Bisignano v. Municipal Court of Des Moines

• Decision Date: 18 June 1946
• Docket Number: 46857.
• Citation: 23 N.W.2d 523,237 Iowa 895
• Parties: BISIGNANO v. MUNICIPAL COURT OF DES MOINES et al.
• Court: Iowa Supreme Court

23 N.W.2d 523

237 Iowa 895

BISIGNANO v. MUNICIPAL COURT OF DES MOINES et al.

No. 46857.

Supreme Court of Iowa

June 18, 1946

Rehearing Denied Sept. 23, 1946. [Copyrighted Material Omitted]

Comfort Comfort & Irish and Walter F. Maley, all of Des Moines for petitioner.

Emmert, James, Needham & Lindgren, of Des Moines, for respondent.

HALE Justice.

This proceeding in certiorari was brought by Al Bisignano, the petitioner, against the Municipal Court of the City of Des Moines and Harry B. Grund, one of the Judges thereof, following a charge and conviction for contempt of court. The order for the writ issued out of this court on January 18, 1946. The contempt proceeding arose out of certain facts charged in substance in the rule to show cause issued by Judge Grund.

The facts so alleged are charged to be that about 2:30 o'clock in the afternoon of Saturday, January 12, 1946, said Judge Harry B. Grund was in the Young Men's Christian Association building in Des Moines when he was approached by Al Bisignano, who is also known as Babe Canero, who called to him to 'Come here'. The Judge inquired: 'Who are you talking to?' and Bisignano responded 'You'. Bisignano and Judge Grund then walked to the hallway and Bisignano took hold of Judge Grund and began shaking him and calling him vile and profane names. As alleged, the petitioner is a large and powerful man, a former wrestler and pugilist, and was acting in an angry and violent manner, and he continued to insult Judge Grund and to use profane and obscene language. The Judge then said to Bisignano: 'Are you crazy?', and in answer was told, while the assault continued, 'You gave them a warrant, you are in cahoots with those bastards, and you can't push me around and get by with it. I have too much on you. You got rich taking money from people to keep them out of the army. I ought to kill you.'

It is charged that later in the day Bisignano, with his attorney, came to the draft board office, of which Judge Grund is chairman. The attorney alleged he was sorry the incident had happened and Bisignano said, in substance, that if Judge Grund would not tell what happened at the Young Men's Christian Association he would not tell what he knew on Judge Grund. Later Bisignano came back to the draft board office where Judge Grund was alone and the Judge said to him: 'What's wrong with you?', and in response he stated that Judge Grund was supposed to be his kind of people and asked why the Judge signed a search warrant to have his (Bisignano's) place raided, and 'Why didn't you tip me off?' He was informed that the Judge would sign a search warrant for any citizen or peace officer if he swore under oath that the law was being violated.

The rule to show cause states that during this time there were pending in the municipal court of the city of Des Moines three cases involving the manager of the tavern known as Babe's. Among these three cases was a condemnation hearing. At the time of the said assault, and prior thereto, all these cases had been set for trial on January 14, 1946. The rule further alleges that the import of the assault and threats was that Bisignano would tolerate no interference of any kind by Judge Grund in the sale of intoxicating liquor at the place known as Babe's, a tavern night club located in Des Moines. That Judge Grund had made no resistance and there was no quarrel or fight in the incidents referred to, but that the whole matter consisted of a physicial assault committed by Bisignano upon the person of Judge Grund with threats to intimidate him, arising out of the liquor case in the municipal court against the employees of Babe's tavern or tap room and the condemnation hearing, together with such assault and threats accompanied by the obscene, blasphemous and profane language. The rule, dated January 15, 1946, directs that a copy thereof be served personally upon Al Bisignano by one of the bailiffs of the municipal court, and the return of such service was made and filed.

Hearing was had in response to the rule, on January 18, 1946, and Bisignano, with his attorney read into the record his so-called apology, with an affidavit therewith. Respondent then read the rule to show cause. The attorney for petitioner, defendant in the contempt proceedings, then stated: 'The defendant has a statement he would like to read to the court. Following that we desire to file an affidavit of explanation and in addition, we desire to put on one or two witnesses on matters that we think are material.

