15 Cal.2d 99, 16928, The Times-Mirror Co. v. Superior Court

Docket Nº:16928
Citation:15 Cal.2d 99, 98 P.2d 1029
Opinion Judge:[10] Curtis
Party Name:The Times-Mirror Co. v. Superior Court
Attorney:[7] Cosgrove & O'Neil, T. B. Cosgrove and F. B. Yoakum, Jr., for Petitioners. [8] Elisha Hanson, Carey McWilliams, Charles J. Katz, Francis Biddle, Osmond K. Fraenkel, Gallagher, Wirin & Johnson, A. L. Wirin, William C. Ring and S. S. Hahn, as Amici Curiae, on Behalf of Petitioners. [9] J. H. O'C...
Case Date:January 31, 1940
Court:Supreme Court of California

Page 99

15 Cal.2d 99

98 P.2d 1029

O'Neil, T. B. Cosgrove and F. B. Yoakum, Jr., for Petitioners. Elisha Hanson, Carey McWilliams, Charles J. Katz, Francis Biddle, Osmond K. Fraenkel, Gallagher, Wirin & Johnson, A. L. Wirin, William C. Ring and S. S. Hahn, as Amici Curiae, on Behalf of Petitioners. J. H. O'Connor, County

L. A. No. 16928., L. A. No. 16929.

Supreme Court of California

January 31, 1940

In Bank.

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[Copyrighted Material Omitted]

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[98 P.2d 1030] Douglas De Coster, Chief Deputy County Counsel, S. V. O. Prichard, Deputy County Counsel, Allen W. Ashburn, Michael G. Luddy, Isaac Pacht and Arnold Praeger for Respondent


[98 P.2d 1031] CURTIS, J.

These two proceedings were on the December, 1938, calendar of this court, sitting in bank, with five regular justices and one justice pro tempore present. The cases were then argued by counsel for the respective parties and by one of the amici curiae. Thereafter and before any decision of either of said causes had been agreed upon, one of said justices died, and another of said justices declared his disqualification to participate in any decision that might be

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rendered in either of said causes. In this situation, this court found that it was unable to procure the concurrence of the constitutional number of qualified justices, who had heard the argument, in a decision of either of said causes, and basing its order upon that ground, directed that said causes be placed upon a subsequent calendar for argument. This argument has been held, and the same counsel who argued these cases at their first hearing before this court were present and participated in the second argument before us.

The two proceedings present the same legal issues and substantially the same factual situation is present in each case, except as to the contents of the editorials which were the basis of the contempt charges filed against petitioners. The petitioners were adjudged guilty of contempt of court for the publication of certain editorials in the Los Angeles Times, a newspaper of general circulation published in the city of Los Angeles, and these proceedings were instituted to review the two orders of court adjudging them guilty of contempt. Each of the contempt proceedings was instituted by an affidavit presented to the Superior Court of the County of Los Angeles by J. Louis Elkins, secretary of the Los Angeles Bar Association, pursuant to the provisions of section 1211 of the Code of Civil Procedure, and was prosecuted by attorneys from said bar association under the provisions of part III, title V of the Code of Civil Procedure, entitled, "Contempts".

Petitioners contend that these proceedings are "criminal actions" and should be instituted in the name of the people of the State of California and prosecuted like any other criminal action by the district attorney of the county in which the offense was committed, and that the accused were entitled to a jury trial and all other rights and privileges accorded to a defendant in a criminal action. Petitioners further claim that they are immune from punishment by virtue of that portion of subdivision 13 of section 1209 of the Code of Civil Procedure, reading as follows: "But no speech or publication reflecting upon or concerning any court or any officer thereof shall be treated or punished as a contempt of such court unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings."

These issues were all before us in the case of Bridges v. Superior Court, recently decided by us and reported in 14

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Cal.2d 464 [94 P.2d 983], and the same contentions were made by the petitioner in that case as are now made by the present petitioners. A reference to that decision will show that we held that none of said contentions were [98 P.2d 1032] meritorious, and that we sustained the procedure followed in that case which is precisely like that pursued in these proceedings, and furthermore we held that the provisions of subdivision 13 of section 1209 of the Code of Civil Procedure, relied upon by the petitioner Bridges as well as by the petitioners in these proceedings were unconstitutional, and therefore afforded no protection for the publication of the article by the petitioner in that proceeding. It is apparent, therefore, that all the legal questions presented by these two petitions, and stated above, have been decided by us adversely to the contentions of said petitioners. No useful purpose would be gained by reiterating what we said in this former opinion in the decision of these questions. It, therefore, only remains for us to apply the law as settled by our previous decision to the facts in the present proceedings.

