Robinson v. City Court of Ogden, Weber County

185 P.2d 256, 112 Utah 36, 1947 Utah LEXIS 99

• Court: Utah Supreme Court
• Decided: October 2, 1947
• Docket: No. 7013.
• Status: Published

Opinions

LATIMER, Justice.

Petitioner instituted original proceedings in this court to prohibit defendant Judge of the City Court of Ogden City, Utah, from enforcing a certain judgment holding petitioner in contempt of court and sentencing him to a fine or term in jail.

The facts out of which this controversy arose are these: Petitioner had appeared in the City Court of Ogden City to answer a criminal charge of disturbing the peace. Defendant judge heard the matter, petitioner was found guilty, and ordered to pay a fine or in the alternative to serve a jail sentence. Petitioner then left the court-house and about one-hour later returned to the office of the city attorney to pay the fine. He was directed to go to the office of the desk sergeant, which was located on the ground floor of the same building. The defendant judge had recessed court and was preparing to leave the building. The judge and petitioner arrived at the elevator shaft on the fifth floor of the building about the same time, both waiting for the elevator and as they stepped on, the petitioner made the following statement:

“That is the worst example of a Kangaroo Court I have ever seen.”

The judge overheard it, took the petitioner by the arm, escorted him to the office of assistant city attorney and directed the assistant city attorney and the clerk of the court to accompany both himself and the petitioner to the courtroom. The judge then took off his hat and coat, convened the court, found the petitioner guilty of contempt for having made the remark, and imposed sentence.

A reference to the applicable statutes and cases in respect to contempts and procedure for punishing, if committed, will suffice to dispose of this proceeding. Section 104-45-1, U. C. A., 1948, enumerates acts and omissions constituting contempt. The substance of the sections applicable here are: (1) That disorderly, contemptuous or insolent behavior toward the judge while holding the court tending to interrupt the due course of trial or other judicial proceeding are contempts of the authority of the court, and (2) Any other unlawful interference with the process or proceedings of the court are likewise contemptuous acts.

The facts of this proceeding do not bring the petitioner under the first quoted subsection. Admitting, if necessary, that petitioner’s behavior was contemptuous or insolent, it was expressed while the judge and petitioner were either in the elevator or just about to enter it. The judge was not holding court, he had already adjourned the morning session, he was on his way out of the building, and no trial or other judicial proceedings were then in progress.

There is grave doubt that petitioner’s conduct was such as to constitute a violation of the second provision of the statute quoted herein. The rule announced by the Supreme Court of the United States and by this court is that criticism after final disposition of an action is the exercise of the right of free speech and therefore not contemputuous. See Bridges v. State of California, 314 U. S. 252, 62 S. Ct. 190, 86 L. Ed. 192, 159 A. L. R. 1346; Kirkham v. Sweetring, 108 Utah 397, 160 P. 2d 435. In view of our decision on the other aspect of this case, it is not necessary to comment on the contention that the behavior of the petitioner went beyond the limits of criticism.

Section 104-45-3, U. C. A., 1943, provides the procedural steps necessary to be taken by the court to adjudge an accused guilty of contempt:

“When a contempt is committed in the immediate view and presence of the court, or judge at chambers, it may be punished summarily, for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as prescribed in section 104-46-10. When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officers.” (italics ours.)

It can thus be seen that one accused of contempt cannot be punished summarily except the offense be committed in the presence of the court or judge at chambers. Under the facts of this case, it can be said the offense was not committed in contravention of the first part of this section. In some instances it is difficult to determine when a judge is “at chambers,” but this phrase can only reach far enough to protect him when he is still clothed with the official duties of his office. The phrase cannot be extended to cover his activities when his status has reverted back to that of a private citizen. To hold otherwise, would protect the judge as an individual, under all circumstances, from comment or criticism. This is not the theory or purpose of contempt statutes. Their purpose is to protect litigants and the public from the mischievous danger of an unfree and coerced tribunal.

The pleadings in this action fairly establish that the judge had finished his session of court for the morning, had recessed his court and was not in the performance of his official duties as a judge of the court. Under these circumstances we hold the latter part of Section 104-45-3 prevails and that an initiatory affidavit was necessary to confer jurisdiction on the court. The mere fact that the judge overheard the remark is not sufficient to do away with the procedural prerequisite. Petitioner is still entitled to be informed of the charge against him, still permitted to plead to the charge, to have representation by counsel of his own choosing, and still afforded the right to be heard.

It is necessary, in all proceedings for contempts which are not committed in the presence of the court, in order to give the court jurisdiction, that an affidavit or affidavits be presented to the court stating the facts constituting contempt. Young v. Cannon, 2 Utah 560; Crowther et al. v. District Court of Salt Lake County, 93 Utah 586, 54 P. 2d 243; Jones v. Cox, 84 Utah 568, 37 P. 2d 777. A contempt proceeding is separate and apart from the principle action and in order for the court to acquire jurisdiction of the offense when committed, as here, it is necessary that an affidavit or initiating pleading be filed. Unless this is done, subsequent proceedings are palpably null and void.

The affidavit takes the place of the complaint, and whether the contempt be regarded as civil or criminal, when not committed in the presence of the court or the judge in his chambers, the court is without jurisdiction to proceed until a pleading of some nature has been served on the accused and filed with the court. One of the purposes for an affidavit is to advise the defendant of the particular facts of which he is accused so that he may properly defend against the charge or offer such extenuating and justifiable circumstances as the facts may warrant. That petitioner was not afforded these rights and others granted him by the constitution and statutes of this state is certain.

