State ex rel. Attorney Gen. v. Martin, Case Number: 18080

• Court: Supreme Court of Oklahoma
• Writing for the Court: UTTERBACK
• Citation: 256 P. 681,125 Okla. 24,1927 OK 147
• Parties: STATE ex rel. ATTORNEY GENERAL v. MARTIN.
• Docket Number: Case Number: 18080
• Decision Date: 21 May 1927

1927 OK 147
256 P. 681
125 Okla. 24

STATE ex rel. ATTORNEY GENERAL
v.
MARTIN.

Case Number: 18080

Supreme Court of Oklahoma

Decided: May 21, 1927

Syllabus

¶0 1. Judges--Constitutional and Statutory Provisions--Disqualification of Supreme Court Justices for Prejudice.

The Constitution of Oklahoma, article 2, section 6, provides:

"Right and Justice shall be administered without sale, denial, delay, or prejudice."

And section 2629, Oklahoma Compiled Statutes, provides:

"No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested * * * or in which is called in question the validity of any judgment or proceeding in which he was of counsel or interested, * * * provided that the disqualifications herein imposed shall not exclude the disqualifications at common law."

And section 2632, Oklahoma Compiled Statutes, provides:

"* * * The same disqualification shall apply to the members of the Supreme Court and the Criminal Court of Appeals as to other courts of record."

Under the Constitution and laws of this state, this court has the power and authority, when the question is properly presented, to disqualify any one or more of its members from participating in the trial or hearing of any cause pending in the court. When it is made to appear to the satisfaction of the court that certain Justices are in any way, from any cause, biased or prejudiced against one of the parties litigant to such an extent that said-party might not have a fair, unbiased, and impartial hearing in said cause before said Justices, it is the duty of the court to declare such disqualifications.

2. Same--Right to Question Disqualification.

It does not always rest with the judge alone whose right to sit is questioned to say whether he is or is not disqualified. In cases where there is a doubt or question, it should be referred to the decision of the court.

3. Same--Contempt as "Cause or Proceeding" Pending Before Court.

Contempt is a "cause or proceeding" sufficiently within the meaning of the language of the provisions of the Oklahoma statutes as to be classified as a matter pending before the court.

4. Same--Supreme Court Justices Held Disqualified in Contempt Proceeding.

From the record in this case, and the undisputed facts appearing herein, the disqualifications of the judges are shown. (For facts see opinion.) Contempt proceeding in Supreme Court against H. B. Martin by the State on the relation of the Attorney General. Mandamus by respondent against Justices J. W. Clark and Fletcher Riley, directing them to certify their disqualifications. Prayer granted.

(Seven of the nine Justices of the Supreme Court having voluntarily certified their disqualifications in the contempt proceeding, the following were duly appointed and qualified as Special Justices: W. E. Utterback, H. D. Henry, Dan Huett, A. Scott Thompson, Kelly Brown, A. R. Swank, and W. N. Lewis.)

