McMilian v. Rennau

• Decision Date: 30 June 1981
• Docket Number: No. WD,WD
• Citation: 30 A.L.R.4th 141,619 S.W.2d 848
• Parties: In the Matter of Indirect Criminal Contempt Proceedings Against Don McMILIAN, Petitioner, v. Sheriff Robert RENNAU, Respondent. 32176.
• Court: Missouri Court of Appeals

Page 848

619 S.W.2d 848

30 A.L.R.4th 141

In the Matter of Indirect Criminal Contempt Proceedings

Against Don McMILIAN, Petitioner, v. Sheriff Robert RENNAU, Respondent.

No. WD 32176.

Missouri Court of Appeals, Western District.

June 30, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 4, 1981.

John J. Phillips, Independence, for petitioner.

Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.

Before WASSERSTROM, C. J., and SHANGLER, DIXON, SOMERVILLE, TURNAGE, CLARK and MANFORD, JJ.

CLARK, Judge.

This is an original proceeding in habeas corpus on the petition of Don McMilian alleging his unlawful detention and imprisonment by the Sheriff of Jackson County. ¹ Our writ issued commanding that return be made showing such legal cause as might be for the detention. The return exhibited a judgment of contempt found against McMillian (sic) by the Circuit Court of Jackson County and a warrant ordering McMilian's commitment for a term of ten days as punishment. McMilian's response to the return admits prospective detention pursuant to the warrant but denies the lawfulness of the order. As briefed and argued here, two points are asserted: (1) the acts committed were not within the plenary jurisdiction of the court to punish for contempt, and (2) the process was procedurally defective.

In habeas corpus, the petition is a preliminary pleading which drops out of the case when the return is made. That return, together with the traverse by way of reply, form and define the issues in the case. Ockel v. Riley, 541 S.W.2d 535, 536 (Mo. banc 1976); Rules 91.16 and 91.28. Because the pleadings and exhibits ordinarily comprise the entire record in habeas corpus, Rule 91.28 requires that a denial of the return be under oath. If the traverse is not verified, the allegations of the return must be taken as true. Houston v. Hennessey, 534 S.W.2d 52, 54 (Mo.App.1975). In this case, the reply denying the return was neither signed by McMilian nor verified, and the cognizable and relevant facts are therefore derived from the return and the hearing transcript and may be succinctly stated.

On September 10, 1980, McMilian telephoned the court with a request that he be permitted to speak with Judge Gant regarding criminal charges in a pending case involving McMilian's son. When informed by the bailiff that the judge would not engage in ex parte discussions about a pending case and that McMilian should contact the attorney representing his son's interests, McMilian stated to the bailiff: "Tell Judge Gant that all judges are full of shit and tell Judge Gant to stick it up his fucking ass." The bailiff relayed the message to Judge Gant and a proceeding in contempt followed. ²

McMilian first contends that the contempt judgment finds no sanction under § 476.110, RSMo 1978 because no act of McMilian was committed in the court's presence and he made no resistance to any lawful process of the court. Without any rational explication, respondent asserts that the statute does provide jurisdictional authority here because McMilian's contemptuous and insolent behavior tended to impair respect for the authority of the court. That contention is unsound. By express terms, jurisdiction to punish for contempt under the statute for contemptuous or insolent behavior is limited to acts " * * * committed during (the court's) session, in its immediate view and presence * * *." § 476.110(1), RSMo 1978. It is unnecessary here to consider whether a direct telephone communication to the judge could, under appropriate circumstances while the court was in session, amount to "immediate view and presence." The conversation with the bailiff was only a communication through an intermediary who was not, himself, the object of any vilification. The statute is plainly inapplicable.

Despite absence of statutory authority in this case to support the adjudication in contempt, the proceeding is not necessarily infirm for want of jurisdiction. Constitutional courts of common law jurisdiction additionally possess, by the nature of the judicial office, an inherent power to punish for contempt of their authority. State ex rel. Girard v. Percich, 557 S.W.2d 25, 36 (Mo.App.1977). That authority extends to protect, preserve and vindicate the power and dignity of the law itself. Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976); Ramsey v. Grayland, 567 S.W.2d 682, 686 (Mo.App.1978). The question on McMilian's first point is whether the facts in this case justify invocation of inherent contempt power.