The defendant judge contends that a writ of prohibition should not issue in this action because petitioner has a plain, speedy and adequate remedy by appeal. This contention cannot be sustained for the reason that adequacy is not determined by the fact that an appeal will lie, but rather whether an appeal from the judgment is adequate for the purpose intended. The ordinary remedy available must be adequate to the exigency of the situation.

There is no general rule by which the adequecy or inadequacy of a remedy can be ascertained, but the question is one to be determined upon the facts of each particular case. This is a criminal contempt and petitioner faces a penalty of a fine or imprisonment. The city court clearly did not have jurisdiction, and no appellate court could acquire it. The same rule should apply as in the case of a city court proceeding to prosecute a defendant without a complaint being filed. In either event, any and all subsequent proceedings are void and of no force and effect. To require a litigant to defend himself in a criminal matter when no charge has been filed is demanding that an accused assume an unreasonable and unwarranted risk. No citizen should be imprisoned or required to pay a fine when the proceedings, from the inception, are void. Neither should he be left to his right of appeal. Assuming that an appeal to the district court permits a dismissal or a trial de novo, the petitioner must still put up a bail bond to stay the execution of the sentence and this may not be possible. Not having been informed against, there would be no pleading in the district court and no way for the petitioner to legally know the nature and cause of the accusation against him. One might as well say that the court could, from the bench, inform a person he was guilty of burglary and sentence him to jail. In both instances the accused has been told the nature of the offense but not in the manner or the way required by the constitution and statutes of this state. Section 12, Article I, of the Constitution of the State of Utah gives to an accused in a criminal action the right to demand the nature and cause of the accusation against him and to have a copy thereof. Section 104-45-3, U. C. A., 1943, grants this same right to an accused in contempt proceedings when committed as in this proceeding.

One of the earliest cases decided by this court, People v. Carrington, 5 Utah 531, 17 P. 735, held that prohibition was appropriate to prohibit a commissioner from proceeding with a contempt hearing. The question of the adequacy of appeal was discussed and held to be inadequate. True, in that action, the matter had not proceeded to judgment, while in this one the court has already pronounced sentence. There can be little, if any, difference in the adequacy as between the cited case and this one. Any judgment and sentence pronounced by the court in this case is a nullity, and the petitioner should not be required to carry the burden of an appeal to the district court and suffer whatever indignities may arise therefrom; and in the event he is unable to post a bail bond, “sweat out” his sentence while his appeal is pending. It matters not whether the jail sentence is for a long period or a short period, or the fine large or small. The inadequacy of appeal is the same in all instances. It may be more difficult for a poor man to obtain a small bail bond than a wealthy man a large one. Be that is it may, the city court did not acquire jurisdiction of this offense, and in view of the fact that in an appeal from a city court to the district court jurisdiction is derivative, the district court could not acquire jurisdiction. The judgment as imposed might result in petitioner’s incarceration, and he is entitled to be relieved of the vexation, the hazards, injury, and cost of the proceedings at the earliest possible moment. He should not be subjected to immediate injury or hardship when as here, the city court did not have, and the appellate court cannot acquire, jurisdiction to proceed.

Mr. Ferris, in his text Extraordinary Legal Remedies, announces the following doctrine: Paragraph 322, page 434.

“* * * In some jurisdictions it is held that the remedy by appeal, or in the ordinary course of the law, is the true test in all cases, and not the mere question of jurisdiction or lack of jurisdiction; that this is a principle which lies at \the very foundation of the law of prohibition. However, if want of jurisdiction is disclosed on the face of the petition, that is, when it clearly appears that the inferior court has no jurisdiction of the subject matter, or of the parties, then the writ may be awarded notwithstanding' respondent may have jurisdiction in proper cases. This is so for the obvious reason that if such a proceeding should be permitted to go to judgment it would not support an appeal, for it would be coram non judice. Whenever it appears that under no conceivable circumstances could the inferior court render a valid judgment because of a lack of jurisdiction, such as defective service, it would seem that the discretion should be exercised in favor of issuing the writ, to the end that litigants may be saved the needless trouble and expense of prosecuting their litigation to a fruitless judgment. It should be remembered, that even though there be another legal remedy, the issuance of the writ may still be regarded as discretionary, at least to the extent of determining whether the remedy is adequate.”

The issuance of the writ is discretionary and under the peculiar facts of this case, particularly with respect to thé complete absences of jurisdiction over either the person or the petitioner or of the offense claimed, it is believed our discretion should be exercised in favor of making the writ permanent.

We desire to pass on the contention of counsel for petitioner that his relief by appeal is inadequate because this court issued an alternative writ of prohibition and relying on this petitioner permitted his time for appeal to expire. If litigants elect to request this court to issue temporary writs pending final determination of the issues, their rights to relief, if any, are based on the allegations of their petition at the time it is filed. It is difficult to understand how an allegation can be made that a plain, speedy, adequate remedy does not exist based on something to happen in futuro. To clarify any doubt about the existence of such a rule of law, it can be definitely stated that the issuance of a temporary writ by this court cannot be interpreted as any indication of the ruling on the final determination. If litigants ask for extraordinary writs and permit other rights to expire, they do so at their peril.

The alternative writ heretofore issued is made permanent. Each party to bear his own costs.

McDONOUGH, C. J., and WADE, j., concur.