Knox v. Municipal Court of City of Des Moines ( 1971 )

STUART, Justice.

At about 12:30 p. m., November 5, 1970, Charles Knox appeared in the Des Moines Municipal Court before Judge Howard Brooks in response to a summons charging him with operating a motor vehicle while his license was under suspension. It is not necessary to describe the events that took place at that time in detail as Knox does not contend his conduct was not contemptuous. It is sufficient to state he was uncooperative, insolent, insulting and disrespectful toward the court throughout the proceedings. After the patrolman had testified Knox was asked if he had anything to say. He said: “I am guilty of nothing but helping the people.”

Judge Brooks then stated he had no alternative but to find Knox guilty and sentenced him to five days in the county jail. The violation carries a mandatory jail sentence of not less than two nor more than thirty days. Section 321.218, Code 1971. Knox looked toward one of his friends in the courtroom, turned and spit on the judge. A disturbance developed in the courtroom which resulted in the confinement of Knox and some of his friends. The judge left the courtroom immediately after the spitting incident.

Knox was “arraigned” on a “county attorney’s information” before Judge Harrison about 6:00 p. m. the same evening. His conduct at that time was such that he was summarily found guilty of contempt before Judge Harrison and sentenced to six months in the county jail. Hearing on the contempt matter occurring in Judge Brooks’ court was set for the next morning. The next morning Mr. Glenn was appointed to defend Mr. Knox and trial was reset for Tuesday, November 10, 1970. At the conclusion of the hearing Knox was sentenced to a second six months term in the county jail.

We granted Writs of Certiorari to review the proceedings in both contempt matters. In this opinion we are concerned only with the contempt proceeding which arose out of the incidents that took place before Judge Brooks.

I. The power to punish for contempt is inherent in the nature and constitution of a court. It is not derived from statute, but is implied as it is necessary to the exercise of the other powers of the courts. Without it, the administration of the law would be in continual danger of being thwarted by the lawless. Ex parte Terry (1888), 128 U.S. 289, 303, 9 S.Ct. 77, 32 L.Ed. 405, 408. It is indispensable to the protection of due and orderly administration of justice and in maintaining the authority and dignity of the court. “But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions.” Cooke v. United States (1925), 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767, 775. See Haines v. District Court (1925), 199 Iowa 476, 480, 202 N.W. 268, 270; State ex rel. Arthaud v. District Court (1904), 124 Iowa 187, 190, 99 N.W. 712, 713.

Contempt is classified in two ways: Criminal or civil and direct or indirect (constructive). Offenses against the dignity or process of the court, whether committed in or out of the presence of the court are criminal contempts. Offenses against the party for whose benefit a court order was made are civil contempts. As we treat all contempts as quasi-criminal in Iowa, Brown v. District Court (Iowa, 1968), 158 N.W.2d 744, 748; Huston v. Huston (1963), 255 Iowa 543, 549, 122 N.W.2d 892, 896; Brody v. District Court (1959), 250 Iowa 1217, 1221, 98 N.W.2d 726, 729, this sometimes nebulous distinction is no longer of significance. 20 Iowa Law Review 121-128; But see Bloom v. Illinois (1968), 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522, 528. Chapter 665 makes no such distinction. Drady v. Given (1905), 126 Iowa 345, 348, 102 N.W. 115, 116.

“An indirect or constructive contempt is an act committed, not in the presence of the court, but at a distance from it, which tends to degrade the court or obstruct, interrupt, prevent or embarrass administration of justice.” Wharton’s Criminal Law, Vol. 3, page 703, § 1330.

A direct contempt consists of words spoken or acts committed in the presence of the court which tend to have the same effect.

The “presence of the court” extends beyond those places within the sight and hearing of the presiding judge. A court “at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors, and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court.” Ex parte Savin (1888), 131 U.S. 267, 277, 9 S.Ct. 699, 702, 33 L.Ed. 150, 153; Cooke v. United States, supra, 267 U.S. at 535-536, 45 S.Ct. at 394-395, 69 L.Ed. at 773-774; Harding v. McCullough (1945), 236 Iowa 556, 561, 19 N.W.2d 613, 617; People v. Skar (1964), 30 Ill.2d 491, 198 N.E.2d 101, 102. In re Neff (1969), 20 Ohio App.2d 213, 254 N.E.2d 25, 33.

