Harnack v. District Court of Woodbury County

• Decision Date: 02 September 1970
• Docket Number: No. 54059,54059
• Citation: 179 N.W.2d 356
• Parties: Roger D. HARNACK and Harold Eugene Johnson, Plaintiffs, v. The DISTRICT COURT OF WOODBURY COUNTY, Hon, C. F. Stilwill, Presiding, Defendant.
• Court: Iowa Supreme Court

Page 356

179 N.W.2d 356

Roger D. HARNACK and Harold Eugene Johnson, Plaintiffs, v. The DISTRICT COURT OF WOODBURY COUNTY, Hon, C. F. Stilwill, Presiding, Defendant.

No. 54059.

Supreme Court of Iowa.

Sept. 2, 1970.

Harry H. Smith, Sioux City, for plaintiffs.

Edward Samore, County Atty., and Bernard Brown, Asst. County Atty., Sioux City, for defendant.

MOORE, Chief Justice.

This is an original certiorari, on consolidated cases, to test the validity of defendant court's order changing place of trial of criminal charges against plaintiffs from Woodbury to Pottawattamie county. We annul the writ.

On November 18, 1969 two county attorney's informations were filed in Woodbury County District Court against Roger D. Harnack. One charged him with the crime of injury to property. It charged he 'did unlawfully, wilfully, and feloniously, with intent to destroy, or injure a building, towit: at 221 S. Davidson St., Sioux City, Iowa, residence of Gary S. Goodwin, by depositing, or throwing dynamite therein, all in violation of Section 697.3 of the 1966 Code of Iowa.' Goodwin was an employee of Iowa Beef Packers, Inc.

The second information against Harnack charged the crime of arson in that he 'did unlawfully, wilfully, maliciously, and feloniously cause to be burned a garage, being a partial of the dwelling house of Mrs. Donald Bartholonew, at 3806 3rd Ave., Sioux City, Iowa, all in violation of Section 707.1 of the 1966 Code of Iowa.' An employee of Iowa Beef Packers, Inc., had moved from the described premises a short time before the garage fire.

On November 24, 1969 two county attorney's informations were filed in Woodbury County District Court against Harold Eugene Johnson. One charged him with the crime of murder. It charged he 'did unlawfully, wilfully, and feloniously murder Nancy Nielson, all in violation of Section 690.01 of the 1966 Code of Iowa.' The second information charged Johnson with assault with intent to murder in that he 'did unlawfully, wilfully, and feloniously assault Michaelene Niesen with intent to murder her, all in violation of Section 690.6 of the 1966 Code of Iowa.' Nacy and Michaelene were sisters. Each was wounded by the same bullet from a gun in the hands of Johnson. Harnack was present in the girls' apartment when the incident took place. Johnson claimed the shooting was accidental. Subsequent to the shooting rrports were made that Michaelene had been acting as an informer for Iowa Beef.

Early in December 1969 Harnack and Johnson filed motions for continuance and for change of venue in each case against them. At all pertinent times they have been represented by their present counsel. The allegations of each motion are substantially the same. Each alleged he was a member of the union, Amalgamated Meat Cutters and Butcher Workmen of North America, he was an employee of Iowa Beef Packers, Inc. at its plant at Dakota City, Nebraska (10 miles southwest of Sioux City, Iowa, where most of the employees lived), since August 24, 1969 a labor dispute had existed at the plant, each had engaged in picketing the plant, the alleged acts and crimes of each had been proximately linked with and connected to the labor dispute by the various news media in Woodbury County and 'that because of the notoriety, intense public emotion, and extended and minute coverage by the local and even national news media of all facets of the above described labor dispute with which these cases have been constantly associated, it is impossible for the local enforcement officers, courts, and eventually a local jury to afford the defendant herein the kind of dispassionate and fair trials to which he is guaranteed under both the Constitution of the United States and the State of Iowa.'

Attached to each motion was a compilation of news stories from the Sioux City Journal, which has a large circulation in Woodbury County and adjacent areas, concerning the labor dispute and crimes alleged to be connected therewith. Like coverage by three Sioux City television and four radio stations was alleged.

It was also alleged that following August 24, 1969 the labor dispute had involved Iowa Beef Packer installations at Mason City, LeMars, Fort Dodge and Denison, Iowa, followed by wide publicity in connection therewith.

