Van Sweringen v. Van Sweringen

• Decision Date: 05 November 1956
• Docket Number: No. A--8,A--8
• Citation: 126 A.2d 334,22 N.J. 440,64 A.L.R.2d 593
• Parties: , 64 A.L.R.2d 593 Charles F. VAN SWERINGEN, Plaintiff, v. Katherin T. VAN SWERINGEN, Defendant, and Milton G. Abarbanel, Intervenor-Defendant. In the Matter of L. Edward KATZ, an Attorney and Defendant-Appellant herein.
• Court: New Jersey Supreme Court

Page 440

22 N.J. 440

126 A.2d 334, 64 A.L.R.2d 593

Charles F. VAN SWERINGEN, Plaintiff, v. Katherin T. VAN SWERINGEN, Defendant and Milton G. Abarbanel, Intervenor-Defendant In the Matter of L. Edward KATZ, an Attorney and Defendant-Appellant herein.

No. A--8.

Supreme Court of New Jersey.

Argued Oct. 1, 1956.

Decided Nov. 5, 1956.

Morton Stavis, Newark, for defendant-appellant (John O. Bigelow, Newark, attorney).

William J. Arnold, Asst. Pros., Hackensack, argued the cause for the respondent State (Guy W. Calissi, County Pros. of Bergen County, Hackensack, Attorney; William C. Brudnick, Sp. Asst. Pros., River Edge, on the brief).

The opinion of the court was delivered by

BURLING, J.

This matter concerns the conviction of the defendant, L. Edward Katz, a New Jersey attorney for criminal contempt. He was found guilty of attempting to obtain money from Milton and Zelma Abarbanel on the representation of being able to procure a favorable judgment in a divorce proceeding wherein Milton Abarbanel was named as a co-respondent. Katz was found guilty and sentenced to four months' imprisonment. The Superior Court, Appellate Division, affirmed, Van Sweringen v. Van Sweringen, 34 N.J.Super. 394, 112 A.2d 584 (1955), and Katz was committed under a judgment entered on March 23, 1955. A petition for certification was filed with this court and denied, In re Katz, 19 N.J. 328, 116 A.2d 829 (1955), but was subsequently reconsidered and granted, 21 N.J. 337, 122 A.2d 197 (1956).

Only a brief summation of the Alleged circumstances from which the conviction arose will be set forth. Abarbanel, a physician, was named as co-respondent in a divorce suit initiated by a husband against his wife on grounds of adultery. Undoubtedly concerned about his professional reputation, he initially contacted his friend Katz (who did not represent Abarbanel in the divorce action) in an endeavor to keep his name out of the newspapers. During the course of the action word came to Abarbanel through a fellow physician, Dr Reich, that his case was faring badly. In the very words of the undiscriminating court reporter Friedman who had originally imparted the opinion:

'Q. Mr. Friedman, would you give us the conversation as you recall it to the best of your ability at this time? A. Upon a professional visit to Doctor Reich's office, Doctor Reich, in the process of examination said to me, 'Dave, what's going on up in your Court Room with this Doctor Abarbanel?' I then said to Doctor Reich he was named as a co-respondent, the schmo in a divorce action, and from the testimony that has been taken, it didn't look too good for the Doctor, that being my opinion.'

Alarmed, Abarbanel asked Katz to endeavor to obtain some information on the case. Subsequently Katz informed the doctor by telephone that he had important information and that evening called at Abarbanel's office.

It was at this time that Katz allegedly informed Abarbanel that a decision favorable to him could be purchased for $700, later raised to $1,500. The offer was declined. A decision was handed down which absolved the doctor from the charge against him.

Information of the episode subsequently reached Judge Hegarty who had tried the divorce action. He immediately called the Abarbanels, Katz, and representatives of the Bergen County Prosecutor's Office and the Ethics and Grievance Committee of the Bergen County Bar before him. Counsel for Abarbanel (other than his attorney in the divorce matter) was apparently unable to be present but had advised his client to tell the truth without submitting to an oath. It was upon this information obtained from the Abarbanels that an order to show cause why he should not be held in contempt was subsequently issued to Katz. The latter, however, was made aware of the Abarbanel statements immediately after they were given.

The record is not clear as to who was to receive the money other than Katz if the offer was accepted. Abarbanel said Katz refused to mention any names and would neither confirm nor deny suggestions made by Abarbanel. If the intimation was that Friedman, the court reporter, could change the decision, the insinuation would necessarily involve the complicity of Judge Hegarty himself. In any event, the allegations are of the most serious import.

The trial was conducted before Judge Hegarty and Katz was found guilty. Additional evidence was received by the Appellate Division on appeal which sought to attribute a psychotic personality to Abarbanel. That court, as previously noted, affirmed.

