Opinion
April 11, 1952 —
May 6, 1952.
ERROR to review a judgment of the circuit court for Fond du Lac county: LOUIS J. FELLENZ, Circuit Judge. Modified and, as modified, affirmed.
J. E. O'Brien of Fond du Lac, plaintiff in error, in pro. per.
For the defendant in error there was a brief by the Attorney General and William A. Platz, assistant attorney general, and oral argument by Mr. Platz.
Plaintiff in error was convicted of criminal contempt of court and sentenced to pay a fine of $100 or be imprisoned in the county jail for a period not to exceed sixty days.
On July 12, 1951, during the course of certain proceedings had in a divorce action entitled, "Margaret Bernice Andrews, a minor, by her Guardian ad litem, Mrs. Bernice Wellens, Plaintiff, v. Richard Andrews, Defendant," plaintiff and her guardian ad litem appearing by J. E. O'Brien, their attorney, and defendant appearing in person and by his attorney, F.W. Cosgrove, the defendant was called to the stand and examined by the court. Also present was Mrs. Hazel Schmeck, who had testified as a witness at a previous hearing on July 9th.
Thereafter Mrs. Schmeck was recalled to the stand and examined by the court regarding the whereabouts of the plaintiff and regarding circumstances of certain alleged mistreatment of the witness because of her previous testimony. Mrs. Schmeck testified that Mrs. O'Brien, wife of the plaintiff in error and an employee in his office, telephoned her and upbraided her about her testimony which had been unfavorable to Mr. O'Brien's client. Upon Mr. O'Brien's objection that "that's going outside of any permissible or possible evidence in this case," the court said:
"Well, it may not be evidence in this case, but of course I'm interested in knowing just what happened. I think probably it will not be considered as part of the record in this case; but, I am interested in knowing just what happened there, because I think it's my duty to see that witnesses who come here, who are subpoenaed and come here to testify, are not going to be abused because they do; I think that's part of my duty, — not that it's part of this record, — and I'm interested in knowing just what happened."
The witness went on to testify regarding the conversation between Mrs. O'Brien and herself on the occasion mentioned, and then the court inquired whether she had had any discussion with Mrs. O'Brien before the trial.
"The Court: Did Mrs. O'Brien say to you that you should testify that she didn't go out with men?
"Witness: Yes.
"The Court: And your answer to that was what?
"Witness: `No, I wouldn't lie for anyone.'
"The Court: And that happened Thursday, before the Monday trial?
"Witness: Yes, sir."
After further examination of the witness by the court and both attorneys, the following colloquy between Mr. O'Brien and the court took place:
"Mr. O'Brien: I don't know whether you're trying the Andrews case, or Mrs. O'Brien.
"The Court: Well, I am trying to find out, Mr. O'Brien, why we can't try cases honorably, fairly, honestly, and squarely. I don't think that interference with witnesses is at all justified. We have altogether too much trouble.
"Mr. O'Brien: Why don't you do something about it, then.
"The Court: I'll try to; and I'm going to send this right down to the board in Madison as soon as I can.
"Mr. O'Brien: Well, I wondered what your purpose was.
"The Court: That's one of the things I'm going to do, because I am altogether alarmed about how much interference the board is going to stand, with the ordinary witnesses that come here and try to, — I think at least, — try to tell the truth.
"Mr. O'Brien: I'm wondering how much they will stand from a judge, too. . . .
"Mr. O'Brien: Well, there's so much about the proceedings of this court that I don't consider proper, that we are just in a mess.
"The Court: You mean that?
"Mr. O'Brien: Yes.
"The Court: What, for instance, do you particularly refer to, Mr. O'Brien?
"Mr. O'Brien: Oh, the last thing you did; the last thing you did.
"The Court: Mr. O'Brien, it's just because you do not know any of the principles of law applicable to the cases, or you don't make any pretense of learning them.
"Mr. O'Brien: I'll never learn it from you.
"The Court: You'll never learn it from anybody, because you've not got enough brains to learn anything from anybody.
"Mr. O'Brien: I wonder what's the matter with your brains; you've been staggering around here for three years, an object of charity. .
"Mr. O'Brien: Oh, I know as much about the law as you do.