Attached to each motion were approximately one hundred affidavits of Woodbury and Monona County residents verifying the basic allegations thereof. The thrust of these affidavits was that Harnack and Johnson because of prejudice and excitement could not receive a fair and impartial trial in either Woodbury or Monona County.

The motions alleged the situation described in Woodbury County prevailed throughout western Iowa and that a fair trial could only be assured by a change of venue to central or eastern Iowa and the closest area would be Polk County.

By stipulation these motions were consolidated for submission to the lower court and are so submitted in this proceeding. On hearing, in addition to introduction of a large volume of news copy, testimony was given by officers and employees of the television and radio stations, police officers and members of a Sioux City civic group organized to help control unrest and crime.

The record includes evidence that between August 24, 1969 and the hearing which commenced December 11, 1969 there had been more than 250 reported acts of violence directed at workers of Iowa Beef plants who did not join the strike and property of or businesses which in some way served Iowa Beef. These included nine instances of fire bombings of incendiary fires, twelve instances of dynamiting including the Dakota County sheriff's home and electrical substation which served the plant, two instances of shooting into private homes, 26 instances of damage to cars and trucks and 209 instances of tire slashing.

These incidents were given almost daily factual reporting by the news media in Sioux City. Members of the press were called by plaintiffs and testified in detail of the coverage given. Several opined Harnack and Johnson could receive a fair trial in Woodbury County.

The trial court, defendant here, on January 2, 1970 filed well prepared findings of fact and rulings on the motions. After reviewing the evidence of the many incidents of violence, to which we have referred supra, the court found the news media coverage had been restrained, responsible, factual and without prejudice to Harnack and Johnson. The court then stated: 'But the mere fact that there have been more than 250 reported acts of violence attributed to the strike makes it difficult for the defendant to have a fair trial here in the present climate. At the same time a community should not be helpless against violence and when those accused of such acts are apprehended they should be brought to trial as speedily as may be consistent with orderly judicial process and the granting of a fair trial to the accused. The record does not indicate that the present climate is likely to change in the foreseeable future. The motion for continuance is therefore overruled.'

The parties agreed at trial time and continue to agree such climate as existed in Woodbury County also existed in Monona County and the trial court so held. The 4th Judicial District, by statute, is composed of two counties, Woodbury and Monona. Monona is adjacent to and south of Woodbury.

As observed by the trial court Judicial Districts 15, 16 and 18 ajoin the 4th. The court found a great amount of publicity had reached the 16th and 18th but as to Pottawattamie County in the 15th that was not true. The court stated the order for change of venue to Pottawattamie County would not be immediately entered as the Harnack and Johnson brief had indicated their request was only for a transfer to Polk County.

On January 8, 1970 the motions for change of venue were amended including these allegations. 'That defendant strongly believes and therefore alleges that the only counties in Iowa in which he could secure a fair and impartial trial at this time is in a county containing a metropolitan city of comparable size to Sioux City in either central or eastern Iowa; that factually the closest and most convenient such county is Polk County, Iowa. That it is the intent of defendant in his petition for change of venue that it be construed as a request for a change of venue away from Woodbury County and the other counties of western Iowa to a county of comparable metropolitan characteristics in central or eastern Iowa and that the preferred and most convenient such county is Polk County, Iowa.'

The trial court found the record failed to sustain the claim a fair and impartial trial could not be received in western Iowa, defendant had no right to choose the county to which a transfer was to be made, there had been some publicity about the Sioux City events in every Iowa county and on January 13, 1970 ordered each case against Harnack and Johnson transferred for trial to the western section of Pottawattamie County. Council Blufs where the cases would be tried is a metropolitan city of smaller population than Sioux City. It is on the western border of Iowa and approximately 90 miles south of Sioux City.

Proceedings in the trial court have been stayed. On this original certiorari plaintiffs' several contentions will be considered under the real question set out in the brief filed on behalf of defendant judge--'Did the Respondent act beyond his jurisdiction, or illegally, or without authority in ordering the change to Pottawattamie County, in Council Bluffs?'

I. Certiorari is appropriate where an inferior tribunal is alleged to have exceeded its proper jurisdiction or otherwise acted illegally. The hearing here is not de novo and we do not review the findings of fact of the inferior tribunal further than to...