Goss v. State of Illinois
| Decision Date | 26 March 1962 |
| Docket Number | No. 61 C 1223.,61 C 1223. |
| Citation | 204 F. Supp. 268 |
| Parties | Thomas D. GOSS, also known as Thomas Duggan, Plaintiff, v. STATE OF ILLINOIS et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Sol R. Friedman, I. S. Friedman and Edwin R. Armstrong, Chicago, Ill., for Thomas D. Goss, also known as Thomas Duggan, plaintiff.
Daniel P. Ward, State's Atty. of Cook County, Chicago, Ill., for State of Illinois, and others, Thomas A. Hett, Asst. State's Atty. of Cook County, Chicago, Ill., of counsel.
Thomas D. Goss, a citizen of the United States, during 1955 appeared regularly five nights a week on a late evening television broadcast from a Chicago station entitled the "Tom Duggan Show". It was a form of conversation-commentary program. It dealt heavily in criticisms and sarcasms, and often included unrestrained attacks on public officials and other people involved in current news stories.
On July 26, 1955, a Chicago citizen filed a complaint for divorce against his wife in Superior Court of Cook County, charging her with cruelty. He also moved for custody of their child, and the testimony given in support of the motion tended to implicate the child's mother in improper conduct with Thomas D. Goss. The custody hearing continued through July 29th, and then was recessed to September 12th, when it was resumed. Goss was called and appeared as a witness on September 12th and 13th, and on September 20, 1955, temporary custody of the child was awarded to its paternal grandparents.
At various times during the child custody proceedings, Goss, in his "Tom Duggan Show", commented on the proceedings, its parties, witnesses and attorneys. His remarks were severe and tended to hold the persons about whom he commented up to public ridicule. Then, on November 1, 1955, some forty-two days after the termination of the temporary custody proceedings, the only proceedings in which Goss was a subject of evidence, the Judge before whom the custody proceedings had been heard caused the institution of contempt proceedings against Goss, and later himself heard and ruled on the rule to show cause.
In the contempt hearing, Goss sought a change of venue and a jury trial. Both of his requests were denied. He admitted the statements attributed to him, admitted knowledge of the pendency of the child-custody proceedings, denied that his purpose in his broadcasts was to influence or intimidate the Judge or the witnesses, and stated that his motive was to defend himself before his television audience against the charge of adultery raised in the child-custody proceedings, which charges were being publicly aired.
The Judge in his decision on the contempt explained that in the course of the contempt hearing Goss did not seek to apologize to him and promise not to similarly conduct himself again, and then found Goss guilty of "criminal indirect contempt." There was a ten-day jail sentence and a $100.00 fine.
The Supreme Court of Illinois on direct review in the contempt case decided that Goss had been entitled upon request to a change of venue, and reversed and remanded the case. At the same time, the Supreme Court reviewed the proceedings below and held that the statements of Goss on television "constituted a clear and present danger to the administration of justice." People of State of Illinois v. Goss, 10 Ill.2d 533, 141 N.E.2d 385. Explaining that the three principal United States Supreme Court decisions on contempt vs. freedom of speech out of which the reasonable tendency rule has been supplanted by the clear and present danger rule, related to intimidation of judges, who are deemed to be able to withstand intimidation, thus accounting for their reversals of state contempt punishment, the Court found that here the intimidation was not of the trial judge but of the parties and their witnesses who have no special degree of fortitude to withstand intimidation, and thus the United States Supreme Court decisions did not apply.
The contempt case against Goss thus remanded returned to the Superior Court, where it was assigned to another Judge, who heard it by stipulation on the prior record. Indicating that he was bound by the Supreme Court's ruling on the merits of the case, he too found Goss guilty of contempt and reassigned the same penalties. On direct appeal again, re-trial was affirmed. Subsequently, certiorari and rehearing were denied by the Supreme Court of the United States. Goss v. People of the State of Illinois, 365 U.S. 881, 81 S.Ct. 1029, 6 L.Ed.2d 192; Id., 366 U.S. 941, 81 S.Ct. 1658, 6 L.Ed. 2d 852 (1961). The mandate of Illinois' Supreme Court having issued, the Sheriff of Cook County now holds the mittimus for the arrest and confinement of Goss.