Before proceeding, it is appropriate to identify the genre of contempt here at issue. Contempts are said to fall into four categories civil and criminal, direct and indirect. Civil contempt is intended to benefit a party for whom an order, judgment or decree was entered and is designed to coerce compliance while criminal contempt is punitive and acts to protect the judicial system as a method established by the people to solve disputes. Mechanic v. Gruensfelder, 461 S.W.2d 298, 304 (Mo.App.1970). A direct contempt is one that occurs in the immediate presence of the court (in facie curiae), while an indirect contempt is an act outside the court but tending to degrade or make impotent the authority of the court or to impede or embarrass the administration of justice. Curtis v. Tozer, 374 S.W.2d 557, 568 (Mo.App.1964). The distinction between civil and criminal contempt is reflected in the content of the judgment, whether the remedy is coercive or punitive. In direct contempt cases the court is entitled to act summarily while in cases of indirect contempt the alleged contemnor is entitled to procedural rights of notice and hearing.

McMilian's case is one of indirect criminal contempt. No coercive remedy was imposed to benefit any litigant, only punishment to vindicate the court's authority and dignity in the face of McMilian's remarks. The indirect nature of the contempt is confirmed by the character of the proceeding, with notice and hearing. The question, therefore, is whether McMilian's conduct amounted to indirect criminal contempt for which punishment could be imposed.

By its nature, the court's inherent power to punish for contempt has imprecise boundaries essentially ascertainable only by reference to particular facts. In general, however, punishment for criminal contempt has been defined as a recourse necessary to vindicate the authority of the court and to deter future defiance. Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710, 715 (Mo.App.1977). Because the subjection of individual freedom by expression or action is the consequence when a court's power of contempt is exercised, the ultimate question is whether advancement of the general interest in an effective judicial system warrants imposition of restraint on the right of the individual to criticize and disparage.

The present case is difficult to classify because the import of McMilian's two-phase comment addresses no particular case or action by the court. This circumstance may be attributable, in part, to the influence of intoxicants on McMilian who expressed inability to remember the conversation. At face value, the first portion of McMilian's statement was obviously a general slander on the judiciary. The second phrase was unconnected with any particular object of McMilian's ire, and thus is considered to be a common gutter expression of general defiance.

McMilian actually expressed no criticism of past or contemplated action by the court in any pending case and he cannot be charged with an attempt, by his remarks alone, to influence any decision by the court or to impede the judicial function. In oral argument, respondent contended that disqualification of Judge Gant in the criminal case for McMilian's son would be a necessary consequence of McMilian's remarks and that such amounted to sufficient interference with orderly processing of the court's business to justify recourse to punitive contempt. Aside from the relatively minor inconvenience entailed in the transfer of one case, the argument fails because it lacks support in the record. At no time in prosecution of the contempt was any showing made that transfer of any criminal cases occurred nor did the charge against McMilian raise that contention. Invocation of the court's power of contempt here rested solely on a perceived necessity to punish McMilian for his vituperative abuse of the court in general and Judge Gant in particular.

No reported Missouri case appears to have confronted the necessity to define inherent authority of the court to invoke contempt powers in a situation where, as here, the alleged contemnor has defied no particular order, has created no public disturbance and has brought to bear no influence on the outcome of a pending case. There can be no doubt, however, that the court derives and exercises inherent contempt power only in those situations where administration of the judicial enterprise necessitates subjugation of other rights, including the rights of persons to freely and evenly intemperately express their minds. If the judicial function is not integrally threatened by the allegedly contemptuous expression, then there is no inherent contempt power to exercise. As a measure applied to evaluate the degree of threat in allegedly contemptuous conduct, the theory of a clear and present danger has evolved.

The "clear and present danger" concept appears first to have been developed in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919) where the abridgment of free speech and press was acknowledged to be a casualty in contempt cases. The doctrine was more fully developed in Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), which is most often cited as the authority in contempt cases. The test to be employed in determining whether a given expression, statement or publication was sufficiently grievous to support contempt punishment was...