PER CURIAM.
Defendant stands charged with contempt in an action invoking the original jurisdiction of this court. The evidence discloses a long continuing, carefully planned attack on members of the supreme court, and we must now determine whether or not such acts constitute a direct contempt and whether they are a clear and present danger to the court and to the administration of justice in Wyoming. The charges in the petition relate only to acts and statements against this court. However, Art. 5, § 2, Constitution of Wyoming, provides that:
"The supreme court shall have * * * a general superintending control over all inferior courts * * *."
and the charges, therefore, indirectly concern all of this State's judiciary.
Defendant's improper conduct, as charged in the petition, began during the pendency of his application for reciprocal admission to practice law in this State, which matter was decided adversely to Mr. Stone in Application of Stone, 74 Wyo. 389, 288 P.2d 767 (certiorari denied by the United States Supreme Court by No. 38, Misc., October 8, 1956), and is res judicata insofar as this application is concerned.
For clarity and in order to provide factual background essential to the determination of the present legal problem, it is necessary to set out a chonological outline of relevant events, even though some of such matters were discussed in the case formerly decided.
Defendant, at the time named Jack N. Steinberg, came to Sheridan, Wyoming, in November 1954. After some two days there, he returned to Washington, D.C., where he had previously practiced law, changed his name by legal process to J. Norman Stone, and forwarded to this court a "Petition for Admission to the Bar without Examination." This matter was referred to the State Board of Law Examiners, the agency authorized by law to report to the supreme court touching the qualifications and moral character of persons seeking to practice law in Wyoming. Concurrently, defendant filed the usual "Application for Character Report" with the National Conference of Bar Examiners, the agency which makes investigations and furnishes information to the State Board of Law Examiners of Wyoming and most other states in the union regarding persons applying for admission to practice law. Defendant in such application stated (as is required and customary), "I understand that I will not receive and am not entitled to a copy of the report nor to know its contents."
In the application the defendant disclosed the following facts, that:
(1) He had changed his name from Steinberg to Stone on November 30, 1954.
(2) He had refused to pay rent for an apartment occupied by him for some eighteen months and gave as the reason, "The management knew it was damp but did not divulge that fact to me * * *. Subsequently I became ill."
(3) He had sued fourteen different persons to recover fees for professional services; one for damages to him "as a result of food poisoning"; another for damages suffered in an automobile accident; three persons on promissory notes; and one on judgment creditor's action.
(4) The following actions had been brought against him in courts: (a) "Suit to Recover Rent," (b) "Complaint for Fraud and Deceit and/or Breach of Contract," (c) "Suit for Breach of Contract," (d) "Complaint for Libel," (e) "Complaint for Unlawful Attachment." Defendant claimed that all suits had been dismissed or settled, except one which was still pending trial.
(5) Five different complaints had been filed against defendant with the Committee on Admissions and Grievances of the Bar Association of Washington, D.C. Defendant gave his version of the facts surrounding each complaint, stating that each had been dismissed but admitting one had resulted in a reprimand.
The information resulting from the ensuing investigation merely confirmed what the application had disclosed on its face — that defendant was a troublemaker. This court in Application of Stone, supra, discussed some eighteen of defendant's past activities which we considered to be just cause why he ought not to practice law in this State. No useful purpose would be served by recapitulating or rediscussing such activities since the reported case is readily available.
Suffice to say that it is the firm conviction of the members of this court that no one shall ever be admitted to the Bar of this State unless this court is satisfied that he or she has an adequate knowledge of the standards and ideals of the profession and is otherwise a fit person to take the oath and perform the obligations and responsibilities of an attorney at law as well as possessing the requisite legal qualifications.
On August 3, 1955, five days before the State Board of Law Examiners filed its report with this court, defendant filed with the clerk a letter stating that he had been advised orally that he was not to be recommended for admission. His letter stated:
"If this be true, I respectfully request that I be so notified in writing and I further respectfully request that I be permitted to appear in open court before the Supreme Court of Wyoming so that I might present to said court overwhelming and cogent reasons supported by powerful and compelling evidence crying for my admission. I further respectfully request that I be permitted to subpoena all of the members of the aforesaid committee for purposes of examination under oath together with other witnesses favorable to me who will among other things testify to execrable practices of certain Sheridan lawyers living and deceased." (Emphasis supplied.)
