In Re Hoffman

168 N.W.2d 229, 382 Mich. 66, 36 A.L.R. 3d 1199, 1969 Mich. LEXIS 89

• Court: Michigan Supreme Court
• Decided: June 2, 1969
• Docket: Calendar 19, Docket 51,959
• Status: Published

Opinions

Black, J.

(for reversal). As this originally simple and altogether local proceeding came to appellate decision (9 Mich App 342), both its nature and issue as framed, tried and decided in circuit were subjected errantly to the influence of Federal law attending a conjectured but quite nonexistent Federal question. Now, and until this Court restores to its pristine posture what in the Court of Appeals became a curiously new-blown Federal case, no thought of affirmance may be entertained without offense to yet another constitutional right, that of a respondent charged with and convicted of contempt of a Michigan court to have his conviction reviewed without the application ex post facto of the rule of a Federal decision which, aside from its irrelation to such a proceeding, was handed down some 15 months after that respondent’s conviction was adjudged in circuit and he had timely claimed right of appeal.¹

• Here we review for error no criminal prosecution. No defendant charged with or convicted of crime stood before either of the courts below. None stands here. No Federal constitutional right, advanced on behalf either of the accusing judge or the respondent attorney, is at stake. The rights of no accused person or of any convict are called into play by him, or on his behalf. Our forthcoming judgment -will determine no issue arising under the Constitution ¡of the United States, or under any act of Congress, 'or treaties made, with respect to which the Supreme Court is given supreme interpretive authority by US Const, art 6. That judgment will simply determine whether, upon a record made in a circuit court of Michigan, before a circuit judge of Michigan, a member of the Michigan bar was properly judged— mider Michigan law^ — guilty of contempt of that same court of Michigan,²

These beginning postulates suggest that the proceeding under review should be ordered from exalted heights down to the comparatively pastoral legal environment of Allegan county. There the accusing judge, all credit to him, undertook only to determine whether the respondent attorney was, by the gauge of exclusively applicable Michigan law, guilty of contempt of one of our circuit courts for 1 simply assigned reason, reflected this way in the judgment entered in circuit and brought now to review:

“1. That on May 27, 1965, an order was made by this court appointing Leo W. Hoffman, a duly licensed attorney at law, appellate counsel in the matter of The People of the State of Michigan v. Ernest B. Sandefur, criminal file No. 4068, Allegan county circuit court.

“2. That the said Leo ~W. Hoffman, well knowing the terms of the said order, did, in a report filed in this court, refuse to prepare and file an appeal for the said Ernest B. Sandefur, giving as his reason therefor, that he was unable, after careful examination, to find any ground for an appeal.

“3. That such refusal to prepare and file an appeal as guaranteed by the Constitution of the State of Michigan 1963, particularly article 1, § 20, and GrCB, 1963, 785, constitutes a violation of a valid order of this court, and that a refusal to proceed as directed constitutes contempt of this court.”

Like all judges of the courts of the States, Judge Smith knew naught then of Anders v. California (May 8, 1967), 386 US 738 (87 S Ct 1396, 18 L Ed 2d 493). That case had not as yet been Federally conceived. The conception did not take place until certiorari was granted April 4, 1966, 383 US 966 (86 S Ct 1278, 16 L Ed 2d 307).

First: Judged exclusively by the record made by and before Judge Smith, was the respondent contemptuous¶

By way of purposeful preamble the indorsers of this opinion approach consideration of the recorded facts exactly as they were developed by and made to appear before Judge Smith between June of 1962 and February of 1966, uncolored by any subsequently written judicial opinion. Declared another way, we consider the record as if this Court stood judicially in Judge Smith’s shoes on and prior to February of 1966, with no opinion of Anders v. California and no opinion of Mr. Hoffman’s appeal to the Court of Appeals known to us, and with no issue framed and submitted for decision save that which the judge decided per quotation above. As we perceive, this is the sure way to avoid the after-witted error of applying a respectable yet elective Federal intervenient to a not very difficult question of local law.

