Ong Hing v. Thurston

• Decision Date: 08 July 1966
• Docket Number: No. 8796,8796
• Citation: 101 Ariz. 92,416 P.2d 416
• Parties: Robert ONG HING, Petitioner, v. The Honorable Edwin R. THURSTON, Judge of the Superior Court of Maricopa County, Respondent.
• Court: Arizona Supreme Court

Page 416

416 P.2d 416

101 Ariz. 92

Robert ONG HING, Petitioner, v. The Honorable Edwin R. THURSTON, Judge of the Superior Court of Maricopa County, Respondent.

No. 8796.

Supreme Court of Arizona, In Banc.

July 8, 1966.

Stockton & Hing, by Henderson Stockton, Phoenix, for petitioner.

Jennings, Strouss, Salmon & Trask, by Rex H. Moore and Rex E. Lee, Phoenix, amicus curiae.

UDALL, Justice.

This is an original proceeding wherein Robert Ong Hing, hereinafter called petitioner, seeks a writ of certiorari or, in the alternative, a writ of prohibition to prohibit, compel and direct judge Edwin R. Thurston, hereinafter referred to as respondent, from enforcing or in any manner carrying out his order of June 1, 1966, which found petitioner guilty of contempt of court and imposed a fine of $500 to be paid within 48 hours, or be incarcerated in the county jail for fifteen days. After a hearing, we issued an alternative writ of prohibition.

The facts on which the writ was issued are: On May 5, 1966, the First National Life Insurance Company held its annual shareholders' meeting in Pheonix, Arizona. Some of the shareholders, being dissatisfied with the procedure followed and the results of this meeting, filed an action in the Superior Court of Maricopa County on May 12, 1966, alleging various irregularities with respect to the conduct of the meeting, and obtained a restraining order postponing announcement of the results of the election. The title of this action was Dempsey-Tegeler & Co., Inc., et al., v. Goldberg, et al., and this action carried Cause No. 188223.

On May 16, 1966, the First National Life Insurance Co., one of the defendants in Cause No. 188223, filed a separate action as plaintiff, designated as No. 188345, attacking the validity of proxies solicited by Dempsey-Tegeler & Co., Inc., on the grounds of misrepresentation and also because of other alleged illegalities.

At the conclusion of a hearing in Cause No. 188223, respondent directed counsel to appear before him on May 21, at which time findings of fact were completed. Included in the order on that date was an appointment of a Special Master and his directions with respect to a shareholders' meeting which was ordered to be held on May 27, 1966. A portion of respondent's restraining order on this date was as follows:

'That all parties hereto, and all persons having knowledge of this order on the Court's own motion be and they are hereby restrained from interfering with or obstructing the Special Master in any manner in discharging his duties hereunder and from in any manner interfering with or obstructing the orders, requirements, directions and instructions herein made and provided by the Court.'

Petitioner was a party to this action as well as attorney for the defendants.

Petitioner filed a notice of appeal from the above-mentioned order to the Court of Appeals and filed an application for Stay of Order on Appeal before respondent. The application for stay was denied by respondent and on May 25, 1966 petitioner filed a petition for Stay of Order on Appeal in this Court. On May 26, 1966 this Court denied the petition for Stay of Order on Appeal.

On May 26, 1966 petitioner appeared before the Special Proceedings Judge of the Superior Court of Maricopa County and, upon advising the judge that the restraining order which he then sought (in Cause No. 188345) was in a completely separate cause from No. 188223, he obtained an order restraining certain of the Dempsey-Tegeler group from voting certain proxies at the May 27th meeting.

This second restraining order was served just prior to the Special Master's convening the shareholders' meeting the morning of May 27th. After such service, the Special Master recessed the meeting until later the same day. The defendants, in Cause No. 188345, filed a motion for an order vacating the second restraining order and obtained an order for an immediate hearing of said motion. The motion was assigned to the presiding judge and was heard by him on the same day. After vacating the temporary restraining order in Cause No. 188345, he ordered that Cause No. 188345 be consolidated with Cause No. 188223 and to thereafter proceed as No. 188223.

