Pennekamp v. State

• Decision Date: 24 July 1945
• Citation: 156 Fla. 227,22 So.2d 875
• Parties: PENNEKAMP et al. v. STATE.
• Court: Florida Supreme Court

22 So.2d 875

156 Fla. 227

PENNEKAMP et al. v. STATE.

Florida Supreme Court

July 24, 1945

See, also, 21 So.2d 41. [Copyrighted Material Omitted]

Appeal from Circuit Court, Dade County; Paul D. Barns and Marshall C. Wiseheart, Judges.

Milam, McIlvaine &amp Milam, of Jacksonville, Edward E. Fleming, of Miami, and Elisha Hanson, of Washington, D. C., for appellants.

J. Tom Watson, Attorney General, and George M. Powell, Asst. Atty. Gen., for appellee.

F. M. Hudson, James M. Carson, and M. L. Mershon, all of Miami, and Giles J. Patterson, of Jacksonville, amicus curiae.

TERRELL, Justice.

On November 2 1944, the Circuit Court of Dade County issued a citation to John D. Pennekamp and the Miami Herald Publishing Company, appellants, commanding them to show cause on a day certain why they should not be adjudged in contempt. The basis for the citation was two editorials and a cartoon published in the Miami Herald. The first editorial and the cartoon were published November 2, 1944, and was as follows:

'Courts Are Established----

'For The People

'The Courts belong to the people. The people have established them to promote justice, insure obedience to the law and to Punish Those Who Willfully Violate It.

'The people maintain the courts by providing the salaries of officials and setting up costly chambers and courtrooms for the orderly and dignified procedure of the tribunals.

'Upon the judges the people must depend for the decisions and the judicial conduct that will insure society--as a whole and in its individuals--against those who would undermine or destroy the peace, the morality and the orderly living of the community.

'In order that the courts should not be amenable to political or other pressures in their determination of matters placed before them, Florida Circuit Judges are called upon to face the electorate less often than are other elective office holders.

'So long are their terms, in fact, that in Dade County no circuit judge, and only one judge of another court, has come to the bench by public choice in the first instance. All the others have been named by a governor to fill a vacancy caused by death or resignation, or similar circumstance.

'Judicial terms in Dade County run:

'1. Six years each for six Circuit judges

'2. Four years each for two Civil Court of Record judges

'3. Four years for the judge of the Criminal Court of Record.

'4. Four years for the judge of the Court of Crimes

'5. Four years for County Judge

'6. Four years for Juvenile court judge

'These twelve judges represent the majesty and the sanctity of the law. They are the first line of defense locally of organized society against vice, corruption and crime, and the sinister machinations of the underworld.

'It is beyond question that American courts are of, by and for the people.

'Every accused person has a right to his day in court. But when judicial instance and interpretative procedure recognize and accept, even go out to find, every possible technicality of the law to protect the defendant, to block thwart, hinder, embarrass and nullify prosecution, then the peoples' rights are jeopardized and the basic reason for courts stultified.

'The seeming ease and pat facility with which the criminally charged have been given technical safeguard have set people to wondering whether their courts are being subverted into refuges for lawbreakers.

'This week the people, through their grand jury, brought into court eight indictments for rape. Judge Paul D. Barns agreed with the defense that the indictments were not properly drawn. Back they went to the grand jury for re-presentation to the court.

'Only in the gravest emergency does a judge take over a case from another court of equal jurisdiction. A padlock action against the Brook Club was initiated last spring before Judge George E. Holt, who granted a temporary injunction.

'After five months, the case appeared Tuesday out of the blue sky before Judge Marshall C. Wiseheart at the time State Attorney Stanley Milledge was engaged with the grand jury.

'Speedy decision was asked by defense counsel despite months of stalling. The State Attorney had to choose between the grand jury and Judge Wiseheart's court.

'The judge dismissed the injunction against the club and its operators. The defense got delay when it wanted and prompt decision from the court when it profited it.

'On October 10 Judge Holt had before him a suit by the state to abate a nuisance (bookmaking) at the Tepee Club.