In June of 1962 one Ernest B. Sandefur was charged in Allegan county with first-degree murder. John B. Nahan, a reputable member of the Allegan county bar, was promptly engaged to represent him. Upon Mr. Nahan’s advice the defendant stood mute. A plea of not guilty was entered. Two months later the defendant appeared with counsel before the court. The following record was made:

“Mr. Andrews [prosecuting attorney] : May it please the court, this is the matter of the People of the State of Michigan v. Ernest B. Sandefur, File No 4068. Mr. Sandefur was before the court on the 20th day of June, 1962, with his counsel, Mr. Nahan, of the city of Allegan, and stood mute on a charge of homicide which had been filed on the 5th day of June. My understanding is Mr. Sandefur has further consulted with his counsel, Mr. Nahan, and wishes to inform the court that there is a change in the plea in this matter. Is that right, Mr. Nahan?

“Mr. Nahan: Yes, sir. I advised Mr. Sandefur and he has agreed to change his plea from mute to a plea of guilty to the general charge of homicide, with the request that the court allow respondent to offer evidence as to the degree of homicide, and then after hearing such evidence determine the degree.

“The Court: Is that your wish, Mr. Sandefur?

“The Respondent: Yes, sir, it is okay with me, sir.

“The Court: Mr. Nahan has been your attorney for the last 2 months or so?

“The Respondent: Yes.

“The Court: His services have been satisfactory?

“The Respondent: Satisfactory to me, sir, fine.

“The Court: Plea of not guilty heretofore entered by the court may be withdrawn, plea of guilty to the open charge of homicide will be accepted by the court. There will be no bond. Mr. Nahan and the court has discussed the matter of trial date to determine degree of guilt in this matter and he has suggested a month from today. Is that satisfactory to you, Mr. Andrews?

“Mr. Andrews: Satisfactory to the people, yes, your Honor.

“The Court: That is the 20th day of September, 9 o’clock.

“Mr. Andrews: I would be perfectly willing to make available to counsel my files in the matter so we might expedite this hearing.

“The Court: That will be appreciated.

“Mr. Nahan: Thank you, your Honor.”

A little over a month, later the court conducted an unusually thorough hearing to determine the degree of guilt. It is unnecessary that the hearing be rehashed here beyond comment that the court and all counsel left no legal stone unturned, no known witness unsworn, no argument for a reduction of degree left silent. The result, certified to us by Judge Smith, was this:

“On October 9, 1962, the court found:

“ ‘The court finds there is an absence of that degree of premeditation which would characterize the act as murder in the first degree and, likewise, an absence of such provocation or justification that would reduce the homicide to manslaughter.

“ ‘We have here a killing done in anger with sufficient time for a cooling off with no justification for self-defense, and in the opinion of the court, those circumstances dictate a finding of murder in the second degree and the court so finds.’

“The court then asked the respondent, Ernest Sandefur, if he knew of any reason why the court could not lawfully pass judgment, and the respondent replied:

“ ‘No, sir.

■ “ ‘The Court: And sentence in your matter today ?

“‘The Respondent: No, sir.

“ ‘The Court: Is there anything you would like to say to the court?

“ ‘The Respondent: I don’t know of anything, sir.

“ ‘The Court: Mr. Nahan?

“ ‘Mr. Nahan: No, sir.

“‘The Court: It is the sentence and judgment of this court that Ernest B. Sandefur be committed to the jurisdiction of the Michigan corrections department and confined at Michigan Southern Prison at Jackson for a period not less than 20 nor more than 40 years. The court recommends the minimum.

“ ‘Mr. Nahan: Your Honor, does such sentence take into consideration the time spent in the Allegan county jail?

“‘The Court: Yes. The court always takes that matter in consideration.’ ”

It was not claimed then or in the course of post-conviction proceedings (mentioned later) that Mr. Nahan did not act faithfully and competently for the defendant. Indeed, the full record of the statutory proceeding (CL 1948, §750.318 [Stat Ann 1954 Rev § 28.550]), conducted by the court to deter-minethe degree of Mr. Sandefur’s guilt, shows that Mr. Nahan went to uncommon lengths in effort to reduce the charge against Mr. Sandefur to voluntary manslaughter; a goal insurmountable in view of eyewitness proof that Mr. Sandefur, having shot at and wounded his son in the home, pursued the fleeing son down the street, meanwhile firing his Colt .45 three times more with fatal effect. Mr. Nahan’s uphill work did at least accomplish for Mr. Sandefur a conviction of second-degree rather than first-degree murder, along with recommendation of the minimal term of sentence as fixed by the court, that is, 20 years.

