State ex rel. Reynolds v. Circuit Court of Milwaukee Cnty.

• Decision Date: 20 June 1927
• Citation: 193 Wis. 132,214 N.W. 396
• Parties: STATE EX REL. REYNOLDS, ATTY. GEN., v. CIRCUIT COURT OF MILWAUKEE COUNTY, BRANCH NO. 1.
• Court: Wisconsin Supreme Court

193 Wis. 132

214 N.W. 396

STATE EX REL. REYNOLDS, ATTY. GEN.,

v.CIRCUIT COURT OF MILWAUKEE COUNTY, BRANCH NO. 1.

Supreme Court of Wisconsin.

June 20, 1927.

Original action in the Supreme Court by the State, on the relation of John W. Reynolds, Attorney General, for mandamus against the Circuit Court of Milwaukee County, Branch No. 1, presided over by Hon. Otto H. Breidenbach. Peremptory writ of mandamus issued against respondent.--[By Editorial Staff.]

Action under the original jurisdiction of the Supreme Court on petition of the Attorney General of the state of Wisconsin. On this petition branch No. 1 of the circuit court of Milwaukee county, Otto H. Breidenbach, judge presiding, was ordered to show cause why a writ of mandamus should not issue directing that a writ of habeas corpus which had been issued on petition of William B. Rubin should not be quashed and said Rubin remanded to the custody of the sheriff of Milwaukee county.John W. Reynolds, Atty. Gen., and Hugh Minahan, Asst. Atty. Gen., for petitioner.

Frank M. Hoyt, Francis E. McGovern, Benjamin Poss, Bernard V. Brady, George B. Hudnall, and Walter H. Bender, all of Milwaukee, amici curiæ.

I. A. Fish, of Milwaukee, for William B. Rubin.

The following decision was announced June 6, 1927:

PER CURIAM.

The court reserves for future determination the question whether the judge of one court of co-ordinate jurisdiction can determine upon an application for a writ of habeas corpus, whether another court of co-ordinate jurisdiction had jurisdiction to enter the judgment or order which restrains the liberty of the applicant for the writ.

The court determines:

(1) That branch No. 8 of the circuit court for Milwaukee county had jurisdiction to investigate the charges presented in the petition signed by William H. Churchill and others.

(2) That the fact that two other circuit judges sat with the presiding judge of branch No. 8 did not change the nature of the judicial tribunal that was proceeding with its investigation under the Churchill petition, or deprive branch No. 8 of the power to punish for contempt.

(3) That it was the duty of branch No. 8 of the circuit court of Milwaukee county to investigate the charges made in the affidavit of William B. Rubin against the three lawyers that were conducting the investigation before the court. That the court had power to proceed in the manner in which it did proceed, and to adjudge that William B. Rubin was guilty of contempt in refusing to be sworn to give testimony to support such charges when directed so to do by the court.

(4) That, upon the facts appearing upon the verified petition for the writ of habeas corpus, the judge of branch No. 1 of the circuit court for Milwaukee county should not have issued the writ.

(5) That a peremptory writ of mandamus issue, commanding the judge of branch No. 1 of the circuit court of Milwaukee county to quash the writ of habeas corpus and remand William B. Rubin to the custody of the sheriff.

By the Court: So ordered.

CROWNHART, J.

I withhold decision in this case until I can give it full consideration. It involves matters of very grave importance. It was hastily presented. The record is very long. I have been unable to give the matter the careful study that the case demands. The effect of the decision may have far-reaching results in the future, and this court should have at least the usual time to meet and solve the issues presented.

STEVENS, J.

William H. Churchill, and ten other members of the bar, being the directors of the Lawyers' Club of Milwaukee county, filed with branch No. 8 of the circuit court of Milwaukee county a petition charging “that certain disreputable and evil practices are now prevalent in Milwaukee county and elsewhere in Wisconsin that are against public policy, that seriously affect the administration of justice in this county and in this state, that tend to interfere with and obstruct the functions of nearly all our courts and tend to bring our courts and the practice of law into public contempt and ridicule”; that among these evil practices and abuses is the soliciting and inciting of personal injury and other damage cases by men who are not members of the bar and who in turn employ other solicitors, not members of the bar, who make a wholesale business of soliciting cases; that men engaged in this business arrange to get tips from persons so situated as to get first-hand information as to accidents, so that solicitors may go without delay to secure these contracts; that such solicitation takes place immediately after the accident, at the scene of the accident, or in homes and in hospitals; and that, when necessary, solicitors exhibit stars and official badges and impersonate officers in order to secure access to injured persons.

