Rubin v. State

Decision Date17 June 1986
Docket NumberNo. 85-2370,85-2370
Citation11 Fla. L. Weekly 1357,490 So.2d 1001
Parties, 11 Fla. L. Weekly 1357 Ellis S. RUBIN, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Ellis S. Rubin, in pro. per.

Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.

Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

This is an appeal from an order holding the appellant, an attorney, in contempt for refusing to comply with the trial court's earlier order requiring the attorney to represent his client, a criminal defendant accused of murder, in a trial scheduled to begin immediately. We affirm.

Nearly a year before the contempt order was entered, this same attorney representing the same criminal defendant (one Russell Sanborn) in the same murder case asked the same trial judge for permission to withdraw as Sanborn's defense counsel, the request being made just before jury selection was to begin. Although clothed in language ostensibly designed to preserve the client's confidential communications to his attorney (e.g., Rubin alleged that the defendant "confided new and contradictory details and heretofore unknown explanations" and "issued certain instructions to Rubin as to the strategy and tactics to be employed at the trial"), Rubin's message to the court was that the defendant had insisted upon testifying falsely at trial. Accordingly, Rubin asked that he be excused from further representation of the client. The trial court denied the motion to withdraw and ordered Rubin to proceed to trial. 1

Rubin sought certiorari review of that order. This court denied his petition and in so doing assured Rubin that he would carry out his ethical obligations as an attorney (as well as render all the effective assistance to the defendant to which the defendant was entitled) by allowing "the defendant to take the stand and deliver his statement in narrative form" and by refusing to "elicit the perjurious testimony by questioning ... [or to] argue the false testimony during closing argument." Sanborn v. State, 474 So.2d 309, 313 (Fla. 3d DCA 1985). Rubin's motions for rehearing and rehearing en banc were denied, and he sought no further review in any other court, state or federal. Despite this, when upon the issuance of our mandate the case was restored to the trial calendar, Rubin again sought to withdraw on the same ground as before. The trial court, scrupulously adhering to its initial ruling and our mandate, again denied Rubin's motion and again ordered him to proceed to trial. When Rubin refused, the contempt order which gives rise to this appeal was entered.

The law of the case, established by this court in Sanborn v. State, 474 So.2d 309, is that even if Sanborn were to testify in the manner Rubin claimed he would, Rubin could ethically represent Sanborn by refusing to specifically elicit or argue such testimony. Rubin contends, however, as he did before the trial court, that our decision in Sanborn v. State is, in his view, wrong, and, because he firmly holds to that view, he disobeyed the lower court's order to proceed.

Rubin is certainly free to disagree and maintain his personal view of what the law is or should be, or indeed his personal view of what some higher law provides. 2 It is, however, the decision of the mortal judges in Sanborn v. State, having not been stayed, much less set aside, by some higher court with jurisdiction over the matter, which Rubin must obey. Thus, even if, arguendo, it might have been later determined that Sanborn v. State was wrongly decided, Rubin's contumacious refusal to follow the undisturbed order to proceed would be nonetheless punishable as a direct contempt. As will be seen, this rule of law is essential to the maintenance of our system of laws as a whole.

It is well settled in this state, and elsewhere, that where a court acting with proper jurisdiction and authority renders an order, an aggrieved party's failure to abide by the order may be punished by contempt even if the order is ultimately found to be erroneous. Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28 (Fla. 5th DCA 1979), appeal dismissed sub nom., Cataldo v. Eagen, 383 So.2d 1191 (Fla.1980) (appellant's failure to obey injunction found to be erroneous as overbroad, punishable by contempt). See also State ex rel. Buckner v. Culbreath, 147 Fla. 560, 3 So.2d 380 (1941); State ex rel. Pearson v. Johnson, 334 So.2d 54 (Fla. 4th DCA 1976); Friedman v. Friedman, 224 So.2d 424 (Fla. 3d DCA 1969); Annot., Right to Punish for Contempt for Failure to Obey Court Order or Decree Either Beyond Power or Jurisdiction of Court or Merely Erroneous, 12 A.L.R.2d 1059 (1950). The reason behind the rule requiring obedience to court orders regardless of their alleged invalidity is that the need for obedience to a court order far outweighs any detriment to individuals who may be temporarily victimized by the order, even if erroneous.

"If a party can make himself a judge of the validity of orders which have been issued for the protection of property rights, and by his own act of disobedience can set them aside, then are the courts impotent, and what the Constitution of the state ordains as the judicial power becomes a mere mockery.

"This power has uniformly been held indispensable to enable the court to enforce its judgments and to execute its orders necessary to the due administration of law and the protection of the rights of citizens."

Seaboard Air Line Ry. Co. v. Tampa Southern R. Co., 101 Fla. 468 at 476, 134 So. 529 at 533 (1931).

Rubin's personal view that the decision in Sanborn is erroneous (a far cry from a judicial declaration that the decision is erroneous) quite obviously cannot excuse his disobedience.

This power to punish disobedience of court orders through contempt is unique to the judicial branch of government. As one court explained:

"The criminal contempt exception requiring compliance with court orders ... is not the product of self-protection or arrogance of Judges. Rather it is born of an experience-proved recognition that this rule is essential for the system to work.... Disobedience to a legislative pronouncement in no way interferes with the legislature's ability to discharge its responsibilities (passing laws). The dispute is simply pursued in the judiciary and the legislature is ordinarily free to continue its function unencumbered by any burdens resulting from the disregard of its directives. Similarly, law enforcement is not prevented by failure to convict those who disregard the unconstitutional commands of a policeman.

"On the other hand, the deliberate refusal to obey an order of the court without testing its validity through established processes requires further action by the judiciary, and therefore directly affects the judiciary's ability to discharge its duties and responsibilities. Therefore, 'while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration whose judgments and decrees would be only advisory.' "

United States v. Dickinson, 465 F.2d 496, 510 (5th Cir.1972),...

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    • United States
    • Florida District Court of Appeals
    • June 14, 1990
    ...and unjust the order may be. Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28, 30 (Fla. 5th DCA 1979). See also Rubin v. State, 490 So.2d 1001 (Fla. 3d DCA 1986); Wells v. State, 471 So.2d 620 (Fla. 5th DCA 1985). The stated reason behind this rule is that the need for such complianc......
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    ...us to an affirmance on this appeal. A The controlling law in this case is stated in this court's recent decision in Rubin v. State, 490 So.2d 1001 (Fla. 3d DCA 1986). In that case, this court, speaking through Judge Daniel Pearson, "It is well settled in this state, and elsewhere, that wher......
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