In re Lee

• Decision Date: 05 February 1936
• Docket Number: Nos. 57, 58, 81, 82.,s. 57, 58, 81, 82.
• Parties: In re LEE. In re FRANK.
• Court: Maryland Court of Appeals

183 A. 560

In re LEE.

In re FRANK.

Nos. 57, 58, 81, 82.

Court of Appeals of Maryland.

Feb. 5, 1936.

BOND, C. J., dissenting in part.

Appeals from Circuit Court, Montgomery County; Hammond Urner, Arthur D. Willard, and Charles W. Woodward, Judges.

Proceedings in the matter of the contempt proceedings in the Circuit Court of Montgomery County against David Lee and against Pat Frank. From an adverse judgment and from an order overruling motions to strike out the judgment and sentence, both defendants appeal.

Judgment affirmed as to David Lee and reversed as to Pat Frank, and appeals from order denying motions dismissed.

Argued before BOND, C. J, and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Albert C. Ritchie and Stuart S. Janney, both of Baltimore (Ritchie, Janney, Ober & Williams, of Baltimore, and Peter & Simpson, of Rockville, on the brief), for appellants.

William L. Henderson, Asst. Atty. Gen. (Herbert R. O'Conor, Atty. Gen., and Hilary W. Gans, Deputy Atty. Gen. and James H. Pugh, State's Atty, of Rockville, on the brief), for appellee.

SHEHAN, Judge.

The circuit court for Montgomery county passed orders on the 26th day of June, 1935, adjudging the American Newspapers, Inc., Pat Frank and David Lee guilty of contempt of that court.

The American Newspapers, Inc., was sentenced to pay a fine of $5,000, and Pat Frank and David Lee were each sentenced to be confined in the jail of Montgomery county for the period of ninety days. From this judgment and sentence David Lee and Pat Frank entered an appeal, and these cases are Nos. 57 and 58. The American Newspapers, Inc., paid its fine of $5,000.

On the 17th day of June, 1935, Pat Frank and David Lee filed motions to quash the writs of attachment, and to dismiss the order citing and requiring each of them to appear and show cause why they should not be held in contempt of court.

Both of the motions were overruled. On July 1, 1935, David Lee and Pat Frank filed motions to strike out the judgment and sentence of the court, both of which were overruled, and Lee and Frank appealed. These appeals are Nos. 81 and 82. The cases were heard in this court on the same assignment, one brief being filed upon the part of the appellants. These four appeals will be disposed of in this opinion. The appeals in 81 and 82 present no questions that require consideration other than those in Nos. 57 and 58.

In the beginning it should be stated that a flagrant and inexcusable contempt upon the authority and dignity of the circuit court for Montgomery county was practiced. In the briefs and oral arguments, and in the proceedings, there is no denial that the newspaper publications set out in the record, amounted to a contempt. There are two questions raised for consideration:

First: The validity of the procedure adopted and followed with respect to the prosecution of these cases; and.

Second: Whether there is sufficient evidence to warrant the commitment of these two appellants for contempt.

At common law there was no appeal from the judgments or orders of the court in matters of contempt; Kelley v. Montebello Park Co, 141 Md. 194, 118 A. 600, 28 A.L.R. 33; Ex parte Sturm, 152 Md. 114, 124, 136 A. 312, 51 A.L.R. 356, and cases there cited; Repalje on Contempts, p. 141; but section 105 of article 5 of the Code Supplement 1929 provides for an appeal by any person adjudged in contempt by any order or judgment passed to preserve the power or to vindicate the dignity of the court, and this right to appeal relates both to direct and indirect contempts. This section also provides that "upon appeal to the Court of Appeals, in cases of both direct and constructive contempts, the Court of Appeals shall consider and pass upon the law and the facts and said court shall make such order as to it may seem proper, including the right to reverse or modify the order appealed from."

The power and authority to punish contempts is one of common-law origin and has existed in courts of law and equity since ancient times. It is an inherent right and not dependent upon legislative authority and relates to criminal, as well as civil contempts, and to direct and indirect contempts alike. It is a power reposed in courts of civil, as well as criminal, jurisdiction. Ex parte Maulsby, 13 Md. 625, appendix; Kelley v. Montebello Park Co, supra; Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 298, 52 N.E. 445, 44 L.R.A. 159, 70 Am.St.Rep. 280; State v. Howell, 80 Conn. 668, 69 A. 1057, 125 Am.St.Rep. 141, 13 Ann.Cas. 501.

