Jacobsen v. State

¶1concurring in part and dissenting in part.

¶2I concur in the majority’s conclusion that Jacobsen’s refusal to answer a question at the August 6 hearing and his filing of a pleading containing scurrilous material on August 6 amounted to direct criminal contempts of court. But I do not concur in the rationale set forth by the majority in its disposition of these issues. Furthermore, the contempt conviction based upon material in Jacobsen’s affidavit, filed by Skolnick on July 25, should not have been affirmed by the majority. This contempt conviction should be reversed, and I dissent to its affirmance. The contempt hearing on the July 25 affidavit did not occur until August 6. The trial judge had a duty to disqualify himself from presiding at the August 6 contempt hearing.

¶3I.

¶4“Jurisdiction Over Contempt”

¶5Jacobsen’s claim that the trial judge had no jurisdiction of his case after a change of venue was granted in the Skaggs action is without merit, and the majority errs when it attempts to seek out and attach a jurisdictional basis to it. A criminal contempt action is a proceeding separate from the action out of which it arose. Allison v. State ex rel. Allison (1963), 243 Ind. 489, 187 N.E.2d 565. This principle applies to direct as well as indirect criminal contempt proceedings. Matter of May (1976), Ind.App., 358 N.E.2d 138. Since a criminal contempt proceeding is a separate action, its jurisdiction is independent of any other cause or action. Allison, supra.Hence, when the trial judge ordered Jacobsen on July 29, 1975 to show cause why he should not be held in direct criminal contempt, there arose a criminal contempt action separate and independent of any other proceeding. Jacobsen’s contempt case was independent of the Skaggs action.

¶6A discussion of whether the trial judge had jurisdiction to cite Jacobsen for contempt for his conduct on August 6 (his refusal to answer a question and his filing of a pleading containing contumacious material) is irrelevant. The authority of an Indiana court to cite and punish direct criminal contempt is not dependent upon its jurisdiction of the contemnor or of the subject matter of a case. In McIntire v. State (1967), 248 Ind. 142, 223 N.E.2d 347, the Indiana Supreme Court wrote: “In direct contempt proceedings the court has inherent power to take such action as is necessary to maintain the decorum and order in the court, as well as to enforce its necessary orders.” 248 Ind. at 144-45, 223 N.E.2d at 348-49. See also LaGrange v. State (1958), 238 Ind. 689, 153 N.E.2d 593. The trial judge acted within the scope of this inherent power when the need arose on August 6 to find Jacobsen in direct criminal contempt for failure to answer a question and for filing a pleading containing contumacious material.1

¶7*1052II.

¶8Intervention

¶9The trial judge abused his discretion in allowing attorney Ruman to appear as an intervenor and amicus curiae in Jacobsen’s case. This abuse of discretion will not, however, work to reverse the direct contempt convictions.

¶10Barring any statute conferring a conditional right to intervene, permissive intervention may be allowed when “an applicant’s claim or defense and the main action have a question of law or fact in common.” Ind.Rules of Procedure, Trial Rule 24(B)(2). It is inconceivable how attorney Ruman could have a claim with a question of law or fact in common with an action for direct criminal contempt.

¶11A procedure for criminal contempt is in the nature of a criminal action against an accused person. Ex parte Fennig (1939), 216 Ind. 298, 23 N.E.2d 678. In Fennig the appellant was found in criminal contempt for filing a pleading containing contumacious statements directed at a judge and a private party. On his appeal the judge and private party designated themselves as “properly appellees herein” and sought to have the appeal dismissed. In upholding the appeal the Indiana Supreme Court asserted:

“This was a case of criminal contempt and should not have been either instituted or maintained for the benefit of these two individuals. They were not, in any sense of the word, parties to the judgment appealed from. The fact that the appellant may have made contemptuous remarks and sought to injure them as individuals is no reason for making them parties to this appeal. The offense of the appellant was against the state. If . [they] have been injured as individuals they have appropriate civil remedies for redress. . . .” 216 Ind. at 300, 23 N.E.2d at 680.

