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LEVINE CONTEMPT CASE (02/14/53)

February 14, 1953

LEVINE CONTEMPT CASE


Appeal, No. 176, March T., 1952, from order of Superior Court, April T., 1952, No. 67, affirming order and sentence of Court of Quarter Sessions of Lawrence County, March Sessions, 1952, No. 4, in re Citation of Sherman K. Levine for Contempt of Court. Decree affirmed to extent stated; reargument refused March 24, 1953.

COUNSEL

John S. Powers, with him Frank O. Moretti and Michael A. Barletta, for appellant.

J. Glenn Berry, with him Cobau & Berry, for appellee.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 372 Pa. Page 614]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Contempt proceedings against a member of the bar are fortunately rare, but they cannot well be avoided

[ 372 Pa. Page 615]

    when a judge is reasonably of the belief that conduct of the offender has been such as to impair the authority and dignity of the court.

In Lawrence County the courts consist of HON. W. WALTER BRAHAM, the President Judge, and HON. JOHN G. LAMOREE, the Additional Law Judge. The District Attorney is Sherman K. Levine and he has one Assistant. On Friday, November 30, 1951 Judge BRAHAM was presiding in one of the two courtrooms in a dispute involving the opening of some ballot boxes, following which there were two "non-support" cases to be heard; Judge LAMOREE was presiding in the other courtroom, taking guilty pleas and sentencing defendants. Both the District Attorney and his Assistant were in the latter room helping to dispose of the business there being transacted. It appears that it had been more or less customary, in order to expedite the proceedings, for both the District Attorney and his Assistant to officiate in the same room when pleas were being taken and sentences imposed. When Judge BRAHAM was ready to take up the non-support cases he sent a messenger to Judge LAMOREE'S room to tell the District Attorney that his attendance was required in Judge BRAHAM'S court. The District Attorney returned word that he and his Assistant were busy in Judge LAMOREE'S court and they would come over to Judge BRAHAM'S room as soon as they could. Shortly thereafter Judge BRAHAM sent a similar message to which the District Attorney made the same reply; a third request met with the same response. Finally, some two hours after court had opened, the Assistant came into Judge BRAHAM'S room, followed shortly thereafter by the District Attorney himself. Judge BRAHAM thereupon asked the latter why he had not provided a district attorney for his room, whereupon, according to a finding of Judge BRAHAM, "He then broke into a rude

[ 372 Pa. Page 616]

    and insolent denunciation of the Court saying 'that's the way with this court, always mixing things up; everything is set on one day'". The Judge then said: "The people of this county are paying for two district attorneys. They are entitled to have one in each courtroom." To this the District Attorney replied: "The people of this county are getting their money's worth from the district attorney's office." Judge BRAHAM states that people in the courtroom could not help knowing that the District Attorney had ignored his requests for attendance; also that the interchange of remarks above set forth were audible to the many persons there present.

On Monday, December 3, Judge BRAHAM, not having received any explanation or apology from the District Attorney, called him into his chambers and there said to him that he would give him this alternative, -- either to appear in court for a public rebuke or be cited for contempt; at the same time the Judge expressed friendly feelings toward the District Attorney and his great regret at being obliged to take such action, but stated that he was charged with preserving the dignity and authority of the Lawrence County courts of which he was the President Judge. The next day the District Attorney wrote him a letter in which he said that his conduct had not been such as to require any explanation or apology, and that he could not, in justice to himself, submit to any public reproof; the letter proceeded: "Your statements regarding the friendly relations between us are insincere and do not impress me. I believe the fact that your conduct in certain matters is now under investigation by my office had no little to do in motivating your present action."

On December 4 the court issued a rule upon the District Attorney to show cause why he should not be adjudged guilty of contempt of court, to which the District

[ 372 Pa. Page 617]

Attorney filed an answer; a hearing was held on December 17 at which time witnesses were called both by Judge BRAHAM and by the District Attorney. Counsel for the latter requested that a judge other than Judge BRAHAM be assigned to hear the case, on the ground that the issue was between him and the District Attorney and involved personal feelings, to which Judge BRAHAM properly replied that the issue was between the Court of Quarter Sessions of the County and the District Attorney, and that there was no personal animosity between himself and the latter; accordingly he refused to disqualify himself. Just before the hearing was had the District Attorney sent to Judge BRAHAM a letter in which he said that the statement in his letter of December 4 about an investigation being conducted by his office was not intended to be in the nature of a "threat" but was merely an answer to the Judge's professed friendship for him and his office which he felt to be insincere.