The nature of the contempt is determined at the time the offensive act occurs. If it occurs in the presence of the court, as in this instance, it is a direct contempt. It is not converted into indirect contempt because the court chooses proce-durely, to have the matter heard by a judge other than the one before whom the contempt was committed. However, procedural requirements vary depending upon whether the judge presiding at the contempt hearing can act upon his own personal knowledge or must rely on evidence.

“The mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye or within the view of the court, it may proceed ‘upon its own knowledge of the facts, and punish the offender, without further proof and without issue or trial in any form,’ (Ex parte Terry, 128 U.S. 289, 309, 9 S.Ct. 77, 32 L.Ed.2d 405); whereas, in cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. * * * But this difference in procedure does not affect the question as to whether particular acts do not, within the meaning of the statute, constitute misbehavior in the presence of the court.” Ex parte Savin, supra, 131 U.S. at 277, 9 S.Ct. at 702, 33 L.Ed. at 153; Bloom v. Illinois, supra, 391 U.S. at 204, 88 S.Ct. at 1483, 20 L.Ed.2d at 530.

“The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority’ * * * before the public.” In Re Oliver (1948), 333 U.S. 257, 275, 68 S.Ct. 499, 509, 92 L.Ed. 682, 695.

Judge Brooks could properly have acted instantly and held petitioner guilty of contempt without violating his constitutional rights. Mayberry v. State of Pennsylvania, filed January 20, 1971, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532; Illinois v. Allen (1970), 397 U.S. 337, 90 S. Ct. 1057, 25 L.Ed.2d 353; Harris v. United States (1965), 382 U.S. 162, 164, 86 S.Ct. 352, 15 L.Ed.2d 240, 242; In Re Oliver, supra; Harding v. McCullough, supra, 236 Iowa at 562, 19 N.W.2d at 617. However, as only a short trial was involved, he was well advised to proceed to a conclusion in the face of vicious and unjustified verbal attacks on the court and the judge. When the ultimate contemptuous act took place, action had been completed on the matter before him and summary proceeding to preserve the order and dignity of court proceedings was no longer necessary. Judge Brooks commendably declined to consider the contempt matter himself but observed the admonitions of the United States Supreme Court and our own cases to substitute another judge whenever possible. Mayberry v. Pennsylvania, supra; Cooke v. United States, supra, 267 U.S. at 539, 45 S.Ct. at 395, 69 L.Ed. at 775; Brown v. District Court, supra, 158 N.W.2d at 749; Newby v. District Court (1967), 259 Iowa 1330, 1342, 147 N.W.2d 886, 894; Bisignano v. Municipal Court (1946), 237 Iowa 895, 910, 23 N.W.2d 523, 532; Drady v. Given, supra, 126 Iowa at 353, 102 N.W. at 118. Failure to do so can under appropriate circumstances require a remand for hearing before another judge. Mayberry v. Pennsylvania, supra; Offutt v. United States (1954), 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; Cooke v. United States, supra.

However, by substituting a different judge, the misconduct was no longer within the sight and hearing of the presiding judge. Judge Harrison could not act on his own knowledge. Evidence was necessary and petitioner was entitled to “[B]e advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf either by way of defense or explanation.” In Re Oliver, supra, 333 U.S. at 275, 68 S.Ct. at 508, 92 L. Ed. at 695; Cooke v. United States, supra.

Did the proceedings here afford Knox the due process required above? We hold that it did. He was notified of the charges against him by the information and arraignment. He was represented by counsel and afforded a full hearing. Counsel announced in open court that petitioner was not going to introduce evidence and rested. Petitioner obviously had no wish to attempt to purge himself from contempt. His parting remarks to Judge Harrison were: “You are still a Fascist and’ your swastika (indicating) Heil Harrison, Heil Harrison and all that shit. You’re still a Fascist.” Knox was not denied any constitutional rights.

II. We now turn our attention to the contempt chapter of the Code, chapter 665. We have acknowledged legislative limitations imposed on punishment for contempt and have recognized statutory procedural requirements. Harding v. McCullough (1945), 236 Iowa 556, 558, 19 N.W.2d 613, 616; State v. Baker (1937), 222 Iowa 903, 907, 270 N.W. 359, 361; Haines v. District Court (1925), 199 Iowa 476, 479-480, 202 N.W. 268, 270. Legislative definitions of contempt are so broad they in no way conflict with the inherent power of the court to punish for contempt. Harding v. McCullough, supra, and citations.