¶12See also Allison v. State ex rel. Allison (1963), 243 Ind. 489, 187 N.E.2d 565 (party harmed in the case of criminal contempt is the State and not a private individual). As in Fennig, supra,attorney Ruman had appropriate civil remedies for redress if he was injured by Jacobsen’s statements. He had no claim with a question of law or fact in common with the criminal contempt action.

¶13Additionally, the trial judge committed the threshold error of allowing attorney Ruman to appear both as an intervenor and as an amicus curiae. An intervenor is a party to the action with an interest in the subject matter of the suit; an amicus curiae, on the other hand, is an adviser to the court, and he

“is not a party to the suit and has no control over it. [He] has no rights in the matter. He can file no pleadings, or motions of any kind. He can reserve no exception to any ruling of the court and, of course, cannot prosecute an appeal . . . [S]ince the amicus curiae can do nothing other than advise the court, no party to the action has any cause to complain if the court grants a stranger the privilege of being heard, since no action of such party can affect the rights of a party to the action.”

¶14In re Perry (1925), 83 Ind.App. 456, 462, 148 N.E. 163, 165. Hence appearance of an individual as an intervenor-am/cus curiae is logically inconsistent. It is also susceptible to claims of bias, as the trial court is in effect calling for assistance from one who has an interest as an intervenor in the outcome of the case.

¶15*1053In addition, the appearance of an interve-nor-amicus curiae may hamper an alleged contemnor’s defense. One who is ordered to show cause why he should not be held in criminal contempt could never be certain at any given time about the capacity in which the intervenor-amicus curiae was appearing. For example, an alleged contemnor could object to the appearance of the individual as intervenor and could take exception to the trial court’s ruling on evidence presented by him; but, where the same individual appears as an a micus curiae the alleged contemnor would have “no cause to complain if the court grants the privilege [to him] of being heard.” Perry, supra,83 Ind.App. at 462, 148 N.E. at 166.

¶16Despite the trial court’s abuse of discretion, the two direct contempt citations addressed above must be affirmed. The trial judge was compelled on August 6 to take summary action to prevent disruption of the proceedings and to maintain the dignity of the court.

¶17III.

¶18Disqualification of Trial Judge

¶19I would reverse that contempt conviction based on material in Jacobsen’s affidavit, filed by Skolnick on July 25, 1975. The trial judge, whose conduct was attacked in the affidavit and who ordered Jacobsen on July 29 to show cause why he should not be held in direct criminal contempt, should have disqualified himself from presiding at the August 6 contempt hearing.

¶20A direct criminal contempt concerns a disturbance or show- of disrespect in open court. IC 1971, 34 — 4-7-1 (Burns Code Ed.); In re Perrello (1973), 260 Ind. 26, 291 N.E.2d 698; McIntire v. State (1967), 248 Ind. 142, 223 N.E.2d 347. It may also deal with matters personally within the trial judge’s knowledge, as where a pleading is filed containing insolent or obstreperous material. LaGrange v. State (1958), 238 Ind. 689, 153 N.E.2d 593; Kerr v. State (1923), 194 Ind. 147, 141 N.E. 308. In such instances the trial judge may be compelled to take immediate action to restore order and respect. Brennan v. State (1961), 242 Ind. 79, 173 N.E.2d 312. Owing to the urgency of the situation, direct contempt does not contemplate that the disqualification or recusation of the trial judge is or should be necessary before the contemnor can be punished; but where the allegedly contemptuous conduct is not punished immediately and summarily, classification of the conduct as a direct contempt becomes suspect. As our Supreme Court stated in Brennan, supra:

“There is no showing in this case that immediate punishment was necessary to maintain order in the court and a respect for its authority. Such an element being totally absent, there is a failure of proof of direct contempt.”