A petition for a writ of mandamus was filed in this court by counsel for respondent, H. B. Martin, which petition is as follows:
"Now comes H. B. Martin, petitioner and movant herein, and alleges and states he is a resident and citizen of Tulsa, Tulsa county, state of Oklahoma. That the respondent Fletcher Riley, is a Justice of the Supreme Court of Oklahoma, and is a resident of Comanche county, Oklahoma, and that the respondent, J. W. Clark, is a Justice of the Supreme Court of Oklahoma, and is a resident of Atoka county, Oklahoma. That the said Fletcher Riley was duly elected as Justice of the Supreme Court of the state of Oklahoma, and is, at this time, and at all times hereinafter mentioned, has been, a Justice of the Supreme Court of the state of Oklahoma, and that the respondent J. W. Clark was duly elected as Justice of the Supreme Court of the state of Oklahoma, and is at this time and has been at all times hereinafter mentioned a Justice of said court.
"For his cause of action herein, petition and movant alleges and states:
I.
"That on the 8th day of January, 1927, there was filed in this court an information on the relation of the Attorney General of the state of Oklahoma, as relator, versus H. B. Martin, respondent, numbered upon the docket of this court 18080, and upon said information a citation for contempt of court was duly issued and served upon this petitioner and movant. That said information and said citation are and remain on file in the office of the clerk of this court, and are made a part of this motion by reference, the same as if herein in full set out.
II.
"Movant further alleges and says that in said cause No. 18080 the said H. B. Martin, respondent therein, and movant herein, filed on the 13th day of January, 1927, his verified motion and request, requesting certain of the Justices of this honorable court, including the Justices above named, as respondents herein, to certify upon the journal of this court their disqualification, respectively, to sit as Justices upon the trial of said cause. That said motion and request was in writing, and is and remains in the office of the clerk of this honorable court, and that the same is hereby made a part of this motion by reference, the same as if herein in full set out.
III.
"Your movant further alleges and states that on the presentation of the said motion requesting certain Justices of the Supreme Court to certify their disqualification in said cause No. 18080, all the justices of the Supreme Court of the state of Oklahoma certified their disqualification in said cause, except the respondents above named, and that said respondents made an order, refusing to certify their disqualification in said cause, and stating certain reasons for such refusal, which said order is and remains on file and of record in cause No. 18080 in this court, in writing, and which said order is made a part of this motion by reference, the same as if herein in full set out.
IV.
"Petitioner and movant says and avers that the respondent Justice Fletcher Riley is disqualified by bias and prejudice against this movant to act and sit as a Justice of this court in the trial of said cause. That said disqualification arises upon the following facts:
"That in a certain cause heretofore pending in this court numbered upon the dockets of this court No. 13646, a certain written opinion was prepared and filed by the respondent Justice J. W. Clark, and published as the opinion of this honorable court in said cause. That said opinion as written and filed bore the names of four Justices, purporting to concur therein, including the name of Justice C. W. Mason of said court. That in a certain other cause, heretofore pending in this court, numbered upon the dockets of this court No. 17409, a certain motion in writing was filed on the 3rd day of January, 1927, with the clerk of said court, in which motion, among other things it was pleaded that the said opinion was not concurred in by the said Justice C. W. Mason in fact, but that the representation made upon said written opinion was, in that respect, untrue, and movant says that this movant prepared, as counsel for one O. O. Owens and others, parties to said suit, the aforesaid motion last above described, and filed the same in the office of the clerk of this honorable court. That the filing of said motion is made the basis of the information filed as aforesaid in said cause No. 18080, and movant further shows to the court that there is now pending, and has been pending for some months, a certain action in the district court of Oklahoma county, Oklahoma, in which the said respondent justice Fletcher Riley is plaintiff, and sues the said O. O. Owens for the sum of $ 200,000 damages because of an alleged libel. That this movant is counsel in said cause for the said O. O. Owens, and that this suit arises out of the conduct of the said respondents Justice Fletcher Riley and Justice J. W. Clark, in the decision or purported decision of the aforesaid cause in this court, No. 13646, and that all of the causes hereinbefore mentioned are related to each other and arose out of the same transactions, and movant says that there is now pending in the district court of Tulsa county, Oklahoma, a certain action, wherein the aforesaid O. O. Owens is plaintiff, and in which said action this movant is counsel for the said O. O. Owens, and in which said action both of the respondents above named, among others, are defendants, and movant says that said action involves a claim asserted against the above-named respondent and others, for damages in the amount of $ 100,000, and other relief upon the ground of fraud alleged to have been practiced by the defendants in said cause. And movant says that both of the respondents are, because of said facts hereinbefore set out, not only biased and prejudiced against this movant so that they ought not to sit as judges in this cause, but, in addition thereto, that both of said respondents are interested, though not parties, to this action, and its result, and cannot, on said account, lawfully sit in the determination of this cause. And movant further says that he has been advised that the respondents and each of them are further disqualified to sit as Justices in the trial of said cause because, in said cause, on the said 13th day of January, 1927, before any trial of said cause was had or commenced, and without any hearing whatever, either upon the facts or the law, that the respondents and each of them rendered an opinion and decision in said cause, in which in substance, it was held that if the information filed in said cause charges any contempt, the same is a direct contempt, and movant says that whether or not the matters charged in said information in said cause No. 18080 constitute a charge of a direct contempt of court or an indirect contempt, or any contempt, are issues of law, necessary to be determined in said cause, and that the aforesaid opinion and holding...