Constructive Contempt of Court

Author(s): E. R. S.
Source: Michigan Law Review , Feb., 1924, Vol. 22, No. 4 (Feb., 1924), pp. 361-366
Published by: The Michigan Law Review Association

Stable URL: https://www.jstor.org/stable/1278453

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 NOTE AND COMMENT 36I

CONSTRUCTIVE CONTEMPT OF CouRT.-The recent case of Craig v. Hech

(1923) 44 Sup. Ct. Rep. 103, aroused an extraordinary amount of inte
among laymen, and involved some legal questions of importance to lawy
but perhaps its most significant result was the opportunity it afforded the
profession to observe the popular attitude of hostility toward certain phas
judicial administration which lawyers are habitually inclined to overlook.
There were two points upon which public criticism centered. First, it
very generally felt that the contempt proceedings brought by Judge M
against Controller Craig were an unfortunate and unnecessary exercise of o
cial power, designed rather to vindicate the judge than to protect the inter
of the court or the public. Second, the decision of the majority of the jud
of the United States Supreme Court, which was confined entirely to a
cussion of points of practice without any reference to the merits of the
seemed to many persons a useless and barren exhibition of legal forma
under circumstances apparently calling for a broader treatment of the ca
I
It is an ancient rule of justice that no man should be judge in his own case,
and this principle is jealously guarded by the law. Any personal interest on
the part of a judge is sufficient to disqualify him to act. But in the case of
contempts it has been found difficult to adhere to the rule, for the reason that
the due administration of justice requires that the judge should be able to em-
ploy the power of the court to prevent interference with the proper perform-
ance of his own judicial duties. Accordingly, where such interference results
from unwarranted criticism of the motives or actions of the judge, he may
nevertheless feel called upon to protect his office by contempt proceedings. In
so doing he acts, in theory, in a wholly impersonal capacity, treating aspersions
upon his conduct or character as having no relation to himself as an indi-
vidual. It is quite clear, however, that human nature is put to a considerable
strain by this theory, and that one who feels that he has suffered insult or in-
dignity in regard to the performance of his official duties will find it difficult
to try the offender with complete impartiality. His common law right to act as
judge in such cases has never been judicially questioned, but while the courts
adhere unreservedly to this policy of the law, and vigorously insist upon the
necessity of granting such jurisdiction to the judge, they frankly admit that it
places him "in an extremely delicate and invidious position." Re Philbrook
(I895) I05 Cal. 47I. His duty, however, compels him to proceed, in order to
preserve public confidence in the administration of justice. Bessetti v. W. B.
Conkey Co. (1903) 194 U. S. 324; Coons v. State (Ind. 1922) 134 N. E. 194;
Commonwealth v. Dandridge (1824) 2 Va. Cas. 408; Lamberson v. Superior
Court (1907) 151 Cal. 458; In re Chadwick (I896) Io9 Mich. 588. As was
said in Cooper v. People (1889) 13 Colo. 367,-"Contemptuous conduct toward
the judges in the discharge of their official duties, tending to defeat the due
administration of justice, is more than an offense against the person of the
judge; it is an offense against the people's court, the dignity of which the
judge should protect, however willing he may be to forego the private injury."
This is the side of the problem which has always appealed to the legal pro-

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362 MICHIGAN LAW REVIEW

fession and has been stressed by courts. But the public incline to look
other side of the picture. Free speech and the right to criticize public
are considered the great safeguards of liberty, and nothing arouses
tense popular disapproval than attempts to curtail these rights. But
this is added the further fact that a judge who finds himself sub
criticism may himself lawfully try his critic's case and imprison or
it is not to be wondered at that the courts are often called arbitr
tyrannical.
An editorial in THE: FREEMAN, of December 5, 1923, is one of the best of
these strong popular protests, brought out by the Craig case, against the prac-
tice which the law justifies in contempt cases. The writer says:
"Had Judge Mayer been an ordinary citizen, he could have matched Mr.
Craig with a statement of his own, and if Mr. Craig's letter contained slander-
ous implications, he could have put the truth to the test through the established
rules of procedure; but being a judge, he adjudged Mr. Craig in contempt of
court and sentenced him to serve sixty days in jail. In our opinion-if one
may express an opinion about such matters without being shot at sunrise-the
simplicity of Judge Mayer's procedure to secure the last word in the argument
was charmingly mediaeval."
Proceedings for constructive contempt are clearly a two-edged sword.
Brought for the purpose of upholding the dignity of courts and preserving
them in popular esteem, the result is often to seriously weaken and injure them,
because the very means taken to enforce respect inevitably carries an implication
of intolerance and injustice. Doubtless Judge Peck was actuated by perfectly
sound legal instincts when he made his notorious order imprisoning an attorney
for criticizing his decision, but the result was not to increase popular venera-
tion for the courts but on the contrary to drive Congress to attempt to curb
their contempt power by the very statute involved in the Craig case. Although
a hundred years have passed since then, Judge Peck is still remembered, not as
the champion of judicial dignity but as the usurper of judicial power. Ex parte
McLeod (1903) I20 Fed. 130.
The close parallel, in this respect, between the law and the church, is forc-
ibly and quaintly brought out in an editorial entitled Church History for the
Bar, in THE HERALD OI GOSPEL LIBERTY, the official organ of the Christian
Church (Issue of December 13, 1923). Referring to the proposal of the Citi-
zenship Committee of the American Bar Association that Thanksgiving Day
services be held in every community to promote a reverence for the law, the
writer says:-"We are wondering how many lawyers and judges in this coun-
try have realized that the Craig affair * * * has done more to break down re-
spect for courts and judges and judicial processes * * * than all the preaching
* * * on a half-dozen Thanksgivings could build up. * * It is that density, that
incapacity of the legal profession to penetrate the common ordinary human
viewpoint and its passion for justice, which has had more than any other one
thing to do with the increasing disrespect for courts * * * What the church and
ministry could not do, our courts and our lawyers are foolish enough still to
keep on trying. They delude themselves into believing that courts are digni-

