Gilbert v. State

• Decision Date: 01 July 1982
• Docket Number: No. M-80-314,M-80-314
• Citation: 648 P.2d 1226,1982 OK CR 100
• Parties: Fred P. GILBERT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1226

648 P.2d 1226

Fred P. GILBERT, Appellant, v. The STATE of Oklahoma, Appellee.

No. M-80-314.

Court of Criminal Appeals of Oklahoma.

July 1, 1982.

Rehearing Denied July 30, 1982.

An Appeal from the District Court of Oklahoma County; Joe Cannon, judge.

Fred P. Gilbert, appellant, was convicted of Direct Contempt of Court in Oklahoma County District Court Case No. CJ-80-259. He was sentenced to six (6) months in the county jail and a Three Thousand Dollar ($3,000) fine, and appeals. The judgment and sentence is REVERSED AND REMANDED with instructions.

Mary E. Bane, Oyler, Smith & Bane, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan J. Talbot, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

GORDON R. MELSON, Assigned Judge:

Fred P. Gilbert, a Tulsa attorney, appeals from an Order Adjudging him guilty of Direct Contempt in Oklahoma County District Court, Case No. CJ-80-259. He was sentenced to serve six (6) months in the County Jail and pay a three thousand dollar ($3,000) fine.

I. STATEMENT OF FACTS

The contempt conviction occurred in the course of proceedings held on an application for post-conviction relief before the Honorable Joe Cannon, Oklahoma County District Judge. On January 10, 1980, the appellant filed (by mail) a Motion to Disqualify Judge Cannon with the Oklahoma County Court Clerk, along with a written request that the Clerk bring a copy of the filing to the Court's attention. ¹ The next day, January 11, 1980, the appellant Gilbert and an associate, William McMahon, appeared for the regularly scheduled hearing on the post-conviction relief application. Immediately before the hearing, they handed a copy of the Motion to Disqualify to Judge Cannon in his chambers, indicating they wished to present it. After reading part of it, Judge Cannon ordered the appellant not to leave the courthouse; he then convened in the open courtroom to conduct the post-conviction hearing.

Thereupon the judge asked Mr. Gilbert if he had drafted the Motion to Disqualify which bore his signature. Appellant responded affirmatively. Judge Cannon stated that, in his opinion, the document was absolutely contemptuous, and told appellant he would give him an opportunity to show cause why he should not be held in direct contempt of court.

Appellant responded by requesting that he be allowed to consult with counsel. He was permitted to call counsel, but he was placed in the temporary custody of the Sheriff and ordered not to leave the courthouse.

At the beginning of a rather short and informal hearing on the application for post-conviction relief, Judge Cannon summarily overruled the disputed Motion to Disqualify, apparently believing it to be patently in error-and contemptuous. ² The contempt proceeding was then resumed, with counsel appearing with appellant Gilbert.

Appellant made the following contentions, all of which are also raised on appeal: First, it was argued that the matter could not properly be considered as direct contempt; second, that the Motion was not wilfully contemptuous but only stated certain inferences he had drawn from documentary evidence after denial of his request for a pre-trial conference to ascertain the truth or falsity of the suspect assertions; third, that Judge Cannon should disqualify himself from presiding further and have the case referred to another judge; fourth, that he be formally arraigned and provided a jury trial; and lastly, that he be permitted to call witnesses in his behalf.

All these remarks and contentions were rejected. After permitting appellant opportunities to explain the Motion to Disqualify if he so desired, Judge Cannon stated the Motion was contemptuous on its face and ruled Gilbert in direct contempt of court, and in contempt of all the judges of the Seventh Judicial District and the entire judicial system. He was sentenced to serve six (6) months in the County Jail and fined three thousand dollars ($3,000).

Gilbert's request that bond be set pending appeal was denied; later, Judge Cannon set a bond hearing for the following Monday, January 14, 1980, at 10:00 a. m. The judge further denied requests for bond pending that hearing, and directed the Sheriff to take the appellant into custody. Later that day, this Court released the appellant on bond, pending his appeal.

Thereafter, appellant filed a Motion for Judgment Notwithstanding the Order of Contempt or Alternatively a Motion for New Trial. After a somewhat unusual hearing on January 17, 1980, this Motion was overruled by Judge Cannon. From these orders, Gilbert appeals.

