State Ex Rel. Hall v. Niewoehner

I dissent. The opinion by the majority now before us and the one read from the bench just preceding the hearing in this matter, are, in substance, much the same. Such being the fact it may be found advisable to not encumber the Montana and Pacific Reporter with both. If either be omitted it would logically be the first, and as I do not intend to permit numerous assertions and conclusions of the majority to go unchallenged I shall incorporate the major portion of my dissent to the former opinion in this.

The last opinion like the former by the majority is burdened throughout with one assertion after another that this or that contention of the contemnor is not in issue, or is immaterial; that no one is charged with having violated the Constitution; that no decree is asked to oust any justice from office or to compel him to turn over to the state any monies received for services from other sources than the state and that such questions cannot be determined in this proceeding. It should be obvious to any reasonable mind that it would be futile to commence actions for any such purposes while confronted with court minutes that do not speak the truth as to the absence or presence of any member of the court. One technicality after another was interposed at the hearing, and others are now relied upon to deny any one the right to question the minutes of the court or have them corrected. Technicalities are permitted in court procedure in the interest of reasonable dispatch of litigation, but such technicalities were never intended to shield the judiciary, and particularly members of this court from criticism within appropriate bounds. The numerous quotations from various decisions as to the power of courts to cite and punish for contempt are a waste of time and energy. No one questions such power within legal and rational bounds. It is the abuse of that power that is the problem that confronts us here.

The majority opinion denied respondent's motion to disqualify certain justices of this court to sit in this case. In support of their ruling on that question five Montana cases were cited. In all those cases the proceeding in each when they came here was in the nature of a review of some act or decree of the lower court. The situation is very different here. The parties in all those cases had at all times the unquestioned right, if the rulings of the lower court were adverse, to seek redress from this court. In the case at bar the respondent has no means of redress except such as the federal courts afford. In none of the cases cited is there any suggestion that Justices of this court might not be disqualified, and section 8868 expressly provides that "any justice * * * must not sit or act as such in any action or proceeding: 1. To which he is a party, or in which he is interested."

The respondent alleged that "the Minutes of the Supreme Court of the state of Montana are misleading and are not a true representation of the conduct of Mr. Leif Erickson," etc. (This allegation in fairness should have named Chief Justice Johnson also.) Such allegation is true as is shown by the dissent of the writer filed November 17, 1944, dissenting to the extended document of the majority filed November 15th entitled "Opinion and Order. Per Curiam." In such dissent it is shown that prior to February 14, 1940, the minutes of this court had at all times preceded the names of the Justices listed thereon by the word "Present," and since that time the word present has not appeared in the minutes. It thus became impossible after February 14, 1940, to determine from the minutes which Justices were present at any particular time and which were absent.

What the purpose of the change in keeping the minutes was does not appear, but it is clear that the result is that all the times that Chief Justice Johnson and Justice Erickson were absent in 1941, 1942, 1943 and 1944 such absence is not shown by the minutes of the Court. Both have stated that they were in Chicago serving on the Railway Adjustment Board. Can they say, or either of them say, that they were not interested in a financial way in keeping off the record in the case at bar the fact that each earned in excess of $7,000 while absent from Montana serving on the Chicago Board, and at the same time drawing their salaries as members of this court. This in my judgment was such an interest as disqualified both under section 8868, to sit in this case. The reputation of both these Justices in serving the state as members of this court was at issue in the Niewoehner hearing, and both were disqualified under section 8868, Revised Codes. It is said by the majority that the affidavit of disqualification of judges does not apply in contempt cases. The disqualification to which they obviously refer applies only to district court judges (see subsection 4 of section 8868).

The part of section 8868 that applies to Justices of the Supreme Court is subsection 1, and it is so clear a child could have no excuse for not grasping its meaning.

The contention that the cause of the respondent was not "prejudged" is discredited by almost every move and act of the majority. When Niewoehner first presented his petition for filing, his right to do so was peremptorily denied by the Chief Justice without authority from the Court. Two members of the court were candidates for office and were absent campaigning. Justices Adair and Morris, and the Chief Justice were present. Justice Morris was not advised of the attempt of Niewoehner to file his petition until its filing had been denied. That act alone is sufficient to show that the Chief Justice had prejudged Niewoehner's demands, that he did not mean to give him a hearing. That the proceeding had been prejudicially prejudged is again shown by the order issued by the majority striking from the records the dissent of Justice Morris relative to the citation. Again the majority begun by citing the respondent for direct contempt, showing an intention to make short shift with the respondent by disposing of him in the summary manner provided for direct contempt and were only saved from that blunder by the intervention of lawyer. If there was ever a proceeding that more perfectly shows the cause was prejudged prior to hearing my rather extensive research has not revealed it. In every act and utterance of the majority in the premises since the Chief Justice denied Niewoehner the right to file his petition, it became clearly obvious that Niewoehner was already condemned and the hearing begun on the 21st inst. became a farce.