¶21242 Ind. at 83, 173 N.E. at 313.

¶22There was no showing in Jacobsen’s case that immediate punishment was necessary to maintain order in the court and a respect for its authority. Skolnick’s pleading containing Jacobsen’s affidavit was filed on July 25, 1975. The trial judge ordered Ja-cobsen on July 29 to show cause why he should not be held in direct contempt of court. After a show cause hearing in front of the trial judge on August 6, Jacobsen was convicted of direct criminal contempt. This conviction came eleven days after the filing of the pleading containing Jacobsen’s affidavit. Where the contumacious conduct is not punished immediately, the trial judge against whom the contumacious conduct is directed should have a duty to disqualify himself from sitting in judgment of the alleged contemnor.

¶23■ The federal courts are in accord with this principle. They conclude that where punishment does not immediately follow the contumacious conduct, more may be required in the way of procedural due process than would have been necessary had immediate action been taken. See Mayberry v. Pennsylvania (1971), 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532; Bloom v. Illinois (1968), 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522; In re Oliver (1948), 333 U.S. 257; United States v. Seale (7th Cir. 1972), 461 F.2d 345. If there is to be a delay in the punishment, due process requires that a disinterested judge determine whether the *1054conduct is contumacious and punishable. Mayberry, supra.In Mayberry, where the conduct consisted of a personal vilification of the trial judge and the conduct carried with it the potential of bias on the part of the trial judge in making a determination, the Court held that the vilified judge could not sit in judgment of the alleged con-temnor. Rather, the contemnor is entitled to a hearing before a judge other than the one he has reviled. Mayberry, supra,400 U.S. at 466, 91 S.Ct. 499. The Seventh Circuit found the dictates of Mayberrydirectly applicable in Seale, supra,and noted that,

“[a]t least in the absence of personal embroilment (a matter which we do not reach), the trial judge could have cited Seale for contempt instantly even though he was personally attacked. [Citations omitted.] The need for order in the courtroom to be achieved through the deterrent effect of an immediate citation of the contemnor is thought to override the possibility of bias on the part of the trial judge. .' . . ”

¶24461 F.2d at 351.

¶25Rule 42 of the Federal Rules of Criminal Procedure furthermore provides that the trial judge must disqualify himself from presiding at a contempt hearing, unless he has the alleged contemnor’s consent to preside, where the alleged contempt involves disrespect to or criticism of the judge and is not punished summarily.2

¶26Jacobsen’s affidavit attacked the trial judge by insinuating impropriety of judicial conduct. Although the Indiana Supreme Court has not directly considered the issue of disqualification of a trial judge, in a later contempt proceeding, where the trial judge was the object of the contumacious conduct, it has recognized the potential for bias in such a situation. In State ex rel. Stanton v. Murray (1952), 231 Ind. 223, 108 N.E.2d 251, the Court observed:

“The delicacy there is in the judge’s deciding whether an attack upon his own judicial action is mere criticism or real obstruction, and the possibility that impulse may incline his view to personal vindication are manifest.” 231 Ind. at 241, 108 N.E.2d at 259, quoting Craig v. Hecht (1923), 263 U.S. 255, 279, 44 S.Ct. 103, 68 L.Ed. 293 (Taft, C. J., concurring).

¶27The Court’s language in McIntire v. State, supra, is especially appropriate in the present case:

“The acts here charged, without question, are reprehensible and reflect upon the judge and judicial proceedings, and we can well understand the presiding judge’s indignation arising from such an incident. However, there are other ways and means of prosecuting such charges under which a person so charged is not compelled to be tried by one so vitally and directly interested in the proceedings, as the judge in the case of direct contempt. Due process and justice require a distinction.”

¶28248 Ind. at 146, 223 N.E.2d at 349.

¶29Because Jacobsen’s contempt hearing should have been held before another trial judge, I would reverse the contempt conviction based on the material in his affidavit.