State Ex Rel. Attorney General v. Martin

HENRY, Special Vice Chief Justice

(dissenting). I am unable to concur with my brother associate Justices in this case that the writ of mandamus should issue to disqualify two members of this court, Justices Riley and Clark. Therefore, I feel it my duty to say why I dissent. This is so’ely a contempt case, and nothing more. Therefore, can a judge of a court of record, be it an inferior court, or any member or members of the Supreme Court of the state of Oklahoma, be disqualified? I answer in the negative.

There are no property rights involved, and neither is contempt of court, either under the Constitution or laws of Oklahoma, a crime. If it were a crime, then by right the accused would be entitled to a jury trial. However, a contempt case is punishable as a crime, under section 2291, C. O. S. 1921. It is a well-settled rule that the power of a court of record to punish for contempt is inherent in the court. No ease has been presented to , this court that in a contempt case for any j cause th'e judge is disqualified to hear and j determine it, and I am unable to find any '1 case that so holds. It is said in 13 C. J., ^ paragraph 83:

“Since no court' except that against which a contempt is committed has power to punish it, the general rule is that a party accused of contempt is not 'entitled to a change of venue.”

Then at page 52, paragraph 69, same vol. C. J.:

“Since contempt proceedings are substantially criminal in their nature, one court is not authorized to punish a contempt against another court or judge, unless such other court or judge is an agency or part of the court inflicting the punishment, as, for instance, where the court is composed of several divisions, or as in the case of a referee, or the like. * * *”

It was held in Clay v. Walters (Fed.) 21 Am. & Eng. Anno. Cas. 897:

“Contempts are of two classes; ‘criminal contempts.’ which are prosecuted to preserve the pow'er and vindicate the dignity of the courts and to punish the offender, and ‘civil contempts,’ which are prosecuted to preserve and enforce the rights of private parties and to compel obedience to orders and decrees to enforce the rights and administer the remedies to which the court has found them to be entitled.” See McKee v. De Graffenreid, 33 Okla. 136 , 124 Pac. 303 .

To illustrate: If A. and' B., who are avowed enemies of a trial court of record, or any member or members of the Supreme Court, are by their acts and conduct in open court in contempt of that court, they cannot disqualify the judge or judges for bias or prejudice or interest, ill will or hatred, because th'ey themselves brought about the contempt, well knowing at the time of the enmity that existed betw’een them; therefore the judge or judges of that court are not disqualified to hear and determine the contempt case for the further reason the court is the object of th’e contempt, it is an offense against the court as an orean of public justice they must preserve the dignity of the court, contempt being a summary action.

It was said in Lamberson v. Superior Court of Tulare County, 91 Pac. 100 (a California case) :

“Nor is the judge disqualified from sitting in a contempt proceeding. Petitioner’s, theory on this regard, if we understand it,/ is that the judge is disqualified from hearing the proceedings in contempt, because the]

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contempt itself consists in imputations upon his motives, and attacks upon his integrity. (Such is not and never has been the law. The position of a judge in such a case is undoubtedly a most delicate one, but his duty ! is none the l'ess. plain, and that duty cun- ' manas that he shall proceed. However wi 1-t •' ing he may be to forego the private injury, ', the obligation is upon him by his oath to maintain the respect due to the court over , which he presides.”

As was said again by the Chief Justice of this same court in Re Philbrook, 105 Cal. 471 , 38 Pac. 511 :

“ ‘The law which in such cases makes us the judges of offenses against the court places us in an extremely delicate and invidious position, but it leaves us no alternative except to allow the court and the people of the state, in whose name and by whose authority it acts, to be insulted with impunity, or :o exercise the authority conferred by law for the purpose of compelling attorneys to maintain the respect due to the courts of justice and judicial officers.’ Were the rule otherwise, so that it was required that another judge should be called in to sit in the proceedings, the recalcitrant offending party would need only to insult such judicial officer in turn until the list was exhausted and thus, by making a farce of legal proceedings, go scatheless and unpunished.”

One of the very latest decisions on the question to disqualify a judge in a contempt proceeding is found in 69 L. Ed. at page 517, Cook v. the U. S., a case from Ft. Worth, Tex. Chief Justice Taft, writing the decision of the court, stated:

“A judge of a court of record in a contempt action is not disqualified to hear and determine the case.”

This case is in point with the one at bar; then, under this case, I hold no member of this court is disqualified.

Construing article 2 of section 6, Constitution of Oklahoma, and sections 2029 and 2032. C. O. S. 1921, together as to disqualification of judges of any court of record, it does not apply in contempt cases, in my opinion, but may apply to all other character and kind of cases; but as that question is not before the court, I express no opinion.

It seems well settled that one»eharged with contempt of court is not entitled to a change of venue from the judge, for the reason, as 1 view it, a judge having the inherent right to try and determine contempt cases, should not lose jurisdiction by a. change of venue.

It was said by the learned judge in a case from Indiana, in Coons v. State, 134 N. E. 194 :

“One charged with contempt of court is not entitled to change of venue from the judge.”

Then we find from the Supreme Court of Ohio, in Myers v. State, 40 Ohio St. 491 , 22 N. E. 44 :

“The statute clearly authorizes, as did the common law. courts to punish summari'y, as contempts, acts calculated to obstruct their business. They could not be maintained without such power, nor could litigants obtain a fair consideration of their causes in a court.where the jury or.judge should be subject. during the trial, to influences in respect to the case on trial, calculated to impair their capacity to act impartially between the parties. Nor is there serious danger to the citizen in its exercise. Power must be lodged somewhere, and that it is possible to abuse it is no argument against its proper exercise. But we think the danger more imaginary than real.”

I am further of the opinion that the two prior decisions of this court for a writ of mandamus, in cases numbered 1S080 and 18123, are binding on this court. In those' cases the writ was denied in each case to disqualify two members of this court, Justices Riley and Clark. For the reasons stated in this opinion and the decisions cited, I dissent, and I am authorized to ■ say Mr. Justice Lewis concurs in this dissenting-opinion.