Van Sweringen v. Van Sweringen

• Decision Date: 04 March 1955
• Docket Number: Nos. A--745--53,A--2--54,s. A--745--53
• Parties: Charles F. VAN SWERINGEN, Plaintiff, v. Katherin T. VAN SWERINGEN, Defendant, and Milton G. Abarbanel, Intervener-Defendant. In the Matter of L. Edward KATZ, an Attorney and Defendant-Appellant herein. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 394

34 N.J.Super. 394

112 A.2d 584

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

Nos. A--745--53, A--2--54.

Superior Court of New Jersey Appellate Division.

Argued Feb. 14, 1955.

Decided March 4, 1955.

Albert S. Gross, Hackensack, argued the cause for the defendant-appellant.

Morris Malech, Asst. Prosecutor, Carlstadt, argued the cause for the State. (Guy W. Calissi, Bergen County Prosecutor, Hackensack).

Before Judges CLAPP, JAYNE, and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Appellant Katz, a member of the bar of this State, was convicted of criminal contempt in the Chancery Division of this court and sentenced to four months in the Bergen County Jail. He appeals, urging: (1) that the trial court lacked jurisdiction to hear the matter and that he was deprived of procedural due process, (2) the proof was not sufficient to establish his guilt beyond a reasonable doubt, and (3) the action of the court in deferring the sentence for 21 days after the determination of guilt invalidated the judgment.

Charles F. Van Sweringen sued his wife Katherin T. Van Sweringen, for divorce on the ground of adultery. Dr. Milton G. Abarbanel, a friend of the defendant Katz, was named a corespondent. He intervened in the action but through another attorney. At the conclusion of the trial of the matrimonial cause on April 21, 1954 decision was reserved. On May 25, 1954 an opinion was filed which declared that the charge had not been established.

A short time thereafter information came to the attention of the trial judge, apparently from the prosecutor's office of Bergen County, pointing to possible improper conduct on the part of Katz and the official reporter of the court with respect to the case. Immediate arrangements were made for the appearance before the court on June 30, 1954 of Dr. Abarbanel, his wife Zelma, Katz, and representatives of the prosecutor's office and of the Ethics and Grievance Committee of the Bergen County Bar Association.

The record indicates that on this day an informal investigation of the matter was conducted in the judge's chambers, and that statements of the various interested parties were taken stenographically. At the outset of the inquiry Katz was not present. Dr. Abarbanel was sworn and after answering some preliminary questions put by the court, refused to give further information under oath, saying that his attorney (who was not in attendance) had advised him not to discuss the matter in his absence. A telephone call was made to the attorney, following which the court, who obviously was anxious to get to the bottom of the matter without delay, allowed him to proceed as an unsworn witness. Thereafter no participant in this preliminary phase of the matter was sworn.

Dr. and Mrs. Abarbanel gave statements in question and answer form to the effect that Katz had told them that for $700, later increased to $1,500, a favorable decision could be obtained through influence possessed by a person close to the court. Their impression was that the person referred to by Katz was the court reporter who had taken the testimony in the divorce case.

Upon the completion of their statements they were dismissed. Katz was brought into chambers and told specifically by the court what the Abarbanels had said about his conduct. In addition, the court read similar portions of another statement of Dr. Abarbanel which was produced by the assistant prosecutor. Katz denied their assertions.

It appears also that the unsworn testimony given on this occasion by the Abarbanels was transcribed and that on July 6 Katz was permitted to examine it in the prosecutor's office.

On July 13 an order was issued by the court requiring Katz to show cause on July 27 why he should not be adjudged in criminal contempt. The order recited:

'It appearing to the satisfaction of the court, from statements made to it by Milton G. Abarbanel and Zelma Abarbanel, and L. Edward Katz, that while the above entitled proceeding was awaiting determination by this court, an effort is alleged to have been made by L. Edward Katz, Esquire, a member of the Bar of this State, who did not represent any of the parties to this proceeding, to influence Milton G. Abarbanel and Zelma Abarbanel to pay to the said L. Edward Katz the sum of $700, and which amount was later on increased to $1,500 for the purpose of obtaining a judgment favorable to the said Milton G. Abarbanel through influence alleged to be possessed by David Friedman, an official court reporter employed by the said court, all of which would tend to impugn the honor and dignity of the court, and seriously prejudice the due and orderly administration of justice; and it further appearing from the information supplied to the court that it is alleged that the said L. Edward Katz purported to have information concerning the proposed decision of this court in the premises, and the court having duly considered the premises; * * *.'