'Five affidavits of persons who allegedly visited the premises for the purpose of placing bets were introduced by the state over the objection of the defendants.

'Judge Holt ruled them out, explaining in denying the injunction against the Tepee Club: 'The defendant cannot cross-examine an affidavit. The Court cannot determine who is testifying and whether belief can be placed upon such testimony * * * The fact that such affidavits were taken before the State Attorney does not give them any additional weight or value.' 'This may be good law, exact judicial evaluation of the statutes. It is, however, the character of legal interpretation which caused people to raise questioning eyebrows and shake confused heads in futile wonderment.

'If technicalities are to be the order and the way for the criminally charged either to avoid justice altogether or so to delay prosecution as to cripple it, then it behooves our courts and the legal profession to cut away the dead wood and the entanglements.

'Make it possible for the state's case, the peoples' case, to be seen with equal clarity of judicial vision as that accorded accused lawbreakers. Otherwise technicalities and the courts make the law, no matter what the will of the people and of their legislators.'

The second editorial was published November 7, 1944, and is as follows:

'Why People Wonder

'Here is an example of why people wonder about the law's delays and obstructing technicalities operating to the disadvantage of the state--which is the people--in prosecutions.

'After stalling along for months, the defense in the padlock case against the Brook Club appeared before Judge Marshall C. Wiseheart for a decision. The State Attorney was working with the grand jury. The court knocked out the injunction. There was speed, dispatch, immediate attention and action for those charged with violation of the law. So fast that the people didn't get in a peep.

'That's one way of gumming up prosecution. Another is to delay action * * *.'

A motion to quash the citation was denied. Appellants then filed their answer in which they admitted full responsibility for each publication but denied any intention to misrepresent the facts or to charge the individual judges with wrongdoing. They avow that it was their purpose to correct abuses in the law of Florida and that they were protected in all they said by freedom of the press. The answer was supported by affidavits. On trial of the issue made by the citation and the answer the court adjudged respondents guilty of contempt. A fine of $250 was imposed on Pennekamp and a fine of $1000 was imposed on the Miami Herald Publishing Company, the owner and publisher of the Miami Herald. From the judgment so imposed, an appeal and an appeal by certiorari were prosecuted. By opinion filed February 27, 1945, Pennekamp v. Circuit Court of Eleventh Judicial Circuit in and for Dade County, 21 So.2d 41, we held that appeal was the proper method to review the judgment.

(Image Omitted)

A number of questions are urged but they all turn on that of whether or not the cartoon and the editorials were of such content as to warrant the judgment for contempt.

The appellants contend that this question must be answered in the negative because (1) the citation does not show a clear and present danger to obstruct or impede the administration of justice, (2) the editorials related to matters concluded which under the common law and the law of Florida were not contemptuous, (3) the cartoon was ambiguous and was not contemptuous because the sworn return disavows any attempt to so apply it, (4) omission from the editorial of the fact that the state attorney had approved quashal of the indictments and that new indictments were present did not render them contemptuous, and (5) it does not amount to criminal contempt for a newspaper to comment editorially on what it considers erroneous court procedure with the view of eliminating technical defenses and improving the administration of justice.

Appellee contends on the other hand that the law of Florida as propounded in the case of In re Hayes, 72 Fla. 558, 73 So. 362, L.R.A.1917D, 192, Ann.Cas.1918B, 936, is controlling, that no question of pleading is involved and that the 'clear and present danger cases' relied on by appellants are not pertinent, the reason being that each case is determined in the light of its environment, the test being whether the words used will create the substantive evil that Congress and the Legislature have the power to prohibit.

With the line of cleavage so drawn, let us examine the law of Florida on which the Hayes case was predicated. Section Thirteen of the Declaration of Rights, Florida Constitution, provides: 'Every person may fully speak and write his sentiments on all subjects being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech, or of the press. * * *'

By Act of the territorial council, November 28, 1928, it was provided that contempts may be punished by Florida courts after due notice but that nothing said or written in vacation to or of any judge or of any decision made by him shall be construed as contempt. Section 38.22, Florida Statutes 1941, F.S.A provides that...