"The Court: I'm not holding any brief for my knowledge.
"Mr. O'Brien: I would think that that is collateral to the matter before the court here.
"The Court: Well, I'll tell you what isn't collateral; you make any more wisecracks about my duties as a judge, and you'll be over in jail. That won't be collateral, Mr. O'Brien, and I want you to understand it; and you'll be in jail for a doggone good length of time.
"Mr. O'Brien: Why don't you go and sit down on the back porch where you belong.
"The Court: Why don't you get some sense, instead of trying to practice law like a criminal?
"Mr. O'Brien: The Bar ought to chip in for you — . . .
"The Court: Don't need to anybody chip in for me. You haven't tried any case before any judge that has defeated you yet, — and you can go back for twenty years — and you can't find any judge that you lost a case before, that you'd ever try a case before again.
"Mr. O'Brien: No, I don't want to before these insurance judges.
"The Court: And the fact is that you merely don't know anything about the law. . . .
"Mr. O'Brien: I know that's the way you feel toward me, or you wouldn't treat me the way you do. You have a few pets in the Bar.
"The Court: I have treated you with the utmost decency, been you have won as many cases before me as you have defeated in. . . . Those cases that you have won, I had to win them for you.
"Mr. O'Brien: I've won one, as long as you have been judge, and that's because you tried to favor a friend; and still I'm eating and working in the hopes that we will get"The
"Court: That's more than you've won in other courts.
"Mr. O'Brien: — in the hopes that we will get a judge here some day. . . .
"The Court: . . . If you'll think back about thirty years, you'll find out that you were dragged out of many a bar half alive and half dead.
"Mr. O'Brien: That might be.
"The Court: And you were an object of charity.
"Mr. O'Brien: That might be.
"The Court: And that was an object of charity that was self-inflicted.
"Mr. O'Brien: I never was district attorney, or never left the job owing to Fond du Lac county $12,000.
"The Court: Who did?
"Mr. O'Brien: Rumor has it that you did.
"The Court: That I did?
"Mr. O'Brien: I never bothered my head enough to look into it.
"The Court: That I left Fond du Lac county owing them $12,000?
"Mr. O'Brien: That's the rumor. . . .
"The Court: You have until next Tuesday to either prove that rumor, or disprove it; and, if you don't, at ten o'clock next Tuesday I am going to fine you for contempt of court.
"Mr. O'Brien: Go ahead; I won't bother my head about it; it's a long time ago.
"The Court: If you aren't going to be here, I am going to now fine you for contempt of court, $100 or sixty days in the county jail.
"Mr. O'Brien: Now?
"The Court: Right this moment; and that will stand, Mr. O'Brien, unless you pay it. Now, that's final.
(Plaintiffs enter courtroom.)
"Mr. O'Brien: You better 'tend to your business here; here's this witness.
"The Court: I've attended to my business, and that's the record, and if you don't pay that $100 by next Tuesday, I am going to see that you are properly incarcerated. . . ."
The plaintiff in the divorce action was then put on the stand and the divorce case continued.
The judgment does not appear in the record, but the warrant of conviction recites that the plaintiff in error was granted until ten o'clock on the morning of July 17, 1951, to present proofs of the charges made so as to purge himself of the contempt; that he appeared at said time, remained in court until noon, but indicated upon inquiry by the court by inference that he did not intend to offer any proof in regard to the charges and rumors and made no request of the court to hear him with respect thereto. The warrant of commitment was made on July 18, 1951.
We have quoted at length from the bill of exceptions because many of the facts alleged by the plaintiff in error both in his brief and in oral argument are not borne out by the record. Mr. O'Brien has practiced law in this state for many years and asserts that his respect for the courts maintains even in these troubled times. The remarks made by Mr. O'Brien, as quoted above from the record, speak for themselves.
We might say that some of the court's comments were uncalled for and that it should not have allowed the exchange of provocative remarks to continue for as long as it did. However, the highly improper conduct of the plaintiff in error, — as well as that of his wife in calling the witness, asking her to testify favorably in behalf of her husband's client, and later upbraiding her for testifying as she did, — was sufficient to provoke any court.
