Smith v. Pace

• Decision Date: 11 May 2010
• Docket Number: No. SC 90425.,SC 90425.
• Citation: 313 S.W.3d 124
• Parties: In re Carl SMITH, Petitioner, v. Sheriff Raymond PACE and the Honorable Gary Witt, Respondents.
• Court: Missouri Supreme Court

313 S.W.3d 124

In re Carl SMITH, Petitioner, v. Sheriff Raymond PACE and the Honorable Gary Witt, Respondents.

No. SC 90425.

Supreme Court of Missouri, En Banc.

May 11, 2010.

COPYRIGHT MATERIAL OMITTED

Bruce Galloway, Daniel Brogdon, Bruce Galloway LLC, Ozark, for Petitioner.

Timothy Anderson, Jefferson City, Thomas W. Cline, Gainesville, for respondents.

Talmage E. Newton IV, Evans & Dixon LLC, St. Louis, for Missouri Association of Criminal Defense Lawyers.

Anthony E. Rothert, St. Louis, for ACLU of Eastern Missouri.

Stephen D. Bonney, Kansas City, for ACLU of Kansas and Western Missouri.

MICHAEL A. WOLFF, Judge.

Introduction

The prosecution of a lawyer for criminal contempt of court for words the lawyer wrote in a writ pleading is a difficult and untidy business, as this case shows: The lawyer's duty of zealous advocacy and freedom of speech may clash with the courts' inherent power to protect its proceedings.

At the outset, it should be noted that this habeas corpus proceeding reviews a judgment based on the court's inherent power to punish for criminal contempt, where a jury found the accused attorney, Carl Smith, guilty beyond a reasonable doubt of indirect criminal contempt of court. The result of this proceeding has no bearing on any disciplinary measures that may result from the attorney's conduct.

Smith was prosecuted for criminal contempt of court for strong words he used in petitioning the court of appeals for a writ seeking to quash a subpoena issued for a grand jury in Douglas County. Referring to the prosecuting attorney and the judge overseeing the grand jury, Smith wrote: "Their participating in the convening, overseeing, and handling the sic proceedings of this grand jury are, in the least, an appearance of impropriety and, at most, a conspiracy by these officers of the court to threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so."

Strong words, indeed. Smith says his words are protected by the First Amendment. The state, on behalf of the respondent judge and sheriff, says they are not.

The jury was instructed to determine — in the curious language of earlier Missouri cases — whether Smith's "statements degraded and made impotent the authority of the court and impeded and embarrassed the administration of justice." See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). The jury found Smith guilty of criminal contempt. Following the verdict, the court entered an order of commitment for criminal contempt sending Smith to jail for 120 days. Smith petitioned for a writ of habeas corpus, challenging the lawfulness of his conviction and incarceration. This Court issued a writ of habeas corpus and stayed the remainder of Smith's jail commitment pending the outcome of this writ proceeding.

Facts and Procedural History

Smith, the petitioner in this habeas case, appeared in March 2008 before Judge R. Craig Carter of Douglas County, who had been assigned to oversee the conduct of a Douglas County grand jury that just had been convened. On behalf of one of his clients and Smith's secretary, Smith filed a motion to quash the subpoena and a motion for continuance.¹ Judge Carter overruled Smith's motion to quash but gave him seven days to file a writ in the court of appeals challenging the judge's decision. Smith then filed such a petition.

On the basis of two paragraphs of Smith's petition filed in the court of appeals, Judge Carter cited Smith for criminal contempt. The two paragraphs of Smith's writ petition said:

1. The attached exhibits reflect the personal interest, bias and purported criminal conduct of Respondent Judge Carter, Prosecuting Attorney Christopher Wade, and others sic members in the judicial system in the Forty-Fourth Judicial Circuit. Their participating in the convening, overseeing, and handling the sic proceedings of this grand jury are, in the least, an appearance of impropriety and, at most, a conspiracy by these officers of the court to threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so.

2. When Relators Smith's client and Smith's secretary on March 31, 2008 asked Respondent Judge Carter and the prosecuting attorney who were the targets of this grand jury, Relators' assertion that the targets were Relators and their counsel Smith was met with tacit admission of silence. This grand jury, as in the last grand jury in Douglas County, is being used by those in power in the judicial system as a covert tool to threaten, intimidate and silence any opposition to their personal control-not the laudable common law and statutory purposes for which the grand jury system was created.

