State ex rel. Wendt v. Journey

• Decision Date: 13 March 1973
• Docket Number: No. 34466,34466
• Parties: STATE of Missouri ex rel. Robert H. WENDT, Relator, v. The Honorable Kelso JOURNEY, Respondent. . Louis District
• Court: Missouri Court of Appeals

Page 861

492 S.W.2d 861

STATE of Missouri ex rel. Robert H. WENDT, Relator, v. The Honorable Kelso JOURNEY, Respondent.

No. 34466.

Missouri Court of Appeals, St. Louis District.

March 13, 1973.

Norman S. London, Murry L. Randall, Robert A. Hampe, St. Louis, for relator.

Thomas I. Osborne, Pros. Atty., Mexico, for respondent.

KELLY, Judge.

In this proceeding in Prohibition the relator prays that this Court issue its writ to prohibit the respondent Circuit Judge from proceeding further in a contempt action wherein the relator was found guilty of indirect criminal contempt of court, fined Four Hundred ($400.00) Dollars and sentenced to fifteen (15) days in the Audrain County Jail. The preliminary writ issued and respondent filed his return thereto setting forth factual allegations relative to the charge by Application for Order to Show Cause and the Order to Show Cause wherein relator was ordered to appear before respondent on the 18th day of December, 1971, and show cause if any there be, why he should not be cited and found to be in 'Contempt of this Court pursuant to Supreme Court Rule 35.01 V.A.M.R. for your alleged willful failure and refusal to appear for trial as attorney of record for the defendant in the case of State of Missouri v. Alvin Odell Cluck, No. 12488, in the Audrain County Circuit Court at Mexico, Missouri, at 9:00 a.m. on the 2d (sic) day of December, 1971, a charge in two counts of Uttering Forged Checks.' Relator thereafter filed his Answer admitting substantially all of the allegations contained in respondent's return, but contends that the respondent should have disqualified himself from presiding at the contempt hearing, and respondent's failure to do so deprived him of due process. Relator further alleged that the respondent failed to find him guilty of contempt of court 'beyond a reasonable doubt' in light of all the facts reflected in the record and that the complaint charging him with the contempt was insufficient and violated due process. Relator filed in this Court a 'Motion for Judgment on the Pleadings', which was ordered taken with the case and is hereby denied.

The decisive issue presented to the Court is whether the respondent exceeded his jurisdiction in presiding at the contempt hearing.

Failure of an attorney to attend court at the appointed time, when he is under a duty or an obligation to so attend, may amount to contempt of court and be punished as such. McMullin v. Sulgrove, 459 S.W.2d 383, 386 (Mo. banc, 1970); Annotation, 'Attorney's failure to attend court, or tardiness, as contempt,' 97 A.L.R.2d 431, 438. However, such contempt is classified in this state as indirect criminal contempt, Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 997, 998 (1907); McMullin v. Sulgrove, supra; and shall be prosecuted on notice which shall 'state the essential facts constituting the criminal contempt charged and describe it as such.' Rule 35.01(b), V.A.M.R. The notice may be given on application of the prosecuting attorney or of an attorney appointed by the court for that purpose by an order to show cause or an order of arrest. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Rule 35.01(b), V.A.M.R.

Respondent in this case after holding a hearing in the absence of the relator on the 2nd day of December, 1971, on 'evidence adduced' found 'that cause existed to cite said attorney to show cause why he should not be held in criminal contempt of the court for his failure to appear on the date of December 2, 1971, for trial of the case as directed.' He thereupon directed the Prosecuting Attorney of Audrain County to prepare an Application for an Order to Show Cause; and when this was done and presented to the respondent, an Order to Show Cause was issued directed to the relator commanding him to appear before the court on Saturday, December 18, 1971, at 9:30 a.m. and show cause, if any there be, why he should not be cited for contempt of court, pursuant to Supreme Court Rule 35.01 for his alleged willful failure and refusal to appear for trial as attorney of record for the defendant Alvin Odell Cluck although he had notice of the setting of said cause for trial 'all to the great embarrassment (sic) inconvenience and expense of this Court, the State, the 26 jurors summoned to try the cause, the witnesses subpoenaed by the State, the Prosecuting Attorney and the other Court personnel, and all against the dignity of this Court and an interference with the orderly administration of justice.' (Emphasis supplied).

Relator contends that the respondent should have disqualified himself from proceeding with the hearing on the Order to Show Cause, and the failure of the respondent to do so amounts to a deprivation of due process of law guaranteed to him by Art. 1, Sec. 10 of the Constitution of Missouri, 1945, V.A.M.S., and the 14th Amendment to the Constitution of the United States, and was in contravention of the provisions of Rule 35.01(b), V.A.M.R.

We have been cited to no case which has construed failure to appear or tardiness in appearing before a court to constitute 'disrespect to a judge' as that term is used in Rule 35.01(b); nor has our research led us to any Missouri case so construing the term. Rule 35.01(b), V.A.M.R. is substantially the same as Rule 42(b) of the Federal Rules of Criminal Procedure, and that Rule contains the same disqualification sentence in the same language as our Rule 35.01(b), V.A.M.R. In the Matter of David Lamson, 468 F.2d 551, 553(2) (1st Cir. 1972) it was held that the 'mere tardiness of an attorney, unless other prejudicing factors are present, is normally (not) such a personal affront as would constitute 'disrespect to or criticism of a judge' within the meaning of Rule 42(b), requiring the judge to disqualify himself from acting in a contempt proceeding which he initiates.' (Emphasis supplied).

However, whether a judge considers the failure of an attorney to appear for the trial of a case to constitute disrespect to the judge may depend upon the circumstances and the point of view of the particular judge involved. Much like intent, the judge's attitude in this respect may not be readily discernible and the judge may be an unwitting prisoner of his own preconceived notion of what is or is not disrespectful. While it has been fundamental to the American concept of justice that one may not be both prosecutor and judge, the mere fact alone that the judge is the instigator of a contempt proceeding does not disqualify him from sitting in judgment on the alleged contemnor. ¹ However, the trend of the more recent cases has been to require disqualification even in those cases of direct contempt where the judge has waited until the conclusion of the trial to enter a judgment and imposition of sentence. ² 'While no change of venue lies in a criminal contempt case, * * *, yet, where conditions do not make it impracticable and delay may not injure public or private rights, a judge, who by...