Jacobsen v. State

384 N.E.2d 1041, 179 Ind. App. 37, 1979 Ind. App. LEXIS 1163

• Court: Indiana Court of Appeals
• Decided: January 15, 1979
• Docket: 3-1175A247
• Status: Published

Opinions

HOFFMAN, Judge.

Defendant-appellant Elmer L. Jacobsen was found in contempt of court for making false statements in an affidavit filed with the court, refusal to answer a question after being ordered to do so by the court, and the making of scurrilous charges in papers filed with the court.

On appeal appellant raises the following issues for our consideration:

1. Whether there was sufficient evidence to support the findings;

2. Whether the trial court lost jurisdiction of the case after it granted a change of venue in the underlying case of Portage National Bank v. Robert Skaggs et al.;¹

3. Whether the trial court erred in not appointing .another judge to hear the case;

4. Whether appellant was afforded notice and an opportunity to be heard;

5. Whether appellant was entitled to discharge on the basis of his sworn answers;

6. Whether the court failed to observe the provisions of the Criminal Contempt Act;

7. Whether the court erred in permitting intervention;

8. Whether the court erred in denying bail pending appeal; and

9. Whether the court erred in “forcing” appellant to testify.

Appellant first challenges the sufficiency of the evidence to support the findings of contempt made by the trial court. The record discloses that during the course of proceedings in Portage National Bank v. Robert Skaggs, et al., a witness Sherman Skolnick was found to be in direct contempt of court. On July 21, 1975, the trial court heard and denied Skolnick’s motion for reconsideration. On July 25, 1975, Skolnick filed with the court his “Third and Additional Motion ... By Way of Exception to the Opinion and Judgment of the Court and for a Reconsideration of its Opinion and Judgment of the Case.” Contained within that motion was the allegation that attorney Saul Ruman undertook to connive and confederate with Judge Pivarnik during the noon hour for the purpose of devising a plan or scheme to abort any investigation into charges of corruption and judicial impropriety alleged by Skolnick. The affidavit of appellant Jacobsen was attached to such motion in support thereof. The affidavit states that during the noon hour of July 21, 1975, he observed the trial judge and an attorney depart for the Old Style Restaurant area, that he later observed them return from the restaurant area at 1:00 P.M. and enter the courthouse, and that approximately 40 minutes later that attorney was addressing the trial judge in open court in the Skolnick matter. The affidavit further stated that after the attorney addressed the court, Skolnick addressed the court with interruptions until he was found guilty of direct contempt of court.

On July 29,1975, the date set for hearing on certain of Skolnick’s motions, Skolnick filed a motion to submit his previous motions without oral argument. After unsuccessfully attempting to call appellant as a witness, the trial court ordered the clerk to issue a citation to appellant ordering him to appear to show cause why he should not be held in direct contempt of court for the statements made in his affidavit.

Jacobsen admitted at the August 6, 1975 hearing that he did not know what had occurred in the Old Style Restaurant nor with whom the trial judge had lunch. Moreover, Jacobsen admitted that he did not see the trial judge and the attorney return from the restaurant area together nor enter the courthouse building, but that the first time he saw the trial judge and the attorney together after the noon hour was approximately six feet west of the elevator portion of the courthouse lobby. Other affidavits filed in the matter disclose that the trial judge and the attorney did not have lunch together.

Appellant contends that such actions do not constitute direct contempt of court. In Kerr v. State (1923), 194 Ind. 147, 141 N.E. 308, our Supreme Court held that the making of scurrilous charges against a judge in a pleading filed with the court constituted direct contempt. The court reasoned that since the making of false statements in the courtroom where the judge was holding court would have constituted a direct contempt of court, the making of such charges in a pleading filed with the court would likewise constitute a direct contempt. See: Coons v. State (1922), 191 Ind. 580, at 593, 134 N.E. 194, at 198. This reasoning applies with equal force to one who, disregarding the oath he took as an affiant, gives testimony he knew to be false. IC 1971, 34-4-7-2 (Burns Code Ed.), provides that anyone who purposely demeans himself as to retard or disturb the proceedings of the court is guilty of direct contempt. This has been interpreted to apply to a witness who testifies falsely. Young v. State (1926), 198 Ind. 629, 154 N.E. 478. Thus, the making of a false affidavit appended to papers filed with the court constitutes a direct contempt.