Thereafter followed the mandate to show cause.

Trial of this charge took place on July 27, 1954 and on August 9 Katz was found guilty. Sentence was 'deferred' until August 30, when the imprisonment already referred to was imposed in open court.

It is not disputed that the conduct charged against defendant constitutes criminal contempt. Such willful acts or conduct plainly obstruct or tend to obstruct the course of justice. In re Jeck, 26 N.J.Super. 514, 98 A.2d 319 (App.Div.1953), certification denied 13 N.J. 429, 100 A.2d 215 (1953); In re Caruba, 139 N.J.Eq. 404, 51 A.2d 446 (Ch.1947), affirmed 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. 69, 93 L.Ed. 396 (1948); In re Merrill, 88 N.J.Eq. 261, 102 A. 400 (Prerog.1917); Fox v. United States, 77 F.2d 210 (4 Cir., 1935), certiorari denied Ex parte Fox, 298 U.S. 642, 56 S.Ct. 935, 80 L.Ed. 1374 (1935). However, it is urged strenuously as the first ground for reversal that the proceedings were fatally defective and that Katz was deprived of due process because they were not initiated by sworn affidavits of sworn testimony, nor was the order to show cause issued on such proof.

A number of texts and authorities are cited for the proposition that when a contempt is not in the presence of the court, which is the situation here, a sufficient initiatory affidavit or sworn statement is a jurisdictional prerequisite to the prosecution of the offense. 17 C.J.S., Contempt, § 72; 12 Am.Jur., Contempt, § 68; Annotation, 118 A.L.R. 155, 156; Charles Cushman Co. v. Mackesy, 135 Me. 490, 200 A. 505, 118 A.L.R. 148 (Sup.Jud.Ct.1938); In re Wood, 82 Mich. 75, 45 N.W. 1113 (Sup.Ct.1890). We agree that when the drastic power of the court to deal with a constructive contempt is called into action, the better practice is to set the matter in motion by sworn statements in testimony or affidavit form. See Swanson v. Swanson, 8 N.J. 169, 84 A.2d 450 (1951); Nussbaum v. Hetzer, 1 N.J. 171, 62 A.2d 399 (1948); Rodberg v. Lamachinsky, 74 A. 44 (Ch.1909, not in official reports); Kocher, Chancery Practice, 463 (1913); Kocher & Trier, New Jersey Chancery Practice and Precedents, § 1658 (1924). But previous to the adoption of the new rules, it could not be said that a settled or uniform practice existed for such cases in New Jersey and that the jurisdiction of the court to act depended upon a rigid adherence thereto. Attorney-General (Hudson County Quarter Sessions) v. Verdon, 90 N.J.L. 494, 102 A. 66, 157 (E. & A.1917), reversing In re Verdon, 89 N.J.L. 16, 97 A. 783 (Sup.Ct.1916); In re Cheeseman, 49 N.J.L. 115, 6 A. 513 (Sup.Ct.1886). Contempt proceedings are Sui generis (Conley v. United States, 59 F.2d 929, 935 (8 Cir., 1932); 12 Am.Jur., Contempt, § 66, p. 433; Cyc. of Fed. Procedure, (3 ed. 1953), §§ 87.02, 87.29), and in the absence of a specific rule regulating the mode of initiating them no particular form of procedure is necessary. Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); Camarato v. United States, 111 F.2d 243 (3 Cir., 1940), certiorari denied 311 U.S. 651, 61 S.Ct. 16, 85 L.Ed. 416 (1940); Conley v. United States, supra; Annotation, 93 L.Ed. 578; 12 Am.Jur., Contempt, § 66, note 12.5 and supplement to p. 434 (pocket part).

This does not mean that no procedural essentials existed in contempt cases prior to those now prescribed by R.R. 4:87--2. It has always been necessary to observe the inexorable demands of due process. Discussing this question the United States Supreme Court, in Cooke v. United States, supra, said:

'* * * The exact form of the procedure in the prosecution of such contempts is not important. The court in Randall v. Brigham, 7 Wall. 523, 540 (19 L.Ed. 285, (293)), in speaking of what was necessary in proceedings against an attorney at law for malpractice, said:

"All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.'

'The court in (Ex parte) Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150, applied this rule to proceedings for contempt.

'Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. * * *' 267 U.S. at page 536, 45 S.Ct. at page 395, 69 L.Ed. at page 774.

The annotation in 93 L.Ed. 578, 580, supra, sets out the rule in this fashion:

'While due process does not require that the...