While the above motion was being heard, and in which petitioner was appearing as an attorney of record and a party, an associate of petitioner appeared ex parte before another judge and obtained a restraining order in Cause No. 188223 which was served and restrained the Special Master and others from carrying out the order of respondent with respect to the recessed shareholders' meeting. Apparently, when presented with this third restraining order in Cause No. 188223, the judge commented to the effect that there was a hearing going on in that matter at that moment and apparently the representation was made that the hearing was in Cause No. 188345 and that the instant restraining order being sought was in Cause No. 188223 and that they were different. Upon this assurance, the judge issued the restraining order sought, which was retained by petitioner's associate and held by him until after the ruling was made on the motion that was being heard. This ruling was contrary to petitioner's contention and as the Special Master and others left the courtroom, the Special Master was served with the restraining order.

Prior to May 27, 1966, respondent had advised all parties that he had made arrangements to, and that it was necessary for him to be out of the city of Phoenix on the date of the shareholders' meeting. Upon returning to his office on May 31, respondent was advised of the above developments in this matter whereupon he notified petitioner to appear in his court at eleven o'clock a.m. on June 1, 1966. There is no indication that petitioner was advised as to the nature of said proceedings or what was to be taken up at said hearing. Petitioner appeared on June 1, 1966 and the proceedings began by respondent calling on the judge who issued the second restraining order to make a statement in open court concerning the circumstances surrounding the issuance of the restraining order and order to show cause. Respondent then had read into the record a statement which had been made by the judge who issued the order on May 27, 1966, concerning the issuance by him of the temporary restraining order and order to show cause. Thereupon, the court asked the Special Master, petitioner, petitioner's associate and counsel for the opposing party to clarify or elaborate concerning the circumstances surrounding the issue of the two restraining orders and orders to show cause. Thereafter, respondent entered an order finding petitioner guilty of contempt of court because of his action and conduct in Cause No. 188345 and Cause No. 188223.

Petitioner contends he has no plain, adequate or speedy remedy from the judgment of contempt entered by respondent on June 1, 1966, and no appeal therefrom. In addition, petitioner alleges that respondent has clearly taken this action in violation of due process of law in that petitioner was never advised or informed of the nature of the proceedings held on June 1, 1966 until such time as respondent actually entered his order of contempt.

There are two questions presented by this matter:

(1) Whether respondent employed proper procedures in issuing this contempt decree?

(2) Was petitioner's conduct contumacious?

In view of our determination of the first question, we find it unnecessary to comment upon petitioner's conduct.

Petitioner contends that if his conduct was in contempt of court, it was of such a nature to be classified as criminal contempt and therefore comes within the provisions of A.R.S. §§ 12--861 through 12--863 instead of A.R.S. § 12--864. A reading, analysis, and comparison of A.R.S. § 12--861 to § 12--864 indicates we are dealing with two different subjects, with totally different procedures and results.

First, A.R.S. § 12--861 states:

'A person who wilfully disobeys a lawful writ, process, order or judgment of a superior court by doing an act or thing therein or thereby forbidden, if the act or thing done also constitutes a criminal offense, shall be proceeded against for contempt as provided in §§ 12--862 and 12--863.'

The two statutes mentioned in the above quoted statute provide, among other things, that the proceeding shall include an order to show cause, service, return, attachment of person or sequestration of property, jury trial, sentence, fine and appeal.

In the same article with the above statute is A.R.S. § 12--864 which provides:

'Contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and contempts committed by failure to obey a lawful writ, process, order, judgment of the court, and all other contempts not not specifically embraced within this article may be punished in conformity to the practice and usage of the common law.'

This, of course, is the traditional contempt power inherent in the judiciary branch of our government.

There is an apparent inconsistency in these statutes which has resulted in confusion in the past, and is presented again in this matter. In commenting on the difference in the statutes, we stated in In re Wright, 36 Ariz. 8, 281 P. 944, that: '* * * as we understand section 4471 (§ 12--861), before the accused can invoke its procedure it must not only appear that his act is a criminal offense, but also that his act must consist in doing something Forbidden by 'lawful writ, process, order or judgment. " Thus, one distinction is that pursuant to A.R.S. § 12--861 the act must be criminal and forbidden by a judicial order, while A.R.S. § 12--864 is couched in the wording of 'failure to obey a lawful writ, process, order, judgment of the court, * * *.' The latter punishes inaction, whereas the former requires the doing of some act which is forbidden or proscribed by the court. It is apparent that a court order may not only forbid an act but...