Alexander v. Sharpe

• Decision Date: 15 August 1968
• Citation: 245 A.2d 279
• Parties: Grover G. ALEXANDER v. Charles SHARPE, Sheriff.
• Court: Maine Supreme Court

Page 279

245 A.2d 279

Grover G. ALEXANDER v. Charles SHARPE, Sheriff.

Supreme Judicial Court of Maine.

Aug. 15, 1968.

Grover G. Alexander, pro se.

John W. Benoit, Jr., Asst. Atty. Gen., Augusta, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN and WEATHERBEE, JJ.

WEATHERBEE, Justice.

On appeal from the dismissal of the writ of habeas corpus.

On July 6, 1967, the petitioner, an attorney-at-law, was acting as attorney for the plaintiff in the trial of a civil action for negligence before a jury in the Cumberland County Superior Court. At about 4:45 P.M. on that afternoon, the second day of the trial, the petitioner responded to a ruling of the Presiding Justice with the words 'I think it demonstrates your prejudice without doubt.' These words, addressed to the Justice, were spoken during trial and in the presence of the jury. The Justice answered that the matter would be discussed in chambers, adjourned court until morning without further comment, and left the building. The following morning he discussed the matter in chambers with counsel and granted petitioner's request that The petitioner took no appeal from the judgment of contempt against him but requested that execution of the sentence should be delayed until five o'clock that afternoon because of reasons concerning his family. The Justice granted his request. At five o'clock the petitioner surrendered himself to the Sheriff and, at the same time, filed a petition for the writ of habeas corpus. The writ issued and hearing was had before a Justice of this Court. The writ was ordered dismissed, petitioner furnished bail, and the matter comes before us on petitioner's appeal from the dismissal of the writ of habeas corpus.

a mistrial be ordered in the case, and then, in the courtroom, adjudged the petitioner to have been in contempt and sentenced the petitioner to serve five days in the county jail and to pay a fine of five hundred dollars.

Until the adoption of our Maine Rules of Criminal Procedure in 1965, neither our statutes nor our rules provided for appeal from judgments for contempt. Review by habeas corpus has been accepted, there having been no other method available and, in Stern v. Chandler, 153 Me. 62, 134 A.2d 550 (1957), this remedy was expanded to include review of the facts as well as of jurisdiction and form of commitment. M.R.Crim.P. Rule 37 now provides that whenever a judgment of the Superior Court is by law reviewable by the Law Court, review shall be by appeal. Appeal, and not habeas corpus, is now the appropriate method for review of Superior Court judgments for criminal contempt. Glassman, Maine Practice, 42.5. As the petitioner here took no appeal from the judgment of contempt against him, the matter is not properly before us. However, as this case is the first of its kind to reach this Court since the adoption of the new Rules we have treated the matter as though the correct procedure had been followed.

Petitioner designated some twenty-five points to be relied upon on appeal. Our disposition of the matter will make discussion of most of them unnecessary.

JURISDICTION

Petitioner contends that while the Court had undisputed jurisdiction over the subject matter and over his person, it lost this jurisdiction when it failed to take action against petitioner until the morning following the incident in question.

It has long been recognized that the power of a court to punish summarily for a contempt committed in the presence of the Court is inherent in the nature and constitution of a court and necessary for the court to possess in the exercise of all its other powers. Ex Parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Authority for the exercise of this power by the Superior Court is also found in 4 M.R.S.A., Section 114, and in M.R.Crim.P. Rule 42(a) but this statute and rule only restate what substantially has been the common law.

Unquestionably the alleged contempt here was of the type classified as a criminal contempt, as distinguished from a civil contempt. Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 65 N.E.2d 555 (1946). This Court has long recognized this distinction and has said that this class of contempts should be punished 'summarily' (Androscoggin and K. R. R. Co. v. Androscoggin R. Co., 49 Me. 392 at 400 (1862)) and 'by immediate punishment'. (Stern, supra, 153 Me. p. 68, 134 A.2d 553, quoting Ex Parte Terry, supra.)