The provisions of this chapter have been substantially the same since the 1851 Code. The language of the sections hereinbefore discussed is identical. The statutes clearly provide a procedure for matters involving indirect or constructive contempt. They also state what must be done when a judge summarily rules on contemptuous conduct of which he has personal knowledge. In view of the recent concern with due process and fair trial, contempts which could have been handled summarily will, with increasing frequency, be heard before a different judge. The statutes do not clearly set forth the procedure to be followed in such case and require our interpretation. It is difficult to make 120-year old statutes fit the modern concepts of civil rights.

III. Petitioner contends no affidavit was filed as required by section 665..6, which provides: “Unless the contempt is committed in the immediate view and presence of the court, or comes officially to its knowledge, an affidavit showing the nature of the transaction is necessary as a basis for further action in the premises.”

We must interpret the italicized language to determine if an affidavit is required under ’ the circumstances shown here. We believe the legislature intended to draw a distinction between direct and indirect contempt as previously defined. Others have reached the same conclusion.

“Generally, the proceedings in cases of constructive (indirect) contempt are commenced by the filing of an affidavit stating the facts showing the contempt.” Tuttle v. Hutchinson (1916), 173 Iowa 503, 519, 151 N.W. 845, 851.

“Although the Iowa statute defines direct and constructive contempts for the purpose of trial * * 20 Iowa L. Rev. 124.

The coupling of “immediate view” with the “presence of the court” prevents us from applying the broader and more inclusive definition of the “presence of the court” to that phrase as used in the statute. The phrase as used there is equivalent to a contempt in the sight and hearing of the presiding judge entitling him to invoke the summary procedure.

The language “or comes officially to its knowledge” is unique to the Iowa statute. We have held that “the presentation of a subpoena with the return thereon, even though irregular in form, and the failure of a witness to appear, was a sufficient basis for the proceeding as for a contempt coming officially to the knowledge of the court; the failure of the witness to appear being necessarily manifest.” Coutts v. District Court (1910), 149 Iowa 297, 302-303, 128 N.W. 362, 364. It necessarily refers to conduct which occurs outside the physical presence and personal knowledge of the presiding judge. We interpret this language to include the broader definition of “presence of the court” namely: “every part of the place set apart for its own use and for the use of its officers, jurors and witnesses”.

Contemptuous conduct in the courtroom of a judge other than the one presiding at the contempt hearing falls within this definition making this case a ■ direct criminal contempt. We therefore hold it was not necessary to file an affidavit before proceeding further.

IV. There is no merit in petitioner’s claim that failure to comply with section 665.9 renders the proceedings invalid. Section 665.9 provides: “If the court or judge acts upon personal knowledge in the premises, a statement of the facts upon which the order is founded must be entered on the records of the court or be filed and preserved when the court keeps no record and shall be part of the record.”

This statute applies to the summary proceedings to be used when the order is made by the judge before whom the contempt actually occurred. It is to preserve a record of the facts found to be contemptuous, which might not otherwise appear of record, in the event contemnor wishes to seek review by certiorari. It has no reference to an evidentiary hearing which is covered by section 665.8.

V. Section 665.7 provides: “Before punishing for contempt, unless the offender is already in the presence of the court, he must be served personally with a rule to show cause against the punishment, and a reasonable time given him therefor; or he may be brought before the court forthwith, or on a given day, by warrant, if necessary. In either case he may, at his option, make a written explanation of his conduct under oath, which must be filed and preserved.”

A. Petitioner claims the trial court erred in overruling his motion to dismiss the contempt proceeding as he was not personally served with a rule to show cause as provided in section 665.7. Respondent claims such service was not necessary. We agree.

We interpret the statute to provide that if the contemptuous act occurs in the immediate view and presence of the presiding judge so he may act upon his own knowledge, he may proceed summarily. If the presiding judge does not proceed summarily and the matter is heard before a different judge, there are two alternatives: (1) serve the offender with a rule to show cause and give him a reasonable time therefor, or (2) bring him before the court forthwith or on a given day by warrant, if necessary.