Appellant contends however that he did not know the affidavit would in fact be filed. Jacobsen stated that the affidavit did not have any blanks on it at the time it was executed. Both the caption and title of the affidavit refer to the Skolnick matter. Moreover, Jacobsen had graduated from law school and admits the affidavit was for Skolnick’s information, knew it had the potential of being filed and contemplated that it could be used in the Skolnick proceeding. Thus, the trial court did not err in finding appellant in contempt for making false statements in the affidavit.

The second finding of contempt occurred during the August 6, 1975 hearing. After stating that an attorney had telephoned him asking what his observations were on July 21, 1975, Jacobsen refused to divulge the name of that attorney. After advising Jacobsen there was no attorney-client privilege and upon Jacobsen’s further refusal to answer the question, the court found Jacobsen in direct contempt of court. Assuming arguendo that the relationship between Jacobsen and the undisclosed attorney was sufficient to invoke the attorney-client privilege and further assuming the publication of the affidavit did not constitute a waiver of the privilege, the weight of authority nevertheless refuses to extend the attorney-client privilege to the fact of consultation or employment including the component facts of the identity of the client and the attorney, McCormick et al., Evidence, § 90, at 185-86 (2d Ed. 1972); Colman v. Heidenreich (1977), Ind.App., 366 N.E.2d 686. Thus, the trial court did not err in finding appellant in contempt for refusal to answer a proper question.

The third finding of contempt arose from statements made in appellant’s “Verified Return to Contempt Citation Paragraph II” which was filed in open court at the commencement of the August 6, 1975 hearing. Such paper charged the trial judge with certain improprieties in another wholly unrelated case. However, the making of scurrilous charges against a judge in papers filed with the court constitutes direct contempt. Kerr v. State, supra. Moreover, appellant’s argument merely asserts that he had a privilege as a defendant to make such statements and that he was entitled to discharge on the basis of his verified return.

Appellant next contends that the trial court did not have jurisdiction over the contempt proceedings after it had granted a change of venue in the underlying case of Portage National Bank v. Robert Skaggs et al. Although a direct contempt is a separate and distinct action, it must be decided who the court is when pleadings are filed. The jurisdiction of the cause in which the pleadings are filed should govern. Thus, the question of jurisdiction of the cause must be decided. The record discloses that on July 16, 1975, the parties in the Skaggs case were in court on Portage National Bank’s petition to fix bond on immediate possession of certain secured property. On that date, Skaggs filed their motion for change of venue from the judge which was denied until resolution of the preliminary matter concerning immediate possession. It was during the hearing of this matter that Skolnick was found in contempt. In Skolnick’s motion for reconsideration, the affidavit of Jacobsen was attached.

Skaggs’ motion for change of venue from the judge did not deprive the trial judge of jurisdiction for certain emergency matters. State ex rel. Keesling v. Grant Cir. Ct. et al. (1958), 238 Ind. 577, 153 N.E.2d 912; Smith et al. v. St. Bd. of Health (1973), 158 Ind.App. 445, 303 N.E.2d 50 (transfer denied), cert. den. 419 U.S. 836, 95 S.Ct. 63, 42 L.Ed.2d 62. The petition for immediate possession of property was such an emergency matter. Thus, the trial court had jurisdiction over the contemptuous conduct of Skolnick occurring during the hearing on the petition. The trial court likewise retained jurisdiction for Skolnick’s rehearing. See, IC 1971, 34-4-7-7 (Burns Code Ed.); Indiana Rules of Procedure, Criminal Rule 9. See also, Indiana Rules of Procedure, Trial Rule 63(A).

