Rubin v. State

• Decision Date: 30 November 1927
• Citation: 216 N.W. 513,194 Wis. 207
• Parties: RUBIN v. STATE.
• Court: Wisconsin Supreme Court

194 Wis. 207

216 N.W. 513

RUBIN

v.STATE.

Supreme Court of Wisconsin.

Nov. 8, 1927.

Dissenting Opinion Nov. 30, 1927.

Error to Circuit Court, Milwaukee County; Charles L. Aarons, Judge.

Error to review a judgment of the circuit court for Milwaukee county adjudging William B. Rubin guilty of contempt for a refusal to be sworn as a witness. Modified and affirmed.

Crownhart, J., dissenting.I. A. Fish, of Milwaukee, and Stephen A. Day, of Chicago, Ill., for plaintiff in error.

John W. Reynolds, Atty. Gen., and Eugene Wengert, Dist. Atty., of Milwaukee, for the State.

Frank M. Hoyt, Benjamin Poss, Walter H. Bender, George B. Hudnall, and Bernard V. Brady, all of Milwaukee, amici curiæ.

STEVENS, J.

This writ of error was issued to review on the merits the same judgment of contempt that was considered in State ex rel. Reynolds, Attorney General, v. Circuit Court of Milwaukee County, 193 Wis. 132, 214 N. W. 396. All of the facts essential to a decision of this case were there stated and need not be repeated here.

[1] In the former decision, at the urgent request of counsel representing Mr. Rubin, the court considered and passed upon the same questions presented by this writ of error. The case might well be disposed of by reference to that decision without further discussion. While Mr. Rubin was not named as a party in that case, he was in fact the party in interest who appears by the same counsel that was employed by him to present in that case the same questions which he presents in this case. Under such circumstances he is bound by the decision rendered in that case. Kolpack v. Kolpack, 128 Wis. 169, 174, 107 N. W. 457, 116 Am. St. Rep. 29;McMillan v. Barber Asphalt Co., 151 Wis. 48, 50, 138 N. W. 94, Ann. Cas. 1914B, 53. But, in view of the importance of the questions presented, the court has again reviewed the entire case.

1. While there are isolated statements in the running fire of the colloquy which took place between the court and Mr. Rubin which seem to point to a contrary conclusion, the court is satisfied from a reading of the entire record that all parties should have understood that the proceedings leading up to the entry of the contempt judgment were had in the investigation conducted under the Churchill petition.

The trial court made it clear that it was not proceeding in the action against Wolfe and others, although it did erroneously stay the adverse examination in the Wolfe Case. No other action or proceeding was ever mentioned. No paper or process of any nature was ever prepared or served by which any other proceeding could have been begun. The proceeding which led to the entry of the contempt judgment was initiated by a request that the court issue its subpœna for Mr. Rubin to appear as a witness in the hearing on the Churchill petition.

The proceeding in which the contempt adjudication was made was clearly one to investigate and determine whether the three members of the bar who were presenting the proof under the Churchill petition were practicing a fraud upon the court.

[2][3] 2. Counsel for Mr. Rubin seem to assume that the question whether Mr. Rubin was guilty of a contempt turns on the truth or falsity of the charges made by Mr. Rubin in his affidavit in the Wolfe Case, but the fact is that the contempt arose solely and wholly out of the refusal of Mr Rubin to be sworn when directed to take the oath by the court. That fact stands admitted. That was a contempt in the immediate presence of the court. Due process of law does not require any formal charge or hearing when the facts that constitute the contempt are admitted and the contempt is committed in the immediate presence of the court.

[4] The fact that the same proof may be material in the trial of the Wolfe Case and in the investigation of the fraud charged in the Churchill proceeding did not tie the hands of the court nor prevent it from fully investigating the charge that a fraud was being perpetrated upon it in the prosecution of the proceeding under the Churchill petition. The affidavit which Mr. Rubin filed as a basis for the adverse examination of the defendants in the Wolfe Case was not privileged as a pleading under section 263.24 of the Statutes. Moreover, even if it were privileged as a pleading, it was not received as “evidence of a fact admitted or alleged” therein. Lappley v. State, 170 Wis. 356, 359, 174 N. W. 913, 7 A. L. R. 279.

