In re Dunn

• Decision Date: 23 December 1909
• Parties: IN RE DUNN.
• Court: Nebraska Supreme Court

85 Neb. 606

124 N.W. 120

IN RE DUNN.

Supreme Court of Nebraska.

Dec. 23, 1909.

Syllabus by the Court.

“Where an offense in the nature of a contempt is committed in the presence of the court, notice to the offender is not usually essential before punishment ([Ex parte Bradley] 7 Wall. 372 ); and it is immaterial, where the contempt consists in the use of offensive language, whether it be spoken openly or presented to the court in a written or printed argument ([Ex parte Secombe] 19 How. 13 ).” In re Woolley, 11 Bush (Ky.) 95.

“A petition (brief) for a rehearing is not a ‘pleading,’ but an argument addressed to the court and the individual members of the court; and to incorporate into such argument contemptuous, scandalous, or insulting matter is to commit in open court an act constituting a contempt on the part of the attorney.” Id.

Where the matter spoken or written is of itself necessarily contemptouous, offensive, and insulting, the disavowal of an intention to commit a contempt or reflect upon the court or any member thereof cannot justify the act although it may be considered as tending to excuse, and in mitigation.

The power to punish for contemptuous, insolent, or insulting conduct or language is inherent in every court having common-law jurisdiction, without any expressed statutory authority. “The right of self-preservation is an inherent right in the courts, not derived from the Legislature, and cannot be made to depend upon the legislative will.” In re Woolley, 11 Bush (Ky.) 95.

“An open, notorious, and public insult to the highest judicial tribunal of the state, for which an attorney contumaciously refuses in any way to atone, may justify the refusal of that tribunal to recognize him in the future as one of its officers; and in a proceeding against him for contempt, if the contumacy be therein manifested, there is no reason why the order revoking his authority until he does comply with the reasonable requirements of the court may not be made.” Id.

Under a citation to an attorney of this court requiring him to appear before the court on a day and hour designated to show cause why he “should not be dealt with for contempt on account of the language contained in” a brief in support of a motion for rehearing, filed in the office of the clerk of the court, it is within the jurisdiction of the court to indefinitely suspend such attorney from practice.

A part of the language used and presented in the brief referred to is set out in the opinion, and it is held to be the duty of the court to take notice of the same, and to apply the required disciplinary penalty.

The judgment of suspension was made “indefinite,” as stated from the bench, in order that if, at any time, respondent made the necessary retraction and explanation to relieve and remove the contemptuous quality of the language used the judgment would be vacated and the suspension removed; no intention of permanent disbarment or even of a suspension for a definite time being intended. Until such time as respondent makes the proper and usual amends, the order will stand as made.

Proceedings against I. J. Dunn for contempt of court. Defendant, having been adjudged guilty of contempt and sentenced to disbarment, moved for a vacation of the order. Overruled.

Dean, J., dissenting.

W. J. Connell and H. E. Burnam, for respondent.

REESE, C. J.