On January 23, 1952 Judge BRAHAM filed an adjudication with findings of fact, a discussion, and conclusions of law. He found that the defendant had been guilty of three acts of contempt; (1) his "insulting and contemptuous denunciation of the President Judge in open court on November 30 for fixing cases contrary to the wishes of the District Attorney;" (2) his "failure, upon reasonable request, to provide the assistance of a district attorney for the court in Court Room Number 1 on the same day;" (3) "the writing of the insulting letter of December 4". Sentence was imposed upon the first two of these acts, but only such as "would be appropriate for the first of these offenses alone." The court's decree was that "the defendant, Sherman K. Levine is found guilty of contempt of court on November 30, 1951 and is directed to pay the sum of one hundred dollars for the use of the County and the costs."

[ 372 Pa. Page 618]

From that decree and sentence the District Attorney appealed to the Superior Court which, being divided on the question of the proper disposition of the appeal and there being no majority of the court concurring on any issue which would result in a final decision, affirmed the decree and sentence. We, thereupon granted the District Attorney's petition for an appeal to this court.

Generally speaking, one is guilty of contempt when his conduct tends to bring the authority and administration of the law into disrespect. The right to punish for such contempt is inherent in all courts. When it is committed in its presence the court may, in punishing the offender, act of its own knowledge without further process, proof, or examination. Such power, "although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions": Ex Parte Terry, 128 U.S. 289, 313. It is a power "essential to preserve their authority and to prevent the administration of justice from falling into disrepute": Fisher v. Pace, 336 U.S. 155, 159. The Act of June 16, 1836, P.L. 784, ยง 23, recognizes "the power of the several courts of this commonwealth... to inflict summary punishments for contempts of court" in cases, inter alia, of "the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice."

Judge BRAHAM was justified in refusing to disqualify himself and to assign another judge for the hearing. It is true that he might have done this, and there are cases in which such a course has been recommended by our appellate courts: Snyder's Case, 301 Pa. 276, 289, 152 A. 33, 37; Commonwealth v. Sheasley, 102 Pa. Superior Ct. 384, 391, 157 A. 27, 29, 30. See also Cooke v. United States, 267 U.S. 517, 539. In each

[ 372 Pa. Page 619]

    of those instances, however, there had been acrimonious feelings between the judge and the offender, whereas here there is nothing to indicate the existence, prior to this occurrence, of any strained relations. That a judge is not disqualified in contempt proceedings by the fact that the contempt was committed against himself is in accord with the almost unbroken current of authorities cited in 52 A.L.R. 1291; see also Blodgett v. Superior Court of Santa Barbara County, 210 Cal. 1, 290 P. 293, where the subject is discussed at some length. Nor is there any merit in appellant's contention that, while Judge BRAHAM might have taken immediate action when the contempt occurred on November 30, he lost the right to proceed by delaying for three days to issue the rule to show cause, in conducting the hearing two weeks later, and in not entering a final adjudication and decree until January 23, 1952. It is always within the discretion of the court whether to take action at once, based upon the judge's own knowledge of the facts, or to postpone action in order to take testimony and give the offender the opportunity to make a defense: Ex Parte Terry, 128 U.S. 289, 311, 313; United States v. Sacher, 182 F. 2d 416; Sacher v. United States, 343 U.S. 1. In the latter case there was a delay in the finding of contempt and the imposition of punishment for a period of more than eight months after the first act of misconduct had taken place and ten days after the most recent. But the Supreme Court of the United States pointed out (pp. 9, 10) that the term " summary " does not relate to the timing of the action but to a procedure which dispenses with the formality and delay that would result from the issuance of process and the holding of hearings, and that "If the conduct of these lawyers warranted immediate summary punishment... no possible prejudice to them can result from delaying it until the end

[ 372 Pa. Page 620]

    of the trial if the circumstances permit such delay." In the present instance Judge BRAHAM was well justified, and indeed acted wisely, in choosing to afford a hearing to the District Attorney instead of acting impulsively when his natural feelings of indignation might have overcome the requisite judicial poise and calm.

Passing these general observations, we come now to consider the merits of Judge BRAHAM'S conclusions based upon his findings of fact, having in mind what was said by Judge KELLER In re Adjudication of Contempt of Myers and Brei, 83 Pa. Superior Ct. 383, 387: "... as a general rule, -- as in cases where the contempt arises from some misconduct committed in the presence of the court,... the appellate court will not inquire further than to ascertain whether the record shows such misconduct..., and its judgment on the facts is generally conclusive: ... The question whether the alleged offender really committed the act charged will be conclusively determined by the order or judgment of the court,...." See also Commonwealth v. Newton, 1 Grant 453, 454. Of course, as Judge KELLER further said: "... this rule is... subject to the qualification that the conduct charged as constituting the contempt must be such that some degree of delinquency or misbehavior can be predicated of it; for if the act be plainly indifferent or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjudged to be so."