On August 8, 1955, the Board of Law Examiners recommended in writing that the supreme court deny defendant's application for admission; and the court immediately entered an order granting defendant until September 10, 1955, to file "a statement in writing of his reasons why the recommendation of the State Board of Law Examiners should be overruled."
On August 13, defendant filed a "Demand for Jury Trial"; on August 18, a "Motion for Bill of Particulars," demanding a copy of the report and a specification of all charges; and on September 3, a "Request for Information" as to all applicants for the admission to the Wyoming bar since 1900. On October 5, he sent to this court a copy of his letter to "Attorney General Herbert T. Brownell" (copy of this letter was also addressed to each member of the court individually and, according to the notation on the letter, to twenty other persons or agencies) in which he stated:
"I indict the State Board of Law Examiners of Wyoming together with the Supreme Court of Wyoming with having fomented a conspiracy in concert to deprive me of my livelihood, willfully, knowingly, maliciously * * *."
On the same day, he wrote a letter to the clerk of this court, stating:
"I accuse the Wyoming Supreme Court of being unfair, prejudiced, partial and biased and am sure that I will not get a fair hearing unless the court permits a jury of good Wyoming people to hear it. The court is trying to bury me under a maze of legal technicality but the people of Wyoming can see through this hocus pocus."
Defendant failed to avail himself of the month-long opportunity provided by the court of stating reasons why the recommendation of the examiners should be overruled. Accordingly on October 18, 1955, the court rendered its opinion, Application of Stone, supra.
Following the issuance of that opinion, defendant filed no application for rehearing, the remedy prescribed for litigants who are dissatisfied with decisions of the court. Instead, he sent to the court various writings, scurrilous and contumelious in nature, demanding that certain steps be taken by the court. Such demands not being in accordance with the authorized procedure before the court, they were, in each instance, denied. Defendant also at different times sent to the court copies of his advertisements in the "Sheridan Press" and, later, copies of his own publication, "Stone's Shooting Star." We herewith list the signed papers which he sent to the court following the opinion, Application of Stone, supra, and before the beginning of the present case:
(a) December 12, 1955, a twelve-page "Motion for Jury Trial * * *" and "* * * Authorities * * *"; (b) December 14, 1955, a six-page letter to the court; (c) February 23, 1956, "Motion for Leave to Argue * * * and for Disqualification of * * * Blume, Parker, and Harnsberger * * *" together with thirty-eight pages of "Motion * * *," " * * * Affidavit * * *," and "Addendum * * *"; (d) February 28, 1956, "Notice of Taking of Deposition of D.P.B. Marshall"; (e) March 8, 1956, "Motion to Compel * * * Marshall * * * to Submit to Deposition or be Adjudicated in Contempt * * *."
On September 20, 1956, defendant sent a "Petition de Novo" which was retained by the clerk.
These writings as well as copies of the advertisements and publications will be discussed later in this opinion and judgment as the occasion arises.
In September 1956 the petition in the present hearing on contempt was filed and in the interest of clarity a chronology of the filings in this proceeding is here given:
(a) September 17, 1956, petition filed; (b) September 21, 1956, order to show cause issued; (c) October 5, 1956, defendant's "Motion to Dismiss," and order denying motion to dismiss; (d) October 10, 1956, "Motion of Appointment of Counsel * * *" and order denying said motion; (e) October 12, 1956, defendant's "Request for Grand Jury Session"; (f) October 16,, 1956, order denying request for grand jury session; (g) October 22, 1956, "Motion for Jury Trial * * *"; (h) October 23, 1956, order denying motion for jury trial; (i) October 24, 1956, defendant's "Request for Additional Thirty Days to File Answer," and order granting additional time for answer; (j) November 14, 1956, supplemental petition filed by plaintiff; (k) November 20, 1956, order setting cause for hearing; (1) December 4 and 5, 1956, hearing on cause.
