In re Cottingham

• Decision Date: 02 June 1919
• Docket Number: 9280.
• Citation: 66 Colo. 335,182 P. 2
• Parties: In re COTTINGHAM et al.
• Court: Colorado Supreme Court

182 P. 2

66 Colo. 335

In re COTTINGHAM et al.

No. 9280.

Supreme Court of Colorado

June 2, 1919

Error to Clear Creek County Court; Royal R. Graham, Judge.

In the matter of the contempt proceedings against Miles Cottingham and others. Respondents were adjudged guilty of contempt, and they bring error. Judgment reversed, and citation dismissed.

George L. Nye and Pershing, Nye, Fry & Tallmadge all of Denver, for plaintiffs in error.

Edward M. Sabin, Edwin H. Park, and Greeley W. Whitford, all of the Denver, for defendant in error.

TELLER J.

The county court of Clear Creek county adjudged the plaintiffs in error guilty of contempt, and from that judgment they prosecute this writ of error.

Plaintiff in error Foley, as one of the administrators of an estate with his coadministrator and two other parties, brought suit in a justice court in forcible detainer to obtain possession of certain real estate belonging to said estate and the other plaintiffs.

The defendants in that action, having been defeated, appealed the cause to the county court.

Plaintiffs in error Davis, Whitney, and Crist, attorneys for the plaintiffs, filed in said court a petition for a change of judge on the ground of bias and prejudice on the part of the county judge of said county.

The petition was verified by Foley, and was supported by affidavits by Foley and Cottingham.

The making and filing of these documents was adjudged to be contempt, and the parties were fined $100 each therefor.

The proceedings were instituted by a citation issued on an affidavit which contained a copy of said petition and affidavits, and averred that the parties responsible for the same had gone beyond what was necessary and had 'transgressed the limitations of the rules with respect to such petitions and affidavits,' and made charges reflecting upon the honor of the judge and the purity of the court in the administration of justice, and by the language used had shown 'a wicked, malicious purpose to wantonly scandalize the good name and character of the judge and to bring him into public disgrace * * * and destroy his influence for usefulness as a judge and court in said county.'

The affidavit for the citation was made by a member of a committee of three lawyers appointed by the county court to investigate respondents' conduct.

From the report of this committee, and from the affidavit, it appears that the authors do not recognize the difference between the law of contempt as it is in England and the modern law on the subject in this country.

As indicating this distinction reference may be made to the fact that since an early day federal courts have been by statute deprived of the power to punish as for a constructive contempt.

According to the overwhelming weight of authority in this country language which was clearly contemptuous at common law is not to be considered so here unless it concerns a pending cause, tends to impede the due administration of law, or is manifestly wanton and malicious. Storey v. People, 79 Ill. 45, 22 Am.Rep. 158; State v. Anderson, 40 Iowa 207; Cheadle v. State, 110 Ind. 301, 11 N.E. 426, 59 Am.Rep. 199; In re Robinson, 117 N.C. 533, 23 S.E. 453, 53 Am.St.Rep. 596; State v. Sweetland, 3 S.D. 503, 54 N.W. 415; Percival v. State, 45 Neb. 741, 64 N.W. 221, 50 Am.St.Rep. 568; State v. Circuit Court, 97 Wis. 1, 72 N.W. 193, 38 L.R.A. 554, 65 Am.St.Rep. 90; Works v. Superior Court, 130 Cal. 304, 62 P. 507; Ex parte Green, 46 Tex. Cr. R. 576, 81 S.W. 723, 66 L.R.A. 727, 108 Am.St.Rep. 1035; State v. Kaiser, 20 Or. 50, 23 P. 964, 8 L. R. A. 584; State v. Tugwell, 19 Wash. 238, 52 P. 1056, 43 L.R.A. 717; In re Dalton, 46 Kan. 253, 26 P. 673; Ex parte Steinman, 95 Pa. 220, 40 Am.Rep. 637; State Board v. Hart, 104 Minn. 88, 116 N.W. 212, 17 L.R.A. (N. S.) 585, 15 Ann.Cas. 197; Ex parte Hickey, 4 Smedes & M. (Miss.) 751; Mullin v. People, 15 Colo. 437, 24 P. 880, 9 L.R.A. 566, 22 Am.St.Rep. 414; In re Smith, 54 Colo. 486, 131 P. 277; and Cooper v. People, 13 Colo. 337, 373, 22 P. 790, 6 L.R.A. 430.

That the reason of the rule at common law does not apply here is recognized in the last case cited.

As is well known, justice in England was originally administered by the king in person, in aula regia; and later, when judges were appointed to sit for him, their persons were endowed with a portion of the dignity of the sovereign whose personal representatives they were. To speak disrespectfully of them was to disregard that 'divinity which doth hedge a king.' In this country the sovereign people claim no attributes of divinity, and are under no illusion as to the fallibility of those who administer the law. Our people demand only that judges shall not be treated so as to interfere with the proper discharge of their official duties. Beyond that they must rely upon the same law as other people for protection from dafamatory attacks.

The foregoing views find ample support in the decisions of this court.

In Hughes v. People, 5 Colo. 436, relied upon to support the judgment, the language held to be contemptuous, as the opinion states, directly charged 'the judge of the court wherein the cause was pending with colluding with the administrator and the attorney for the estate for the purpose of 'gaining an unjust and undue advantage' against the plaintiff in error, who was then a party defendant to the proceedings. * * * It implies judicial corruption and unjust oppression on the part of the judge presiding.' This language related to the conduct of the judge in a pending case, and falls within the rule above stated. In the court's discussion of what facts might properly be set out in an application for a change of judge, one view of the question was apparently overlooked. Manifestly the petition is not intended merely to suggest to the judge matters already known to him because of which he ought not to try the case. It must set up the facts on which the party relies to show prejudice, so that a reviewing court will know what petitioner's grounds were, and be able to determine whether or not the court erred in not granting a change. The opinion contains some dicta apparently recognizing the common-law rule as to the sanctity of a judge, which later decisions of this court show not to be a correct statement of the law in this country.

In Cooper v. People, supra, Judge Helm, in the opinion denying a rehearing, after pointing out that the opinion dealt only with alleged contempts from language concerning pending causes, said:

'The right of the press without fear of punishment for contempt, in the interest of the public good, to challenge the conduct of parties, jurors, and witnesses, and to arraign the judge himself at the bar of public opinion, in connection with causes that have been fully determined, is not denied by the decision filed in this case.'

In Hamma v. People, 42 Colo. 401, 94 P. 326, 15 L.R.A. (N. S.) 621, 15 Ann.Cas. 655, it is said: 'The proposition will hardly be disputed that in this class of contempts the libelous or slanderous publication must relate to judicial action; that it must have reference to a judicial decision, order, or proceeding in a cause pending or completed.'

Again it is said (page 410 of 42 Colo., at page 328 of 94 P. [15 L.R.A. (N. S.) 621, 15 Ann.Cas. 655]):

'It is urged that such a publication as the one under consideration interferes with and embarrasses the administration of justice; that it tends to bring the court and judge into disrepute; and that it destroys public confidence in both and impairs their usefulness. The correctness of these observations may be conceded. But malconduct of the judge in discharging a private trust, or false and malicious attacks upon his integrity as an individual, also reflect upon him as a public official and tend to produce the same unfortunate results. Yet no intelligent lawyer would sanction proceedings by contempt under the latter circumstances.

'This extraordinary remedy is given primarily for the purpose of safeguarding the interests of parties to judicial causes or proceedings, and secondly for the purpose of protecting the court itself from coercion or interference while in the discharge of its judicial duties. And the fact

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