State ex rel. Giblin v. Sullivan

• Decision Date: 28 May 1946
• Citation: 26 So.2d 509,157 Fla. 496
• Court: Florida Supreme Court
• Parties: STATE ex rel. GIBLIN v. SULLIVAN, Sheriff.

26 So.2d 509

157 Fla. 496

STATE ex rel. GIBLIN v. SULLIVAN, Sheriff.

Florida Supreme Court

May 28, 1946

[Copyrighted Material Omitted]

James M. Carson, G. A. Worley, Jack Kehoe, and Bart A Riley, all of Miami, and W. G. Starry, of Tallahassee, for petitioner.

J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.

Thomas H Anderson and E. F. P. Brigham, both of Miami, amici curiae.

CHAPMAN, Chief Justice.

On February 21 1946, the State of Florida, on the relation of Vincent C. Giblin, and as attorney in his own behalf, under the provisions of Section 64.11, Fla.Stats.1941, F.S.A., filed in the Circuit Court of Dade County, Florida, a bill of complaint praying for a temporary and permanent injunction against named defendants from conducting, maintaining and operating games of chance or gambling at a designated place in Miami, Florida, as defined by the laws of Florida under the terms and provisions of Section 823.05, Fla.Stats.1941, F.S.A., and made a nuisance and subject to abatement by an appropriate order by a court of chancery. An affidavit attached to the bill of complaint, in part, recited that the relator, Vincent C. Giblin, having been first duly sworn, on his oath deposed and said that he has 'read and knows the contents of such bill of complaint and that the matters and things therein alleged and set forth are true in substance and in fact.'

On February 22, 1946, the relator gave notice to the defendants that he would apply for a temporary injunction before the Honorable Stanley Milledge, one of the Circuit Judges of Dade County, Florida, restraining the named defendants from their continued violation of the gambling laws of Florida, and would be heard on Wednesday, February 27, 1946, at 4:30 P.M. The date of hearing was changed by the Court from the aforesaid date and hour to 10:00 A.M. March 2, 1946. On March 1, 1946, counsel for the defendants presented to Judge Milledge a petition of disqualification and upon denial thereof counsel for the defendants applied here for a writ of prohibition against Judge Milledge and the rule nisi issued and the parties were heard here on the issues made, when this Court on the 8th day of March, 1946, held that Judge Milledge was qualified to hear and determine the controversy.

The relator, on March 2, 1946, under the provisions of Section 64.13, Fla.Stats.1941, F.S.A., filed a motion to dismiss the bill of complaint brought in the name of the State of Florida on the relation of Vincent C. Giblin. Attached to the motion to dismiss and made a part thereof was an affidavit setting forth the grounds and reasons for the order of dismissal. On March 8, 1946, an order was entered denying the motin to dismiss the bill of complaint, but in the same order did discharge and dismiss the relator Vincent C. Giblin and substituted therefor as relator P. M. Williams, Glenn C. Mincer, State Attorney, and Robert R. Taylor, County Solicitor of Dade County. In the order dated March 8, 1946, the court, in part, said:

'* * * the Court finds it abundantly clear that the said relator has come into a court of equity with unclean hands, and his bill of complaint, and his attempt to dismiss the same, constitutes a base and utterly reprehensible attempt to use this Court for a most unconscionable purpose. To permit the Courts of this State to be so used would consitute an infinitely greater danger to the public welfare than the existence of a public nuisance.'

Counsel for defendants filed a motion to dismiss the bill of complaint on some eighteen grounds, one of which is, viz.:

'The attempt by the Judge of this court in the entry of said sua sponte order in this cause on the 8th day of March, 1946, to substitute other relators, could not purge this suit and cause of action of the taint which the court held and determined existed, and was the cause of its institution.

'The court has definitely held that the bill of complaint was filed under such conditions as to not only render it inequitable and relator, Giblin, without any standing, has ordered the said Giblin ejected from said cause as relator, on account of the unclean hands and base purposes of the relator in filing the same; therefore, the said Giblin being the movant in the institution of said suit, and the State of Florida being in privity with said Giblin in the bringing of same, said suit and cause of action is itself so permeated with corruption and fraud that a court of equity will not permit the further maintenance thereof.'

