State ex rel. Williams v. Haworth

• Decision Date: 18 June 1976
• Docket Number: No. CJ--AD--75--3,CJ--AD--75--3
• Citation: 551 P.2d 676
• Parties: STATE of Oklahoma ex rel. Ben T. WILLIAMS, Chief Justice, Supreme Court of Oklahoma, Appellee, v. William H. HAWORTH, Jr., Appellant.
• Court: Oklahoma Court on the Judiciary, Appellate Division

Page 676

551 P.2d 676

STATE of Oklahoma ex rel. Ben T. WILLIAMS, Chief Justice Supreme Court of Oklahoma, Appellee, v. William H. HAWORTH, Jr., Appellant.

No. CJ--AD--75--3.

Court on the Judiciary of Oklahoma, Appellate Division.

June 18, 1976.

Rehearing Denied July 8, 1976.

Jim F. Gassaway, ada, Robert J. Turner, Oklahoma City, prosecutors.

Rooney McInerney, Tulsa, for appellant.

SIMMS, Justice:

Appellant District Judge of Oklahoma's Fifteenth Judicial District, appeals the judgment of the Trial Division of the Court on the Judiciary, which judgment removed him from office and further disqualified Appellant from holding any public office of honor, trust, or profit in the State of Oklahoma. These proceedings are being conducted pursuant to Article 7--A, Oklahoma Constitution.

Two propositions are urged by Appellant as grounds for reversal of the verdict of the Trial Division, i.e., (1) the Trial Court abused its discretion in overruling the motion of the Appellant for a continuance because of principal counsel's post-operation physical condition, and that the denial of continuance of trial date was contrary to pre-trial agreement memorialized by order; (2) the decision and judgment of the Trial Division disqualifying Appellant to hold any public office of honor, trust, or profit under the State of Oklahoma forever constitutes serious punishment in excess of the jurisdiction and power of the Trial Tibunal.

We first consider the argument of abuse of discretion by the Trial Division in denial of the motion for continuance.

A summary of chronological events is necessary. On September 15, 1975, the Presiding Judge of the Trial Division entered an Order setting the case for trial on November 18, 1975. On September 25, 1975, Appellant was suspended from office following hearing. On October 3, 1975, principal counsel for Appellant underwent major surgery. A pre-trial was conducted on October 31, 1975, after which a written pre-trial order was signed by the Vice-Presiding Judge of the Trial Division. The pre-trial order, in pertinent part, reads:

'It was noted that counsel for the Respondent (Appellant) might not be physically recuperated for trial on November 18, but that he thought he would know for sure by the first week in November. In the event a request for continuance is deemed necessary, counsel for Petitioner (Appellee) advised they would concur in it, and join in a request that the trial be passed to January, 1976. All agreed their preference was for the trial to proceed as currently scheduled unless the interests of justice required delay, in which event January was a time preferred to December.' (Emphasis Added).

On November 10, Appellant filed a motion for continuance, attaching thereto the affidavit of his principal attorney and a certificate from the physician who was treating principal counsel during the post-operative period. In substance, the affidavit of counsel stated that he had been unable to adequately prepare for trial because of the operation and the resultant physical disability, and that he would not be able to spend a full day in attendance on the Court on November 18, the day of trial. The certificate from the physician stated that in the opinion of the doctor, principal counsel had not recovered to the point where it was safe for him to participate in a trial on the 18th.

On November 11, the Vice-Presiding Judge of the Trial Division, at the direction of the Presiding Judge, entered a written order denying the motion for continuance and ordering the trial to commence as initially scheduled for the 18th of November.

Immediately before commencement of trial, Appellant's principal counsel renewed his motion for continuance for the reasons stated in his previously denied written motion. Whereupon, the Presiding Judge announced:

'It is the decision of Judge Brown and myself . . . we have discussed this, and we were really worried about it, but we felt like we should start as scheduled. We had said--and I don't know if you heard this, Mr. McInerney, that we would intend to give special consideration to you or any requests during the trial, such as 'not as long sessions' and anything that would be helpful to you. But it was our decision that we should start the trial today, and I do have in mind to, again, overrule and deny your request for a continuance.'

As to how a majority of the authorized membership of the Trial Division would have viewed the renewed motion for continuance is not disclosed by the record before us. However, Appellant makes no complaint that the majority of the Trial Division, constituting a quorum for the purposes of exercising its jurisdiction, did not pass upon the motion for continuance.

We are at a loss to understand why, under the undisputed circumstances of the post-operative physical condition of Appellant's principal counsel, a continuance was not granted by the Trial Division. While the expeditious disposition of trials is a most commendable goal for any trial tribunal, a rush to judgment where potential jeopardy of health and life of principal counsel might be directly affected does not bear the endorsement of this Division. Particularly is this true where Appellant already stands suspended from office and is thereby proscribed from the performance of any judicial duties.

However, whether the Trial Division should have granted the continuance, or we, in the same or similar circumstances, may have granted Appellant's motion is not the legal criteria to be applied in determining if the denial of continuance, in this case, is sufficient to cause reversal of the judgment below.

The legal test in reviewing alleging error in denial of a motion for continuance is set forth in Jones v. Thompson, 55 Okl. 24, 154 P. 1139:

'From an examination of the voluminous record consisting of more than 700 pages, we are persuaded that the plaintiff's cause was fully and ably presented and her interests protected by the attorney who participated in the trial, and that her substantial rights were not prejudiced by the absence of her other distinguished counsel.'

'As a general rule the granting or refusing of a continuance is a matter of discretion with the trial court, and, unless it appears that such discretion was abused to the prejudice of the substantial rights of a litigant, the action of such court will not be disturbed on appeal.'

Jones, supra, cites with approval Pierce v. Engelkemeier, 10 Okl. 308, 61 P. 1047, a...