Cormark v. Coleman , 120 Fla. 1 ( 1935 )

I am unable to fully. concur in the majority opinion in this case.

I concur in the conclusion reached that the statute authorizing the assignment of a Circuit Judge to act as Judge of a Criminal Court of Record is valid and that in the instant case Judge Jefferson B. Browne, a Circuit Judge, was vested with power and jurisdiction to act as Judge of the Criminal Court of Record in and for Dade County, Florida, at the time of the occurrence of the acts complained of.

I am unable to agree, however, that the acts set forth in the petition for citation for contempt which are alleged to have been acts of contempt of court are sufficient to constitute contempt.

The petition alleges the publication in a newspaper of two paragraphs, the first of which is as follows:

"Judge Jefferson B. Browne, former Chief Justice of the Supreme Court, was ordered to the Lewis trial by Governor Dave Sholtz and at first he saw nothing wrong with Pine's prosecuting his friends."

It is impossible for me to see in this paragraph any language which is susceptible as being construed as contemptuous. Certainly there could be nothing wrong per se about the act of a prosecuting attorney doing his duty as a prosecuting officer, though one of his friends happens to be the defendant under prosecution. If the prosecution office does his duty in a fearless and impartial manner, certainly there is nothing wrong in such conduct, regardless who the defendant may be. It might develop that a prosecuting attorney when called upon to prosecute his friend was not inclined to do his full duty and then it might be that a Judge would see something wrong about that prosecution and use his power to correct that wrong. There is no reflection in that paragraph on either the Judge as such or the court.

The other paragraph is as follows:

"It was Judge Browne who presided at the trial of Pine himself a few years ago when the county solicitor was 'vindicated' on charges of improperly performing the duties of his office in connection with a slot machine scandal that brought about the suicide of former Sheriff Lehman."

I find nothing in this paragraph which could be construed as contempt of court. Perhaps the statement contained in this paragraph was not true. Perhaps, as is shown by the answer, that it was another Judge Browne who officiated at the Pine trial referred to, but there is nothing in this paragraph which expresses the thought or insinuates that there was any improper conduct on the part of the trial judge who officiated at that trial and one must draw heavily upon one's imagination to reach the conclusion that the language used carried an insinuation of improper conduct on the part of the trial judge. Certainly to say that a particular judge presided at a trial wherein someone accused of some crime was vindicated is no reflection upon the trial judge. The most honorable, fair and fearless judges of our country have presided with dignity and unquestioned integrity and ability in trials wherein persons charged with the most heinous offenses have been vindicated of the charges upon which they were being tried and this will continue to happen. Sometimes the guilty will be vindicated. Sometimes the innocent may not be vindicated but may be convicted and either may occur without any improper conduct on the part of the trial judge.

I feel very strongly that the respect due to courts of the land must be upheld; that contemptuous conduct should be punished and that there is a limit to the freedom which may be exercised by the press in unwarranted criticisms of judges and of the courts, but I think that if the respect which should be accorded to the courts is upheld that the courts must not fall in the error of arbitrarily adjudging acts to have been perpetrated in contempt of court when there is no basis in fact for such adjudication.

The majority opinion, referring to the two paragraphs above quoted, says: "Such admitted published words are not ambiguous." It then says that such words "are necessarily contemptuous of the court in its process."

I agree that the published words are not ambiguous. They contain no veiled insinuation. They merely state two propositions as facts. I think it is immaterial whether the statements are true or untrue. There is nothing in either of them which reflects upon the ability or the dignity or the integrity either of the trial judge as a man, or as a judge, nor do they reflect upon the court as an institution.

In the case of Ex Parte Biggers, 85 Fla. 322, 95 So.2d 763, we said:

"If the charges duly made are admitted to be true and they clearly constitute contempt whether so intended, or not, appropriate punishment follows. If the matters charged and admitted to be true are ambiguous or do not clearly constitute contempt, and an intent to offend is duly denied under oath, a discharge from custody follows. See In re Chadwick, 109 Mich. 588,67 N.W. Rep. 1071."

On authority of this holding, I think, the petitioners should be discharged.