The supposition that by reason of my dissent to the issuance of the citation I was disqualified, is untenable. The only interest I have in the matter is to preserve the integrity and efficiency of our highest state court, and make it an instrument of justice and not of oppression. The Chief Justice and Justice Erickson had a pecuniary interest in suppressing a revision of the court's minutes by keeping off the minutes the record evidence of their absence from duty for such length of time as enabled each to receive for services rendered under a power other than the state of Montana some seven or eight thousand dollars each, all of which was received in violation of section 30 of Article VIII of the Constitution of the state. A further supposition is grounded upon the presumption that if all five of the Justices were disqualified no member of the court would be left to call in district judges to compose a court as provided by section 5 of Article VIII of the Constitution is erroneous. The same question was under consideration preceding the case of Tipton v.Sands, 103 Mont. 1, 60 P.2d 662, 106 A.L.R. 474, and was readily solved by four Justices disqualifying themselves and the remaining Justice calling in four district court judges who upon assembling determined that the remaining Justice could disqualify himself, and the court, speaking through the four district judges, could call in an additional judge to make up the court of five, but the four district judges preferred to have the remaining Justice sit with them. Either course would furnish a court no member of which had any pecuniary or other selfish interest in the issues involved here. Such a court in the case at bar would have provided a court removed from natural antagonism toward Niewoehner resulting from personal criticism. It would have been a wise course to have harkened to the advice of the State Bar Association submitted with the approval of the President and all the Executive Committee that all five members of the Court should disqualify themselves. Personally I would have been happy to comply with that advice whether I believed I were disqualified or not.

The defense against disqualification grounded on the common law relative to the necessity of the Justice having a "substantial or direct interest in the event of the litigation" illustrates the absurd extent to which the majority are driven in their efforts to evade the odium attaching to the palpable violation of section 30 of Article VIII of the Constitution which provides: "No justice of the supreme court nor judge of the district court shall accept or receive any compensation, fee, allowance, mileage, perquisite or emolument for or on account of his office, in any form whatever, except the salary provided by law."

Note: "No justice shall receive any compensation, allowance, perquisite or emolument for or on account of his office, in any form whatever, except the salary provided by law." What was the fifty dollars per day received by each of the two justices mentioned if it were not emolument on account of his office? Under the practice of the National Mediation Board,45 U.S.C.A. secs. 151 et seq., and page 46 of the Eighth Annual Report of the National Mediation Board, members of the supreme courts of the various states were called to sit on the National Railroad Adjustment Board, hence it was by reason of their being members of this court that the two Justices were chosen to sit on the Chicago Board and receive $50 each per day.

The majority attempt to make it appear that the $50 per day and expenses received for services as a member of the Chicago Board were not a "pecuniary interest" in the Niewoehner Case. It is clear that Niewoehner is attempting to have this court take official notice of the practice of some of its members in accepting office on the Railway Adjustment Board receiving emoluments therefor other than their salaries as members of the court, in violation of the provisions of the Constitution, and to make official record in the minutes of the Court of the fact of such absences. Such official record would jeopardize the office and salary of the member in such a way as to give him a direct interest and a pecuniary interest in any attempt to make an official record of his absence from the court. Such situation gives any member of the court who has absented himself as hereinbefore mentioned a direct and pecuniary interest in theNiewoehner Case if his absence were shown to be illegal. Certainly no member of this, the court of last resort in the state, should permit a technicality to be advanced to avoid a decision on the question of whether or not he is biased when a charge to that effect is seriously brought against him. (See Cooke v. UnitedStates, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767.)

The high-sounding words of the majority to the effect that the prosecution of Niewoehner, "can only inure to the benefit of the people of the state" are merely the old red herring device to distract attention from the real question involved in the controversy. That is, Did members of the Supreme Court hire themselves out to another power for money illegally? The majority should remember that it is not what others say of us that tends to destroy the confidence in and respect for the courts, but just such arbitrary, arrogant and tyrannical acts as have characterized this proceeding from its inception. Of course courts have the power and it is their duty to preserve decorum and demand respect in the course of the administration of justice, but that has nothing to do with unwarranted exercise of power in securing such results.

