State ex rel. Hall v. Niewoehner
| Decision Date | 26 December 1944 |
| Docket Number | No. 8564.,8564. |
| Citation | 116 Mont. 437 |
| Parties | STATE ex rel. HALL v. NIEWOEHNER. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Original contempt proceeding by the State of Montana, on the relation of H. C. Hall, against George E. Niewoehner, an attorney at law, wherein the respondent filed motions to disqualify the justices and to quash.
Motions denied and respondent found guilty of contempt in accordance with opinion.
R. V. Bottomly, Atty. Gen., Fred Lay, First Asst. Atty. Gen., and H. C. Hall, Sp. Pros., of Great Falls, for relator.
E. J. Stromnes, of Great Falls, Timothy Nolan and J. F. Sullivan, both of Butte, Horace S. Davis, of Billings, and Geo. E. Niewoehner, of White Sulphur Springs, for respondent.
This is a contempt proceeding.
Respondent, George Niewoehner, is an attorney at law admitted and licensed by this court to practice before it.
On Saturday, October 7, 1944, respondent came to the office of the clerk of this court and there delivered for filing and presentation to the court a typewritten motion. He also left with the clerk five copies of such motion. The motion reads:
“In the Supreme Court of the State of Montana.
In Re the minutes of the Supreme Court
Motion for an Order Directing that the Minutes and Records of the Supreme Court of the State of Montana be Purged of Misleading Entries and Made Whole.
Comes now George Niewoehner, Esq., as an officer of the above entitled Court, and in support of his motion to be presently made represents and alleges:
That on or before July 7, 1941, Mr. Justice Leif Erickson abandoned his duties and prerogatives as Justice of the Supreme Court of the State of Montana, and thereupon accepted employment as a referee for the National Railroad Adjustment Board, all in violation of his oath of office, and in breach of his trust to the people;
That Mr. Leif Erickson did continue such abandonment and neglect until and including September 8, 1941;
That on or before May 12, 1943, Mr. acting Justice Leif Erickson did again abandon his duties and prerogatives as Justice of the Supreme Court of the State of Montana, and thereupon again accepted employment as a referee for the National Railroad Adjustment Board, all in violation of the Montana Constitution, in violation of his oath of office, and in breach of his trust to the people;
That Mr. Leif Erickson did continue such abandonment and neglect until and including June 6, 1943;
That on or before July 15, 1943, Mr. acting Justice Leif Erickson did still again abandon his duties and prerogatives as Justice of the Supreme Court of the State of Montana, and thereupon did still again accept employment as a referee for the National Railroad Adjustment Board, all in violation of the Montana Constitution, in violation of his oath of office, and in breach of his trust to the people;
That Mr. Leif Erickson did continue such abandonment and neglect until and including September 11, 1943;
That Mr. Leif Erickson thus served the National Railroad Adjustment Board, in violation of the Montana Constitution, in violation of his oath of office, and in neglect of his duties to the people of Montana, for the following periods:
July 15, 1943, to September 11, 1943, a period of Fifty-nine (59) consecutive days, which all told made a total time in service for the National Railroad Adjustment Board of one hundred forty-seven (147) days;
That for his services as referee for the National Railroad Adjustment Board, Mr. Leif Erickson was paid the sum of Seven Thousand Three Hundred Seventy-five Dollars (7,375.00) at the rate of Fifty Dollars ($50.00) per day, and did receive expenses and per diem in the amount of One Thousand Two Hundred Sixty-seven Dollars ($1,267.00), making a total payment of Eight Thousand Six Hundred Forty-two Dollars ($8,642.00) received for one hundred forty-seven (147) days of unlawful and unconstitutional employment outside his duties as Justice of this Court;
That Mr. Leif Erickson did let, and still lets, the Minutes of this Court indicate that he served the people of Montana during these one hundred forty-seven (147) days, and that he has made statements under oath to support salary claims against the State Treasurer of the State of Montana covering these identical days;
That in addition to the Eight Thousand Six Hundred Forty-two Dollars ($8,642.00) he received for employment outside this state, Mr. Leif Erickson has drawn his full salary as Justice from the State of Montana for the same one hundred forty-seven (147) days at the rate of Seven Thousand Five Hundred Dollars ($7,500.00) a year;
That as a result of the facts alleged hereinabove the said Mr. Leif Erickson has in fact and in truth neglected his duties as a Justice since July 7, 1941, and has much of the time been absent earning wages for himself at the rate of Fifty Dollars ($50.00) per day, together with expenses and per diem, when the Supreme Court was in session;