The lower court on March 12, 1946, entered an order denying the motion to dismiss and after hearing testimony on the merits entered a permanent injunction restraining, prohibiting and enjoining the several named defendants and their servants and employees from conducting and operating games of chance contrary to law at places designated in the order dated March 13, 1946.

On April 4, 1946, Judge Milledge entered a judgment finding Vincent C. Giblin guilty of direct contempt and committed him to the Dade County, Florida jail for a period of six months. The judgment and sentence was delivered to the Sheriff of Dade County, Florida, on April 4, 1946, and Vincent C. Giblin was taken into custody on the following day, April 5, 1946. The judgment and sentence were filed and recorded in the office of the Clerk of the Circuit Court on April 8, 1946. Vincent C. Giblin by petition filed in this Court alleged that he was being unlawfully restrained and denied his liberties by the Sheriff of Dade County, Florida. Writ of habeas corpus issued as prayed for and a return thereto as made by the Sheriff of Dade County disclosed that Giblin was held by him under the judgment and sentence for direct contempt entered by Judge Milledge on April 4, 1946.

The basis for the contempt judgment and sentence as disclosed by the record is an affidavit dated March 2, 1946, made by Vincent C. Giblin and appended to and offered in support of his motion to dismiss the case of State of Florida on the relation of Vincent C. Giblin v. Howard Losey et al., then pending before Judge Milledge. Section 64.13, Fla.Stats.1941, F.S.A., in part, provided: 'No bill of complaint when filed by any citizen shall be dismissed except upon a sworn statement made by said citizen and submitted to the court and unless the court shall be satisfied that said cause shall be dismissed, the said bill shall not be dismissed but shall continue and the state attorney or county solicitor notified to proceed with said casue.'

Pertinent portions of the affidavit are, viz.:

'On February 22, 1946 Judge Milledge, through his secretary, gave me an appointment for the hearing of my application for a temporary injunction. The matter was set for hearing on February 27, 1946, at 4:30 o'clock in the afternoon. I immediately gave the required three days' notice in writing to all of the defendants.

'On the morning of February 27, 1946 I was advised by Judge Milledge's secretary that the Judge had postponed the scheduled hearing at the telegraphic request of a Tampa attorney, who said that he had just been employed to represent the defendants, or some of them, and had not had sufficient time to familiarize himself with the case and to prepare for the hearing. The postponement was to March 2, 1946, at ten o'clock in the forenoon.

Judge Milledge granted the postponement without consulting me and without according me the privilege of being heard in opposition to the request for a deferment. The defendants had had from February 21, 1946, the day on which the suit was filed and on which the defendants learned of its filing, to employ an attorney. They waited until the day scheduled for the hearing to employ a Tampa attorney. The reason for the employment of the Tampa attorney, rather than one or more of the several hundred attorneys in the Miami area, will be made apparent at a later point in this statement.

'On March 1, 1946, the eve of the day to which Judge Milledge postponed the hearing of my application for a temporary injunction, the Tampa attorney met Judge Milledge, pursuant to prearrangement between them, in the latter's office in the courthouse, at or before nine o'clock in the forenoon (an unusual time for Judge Milledge to be in his office). The Tampa attorney presented to the judge (without having previously filed it in the clerk's office) a motion or petition for the disqualification of the judge.

'If the motion or petition had been granted, my application for a temporary injunction could and would have been heard by another of the six local circuit judges without undue delay. The Tampa attorncy and the judge knew, of course, that the disqualification of the latter would not accord the defendant gamblers the prolonged delay they are so desperately seeking. When the matter is heard, the gambling casino will be closed by injunction and gambling profits will cease to flow in enormous amounts into the pockets of the powerful local gambling syndicate composed of five of the defendants. Not even Judge Milledge could justifiably deny the application.

'The motion or petition for the judge's disqualification was denied by him. The order of denial was precisely what the Tampa attorney and his clientele of gamblers wanted. The judge had provided them with a plausible reason for appealing to the Supreme Court of Florida for a writ of prohibition to restrain the judge (who, they say, is prejudiced against them!) from hearing the case. They hope and expect that the proceedings in the Supreme Court, which were initiated on March 1, 1946, will consume enough time to enable the syndicate to reap profits from their gambling activities throughout the present profitable winter tourist season and into the summer months.

'The Supreme Court on ...