Ponder v. Davis

• Decision Date: 07 June 1951
• Docket Number: No. 101,101
• Citation: 233 N.C. 699,65 S.E.2d 356
• Parties: PONDER, v. DAVIS et al.
• Court: North Carolina Supreme Court

Page 356

65 S.E.2d 356

233 N.C. 699

PONDER, v. DAVIS et al.

No. 101

Supreme Court of North Carolina.

June 7, 1951

J. Walter Haynes, Asheville, A. E. Leake, Marshall and Shuford, Hodges & Robinson, Asheville, for plaintiff, appellee.

J. M. Baley, Jr., and Clyde M. Roberts, Marshall, for defendants, appellants.

STACY, Chief Justice.

The principal question for decision is whether the judgment of Judge Nettles, finding the defendants guilty of contempt, and the judgment of Judge Rudisill, imposing punishments on such finding, or either of them, can be sustained. The record impels a negative answer.

I. The Judgment of Judge Nettles

In the first place, it should be noted that by G.S. § 5-9, 'In all proceedings for contempt and in proceedings as for contempt, the judge or other judicial officer who issues the rule or notice to the respondent may make the same returnable before some other judge or judicial officer'; and 'When the personal conduct of the judge or other judicial officer * * * is involved, it is his duty to make the rule or notice returnable before some other judge or officer', unless the proceeding be for some act or conduct 'committed in the presence of the court and tending to hinder or delay the due administration of the law', or 'for the disobedience of a judicial order rendered in any pending action'. This last limitation, or proviso, we apprehend, was not intended to cover an order entered in the same cause by the same judge when the propriety of his acting in the premises, and issuing the very order alleged to have been violated, is called in question. The statute declares a sound public policy that no judge should sit in his own case, or participate in a matter in which he has a personal interest, or has taken sides therein. Moses v. Julian, 45 N.H. 52, 84 Am.Dec. 114 and note. Here, it is alleged the judge took part on behalf of the plaintiff in the very election in which the plaintiff and one of the defendants were running for sheriff and about which they are now contending. We think the case comes within the spirit of the act requiring removal, if not within the letter, for the gravamen of the petition and affidavit of bias is, that the presiding judge took a partisan interest in the election contest, out of which the present controversy arose. State v. Hartley, 193 N.C. 304, 136 S.E. 868; State v. Byington, Utah, 1948, 200 P.2D 723, 5 A.L.R.2d 1393. 'If self the wavering balance shake, It's rarely right adjusted'--Burns (Epistle to a Young Friend)

Aside from the statute, however, 'Every litigant, including the state in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge.' State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331, 332; 15 R.C.L. 539; 30 Am.Jur. 76 and 778. A fair jury in jury cases and an impartial judge in all cases are prime requisites of due process. Chesson v. Kieckhefer Container Co., 223 N.C. 378, 26 S.E.2d 904. There is nothing on the record to contradict the petition and affidavit of Bristol Crowder or to support the findings of fact made by the judge in his order of 9 December, 1950. If he deemed it necessary or wise to challenge the matters set out in the petition and affidavit--and the plaintiff was not able to do it for him--it would seem that he might have transferred the matter to some other judge and filed his affidavit in reply thereto or asked to be permitted to testify orally in the case. Sigourney v. Sibley, 21 Pick., Mass., 101, 32 Am.Dec. 248; 48 C.J.S., Judges, § 94, p. 1097. To declare the petition and affidavit scurrilous and untrue and order it stricken from the record on the court's own motion without any counteraffidavit or evidence to contradict it, would seem to be making short shrift of the matters interposed by the defendants, notwithstanding the verified allegation of good faith. Safie Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577; Kendall v. Stafford, 178 N.C. 461, 101 S.E. 15; White v. Connelly, 105 N.C. 65, 11 S.E. 177; Gregory v. Ellis, 82 N.C. 225; See, also, Advisory Opinion, 227 N.C. 705, 41 S.E.2d 749.

It is true a party ought not be permitted to disqualify a judge or to interrupt a proceeding by a false and scurrilous attack upon the presiding officer, and if the instant petition and affidavit of Bristol Crowder should prove to be such, he may be dealt with summarily and punished accordingly. Precedent decrees that a judge should recuse himself in contempt proceedings where they involve personal feelings which do not make for an impartial and calm judicial consideration and conclusion in the matter. Snyder's Case, 301 Pa. 276, 152 A. 33, 76 A.L.R. 666; 30 Am.Jur. 786. And it has been declared the better practice in recusations for prejudice to call upon some other judge whose rulings have not been ignored or disregarded, especially in cases of indirect or constructive contempt. Ex parte Pease, 123 Tex.Cr.R. 43, 57 S.W.2d 575; 48 C.J.S., Judges, § 83, p. 1064. Indeed, in the instant case the fact the judge felt constrained or impelled to transfer the matter to another judge for judgment lends color to the view that it should have been transferred before any findings were made, since the judgment of contempt, to be effective, needs to recite the facts upon which it is founded. In re Odum, 133 N.C. 250, 45 S.E. 569. He evidently recognized some impropriety in finally disposing of the matter.

The remarks of Chief Justice Taft in the case of Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 395, 69 L.Ed. 767, involving a similar petition for recusation, would seem to be appropriate here:

'The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court, is most important and indispensable. But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward, and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency, but it is not always possible. Of course, where acts of contempt are palpably aggravated by a personal attack upon the judge, in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that, where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge, called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.'

And it was said in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 234, 65 L.Ed. 481, that the policy or solicitude underlying the Federal statute on the subject, Section 21 of the Judicial Code, 28 U.S.C.A., applicable in the Federal Courts, is that 'the tribunals of the county shall not only be...