Statter v. United States

• Decision Date: 21 August 1933
• Docket Number: No. 6899.,6899.
• Citation: 66 F.2d 819
• Parties: STATTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

66 F.2d 819 (1933)

STATTER v. UNITED STATES.

No. 6899.

Circuit Court of Appeals, Ninth Circuit.

August 21, 1933.

Frank H. Foster, of Juneau, Alaska, and Harold M. Sawyer, Alfred T. Cluff, and D. W. Evans, all of San Francisco, Cal., for appellant.

Howard D. Stabler, U. S. Atty., of Juneau, Alaska.

Before WILBUR and SAWTELLE, Circuit Judges, and NORCROSS, District Judge.

SAWTELLE, Circuit Judge.

On June 6, 1932, Justin W. Harding, Judge of the United States District Court for the District of Alaska, First Division, sent the following letter to the United States Marshal for that division of the district regarding expenditures from "Fund C," for incidental expenses of the court:

"Dear Sir: With reference to expenditures of all kinds made from Fund `C.'

"Hereafter, all expenditures of all kinds and in any amounts will have to be authorized and this includes emergency expenditures for the Gas Boat `Helmar', whether in Juneau or outside of Juneau. Gas and oil can be obtained for the Gas Boat `Helmar' by obtaining previous authorization for gas in the amount of 300 gallons and oil in the amount of 20 gallons. When this is about exhausted new authority can be obtained.

"It is the intent and purpose of this letter that no expenditures from Fund `C' will be allowed unless previous authority has been obtained.

"Requests for authorization of expenditures will be transmitted thru the Clerk's office.

This letter supersedes all previous communications on this subject and cancels all communications inconsistent herewith."

On the following day, appellant, who was at that time Chief Deputy United States Marshal for the division, addressed to the judge a letter replying to the instructions set forth above. That letter contained disrespectful language, and fell short of the deference and decorum to be shown by an officer of the court when addressing the judge thereof. Because of the improper tone of the letter, as well as because, under our theory of the case, its text is immaterial, we are not dignifying it by setting it forth herein.

On June 28, 1932, the United States Attorney for the division filed an affidavit for contempt against the appellant, setting forth the texts of the letters written by the judge and by the appellant; reciting that the judge is charged and authorized by law (Act of March 3, 1909, 35 Stat. 840, Comp. Laws Alaska § 367 48 USCA § 106) with the duty "of allowing and directing the application of certain funds, designated by the Attorney General of the United States for accounting purposes as Fund C, to the incidental expenses of" the court "on written orders, duly made and signed by" the judge; and charging that the appellant was in contempt of court under subsections 3 and 9 of section 1441 of the Compiled Laws of Alaska.

The affidavit for contempt also alleged that the appellant displayed the letter written by him to the judge, "to various persons, in particular to George W. Folts, Assistant United States Attorney, and to J. W. Leivers, deputy clerk of said court, with the malicious intent and purpose on the part of said Joseph F. Statter of bringing the said judge of said court and the said court, into ridicule and disrepute."

On July 6, 1932, the appellant personally appeared with his attorney before the District Court, in obedience to an order to show cause why he should not be adjudged in contempt of court as charged in the affidavit.

The appellant made an oral statement, moved to quash the affidavit for contempt and the order, filed a written answer, and made demand for a trial by jury.

In his answer, the appellant admitted "making of the publication or letter set forth in said affidavit," but denied "that the statements therein contained" constituted a cause of contempt. He further denied "that he did wilfully and contemptuously misbehave in his office as chief deputy United States Marshal towards the Judge of said court, and towards said court," and denied "that he did wilfully and unlawfully and contemptuously interfere with the proceedings of said court, in the discharge of said court's duty and functions of allowing and directing the application of Fund C."

The appellant's answer closed with the following paragraph: "If the language used by the defendant in said letter, set forth in the affidavit for contempt, was such as to seem intemperate or discourteous to the Judge of this court, defendant makes public apology for any discourtesy to the Judge in his private capacity, and disavows any intent to interfere in any way with the administration of justice."

The court overruled the motion to quash, denied the application for a jury trial, adjudged the appellant in contempt, and imposed a fine of $100 or a sentence of one day in jail for each $2 of the fine.

From the judgment the present appeal was taken, a supersedeas bond being allowed and furnished.

The duties and powers of the District Judge with reference to allowing or approving expenditures by the clerk from moneys derived from fees, for incidental expenses, are set forth in section 367 of the Compiled Laws of Alaska, 1913 (48 USCA §§ 106 and 107): "* * * He each of the four clerks of the court shall also collect and receive all moneys arising from the fees of his office, from licenses, fines, forfeitures, judgments, or on any other account authorized by law to be paid to or collected by him, and shall apply the same, except the money derived from licenses, to the incidental expenses of the proper division of the district court and the allowance thereof as directed in written orders, duly made and signed by the judge, and shall account for the same in detail, and for any balances on account thereof, under oath, quarterly, or more frequently if required, to the court, the Attorney General, and the Secretary of the Treasury. * * * And after all payments ordered by the judge shall have been made, any balances remaining in the hands of the clerk shall be by him deposited to the credit of the United States. * * *"

In paragraph 1303 of the Attorney General's Instructions to United States Judges, Marshals, Attorneys, Clerks, etc., for the District of Alaska, there is to be found an interpretation of the foregoing statutory provision, in so far as it relates to fund C: "Public moneys are, therefore, for the purpose of accounting divided into four classes according to their several purposes and general dispositions, and are distinguished by the following captions, viz.: * * * (c) Funds other than license moneys, available for court expenses."

Subsections 3 and 9 of section 1441 of the Compiled Laws of Alaska, upon which the affidavit for contempt is based, are as follows:

"Sec. 1441. The following acts or omissions, in respect to a court of justice or proceedings therein are deemed to be contempts of the authority of the court:

"Third. Misbehavior in office or other willful neglect or violation of duty by an attorney, clerk, marshal, or other person appointed or selected to perform a judicial or ministerial service.

"Ninth. Any other unlawful interference with the process or proceedings of the court."

It is elementary that criticism of a judge's ministerial acts does not give rise to an action for contempt. In 13 Corpus Juris 38, § 46, the rule is thus stated: "Relating to Ministerial Acts of Judge. Libelous publications concerning the conduct of a judge in the performance of a ministerial duty do not constitute contempt."

The appellant earnestly contends that "the judge acted in a purely ministerial capacity, and that no valid action for contempt could lie for criticisms of his actions in that regard." The appellant also argues that section 367, supra, "does not call for the exercise of any judicial function by the various judges of the Territory; they act as disbursing officers with regard to the miscellaneous expenses of the court, and as the statute further provides, the report of their expenditures is sent to the Treasurer of the United States for audit."

According to the weight of authority, the legal definition of a ministerial act is an act that is mandatory upon an officer under given circumstances, and calls for the exercise of no judgment or discretion on the part of such officer.

In any event, that is the definition which has been adopted by the Supreme Court of the United States, from the days of Chief Justice Taney to the present time.

See, Kendall v. United States, 12 Pet. (37 U. S.) 522, 613, 9 L. Ed. 1181; State of Mississippi v. Johnson, 4 Wall. (71 U. S.) 475, 498, 499, 18 L. Ed. 437; Ness v. Fisher, 223 U. S. 683, 692, 32 S. Ct. 356, 56 L. Ed. 610.

It is unnecessary, however, to labor this point further; for another defense urged by the appellant is, in our opinion, determinative of the case.

The appellant argues that the criticism of the District Judge in the instant case did not "relate to any pending case, or matter before the court."

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