The petition further alleged that, when necessary to have the services of members of the bar to prosecute actions on these claims, these solicitors split fees with such members of the bar as are willing to participate in this kind of litigation; that actions are brought in the name of the injured person without the knowledge or consent of such injured person; that these solicitors unlawfully incite and provoke litigation which would otherwise never result; that actions are improvidently brought, court calendars are congested, proper litigation delayed, and the expenses of maintaining courts greatly increased by this class of litigation.

The petition also alleged that the same means are used to solicit the defense of criminal actions; use being made of tips and secret confederates in securing this business.

The petition further alleges that all but a comparatively few members of the bar “earnestly and successfully strive to fulfill all requirements and live up to the higher ideals of the profession,” but that they are embarrassed in their work and humiliated by the conduct of those who co-operate with these solicitors, and that these practices have brought the bench and bar into disrepute.

After hearing the petitioners, the matter presented by the petition was set down for hearing in branch No. 8 of the circuit court for Milwaukee county before Judge Charles L. Aarons, judge presiding, by a court order signed by Judge Aarons. This order recited that Judge Aarons “has requested Hon. Gustave G. Gehrz and the Hon. J. J. Gregory to sit with me, as associates during said hearing.”

Three members of the Lawyers' Club represented the petitioners before the court and presented proof to substantiate the allegations of the petition. While the investigation was in progress, the court's attention was called to the fact that, in an action begun by William B. Rubin against the three lawyers who were conducting the investigation, the plaintiff Rubin had filed an affidavit in which he stated that these three lawyers “for personal gain and political advantage, * * * on the pretext of exposing the so-called ‘ambulance chasing’ of personal injury cases in Milwaukee, have entered into a conspiracy, actuated by jealousy, envy, and hatred, to injure the good name and reputation of this affiant,” and that, pursuant to this conspiracy, “said defendants have in said so-called investigation willfully and deliberately withheld information which they had concerning matters, which * * * would have proven the untruth and falseness of each and every one of the accusations.”

Thereafter, at the request of the court, Mr. Rubin appeared before branch No. 8 and was informed by the presiding judge of said branch of the fact that the contents of said affidavit had been brought to the attention of the court. Mr. Rubin replied that he desired to make a statement at length. The court informed Mr. Rubin that it was sitting to hear evidence, and directed him to be sworn before he presented his proof as to the charges made in the affidavit. Mr. Rubin declined to be sworn, giving as his reasons therefor the fact that the tribunal before which he was appearing was not a court, and that the proceeding was an extrajudicial one, and that the tribunal had no jurisdiction over him or power to require him to be sworn.

Upon Mr. Rubin persisting in his refusal to be sworn and give testimony, Judge Aarons, as presiding judge of branch No. 8, adjudged him guilty of contempt for contumaciously and unlawfully refusing to be sworn as a witness, after being directed by the court so to do, and for willfully and unlawfully disobeying the order of the court directing him to submit and disclose to the court evidence showing upon what facts the allegations contained in his affidavit are based so far as the same charges certain members of the bar with practicing a fraud upon the court by the institution and prosecution of the proceeding under the Churchill petition which was still pending before and undetermined by the court.

The court granted Mr. Rubin a stay of ten days at his request. Thereafter he voluntarily surrendered himself to the sheriff and then presented a petition for a writ of habeas corpus to Judge Breidenbach, presiding judge of branch No. 1 of the circuit court of Milwaukee county. The petition asserted that the tribunal which directed Mr. Rubin to be sworn had no jurisdiction to compel him to testify, and that therefore the adjudication that he was guilty of contempt was made without jurisdiction and was therefore void. But the petition attached to and made a part thereof copies of the Churchill petition, the order for hearing thereon, the affidavit of Mr. Rubin, the minutes of the clerk, and the stenographic report of the proceedings leading up to the entry of the contempt judgment, as well as the judgment finding Mr. Rubin guilty of contempt and the commitment for contempt.

Upon this petition a writ of habeas corpus was issued, and Mr. Rubin was released. The sheriff filed a return, from which it appeared that Mr. Rubin when in custody was detained under a judgment for contempt entered by branch No. 8. Mr. Rubin traversed the return by again asserting...