Following this court's decision in Application of Stone, supra, defendant sought relief in the Federal court. The proceedings there are not directly related to the contempt charges but present an over-all account of the occurrences which are essential to a clear understanding of the general situation. His petition for mandamus was denied by the U.S. District Court for Wyoming, whereupon he appealed to the Court of Appeals for the Tenth Circuit, was there denied relief, and failed to appeal further.
From the first, defendant's denunciation of the court stemmed from his erroneous insistence that he had a right to practice law in any state he chose and if such right were denied him he should be permitted to demand reasons therefor and to have a jury pass upon the matter. This was pointed up by the statement which he made in his letter to Attorney General Brownell in which he charged that this court had "fomented a conspiracy in concert to deprive me of my livelihood." It therefore came as a surprise that defendant's attorney in the instant hearing voluntarily stated as a part of objection and argument:
"* * * the Supreme Court of the United States has held that the right to practice law is a privilege and not a vested constitutional right; that, being a mere privilege, granting of that is in the exclusive jurisdiction of the State and that the Supreme Court [of the United States] has no jurisdiction at all on granting or revocation of a license to practice law."
This statement is, of course, correct under the general law and especially under § 2-109, W.C.S. 1945, which provides that attorneys from other jurisdictions may be permitted to practice in Wyoming "in the discretion of the [Wyoming] supreme court." Defendant's present admission of the correctness of this legal principle — a complete reversal of position — cannot go unnoticed in any appraisal of the situation.
As far as this court has been able to discover, this contempt proceeding is the first of its kind in the history of this State. Moreover, we have been unable to find its parallel in any reported case from other jurisdictions. In consequence of the general powers conferred upon this court by the Constitution of Wyoming and in the light of Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 69 L.Ed. 767, this court deems that it has properly prescribed the proceedings which have been taken in this case, and that at each step defendant has been accorded his full constitutional and statutory rights to make a proper defense under the order to show cause to the charges of contempt against him. Although defendant immediately prior to the hearing filed a written motion to dismiss and later orally reiterated it, he was not sufficiently interested in phases other than the violation of constitutional guaranties to present any authorities. The constitutional questions will be discussed at some length in this opinion, and we do not consider that the empty assertions of other claimed grounds for dismissal warrant our attention or discussion here.
Defendant throughout the hearing persistently urged that his utterances have all been within the protection afforded him by the First, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, and the "Bill of Rights" of the Wyoming constitution, in that his utterances have been made in the exercise of his right of free speech or free press. Defendant's counsel stated his belief that since 1925 the provisions made by the Congress of the United States and the constructions placed upon the First, Fifth, Sixth, and Fourteenth Constitutional Amendments by the United States Supreme Court have so circumscribed and limited the right of judicial bodies to invoke contempt in the protection of their functioning that the occurrences complained of herein are not contempt, because they do not constitute a clear and present danger to the administration of justice.
We must make clear that we acknowledge the full right of the United States Supreme Court to interpret the provisions of our national Constitution, and that in interpreting the free speech and free press provisions of that document the Court has set certain guideposts for ascertainment of the limits within which free speech and free press must be contained in order to preserve the integrity and effectiveness of the courts in their administration of law and justice.
The problem before us then is first to define, as well as we may, the limited area which the Federal law and decisions have left untouched for necessary and inherent exercise of the prerogative of a state court to invoke the remedy of contempt to prevent interference with its functions.
As we understand the Federal decisions, the Court has been reluctant to demarcate with measurable certainty the exact limit of the area except as has been raised in specific cases presented to it. See Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; and Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095.
Mr. Justice Black in Bridges v. State of California, supra, at 314 U.S. 260, 271, specifically so stated, quoting Whitney v. People of State of California, supra, and further clarifying this:
"* * * free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them. * * *
* * * *
"* * * We must therefore turn to the particular utterances here in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment."
Earlier, in Schenck v. United States, supra at 249 U.S. 52, Mr. Justice Holmes had said:
"* * * the character of every act depends upon the circumstances in which it is done. * * *"
With varying emphasis this view has been recognized and enunciated. See Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546.
As we view the instant case, the charges against defendant are based primarily on writings which defendant has filed with this court, either by specifically requesting their filing or by mailing them to the clerk, thereby impliedly making such request. In many instances defendant simultaneously gave or sent to members of the public — often to news agencies and others through whom he thought he could secure the greatest coverage — copies of the instruments which he filed with the court. Such writings may, as exhibits in this case, be classified in three groups.
