Newby v. District Court of Woodbury County

Citation259 Iowa 1330,147 N.W.2d 886
Decision Date10 January 1967
Docket NumberNo. 52321,52321
PartiesAnthony NEWBY, a Minor, by his Legal Guardian and Next Friend Hersal Golliday, Jimmie Lee Jacobs, by his Natural Mother and Next Friend Virginia R. Ping, and Ronald Osborn, a Minor, by his Natural Mother and Next Friend Alvina Osborn, Plaintiffs, v. The DISTRICT COURT OF WOODBURY COUNTY, George Paradise, Judge, Defendant.
CourtUnited States State Supreme Court of Iowa

Jesse, LeTourneau & Johnston, Des Moines, for plaintiffs.

Edward Samore, County Atty., Sioux City, for defendant.

GARFIELD, Chief Justice.

We granted a writ of certiorari under rules 306--319, Rules of Civil Procedure, to review orders of defendant judge of the district court of Woodbury County to punish the three plaintiffs for contempt. Defendant purported to act under chapter 665, Code 1966, in making the orders. For convenience we treat Judge Paradise as sole defendant and ignore the fact that district court of Woodbury County is also a defendant.

To sustain the writ plaintiffs assert the orders are illegal and without jurisdiction because 1) the facts upon which defendant acted are, as a matter of law, insufficient to constitute contempt as defined in Code chapter 665, and 2) their effect was to deny plaintiffs essential elements of a criminal trial guaranteed by the federal and state constitutions.

I. We first summarize the facts set out in the return to the writ upon which it is conceded this cause must be determined.

On May 5, 1966, between 11 and 11:30 p.m., defendant observed through his bedroom windows the three plaintiffs and a fourth young man, Mike Gamel, across the street from his home in Sioux City. Defendant was awakened and kept awake by their very loud, profane and offensive language and disturbing actions and noise. They were pushing and grabbing each other; at times knocking and pulling the doors of a place of business; at times pulling, pushing and hitting a steel post parking sign; one or more plaintiffs threw and broke glass bottles on the street; they were running out on the street shouting at passing cars, the drivers of which at times sounded their horns and suddenly applied their brakes.

Soon after 11:30 the four young men crossed the street to the concrete steps of the house just south of defendant's home and engaged in loud and vulgar talk about sex and intercourse with a young girl; at times they were touching and grabbing her. Fearing for the young girl's safety and desiring to end the loud and disturbing noise, defendant dressed, went onto the porch and then to the sidewalk where the four young men were hiding behind a hedge. Defendant told them to stop their loud, offensive and disturbing voices and go home or he would see them the next day in court.

One of the four said, 'Who in the hell are you?' Defendant replied, 'I am Judge Paradise, I live here and what I just said to you is an order of court.' Two of the four came near defendant, one on each side; a third, from a short distance in the street, said, 'Oh, a judge. Let's get the son-of-a-b---.' The word was not abbreviated. Defendant asked his wife to call the police. The young man to defendant's left swung at him and the one at his right crouched with his fist closed, ready to spring at him. To avoid the blows, defendant grabbed the swinging arm of the young man to his left and the long hair of the one to his right; the one in the street ran toward defendant, all three hit him several violent blows with their fists on his head, face and right arm, saying, 'To hell with the judges and courts.' One of the three kicked defendant on his side. Defendant did not strike any of the four. They all ran away before the police came.

Two of the four young men had juvenile proceedings pending in the Woodbury County district court over which defendant and three other judges preside.

On May 12 the three plaintiffs and Gamel were served personally with a rule or order to show cause signed by defendant, pursuant to Code section 665.7, why they should not be punished for contempt for their contemptuous and insolent behavior toward defendant court and their violent attack upon a judge while engaged in the discharge of his judicial duties at the time and place (describing them) hereinbefore referred to. Attached to the rule or order was a copy of a statement of the facts upon which it was founded, signed by defendant and filed on May 12, pursuant to section 665.9. The facts previously summarized are taken from this statement.