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 NOTE AND COMMENT 363

fled and honorable institutions which people will honor and revere regard
what takes place in them, and that occasional punishment for 'contempt
hold the masses in line. Nothing is farther from the truth, as has been p
by more than one revolution, ancient and modern."
All this is matter of great interest to the legal profession, for no am
of self-sacrificing effort to render adequate public service will avail in th
of widespread hostility toward the means employed to do it. Confide
hard to build up but easy to break down. Perhaps the Craig case will s
ways of more tactfully employing the dangerous but indispensable pow
punishment for contempt.
The term contempt is unfortunately employed in three different se
(I) punishment for disobedience of the orders of the court, (2) punishmen
direct interference with the proceedings of the court, and (3) punishme
acts derogatory of the dignity and integrity of the court.
In the first of these cases the judicial power is used to make the c
action effective in behalf of parties properly seeking its aid. The exe
of this power is not likely to lead to abuse because it is not used in defe
the judge but of the litigants. No personal interest of the judge can ordi
be involved, and vigorous action on his part can carry no suggestion of t
of the power of the court for selfish purposes.
The second case touches slightly more debatable ground. But even her
inducement to employ the process of contempt for personal advantage i
stantially lacking. And it is very clear that in the face of actual interfe
with judicial proceedings, timidity on the part of the judge would be fa
the effectiveness of the court. Here, as in the first case, actual litigants
fore the court demanding protection, and failure to secure to them an u
structed right to a fair trial would be a denial of justice. The judge is
confronted by an emergency requiring prompt action, and even if circumst
make it impossible to prevent the harm being done, speedy punishment o
offenders will discourage repetition. The contempt may, it is true, i
words or conduct personally derogatory to the judge, so that in defendi
rights of litigant parties he may incidentally enjoy a personal satisfac
the discomfiture of his critics. But the personal element is so small a
duty to others so pressing and paramount, that the position of a judge w
such cases, tries and condemns, is rarely subject to unfavorable criticism
ground here discussed.
It is, however, in contempts of the third class that serious difficulties a
Here there are no orders being disobeyed and no court proceedings be
tually obstructed. The sole individual sufferer from the attack on the c
the judge himself. There is no emergency, no threatened miscarriage
tice, and usually no demand on the part of others that punishment be mete
In such cases the judge who brings contempt proceedings lays himself
to the popular suspicion that he is using the power of the court to ser
personal ends.
The public unhesitatingly placed the Craig case in this class, and drew its
inferences accordingly. Lawyers, with their subtler logic, might undertake to

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364 MICHIGAN LAW REVIEW

place it in the second class of contempts, where the course of pending

is being obstructed. Indeed, the Supreme Court of the United State
on the question, the majority assuming, without discussion, that the
ment of a receiver, long since made, is nevertheless a pending mat
receivership itself is still before the court. This doctrine has received
sanction. Bloom v. People (1897) 23 Colo. 416; In re Chadwick (I896) Io9
Mich. 588; Fishback v. State (I89I) 131 Ind. 304. But Justices Holmes and
Brandeis, with an eye for actualities rather than the logical niceties of the law,
held that a matter already passed upon was not still pending, notwithstanding it
was a part of a case in which other questions might remain undetermined.
And these dissenting judges went still farther, and expressed the view that
to misstate past matters of fact relative to the conduct of the judge could not
be deemed an obstruction of justice even if the matter be deemed legally
pending. "Unless," they declared, "a judge while sitting can lay hold of any
one who ventures to publish anything that tends to make him unpopular or be-
little him, I cannot see what power Judge Mayer had to touch Mr. Craig."
This view was still more strongly expressed by the same judges in their
dissenting opinion in Toledo Newspaper Co. v. United States (1917) 247 U. S.
402, where Judge Killits had condemned the respondents for contempt because
they had criticized his conduct as a judge while sitting in equity in a case in-
volving the street railways of Toledo. No restraining order had been issued
prohibiting publication of comments on the case, and there was no jury to be
influenced by what the newspaper said. But Judge Killits condemned the pub-
lisher and editor for contempt in obstructing the administration of justice be-
cause he himself might have read their uncomplimentary remarks about his at-
titude toward the case. The sentence was affirmed by the majority of the
United States Supreme Court, but Justices Holmes and Brandeis were un-
willing to admit the right of Judge Killits to use the contempt power of the
court under such circumstances. Justice Holmes said: "When it is considered
how contrary it is to our practice and ways of thinking for the same person to
be accuser and sole judge in a matter which, if he be sensitive, may involve
strong personal feeling, I should expect the power to be limited by the necessi-
ties of the case * * * A judge of the United States is expected to be a man
of ordinary firmness of character, and I find it impossible to believe that such
a judge could have found in anything that was printed even a tendency to pre-
vent his performing his sworn duty."
In McLeod v. St. Aubyn (I899) A. C. 549, 56I, the Privy Council said:-
"Committals for contempt of court by scandalizing the court itself have become
obsolete in this country. Courts are satisfied to leave to public opinion attacks
or comments derogatory or scandalous to them." This represents a very en-
lightened attitude, and one which will probably do much more to maintain pub-
lic respect for courts than the contrary practice.
Readiness to grant a change of venue or to call in another judge in cases
of this sort of contempt would be convincing proof that the judge had enough
confidence in his case to forego the special privilege of deciding it himself.
And even though, in their reluctance to surrender power, the courts might hold,

