Bozorth, In re, C--539

• Citation: 118 A.2d 430,38 N.J.Super. 184
• Decision Date: 23 November 1955
• Docket Number: No. C--539,C--539
• Parties: . BOZORTH. Superior Court of New Jersey. Chancery Division
• Court: New Jersey Superior Court

Page 184

38 N.J.Super. 184

118 A.2d 430

In the matter of contempt of court by Loriot D. BOZORTH.

No. C--539.

Superior Court of New Jersey Chancery Division.

Nov. 23, 1955.

Mitchell H. Cohen, Camden, Camden County Prosecutor.

Harold W. Bennett, Camden, for defendant.

HANEMAN, J.S.C.

Defendant here is charged with a contempt of court consisting of having written the following letter on the 29th day of September, 1955, to the Gloucester City News, a newspaper circulating in Gloucester City, New Jersey, in which it was printed in an edition appearing on the 29th day of September, 1955:

'Dear Editor:

'I see in your columns that Judge Lloyd's ruling in behalf of the Tavern owner's petition makes it mandatory for Council to see that the matter is placed on the ballot for the voters to again determine whether or not such sales shall be permitted between 4:00 P.M. and midnight.

'As one who was present at the hearing it is difficult to understand just why the Judge ruled as he did. At the point of recess without the Judge is given to double talk it certainly seemed that he would rule against the Tavern Association. What happened in between that time? Whatever it was it must have influenced the good Judge's decision to pass the buck and make the voters decide the issue.

'Why do we pay these men such good salaries if they are not capable of deciding issues when they come before them?

'Now the question really is this, not shall the taverns have these extra hours of sale alone, but shall they dominate the good men of our Council, our Mayor, our Legal adviser and Police Department. In other words, who is going to run the affairs of Gloucester City? The constituted authorities or the Tavern Association?

'There is only one answer to this question if we desire a decent city. And that is for every self-respecting citizen to go to the poles on election day and vote against this referendum, and 'Rule By The Tavern Association.'

'Yours truly

'(s) Rev. Loriot D. Bozorth'

The litigation referred to in the foregoing letter was an action in lieu of prerogative writ entitled Charles R. Bowell Jr. vs Mayor and Council of the City of Gloucester City and the City Clerk of the City of Gloucester City, Docket L--119--55--PW. The relief therein sought was a demand that a petition requesting a referendum upon the question of the legal hours for the sale of alcoholic beverages be received and filed by the city clerk and that the mayor and council be obliged to cause that public question to be printed upon the ballot for such a referendum to be held on the date of the next general election. On September 9, 1955 counsel for the plaintiff moved for a summary judgment before the Honorable Frank T. Lloyd, Jr., who on that date granted said motion and granted the relief sought in the complaint. Thereafter, the said Judge Lloyd having been apprized of the above letter, directed that the Rev. Loriot D. Bozorth be cited for contempt and appointed Mitchell H. Cohen to prosecute such action.

It might be well, at the outset, to make some general observations concerning contempts of court.

A succinct statement of the history of contempts and their inclusion in the judicial system of the United States is contained in Bridges v. California, 314 U.S. 252, 285, 62 S.Ct. 190, 204, 86 L.Ed. 192 (1941), from which case more extensive quotation is hereafter made:

'From the earliest days of the English courts, they have encountered obstructions to doing that for which they exist, namely, to administer justice impartially and solely with reference to what comes before them. These interferences were of diverse kinds. But they were all covered by the infelicitous phrase 'contempt of court,' and the means for dealing with them is historically known as the power of courts to punish for contempt. As is true of many aspects of our legal institutions, the settled doctrines concerning the mode of procedure for exercising the power of contempt became established on dubious historical authority. Exact legal scholarship has controverted much pertaining to the origin of summary proceedings for contempt. See Sir John Fox, The History of Contempt of Court, Passim. But there is no doubt that since the early eighteenth century, the power to punish for contempt for intrusions into the living process of adjudication has been an unquestioned characteristic of English courts and of the courts of this country.