First. Those issued by defendant and sent to the court during the pendency of Application of Stone, supra, the first four mentioned having been received in evidence without objection.
(a) State's Exhibit 3, "Demand for Jury Trial," filed August 13, 1955.
(b) State's Exhibit 4, defendant's letter filed August 3, 1955.
(c) State's Exhibit 6, copyof defendant's letter to Attorney General Brownell.
(d) State's Exhibit 7, defendant's letter of October 5 to the clerk of this court.
(e) State's Exhibits 29, 30, and 31, tear sheets from issues of the Sheridan Press dated October 6, 12, 18, 1955, and each containing advertisement by defendant. Second. Those issued by the defendant and sent to the court during the pendency of the instant contempt case.
(a) State's Exhibit 8b, defendant's "Petition de Novo" received by the court September 20, 1956.
(b) State's Exhibit 8d, defendant's letter of October 18, 1956.
(c) State's Exhibit 9, "Motion to Dismiss," filed October 5, 1956. (The instrument mentioned by defendant's counsel as containing the "apology".)
(d) State's Exhibit 11, defendant's "Motion for Appointment of Counsel * * *," filed October 10, 1956.
(e) State's Exhibit 13, defendant's "Request for Grand Jury Session," filed October 12, 1956.
(f) State's Exhibit 15, defendant's "Motion for Jury Trial * * *," filed October 22, 1956.
(g) State's Exhibit 17, "Request for Additional Thirty Days to File Answer," filed October 24, 1956.
(h) State's Exhibits 19, 20, 21, 22, 23, 24, issues of "Stone's Shooting Star" published weekly begining October 27, 1956, to the date of the hearing.
(i) State's Exhibit 28, tear sheet from the Sheridan Press dated October 10, 1956, containing defendant's advertisement.
Third. Those issued by the defendant and sent to the court after the decision in Application of Stone, supra (October 18, 1955), and before the filing of the present contempt case on September 17, 1956.
(a) State's Exhibits 25, 26, 27, tear sheets of the Sheridan Press dated May 10, 21, June 5, 1956, each containing advertisement of defendant.
(b) State's Exhibits 32, 33, 34, 35, tear sheets of the Sheridan Press dated November 5, 16, 18, December 16, 1955, each containing advertisement of defendant.
We consider that the exhibits listed by us in the first and second groups are properly admissible as evidence in this case. Other exhibits offered consist principally of routine orders of this court, the proceedings in Federal courts, defendant's letter relating to his candidacy for district judge, and certain mailings of publications by defendant to this court. Some of these were admitted without objection, some were in effect stipulated, and some were admitted by the court at the close of the State's case after previously reserved rulings. We deem it advisable to here clarify our views regarding the admissibility of the evidence.
That listed by us in the first and second groups is admissible as relating to the offense charged. All other evidence is admissible solely as it relates to continuity and perspective of defendant's acts, the intent of defendant, and his present sincerity or lack of sincerity in the purported apology — not as to the gravamen of any offense charged.
A verbatim statement herein of the court's views as to the contemptuous nature of utterances by the defendant would be unnecessary as duplicating the judgment issued concurrently herewith and by reference hereby made a part of this opinion.
We turn now to a consideration of the merits of the case, i.e., whether or not the utterances made by the defendant are within the provisions of the Constitution allowing freedom of speech and freedom of press, or whether his acts have transcended such freedoms and become either direct contempts inherently punishable by the courts in the proper maintenance of their functions or are otherwise contemptuous to the extent of constituting a clear and present danger to the administration of justice in Wyoming.
Initially, it may be said that the power to punish for contempt is inherent in all courts, and this authority has been so many times decided that it may be deemed as settled law. See generally National Lawyers' Manual "Contempt," p. 15; Ex Parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; Ex Parte Robinson, 19 Wall. (U.S. 505, 22 L.Ed. 205; Eilenbecker v. District Court of Plymouth, 134 U.S. 31, 10 S.Ct. 424, 33 L.Ed. 801; Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047; Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186; and Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162, 35 A.L.R. 451.
