litigant was in contempt of the trial court.
Had Esther been informed of the purpose of the hearing, she may have had an explanation which would have been exculpatory. At least, she should have been afforded the opportunity to defend herself. Moreover, the letters may have been of an unexceptionable character, tempering whatever punishment should have been inflicted. Certainly the ascertainment of the quality of contempt "should not rest on speculation." People ex rel. Attorney General v. Kimsey, 101 Colo. 392, 74 P.2d 663.
Concretely, when the nature of the proceeding was definitely learned "from the terms of the resulting judgment," such knowledge came too late.
The judgment is reversed.
PRINGLE, J., did not participate.