In re Dissenting Opinion

• Citation: 200 Ind. 654
• Parties: Dissenting Opinion.
• Decision Date: 05 August 1927
• Court: Supreme Court of Indiana

200 Ind. 654

Dissenting Opinion.

Supreme Court of Indiana

August 5, 1927

Martin J. ---I was not a member of the court at the time this action was begun, nor at the time of the publication of the article which the Attorney-General, in his amended information, has alleged to be contemptuous. For this reason I preferred not to participate in the decision of this case, but, at the request of my colleagues, and on their suggestion that by reason of the fact that I was not a member of the court at those times and did not participate in the decisions of the court that were criticized by the respondent, I would be in position to consider the matter impartially, I have consented to sit in the case.

After a careful consideration of all the facts alleged in the information, and in the answers of the respondents, I am unable to agree with the finding and order made by the court and respectfully dissent therefrom.

Opportunity has not been afforded, however, in which to prepare, in as careful a manner as I should desire, a statement of the reasons why I do not concur in the opinion which has been adopted by a majority of the court. While this proceeding has been at issue for more than a year and was assigned for the preparation of an opinion more than seven months ago, the opinion was first presented to the court for consideration and discussion day before yesterday. Previously I had examined the pleadings and briefs herein, which cover more than 300 legal size pages of typewritten matter and had made some notes regarding the same, but I did not attempt, in advance of the preparation of an opinion by my colleague and of the adoption or rejection thereof, to prepare a statement of my views in the form of an opinion. But owing to the fact that the court has very properly determined that final action in this matter should be had without further delay, I shall endeavor to point out, as clearly as possible in the limited time at my disposal, the reasons for my dissent.

The principal indirect or constructive contempt alleged was the publication of the annual report of the state superintendent of the Anti-Saloon League made on January 19, 1926, to the board of trustees of that organization. This report was printed in pamphlet form and distributed to members of the league and it also appeared in the American Issue, Indiana edition, a newspaper published by the Anti-Saloon League at Westerville, Ohio. The other alleged constructive contempt was the publication of a statement regarding one of the judges of this court in the American Issue, almost three years ago, during a political campaign. The report of the superintendent to the trustees covers about three pages of the newspaper and contains between 6,000 and 7,000 words. Only a small portion of it is devoted to a discussion of the liquor law and the decision of the courts in liquor cases. Some mis-statements are made as to just what certain decided cases have held-mis-statements that one who is not trained in the law is apt to make in discussing technical legal questions (the respondent Shumaker is a minister)---but it appears to me that all the criticism therein contained is directed toward the judgment or reasoning of the court and not against the integrity or honesty of the court or of its members.

I shall set out in paragraphs numbered I to VII those parts of this report, the publication of which the Attorney-General alleges has rendered the respondents in contempt of this court together with my comments on each of the paragraphs. Considered calmly and deliberately, in the light of the constitutional guaranty of free speech and writing, and with a tolerance for the opinions and convictions of others which may differ from our own, I do not believe that these paragraphs which follow and on which this action is based considered separately or collectively, as published in the respon- dent's report to the board of directors or in the American Issue, or with any reasonable intendments, can be held to be contemptuous.

The information does not appear to charge that the respondent's statements were false in fact, but it alleges that the effects which the statements produced were false and were intended to be false. I believe that the intendments, constructions, inferences and imprecations contained in the Attorney-General's amended information are unwarranted, and that it was only by adopting them that the court has arrived at the conclusion that respondents are guilty of contempt.

I. "A majority of that court (the Supreme Court of Indiana) is at least liberal in its sentiments."

The word "liberal" means independent in opinion, broadminded, free from bigotry, not narrow or contracted in mind but inclined to welcome new ideas and reforms. The use of this word as here applied to the judges who constitute a court cannot reasonably be held to mean that the judges do not believe in enforcing the liquor law as it exists and that they "permit that fact to enter into their decisions," as the Attorney-General has interpreted it. And its use, even in the most extreme colloquial acceptance of the term, as one who is not favorable to prohibition, certainly does not justify the conclusion of the Attorney-General or of the majority of the court that the respondents meant to impute a lack of integrity to the court or any of its judges or meant "that at least a majority of the judges of this court are controlled by the liquor interests." To say that a judge is liberal in his views on the prohibition question or is "wet" is not the equivalent of a charge that he is corrupt.

II. "One of the members, Mr. Willoughby, is said to be bitterly hostile to prohibition, and if he had it in his power, would wipe all prohibition laws from the statutes."

There is a well-defined distinction between criticism of the court and criticism of a judge as an individual. The allegation that a judge is against prohibition and "would wipe all prohibition laws from the statutes" is far from an allegation that, so long as the prohibition laws remain on the statutes, such judge as a member of the court would not enforce the law as it exists. "In our jurisprudence the extraordinary action of contempt of court does not lie to heal the wounded sensibilities of a judge, it may be invoked only when the offending act impedes or disturbs the administration of justice." Francis v. People (1926), 11 F.2d 860, 865; see, also, 6 R. C. L. 512, 25; State, ex rel., v. Circuit Court, infra; Neel v. State (1849), 9 Ark. 259, 50 Am. Dec. 209. The prosecution says regarding the statement: "If he had it in his power he would wipe all prohibition laws from the statutes," that "the plain meaning of this language is, that, if the particular judge had it in his power, he would by his decision wipe out all prohibition laws." I do not agree with this conclusion. It is quite common for judges who personally believe that the prohibition laws are unwise and that they should be repealed to enforce them to the letter. It is their duty to enforce the law as they find it, not as they would have it.

The common-law rule that the mere writing contemptuously of a judge was a constructive contempt of court "was founded on the obsequious and flattering principle that the judge was a representative of the king, but the theory of government which vests royalty with an imaginary perfection, and which forbids question or discussion, is diametrically opposed to the principles of a free and popular government, in which the utmost latitude and liberty in the discussion of business affecting the public and the conduct of those who fill positions of public trust that is consistent with truth and decency, is not only allowable, but is essential to the public welfare." 6 R. C. L. 512, citing Storey v. People (1875), 79 Ill. 45, 22 Am. Rep. 158.

III. "We trust that the next election will give us a Supreme Court that will be dry and not wet."

So long as there is a prohibition issue and judges are selected by the process of popular election, discussions of "dry" and "wet" will be made preceding their elections, regardless of whether such discussions are pertinent or proper. A learned and conscientious judge acting as a court or a member of a court will decide or assist to the best of his ability in deciding the cases strictly upon the questions of law or fact involved therein regardless of his personal or political views on the prohibition question, but a court in an indirect contempt proceeding should not undertake the useless and idle task of telling the electorate what they shall not consider in exercising their franchise.

This paragraph III may be said to refer to the members or member of the court who sought re-election at the election following the paragraph's publication. No. VII, infra, also was published when the judge mentioned therein was a candidate for re-election. Attention is called in this connection to the case of State, ex rel., v. Circuit Court (1897), 97 Wis. 1, 72 N.W. 193, 65 Am. St. 90, 38 L. R. A. 554, where (as stated in 6 R. C. L. 510), it was held that "when a judge becomes a candidate for re-election public policy requires a full discussion of his past acts, subject only to the law of libel and not to the law of contempt." In that case an attorney had charged and a newspaper had printed the charges, several columns in length, that a judge had been partial and unfair in respect to his official conduct in the trial of causes and had been influenced by corrupt motives. The Supreme Court of Wisconsin said:

"In the present case it is of the utmost importance to bear in mind that Judge Bailey was a candidate before the people for re-election. Had he been a candidate for any other office, it would not be contended by anyone that the...