In this instance the presiding judge did not act summarily. The State elected to bring the offender before the court forthwith on a “preliminary information” and hold an “arraignment”, at which time hearing was set for a given day. As the State chose the second alternative and as we have held in Division I that the information and arraignment satisfied constitutional notice requirements, it was not necessary to serve contemnor with a rule to show cause.

B. Petitioner states section 665.7 requires that he be given a reasonable opportunity to explain his conduct. This is true. Watson v. Charlton, supra, 243 Iowa at 86-89, 50 N.W.2d at 610-611; Harding v. McCullough, supra, 236 Iowa at 562, 19 N.W.2d at 617; State ex rel. Arthaud v. District Court (1904), 124 Iowa 187, 189, 99 N.W. 712, 713; Russell v. French (1885), 67 Iowa 102, 105, 24 N.W. 741, 742. It is not clear whether he claims he was denied that right. If this is the claim, it has no merit. He had the opportunity to introduce evidence but declined to do so. He could have filed a written explanation if he so desired from the time counsel was appointed until he was found guilty of contempt. He made no request for time to file a written explanation. In any event, his conduct throughout the proceeding constituted a waiver. Waiver has often been defined as an intentional relinquishment or abandonment of a known right or privilege. No oral or written expression of waiver is required. It may be found from an examination of all the attendant facts and circumstances. It may be ascertained from a person’s conduct. Babb’s, Inc. v. Babb, Iowa, 169 N.W.2d 211, 213; State v. Williams, Iowa, 182 N.W.2d 396, 400 and citations in each. See also United States v. Chichester, 9 Cir., 312 F.2d 275.

In Hexom v. Maccabees, 140 Iowa 41, 46, 117 N.W. 19, 20 (1908) this court said: “A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of such relinquishment, ⅜ * * »

The general rules of waiver are applicable in contempt proceedings. An alleged contemnor may by his conduct be found to have waived procedural rules or requirements. Harriet Cotton Mills v. Local No. 578, Textile Wkrs., 251 N.C. 218, 111 S.E.2d 457, 79 A.L.R.2d 646; Licata v. United States, 9 Cir., 429 F.2d 1177; Anno. 79 A.L.R.2d 657, 665.

There was no indication he wished to explain his conduct or attempt to purge himself of contempt. By continuing his contemptuous conduct, he waived his right to make a written explanation of his preceding contemptuous conduct. Coyle v. Sawyer (1924), 198 Iowa 1022, 1027-1028, 200 N.W. 721, 723; Hardin v. Silvari (1901), 114 Iowa 157, 159, 86 N.W. 223, 224. “[T]he offer of an opportunity therefor would have been an idle formality, not exacted by the law.” Hardin v. Silvari, supra.

In summary we hold that a presiding judge may proceed summarily to determine a matter of contempt when the misconduct has occurred in his immediate view and presence without an affidavit (665.6) or a rule to show cause (665.7). Before the offender is adjudged guilty of contempt and punished he must be given a reasonable opportunity to make a written explanation of his conduct under oath, unless the offender has, by his conduct waived such right. The facts upon which the contempt order is founded must be made a part of the record (665.9).

In the case of a direct contempt which is being presented to a judge other than the one before whom the misconduct occurred, the judge may- proceed without an affidavit (665.6). The contemnor may appear voluntarily, be personally served with a rule to show cause, or brought before the court by legal process including a warrant (665.7). Evidence must be taken and preserved (665.8). Contemnor must be given the opportunity to present a defense and/or explain his conduct, in writing if he so requests before judgment and sentence (665.7) unless he has by his conduct waived such rights.

We hold the procedure followed by the State in this instance met constitutional and statutory requirements.

For other contempt matters arising out of the incidents involved herein see Knox v. Honorable Ray Harrison, Judge, No. 23/54601; DePatten v. Honorable Ray Harrison, Judge, No. 19/54552; Green v. Honorable Ray Harrison, Judge, No. 20/54553; Rhem v. Municipal Court of City of Des Moines and Honorable Ray Harrison, Judge, No. 21/54555, filed as of the date of this opinion, 185 N.W.2d 718, 720, 722, 724.

Writ annulled.

MOORE, C. J., and MASON, Le-GRAND and REES, JJ., concur. UHLENHOPP, RAWLINGS and BECKER, JJ., dissent.