Contempt is defined in 12 Am. Jur., Contempt, p. 389, sec. 2, as follows:
"In its narrower and more usual sense . . . contempt has been defined as a despising of the authority, justice, or dignity of the court. Generally speaking, he whose conduct tends to bring the authority and administration of the law into disrespect or disregard, interferes with or prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass, or obstruct the court in discharge of its duties is guilty of contempt."
And at p. 396, sec. 11:
"It is peculiarly the duty of an attorney to maintain the respect due to courts and judicial officers, and any breach of this duty is a contempt."
The contention is made, however, that the court had no jurisdiction to find contempt, "There being nothing concerning the divorce before the court, and it being an inquiry into a collateral matter. . . ."
Sec. 256.03, Stats., provides in part:
"256.03 Every court of record shall have power to punish, as for a criminal contempt, persons guilty of either of the following acts and no other:
"(1) Disorderly, contemptuous, or insolent behavior committed during its sittings, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due its authority."
There is no question that Mr. O'Brien's contemptuous behavior occurred during a proceeding duly had before the court. The transcript of the proceedings is entitled in the case of Andrews v. Andrews, and shows that Richard Andrews, the defendant in that case, had given testimony immediately preceding Mrs. Schmeck, who was then recalled to the stand and examined as a witness in the divorce case. After some testimony as to what she had learned from Mrs. Andrews since her previous appearance on the witness stand, the court asked, "Now, I understand that you complained that you were rather mistreated because of your testimony?" and proceeded to inquire into the circumstances such mistreatment. It was clear from her testimony that Mrs. O'Brien, who is also her husband's secretary, had attempted to influence or interfere with the witness' testimony before the trial. It was not only the right of the court, but its duty, to investigate allegations of that nature in the interest of protecting witnesses from intimidation and maintaining such order as would insure honest testimony in the case. See Rubin v. State (1927), 192 Wis. 1, 211 N.W. 926.
No suspension or adjournment was had during this inquiry. The court was still in session, and the colloquy which ensued between the court and Mr. O'Brien unquestionably occurred "during its sittings, in its immediate view and presence." The court clearly had jurisdiction to find that Mr. O'Brien's remarks were contemptuous; they certainly tended "to impair the respect due its authority."
Plaintiff in error further contends that he was entitled to a trial as to the existence of the rumor referred to by him. There was no need to litigate the facts regarding the rumor. The only question was whether Mr. O'Brien's behavior was contemptuous. In so finding, the court followed the procedure outlined in the statutes:
Sec. 256.04 "Contempts committed in the immediate view and presence of the court may be punished summarily; in other cases the party shall be notified of the accusation and have a reasonable time to make his defense."
Sec. 256.05, Stats., provides that the particular circumstances of the offense shall be set forth in the warrant of commitment. This was done.
Sec. 256.06, Stats., provides that punishment for contempt may be by fine or imprisonment in the county jail, or both, but that the fine shall not exceed $250 nor the imprisonment thirty days. The court erred in fixing the imprisonment at sixty days, and the judgment must be corrected in this regard, but the period of imprisonment is actually immaterial since plaintiff in error has posted bail in a sum which is sufficient to cover the fine.
It is true that if action were brought under sec. 256.07, Stats., plaintiff in error would be entitled to have formal charges made against him, indictment, information, and a jury trial, but this is not such an action. The procedure followed was the summary procedure outlined by statute, and is entirely proper, as was held in Rubin v. State, supra, pp. 12, 14, where the court, in discussing sec. 256.04, said:
"This is but a legislative declaration of procedure that has always obtained in the courts. According to this, in cases of contempt committed without the view of the court, the party shall be notified of the accusation and have a reasonable time to make a defense. Not so, however, in cases of contempts committed in the immediate view and presence of the court. They may be punished summarily. The parties are not entitled to be notified of the accusation, nor a reasonable time in which to make their defense. Such has been the practice from time immemorial. . . .
"It may be conceded that this method of dealing with direct contempt is an anomaly in our law, which guarantees due process of law. However, it grows out of necessity and is deemed essential, in order to enable courts to preserve their existence and power and to confer upon society the rights which they are instituted to protect."
By the Court. — The judgment is modified by reducing the maximum period of imprisonment to thirty days, and as so modified, is affirmed.