In speaking on this subject, Mr. Justice Field in Ex Parte Robinston, supra at 19 Wall. (U.S.) 510, said:
"The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. * * *"
He continued by saying that the courts of the United States the moment they were called into existence and invested with jurisdiction over any subject became possessed of this power.
In passing it is significant to note two points in which the judiciary of the Federal government differs from that of most states — life tenure and restricted powers to cite for contempt. The tenure and the restrictions were undoubtedly reciprocally related in the thinking of our forefathers because (a) the Federal Constitution provided: "The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior," Art. 3, § 1; and (b) the First Congress, convened after the day fixed for the operation of the new government but before the last state had ratified the Constitution, in 1 Stat. 83 (1789) passed a law restricting contempts before Federal courts to "any cause or hearing before the same." This provision has undergone some changes, in 1831 being amended to read, "That the power of the several courts of the United States to * * * inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehaviour of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice * * *." and subsequently amended to presently read:
"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as —
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; * * *" 62 Stat. 701 (1948), 18 U.S.C.A. § 401 (1950 ed.)
This Congressional restriction in whatever form it has been evolved could scarcely fail to exert an automatic inhibition upon Federal courts, often imperceptible, but nevertheless potent. This has undoubtedly been a major factor in molding the views of the Federal courts, even when they have been called upon to pass upon contempt matters arising in courts of a state in which there was no restriction of the power to punish for contempt, either constitutional or statutory; and, perhaps, has been in part responsible for the numerous definitions of "direct contempt," "contempt in the presence of the court," and ramifications of that term.
By the weight of authority any type of contempt which is in the face of the court is punishable summarily as an improper interference. Ex Parte Terry, supra; Ex Parte Savin, 131 U.S. 267, 9 S.St. 699, 33 L.Ed. 150; In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.
"* * * the requirements of due process are less strict in the case of direct contempt committed in the actual presence of the court than they are in the case of constructive contempt * * *." Annotation, 99 L.Ed. 892, 893.
It has been the view of the Supreme Court that direct contempts include even minor matters which are in the presence of the court. See Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569, 573. In that case the contempt arose by reason of remarks made by counsel to the court after counsel had been limited as to remarks he might make to the jury. The court fully appreciating that the matter here was not in the class of a clear and present danger nevertheless said:
"Historically and rationally, the inherent power of courts to punish contempts in the face of the court without further proof of facts and without aid of jury is not open to question. This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disrepute. Such summary conviction and punishment accords due process of law."
See also Annotations, 93 L.Ed. 578 and 1151.
The view that direct contempts do not necessarily deal with minor matters in the immediate presence of the court is indicated by the statement in Sacher v. United States, 343 U.S. 1, 12, 72 S.Ct. 451, 96 L.Ed. 717:
"* * * It cannot be that summary punishment is only for such minor contempts as leave the judge indifferent * * *."
Under the holdings of most courts, the writings which the defendant authored and placed with this court constitute direct contempt and are properly punishable as such.
In Cooke v. United States 5, Cir., 295 F. 292, the defendant caused a letter to be delivered to the judge in his chambers. The letter in effect stated that the judge had shown his prejudice against Cooke's client which would prevent the client receiving justice in future trials and asked the judge to disqualify himself, impliedly threatening a disqualification if he did not and containing matter personally derogatory to the judge In the opinion which considered the matter on appeal, Mr. Chief Justice Taft in 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767, held the letter was contemptuous and that the offense had been committed in the presence of the court, although not "in open court" so as to permit summary punishment without a hearing. He also took occasion to discuss the meaning of such words as "under the eye or within the view of the court," "in the face of the court," and "in facie curiae," and reversed and remanded the cause because it was not sufficiently in the actual view of the court to permit summary punishment without a hearing.
In Owens v. Dancy, 10 Cir. 36 F.2d 882, 883, the defendant in pleading charged that:
"`* * * to determine this cause and decide the same in the manner hereinbefore in this motion described, without judicial consideration and without the benefits of the briefs presented in said cause, and without the knowledge on the part of the justices participating in said decision of what was in the case — made upon which said causes both proceeded, was a legal fraud against the rights of these movants * * *'."