On July 21, 1961, Thomas D. Goss, as a plaintiff in this Court, filed a complaint under the Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201 et seq. He seeks to invoke jurisdiction under the power of this Court to redress the deprivations of rights, privileges and immunities of citizens to freedom of speech and press secured by the First Amendment, 28 U.S.C.A. § 1343(3) and 42 U.S. C.A. § 1983, and made applicable to state action through the Fourteenth Amendment to the Constitution. He asks this Court to declare that he will be denied his right to due process of law as well as his right to freedom of speech and press if the mittimus for his arrest held by the State of Illinois is not held void and its enforcement permanently enjoined.
The defendants contend this Court is without jurisdiction to act in the matter. I do not agree. The rights and immunities of freedom of speech and press are guaranteed by the Fourteenth Amendment to citizens of the United States against state action. Douglas v. Jeanette, 319 U.S. 157, 162, 63 S.Ct. 877, 87 L.Ed. 1324; Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5 L.Ed.2d 492; National Association for the Advancement of Colored People v. Gallion, Atty. Gen. of Alabama et al., 368 U.S. 16, 82 S.Ct. 4, 7 L.Ed.2d 85.
Any state judicial decision which violates either due process of law or freedom of speech and press is within the protection of the Fourteenth Amendment. Tribune Review Publishing Co. v. Thomas, D.C., 120 F.Supp. 362, 369; Nesbit v. Riesenman, 298 Pa. 475, 148 A. 695, cert. denied, 281 U.S. 754, 50 S.Ct. 408, 74 L.Ed. 1164; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; and any duty of a sheriff to carry out that decision in any manner which would result in further offense to these rights of a citizen would constitute state action in violation of Federal law, and would yield to the injunctive powers of this Court. Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Douglas v. City of Jeanette, 319 U.S. 141, 63 S.Ct. 877; Cooper v. Hutchinson, 3 Cir., 184 F.2d 119.
Defendants contend that plaintiff may not seek relief by way of an action for declaratory judgment in the course of which he requests injunctive relief, but first should submit to the Sheriff for jailing and then come in by way of the Habeas Corpus Act, 28 U.S.C.A. § 2241 et seq. When a person alleges that he has been deprived of constitutional rights under color of state law by the final judgment of the state court, a Federal District Court will take jurisdiction under the Declaratory Judgments Act without awaiting his submission to administrative action of state executives performed pursuant to that judgment. Cooper v. Hutchinson, 3 Cir., 184 F.2d 119, 124; Kristensen v. McGrath, 86 U.S. App.D.C. 48, 179 F.2d 796, 798-800; Tribune Review Publishing Co. v. Thomas, D.C., 120 F.Supp. 362; D.C., 153 F. Supp. 486; 3 Cir., 254 F.2d 883. The Tribune case is particularly in point. In its first decision, 120 F.Supp. 362, the Court held that it had jurisdiction but that it chose not to take jurisdiction until the state court had ruled on the constitutional question.
Defendants contend that plaintiff is attempting to get this Court to re-litigate and review the judicial determination of other courts of competent jurisdiction, and that the Civil Rights Act cannot be employed merely to seek a review or correction of a state court's decision. This contention is in error. Where a constitutional question is raised out of the act of a state officer depriving or seeking to deprive a person of a constitutional right, this Court has original jurisdiction and a primary responsibility, within the historic context of the relationship of Federal Courts to the states. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Railroad Warehouse Commission of Minnesota v. Duluth Street Railway Co., 273 U.S. 625, 47 S. Ct. 489, 71 L.Ed. 807; Gobitis v. Minersville School District, D.C., 21 F.Supp. 581; Mitchell v. Wright, 5 Cir., 154 F.2d 924. To the extent to which state courts may figure in the totality of the state action which becomes the subject matter of a civil rights case, that action will be part of the subject matter of the Federal case, Westminister School District v. Mendez, 9 Cir., 161 F.2d 774; but the availability of higher state court review, as a matter of propriety and preferred procedure will be respected. Shipman v. Du Pre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Great Lakes Dredge and Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407; A. F. of L. v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873.
Defendants contend that plaintiff has been accorded in every manner due process of law. To the degree to which it may become necessary, this contention will be discussed later, since it is possible that a discussion of the freedom of speech issue, the same being the more fundamental freedom, may dispose of the entire matter before the Court.
Defendants then contend that plaintiff's conduct constituted a clear and present danger to the due administration of justice, and that his right to freedom of speech and press will not serve to protect him from punishment for contempt. They adopt as their argument the...
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