A number of errors are raised but in view of the disposition of the case only three issues demand consideration:

1--Is a sworn affidavit supporting an order to show cause why punishment should not be imposed upon the alleged contemnor a jurisdictional requisite?

2--Assuming the alleged facts to be true, do they establish a criminal contempt?

3--Should the trial judge have disqualified himself from hearing the cause?

The Appellate Division afforded the first question extensive consideration, Van Sweringen v. Van Sweringen, supra, 34 N.J.Super., at pages 399 to 403, 112 A.2d at pages 587 to 589, and inasmuch as we are in accord with the view there expressed there is no necessity to restate it at length. There has not been a uniform practice in this State nor the country at large in requiring a sworn statement reciting the facts upon which the alleged contempt is based. In re Cheeseman, 49 N.J.L. 115, 142--143, 6 A. 513 (Sup.Ct.1886); and for the most recent collection of decisional authority, Annotation, 'Constructive Contempt--Affidavit,' 41 A.L.R.2d 1263 et seq. The rules of court relevant to criminal contempt do not express the requirement, R.R. 3:8--1 to 3, 4:87--1 to 3; and, as stated below, emphasis today is placed upon notice and a fair hearing. Katz was fully apprised of the charge against him and was afforded ample opportunity to prepare his defense. He was not denied a fair hearing through the absence of a sworn statement. There is much to commend the necessity of an oath in instituting contempt proceedings of other than a summary nature (e.g., to preclude frivolous charges) but this is at most a matter which suggests amendment of court rule, not a ground of reversal in the instant situation.

The order to show cause recited that statements had been given the court that Katz sought to influence the Abarbanels into paying him an amount of money for the purpose of obtaining a favorable judgment in the divorce action 'through influence alleged to be possessed by David Friedman, an official court reporter employed by the said court.' Defendant Katz argues that were the allegation proven it would fall short of a contempt of court because it fails to charge a direct contact by Katz with the court reporter or the court itself. We are told that nothing less than an open and direct interference with the course of the judicial process is essential to constitute contempt.

The line of cases which concern a publicized statement which reflects criticism of a particular court or judicial officer because of a judgment rendered in a particular case, e.g., In re Bozorth, 38 N.J.Super. 184, 118 A.2d 430 (Ch.Div.1955), are not relevant. The intimation here is that a favorable decision could be purchased through intercession with the court reporter or the judge himself.

The guidepost for decision is In re Caruba, 139 N.J.Eq. 404, 51 A.2d 446 (Ch.1947) affirmed per curiam 140 N.J.Eq. 563, 55 A.2d 289 (E. & A.1947), petition denied 142 N.J.Eq. 358, 61 A.2d 290 (Ch.1948), certiorari denied 335 U.S. 846, 69 S.Ct. 93 L.Ed. 396 (1948), where it was said:

'None of the New Jersey cases cited is authority for the proposition advanced. They hold uniformly that any act or conduct which obstructs or Tends to obstruct the course of justice constitutes a contempt of court.' 139 N.J.Eq. at page 411, 51 A.2d at page 452.

In In re Merrill, 88 N.J.Eq. 261, 102 A. 400 (Prerog.1917), an offer of bribe addressed to the Ordinary was held to be a contempt. Similarly an attempt to purchase a juror's vote although unknown to the juror, Brewer v. State, 176 Miss. 803, 170 So. 540 (Sup.Ct.1936), and an invitation to the defendant's father to bargain for a favorable decision although it appeared that the contemnor's only purpose was to defraud the father, Little v. State, 90 Ind. 338, 46 Am.Rep. 224 (Sup.Ct.1883), were held to be contempts. 'The reasonable tendency of the act done is the proper criterion.' Sinclair v. United States, 279 U.S. 749, 764, 49 S.Ct. 471, 476, 73 L.Ed. 938, 946 (1929). Here the Abarbanels were allegedly led to believe that a decision could be reached oblivious of the merits of the case, an impression which would be made all the more indelible upon their minds because it allegedly came from a member of the bar and an officer of this court.

In Froelich v. United States, 33 F.2d 660 (8th Cir., 1929), the contemnor had addressed an anonymous letter to an attorney participating in a criminal proceeding which cast a grave suspicion upon the impartiality of the court and its officers. In holding that the letter was not a privileged communication and constituted a contempt, the court stated:

'The tendency of the letter was to create in the mind of the recipient, an attorney in a case then pending, a suspicion as to the integrity of the judge, a possible belief in that attorney's mind that the result of the trial would be influenced by something other than the merits. He would be led to suspect, not only the judge, but the jury and the officers of the court. From these suspicions would arise such an atmosphere of doubt and misgiving as to the fairness and judicial nature of the proceedings as in a most effective, although perhaps intangible way, would prevent a rightly conducted trial. How apparent this result would be, if we suppose that the minds, not of one only, but of all of the participants in a trial--attorneys, witnesses, interested parties, cou...