Thus, any contemptuous acts occurring during the proceeding for rehearing would likewise be within the jurisdiction of the court.

Appellant’s reliance on State ex rel. Ballard v. Jefferson Cir. Ct. (1947), 225 Ind. 174, 73 N.E.2d 489, is misplaced. There the judge, on his own motion and subsequent to the motion for change of venue, attempted to cite defendant for indirect contempt for failure to comply with an order made prior to the request for change of venue. In the case at bar, however, the direct contempt of Skolnick occurred at a time in which the court retained emergency jurisdiction. And, since the court had jurisdiction over Skolnick’s rehearing, it had jurisdiction of any contemptuous conduct occurring therein.

For the reasons stated in their separate opinions, Presiding Judge Garrard and Judge Staton vote to reverse the conviction arising from the false statement in the Skolnick pleading. I would, however, affirm that conviction for the reasons that follow.

Appellant would rely on IC 1971, 34-4-8-1 (Burns Code Ed.) for the proposition that a special judge should have been selected to hear the original charge of contempt. But that statute applies only in cases of indirect contempt. In a direct contempt proceeding a party is not entitled to a change of venue from the judge or county. Dale v. State (1926), 198 Ind. 110, 150 N.E. 781; Coons v. State, supra. Thus, Indiana law does not require a judge to disqualify himself in a direct contempt proceeding. Moreover, personal attacks cannot be leveled at the judge in an attempt to drive him from the case. Cooke v. United States (1925), 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. Finally, it should be noted that appellant did not object to the judge presiding over the contempt proceedings and he should therefore be precluded from raising that issue on appeal.

Appellant next contends that the trial court erred in ordering a contempt citation on July 29, 1975, without affording appellant notice and an opportunity to be heard. The trial court attempted to call Jacobsen on July 29 and inquire as to his conduct. However, Jacobsen was not present. Accordingly, the trial judge set forth the specific conduct which would constitute contempt and ordered the clerk “to issue a citation to the affiant Elmer L. Jacobsen ordering him to appear at a hearing to be had on the 1st day of August, 1975, at 2 o’clock p. m.; and show cause why he should not be held in direct contempt of this Court.” Thus, the order of July 29, 1975, was itself the vehicle by which appellant was afforded notice of the charges made against him and of his opportunity to be heard on such charges at the hearing.

Appellant next contends that the trial court failed to observe the provisions of the Criminal Contempt Act. Insofar as such an argument presupposes that the nature of the action was indirect contempt rather than direct contempt, it is without merit. However, the argument is also addressed to the proceedings for direct contempt outlined in IC 1971, 34-4-7-7, supra, which provides, in part, as follows:

“Trial for direct — Appeal.—When any person shall be arraigned for a direct contempt, in any court of record of this state, no affidavit, charge in writing, or complaint shall be required to be filed against him; but the court shall distinctly state the act, words, signs or gestures, or other conduct of the defendant which is alleged to constitute such contempt; and such statement shall be reduced to writing either by the judge making it, or by some reporter authorized by him to take it down when made; and the same shall be substantially set forth in the order of the court on the same, together with any statement made in explanation, extenuation, or denial thereof, which the defendant may make in response thereto; and the court shall thereupon pronounce judgment, either acquitting and discharging the defendant, or inflicting such punishment upon him as may be consistent with the provisions of this act [34-4-7-1 — 34-4-7-10]; * *

Appellant asserts that such statute entitled him to be distinctly informed of the charges before the hearing began. However, the conduct underlying the contempt charge was set forth in writing in the July 29, 1975, order of court. And, at the commencement of the hearing on August 6, 1975, appellant, in response to inquiries made by the court, admitted he was personally served with notice of the hearing, that he had read the pleading, and that he understood the nature and purpose of the hearing. Moreover, appellant filed several motions at the beginning of the hearing which acknowledge receipt of the contempt citation and the existence of, and appellant’s familiarity with, the July 29, 1975, court order.

