Sound Storm Enterprises, Inc. v. Keefe In and For Fayette County

• Decision Date: 03 July 1973
• Docket Number: No. 54838,54838
• Citation: 209 N.W.2d 560
• Parties: SOUND STORM ENTERPRISES, INC., et al., Plaintiffs, v. Joseph C. KEEFE, Judge of the District Court of Iowa IN AND FOR FAYETTE COUNTY, Respondent.
• Court: Iowa Supreme Court

Page 560

209 N.W.2d 560

SOUND STORM ENTERPRISES, INC., et al., Plaintiffs, v. Joseph C. KEEFE, Judge of the District Court of Iowa IN AND FOR FAYETTE COUNTY, Respondent.

No. 54838.

Supreme Court of Iowa.

July 3, 1973.

Jesse, LeTourneau & Johnston by Dan L. Johnston, and Norman G. Jesse, Des Moines, for plaintiffs.

Richard C. Turner, Atty. Gen., Douglas R. Carlson, and Walter L. Saur, Asst. Attys. Gen., for respondent.

Considered en banc.

RAWLINGS, Justice.

This is an original certiorari proceeding to review decree entered by respondent judge holding plaintiffs guilty of contempt and imposing concomitant penalties for violation of temporary injunctions.

Tuesday, July 28, 1970, State of Iowa, ex rel. Robert D. Ray, Governor, Richard C. Turner, Attorney General (Attorney General), Walter Saur, Fayette County Attorney, Jack Fulton, Commissioner of Public Safety and Arnold Reeve, Commissioner of Public Health, commenced an action in equity against Sound Storm Enterprises, Inc. (Sound Storm), Wadena Development Company (Wadena Company), James A. Crill (Crill) any Murray Moorhatch (Moorhatch). The above identified public officials thereby alleged defendants (hereafter sometimes referred to as original defendants) were promoting and intending to conduct a 'rock music festival' near Wadena commencing Friday, July 31, 1970, and continuing through the weekend to August 2nd. It was further asserted original defendants had failed to comply with Sections 444.18 and 332.23, The Code 1966, and Iowa State Department of Public Health regulations in that facilities to be provided regarding the proposed festival were insufficient to handle law enforcement, public health and safety problems attendant upon an anticipated attending crowd of 24,000 people. The aforesaid petition was supported by Richard Turner's affidavit.

July 28, 1970, C. Edwin Moore, Chief Justice of this court, temporarily restrained original defendants:

'* * * from promoting or conducting a rock music festival or other show in Fayette County, Iowa, from selling tickets therefor, and from further doing or performing any other acts or things calculated or intended to, or having the effect of, attracting large numbers of people to said vicinity, until further order of the District Court of Iowa, in and for Fayette County * * *.'

Pursuant thereto a temporary injunction issued July 28th by Fayette District Court clerk.

July 29th the original notice, petition and Justice Moore's related order were served upon Moorhatch. The same day like notice was given Sound Storm and Wadena Company by service upon Clarence Cosson, registered agent in Des Moines.

Wednesday, July 29, 1970, at 1:15 p.m., Sound Storm and Moorhatch, appearhing by counsel, filed application to dissolve the above mentioned temporary injunction, and a motion for change of venue. Judge E. B. Shaw accordingly transferred place of trial to Clayton County and ordered hearing on the dissolution application be had at 2:00 p.m., July 30, 1970, before Judge Thomas H. Nelson.

July 30, 1970, all parties, including original defendants, appearing by counsel before Judge Nelson, submitted briefs and arguments. At 7:13 p.m. that date a decree was entered which provided, in part:

'The Court, prior to argument, announced that he had determined that it was impractical, with the time available, to take evidence or explore the questions of whether the matters set forth in the Petition and supporting Affidavit for Injunction constituted sufficient grounds for the issuance of an injunction and for that reason the same shall be assumed to be true and to constitute sufficient grounds for the issuance of the Injunction, providing the proper procedural steps have been taken prior thereto. It was stipulated and agreed that, for the purpose of consideration of the Application to Dissolve and Vacate the Injunction, it may be so considered.'

Judge Nelson also then found the restraining order issued by Justice Moore had enjoined the general and ordinary business of a corporation without notice and hearing as required by Rule 326, Iowa R.Civ.P. Thereupon that injunction was thus modified:

'Defendants and each of them are hereby temporarily enjoined and restrained from the violation of Sec. 444.18 and Sec. 332.23 of the Code of Iowa and the rules of the Iowa State Department of Public Health, or the commission or the encouraging of the commission of any public offense in connection with the promotion of a music or art festival in Fayette County, Iowa; otherwise Defendants are relieved from the effect of the Injunction issued in the above entitled cause July 28, 1970.'

