Jacobsen v. State

• Decision Date: 15 January 1979
• Docket Number: No. 3-1175A247,3-1175A247
• Citation: 179 Ind.App. 37,384 N.E.2d 1041
• Parties: Elmer L. JACOBSEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1041

384 N.E.2d 1041

179 Ind.App. 37

Elmer L. JACOBSEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-1175A247.

Court of Appeals of Indiana, Third District.

Jan. 15, 1979.

Owen W. Crumpacker, Hammond, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

Saul I. Ruman, Hammond, for amicus curiae.

HOFFMAN, Judge.

Defendant-appellant Elmer L. Jacobsen was found in contempt of court for making false statements in an affidavit filed with the court, refusal to answer a question after being ordered to do so by the court, and the making of scurrilous charges in papers filed with the court.

On appeal appellant raises the following issues for our consideration:

1. Whether there was sufficient evidence to support the findings;

2. Whether the trial court lost jurisdiction of the case after it granted a change of venue in the underlying case of Portage National Bank v. Robert Skaggs et al.; ¹

3. Whether the trial court erred in not appointing another judge to hear the case;

4. Whether appellant was afforded notice and an opportunity to be heard;

5. Whether appellant was entitled to discharge on the basis of his sworn answers;

6. Whether the court failed to observe the provisions of the Criminal Contempt Act;

7. Whether the court erred in permitting intervention;

8. Whether the court erred in denying bail pending appeal; and

9. Whether the court erred in "forcing" appellant to testify.

Appellant first challenges the sufficiency of the evidence to support the findings of contempt made by the trial court. The record discloses that during the course of proceedings in Portage National Bank v. Robert Skaggs, et al., a witness Sherman Skolnick was found to be in direct contempt of court. On July 21, 1975, the trial court heard and denied Skolnick's motion for reconsideration. On July 25, 1975, Skolnick filed with the court his "Third and Additional Motion . . . By Way of Exception to the Opinion and Judgment of the Court and for a Reconsideration of its Opinion and Judgment of the Case." Contained within that motion was the allegation that attorney Saul Ruman undertook to connive and confederate with Judge Pivarnik during the noon hour for the purpose of devising a plan or scheme to abort any investigation into charges of corruption and judicial impropriety alleged by Skolnick. The affidavit of appellant Jacobsen was attached to such motion in support thereof. The affidavit states that during the noon hour of July 21, 1975, he observed the trial judge and an attorney depart for the Old Style Restaurant area, that he later observed them return from the restaurant area at 1:00 P.M. and enter the courthouse, and that approximately 40 minutes later that attorney was addressing the trial judge in open court in the Skolnick matter. The affidavit further stated that after the attorney addressed the court, Skolnick addressed the court with interruptions until he was found guilty of direct contempt of court.

On July 29, 1975, the date set for hearing on certain of Skolnick's motions, Skolnick filed a motion to submit his previous motions without oral argument. After unsuccessfully attempting to call appellant as a witness, the trial court ordered the clerk to issue a citation to appellant ordering him to appear to show cause why he should not be held in direct contempt of court for the statements made in his affidavit.

Jacobsen admitted at the August 6, 1975 hearing that he did not know what had occurred in the Old Style Restaurant nor with whom the trial judge had lunch. Moreover, Jacobsen admitted that he did not see the trial judge and the attorney return from the restaurant area together nor enter the courthouse building, but that the first time he saw the trial judge and the attorney together after the noon hour was approximately six feet west of the elevator portion of the courthouse lobby. Other affidavits filed in the matter disclose that the trial judge and the attorney did not have lunch together.

Appellant contends that such actions do not constitute direct contempt of court. In Kerr v. State (1923), 194 Ind. 147, 141 N.E. 308, our Supreme Court held that the making of scurrilous charges against a judge in a pleading filed with the court constituted direct contempt. The court reasoned that since the making of false statements in the courtroom where the judge was holding court would have constituted a direct contempt of court, the making of such charges in a pleading filed with the court would likewise constitute a direct contempt. See: Coons v. State (1922), 191 Ind. 580, at 593, 134 N.E. 194, at 198. This reasoning applies with equal force to one who, disregarding the oath he took as an affiant, gives testimony he knew to be false. IC 1971, 34-4-7-2 (Burns Code Ed.), provides that anyone who purposely demeans himself as to retard or disturb the proceedings of the court is guilty of direct contempt. This has been interpreted to apply to a witness who testifies falsely. Young v. State (1926), 198 Ind. 629, 154 N.E. 478. Thus, the making of a false affidavit appended to papers filed with the court constitutes a direct contempt.