'The judicatures of the Englishspeaking world, including the courts of the United States and of the forty-eight states, have from time to time recognized and exercised the power now challenged. * * * 'As in the exercise of all power, it was abused. Some English judges extended their authority for checking interferences with judicial business actually in hand, to 'lay by the heel' those responsible for 'scandalizing the court', that is, bringing it into general disrepute. Such foolishness has long since been disavowed in England and has never found lodgment here.'

A contempt of court has been defined as a disobedience to the court by acting in opposition to its authority, justice and dignity. Generally speaking, he whose conduct tends to bring the authority and administration of the law into disrepute or disregard, interferes with or prejudices parties during litigation, or otherwise tends to impede, embarrass, or obstruct the court in the discharge of its duties is guilty of contempt. 17 C.J.S., Contempt, § 2, p. 4 (1939); 12 Am.Jur., Contempt, sec. 2, p. 389 (1938). Contempts fall into two general categories or classes, i.e., civil contempt and criminal contempt. Although by their very basic nature the two are frequently, at least to some extent, merged in a given act and are sometimes confused, it may be stated that normally, a civil contempt is a contempt consisting in a failure to perform some act required or ordered to be done by a court for the benefit of the opposing party, and is therefore an offense against the party in whose behalf a violated order or judgment is made. The ultimate object of a civil contempt proceeding is the vindication of private rights. A criminal contempt, on the other hand, concerns itself with conduct directed against the authority or dignity of the court. It is an act tending to obstruct, hinder or hamper justice in its due course. The purpose of a criminal contempt is the vindication of public authority and the preservation of the dignity of the court. It involves the element of public injury or offense.

Criminal contempts have been as well subdivided into two general categories, which are commonly referred to as direct or indirect and constructive contempts. The former, as the designation signifies, are contempts committed in the physical presence of the court. State v. Gussman, 34 N.J.Super. 408, 112 A.2d 565 (App.Div.1955). An indirect or constructive contempt is an act committed not in the presence of the court, but at some distance therefrom.

The defendant here stands accused of a criminal indirect or constructive contempt. Wherever the word 'contempt' is hereafter used it will be employed to describe such a contempt. That which is hereafter stated has especial and particular reference to an indirect contempt and is limited to such a contempt.

Normally, to constitute the offense of contempt of court for statements made or articles written, the statements or writings must have been made or written at a time when a particular matter was pending in court and prior to the disposition thereof by a judge.

The publication of an article concerning the matter pending before the court, which attacks the character or integrity of the court, jury, parties to the action, attorneys or officers of the court, and which has a tendency to influence or prejudice the tribunal or jury before which such matter is pending, constitutes contumacious conduct. It must tend to intimidate, influence, impede, embarrass or obstruct courts in the administration of justice in a matter pending to be deemed a contempt.

Defamatory comments on the conduct of a judge with respect to particular cases or matters finally disposed of, even though they may be libellous, are not generally deemed contumacious.

The reason underlying such a conclusion must be self-evident upon a slight reflection. Criminal contempt finds its genesis in the theory that the acts complained of constitute a public injury or offense, as distinguished from a private injury or offense.

Both the State and Federal Constitutions contain guarantees of the freedom of speech and press. It is the inherent and basic right of any citizen under our Government to criticize the conduct of his public officials. Basically, the power to punish for the type of contempt with which we are here concerned arises from an insistence that justice will be honestly and fairly administered without fear or favor. The harsh and sometimes unfounded criticism of the members of any of the three branches of our Government may be the unfortunate lot of public officials in any of such branches, but it has always been deemed a basic principle that such comment may be made by the public, subject, of course, to being held accountable for libel or slander. Nor should the judicial branch of our Government enjoy any more enviable condition than the other two branches in this respect. If such permitted comment serves a needful purpose in the executive and legislative branches, there is no sound theory which should deny that a similar purpose is served insofar as the judicial branch of the Government is concerned. Absent any effect upon the honest, fair, impartial and dispassionate administration of justice resulting from criticism of the past acts of a judge in a matter not then pending, to hold such criticism a contempt would amount to a censorship, and this is an untenable and abhorrent situation, under our Government. A curtailment of criticism of the conduct of finally concluded litigation cannot be dismissed...