That as a result of said facts Mr. Leif Erickson has not been a de jure justice of the Supreme Court since the year 1941;
That despite the aforesaid facts, many of them known to other Justices of this Court, the Minutes of this Court have continued to indicate the said Leif Erickson as being present when he was in fact absent;
That the official records of the cases decided by the Supreme Court, and the official printed reports of those decisions, make it appear that in many of these cases and decisions Mr. Leif Erickson properly participated by exercising the judicial discretion vested in him by the people of the State of Montana when in fact and in truth Mr. Leif Erickson did not so properly participate and exercise his discretion in those cases and decisions;
That as they now stand the Minutes of the Supreme Court of the State of Montana are misleading and are not a true representation of the conduct of Mr. Leif Erickson as a Justice of the Supreme Court of the State of Montana, making it impossible for the people of Montana to ascertain the true fashion in which the business of their Supreme Court has been conducted;
That the matters and things alleged hereinabove are calculated to destroy the integrity and dignity of the Supreme Court of the State of Montana, and that the Constitutional rights and guarantees of the people of Montana are thereby imminently jeopardized;
That your petitioner being an officer of the Supreme Court, it is his duty to endeavor to have the Minutes of the Supreme Court rectified;
Now, therefore, I move the Supreme Court for an order directing that the Minutes and records be purged of all those entries which make it appear that Mr. Leif Erickson was present in Court when in fact he was not, or which make it appear that Mr. Leif Erickson was properly participating in the decisions of the Court when in fact he was not, and directing that the Minutes and records be made to show that Mr. Leif Erickson was absent from Court when he was in fact absent, and be made to show that Mr. Leif Erickson did not participate in those cases and decisions in which he in fact did not properly participate by exercising the judicial discretion vested in him by the people of the State of Montana.
George Niewoehner”
Upon receiving the motion the clerk promptly presented it to the Chief Justice together with the five copies for the use of the justices, subdivision 3 of Rule XI of the published rules of this court providing that, “Unless otherwise ordered, a motion will be considered and disposed of without oral argument.”
On Monday, October 9, 1944, being the next business day, the respondent mailed to all the members of the bar of this state a mimeographed copy of the motion together with a letter signed by him. The letter reads:
“George Niewoehner
Lawyer
White Sulphur Springs, Montana
October 9, 1944
Dear Sir:
When you have finished reading this letter you may throw it away and dismiss the whole affair from your mind, if you wish. What you think of my experiences is none of my business.
In three sentences I am going to tell you why I have taken the trouble to send this mimeographed letter to every lawyer in the state. The people of Montana, including the lawyers, have the right to have the records of the Supreme Court show what business is transacted by the Supreme Court, how and when the business is transacted, and what Justices participate. Despite this right, I beieve that the Minutes do not show how the Supreme Court took care of a certain matter entitled ‘In Re the Minutes of the Supreme Court.’ Therefore I am going to give you the facts, with no comment whatsoever—draw your own conclusions.
Just before noon on Thursday, October 5th, I called the Marshall of the Supreme Court, told him I would have an ex parte matter to be heard at 10:00 A.M. on Saturday, October 7th, and asked him to notify the Justices and have them on the Bench at that time. I did not give him any information as to the nature of the case. He said he would do as requested. Early that afternoon the Marshall advised me he had notified Justices Johnson, Anderson, Morris and Adair, and that those Justices said they would be present.
Then I went to the Court's noticing board upon which matters to be heard are noticed, and there was a notice on the board that there would be a matter at 10:00 A. M. on Saturday. My name appeared in the notice thus: ‘(Niewoehner)’.
On Saturday, October 7th, I was waiting at the office of the Clerk of the Supreme Court at ten minutes to 9:00 A. M. when the Clerk arrived. I asked the Clerk to file a Motion, gave him the Motion and five copies thereof, and gave him a ten dollar bill for the filing fee. A copy of the Motion is enclosed herewith.
Thereupon the Clerk said he would not file any papers I might have, that he would transmit...
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