We agree with Judge BRAHAM that the District Attorney was guilty of a public insult to the court in making the statement: "That's the way with this court, always mixing things up; everything is set for one day."*fn1

[ 372 Pa. Page 621]

This was equivalent to a public assertion that the court was incompetent in the arrangement of its business, -- not merely on that particular occasion but "always". Certainly a remark of that kind was calculated to belittle the court in the eyes of the persons in the courtroom, and thereby to impair its dignity and authority. It must be remembered that those present were undoubtedly aware of the fact that the court had sent for the District Attorney and was awaiting his attendance. When he entered, instead of courteously explaining his failure to appear sooner, he openly and offensively belabored the court. There is pertinent here what was said in Fisher v. Pace, 336 U.S. 155, 161: "In a case of this type the transcript of the record cannot convey to us the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing, and attitude of the petitioner. Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of." Even after he had had time to think the matter over more calmly the District Attorney added to his original offense by contumaciously refusing to apologize or in any way atone for his behavior. It need scarcely be said that it is the duty of a lawyer to maintain toward the courts a respectful and courteous attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of

[ 372 Pa. Page 622]

    its supreme importance: Canon 1 of the American Bar Association Code of Professional Ethics. As Mr. Justice MITCHELL said in Scouten's Appeal, 186 Pa. 270, 279, 40 A. 481: "... discipline and self-restraint [on the part of counsel] are as necessary to the orderly administration of justice as they are to the effectiveness of an army." It is a vital duty of every attorney, as an officer of the court, to uphold its honor and integrity.

We are not in accord with the President Judge's conclusion that the District Attorney was in contempt merely because both he and his Assistant were engaged in the performance of their duties in the one courtroom instead of providing a district attorney for the work also in the other, there being nothing in the record to indicate that he had been previously instructed in regard to the arrangement of the court's business for that particular day or that he deliberately intended to refuse assistance to the work in Judge BRAHAM'S court. It is true, as Judge BRAHAM states, that it is the function, not of the District Attorney, but of the court to arrange its business, -- a duty which devolves upon the President Judge, who, of course, should always consult his colleagues for that purpose and have regard for their own plans and suggestions. Here it does not appear that the District Attorney intended to deny such power to the President Judge, or that, during the two years he had been in office, there had ever been any occasion to rebuke him in that respect or to admonish him as to the limits of his authority. Concerning his failure to come promptly, or to send his Assistant, into Judge BRAHAM'S room when he was summoned, regard must be had to the fact that there were many cases then being disposed of in Judge LAMOREE'S room in which lawyers, defendants, witnesses, and other persons were involved and in which he and his Assistant

[ 372 Pa. Page 623]

    were busily engaged, thus creating for him somewhat of an emergency situation. Undoubtedly it would have been better judgment on his part to have explained to Judge LAMOREE that he was being called by Judge BRAHAM*fn2 and to request, therefore, that he be allowed to leave; it would also have been more mannerly on his part to have visited Judge BRAHAM personally rather than return curt replies by the messengers, to have expressed his regrets to him, and to have asked him for instructions under the circumstances. However, his failure to do these things would seem rather to indicate a lack of tact than a deliberate intent on his part to flout the authority of the President Judge. On the whole, therefore, we absolve the District Attorney from a judgment of contempt on the basis of this particular charge, and we note incidentally that Judge BRAHAM did not allow it to weigh in the imposition of the sentence.

As far as the District Attorney's letter of December 4 is concerned, disrespectful and ill-advised though it was, the court did not take it into consideration in imposing sentence. It was certainly highly insulting to express to Judge BRAHAM a "belief" that his action in proceeding against the District Attorney was motivated by the fact that his "conduct in certain matters" was then under investigation by the District Attorney's office; indeed nothing could be more reprehensible than the making of such an ill-founded and offensive charge. It appears that the "investigation" in question arose from the fact that Judge BRAHAM was the Vice President of an organization the purpose of which was to preserve for the public some of the more beautiful sections of the county and to that end to have the County

[ 372 Pa. Page 624]

Commissioners condemn those places for a public park; if such an "investigation" by the District Attorney was under way Judge BRAHAM had not been aware of it. The District Attorney's subsequent statement that he had not intended his letter as a "threat" would scarcely explain away so inexcusable an affront.

We affirm the decree of the court below insofar as it adjudged defendant guilty of contempt of court and imposed sentence for his public denunciation of it on November 30, 1951. Defendant to pay the costs.

Mr. Justice BELL and Mr. Justice CHIDSEY concurred in the result.