We do not view the use of the words 'summarily' and 'immediate' as precluding the Justice's use of reasonable time for deliberation and consideration before he takes such severe action. Summary action, as used in reference to criminal contempt, means without the necessity of notice and hearing as are required in cases of criminal contempt where the contempt is not committed in the immediate view or 'We think delay was not only proper, but laudable on the part of the trial judge. The word 'summarily' in the rule does not require a hasty determination.' In re Osborne, 344 F.2d 611 (9 Cir., 1965).

presence of the Court. M.R.Crim.P. Rule 42(b).

The record shows that the Justice was greatly disturbed by the petitioner's conduct and its possible effect upon the trial of the case. The delay over night while the Justice reflected upon the matter and determined what course of action the circumstances required him to take was proper and commendable and the Court lost jurisdiction over neither the cause nor the petitioner by its deliberate action. People v. De Stefano, 64 Ill.App.2d 368, 212 N.E.2d 368 (1965); Hallinan v. United States, C.A. 9, 182 F.2d 880 (1950); United States v. Galante, 298 F.2d 72, 100 A.L.R.2d 431 (2 Cir., 1962); Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952).

DUE PROCESS-SUFFICIENCY OF FACTS

The petitioner contends that the facts disclosed by the record are not sufficient to constitute a contempt.

Petitioner's client, the plaintiff in the case of Doughty v. Anderson, sought recovery for personal injuries. Early in the testimony of plaintiff's first witness on the morning of July 6th, the Presiding Justice, on objection by defense counsel, ruled that he would exclude any testimony relating to permanent impairment of the plaintiff because of the fact that the pre-trial memorandum, prepared by counsel, had contained no claim by plaintiff for permanent impairment. The Court and counsel then went into chambers where the petitioner vigorously opposed the Justice's ruling and under the Court's direction a record of the parties' positions was carefully prepared for their use if the issue should be raised upon appeal.

Following this, the Court offered the petitioner an opportunity to discontinue the trial and amend the pre-trial order to permit the disputed issue to be considered at a later trial. Petitioner declined this offer.

If the petitioner believed that the Justice's ruling was in error (and we do not suggest that it was in error,) it was still his ethical duty as an officer of the Court to abide by the ruling during the trial and then, if the jury verdict required it, to exercise his well protected right to review the issue on appeal. No other conduct is consistent with fair and orderly trial procedure and with respect for the rights of the opposing party. Instead, petitioner persisted in a line of questioning designed to establish in the jurors' minds the impression that plaintiff had suffered permanent impairment. Several rulings adverse to petitioner resulted. Finally, after a ruling adverse to petitioner on another issue the petitioner announced that he would now take advantage of the offer to discontinue the trial which the Justice had made that morning. The Justice refused to allow petitioner that earlier declined privilege and the petitioner, in the presence of the jury, accused the Justice of prejudice.

Petitioner's accusation of prejudice was clearly an act of contempt of court. Its immediate and obvious results were to disrupt the trial, to inject in the minds of the jurors strong resentments incompatible with the dispassionate determination of the issues before them, and to deprive both plaintiff and defendant of an early resolution of their litigation. A more extended harm to be expected from such an accusation on the part of an officer of the court is a lessening of public respect for the bench, the bar and the judicial process.

The decree of the Justice below dismissing the writ of habeas corpus fairly and succinctly described the necessity of respect for the Court on the part of counsel.

'A Judge is a representative of the judicial system and as such must be accorded, while functioning in a courtroom, the respect Petitioner asks us, in his brief,

which his position demands. The responsibility of a properly conducted case rests on the shoulders of the Judge who has the duty of so conducting the trial of the controversy that the solemnity and decorum of a courtroom is maintained at its highest level. Party litigants are entitled to a well ordered trial of their causes, the public expect it and they are entitled to it. Trials are open to the public and what transpires in the courtroom is of public notice and concern. The jury, counsel, litigants, witnesses, court officers, representatives of the press and spectators are all observers of courtroom proceedings. They hear and see trial action and carry a message to the public as to what might be expected by any litigant who seeks judgment in a court of law. The message they carry is dependent upon a Judge's supervision in conducting a trial and counsel's conduct including his respect for and civility to a Court. A member of the legal profession, above all others, should be sensitive to the respect a Judge is entitled to while performing his duties in a court of law and conduct himself accordingly.'

'What is an attorney to do under trial conditions when he is confronted with a series of what he believes to be erroneous and prejudicial rulings from the Court?'

The...