The case of Anna J. Robinson v. City of Omaha was appealed to this court from the district court of Douglas county by the city from a judgment rendered against it in favor of the plaintiff in the action. Upon the case being regularly submitted to this court, the judgment was affirmed, the opinion being written by Judge Rose. A motion for rehearing was filed, supported by a brief of 50 pages, and which, from near the beginning to the close, consisted of personal attacks upon “Mr. Justice Rose,” as he is styled and referred to throughout. It must be sufficient to say that, if the use of language means anything, the brief was a studied, deliberate, and malicious assault upon the writer of the opinion with the purpose of injuring his standing as a judge both as to his integrity and legal attainments. The brief bore the the names of three attorneys of this court. It was stricken from the files and a citation was served upon each of them in the following form: “It is ordered by the court that the brief of defendant on motion for rehearing be stricken from the files, and that Harry E. Burnam, I. J. Dunn, and John A. Rine, attorneys for defendant, be cited to appear before the court November 4, 1909, at 9 o'clock a. m., to show cause why they should not be dealt with for contempt on account of the language contained in said brief.” On the return day the respondents appeared, and, at their request, time until the next sitting of the court was given, when it was shown by typewritten answers that Mr. Burnam, one of the three, was the city attorney of the city of Omaha, and the other two, Mr. Rine and the respondent, Mr. Dunn, were his assistants; that the management of the principal suit of Robinson v. City of Omaha was exclusively in charge and control of Mr. Dunn; that he had prepared the brief in their absence; and that they knew nothing of its contents until after it was filed and the citation to them had been issued. It is said by Mr. Burnam that “had I known of the objectionable features contained in said brief I would not have permitted them to remain, but would have had them eliminated therefrom.” With commendable frankness he expressed his regret and that of his department “for the language in the brief objected to by the court.” In his answer to the citation, Mr. Dunn stated that he prepared the brief, and that neither of the other respondents knew of its contents at the time it was prepared and filed, “and neither read it until after the citation had been issued”; that the brief was hurriedly dictated, and, owing to the shortness of time, it was “printed as rapidly as possible, and filed in this court.” This is followed by a somewhat lengthy history of the case of Robinson v. City of Omaha, stating that he believed the evidence upon which the verdict was rendered against the city was in every essential feature willfully false; that the defendant in the case had been outraged by the verdict; that the verdict was not supported by the evidence; “that there was no basis for the liability against the city”; that at least two of the instructions given to the jury were erroneous, and at least one reversible error had been committed with reference to the introduction of evidence; that he felt sure the judgment would be reversed in this court, and was satisfied that this court would conclude that the testimony given on the trial was knowingly false, and was therefore convinced that this court would not hold that the verdict was supported by sufficient testimony, but was based principally, if not entirely, upon “the opinion, conclusions and conjectures of the plaintiff”; that “when the opinion of the court was announced sustaining the judgment of the lower court,” he “was not only surprised and disappointed, but felt that the judgment of the court was wholly wrong and that there could be no possible theory of the law upon which the verdict of the jury could be legally upheld”; that he obtained a copy of the opinion and became convinced from reading it that the opinion was not sound, and that due weight and consideration had not been given to the reasons urged by the attorneys for the city in their brief as to why the judgment of the lower court should be reversed; that he was satisfied that the complaint regarding two instructions given by the trial court had not been given due consideration, and that the complaint as to one of them had been entirely overlooked or disregarded; that he undertook to point out to the court why the opinion and judgment should not be adhered to; that he believed that his client was about to be wrongfully deprived of its property, and that the opinion of the court was based upon erroneous propositions of law, and a misconception and misconstruction of the evidence in the case; that he undertook to discuss the opinion of the court the same as he would discuss similar propositions of like importance in the brief of the opposing counsel; that he had but one object in view, which was to convince the court, if possible, that the opinion was not sound, and that due weight had not been given to the arguments presented on behalf of the city and to protect it from what he considered an unjust verdict; that he had no interest of a personal nature in the result of the case; that if the verdict were sustained the legal department of the city would in no way be blamed on that account; that he was simply an officer of the city, and it was his duty to protect its interests by presenting its side of the case to the court; that in writing the brief he was actuated by no other purpose than to properly represent the client on whose behalf he appeared, and to protect its interests to the best of his ability; that he did not intend to reflect upon the honor, dignity, or integrity of the court; that he intended to criticise the opinion of the court, and to criticise the reasons given by the writer of the opinion for the conclusions reached; that he intended to do that with all the force, energy, and ability that he possessed; that he presumed he had a right so to do; that “the brief was intended for the consideration of the court alone, and not for public consumption”; that the judgment announced was the final judgment of the court, subject to its power to grant a rehearing, or if the motion for a rehearing were overruled the judgment would remain the final one. The closing part of the answer is as follows: “I deny that I intended to any way reflect upon the court or any member thereof, or to obstruct its proceedings or hinder the due administration of justice.”

Upon considering the three answers ...