Sarner v. Sarner

• Decision Date: 05 January 1959
• Docket Number: No. A--55,A--55
• Citation: 28 N.J. 519,147 A.2d 244
• Parties: Julia SARNER, Plaintiff, v. Sidney SARNER, Defendant. In the Matter of Sidney SARNER, charged with contempt, Appellant.
• Court: New Jersey Supreme Court

Page 519

28 N.J. 519

147 A.2d 244

Julia SARNER, Plaintiff, v. Sidney SARNER, Defendant In the Matter of Sidney SARNER, charged with contempt, Appellant.

No. A--55.

Supreme Court of New Jersey.

Argued Dec. 15, 1958.

Decided Jan. 5, 1959.

On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is as follows:

'Defendant appeals from an adjudication of his guilt of criminal contempt of court.

'The proceedings grow out of a matrimonial litigation in the Chancery Division wherein a determination had been made by Judge Hegarty that defendant had abandoned his wife. On December 3, 1957 he was called as a witness by his wife's attorney for the purpose of establishing facts relative to his ability to pay alimony and counsel fees. Upon taking the witness stand the following transpired:

"Sidney Sarner, previously sworn, testifies as follows:

"The Witness: May I first have something to say to the Court?

'The Court: What is it you want to say, Mr. Sarner?

"The Witness: I mean, I have taken an oath here, your Honor, to tell the truth.

"The Court: That is why I say you have been sworn.

"The Witness: I have something further to say.

"The Court: You may sit down.

"The Witness: In this proceeding you are are sustaining your oath to uphold the law. This, sir, you have failed to do.

"You have condoned in this Court perjury, thievery, collusion and contempt for this Court, but not only it becomes my duty to sustain the truth and to oppose such justice but to expose it. Therefore, you may if you wish, I will not further testify under the jurisdiction of this Court. You may by your inclination on my behalf do as you see fit. I will not testify any further.'

'After some discussion, in the course of which plaintiff's counsel asked that defendant be committed for contempt at once, and the court indicated it would consider the matter at an appropriate time, the witness volunteered the following:

"The Witness: May I say this by reason of what I voiced. I am in contempt on such justice and will stand in contempt of such justice. By such reason I have a right, and not only a right but a duty to do so. On this basis I will defend myself in contempt. First, before we continue, I am not in contempt of the Court. I am in contempt of the abomination of the justice there. That is what I am in contempt of.

"* * * There was not one iota of proof before your Honor by their own witnesses that showed I abandoned.'

'Upon being asked a question on the merits of the application, the witness refused to answer, stating he would stand on his previously stated position.

'The hearing was recessed. It was resumed the next day, and, at one point, defendant said, in reference to his remark of the previous day:

"* * * I had thought about what I was going to do before. It was not spontaneous.'

'The trial judge certified the defendant for contempt and the matter was assigned to Judge Nimmo for trial. Defendant was attended in court by the attorney who represents him on this appeal but chose to defend himself at the contempt hearing Pro se. He pleaded not guilty and asked to be informed whether the contempt was civil or criminal. The court asked the prosecutor to respond, and the latter stated it was a charge for criminal contempt. The defendant then undertook to state his defense, which, in substance, was that he had been given permission to make a statement and had not intended to reflect disrespect for the Court,' but he also said that the testimony in the principal case 'clearly indicates that my right to justice had been transgressed by acts that the Judge condoned.'

'Defendant admitted the certification of the transcript of the proceedings before Judge Hegarty was correct but objected to it on the ground that it did not contain the transcript of the testimony of the principal case. The court stated that it had determined that the contempt was criminal. Defendant then requested a jury trial and this was denied. No further defense being tendered by defendant, the court determined that the defendant was guilty of criminal contempt of court. Thereupon the court took up the matter of sentence. The court asked defendant why he had not retracted his remarks, and the defendant replied that it would be 'dishonest' and 'immoral' for him to do so. The prosecutor recommended a six-months' jail sentence. The court fixed 60 days in the Hudson County jail.

The first point of appeal is that the conviction violated the defendant's constitutional right of free speech. This contention is specious. The right of free speech is always subject to subsequently applicable sanctions for abuse of the right, see New Jersey Constitution, Art. I, par. 6, and one of these is a contempt citation for contemptuous remarks to a judge in a courtroom. The subject is fully discussed in State v. Gussman, 34 N.J.Super. 408, (112 A.2d 565) (App.Div.1955), and requires no present elaboration.

The second contention is that the evidence does not establish guilt of criminal contempt. We disagree. To condone means to overlook or pardon voluntarily. To charge a judge with voluntarily overlooking 'perjury, thievery, collusion and contempt' of court in the making of a judicial determination is to accuse him of gross misfeasance in office. To do so in his face at a convened session of the court aggravates the calumny. And when the justification offered by the witness is that the remarks explain his refusal to answer proper questions as a witness in a proceeding before that judge, the attempt is to sustain one contempt on a foundation of the quicksand of another. This is behavior so obviously calculated to breed disrespect for the court as to clearly exemplify the rationale of the legal offense of criminal contempt as conduct tending to obstruct the administration of justice. See Offcut v. United States, 348 U.S. 11, 14 (75 S.Ct. 11, 99...