The circuit court held "this constituted contemptuous conduct in the presence of the court," and certiorari was denied by the United States Supreme Court, 281 U.S. 746, 50 S.Ct. 351, 74 L.Ed. 1158.
In People v. Parker, 396 Ill. 583, 72 N.E.2d 848, the defendant, charged with contempt, had filed as exhibits in the circuit court various documents denominated by the Illinois supreme court as "impertinent, insulting, malicious and scandalous charges against various judges" (the details of the exhibits are set out in People v. Parker, 328 Ill. App. 46, 65 N.E.2d 457). The United States Supreme Court affirmed a judgment of contempt in Parker v. People of State of Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886.
In United States v. Huff, D.C.Ga., 206 F. 700, the court held that letters sent to the judge constituted a contempt.
In Fleming v. United States, 9 Cir. 279 F. 613, 615, appeal dismissed on motion of petitioner, 260 U.S. 752, 43 S.Ct. 10, 67 L.Ed. 496, an action for libel, at the time set for pleading defendant filed a petition and motion for change of venue, claiming among other things that the proceedings against him had been instituted with the connivance of the presiding judge. The court held that this was a "direct affront" to the court and that "summary inquiry and a record of the finding and punishment are all that are necessary to constitute due process of law," and affirmed a conviction of contempt.
See also Froelich v. United States, 8 Cir. 33 F.2d 660, which discusses the right of a court to punish for contempt by reason of a letter to the United States Attorney making improper statements about a presiding judge. The court therein did not specifically hold that this was a direct contempt but held that it was contemptuous and implied that the contempt was direct.
The majority view among state courts is in accord with these Federal cases in holding that the filing of insulting and scurrilous letters or pleadings constitutes a contempt which is designated either "direct," "in the presence of the court" or by some other name designed to indicate the court's view of its authority to deal summarily with the very imminent danger to the continued administration of justice. A brief resume of some of these contempt cases provides information as to the specific writings which have over the years been so considered.
In McCormick v. Sheridan, 3 Cal. Unrep. 35, 20 P. 24, 25, the filing of an improper petition was held to be contempt "in the face of the court."
In State v. Waugh, 53 Kan. 688, 37 P. 165, the sending of a letter was held to be contempt.
Lamberson v. Superior Court of Tulare County, 151 Cal. 458, 91 P. 100, 11 L.R.A. (N.S.) 619, held that the filing of scandalous and improper papers was "in the immediate view and presence of the court."
In Coons v. State, 191 Ind. 580, 134 N.E. 194, 20 A.L. R. 900, the material was handed to the judge in open court and this was held to be contempt.
In State v. Owens, 125 Okla. 66, 256 P. 704, 52 A.L.R. 1270, the court held that the filing of a scandalous motion was a direct contempt.
Blodgett v. Superior Court of Santa Barbara County, 210 Cal. 1, 290 P. 293, 295, 72 A.L.R. 482, held that "points and authorities" filed in the support of a demurrer and containing inferable innuendo against the court constituted a direct contempt. It was also held in this case that a scandalous letter written to the court by the defendant during the contempt action also constituted direct contempt.
In re Caruba, 139 N.J. Eq. 404, 51 A.2d 445, 458, affirmed on appeal 140 N.J. Eq. 563, 55 A.2d 289, certiorari denied Ex Parte Caruba, 335 U.S. 846, 69 S.Ct. 69, 93 L.Ed. 396, held that a scurrilous letter addressed to the court was contempt "in facie curiae."
In People v. Richardson, 397 Ill. 84, 72 N.E.2d 851, the filing of a motion accusing the judge of signing false and untrue certifications of proceedings was held to be contempt.
In State v. Gussman, 34 N, J, Super. 408, 112 A.2d 565, 566, a person who had been given a ticket for speeding wrote to the judge of the municipal court stating that "`it is manifestly futile for me to drive a hundred and twenty-five miles to attempt to establish my innocence. Hence, I shall not go to the trouble. This is, I realize the reason I was chosen for the shakedown.'" This sending of a letter was held by the court to be contempt.