In May of 1965 Mr. Sandefur wrote to “the Allegan county circuit court,” alleging indigency and requesting:

“Will you please appoint me an attorney, I want to appeal my case, and furnish all records and transcript at public expense.”

May 27, 1965 the court appointed the respondent Hoffman “appellate counsel for the defendant.” The order of appointment concluded:

“It is further ordered that such portion of the trial transcript as shall be requested by counsel for post-conviction motions and the perfection of an appeal be furnished to said counsel.”

Having obtained the necessary transcripts and having completed what to him was requisite to performance of his appointive duty, Mr. Hoffman reported to the court under date of September 24, 1965 that he could find no reason or ground “to file for new trial” or attempt an appeal on behalf of Mr. Sandefur. His report consists of 3 printed pages. Save for deletion by asterisks of a long paragraph which includes the oath required by our July 17, 1964 amendment of section 3 of State Bar Rule 16 (373 Mich cxxviii-cxxxi),⁴ the report appears verbatim in Justice T. M. Kavanagh’s opinion and will not be repeated here. We find that report, supported as it was by Mr. Hoffman’s undisputed testimony given in response to Judge Smith’s order to show cause, amply sufficient to meet and overcome any thought that Mr. Hoffman’s refusal to proceed was either contemptuous or technically indicative of contempt. The report and the testimony exhibit assiduous care on the part of an able and experienced trial and appellate lawyer in undertaking to search a complete record — of arraignment, appointment of counsel, plea, and statutory proceeding which included the taking of the defendant’s testimony along with that of others — for some reasonable or even “arguable” possibility of error. The report was right, factually and legally. It justifies our now declared ruling that Mr. Hoffman, declining to proceed further, relied properly upon the canonically ordered duties of members of the Michigan Bar.

A s against all this it is not out of order to observe that even one of these brilliantly imaginative law professors moderne — strengthened say like Samson with Dundreary whiskers and curls of Custer— would be hard put to strain out of Mr. Sandefur’s 1962 court record something other than plain nonsense for review on his behalf. Of that we own to some knowledge born of experience, to which we come now.

The soundness of Mr. Hoffman’s reported appraisal of the Sandefur record was confirmed by Judge Smith at the time.⁵ It was tested thereafter by the Court of Appeals and then by this Court.

A week after having received Mr. Hoffman’s report Judge Smith appointed another eminent (and this time obediently willing) member of the Allegan county bar, to act as substituted counsel in the place and stead of Mr. Hoffman. . Such new counsel promptly prepared and submitted to the Court of Appeals an application on behalf of Mr. Sandefur for leave to take a delayed appeal. We need not relate the valiant if useless content thereof. It was denied unanimously by order entered March 8, 1966. The order reads:

“In this cause an application for delayed appeal is filed by defendant, and nothing in opposition thereto having been filed, and due consideration thereof having been had by the Court;

“It is ordered that the application for delayed appeal be, and the same is hereby denied for the reason that a meritorious basis for an appeal is not established.”

An application to this Court for leave to review the quoted order of denial was denied by unanimous order entered June 14, 1966. That order reads:

“On order of the Court, the application for delayed leave to appeal is considered, and the same is denied, for the reasons that defendant-appellant has failed to persuade the Court that he has a meritorious basis for appeal or that the decision of the Court of Appeals was clearly erroneous.”

A second application by Mr. Sandefur, alleging applicability to his 1962 confession and conviction of Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694), Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882), and Davis v. North Carolina (1966), 384 US 737 (86 S Ct 1761, 16 L Ed 2d 895), all handed down in 1966, was denied here September 6, 1967 by order reading:

“On order of the Court, the application for leave to appeal is considered, and the same is denied, for the reasons that no sufficient justification or meritorious basis is presented and further because a previous application was denied by order of this Court on June 14, 1966.”