Appellant further contends that the order finding appellant in contempt did not comply with IC 1971, 34-4-7-7, supra, since it merely recited the court’s conclusions. In the case at bar, the July 29, 1975, order set forth the specific acts of appellant which constituted the contempt. Although the statute does not require an affidavit specifying the charges against appellant and a rule to show cause, Kerr v. State, supra, the statute does not foreclose that avenue of procedure. One of the purposes of the statute is to keep to a minimum the dangers inherent in summary direct contempt proceedings by enabling an appellate court to determine by an inspection of the record whether a contempt has in fact been committed. In the case at bar, these goals are satisfied when the judgment made reference to the filing of the affidavit of July 24, 1975. The prior court order set out the specific acts constituting the contempt.

The second finding of contempt was the refusal to answer a question after having been ordered to do so. And the third finding of contempt set forth the pleading which the court found to be contemptuous. The court order was more specific than the broad order found in State ex rel. Stanton v. Murray; Stanton v. State (1952), 231 Ind. 223, 108 N.E.2d 251. Accordingly, the record discloses the specific acts of appellant which would support a judgment against appellant for contempt.

Appellant next contends that the trial court erred in permitting attorney Saul Ru-man to intervene in the case to assist the court. Ruman petitioned the court to intervene as either an interested party or as amicus curiae to protect himself and his client and to assist the court in the lawful and orderly disposition of the case. Such petition was granted by the court. Permissive intervention is a matter within the trial court’s discretion. Indiana Rules of Procedure, Trial Rule 24(B). Appellant has not argued that the trial court abused its discretion nor has appellant demonstrated in what manner he was harmed.

Appellant was also permitted to intervene as amicus curiae. Since no action by the amicus curiae can affect the legal rights of a party to an action, it is not reversible error to permit the appearance of an amicus curiae. In re Perry (1925), 83 Ind.App. 456, 148 N.E. 163.

Appellant next contends that he was entitled to discharge based upon his denial of misconduct in his sworn answers. However, the rule of “purgation by oath” does not apply in direct contempt proceedings.

Appellant next contends that the trial court erred in denying bail pending appeal pursuant to IC 1971, 35-4-6-1 and 35^4-6-2 (Burns Code Ed.). However, due to our resolution of the appeal this issue must be considered moot. It should be noted, however, that the trial court did set bail on August 20,1975, after appellant gave notice in open court of his intention to file an appeal and agreed to file an amended prae-cipe by August 5, 1975.

Appellant next contends that the trial court erred in forcing the appellant “to give incriminating testimony against himself in violation of his constitutional rights, including his right to be represented by counsel.” Appellant had graduated from law school and had worked for ten years as a “court-watcher” for the Northwest Indiana Crime Commission. During the course of the proceedings, appellant stated that he was acting as his own attorney. He filed several papers with the court both at the time of the hearing and subsequent thereto. At the hearing appellant did not object in any manner to being sworn to testify. Thus, when appellant voluntarily testified, he waived his Fifth Amendment privilege. Sears v. State (1972), 258 Ind. 561, 282 N.E.2d 807; McCormick et al., Evidence, § 132, at 278 (2d Ed.1972). Thus, appellant was not forced to testify against himself.

For the reasons stated in the separate opinions of Presiding Judge Garrard and Judge Staton, the conviction arising from the false statement in the Skolnick pleading is reversed and remanded for a new trial. The remaining convictions (those arising out of the contempt proceeding itself) are affirmed.

Affirmed in part, reversed in part and remanded.

GARRARD, P. J., concurs in part and dissents in part with opinion. STATON, J., concurs in part and dissents in part with opinion.

1 . This action was filed in the Porter Superior Court under Cause No. 75-PSC-1233.