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 NOTE AND COMMENT 365

as in Bloom v. People (supra), that "in a contempt proceeding the defen

has no right to a change of venue, or as expressed by counsel, to dema
hearing before another judge," there is no advantage to the court in dema
its pound of flesh. Better to waive an extreme exercise of privilege than
forfeit the confidence and good-will of the public. A truer appreciation
need for preserving cordial relations between the courts and the people is
in Re Dingley (I914) I82 Mich. 44, where the court said: "If the offen
committed in the presence of the judge it would seem to follow that he sh
deal with the offender. While he doubtless has the legal right to proce
where the offense is not committed before him, we think it a better practic
was done in Re Chadwick, Io9 Mich. 588, to call in another judge." And in
Clyma v. Kennedy (I894) 64 Conn. 3IO, similar advice was given.
II.
On the second ground of criticism of the Craig case,-that the Supreme
Court discussed only points of practice, the difficulty was probably a broader
one than the public appreciated. Our appellate procedure is unnecessarily com-
plex and difficult, and altogether too many cases are wrecked upon points un-
connected with the merits. However, notwithstanding the over-emphasis on a
point of appellate practice, the Supreme Court did pass upon the merits of the
Craig case as presented, which was the question of the jurisdiction of Judge
Mayer to employ contempt proceedings in the premises, but it gave the matter
no consideration in its opinion and suggested no reasons whatever for its views.
The interesting and important question in the case was whether a letter
written by Mr. Craig criticizing the court in respect to an order previously
made in the Brooklyn Rapid Transit Co. receivership, was a contempt of court
within the meaning of the federal statute.
The federal statute restricts contempts to misbehavior in the presence of the
court "or so near thereto as to obstruct the administration of justice." This is
a limitation upon the common law powers of courts, and was enacted, as
previously suggested, to exclude such cases as that in which Judge Peck com-
mitted an attorney for criticizing one of the judge's decisions. At common
law it would probably be conceded, as it was in the Peck case, that there was
jurisdiction to make the commitment. But could a letter, written by one city
official to another city official, concerning an order long since made by Judge
Mayer, be considered misbehavior "so near" the presence of the court "as to
obstruct the administration of justice?" That question was a very important
one. The statute in question had received little attention from the Supreme
Court, and its meaning was a matter of conjecture. Mr. Craig, by employing
habeas corpus, confined his defense to the question whether Judge Mayer had
the power to commit him for contempt. (In re Frederick (I893) 149 U. S. 70),
and he did not raise the question of the proper exercise of the power. The
issue apparently was squarely presented to the Supreme Court. And they de-
cided it without discussion, merely observing that Toledo Newspaper Co. v.
United States, 247 U. S. 402, was "enough to show that the District Court had
power to entertain" the proceeding. One sentence alone was devoted to the
vital question of jurisdiction, while eight pages were devoted to the question
whether the order granting the writ of habeas corpus was reviewable by the

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366 MICHIGAN LAW REVIEW
Circuit Court of Appeals. The majority use rather sharp langua
cizing the use of habeas corpus instead of appeal, but it was M
right to raise the sole question of jurisdiction, if he so chose, a
Court's failure to discuss it robbed the decision of a large part o
The only adequate consideration which this question received w
dissenting judges, Holmes and Brandeis, who held not only that "th
resort to habeas corpus in this case was right and was the only pro
but that he was right on the question of jurisdiction, and that pu
cisms of the past actions of federal judges cannot under the statute b
contempts.
It is not a fair criticism of the decision to say that it failed to
question whether Judge Mayer rightly committed Mr. Craig for c
that question was not in the case, but it is a fair criticism to say, t
questions before it, one dealing with the technique of appellate m
the other dealing with the power of federal courts over the lib
people, it treated the former with thoroughness and virtually ignore
E. R. S.

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