There is reversible error here, committed successively by the retroaction of backward bent judges. Judge Smith erred in planting his judgment of contempt upon view that new section 20 of article 1 of the Constitution of 1963, granting appeal as of right “in every criminal prosecution,” became applicable nunc pro tunc to the 1962 judgment of conviction and sentence of Mr. Sandefur.⁶ Division 3 erred in backtracking Anders two years to justify a judgment of conviction of contempt for having done that which, when performed, was lawful. And Division 3 erred in failing to perceive that the practice pursued by Judge Smith, when the judge substituted promptly the willing Mr. Tooman for the unwilling Mr. Hoffman, provided Mr. Sandefur with service — appellatewise—surpassing that which the Supreme Court later called down upon California on behalf of Mr. Anders. ■

On petition for certiorari, filed by the indigent and imprisoned Mr. Anders, the Supreme Court (not exactly quiescent or unanimous) criticized California’s method of providing appellate service and laid down for California and States providing similar appellate procedure a new rule; in particular one which exacts of appointed appellate counsel a request for permission to withdraw and “a brief referring to anything in the record that might arguably support the appeal.” Then the rule calls upon the court to make a determination that “the case is [or is not] wholly frivolous.”

As against that rule and for the nonce we prefer our eminently superior practice; that of appointing for an indigent appellant willing or disposed counsel as done by Judge Smith. It provides for such an appellant a lawyer more likely to serve better than would the lawyer forced against his will to act for' a cause lie knows, and the trial judge knows, is ■frivolous. And, unlike Anders, it certainly assures this in the appellate court; that the indigent appellant is represented there no matter the fatuity of the presented issues and arguments presented thereon.

Second: Was respondent guilty of contempt for failure to move for leave to withdrawf

Division 3 repeated what became on appeal a new charge against the respondent; that he did not ask leave of Judge Smith to withdraw from representation of Mr. Sandefur (9 Mich App at 344, 346). This is a question no one raised in circuit and is simply more afterwisdom acquired of Anders. Not having been charged against Mr. Hoffman, in circuit, as a contemptuous act or omission, the allegation was not reviewable by Division 3 and is not before this Court now. "We take it up nonetheless since the response in any event must be the same.

Judge Smith did not require or call upon Mr. Hoffman for a motion for leave to withdraw. The judge instead appointed substitute counsel and did so some weeks prior to instituting this proceeding by order to show cause. His first order effected a proper substitution of counsel, obviated need for presentation and consideration of a motion for leave to withdraw, released the respondent Hoffman from further duty as previously appointed counsel, and provided as we have seen expeditious if vain appellate proceedings on behalf of Mr. Sandefur.

It is not open to question, this whole record considered, that Judge Smith wanted to pose and decide for appellate review just one issue, that is, duty of appointed counsel to appeal on grounds assigned by the indigent defendant no matter the sophistry or frivolity thereof. The judge’s opinions, quoted infra, make that clear. So do the introductory paragraphs of his opinion finding Mr. Hoffman guilty of contempt:

“The circuit court for the county of Allegan, on its own motion, required Leo W. Hoffman, a duly licensed attorney at law, to appear before the court to show cause why he should not be adjudged guilty of contempt for failure to take the necessary legal steps to bring the matter of the People v. Ernest B. Sandefur, No. 4068, Allegan county circuit court, before the Michigan Court of Appeals.

“Ernest B. Sandefur had been adjudged guilty of second-degree murder by this court and sentenced to a term in prison. After a lapse of several years, Sandefur petitioned the court for legal counsel to enable him to have his case reviewed. On May 27, 1965, the court appointed Mr. Hoffman to represent Sandefur pursuant to GCR 1963, 785, and article 1, § 20, Michigan Constitution 1963.

“Thereafter Mr. Hoffman reviewed the file and record in the Sandefur case and reported to the court in writing his professional opinion that Mr. Sandefur had no just grounds on which to appeal. Mr. Hoffman’s report to the court contained a refusal to proceed to take the necessary steps for an appeal. Thereupon the court appointed substitute counsel to represent Sandefur.”

