In re Stolen

• Citation: 193 Wis. 602,216 N.W. 127
• Parties: IN RE STOLEN.
• Decision Date: 08 November 1927
• Court: United States State Supreme Court of Wisconsin

193 Wis. 602

216 N.W. 127

IN RE STOLEN.

Supreme Court of Wisconsin.

Nov. 8, 1927.

On rehearing.

For former opinion see 214 N. W. 379.--[By Editorial Staff.]John B. Sanborn, of Madison, for members.

F. W. Hall, of Madison, for Stolen.

OWEN, J.

In the opinion in this case, 214 N. W. 379, reference was made to a brief amici curia presented to this court by 60 members of the Dane county bar. This brief was treated as a petition to the court. The effort thus to influence the court was disapproved. Filing of the brief was denied. Thirty-one of the original signers now petition the court to reconsider what was thus said with reference to that matter.

In our original treatment of the subject our only doubt was whether we should consider the brief as a petition. Having arrived at the conclusion that the brief was no more than a petition addressed to the court urging a certain disposition of a cause then pending, we considered the correctness of our disposition of the matter as obvious and indulged in no elaborate discussion of the subject. The brief and petition now presented, however, frankly admits that the so-called brief amici curia was in effect a petition, was intended as a petition, and strongly maintains that the members of the bar signing it were well within their rights; that it should have been received by the court; and that the language of the court in disapproval of the practice should be withdrawn.

We cannot doubt that these contentions are sincere. If it be true, as appears to be believed by a considerable number of the bar, that a court may thus properly be approached, we think that the question may well be re-examined, for the purpose of promoting an understanding between the court and the bar and a continuance of that confidence and respect which should characterize their relations. In this spirit we cheerfully undertake to review the considerations which, it appears to us, make the conclusion announced in the main opinion imperative.

First, we should have in mind a thorough understanding of the status of the proceedings in which the petition was filed. The jurisdiction of this court had been aroused by a petition presented to this court signed by the officers of the Dane County Bar Association calling attention to certain practices indulged by Judge Ole A. Stolen which reflected upon his right to continue as a member of the bar of this court. The court received the petition, considered the matters therein set forth, and concluded that the facts presented called for an investigation. An answer to the petition was required, which answer raised questions of fact. The issues thus raised were referred to a referee for the purpose of taking testimony. Hearings had been had before the referee; evidence had been taken and reported to this court. Upon the filing of this report, the matter was set for argument. It was upon the occasion of this argument that the brief or petition signed by 60 members of the Dane county bar was presented to the court, with request for permission to file the same.

It will thus be seen that the matters pending before the court for adjudication were questions of fact presented by the evidence contained in the report of the referee. Questions of fact were to be determined and a legal conclusion upon such facts to be announced. The brief amici curia filed by the 60 members of the Dane county bar did not pretend to be of assistance to the court in either the matter of analyzing or weighing the evidence or in arriving at proper legal conclusions therefrom.

In the present application the document then presented is analyzed, and it is stated that:

“We requested permission to submit, in behalf of the respondent, the following: (1) That the practice of filing such a petition was permissible under certain decisions which were cited. (2) That in our dealings with Mr. Stolen, as a judge, we found him honest and honorable. (3) That we believed the indiscreet conduct of which he was guilty resulted from his financial situation. (4) That disbarment should only follow for gross misconduct. (5) That resignation by Mr. Stolen as judge, his financial condition, and the publicity given his acts constituted a severe punishment to him and warning to others. (6) That, because of the difficulty he would have in supporting himself and family and meeting his obligations, if disbarred, he be not prevented from resuming his practice.”

It will thus be seen that the document presented was a sentimental appeal to the court in favor of Mr. Stolen.

[1] It is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law, should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.

In the early jurisprudence of England, juries were kept together from the beginning to the end of all trials, whether civil or criminal, for the purpose of protecting their decisions from all improper influences. This practice was departed from only when a trial lasting for 13 hours made it impossible to keep them together any longer, Lord Kenyon observing that necessity justified what it compelled, and that, though it was left to modern times to bring forth cases of such extraordinary length, no rule could compel them to continue sitting longer than their natural powers would endure. La Valley v. State, 188 Wis. 68, 205 N. W. 412. This early practice as to juries came from the inherent belief of all members of society that litigants in court were entitled to have their cases determined upon the law as it existed and the facts as sworn to in court. That belief has obtained growing conviction to the present day. While it is now impracticable to keep juries together throughout the course of every trial, the practice prevails even now in capital offenses. Although necessities of the times compelled a relaxation of the rules early adopted for the preservation of the jury from extraneous influences, it is still expected that judges, with their great appreciation of the proprieties and responsibilities of their position, will neither permit nor tolerate the intrusion of considerations calculated to influence the conduct of men and the determination of matters pending before them for judicial decision. In obedience to this recognized rule of propriety, men of sensibilities and culture, especially members of the bar, are discreet in discussing the merits of pending litigation in the presence of judges before whom such litigation is pending. It is unnecessary to dwell longer upon this phase of the discussion. The assertions here made are universally accepted as proper standards of ethics.

[2] But it is said that the Constitution of this state, by section 4 of article I, provides that the right of the “people * * * to petition the government, or any department thereof, shall never be abridged.” It is said that the judiciary is a department of the government, and that the right to petition a court is therefore guaranteed by the Constitution. We concede without further discussion that...