State v. Murphy, 68 Mont. 427, 219 P. 629, 630, is cited to support the contention that the minutes of the court import verity and cannot be overcome by extrinsic evidence. Such conclusions in that case were predicated upon the presumption that the minutes were "made and kept pursuant to law." It is idle to contend that when the records of a court contain false and misleading statements that no evidence may be introduced to show such false and misleading entries. All that the Niewoehner petition asked was in effect that our minutes be corrected to speak the truth. By merely listing the names of the members of the court the minutes show nothing as to the presence or absence of any Justice. By showing the minutes are incomplete does not challenge the rule that they import verity as to so much as is recorded but brings in issue vital facts known to exist from other evidence that does not appear in the minutes.

Let us see what this court said, speaking through Chief Justice Callaway, in State v. Poole, 68 Mont. 178,216 P. 798, about amending court records. In that case the defendant had appealed from a conviction of murder in the first degree; on a motion for a new trial it appears that the minute record did not show that the defendant was present at all times during the trial. After the appeal was perfected the state asked leave to file a supplemental transcript consisting of corrected minutes of the lower court. The defendant opposed the request. This court said:

"There is no doubt that every court of record has the inherent right to cause its acts and proceedings to be set forth correctly in its records. (Currey v. Butte Electric R. Co., 60 Mont. 146,199 P. 243.) This is the rule in civil actions, and there appears to be no reason why it is not applicable in criminal ones. (People v. Ward, 141 Cal. 628, 75 P. 306; Kaufman v. Shain, 111 Cal. 16, 43 P. 393; 52 Am. St. Rep. 139; In reTucker, 4 Okla. Crim. 221, 111 P. 665; [Petition of]Breeding, 75 Okla. 169, 182 P. 899; Benedict v. People,23 Colo. 126, 46 P. 637; Mulligan v. People, 68 Colo. 17,189 P. 5; State v. Winter, 24 Idaho 749, 135 P. 739; State v. Gilbert, 55 Or. 596, 112 P. 436; Mitchell v. State,45 Fla. 76, 33 So. 1009; State v. Hart, 133 La. [5], 6, 62 So. 161.) Inasmuch as the court retains possession of its minutes and records it has the power to correct and amend the same, so as to make them conform to the truth whether an appeal is taken or not. (15 C.J. 977.) While, appeal being taken, the court loses jurisdiction of the case, it does not of its records, and where by reason of misprision of the clerk, or where through inadvertence or mistake some matter has been omitted from the record, the correction may be made. * * * The trial court having had the right to amend its minutes so as to state the truth, the precise question now presents itself as to whether the amended record may be filed in this court. It would be a strongecommentary upon justice if this court should refuse to permit thetruth to be shown * * *. The state's motion for leave to file the amended transcript is granted. (Pappot v. Howard,154 Ala. 306, 45 So. 581; Breene v. Booth, 3 Colo. App. 470,33 P. 1007; Judson v. Blanchard, 3 Conn. 579; Adams v.Higgins, 23 Fla. 13, 1 So. 321; Culbertson v. Salinger,111 Iowa 447, 82 N.W. 925; Chambers v. Swango, 59 S.W. 20, 22 Ky. Law. Rep. 923)."

We find the same rule in effect in other jurisdictions:

"The minutes of court may be corrected, at any time, to reflect the truth." (State v. Johnson, 171 La. 592,131 So. 721.)

"Every court of record has general authority over its own records. The power of such a court to correct its records so as to make them speak the truth is inherent." (Brown v. Sutton,158 Miss. 78, 121 So. 835, 837.)

In Burnett v. Burnett, 11 Cal. 2d 259, 79 P.2d 89,90, it was said:

"Admittedly a trial court upon its own motion or on ex parte application, has jurisdiction to correct mistakes in its orders and records which are not actually the result of the exercise of judgment. (Lauchere v. Lambert, 210 Cal. 274, 291 P. 412;In re Estate of Willard, 139 Cal. 501, 73 P. 240, 64 L.R.A. 554; Carter v. J.W. Silver Trucking Co., 4 Cal. 2d 198,47 P.2d 733)."

The initial proceedings against Niewoehner are without precedent to sustain them and are void for this reason:

There was nothing pending in this court when Niewoehner presented his petition for filing, nor was there anything pending before us when he mailed his circular letter to the members of the bar of the state. By the improrer use of a nunc pro tunc order an attempt was made to have that situation remedied by having the records of the court show that Niewoehner's petition was pending at the time he sent out his circular letter. Here are the facts: Niewoehner presented his petition for filing October 7, 1944, he was denied the right to file it, and was later cited for contempt. The original attempt to bring Niewoehner before the court was abandoned and as stated by the majority H.C. Hall filed an affidavit October 19, 1944, which was the commencement of the proceedings against Niewoehner and on which he was tried and convicted. After all acts and things were done deemed necessary to the hearing, and time for the hearing was set, on November 15, 1944, a nunc pro tunc order was issued and filed directing the clerk to file the Niewoehner petition as of the original date it was presented by Niewoehner, October 7, 1944, and thereupon after ordering it filed another order was issued denying the petition. Hence when the Hall affidavit was filed and the citation issued thereunder and served on Niewoehner there was nothing whatever pending before the court. Criticism of a court or a judge is contemptuous only when made while the cause to which it refers is pending before the court. (In re Nelson, 103 Mont. 43, 60 P.2d 365.)

