State ex rel. Reynolds v. County Court of Kenosha County

• Decision Date: 04 November 1960
• Citation: 105 N.W.2d 876,11 Wis.2d 560
• Parties: STATE of Wisconsin, on the Relation of John W. REYNOLDS, Attorney General, Petitioner, v. COUNTY COURT OF KENOSHA COUNTY, and the Hon. Harold M. Bode, County Judge, Respondents.
• Court: Wisconsin Supreme Court

Page 876

105 N.W.2d 876

11 Wis.2d 560

STATE of Wisconsin, on the Relation of John W. REYNOLDS Attorney General, Petitioner, v. COUNTY COURT OF KENOSHA COUNTY, and the Hon. Harold M. Bode County Judge, Respondents.

Supreme Court of Wisconsin.

Nov. 4, 1960.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., Nathan S. Heffernan, Deputy Atty. Gen., Joseph B. Molinaro, Dist. Atty., Vivian H. Newton, Asst. Dist. Atty., Kenosha, for petitioners.

William A. Sheldon, Leo E. Vaudreuil, David L. Phillips, Kenosha, for respondents.

HALLOWS, Justice.

Art. VII, sec. 3, Wis.Const., grants three separate powers to this court: appellate jurisdiction, general superintending control over all inferior courts, and the power to issue the 'high writs' and other original and remedial writs. ¹ The nature and scope of the superintending power of this court has been discussed and explained from the earliest times. Attorney General v. Blossom, 1853, 1 Wis. 317 [Reprint 277]; Attorney General v. Chicago & N. W. Ry. Co., 1874, 35 Wis. 425; State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, 1899, 103 Wis. 591, 79 N.W. 1081, 51 L.R.A. 33; State ex rel. Umbreit v. Helms, 1908, 136 Wis. 432, 118 N.W. 158. The rule established in these cases is well stated in State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, 103 Wis. at page 618, 79 N.W. at page 1089:

'* * * the constitutional grant of superintending control over all inferior courts vested in this court an independent and separate jurisdiction enabling and requiring it, upon sufficient occasion, by the use of all proper and necessary writs to promptly restrain the excesses and quicken the neglects of inferior courts in the absence of other adequate remedy, * * *.'

It was pointed out that this grant of power was unlimited in extent, indefinite in character, unsupplied with means and instrumentalities, and from history of the common law we know that the superintending power of the king's bench was principally exercised by the writs of mandamus, prohibition and certiorari, and at one time by the writ of procedendo by the court of chancery. The superintending power includes the review of judicial actions of inferior courts and extends to judicial as well as jurisdictional errors committed by them. In exercising this power of superintending control, this court is not restricted to the use of common-law writs and is limited only by the necessities of justice. It may use such common-law writs and means as are applicable, or expand the ordinary use of such writs to meet the exigencies and necessities of the case before it. In discussing the supervisory power in State ex rel. Tewalt v. Pollard, 1901, 112 Wis. 232, 234, 87 N.W. 1107, this court said:

'Since the case of State [ex rel. Fourth Nat. Bank] v. Johnson, 103 Wis. 591, 79 N.W. 1081, 51 L.R.A. 33, there seems to be little necessity of discussing the nature and extent of the jurisdiction of this court by the way of a superintending control over inferior courts. It is a high power, which enables this court, by the use of all necessary and proper writs, including the writ of prohibition, to control the course of litigation in inferior courts when such a court either refuses to act within its jurisdiction, or acts beyond its jurisdiction, to the serious prejudice of the citizen. But this court will not exercise its jurisdiction when there is another adequate remedy, by appeal or otherwise, nor unless the exigency is of such an extreme nature as obviously to justify and demand the interposition of the extraordinary superintending power of the court of last resort of the state. State [ex rel. Meggett] v. O'Neill, 104 Wis. 227, 80 N.W. 447; State [ex rel. Milwaukee] v. Ludwig, 106 Wis. 226, 82 N.W. 158.'

