United States v. Green

• Decision Date: 23 March 1898
• Parties: UNITED STATES ex rel. HALLETT v. GREEN.
• Court: U.S. District Court — District of Colorado

85 F. 857

UNITED STATES ex rel. HALLETT v. GREEN.

United States Circuit Court, D. Colorado.

March 23, 1898

Henry V. Johnson and Greeley W. Whitford, U.S. Atty., for complainant.

Thomas A. Green and J. M. Washburn, for defendant.

CARLAND District Judge.

This is a proceeding to disbar the defendant, Thomas A. Green, from practicing as an attorney at law or solicitor in chancery in the circuit court of the United States for the district of Colorado. The information filed by the relator charges that the said defendant, Thomas A. Green, did, on the 5th day of February, A.D. 1896, file in this court an amended bill of complaint in a case wherein Thomas D. Kelley et al. were complainants and Charles Boettcher et al. were defendants, in which said amended bill there was scandalous and contemptuous matter. The matter set forth in the formation as being scandalous and contemptuous in said amended bill of complaint will be found in the case of Kelley v. Boettcher, 27 C.C.A. 177, 82 F. 795, and in Kelley v. Boettcher, 85 F. 55, and no useful purpose can be served by again repeating the same in this opinion. The information also charges that the defendant, on the 31st day of July, 1897 filed two certain briefs in two certain causes pending in the United States circuit court of appeals for the Eighth circuit, numbered, respectively, on the docket of said court '870' and '871,' and entitled, respectively 'Thomas D. Kelley et al. v. Charles Boettcher et al.,' 'Michael Curran et al. vs. John F. Campion et al.,' and on August 11, 1897, filed a brief in a certain other cause in said circuit court of appeals, numbered '872,' and entitled 'James H. Donovan et al. vs John F. Campion et al.,' in which said briefs said Thomas A. Green inserted certain scandalous and contemptuous matter, which is set out in full in said information. The language set out in the information as having been inserted in the briefs filed in the court of appeals for the Eighth judicial circuit is referred to and characterized in Kelly v. Boettcher, 27 C.C.A. 177, 82 F. 796. For the insertion of the scandalous and contemptuous matter in the amended bill filed in this court, this court struck the bill from the files, and in its action in so doing was fully sustained by the court of appeals in Kelley v. Boettcher, 85 F. 55. On a motion to strike the briefs of the defendant, Thomas A. Green, from the record in the court of appeals in each of the three cases hereinbefore mentioned, that court, on September 15, 1897, made an order whereby said court struck said briefs from the files of said court, and by the same order struck from the record in each of said causes the name of the said defendant, Thomas A. Green, and ordered that said Thomas A. Green be no longer heard orally or by brief in said causes.

This proceeding was commenced October 28, 1897. The defendant, by his answer, in this proceeding, admits that he inserted in the amended bill of complaint filed in this court the matter set forth in the information filed herein, and also admits that he used the language set forth in the information in the briefs that he filed in the three several causes pending in the court of appeals. No evidence was taken on the hearing of this proceeding, except that copies of briefs filed in the court of appeals, and copies of the record of the cases wherein said briefs were filed, were introduced as exhibits to the several pleadings. The defendant, in order to defeat this proceeding, insists that he cannot be disbarred by this court for the matters set forth in the information, for the reasons: First. That the matters set forth in said information constitute contempts committed in the courts where the amended bill was filed, and where the briefs were filed, and that, under the laws of the United States, he cannot be disbarred for the commission of a contempt; that the only punishment that can be imposed for a contempt is either a fine or imprisonment. Second. That, so far as the matter contained in the briefs which were filed in the court of appeals is concerned, it constituted a contempt committed in that court, and for which no other court has any jurisdiction or authority to impose a punishment. Third. That, if this court has jurisdiction and authority to consider said matters in a proceeding to disbar the defendant, then that the matter set forth in the amended bill filed in this court does not constitute such an offense as would warrant any court in disbarring the defendant; and that, as to the matters contained in the briefs filed in the circuit court of appeals, defendant was clearly justifiable and excusable in using said language, by reason of the record in the cases in which said briefs were filed.

Before passing to consider the points raised by the defendant, it may be well to say that the court of appeals, in Kelley v. Boettcher, 27 C.C.A. 177, 82 F. 794, disposed of the question as to whether the matter contained in the briefs filed in that court was legitimate criticism of the rulings made by the lower court in the cases in which said briefs were filed, and, in disposing of said question, used the following language:

'This brief contains 267 pages. Instead of being confined to a discussion of the questions arising on the record, and proper for consideration on this appeal, it contains page after page of denunciation and abuse of the two judges who decided these demurrers. It goes far beyond criticism or denunciation of the decisions. It is personal in its attacks upon the intelligence, integrity, and character of the judges. There are in its allegations of matter of a personal nature, in no manner connected with or suggested by anything in the record, and insinuations and charges against those judges in language which, speaking mildly, is not common among gentlemen. That this is an offense against the proprieties of professional life is not open to question. The matter thus poured into the brief is irrelevant and grossly scandalous. No self-respecting court can, for a moment, think of tolerating conduct.'

While this court can add nothing to the force of the language used by Justice Brewer above quoted, it may be said that it has carefully examined the language used in the briefs filed in the court of appeals, and also the entire record of the cases in which the briefs were filed, with a determination only to do justice; and from such an examination this court cannot find that the language was pertinent and material to the discussion of the questions presented by the record, in any view in which they may be considered. It also appears from such examination that there is no evidence to sustain the truth of the assertions made, and that they were made without probable cause. This being so, it follows that the libelous language was also malicious, and in no sense privileged or justifiable.

The filing of the amended bill in this court, containing the scandalous matter set forth in the information, was a contempt committed in this court, for which respondent could have been fined or imprisoned in addition to striking the bill from the files. It was the misbehavior of an officer of this court in an official transaction, and clearly a contempt, within the provisions of section 725 of the Revised Statutes of the United States, which reads as follows:

'The said courts shall have power to impose and administer all necessary oaths and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: provided that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice; the misbehavior of any of the officers of said courts in their official transactions, and

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