The four young men appeared in defendant court on May 13. Each acknowledged he had been served with the rule or order and attached statement of facts. Each said he had no counsel, no funds with which to employ one, and desired defendant to appoint counsel for him. Defendant then appointed Mr. O'Brien, a former assistant county (prosecuting) attorney, to assist the three plaintiffs and Mr. McQueen, another exprienced attorney, to assist Gamel. Gamel's mother had consulted Mr. McQueen about the matter. Defendant approved a parent or relative of each of the four young men as surety on an appearance bond for each, set a hearing on the matter for May 18 and saw to it that the two attorneys were notified of their appointment and the hearing on the 18th. A complete record of what occurred on May 13 was made, transcribed and filed.

On May 18 Mr. McQueen, as permitted by section 665.7, filed a written explanation by Gamel of his conduct, under oath. Mr. O'Brien filed for the three plaintiffs a motion to dismiss the rule or order to show cause why they should not be punished for contempt on the ground they were not guilty of any act constituting contempt as defined in section 665.2. This is essentially the first of the two grounds of claimed illegality and want of jurisdiction here asserted. An argument, citing three of our opinions, was filed in support of the motion. The motion was orally argued by Mr. O'Brien and the county attorney, submitted to defendant and overruled.

Mr. O'Brien then filed an affidavit of each plaintiff reciting that he was involved in the fracas in the vicinity of defendant's home on the night of May 5; defendant's statement of facts, supra, is substantially true and correct; the affiant, together with the other three young men, was creating a disturbance, using loud and profane language in front of the home directly south of defendant's; 'defendant remonstrated with us and a scuffle ensued; our actions * * * were unjustified and would not have been done individually; I am extremely sorry for my part in this altercation and extend my deepest apology to' defendant, 'both as an individual and a Judge of the District Court of Woodbury County.'

Before the motion to dismiss, supra, was argued on May 18, defendant added to his statement of facts previously summarized by asserting that the young man whose swinging arm defendant grabbed, who jerked loose and kicked him was plaintiff Newby, age 17; the one whose hair was pulled and who, with plaintiffs Newby and Osborn, struck defendant and whose arm, after the attack, defendant held until he jerked loose was plaintiff Jacobs, age 16; the one who said, 'Oh, a judge. Let's get the' blankety blank, ran back from the street and struck defendant violently with his fists on his side, arm and face was plaintiff Osborn, age 19; the young man who, so far as defendant knows struck no blow and apparently went across the street and ran away with the others from the scene was Gamel, age 17.

Mr. O'Brien and Mr. McQueen were each given full opportunity on May 18 to make any argument or statement he desired to defendant. Each young man was also asked to add anything he desired to what his attorney had stated or to the contents of his affidavit or the written explanation of Gamel, supra. Gamel orally expressed regret and sorrow for what happened. Plaintiff Jacobs also said he was sorry. Plaintiffs Osborn and Newby each had nothing further to add.

Defendant then announced he had no doubt the facts were substantially as set out in his statement of facts; the young men knew before the violent attack they were attacking a judge; in Iowa any officer authorized to punish for contempt is a court under section 665.1; a judge of the district court is such an officer and whetever district court is such an officer and wherever district courts have inherent and statutory power to punish for contempt; he called attention to the definitions of contempt found in section 655.2, subds. 1, 3.

Defendant then proceeded to find the four young men guilty of contempt for their contemptuous, insolent and disrespectful behavior toward 'this court and their disobedience and resistance' to defendant's order to stop disturbing the peace on the night of May 5, 1966, in front of his home in Sioux City. Defendant found, however, that Gamel had sufficiently explained his conduct and purged himself of contempt.

Each plaintiff was ordered imprisoned in the county jail for a period not exceeding six months and fined $500. In default of payment of the fine he was ordered committed to the jail an additional one day for each $4 of the fine.

A complete record of what occurred on May 18 was made, transcribed and filed.

II. Plaintiffs have the burden to show defendant has exceeded 'his proper jurisdiction or otherwise acted illegally.' Rule 306, Rules of Civil Procedue; Johnson v. Levis, 240 Iowa 806, 808, 38 N.W.2d 115, 116; Mangan v. Department of Public Safety, 258 Iowa 359, 138 N.W.2d 922, 925. In considering the first of the two asserted grounds of claimed illegality and want of jurisdiction in making the above orders we first go to Code chapter 665.

Section 665.1 provides: "Court' defined. Any officer authorized to punish for contempt is a court within the meaning of this chapter.'

Section 665.2, so far as applicable, states: 'Acts constituting contempt. The following acts or omissions are contempts, and are punishable as such by any of the courts of this state, or by any...

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