A reading of the above cases discloses a great variety of innuendo, insult, and other improper reference to officials of the courts by the respective defendants. However, it will be noted that in none of these cases was there a continued campaign of invective of the nature sent to this court by the defendant herein. Under the precedent of both United States and state courts, it seems clear that the letters, motions, and other pleadings, as well as the papers and advertisements filed by defendant with this court, constitute direct contempt and are properly punishable.
Even though the utterances of defendant should be held to be constructive rather than direct contempts, we think those statements of defendant filed in this court during the pendency of Application of Stone, supra, are contemptuous and properly punishable. Undoubtedly, his counsel has misconceived the holdings of the Supreme Court cases which discuss the clear and present danger doctrine. He insists that these cases grant him entire immunity for whatever statements he may have made, whether libelous or not, and that the only remedy which this court or its members has is a resort to libel or slander action. (There seems some confusion as to whether "libel" or "slander" was intended to be used by counsel.) We do not interpret Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546.
Schenck v. United States, supra, related to distribution of leaflets claimed by the Government to be a part of espionage charged against defendant; and Mr. Justice Holmes in delivering the majority opinion of the court, affirming a conviction, indicated that there must exist a clear and present danger that defendant's action will bring about an evil — in that case espionage — in order to outweigh Constitutional guaranties.
Gitlow v. People of State of New York, supra, was an indictment for the crime of anarchy in which it was charged that defendant circulated pamphlets urging the overthrow of the Government by force and violence. Mr. Justice Holmes pointed out the fact that in his opinion there did not actually exist a present danger to the Government in the light of all the then existing circumstances (this was in 1925) and recalled the statement that he had made in the Schenck case:
"`The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the state] has a right to prevent.'"
In these two cases there was no question of contempt before the court.
In Bridges v. State of California, supra, defendants were found guilty of contempt because, severally, a newspaper published allegedly improper editorials and a party to an action sent an allegedly improper telegram. Neither the newspaper editorials nor the telegram was sent to or filed with the court in which the case was pending.
In Pennekamp v. State of Florida, supra, there was a conviction for contempt because of writings and cartoons published in a newspaper regarding a pending case. The materials were not sent to nor filed with the court as constituting an attempt to influence it. Craig v. Harney, supra, related to contempt occasioned by a newspaper publication criticizing the court for action in a pending case. No copy was filed with the court.
This brief reference to some of the leading clear and present danger cases clearly spotlights the fact that the Court in applying that doctrine has heretofore, as far as contempt is concerned, dealt either with a legitimate newspaper expressing an honest opinion over a brief period of time during the trial of a case or the criticism of a litigant who, more or less as a reflex action, has indulged in criticism of a court's order; but in no instance was direct contempt committed.
In no case in which the United States Supreme Court has discussed the clear and present danger doctrine has there been an instance similar to that now being considered, where there has been a sustained, continuous, and planned attack by a person professing to be learned in the law (and an aspirant to be admitted as such) against a court and its members with the apparent intention of villifying and degrading the judiciary of a state by false, vicious, and malicious propaganda calculated to besmirch and destroy in the mind of the public the honor, integrity, and reputation of the state's judicial officers through direct charges, innuendoes, sly suggestions and perversions of truth.
The exact words used by the defendant which constitute these contempts are set out in the judgment. Suffice it to say that these writings, authorship of which defendant, during the hearing admitted by stipulation, are far more reprehensible, contumelious, and injurious to the judicial arm of this State's government than any of the criticisms which have been held to be contempts in other cases. Even were this not the case, the offenses are so numerous and so often repeated as to present an exceptional circumstance. We feel, therefore, there is no question but that this defendant has committed several contempts by his utterances contained in the first group.
In many of the cases heretofore cited, defendants who have uttered writings much less serious than those of this defendant have been held to be guilty of contempt. We hold that those writings filed by the defendant with this court, as set forth in the judgment in this case, are contemptuous and constitute a clear and present danger to the administration of justice in the supreme court and in the district courts of the State of Wyoming.
Counsel objected to evidence of defendant's improper statements made during the pendency of this contempt action, but he presented no authorities which indicate that actions and utterances during a contempt action may not in themselves amount to contempts. In only one case coming to our attention have we found an instance of a defendant who has had the temerity to harass the court during an action against him for contempt, and such case would indicate that defendant's position on the subject is untenable. See Blodgett v. Superior Court of Santa Barbara County, supra.
