Don McMilian v. Rennau

619 S.W.2d 848, 30 A.L.R. 4th 141, 1981 Mo. App. LEXIS 3647

• Court: Missouri Court of Appeals
• Decided: June 30, 1981
• Docket: No. WD 32176
• Status: Published

Opinions

CLARK, Judge.

This is an original proceeding in habeas corpus on the petition of Don McMilian alleging his unlawful detention and imprisonment by the Sheriff of Jackson County.¹ Our writ issued commanding that return be made showing such legal cause as might be for the detention. The return exhibited a judgment of contempt found against McMillian (sic) by the Circuit Court of Jackson County and a warrant ordering McMili-an’s commitment for a term of ten days as punishment. McMilian’s response to the return admits prospective detention pursuant to the warrant but denies the lawfulness of the order. As briefed and argued here, two points are asserted: (1) the acts committed were not within the plenary jurisdiction of the court to punish for contempt, and (2) the process was procedurally defective.

In habeas corpus, the petition is a preliminary pleading which drops out of the case when the return is made. That return, together with the traverse by way of reply, form and define the issues in the case. Ockel v. Riley, 541 S.W.2d 535, 536 (Mo.banc 1976); Rules 91.16 and 91.28. Because the pleadings and exhibits ordinarily comprise the entire record in habeas corpus, Rule 91.28 requires that a denial of the return be under oath. If the traverse is not verified, the allegations of the return must be taken as true. Houston v. Hennessey, 534 S.W.2d 52, 54 (Mo.App.1975). In this case, the reply denying the return was neither signed by McMilian nor verified, and the cognizable and relevant facts are therefore derived from the return and the hearing transcript and may be succinctly stated.

On September 10, 1980, McMilian telephoned the court with a request that he be permitted to speak with Judge Gant regarding criminal charges in a pending case involving McMilian’s son. When informed by the bailiff that the judge would not engage in ex parte discussions about a pending case and that McMilian should contact the attorney representing his son’s interests, McMilian stated to the bailiff: “Tell Judge Gant that all judges are full of shit and tell Judge Gant to stick it up his fucking ass.” The bailiff relayed the message to Judge Gant and a proceeding in contempt followed.²

McMilian first contends that the contempt judgment finds no sanction under § 476.110, RSMo 1978 because no act of McMilian was committed in the court’s presence and he made no resistance to any lawful process of the court. Without any rational explication, respondent asserts that the statute does provide jurisdictional authority here because McMilian’s contemptuous and insolent behavior tended to impair respect for the authority of the court. That contention is unsound. By express terms, jurisdiction to punish for contempt under the statute for contemptuous or insolent behavior is limited to acts “ * * * committed during (the court’s) session, in its immediate view and presence * * § 476.-110(1), RSMo 1978. It is unnecessary here to consider whether a direct telephone communication to the judge could, under appropriate circumstances while the court was in session, amount to “immediate view and presence.” The conversation with the bailiff was only a communication through an intermediary who was not, himself, the object of any vilification. The statute is plainly inapplicable.

Despite absence of statutory authority in this case to support the adjudication in contempt, the proceeding is not necessarily infirm for want of jurisdiction. Constitutional courts of common law jurisdiction additionally possess, by the nature of the judicial office, an inherent power to punish for contempt of their authority. State ex rel. Girard v. Pereich, 557 S.W.2d 25, 36 (Mo.App.1977). That authority extends to protect, preserve and vindicate the power and dignity of the law itself. Teefey v. Teefey, 533 S.W.2d 563 (Mo.banc 1976); Ramsey v. Grayland, 567 S.W.2d 682, 686 (Mo.App.1978). The question on McMilian’s first point is whether the facts in this case justify invocation of inherent contempt power.

Before proceeding, it is appropriate to identify the genre of contempt here at issue. Contempts are said to fall into four categories — civil and criminal, direct and indirect. Civil contempt is intended to benefit a party for whom an order, judgment or decree was entered and is designed to coerce compliance while criminal contempt is punitive and acts to protect the judicial system as a method established by the people to solve disputes. Mechanic v. Gruensfelder, 461 S.W.2d 298, 304 (Mo.App.1970). A direct contempt is one that occurs in the immediate presence of the court (in facie curiae), while an indirect contempt is an act outside the court but tending to degrade or make impotent the authority of the court or to impede or embarrass the administration of justice. Curtis v. Tozer, 374 S.W.2d 557, 568 (Mo.App.1964). The distinction between civil and criminal contempt is reflected in the content of the judgment, whether the remedy is coercive or punitive. In direct contempt cases the court is entitled to act summarily while in cases of indirect contempt the alleged con-temnor is entitled to procedural rights of notice and hearing.