Since there is no evidence that appellant's outward behavior was disorderly or insolent at the hearing, or that he obstructed any on-going judicial proceedings, this Court's decision must focus on the legal significance to be attached to appellant's preparing, filing and presenting the Motion to Disqualify, the relevant portion of which reads as follows:

Episode 5. After the undersigned counsel's discovery of the results of the 'demurrer' conclave referred to under Episode 4, supra, the undersigned sent to each District Judge in Oklahoma County a letter-brief (Appendix E hereto) which detailed the substantive error in the participating judges' 'demurrers', and the procedural error of the 'secret conclave' approach to justice.

The letter-memorandum of April 21, 1979, was replete with extensive legal arguments and research, bore significant fruit in that a number of the Oklahoma County Judges later viewed their Lamb petitioners' pleadings as being essentially proper and acceptable, and from there those Judges' Lamb cases got 'moving.'

However, at a third conclave held by at least a majority of the Oklahoma County Judges, in April of 1979, they decided to retaliate personally against the undersigned attorney by filing a complaint against him with the Bar Association. See Appendix F hereto.

Actually, 'complaint' is at best a euphemism for what this majority of District Judges did, or attempted to do, to the undersigned attorney, for the 'complaint' does not contain any actual allegations or accusation of wrongdoing, at least not with such specificity that the judersigned (sic) could answer and rebut, and thereby clear himself. Instead, what these majority of Judges did was to send to the Bar Association that most craven and treacherous of accusations, the insinuation, or the innuendo, which fails to make any specific (and hence answerable) charge at all, but which instead implies some wrongdoing in such a way as to comprise a man's reputation in a way that he really can't (sic) respond, and thereby clear himself.

That any American public official would resort to such an insidious tacic (sic) is bad; that Judges would do it so absolutely unspeakable, although what more, really, should free men expect from 'government behind closed doors,' and where, true to Oklahoma County practice, the undersigned was given absolutely no notice whatsoever that his conduct was being questioned, and no opportunity whatsoever to appear, to be heard, and to confront his accusers and answer the charges (if in fact there even were any charges of misconduct, which is extremely doubtful in view of the fact that Their Honors elected to resort to innuendo rather than plain, manful, direct English).

Those majority of Judges, whoever they were, can only be taken to be personally and passionately prejudiced against the undersigned attorney personally. And, since Judge Cannon was a participant in that majority, it inescapably follows that Judge Cannon himself participates and shares in that prejudice against the undersigned attorney individually.

Episode 6. On April 17, 1979, Judge Cannon denied post-conviction relief to a Lamb petitioner named Scott Cheatwood, although without notice that the case was set for hearing that day. Okla.Co., Case No. 24114. The basis of the denial was that of 'sustaining a demurrer' to the sufficiency of that petitioner's pleadings, all pursuant to Episode 4, supra. See Appendix G hereto.

It is interesting to note that while Petitioner Cheatwood's 'Lamb' petition was denied on April 17, 1979, that denial was not filed until May 18, 1979-31 days later. What a coincidence, that the time for appealing a post-conviction denial is 30 days. Thus, by the clever but corrupt expedient of keeping his denial of relief to Petitioner Cheatwood secret for 31 days, Judge Cannon sought to insulate his denial of relief in Cheatwood from appellate scrutiny, which is another way of saying that Judge Cannon was personally aware that his denial of the Cheatwood 'Lamb' petition was illegal. That is bad enough; but to resort to the tactic employed by Judge Cannon to preclude Cheatwood's appeal goes beyond mere prejudice; it was instead oppression in office, tinged with judicial malice.

In one of five assignments of error, the appellant maintains that if his conduct constituted direct or indirect contempt, he was denied certain guaranteed procedural rights. Obviously, if his conduct amounted to indirect contempt, appellant was entitled to a number of procedural rights that were denied him, such as a written accusation of the charges and a jury trial. See, Art. II, § 25, Oklahoma Constitution, and 21 O.S.1981, § 567. Furthermore, he contends that direct contempt is a crime, a misdemeanor, under previous rulings of this Court, citing Roselle v. State, 503 P.2d 1293, 1294-5 (Okl.Cr.1972). ³ Therefore, if he committed a direct contempt, a misdemeanor, then appellant contends he was denied certain procedural rights granted every accused misdemeanant in Oklahoma, to-wit: prosecution by written information, ⁴ right to trial by jury and to call witnesses on his behalf, ⁵ among others.

This Court disagrees with appellant's contention that contempt should be classified as a crime or criminal prosecution under the Oklahoma Constitution. In doing so, it is worthwhile to consider the sources and nature of the contempt power in Oklahoma....