Appellant contends however that he did not know the affidavit would in fact be filed. Jacobsen stated that the affidavit did not have any blanks on it at the time it was executed. Both the caption and title of the affidavit refer to the Skolnick matter. Moreover, Jacobsen had graduated from law school and admits the affidavit was for Skolnick's information, knew it had the potential of being filed and contemplated that it could be used in the Skolnick proceeding. Thus, the trial court did not err in finding appellant in contempt for making false statements in the affidavit.

The second finding of contempt occurred during the August 6, 1975 hearing. After stating that an attorney had telephoned him asking what his observations were on July 21, 1975, Jacobsen refused to divulge the name of that attorney. After advising Jacobsen there was no attorney-client privilege and upon Jacobsen's further refusal to answer the question, the court found Jacobsen in direct contempt of court. Assuming arguendo that the relationship between Jacobsen and the undisclosed attorney was sufficient to invoke the attorney-client privilege and further assuming the publication of the affidavit did not constitute a waiver of the privilege, the weight of authority nevertheless refuses to extend the attorney-client privilege to the fact of consultation or employment including the component facts of the identity of the client and the attorney, McCormick et al., Evidence § 90, at 185-86 (2d Ed.1972); Colman v. Heidenreich (1977), Ind.App., 366 N.E.2d 686. Thus, the trial court did not err in finding appellant in contempt for refusal to answer a proper question.

The third finding of contempt arose from statements made in appellant's "Verified Return to Contempt Citation Paragraph II" which was filed in open court at the commencement of the August 6, 1975 hearing. Such paper charged the trial judge with certain improprieties in another wholly unrelated case. However, the making of scurrilous charges against a judge in papers filed with the court constitutes direct contempt. Kerr v. State, supra. Moreover, appellant's argument merely asserts that he had a privilege as a defendant to make such statements and that he was entitled to discharge on the basis of his verified return.

Appellant next contends that the trial court did not have jurisdiction over the contempt proceedings after it had granted a change of venue in the underlying case of Portage National Bank v. Robert Skaggs et al. Although a direct contempt is a separate and distinct action, it must be decided who the court is when pleadings are filed. The jurisdiction of the cause in which the pleadings are filed should govern. Thus, the question of jurisdiction of the cause must be decided. The record discloses that on July 16, 1975, the parties in the Skaggs case were in court on Portage National Bank's petition to fix bond on immediate possession of certain secured property. On that date, Skaggs filed their motion for change of venue from the judge which was denied until resolution of the preliminary matter concerning immediate possession. It was during the hearing of this matter that Skolnick was found in contempt. In Skolnick's motion for reconsideration, the affidavit of Jacobsen was attached.

Skaggs' motion for change of venue from the judge did not deprive the trial judge of jurisdiction for certain emergency matters. State ex rel. Keesling v. Grant Cir. Ct. et al. (1958), 238 Ind. 577, 153 N.E.2d 912; Smith et al. v. St. Bd. of Health (1973), 158 Ind.App. 445, 303 N.E.2d 50 (transfer denied), Cert. den. 419 U.S. 836, 95 S.Ct. 63, 42 L.Ed.2d 62. The petition for immediate possession of property was such an emergency matter. Thus, the trial court had jurisdiction over the contemptuous conduct of Skolnick occurring during the hearing on the petition. The trial court likewise retained jurisdiction for Skolnick's rehearing. See, IC 1971, 34-4-7-7 (Burns Code Ed.); Indiana Rules of Procedure, Criminal Rule 9. See also, Indiana Rules of Procedure, Trial Rule 63(A).

Thus, any contemptuous acts occurring during the proceeding for rehearing would likewise be within the jurisdiction of the court.

Appellant's reliance on State ex rel. Ballard v. Jefferson Cir. Ct. (1947), 225 Ind. 174, 73 N.E.2d 489, is misplaced. There the judge, on his own motion and subsequent to the motion for change of venue, attempted to cite defendant for indirect contempt for failure to comply with an order made prior to the request for change of venue. In the case at bar, however, the direct contempt of Skolnick occurred at a time in which the court retained emergency jurisdiction. And, since the court had jurisdiction over Skolnick's rehearing, it had jurisdiction of any...