There seems to be no logical reason why the rules regarding contempt should not apply in any action pending before the court (even though it be a contempt action). Otherwise a court would find it impossible to protect itself during a contempt action and the defendant might be permitted to destroy the court in the very process which sought to punish his past improper behavior.
In view of our conclusions as above expressed, that the writings designated as groups one and two — those filed with the court during the pendency of Application of Stone, supra, and those filed with the court during the pendency of this contempt action — constitute contempt and are punishable as such, it becomes unnecessary for us to decide whether defendant's making and filing of statements with the court during a time when a case is not actually pending (which would include the writings in the third group) constitutes contempt.
As previously indicated defendant's counsel has throughout the trial repeatedly insisted that, under the provisions of the First Amendment relating to free speech and the Fourteenth Amendment relating to due process, defendant was entitled to make any statements which he might desire about the court and its personnel — however vile — and that this court or the members thereof were left to the sole remedy of libel. This position is not well taken for numerous reasons: (1) "* * * the right of the freedom of speech and of the press * * * does not * * * include the right to attempt by wanton defamation, to prejudice the rights of litigants in a pending cause, degrade the tribunal, and impede, embarrass, or corrupt the due administration of justice." 11 Am.Jur., Constitutional Law § 320.
"* * * freedom of speech and liberty of press are not absolute or unqualified rights, but are relative; that is * * * freedom of speech and press does not mean that one can talk or distribute where, when, and how one chooses * * * and does not afford one the right to * * * impede, or interfere with, the orderly administration of justice." 16 C.J.S., Constitutional Law § 213 (5), citing many Federal cases.
(2) This general law which prevents any person from wantonly defaming or degrading a tribunal and from corrupting the due administration of justice becomes in effect a mandate under the provisions of Art. 1, § 20, of the Wyoming constitution, which provides every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
(3) The Court has always applied the clear and present danger doctrine sparingly and has never applied it so as to prevent the punishment of direct contempt of court; and in constructive contempt actions, has confined its use to specific situations which particularly impress the Court. This extreme care exercised by the Court has been consistent with the often repeated legal philosophy that protection of the collective rights of society must not be overlooked in the preservation of the rights of the individual.
"Every constitutional right or privilege must be enjoyed with such limitations as are necessary to make its enjoyment by each consistent with a like enjoyment by all, for the right of all is superior to the right of any one." 11 Am. Jur. Constitutional Law § 308. See also 16A C.J.S., Constitutional Law § 569 (1). Interesting discussions on the doctrine of clear and present danger are found in 27 Notre Dame Law. 325; 38 Iowa L.Rev. 563; 52 Colum. L.Rev. 314; 10 Ark.L. Rev. 155; 39 A.B.A.J. 800; 63 Harv.L. Rev. 840; 65 Harv.L.Rev.1.
(4) The Supreme Court has repeatedly upheld convictions for contempt whenever it has appeared that there existed a clear and present danger to the court and to the administration of justice — as has been specifically found by this court in the present case.
After the close of the plaintiff's case, defendant's counsel renewed the "apology" of the defendant to the court and later discussed this matter in his final argument, requesting that it receive consideration in the disposition of the case. He did not contend that an apology, however sincere, is a defense. Additionally, an examination of the instrument which contains the so-called "apology" shows no sincerity because there was further calumny and vituperation in the very instrument itself. Furthermore, in his later publications, the statements showed directly as well as by innuendo that there was no penitence whatsoever, no intention to alter the nature of his previous improper actions, and that any such "apology" was a mockery, conceived for the sole purpose of capitalizing upon it in his publicity and in his defense.
This decision is based upon the contemptuous utterances of defendant during the pendency of Application of Stone, supra, and the present contempt case, without reference to those made at the time when neither case was actually pending. However, to confine a state court and its members to the remedies of libel and slander as their only protection against unwarranted, contumelious, and libelous attacks whenever a case is not then actually pending would, in effect, be to condemn that court to absolute destruction. Paradoxically, such a restriction would decree the simultaneous extinction of the very state government which the United States constitution recognizes and for which the state constitution has so wisely provided.
A judgment is concurrently issued finding defendant guilty of contempt.