State ex rel. Porter v. First Judicial Dist. in and for Lewis and Clark County, 8945

• Decision Date: 16 February 1950
• Docket Number: No. 8945,8945
• Citation: 215 P.2d 279,123 Mont. 447
• Parties: STATE ex rel. PORTER et al. v. FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

Page 279

215 P.2d 279

123 Mont. 447

STATE ex rel. PORTER et al. v. FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 8945.

Supreme Court of Montana.

Feb. 16, 1950.

Stanley M. Doyle, Polson, for relator and pro se.

Melvin E. Magnuson, County Attorney, Helena, Edwin K. Cheadle, Helena, for respondents.

METCALF, Justice.

This is an application of a writ of certiorari seeking a review of the proceedings by which the relators, Roger Porter and Stanley M. Doyle were adjudged guilty of contempt of court. The respondent court and the judges thereof were ordered to certify to this court a record of its proceedings in the matter. Secs. 93-9004, 93-9005, R.C.M.1947.

Before the record was so certified the respondents filed a motion to strike portions of relators' petition. The motion to strike was taken under advisement by the court and the respondents permitted to file further proceedings without prejudice to their motion to strike.

The Hon. A. J. Horsky and the Hon. George W. Padbury, Jr. filed a motion to quash the petition and the Hon. R. M. Hattersley filed a separate motion to quash the petition on behalf of the district court of the first judicial district and for himself as the district judge presiding in the cause.

The record discloses that on the 6th day of July 1949, the Hon. George W. Padbury, Jr., and the Hon. A. J. Horsky, as judges of the first judicial district, summoned a special grand jury to inquire into criminal offenses committed within the county of Lewis and Clark and that on or about the 6th day of July 1949, Floyd O. Small, a regularly qualified and admitted attorney-at-law, was selected to act as special prosecutor for the grand jury. On July 25, 1949, the grand jury was impanelled and entered upon its duties.

On September 6th the grand jury made its first partial report and returned four true bills. Thereafter on October 7th and October 18th the grand jury made further partial reports and other true bills were returned. Among them were indictments against Roger Porter.

On October 21, 1949, the relator Roger Porter employed Stanley M. Doyle to represent him as attorney in defending the various indictments returned by the grand jury against him. On October 29, 1949, the relator Doyle as attorney for the relator Porter, as plaintiff, filed in Cause No. 21978 in the district court of Lewis and Clark county, a complaint in a civil action entitled, 'Roger Porter, Plaintiff, v. Floyd Small, Tom Alley, J. W. Salsbury, Jr., Harold H. McClellan, Sue Haskell, Beulah Day, Matthew S. Vook, Carter Babcock, and Dorothy Bisson, Defendants.'

Floyd Small, one of the co-defendants therein, is the alleged special prosecutor for the Lewis and Clark county grand jury. All of the remaining defendants, with the exception of Tom Alley, are members of the Lewis and Clark county grand jury. The complaint charges that said Floyd O. Small, as special prosecutor, the members of the grand jury, individually and collectively, and Tom Alley, have conspired to harass and injure the plaintiff Roger Porter and destroy his business, reputation and character in the community, and to cause his prosecution and imprisonment in the Montana state prison. The complaint prays for judgment against the defendants for $100,000 compensatory damages and for $50,000 as exemplary damages and for costs. It is 17 paragraphs long, consisting of 14 typewritten pages and is verified by the plaintiff, Roger Porter, one of the relators herein.

The complaint made specific allegations individually charging members of the grand jury with immoral and improper conduct, the commission of crimes, and recited an alleged instance where one juror forfeited bail for a misdemeanor in police court. The charges made against these individuals, the recitation of past misdeeds and the narration of parts of private conversations were absolutely immaterial and irrelevant. They were obviously inserted to scandalize, disgrace and discredit the members of the grand jury. There is no other reason for the inclusion of such defamatory matter.