The first of these two proceedings was brought to review the order of the trial court adjudging the petitioner. The Times-Mirror Company, publisher of the Los Angeles Times, and L. D. Hotchkiss, managing editor of the Los Angeles Times, guilty of contempt of court upon the charge set forth in count 1 of the affidavit of J. Louis Elkins, and to review said order of said court adjudging the petitioner, the Times-Mirror Company, guilty of contempt of court upon two additional charges of contempt contained in said affidavit, and set forth in counts 3 and 5 respectively of said affidavit.

The second of said two proceedings was instituted to review the order of the trial court adjudging the petitioner, The Mirror Company, the publisher of the Los Angeles Times, the president of The Times-Mirror Company, and its managing editor, guilty of contempt of court upon the two charges contained in said second affidavit of J. Louis Elkins, presented to said superior court.

In determining whether the publication of an editorial, or article, commenting upon a pending action, renders the author there of guilty of contempt of court, the test to be applied to such a publication is whether it had a reasonable tendency to interfere with the orderly administration of justice

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in the action which was the subject of the comment and which was then before the court for its consideration, or decision. If the article had that effect, then its publication rendered the person responsible for its publication guilty of contempt of court. This question was before us in the Bridges case, where authorities supporting the statements just expressed, from this court, the Supreme Court of the United States, and other jurisdictions, are cited and may be found on page 357 of our opinion.

The first of the several editorials to which we will give consideration is that set forth in count 1 of the accusatory affidavit presented to the court and sworn to by J. Louis Elkins. It is entitled, "Sit-Strikers Convicted", and referred to the case of People v. William Busick et al., in which action the jury had rendered a verdict finding certain of the defendants guilty of a conspiracy to violate certain sections of the Penal Code. It was as follows:

"The verdict of a jury finding guilty the twenty-two sit-strikers who led the assault on the Douglas plant last February, will have reverberations up and down the Pacific Coast and in points farther east.

"The verdict means that Los Angeles is still Los Angeles, that the city is aroused to the danger of davebeckism, and that no kind of union terrorism will be permitted here.

"The verdict may have a good deal to do with sending Dave Beck back to Seattle. For, while the United Automobile Workers have no connection with Beck, their tactics and his are identical in motive; and if Beck can be convinced that this kind of warfare is not permitted in this area he will necessarily abandon his dreams of conquest.

"Already the united farmers and ranchers have given Beck a severe setback. The Hynes hay market is still free and it has been made plain that interference with milk deliveries to Los Angeles will not be tolerated.

"Dist-Atty. Fitts pledged his best efforts to prevent and punish union terrorism and racketeering in a strong radio address, and followed it up yesterday with a statement congratulating the jury that convicted the sit- downers and the community on one of the 'most far-reaching verdicts in the history of this country.

"In this he is correct. It is an important verdict. For the first time since the present cycle of labor disturbances

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began, union lawlessness has been treated as exactly what it is, an offense against the public peace punishable like any other crime.

"The seizure of property by a militant minority which arrogated to itself the right of dictating not only to employers, but to [98 P.2d 1033] other workers not in sympathy with it, what should be the terms and conditions of working, has proved to be within the control of local peace officers and authorities.

"Nobody ran off to Washington to get this affair handled. It was attended to right here.

"Government may have broken down in other localities; whole States may have yielded to anarchy. But Los Angeles county stands firm; it has officers who can do their duty and courts and juries which can function.

"So long as that is the case, davebeckism cannot and will not get control here; nor johnlewisism either."

The verdict finding said defendants guilty was rendered on December 20, 1937, and the trial judge before whom the case was pending, fixed December 22, 1937, as the time for pronouncing judgment upon the defendants. On the 21st of December, 1937, the above-mentioned editorial was published, which date, it will be seen, was one day after the verdict and one day before the time fixed by the court for pronouncing judgment. At the time fixed by the court, provided no motion for a new...

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