[5] 3. The judgment finding Mr. Rubin guilty of contempt must be affirmed if the tribunal which directed Mr. Rubin to be sworn was in fact a court. That tribunal was proceeding in a courtroom with all the usual indicia of a court. Doubtless Mr. Rubin would not question that the tribunal was a court were it not for the fact that the presiding judge had invited two other judges of the Second judicial circuit to sit with him as associates or conferees.

The situation presented differs from that in circuits where there is but one presiding judge. Here section 252.07, subd (3), of the Statutes directs the circuit judge of any circuit having more than one judge to meet, to divide the business of the circuit, to make rules, and to “institute such measures as they shall determine will promote justice and expedite business.” Here the petition alleged, and the proof established the fact, that the practices under investigation in the Churchill proceeding often led to a miscarriage of justice and that the champertous practices under investigation clog the calendars of the court and prevent the expediting of business. Under the statute quoted above the judges of the Second judicial circuit court could sit in banc for the purpose of conducting such an investigation in order to promote justice and expedite the business of the circuit, or they could delegate that authority to designated members of the bench. But it is clear from a review of the record that the proceeding was one conducted by Judge Aarons, as the presiding judge of branch No. 8, who took entire responsibility for the judgment which is here in question. He did not attempt to delegate the power to enter this judgment.

The cases cited by counsel for Mr. Rubin go no farther than to hold that a judge may not delegate authority to others, where he alone is charged with the responsibility of determining judicial action.

4. Counsel has performed a service to the court by calling attention to the fact that language was used in the former decision which is susceptible of a construction not intended by the court. What was said with reference to the right of a judge to consult a fellow member of the bench was written wholly with reference to the investigation under the Churchill petition, which was a matter that affected directly the judicial labor performed by every one of the eight judges of the circuit court for Milwaukee county––a matter in which the statute gave them the power to sit in banc, had they determined that such proceeding would best promote justice and expedite judicial business.

[6] The limit of a judge's power to consult his fellow members of the bench is that he may not share responsibility with his fellow judges for the determination of any issues of law or fact submitted to him for decision, unless the law creating the judicial tribunal placed the responsibility for its decision upon the shoulders of more than one judicial officer.

The thought that was in the mind of the court when the decision was rendered was that it was the privilege of any judicial officer to consult with his fellow members of the bench as to such matters as would promote justice and expedite business in their respective courts, as distinguished from the decision of individual lawsuits. The investigation under the Churchill petition falls clearly within the category of proceedings to promote justice and expedite judicial business. It differs from the ordinary lawsuit which imposes judicial labor on the single judge who happens to preside in that case. It was a matter in which all judges of the Second judicial circuit were equally interested and in which all might have shared responsibility for the proceedings had under the Churchill petition, although as a matter of fact Judge Aarons alone had the responsibility for the entry of the contempt judgment. If there is language in the former decision which is susceptible of a different construction, it must be considered withdrawn or modified to accord with the views here expressed.

[7] 5. Judicial action is not confined to lawsuits which have parties plaintiff and defendant and which lead to a determination that is binding upon particular parties. In the great realm of judicial procedure commonly denominated special proceedings, judicial powers may be exercised without having designated plaintiffs or defendants before the court and without arriving at decisions or judgments which are binding upon designated parties. The proceeding under the Churchill petition is a special proceeding which will not lead to a judgment or determination that will bind any particular individual. The purpose of the proceeding is not to perform the functions of a preliminary examination or a John Doe hearing which have for their purpose the detection of crime and the arrest and punishment of the offender.

[8] In the exercise of their power to promote justice and to expedite the business of the courts, judicial tribunals are not compelled to ask the aid of the district attorney or to await the slow process of calling the grand jury. Even though a grand jury might have dealt with the matter on the ground that champerty and maintenance are offenses against the law, still that remedy was not exclusive. Courts possess the inherent power to do whatever may be necessary to purge their calendars of champertous cases and to discipline members of their bars.

[9] In this case the court was not proceeding in an action against a single offender. It was a proceeding against an offending practice which was more far–reaching in its results...