July 31, 1970 at 3:30 p.m., Attorney General filed an application for a show cause order thereby alleging original defendants had sold tickets and attracted crowds to the festival location, and arranged for parking areas and other facilities at the site, all in violation of Justice Moore's order. These acts were alleged to have occurred July 29 and 30, 1970. Attorney General also asserted original defendants violated Judge Nelson's July 30th injunction by encouraging bands to attend at the festival site, continuing to there construct the stage, leasing additional parking facilities, installing toilets, roads and other facilities, setting up concessions, and generally doing things to promote and conduct the festival, all without obtaining permits required by The Code 1966, Sections 444.18, 332.23, and absent compliance with applicable Iowa Department of Health regulations. This application was also aided by Turner's affidavit.

July 31, 1970, at 3:31 p.m., Judge Shaw entered a show cause order. In response defendants thereto, James A. Crill, Murray Moorhatch, William J. Schereck, Jr., Charles J. Duffy, Michael Berkos, Michael Driscoll and James Price, appeared with counsel. They moved for a continuance in order to prepare for hearing. That motion was granted for the reasons stated and because of the fact it was approximately 6:00 p.m. when the proceeding commenced.

October 9, 1970, Judge Joseph C. Keefe directed hearing be had on the show cause order at 10:00 a.m., Monday, November 30, 1970, in the courtroom at West Union, Fayette County.

November 23, 1970, Sound Storm, Crill, Moorhatch, Schereck, Duffy, Berkos, Driscoll and Price filed answer to the show cause order. The next day Wadena Company filed its answer thereto.

These responding defendants thereby admitted preparations for the festival continued July 29 and 30 'upon demand of the plaintiffs and their agents', but denied any announcement was made to the effect they were proceeding with the festival or continuing to sell tickets. The above identified original defendants also alleged that other than Moorhatch or Crill, none of them had notice of the injunction until after Judge Nelson's July 30th order. Duffy, Berkos and Driscoll asserted they were not at the rock festival site anytime July 29th but except for Duffy they were there present July 30th. These original defendants also denied having encouraged bands to perform at the festival after issuance of the injunction, alleging in that regard bands had been engaged prior to issuance of the injunction. They further denied having violated the injunction by failing to obtain the required permits, or that Iowa Department of Health regulations had been violated.

Original defendants additionally asserted no 'show' had been held prior to 6:00 p.m., Friday, July 31st and by that time they were relieved, under Judge Shaw's order, from obtaining the aforesaid permits.

November 30, 1970, the show cause matter came on for hearing but was continued on application of plaintiffs due to inability of Turner and Duffy, to then appear. Hearing was then ordered held at 10:00 a.m., December 1st.

At 9:36 a.m., December 1st, Turner filed an additional affidavit alleging original defendants were guilty of contempt by violating Judge Nelson's July 30th restraining order in that they:

'* * * did commit a public offense by keeping and maintaining a place which was there and then used in Fayette County, near Wadena, for the keeping and selling of narcotic drugs, and which constituted a * * * violation of § 204.13, Code of Iowa, 1966, and in violation of Judge Nelson's order against the commission of a public offense.'

In course of the December 1st proceedings trial court limited evidence so as to exclude the allegations in Attorney General's 'Affidavit Showing Further Contempt' and ordered a separate hearing as to those allegations be held February 16, 1971.

January 12, 1971, Judge Keefe entered an order by which it was determined the writ issued pursuant to Justice Moore's order, Supra, because of noncompliance with rule 326, Iowa R.Civ.P., did not constitute a basis upon which to adjudicate original defendants guilty of contempt for conduct prior to 7:13 p.m., July 30, 1970.

Judge Keefe also held the restraining order issued pursuant to Judge Nelson's order, Supra, was after appearance and hearing so it could not be void. This was foundationed upon the theory that since the court had jurisdiction of the parties and subject matter a valid writ was issued even though it may have been erroneous or improvidently granted. Thereupon the court concluded defendants could be held accountable for failure to comply therewith.

February 16, 1971, an evidentiary hearing was held before Judge Keefe on the 'Affidavit Showing Further Contempt'.

Trial judge then found original defendants had (1) failed to comply with Judge Nelson's modified temporary injunction by violating Code §§ 332.23, 444.18 and (2) further violated the modified injunctive provision prohibiting them from committing or encouraging the commission of a public offense by violating § 204.13, which forbids the maintenance of a place resorted to by addicts or used for keeping or selling drugs.

March 22, 1971, Judge Keefe accordingly entered an order by which Michael Berkos, Murray Moorhatch, Charles Duffy,...