Smith's "attached exhibits" included affidavits, deposition transcripts, letters and court filings in which Smith and others made allegations against Douglas County prosecuting attorney Christopher Wade and the presiding circuit judge of the 44th Judicial Circuit, claiming that these officials had committed criminal offenses and that the attorney general and members of his staff and other attorneys practicing in the 44th Judicial Circuit had acted unlawfully. The two paragraphs quoted here name only Judge Carter and the prosecutor.

Following receipt of a copy of Smith's court of appeals writ petition in April 2008, Judge Carter issued an order of contempt setting forth the above-referenced paragraphs from Smith's writ petition.² Thereafter, Judge Gary Witt, respondent here, was assigned to preside over Smith's jury trial for criminal contempt.

The state presented the two paragraphs cited in Judge Carter's order as well as testimony from Judge Carter in which he testified that the facts in the two paragraphs are false. Judge Carter also testified that he did not believe the two paragraphs were proper "argument" and that a writ petition was an improper avenue for an attorney who believes a judge has committed, or is committing, wrongdoing.³ Judge Carter stated the proper avenue was for Smith to file a complaint with the Commission on Retirement, Removal and Discipline. Prior to trial, respondent Judge Witt noted in a docket entry that "plaintiff the state stipulates that the actions of the defendant Smith did not interfere w/grand sic jury and that Judge Carter did not rule differently, or fail to take any action with regard to the grand jury based on actions of defendant...." The jury received this portion of the docket entry as evidence.

Although Smith objected to the state's proposed verdict-directing instruction on the grounds that it failed to list the essential elements of criminal contempt, either as a statutory crime or a contempt citation by a judge as at common law,⁴ the trial court gave the state's proposed verdict-directing instruction:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about April 3, 2008, in the County of Douglas, State of Missouri, the defendant served upon R. Craig Carter a Petition for Writ of Prohibition against R. Craig Carter, and

Second, that R. Craig Carter was the Judge of the Circuit Court of Douglas County, Associate Circuit Division, Forty-fourth Judicial Circuit, and

Third, that in his Petition for Writ of Prohibition the defendant stated that R. Craig Carter in his position as Judge, used a grand jury to threaten, install fear and imprison innocent persons to cover-up and chill public awareness of apparent misconduct using the power of his position to do so, and

Fourth, that in his Petition for Writ of Prohibition the defendant stated that R. Craig Carter in his position as Judge, handled a grand jury as a tool to threaten, intimidate and silence any opposition to his personal control, and

Fifth, the defendant's statements degraded and made impotent the authority of the Circuit Court of Douglas County, Associate Circuit Division and impeded and embarrassed the administration of justice,

then you will find the defendant guilty of contempt of court.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of contempt of court.

The jury found Smith guilty of criminal contempt based on this instruction. After hearing evidence on sentencing in September 2009, the respondent judge committed Smith to 120 days in jail.⁵ Smith then sought a writ of habeas corpus. This Court issued a stay in October 2009 directing Sheriff Raymond Pace, respondent, to release Smith pending review by this Court as provided in Rule 91.

Standard of Review

There is no right of appeal from a judgment of criminal contempt. Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 997 (1907). The only remedy available is to file a writ of habeas corpus. Id.; Rule 91.01(b) (A person may seek a writ of habeas corpus when the person is "restrained of liberty within this state in order to inquire into the cause of such restraint.").

When this Court issues a writ of habeas corpus, as the Court did in November 2009, the petitioner, Smith, is permitted to brief and argue his grounds for relief so that the court may "inquire into the cause of petitioner's restraint," Rule 91.01(b), and determine whether a release from custody is warranted. State ex rel. Zinna v. Steele, 301 S.W.3d 510, 513 (Mo. banc 2010). The decision whether to grant relief is "limited to determining the facial validity of confinement, which is based on the record of the proceeding that resulted in the confinement." State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). The habeas court may grant relief by ordering the petitioner discharged from unlawful restraint or deny relief by permitting the petitioner to remain in custody. Rule 91.18; Rule 91.20; Zinna, 301 S.W.3d at 513.

Missouri courts have both an inherent power under the...