Foust v. Denato

• Decision Date: 10 March 1970
• Docket Number: No. 53685,53685
• Citation: 175 N.W.2d 403
• Parties: Howard W. FOUST, Petitioner, v. James P. DENATO, Judge of the Ninth Judicial District of Iowa, Respondent.
• Court: Iowa Supreme Court

Page 403

175 N.W.2d 403

Howard W. FOUST, Petitioner, v. James P. DENATO, Judge of the Ninth Judicial District of Iowa, Respondent.

No. 53685.

Supreme Court of Iowa.

March 10, 1970.

J. R. McManus, Des Moines, for petitioner.

Richard C. Turner, Atty. Gen., and James C. Sell and Bennett Cullison, Jr., Asst. Attys. Gen., for respondent.

STUART, Justice.

This is an original proceeding in certiorari to review an order by the trial court adjudging petitioner guilty of contempt of court for failure to produce documents specified in a subpoena duces tecum.

Howard W. Foust, President of Local 67, International Association of Bridge, Structural and Ornamental Iron Workers, A.F.L.-C.I.O. was subpoenaed to appear before the Polk County Grand Jury March 13, 1969 with 'all receipt books, receipt stubs and copies of receipts relating to payments of money to (the union) by all individuals assigned to work through said union, * * *' for the two year period following January 1, 1966. He appeared without bringing the records and was cited for contempt.

At the hearing to show cause why he should not be punished for contempt, he testified he did not have possession of or access to the records listed in the subpoena duces tecum on March 13, 1969 or any prior date. The records were in the exclusive care, possession, custody and control of William Reed, the financial secretary, business agent and treasurer of the local union. He testified he did not know where in the union hall the records were kept and that he did not have keys to the union hall or Mr. Reed's desk. He was neither bonded nor salaried as president. Mr. Reed told him the records were his personal property and refused to turn them over to him. He testified he had no intention of disobeying the subpoena insofar as it was possible for him to obey it and that if he had had access to them he 'would gladly have brought them down here'.

The constitution and by-laws of the international union were introduced into evidence and supported the claim that the financial secretary is the custodian of the records specified in the subpoena. Petitioner as president has the power to fill a vacancy in the office of financial secretary for the unexpired portion of the term and signs all financial documents. The executive committee, of which he is a member, may inspect the books of the financial secretary at any time.

The only evidence offered by the state was the transcript of his testimony before the grand jury which disclosed his failure to obey the subpoena duces tecum. It is the state's position that Foust as president of the local and member of the executive committee had access to the requested records and was the proper person to subpoena to compel their production.

I. We require that contempt be proven by clear, satisfactory and convincing evidence. McDonald v. McDonald, Iowa, 170 N.W.2d 246, 247 (1969); Harkins v. Harkins, 256 Iowa 207, 211, 127 N.W.2d 87, 89 (1964); Brody v. District Court of Pottawattamie County, 250 Iowa 1217, 1221, 98 N.W.2d 726, 729 (1959); Johnstone v. Johnstone, 226 Iowa 503, 508, 284 N.W. 379, 382 (1939). But when the evidence clearly shows the order of court has been disobeyed, a party who seeks to purge himself of contempt by showing his inability to comply with the order of court has the burden to prove it. Harkins v. Harkins, supra, 256 Iowa at 211, 127 N.W.2d at 91, and citations; Society of the Divine Word v. Martin, 240 Iowa 1084, 1089, 38 N.W.2d 619, 621 (1949); Roach v. Oliver, 215 Iowa 800, 804, 244 N.W. 899, 902 (1932); Pewick v. Meyer, 202 Iowa 134, 135--136, 209 N.W. 396, 397 (1926); Annos. 120 A.L.R. 709; 76 A.L.R. 396; 40 A.L.R. 550; 31 A.L.R. 652; 22 A.L.R. 1266.

'Confinement should not be directed to compel a party to do something which he is wholly unable to do. But the burden of proving inability should be on the defendant, who should not be held to have sustained it when he has failed to make a good-faith effort to confrom.' Hopp v. Hopp, 279 Minn. 170, 156 N.W.2d 212, 217 (1968). See Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415, 423 (1957); United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884, 890--891 (1950); Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60, 63.

'Ordinarily one charged with contempt of court for failure to comply with a court order makes a complete defense by proving that he is unable to comply. A court will not imprison a witness for failure to produce documents which he does not have, unless he is responsible for their unavailability, * * * or is impeding justice by not explaining what happened to them.' United States v. Bryan, supra, 339 U.S. at 330--331, 73 S.Ct. at 730, 94 L.Ed. at 890; McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136, 142 (1960).

'It is settled that a criminal contempt is committed by one who, in response to a subpoena calling for corporation or association records, refuse to surrender them when they are in existence and within his control.' Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415, 421 (1957); Wilson v. United States, 221 U.S. 631, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D 558; United States v. Patterson, 2 Cir., 219 F.2d 659, 660; United States v. Watson, 5 Cir., 266 F. 736, 739 (1920).

'Failure to comply with a subpoena to produce books, papers or documents can constitute contempt. Thus, a corporation officer who unjustifiably refuses to comply with a subpoena calling for corporation records in his control commits a contempt. And a union officer who appears at a grand jury investigation pursuant to a personal subpoena ad testificandum but who fails to produce the records required by a subpoena duces tecum addressed to him in his capacity as a union officer, and refuses to testify as to the whereabouts of such records, may be proceeded against for failure to produce the records demanded by the subpoena duces tecum.' 17 Am.Jur.2d 44, Contempt § 39; see Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed. 1225, 1232, n. 7 (1957); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202, 1205.

As we apply these principles to the facts of this case, the difficulty with the state's position becomes obvious. Although it was no problem to show petitioner disobeyed the subpoena duces tecum, the evidence shows Reed, not petitioner, was the custodian of the records sought and had actual possession and control of them. He claimed they were his own records and refused to deliver them to petitioner. Petitioner, as president of the...