Wood v. Goodson

John A. Fogleman, Justice, concurring. At the threshold of every case there is an important barrier that must be surmounted before any action by any court is warranted or permissible. That is the question of the court’s jurisdiction both of the subject matter and of the persons of the parties. I feel compelled to register my protest because the majority has ignored this barrier and has neither climed or hurdled it. But it has not gone away. The very first pleading filed by petitioner was a special appearance asserting that the extraterritorial service of the citation for contempt did not confer jurisdiction upon the circuit court and asking that the service be quashed. The circuit judge denied petitioner’s motion to quash this service before any other pleading was filed or even mentioned. It was only then that petitioner filed a motion for disqualification of the circuit judge, subject to his special appearance to contest jurisdiction. Only after this petition had been overruled did the pleading upon which this court chooses to act ever enter into the matter. This was petitioner’s demurrer to the citation, also specifically made subject to the special appearance to contest jurisdiction. It was a general demurrer which was promptly overruled. Immediately following the overruling of the demurrer, a response, subject to the special appearance to contest jurisdiction was filed, which squarely raised the constitutional question treated in the majority opinion, after which the court continued the hearing until petitioner, who had thus far appeared only by his attorneys, was physically present, and ordered the immediate issuance of a body attachment for petitioner.

The question of the validity of the service of the citation on petitioner is just as important to the jurisprudence of this state and its administration of justice as the question treated in the opinion. In my opinion, there was nothing to be decided in the trial court until this issue was properly disposed of, and there is nothing before this court until the threshold question of jurisdiction has been determined. The special appearance was strictly limited to the question whether the service of the citation was sufficient to permit the court to act in the case. The other questions were presented subject to that appearance and the consequent jurisdictional question and properly so. I cannot believe that the majority, by circumvention, is implying that this service is valid. If so, I disagree. If not, then I submit that the majority opinion is an advisory one, is dictum, and of no binding effect, for want of jurisdiction, for if the trial court had no jurisdiction we have none, and nothing should be done except quash the service and the order punishing petitioner and dismiss him from further answer.

First, we cannot overlook the fact that criminal, not civil, contempt is involved. A criminal contempt proceeding is one brought to preserve the power and dignity of the court, while a civil contempt proceeding is one instituted to preserve and enforce rights of private parties to a suit and to compel obedience to orders and decrees made for the benefit of such parties. Blackard v. State, 217 Ark. 661 , 232 S.W. 2d 977 . It is commonly held that, in a proceeding for criminal contempt, the contemnor is entitled to all the safeguards surrounding criminal prosecutions. De-Parcq v. United States District Court for Southern District, 235 F. 2d 692 (8th Cir. 1956). See also, Gompers v. Buck’s Stove & Range Co., 221 U.S. 418 , 31 S. Ct. 492 , 55 L. Ed. 797 (1911); Michaelson v. United States, 266 U.S. 42 , 45 S. Ct. 18 , 35 A.L.R. 451 , 69 L. Ed. 162 (1924); Parker v. United States, 153 F. 2d 66 , 163 A.L.R. 379 (1st Cir. 1946); Wakefield v. Housel, 288 F. 712 (8th Cir. 1923); In re Nevitt, 117 F. 448 (10th Cir. 1902); Swanson v. Swanson, 10 N.J. Super. 513 , 77 A. 2d 477 (1950), aff’d 8 N.J. 169 , 84 A. 2d 450 (1951). We have clearly recognized and applied these principles when we held that proof of guilt of a charged criminal contempt must be beyond a reasonable doubt. Blackard v. State, supra.

In holding that prosecutions for criminal contempts are subject to constitutional guaranties of jury trial, the United States Supreme Court, in Bloom v. Illinois, 391 U.S. 194 , 88 S. Ct. 1477 , 20 L. Ed. 2d 522 (1968), had this to say:

Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:

“These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.” Gompers v. United States, 233 US 604, 610 , 58 L. Ed. 2d 1115 , 1120, 34 S Ct 693 (1914).

Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical— protection of the institutions of our government and enforcement of their mandates.

Because of the close analogy to a criminal proceeding, the process by which a criminal contempt proceeding is initiated must be served within the state in which the proceeding is commenced in order to clothe that court with jurisdiction to decide the charge of contempt. Swanson v. Swanson, supra; Brown v. Brown, 96 N.J. Eq. 428 , 126 A. 36 (1924); In re Lavin, 59 Idaho 197 , 81 P. 2d 727 (1938).

We have clearly recognized the necessity for personal service in criminal contempt proceedings. In Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577 , 187 S.W. 2d 538 , the petitioners sought review of their punishment for contempt for wilfully violating previous injunctive orders of a chancery court. See Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671 , 177 S.W. 2d 410 . This is criminal contempt. See Ark. Stat. Ann. § 34-901 (Repl. 1962). In Hudkins, we stated that since Ritholz, one of the parties who was enjoined in the original proceedings, was in a foreign jurisdiction he could not be reached for punishment. Later in Ritholz v. Dodge, 210 Ark. 404 , 196 S.W. 2d 479 , we repeated the proposition that the Arkansas court was powerless to compel the physical presence of an alleged contemnor for punishment, even though the court, by service on the manager of the store owned and operated by the nonresident partners in violation of the court’s orders, did have jurisdiction to subject the property of the nonresidents used in violation of the court’s injunction to the satisfaction of a fine imposed for the violation.

I would quash the order punishing petitioner for contempt for failure to appear upon the citation because of the invalidity of the service.