'One of the things that the court has charged in his statement is that there are three cases pending here in this court against this defendant. We challenge that statement and we ask that the court provide proof with reference to same because there are no cases here at the present time against this defendant. There was a case in December and he waived to the Grand Jury because I handled it for him myself before Judge Moore. That took every case against him away from this court.'

The petitioner then read a 'statement of apology' as to 'the incident that occurred at the Y.M.C.A.'. In this he said: 'I have been under a terrific strain for several weeks, due to the fact that I have been tied up in litigation in both this court and in other courts'.

He continued: 'Furthermore only a few days before I had my controversy with you at the Y.M.C.A. some police officers came to my home and served a summons on my wife, who was then and is now in a delicate condition, and upon my four little children, the youngest of whom is only three and a half years old, involving the suit now pending against me in the district court. This youngster was only a few months old when the suit was filed. The combination of all of these things made me think that my family and I were being singled out and prosecuted. I, of course, have never been able to understand why my four little innocent children should be required to answer for my conduct, innocent or otherwise.

'I desire to and do therefore offer my apologies to the court and repeat that I am sorry the incident occurred.'

A witness (Dunagan) for petitioner testified to a conversation with respondent at the witness' office in the police station, in which respondent is claimed to have refused to sign a search warrant against one Joe Epstein, saying, 'No, but I will sign one for you to raid Babe's'. In response to an inquiry by the court the witness testified that Epstein had been in the army the past two years; that before he went in the army he operated a place that had nickelodians, penny machines, and was 'also in the punch board business'; that when he went to the army he did not close his business which is still maintained by his brother Julius.

Petitioner then read into the record an affidavit in which he tells what took place at the Y.M.C.A. building. An examination of this affidavit and of the apology referred to above discloses no denial of the assault and the vile language, but attempted to explain. The statement of Bisignano contains much immaterial matter, a claim of favoritism related to him by Captain Dunagan; admits the alleged assault and use of epithets in somewhat milder form, and claims they were in response to the epithet 'Dago' applied to him by the respondent. Bisignano further refers, in his affidavit, to the fact that he had talked to the judge about reports of his taking money for keeping the boys out of the army, and a part of his statement relates to conversations alleged to have been had between Mr. Comfort, his attorney, and Judge Grund relative to an apology to be made, none of which bear, to any great extent, upon the actual occurrences at the Y.M.C.A. building.

There was a further oral statement at this hearing by the respondent, material parts of which are included in the rule to show cause, but he reasserted that three cases were pending involving petitioner's tavern and that they were scheduled for trial the following Monday.

The statements by petitioner Bisignano were under oath, but those of the respondent, Judge Grund, were not.

This was the substance of the material matters that occurred at the hearing. Mr. Comfort, attorney for the petitioner, moved to dismiss the contempt proceedings for the reason that the court was without jurisdiction to entertain such proceedings and was without jurisdiction to impose any penalty, and under the decisions 'this matter should be dismissed'. This motion was overruled. The court continued the pending proceedings against Babe's tavern until January 28th. Respondent found petitioner guilty of contempt of court and imposed on him a six months jail sentence and a fine of $500. A warrant was issued stating 'that the statements made by the court in the rule to show cause or statement of facts is based on the personal knowledge of the court, and such statements and circumstances, as fully set out in the rule to show cause, are the facts and circumstances upon which the court is now acting in the premises'.

Petition for writ of certiorari was filed in this court January 18, and on the same day order entered for issuance of the writ. Application for appointment of a special Master in Chancery to investigate certain facts set out in such application was made on January 23. Petitioner claimed that the respondent herein agreed that there might be a private apology on January 14 and when no one would be present in the court room. Petitioner claimed further that there was a public broadcast of the contempt hearing, suggesting that respondent had changed his mind as to a private hearing.

To this petition for a special master in chancery to investigate and report findings of fact, respondent filed resistance, denying that there was any broadcast direct from the court room but admitting a ...