McMilian’s case is one of indirect criminal contempt. No coercive remedy was imposed to benefit any litigant, only punishment to vindicate the court’s authority and dignity in the face of McMilian’s remarks. The indirect nature of the contempt is confirmed by the character of the proceeding, with notice and hearing. The question, therefore, is whether McMilian’s conduct amounted to indirect criminal contempt for which punishment could be imposed.

By its nature, the court’s inherent power to punish for contempt has imprecise boundaries essentially ascertainable only by reference to particular facts. In general, however, punishment for criminal contempt has been defined as a recourse necessary to vindicate the authority of the court and to deter future defiance. Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710, 715 (Mo.App.1977). Because the subjection of individual freedom by expression or action is the consequence when a court's power of contempt is exercised, the ultimate question is whether advancement of the general interest in an effective judicial system warrants imposition of restraint on the right of the individual to criticize and disparage.

The present case is difficult to classify because the import of McMilian’s two-phase comment addresses no particular case or action by the court. This circumstance may be attributable, in part, to the influence of intoxicants on McMilian who expressed inability to remember the conversation. At face value, the first portion of McMilian’s statement was obviously a general slander on the judiciary. The second phrase was unconnected with any particular object of McMilian’s ire, and thus is considered to be a common gutter expression of general defiance.

McMilian actually expressed no criticism of past or contemplated action by the court in any pending case and he cannot be charged with an attempt, by his remarks alone, to influence any decision by the court or to impede the judicial function. In oral argument, respondent contended that disqualification of Judge Gant in the criminal ease for McMilian’s son would be a necessary consequence of McMilian’s remarks and that such amounted to sufficient interference with orderly processing of the court’s business to justify recourse to punitive contempt. Aside from the relatively minor inconvenience entailed in the transfer of one case, the argument fails because it lacks support in the record. At no time in prosecution of the contempt was any showing made that transfer of any criminal cases occurred nor did the charge against McMilian raise that contention. Invocation of the court’s power of contempt here rested solely on a perceived necessity to punish McMilian for his vituperative abuse of the court in general and Judge Gant in particular.

No reported Missouri case appears to have confronted the necessity to define inherent authority of the court to invoke contempt powers in a situation where, as here, the alleged contemnor has defied no particular order, has created no public disturbance and has brought to bear no influence on the outcome of a pending case. There can be no doubt, however, that the court derives and exercises inherent contempt power only in those situations where administration of the judicial enterprise necessitates subjugation of other rights, including the rights of persons to freely and evenly intemperately express their minds. If the judicial function is not integrally threatened by the allegedly contemptuous expression, then there is no inherent contempt power to exercise. As a measure applied to evaluate the degree of threat in allegedly contemptuous conduct, the theory of a clear and present danger has evolved.

The “clear and present danger” concept appears first to have been developed in Schenek v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919) where the abridgment of free speech and press was acknowledged to be a casualty in contempt cases. The doctrine was more fully developed in Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), which is most often cited as the authority in contempt cases. The test to be employed in determining whether a given expression, statement or publication was sufficiently grievous to support contempt punishment was described in the following terms:

“What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Bridges at 314 U.S. 263, 62 S.Ct. 194.

The court further observed:

“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” Bridges at 314 U.S. 270-271, 62 S.Ct. 197.

In Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946), a judgment of contempt had been rendered for published comment critical of administration of criminal justice by the Circuit Court of Dade County and charging a lack of integrity by the judges of the court. Pennekamp bears some similarity to the present case in that the comment was generally addressed to the judiciary, but was more specific in alleging misconduct with regard to particular matters. In his concurring opinion to the principal decision reaffirming Bridges v. California, supra, and the clear and present danger doctrine, Mr. Justice Murphy stated:

“That freedom covers something more than the right to approve and condone insofar as the judiciary and the judicial process are concerned. It also includes the right to criticize and disparage, even though the terms be vitriolic, scurrilous or erroneous. To talk of a clear and present danger arising out of such criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice.” Pennekamp at 328 U.S. 369-370, 66 S.Ct. 1048.

Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947) involved published criticism of the action of a judge in a particular case and a judgment of contempt which followed. The contemptuous remarks described the court’s rulings a “travesty on justice” and otherwise demeaned the ability of the judge to provide a fair trial. The case followed the previous rule of Bridges and Pennekamp as to clear and present danger measured not by the content of the intemperate and unfair criticism alone but by the impact on judicial action. The case further defines clear and present danger in the following terms:

“The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” Craig at 331 U.S. 376, 67 S.Ct. 1255.

Finally, in this sequence of United States Supreme Court cases, came Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). Wood, a county sheriff, was convicted of contempt for remarks questioning a grand jury investigation of improprieties in voting. The record disclosed no evidence indicating how the statements by Wood affected or impeded any judicial process, only the conclusion by the state court that a clear and present danger to the fair administration of justice was presented. The opinion instructs not only that clear and present danger remains the test in criminal contempt cases, but that the record must actually show a substantive evil actually designed to impede the course of justice.³

The contempt judgment must fail here for want of inherent contempt authority. A prerequisite to exercise of that authority was a demonstrated impediment to the judicial process, real, threatened and imminent. No evidence was offered to show how McMilian’s statement had affected the judicial function in any pending case. The bare fact of the communication and its content do not permit the inference that some interference threatened the administration of justice. Although Judge Gant’s sensibility was no doubt affected when the remarks were conveyed to him, any consequence to the judicial system is remote, conjectural and speculative. Moreover, McMilian’s remarks, however offensive and boorish, were limited to the ears of the bailiff alone and were far less egregious than the widely published statements in Bridges, Pennekamp and other cited cases.

Cases cited by respondent and contended to approve contempt punishment for communication of vulgarities to judicial personnel are not persuasive. State v. Sax, 139 N.J.Super. 157, 353 A.2d 113 (1976) involved a letter with which the contemnor transmitted payment of a parking fine and which contained an obscenity. The opinion affirming a contempt conviction relies only on a general statement that public interest requires respect for the courts. The result is untenable in the light of Bridges and Pennekamp. Saunders v. State, 319 So.2d 118 (Fla.App.1975) was a case in which a witness, while leaving the stand, uttered a profanity to the judge. As a direct contempt, the case is distinguishable from and inapplicable to the present case. People v. Hagopian, 343 Ill.App. 640, 99 N.E.2d 726 (1951), also cited, involved attempted bribery of a juror and has no relevance here. Other cases cited by respondent are not authoritative or are inapposite.

In accordance with the views here expressed, McMilian’s conduct, however offensive to accepted social and behavorial standards, posed no threat to the functioning of the judiciary in general or to the particular division of the Jackson County Circuit Court which was the object of McMilian’s ire, and the inherent contempt power of the court was therefore improvidently invoked. Disposition of the case on this ground renders unnecessary any discussion of McMili-an’s complaint that process was deficient. The petitioner is ordered discharged.

SHANGLER, DIXON, SOMERVILLE and TURNAGE, JJ. concur.

WASSERSTROM, C. J., dissents in separate opinion; MANFORD, J., concurs in dissent.

1 . Throughout, the pleadings and orders have referred to petitioner’s detention by the Sheriff of Jackson County in the Jackson County Jail. Under the Constitutional Home Rule Charter adopted November 3, 1970, and amended August 8, 1978, the sheriff in Jackson County has no responsibility for correctional institutions or inmates. This court, sua sponte, has modified the proceedings by addressing its writ to the Director, Jackson County Department of Corrections.

2 . The hearing transcript does not contain the documents which initiated the contempt proceedings and respondent’s return shows only the judgment of contempt and the warrant of commitment. Judge Gant did not sit upon the adjudicatory phase of the case, but apparently did cause an order to be issued which commenced the prosecution. We assume the disqualification of Judge Gant to have been processed as required by Rule 36.01(b).

3 . In a more recent case, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), the Supreme Court again resorted to the clear and present danger concept. In Landmark, prosecution was had under a statute which made publication of information about proceedings before a state judicial review commission a criminal offense under certain conditions. The court found analogy to Bridges, Pennekamp, Craig and Wood and held the statute invalid unless the prohibited conduct presented, as in contempt cases, a clear and present danger to an effective judiciary.