The divulging of judicial secrets has always been regarded as an interference with a proper functioning of courts and the administration of justice: The secrets of the grand jury room, the proceedings of courts in camera and the like, must be respected and remain inviolate, and any person violating these features of judicial proceedings are properly held in contempt. R.C.L., vol. 6, p. 514; Telegram Newspaper Co. v. Commonwealth, supra. The power and authority possessed by courts may not be destroyed or abridged by legislative enactment. It is recognized as a constitutional attribute, and is preserved as a necessary function of the judiciary. Repalje on Contempts, § 11 (1884 Ed.); Ex parte Maulsby's Case, supra.

Contempts are classified, first, as to the place of their commission. Direct contempts are those committed in the actual presence of the court, or so near to it as to interfere with the due and proper administration of justice or in direct defiance of the dignity and authority of the judicial tribunal in question. Indirect or constructive contempts are those which do not occur in the presence of the court, or near it, as above stated, but at some other place out of the presence of the court and beyond a place where the contempt would directly interfere with the proper functioning of the court. This class of contempts has been designated in article 5, § 105, as such as "have been committed not in the presence of the Court, or not so near to the Court as to interrupt its proceedings." Again contempts have been divided into two classes with regard to their inherent character or nature, namely, criminal and civil, or punitive and coercive. In spite of the verbiage used to designate them, they are "neither wholly civil nor criminal." Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.(N.S.) 874.

This classification has been the source of confusion and misunderstanding resulting in extensive litigation. Nevertheless, they are so recognized by this court. Ex parte Sturm, 152 Md. 114, 136 A. 312, 51 A.L.R. 356, and cases there cited, as well as, by the Supreme Court of the United States, Cooke v. U. S., 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. Criminal contempts at times were dealt with at common law by presentment, indictment, and trial, as were other misdemeanors, and they were so regarded, but this did not deprive the court whose dignity had been assailed, or authority frustrated of the right to deal with contempts of all classes, in accordance with the rules and procedure recognized since ancient times by the common law. Courts have authority to institute upon their own motion contempt proceedings against those persons whom the court has reasonable ground to suspect of contempt. Not only has the court this right, but as a judicial tribunal it is its duty to do so.

In this case the technical distinction between direct and indirect contempts is of little importance from a procedural standpoint, because the circuit court for Montgomery county has jurisdiction and authority to deal with contempts. The Code expressly says, in dealing with indirect or constructive contempts, that "If any such alleged contempt be a constructive contempt, alleged to have been committed not in the presence of the Court, or not so near to the Court as to interrupt its proceedings, then the Court shall issue a citation to the person alleged to be in contempt, requiring such person to show cause why an order adjudging such person in contempt should not be passed within a time named therein. If no cause is shown, within the time so named, such order shall be final; but if such person shall answer and show cause within the time named, then testimony shall be taken and the matter tried by the Court without a jury."

The entire defense was taken upon procedural and technical grounds and not upon the issue of fact as to whether or not Pat Frank and David Lee had perpetrated a contempt in obtaining the facts contained in the newspaper, for which they were reporters, or in supplying information to enable that newspaper to wrongfully publish the article complained of. No answer denying or avoiding the charges was filed to the citation or to the affidavit of the state's attorney.

This paper seems to have been the only one publishing or carrying these articles, and this is substantiated by its statement: "The Washington Herald learned exclusively last night." Then follows in detail the statement of facts that the paper claimed it had "learned exclusively."

The order issued is as follows:

"Order of Court.

"(Filed June 12, 1935.) "In the Circuit Court for Montgomery County:

"Ordered by the Circuit Court for Montgomery County, this 12th day of June, 1935, that a citation issue to Pat Frank and David Lee and The American Newspapers Incorporated and Michael W. Flynn, its Managing Editor and Ray Helgesen, its night City Editor, requiring them and each of them to show cause, on or before June 17th, 1935, why they should not be adjudged in contempt of this Court for making and publishing reports purporting to make disclosures as to a private conference of the judges of this Court in Chambers upon an issue to be determined by their verdict, and stating a conclusion alleged to have been reached in such conference, and for thus embarrassing and obstructing the administration of justice."

On the 21st day of June, 1934, the state's attorney for Montgomery...