The nunc pro tunc order directing the petition filed as of October 7th, when it was stamped on its face for filing under date of November 15, and entered on the records under the latter date was an improper and illegal employment of a nunc pro tunc order, and under the universally recognized rule was void and of no effect. This court defined a nunc pro tunc order in State v. Francis, 58 Mont. 659, 664, 194 P. 304, 305, and the circumstances wherein it may be used:

"`Nunc pro tunc' means literally, `now for then,' and a valid nunc pro tunc order is one which, for some good reason, should have been made at an earlier date, and which therefore, the court may cause to take effect as of the date when it should have been made. The circumstances under which this may be done in this jurisdiction are concisely stated in Power v. Lenoir,22 Mont. 169, 56 P. 106, as follows: `The court may, in all proper cases, enter orders and judgments nunc pro tunc. * * * The cases in which the court will do this are of two classes: The first consists of those in which one of the parties dies after the verdict has been rendered, or the cause submitted for decision, and it is necessary to enter the judgment as of the date of the submission of the cause, to prevent injustice. * * * The second class is composed of those cases where an order or judgment has actually been made or rendered by the court, but, by reason of some misprision for which the parties are not entirely to blame, has never been entered.'" There was nothing done or left undone on October 7, 1944, by the court, by the clerk of the court, or by any one else, at the time Niewoehner's petition was denied filing, that could be remedied by a nunc pro tunc order; failure to do any thing, to make any entry to perfect the court records was not "overlooked by reason of inadvertence," or otherwise, and filing the nunc pro tunc on November 15, 1944, to have effect as of October 7, 1944, was ineffective for any purpose. Moreover, to such extent as the majority opinion may be based on the Niewoehner letter of October 9, 1944, the nunc pro tunc order of November 15, 1944, directing that the Niewoehner petition be filed as of October 7, 1944, antedating his letter, it is to be condemned as partaking of the same iniquities as ex post facto legislation fixing or increasing a penalty relating back for an act which was lawful at the time it was committed.

It was said in Bailey v. Rennert, 213 Ky. 262,280 S.W. 1103, 1104: "The court was, therefore, without jurisdiction to enter the order made on June 23, 1925, unless it was enterednunc pro tunc. In order, however, for the court to enter such an order, there must be some record evidence authorizing it; i.e., some minute, memorandum, or other entry showing that the modified order was actually rendered on the former day, but by oversight was not entered on the record as rendered." (Citing cases.) The common use of such order is employed to enter on the court records a judgment or decree which by oversight was not entered when rendered. It was said in Huggins v. Johnston, Tex. Civ. App., 3 S.W.2d 937, 940: "The only purpose of anunc pro tunc entry is to correctly evidence upon the records of the court a judgment, decree, or order actually made by the court, but for some reason not entered of record at the proper time."

In Baylor v. Killinger, 44 Ohio App. 523, 186 N.E. 512,513, it was said: "* * * the nunc pro tunc feature of the entries involved was wholly valueless for any purpose under the facts alleged, and void. The function of a nunc pro tunc entry is not, by a fiction, to antedate the actual performance of an act which never occurred, but is to make the record conform to that which was actually done, at the time it was done."

In Becher v. Deuser, 169 Mo. 159, 69 S.W. 363, 364, it was said: "it is not admissible to make a nunc pro tunc entry based upon any amount of oral testimony, nor upon the memory of the judge. Such entries can only be made upon `evidence furnished by the papers and files in the cause, or something of record, or in the minute book or the judge's docket, as a basis to amend by.'"

In Haray v. Haray, 274 Mich. 568, 265 N.W. 466, 468, the supreme court of Michigan, quoting from a former case, said: "Anunc pro tunc entry * * * is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake * * *." There is no variation from this rule found in any of the multitude of decisions relative thereto. It necessarily follows that there was nothing pending before the court when the acts done by Niewoehner were done for which he was arraigned for contempt. In the case ofState ex rel. Metcalf v. District Court, 52 Mont. 46, 55,155 P. 278, 281, L.R.A. 1916F, 132, Ann. Cas. 1918A, 985, this court, quoting from a Kansas case (In re Pryor, 18 Kan. 72, 26 Am. Rep. 747) said: "No judge, and no court, high or low, is beyond the reach of public and individual criticism. After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe orunjust."