The question is whether this court now should exercise this prerogative authority and to what extent. It is urged upon us that this matter involves questions of publici juris, of interference with the constitutional right of a citizen to the writ of habeas corpus, the usurpation by the county court of Kenosha county of the jurisdiction of the municipal court of Racine county, and an unwarranted and unjustified interference with the orderly administration of justice. The respondents urge this court to exercise its superintending control over inferior courts, claiming an unlawful interference by the municipal court of Racine county with the jurisdiction of and orderly administration of justice by the county court of Kenosha county. Because of the importance of the issues involved, we consider it our duty to exercise our superintending power.

The tragedy of errors upon which this action is founded began on September 1, 1960, when Kenosha County Judge Harold M. Bode had an appliance store in Kenosha install a portable air conditioner in his chambers. The record does not show whether this was done in his personal capacity or as county judge or by the court. On September 2d Judge Bode wrote Lindgren to inform him of the installation on a temporary approval basis. If purchased the air conditioner would cost approximately $250 and, if not purchased, Kenosha county would be liable for the installation and rental until removed. In justification of the arrangement the letter stated the judge had been faced with five juvenile hearings in his office and the temperature and humidity were so bad he would have had to adjourn the hearings. The letter then expressed hope the problem of air conditioning first brought to the attention of the building and printing committee on October 8, 1959, would be disposed of prior to the time the judge felt obligated to return or to purchase the air conditioner. An invitation was extended to the purchasing agent-clerk and the committee to examine the air conditioner and determine its suitability.

A blistering reply letter of the same date was sent by the clerk to the county judge, informing him that Kenosha county had no obligation for the air conditioner and suggested the judge read ordinance No. 26 relative to purchasing. The judge was reminded that there were two other courts and three other judges in the building who the clerk was sure would like air conditioning but who had not without authority of the county board ordered air conditioners installed and the courts across the hall were able to, and were, doing their work without air conditioners. The letter closed with the statement that air conditioners in the court house would be ordered and paid for by Kenosha county when the county board authorized it and until that time the judge could pay for the rental and installation of the air conditioner. A copy of the letter was sent to the appliance dealer and the chairman of the county board.

The record discloses there followed some conversation between the judge and the county clerk. On the same day the court issued an order to show cause entitled, 'In the Matter of Air-Conditioning the County Court Chambers,' ordering Lindgren to show cause why he should not be held in contempt of court for interfering with the performance of its judicial function by countermanding (sending a copy of his letter to the appliance dealer) the prior order of the court to the appliance dealer for the installation of the air conditioner.

On September 6, 1960, at the hearing on the order, the county judge apologized to the people in the court room for holding court under the very humid and hot condition with the windows closed and explained if the windows were opened there was so much noise the phonographic reporter would be unable to get what was transpiring. The court then examined Lindgren concerning whether the clerk had requested the issuance of the order to show cause. An impasse was soon reached. Six times the judge inquired in effect whether the clerk had requested him to issue the order to show cause, and six times Lindgren ignored the question and stated he wished to make a statement to the court. The court asked the sheriff to be called and, while waiting for him, the court stated the hearing was on the order to show cause which was read. Lindgren was then asked what his plea was to the order. Again an impasse resulted. Lindgren repeated he wished to make a statement to the court and was told he would be allowed no statement until he pleaded. Eight times the court asked Lindgren whether he was guilty or not guilty, and eight times received the frustrating reply that Lindgren wished to make a statement to the court. The court then ordered the clerk confined in jail until he would say that he was guilty or not guilty.

About an hour later the court reconvened. The judge stated the nature of the hearing and explained the law required him to keep the court room open but conducting court in such tremendous heat and humidity was not his way that a court should be conducted, that he had called the matter to the attention of the authorities for their assistance in order that the people of the community could have justice expedited, that the conditions prevented him from judicially exercising the prerogatives of the court and from fulfilling his responsibility, and in the absence of anything being done he proposed to do something about it. Lindgren was then asked for his plea and was told he could make any statement he chose if he answered. After receiving no response from Lindgren to 10 questions concerning whether he desired to plead or whether he was going to plead or whether there was any reason why he could not answer, the court found Lindgren in contempt for refusing to plead to the charge and ordered him committed to jail until he would plead.

The next day after the other judges in Kenosha county disqualified themselves, Lindgren, represented by the district attorney's office of Kenosha county, applied to the municipal court of Racine county for a writ of habeas corpus. The petition for the writ stated the cause of Lindgren's confinement was his refusal to enter a plea to a charge in ...