Disposition

We affirm the decree of the court below insofar as it adjudged defendant guilty of contempt of court and imposed sentence for his public denunciation of it on November 30, 1951. Defendant to pay the costs.

     contd

[EDIT ]DISSENTING OPINION BY MR. JUSTICE JONES

There are few offenses more odious than contempt of court. And, that is all the truer when the offender is a member of the bar whose sworn obligation specifically embraces the duty of conducting himself at all times with fidelity to the court. For the immediate and efficient redress of a contempt committed in the presence of the court, courts generally possess the inherent power to punish summarily for it. No one will gainsay that. See Fisher v. Pace, 336 U.S. 155, 159, and Ex parte Terry, 128 U.S. 289, 313. But, just as a court's power in such respect is great, so also is its responsibility for a proper exercise of the power commensurately heavy. And, as a contempt by an attorney is relatively more culpable than that of a layman, so also is equal punishment, when meted out to an attorney for contempt, proportionately the more severe. The judgment of guilt stands against him as a proven violation of his oath. It is of highest importance, therefore, that a case such as this be scrutinized with special care in order that injustice be not done. That, I fear, the majority of this court has inadvertently failed to do.

[ 372 Pa. Page 625]

From my reading of the record in this case, I am persuaded that the court below erred grievously in making a contempt proceeding out of the matter involved and in summarily adjudging the respondent guilty. In my opinion, Judge BRAHAM acted both captiously and ill-advisedly. The litigation which he initiated is now before us for review. I have, therefore, no alternative but to express my differing views. The principle involved is of highest importance. A conscience-free and judicially untrammeled bar is as essential to the proper functioning of our judicial system as are judges themselves. The issue for transcends the personalities of the parties immediately concerned. I am in accord with the majority of the Superior Court (which had original jurisdiction of the appeal in this case) whose opinion was that the judgment of contempt was error and should be reversed. The order of affirmance entered by that court was not on the merits but merely pro forma in the circumstances. The majority for reversal was split as to whether the judgment should be reversed and the appellant discharged or reversed with a remand for trial of the issue before another judge. As the majority of the Superior Court was unable to agree upon the form of the reversal, a definitive order on the merits was impossible, hence, the affirmance. It is clear, however, that not more than three of the judges of the Superior Court could have been for affirmance while at least four were of the opinion that the judgment of contempt was erroneous: see Levine Appeal, 170 Pa. Superior Ct. 579, 582, 88 A.2d 104. Thus, it is readily apparent that opinion among the appellate judges of this State as to whether Judge BRAHAM acted properly in the premises is little better than evenly divided.

The record shows that President Judge BRAHAM, of the Courts of Lawrence County, entered a rule on the

[ 372 Pa. Page 626]

    district attorney for the County, Sherman K. Levine, calling upon him to show cause why he should not be adjudged in contempt for his conduct during a session of Quarter Sessions Court in Judge BRAHAM'S Court Room (No. 1) on Friday, November 30, 1951. A recital of the facts, according to the Judge's version, was appended to the rule in the nature of specifications. The gist of the complaint was that, while both the district attorney and his assistant were in attendance upon a session of criminal court in Court Room No. 2 before the additional law judge, HONORABLE JOHN G. LAMOREE, Judge BRAHAM sent word by messenger to the district attorney requesting him to have a district attorney attend in his Court Room No. 1; that the district attorney twice refused to come upon requests by messengers from Judge BRAHAM; and that, when he did come into Judge BRAHAM'S Court Room later and was "asked in open court by the President Judge why he had not provided a district attorney for Court Room Number One he broke into a rude and insolent denunciation of the court." What the district attorney was supposed to have said was not specified.

The district attorney filed a responsive answer disclaiming any contemptuous conduct on his part and explaining that both he and his assistant were busily engaged at a scheduled session of criminal court before Judge LAMOREE in Court Room No. 2 when Judge BRAHAM sent for him; that he told the messenger on each occasion to tell Judge BRAHAM that he was then occupied in Court Room No. 2 and would come to Court Room No. 1 as soon as he was free; and that, upon entering Judge BRAHAM'S Court Room a little later, he was accosted by the Judge who charged him with defrauding the taxpayers by failing to have a district attorney in each court room. To that, the District Attorney replied that the taxpayers were receiving dollar

[ 372 Pa. Page 627]

    for dollar value for the money spent for his office. Nothing was said by the Judge at that time about any contempt having been committed and the matter was not pursued further.

Three days later, Monday, December 3rd, Judge BRAHAM called the district attorney into his chambers and there addressed him in manner as follows which was taken down stenographically and transcribed and a copy of the ...


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