To Summarise:

1. Refer back to the introductory paragraphs of this opinion. They show that local law is properly determinative of the issue made in circuit. They show also the inapposite character of each of the case's Justice T. M. Kavanagh has cited under heading “We are not without a pragmatic guide implementing the decision in Anders:” (post 100), in that no one of them challenges or decides the asserted power of a State trial judge to find an attorney guilty of contempt for having refused after appointment to proceed with an indigent’s demand for appeal on grounds which the judge and the attorney both know are frivolous.

2. As for the trial judge’s reference to former and now extinct⁷ Buie 785.4(2) (373 Mich xvi, xvii, xviii), it need only be said that that rule merely required the appointment of counsel for indigent convicts “to prepare delayed motions for postconviction proceedings in the trial court and to prepare an application for leave to take delayed appeal.” It did not undertake, nor has this Court ever undertaken, to require appointed counsel to proceed on frivolous grounds once those grounds have been ascertained to be such, as in this case.

The judgments of the circuit court and Court of Appeals are reversed. An order acquitting the respondent of contempt, as charged in the circuit court, will enter there.

T. E. Brennan, C. J., and Dethmers and Kelly, JJ., concurred with Black, J.

1 Justiee Cooley’s consideration and definition of ex post facto laws remains as valuable today as when written. Under the heading of “Ex Post Eacto Laws. — ” (General Principles of Constitutjonal Law by Thomas M. Cooley [3d ed], by Andrew C. McLaughlin, 1898, page 313) the Justice added inter alia the following to the durable classification of ex post facto laws that was written in Calder v. Bull (1798), 3 US 386, 390 (1 L Ed 648):

“5. Every law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which when done was lawful.”

2 The pertinent nature of Michigan contempt proceedings was summarized in the “committee comment,” appearing below RJA 1701 (See Stat Ann 1962 Rev § 27A.1701, p 355). This connected portion is demonstrative:

“The courts originally had difficulty in defining the nature of contempt proceedings. Nearly any definition which it might ehoose ran into limitations to which the eourt did not wish to subject the contempt power. In the ease of In re Smith (1906), 144 Mich 39, the eourt held that contempt proceedings were not actions at law within the reasonable construction of the statute but were instead special summary proceedings entirely independent and distinct from the suit' in which the contempt was committed. In the ease of People v. Yarowsky (1926), 236 Mich 169, the eourt decided that contempt proceedings were not criminal proceedings as they were not intended to punish breaches of the criminal law but were instead designed to maintain the dignity of the eourt. Contempt proceedings were said not to be criminal proceedings but proceedings partaking of a criminal nature and this was further demonstrated by the fact that the right to punish contempts is not limited to the criminal eourts but may. bo exercised by a court sitting" in a purely civil capacity.”

4 The oath thus required includes this paragraph:

“I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense exeept such as I believe to be honestly debatable under the law of the land,”

5 Judge Smith’s opinion of October 11, 1965, denying Mr. Sandefur’s then pending motion for new trial, stated:

“The court has appointed Leo W. Hoffman, an attorney of the city of Allegan, to represent respondent in his petition for a new trial. Mr. Hoffman has advised the court after reviewing the record he finds no grounds for a new trial or appeal. After being so advised by Mr. Soffman the court reviewed the record and is Wee minded.’’

6 All presently seated Justices have agreed on this. Judge Smith’s retroactive application of said section 20 appears in his opinion of January 24, 1966 this way:

“But citation of authorities from other jurisdictions and from the canon of ethics simply does not solve the practical problem of implementing the Michigan Constitutional grant of an appeal of right. To that end the Michigan Supreme Court has required the appointment of appellate counsel in GCR 785.

“An appeal as of right requires an appellate court to pass final judgment. Neither the judgment of the trial court or a member of the bar is a proper substitute for appellate review. * * *

“Likewise where conflict exists between an attorney’s obligations under the canons of professional ethics of the American Bar Association and his obligations under the Constitution of his State, the former must yield to the latter.”

7 Repealed effective June 8, 1967 (379 Mich xxvi, xxx).