The other phase of the case should be simply disposed of. We have held that where it does not appear from the record that the suspension is a mere postponement of sentence, the suspension operates as a complete remission in cases of criminal contempt. Johnson v. Johnson, 243 Ark. 656 , 421 S.W. 2d 605 ; Stewart v. State, 221 Ark. 496 , 254 S.W. 2d 55 . Actually, the principal reason given in Stewart for declaring that such a suspension as was made here amounted to complete remission was the lack of authority for an indefinite suspension in contempt cases. In Johnson we said that there was no basis for appellate relief in such a case. In Turpy v. State, 234 Ark. 821 , 354 S.W. 2d 728 , we quashed a suspended sentence in a contempt proceeding because it amounted to a complete remission. We should do the same here.

If, then, the order fixing petitioner’s punishment for failure to appear in response to the citation should be quashed because the court had no jurisdiction over the person of petitioner, as I feel sure the majority would agree, and if the suspended punishment is a complete remission of the contempt charge based on the publication of the jury verdict so that it could be quashed, I am unable to conceive of any reason for the eagerness of the court to go wading in the constitutional quagmire which has arisen on the question of appropriate balance between the equally cherished constitutional guaranties of free press and fair trial, as it has. I can only repeat my dissent in Grimmett v. State, 251 Ark. 270 -A, 476 S.W. 2d 217 , wherein I pointed out that: this court said for more than 75 years that courts do not and should not pass upon constitutional questions unless the answers to those questions are so necessary to a determination of the case that it cannot otherwise be decided; decisions of the court on constitutional questions under such circumstances are pure dictum; when an appeal can be disposed of without determining the constitutional question it is our duty to do so; constitutional questions are never decided unless necessary because the case cannot be disposed of on any other ground. On the same date as we handed down our opinion in Grimmett this court, in Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055 , 476 S.W. 2d 211 , said:

We do not reach the constitutional arguments here made because the trial court after lapse of the October 1970 term of court had no jurisdiction to amend the judgment to grant any additional relief. In St. Louis & N. A. Rd. Co. v. Bratton, 93 Ark. 234 , 124 S.W. 752 (1910), we pointed out that there is no authority after term time for a trial court, under the guise of an amendment, to revise a judgment to adjudicate a matter which might have been considered at the time of the trial or to grant an additional relief not in contemplation of the court at the time the judgment was entered. This in accord with our long standing rule that constitutional issues will not be determined unless their determination is essential to disposition of the case, Martin v. State, 79 Ark. 236 , 96 S.W. 372 (1906), and Bell v. Bell, 249 Ark. 959 , 462 S.W. 2d 837 (1971).

See also, Satterfield v. State, 245 Ark. 337 , 432 S.W. 2d 472 , and Searcy County v. Stephenson, 244 Ark. 54 , 424 S.W. 2d 369 . Our language in those cases was positive and unequivocal, admitting of no exceptions. I had thought that Grimmett might be an aberration that would not be indicative of the future course of this court. I had not the slightest idea that it indicated an overruling of what this court has called an unvarying rule.

A reading of the opinions in Grimmett might lead to the conclusion that the real difference between the majority and the dissenters lay in the basic premise of the dissenting opinion, i.e., that there had been no evidence of a law violation by Grimmett. If there was, the constitutional question was properly approached. If not, it was not. The apparent departure could easily be explained in this way, and seems more plausible than the notion that the court did not intend to abide by its wholesome rule.

I submit that our long standing rule is appropriate and that deviations from it presage nothing except additional burdens and additional troubles to plague the judiciary and the judicial system. If all courts had exercised appropriate judicial restraint and not gleefully seized upon the earliest opportunity to decide grave constitutional questions, this nation might not be enveloped in a state of constitutional flux which all too often seems to be the product of judicial opinions.

I further submit that the majority opinion is contrary to an authority upon which it relies. United States v. L. Dickinson & G. Adams, 465 F. 2d 496 (5th Cir. 1972), does not foreclose the possibility that special exigencies might justify curtailment of publication of court proceedings in extraordinary circumstances constituting an immediate danger to the administration of justice. 1 There the court only considered a blanket ban on publication. But more important is that court’s holding that an order of a court having both subject matter and personal jurisdiction must be obeyed even though invalid for constitutional reasons and that one may be punished for contempt of court for disobedience of a court order, regardless of the unconstitutionality of the underlying order. The Fifth Circuit Court of Appeals remanded that case for a determination whether the judgment of contempt or the punishment would still be deemed appropriate in light of the constitutional infirmities of the order.

The rule stated in Martin v. State, 162 Ark. 282 , 257 S.W. 752 , cited by the majority is in complete accord with the Fifth Circuit holding. This very statement in the majority opinion points up the necessity for the court to meet, not by-pass, the jurisdictional question.

I also suggest that, if the action of the trial judge in seeking to postpone publication of the jury verdict was improper, and if the court feels compelled to afford guidance to circuit courts for the handling of future problems where contamination of a trial and verdict by publication of results in related cases is probable, we could better accomplish the purpose by the exercise of our rule-making power. We have furnished no guide here, and it would really not have been appropriate to use the vehicle of this judicial opinion for establishment of guidelines for all such cases. A simple rule could guide the trial courts in their handling of jury verdicts in future cases.

I would also quash the contempt judgments, as hereinabove indicated.

See also, concurring opinion of Mr. Justice White in Branzburg v. Hayes, 408 U.S. 665 , 92 S. Ct. 2646 , 33 L. Ed. 2d 626 ( 40 USLW 5025 ) footnoted in the Dickinson-A dams opinion.