After the filing of this complaint the county attorney of Lewis and Clark county made an accusatory affidavit in which he set forth that he was the duly elected county attorney of Lewis and Clark county. He narrated the foregoing facts about the calling and organization of the grand jury and the appointment of the special prosecutor and set forth the fact that the complaint in Cause No. 21978 had been filed and verified by Roger Porter with Stanley M. Doyle as his counsel and thereafter stated that he was informed and believed that certain matters in said complaint were false, malicious, untrue, libelous, defamatory and contemptuous; that he was informed and believed that the purpose and intent of Roger Porter and Stanley M. Doyle by the use of such defamatory matter was to interfere with, influence, sway, insult, control, intimidate and coerce the special prosecutor and the grand jurors in the performance and discharge of their duties, and that the filing of the complaint unlawfully interfered with the orderly activities of the special prosecutor and the grand jurors and with the administration of justice in Lewis and Clark county and exposed them to public censure, blame and reproach, and thus constituted contempt of court.

Thereupon a citation issued requiring Roger Porter and Stanley M. Doyle to show cause why they should not be punished for contempt. This order was signed by George W. Padbury, Jr., one of the regularly qualified and elected district judges of the first judicial district. Judge Padbury, deeming himself to be disqualified, ordered that the Hon. A. J. Horsky, the other duly elected and qualified district judge of the first judicial district, be called in to assume jurisdiction, but Judge Horsky, deeming himself disqualified, declined to assume jurisdiction and thereupon the Hon. R. M. Hattersley, judge of the ninth judicial district, was called in and assumed jurisdiction in the contempt proceedings. On the day set for hearing the alleged contemners appeared and filed separate answers. The answer of Stanley M. Doyle admitted that he had dictated the complaint in Cause No. 21978 and that he believed and was convinced that Roger Porter was the victim of a conspiracy to injure, defame and imprison him.

The separate answer of Roger Porter stated that he had retained Stanley M. Doyle as his attorney; that he had acquainted his attorney with all the facts and circumstances in connection with the subject matter of the cause and that he was advised that he had a good and sufficient cause of action against the defendants named in Cause No. 21978; that he had read the complaint which was the source of the contempt proceeding and that the same was true and that he did not understand that the filing of the complaint could be held to be contemptuous and that he still believed that he was the victim of an unlawful and illegal conspiracy to imprison him, a conspiracy which had resulted in bringing against him 16 separate, illegal indictments and two false and fraudulent informations. After filing these two separate answers Doyle and Porter then attempted to file a petition to dismiss and discharge the special ground jury and a motion to quash the indictments against Roger Porter. The court ruled that it was without jurisdiction over any matter except the contempt proceeding.

After hearing, the defendants were found guilty of contempt and each of them was sentenced to pay a fine of $250.00. Thereafter, on December 2, 1949, the said Roger Porter and Stanley M. Doyle filed this original proceeding, a petition for a writ of review or other appropriate writ, to review the contempt proceedings in the district court of the first judicial district. The petition set forth that on the 15th of November the district court found the relators guilty of contempt; that the relator Roger Porter filed a complaint in Cause No. 21978 against members of the grand jury, the special prosecutor and one Tom Alley; that the complaint was based upon violations by the members of the grand jury of the oath prescribed by section 94-6312, R.C.M. 1947. The petitioners then contend that the affidavit supporting the order to show cause was wholly insufficient, inadequate, and failed to acquaint the relators or either of them with the exact nature of the contempt charged and precluded the relators from making an adequate defense because of the generalization and lack of specific statements in the affidavit. The petition concludes that the order of the district court finding the defendants guilty of contempt was illegal and void and in excess of the jurisdiction vested in the court or the judges thereof. It sets forth that the relators have no plain, speedy, or adequate remedy other than a writ of certiorari and therefore asks that this court review the proceedings of the district court and after such review, reverse the judgment and sentence under such judgment.

In addition to the matter already discussed, the relators' petition says that the defendants in Cause No. 21978 were members of an illegal and unlawful grand jury and were conspiring and confederating against relator Roger Porter; that the respondent judge, the Hon. R. M. Hattersley, should have allowed the petitioners to prove the allegations of perjury, criminal conspiracy and other charges appearing in the civil cause No. 21978, and to prove various charges against members of the grand jury and the special prosecutor for the grand jury, and to introduce into evidence certain recordings of telephone conversations allegedly taken place between the Hon. George W. Padbury, Jr., and relator Roger Porter and others.

The relators also set forth that the Hon. R. M. Hattersley had refused to allow the plaintiffs to file and had refused to consider a petition to discharge and dismiss the grand jury and to quash certain indictments.

These additional matters were the...