In Nixon v. State, 207 Ind. 426, 193 N.E. 591, 594, 97 A.L.R. 894, it was said, "If the publication criticises the judge or court after the matter with which the criticism has to do has been finally adjudicated and the proceedings are ended so that the carrying out of the court's judgment cannot be thereby obstructed, the publication is not contempt and cannot be summarily punished by the court however false, malicious or unjust it may be. The remedy of the judge as an individual is by action or prosecution for libel."

If Niewoehner's petition or his circular letter contained false or defamatory statements as to any justice he should proceed against him personally.

Mr. Justice Holloway, in speaking for the court in State exrel. Metcalf v. District Court, supra, a contempt case, quoted with approval from Ruling Case Law as follows:

"`The common-law rule was founded on the obsequious and flattering principle that a judge was the representative of the king, but the theory of government which invests royalty with an imaginary perfection, and which forbids question or discussion, is diametrically opposed to the principles of a free and popular government, in which the utmost latitude and liberty in the discussion of business affecting the public and the conduct of those who fill positions of public trust, that is consistent with truth and decency, is not only allowable, but is essential to the public welfare.' And the text is amply sustained by the authorities. (Citing cases.)

"The framers of our Constitution recognized, without limiting, the power of the courts to punish for contempt (section 3, Art. 8); but they understood the law of contempt to be a law of necessity, and its exercise in any given instance to be measured and restricted by the necessity which calls it into existence. The purpose to be subserved by investing our courts with such extraordinary power is to enable them to maintain order and decorum, compel respect for their lawful orders and process, and enable them to investigate and determine the causes before them without let or hindrance from any extraneous sources. * * *

"It is the nearest approach to autocratic power of any permitted under our form of government, and is not to be extended by implication. To confine its operations within the limits we have indicated will not impair the usefulness of the courts. Libel may still be prosecuted criminally or by civil action. `Respect to courts cannot be compelled; it is the voluntary tribute of the public to worth, virtue and intelligence, and whilst they are found upon the judgment seat, so long, and no longer, will they retain the public confidence. If a judge be libeled by the public press, he and his assailant should be placed on equal grounds, and their common arbiter should be a jury of the country; and if he has received an injury, ample remuneration will be made.' (Stuart v. People, 3 Scam. [395, 4 Ill.] 395)."

It would appear that the majority in dealing with Niewoehner must have reverted to the common-law rule and became obsessed with the notion that they were the "king's own," robed in imaginary perfection, incapable of error instead of being the ordinary, fallible human beings that they are and servants of the people of Montana instead of their masters. The majority have certainly applied that "autocratic power" mentioned by Mr. Justice Holloway, in the case at bar. The power to cite and punish for contempt is the most dangerous power vested in any department or division of government. Mr. Edward M. Dangle, in his recent book on "Contempt," has this to say in the preface of that work:

"The ever increasing number of contempt cases and the lack of clearly defined principles for the application of the power of contempt have created a state of confusion and uncertainty which has caused layman and lawyer alike to look upon this flexible, uncircumscribed legal power with fear and distrust. The power of judges to accuse, try, decide, and imprison for contempt committed in their presence has been constantly condemned as one of the greatest dangers to a free nation.

"It is a matter of common opinion among the uninformed public that many judges tend to regard their particular functions in contempt matters * * * as establishing the right to punish for contempt even to the extent of disregarding constitutional and other legal guarantees. The fact that the courts act as the accusers, the prosecutors, and the judges, creates a situation fraught with danger.

"The safety of our government is dependent to a great extent on the confidence and respect which the people have for the courts, and it is the duty of every court to strive by honorable means to merit and preserve that confidence and respect. A program to regulate the administration of the power of contempt should be fostered and encouraged by the judiciary and members of the bar for the protection of the public and the courts. It is hoped that in some measure this volume may serve as an antidote to the fear of oppression, and illustrate to the courts that the present manner of exercising contempt power may do more to degrade and impugn the dignity of the judiciary than the very conduct which constitutes the contempt."

There can be called to enforce this court's orders, decrees and judgments, if the need should arise, all the powers vested in the executive department of the state government, with the control that department has over all the militant forces at its command. Hence, the individual situated such as Mr. Niewoehner is in this case has no recourse to any power within the state to protect him against the unjust condemnation rendered against him by the highest court in the state.