Re Investigation of Sherwood , 259 Pa. 254 ( 1918 )

Opinion by

Mr. Chief Justice Brown,

In June, 1914, Henry W. Stough, a citizen of the State of Illinois, and a peripatetic evangelist, conducted a series of largely-attended public meetings in the City of Hazleton, this State. In the course of his addresses or sermons he referred to four residents of the city in terms regarded by them as slanderous, and each one of them brought an action against him in the court below. In March, 1916, he presented his petitions to the United States District Court for the Middle District of Pennsylvania, setting forth that, from prejudice and local influence in favor of each of the plaintiffs in said actions, and adverse to him, he would not be able to obtain justice in the court below, or any other court in .the State to which he might, under its laws, have a right to remove the said causes of action, on account of said prejudice and local influence; and the prayer of each petition was for an order removing the cause to which it referred from the Court of Common Pleas to the Federal court. These petitions were presented under the provisions of Section 28 of the Judicial Code of the United States, Act of March 3, 1911, c. 231, 36 Stat. at L. 1094, which are in part as follows: “Any defendant, being such citizen of another state, may remove such suit into the District Court of the United States for the proper district at any time before the trial thereof, when it shall be made to appear to said District court that, from prejudice and local influence, he will not be able to obtain justice in such State court.” “And- at any time before the trial of any suit, which is now pending in any District court, or may hereafter be entered therein, and which has been removed to said court from a State court, on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice, in said State court, the District court shall, upon the application, examine into the truth of said affidavit, and the grounds thereof; and unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice from said State court, it shall cause the same to be remanded thereto.” Writs of certiorari were allowed by the United States District Court, and the records of the four actions brought againfet Stough in the Court of Common Pleas of Luzerne County were removed to the Federal court. After such removal and before trial of the causes, counsel for three of the plaintiffs moved the court to remand them to the Court of Common Pleas. Upon argument of these motions before the United States District Court, Paul J. Sherwood, Esq., a member of the Luzerne County bar, who had appeared in the local court as counsel for Stough, was alleged to have said, “the five judges of the Luzerne court are so prejudiced that Stough could not get a fair trial in our courts.” This alleged statement having been brought to the attention of the judges of the Court of Common Pleas of Luzerne County, Evan C. Jones, Esq., a member of the bar of that court, was appointed amicus curiae to make investigation and report. He reported that, upon information given him by three reputable persons, worthy of credence, the said Sherwood, who appeared as counsel for Stough in the United States court, had stated on March 27, 1916, during the argument upon the motions to remand, before Hon. C. B. Witmer, judge of the United States court, in substance, “The five judges of the Luzerne court are so prejudiced that Stough could not get a fair trial in our courts.” Thereupon a rule was granted on the appellant to show cause why he should not be removed from his office of attorney, for breach of fidelity to the court and for misbehavior in his said office. An ansAver Avas filed to this rule and much testimony Avas taken before the President Judge of the Fifty-sixth Judicial District, specially presiding. After a patient hearing he found that the appellant had used the language upon Avhich the rule to show cause Avas granted, and adjudged him guilty of breach of fidelity to the court and of misbehavior in his office of attorney. This was followed by an order suspending him from such office for a period of six. months. From that order there has come his appeal.

The misconduct charged against the appellant, and for Avhich he Avas disciplined, was not for contempt of the court beloAV, committed in another court, and the question before us is not as to jurisdiction over alleged contempt there committed. He was charged and found guilty of a breach of fidelity to the court below and of misbehavior in his office as one of its attorneys. If he was guilty of either or both of these offenses, it had undoubted jurisdiction of the proceeding instituted against him, no matter where he offended. When he presented himself to the court below for admission to the bar, he made solemn oath, as required by the statute, that he would behave himself in his office as attorney within it with all due fidelity to it. This obligation was upon him in the United States court Avhen he uttered the words which led to the charges against him. He was there and then acting as an attorney-at-law, in connection with proceedings which had been instituted in the Court of Common Pleas of Luzerne County, and in which he had appeared for the defendant ; and the correct conclusion of the learned judge below was that it was impossible to sever his conduct from his professional relation to the court in which the suits against Stough had been brought. “All of the acts of the respondent which gave rise to the charges against him; were committed in conducting his legal business as an attorney....... From the very nature of his office, and its relation to the public and tbe court, a lawyer wbo enters at his own solicitation by tbe front door subjects bimself to ejection by tbe back one, if be do not ‘behave bimself well’ ”: Smith’s App., 179 Pa. 14; and “no question can be made of the power of a court to strike á member of tbe bar from tbe roll for official misconduct in or out of court”: Ex parte Steinman and Hensel, 95 Pa. 220. “It is unimportant as affecting tbe right and duty of tbe court in the premises where tbe misconduct of tbe attorney occurs” : Fell, C. J., in In re Graffius, 241 Pa. 222. “A state court may therefore disbar one of its attorneys for misconduct committed in a Federal court, or in any other state”: People v. Green, 9 Colo. 527; Thornton on Attorneys, Sec. 770. The jurisdiction of the court being clear, the only question for consideration .now is whether what was charged and clearly proven against the respondent constituted a breach of fidelity to it and misbehavior by him in his office as one of its attorneys.

By Section 2, Article III, of the Constitution of the United States, the jurisdiction of the Federal courts is extended to all controversies in law and equity between citizens of different states. The manifest reason for this provision was apprehensión by the framers of the. Constitution that prejudice or local influence might operate in the courts of one state against a citizen of another,: and its purpose is to secure for controversies between citizens of different states a tribunal independent of local influences and surroundings, whether the questions for determination are of fact or law. In pursuance of it the Act of Congress of March 8,1911, was passed, providing that a defendant in a suit in a state court may remove it to the proper Federal court at any time before the trial thereof, if it shall appear to'said court that he will not, from prejudice and local influence, be able to. obtain justice in the state court. The right of removal to a Federal court, on the ground of local prejudice, is not confined to prejudices which may affect a jury, but extends to those which may influence a judge: City of Detroit v. Detroit City Ry. Co., 54 Fed. Rep. 1; Ellison v. Louisville & N. R. Co., 112 Fed. Rep. 805.

The- learned judge below correctly said: “The single issue in this case is whether -the respondent made use of certain words in his argument in the District court.” If he was to be adjudged guilty of misbehavior in his office as an attorney, it was because he there used those words. However unseemly his conduct may have been in and out of court in connection with his answer to the rule taken upon him, the sole questions before the court were, • Did • he use, in the Federal court, the words charged against him, and, if he did, was his utterance of them misbehavior in his office as an attorney? Nothing else Was to be considered by 'the court below, and there is nothing else for our consideration. It found, upon all sufficient evidence, that the appellant had, on March 27,1916, said in the District Court of the United States at Scranton, “The five judges of the Luzerne court are so- prejudiced that Stough. could not get a fair trial in our .courts.” Were these words, under.the circumstances, privileged? If they were, the appellant was not technically guilty of misbehavior in his office as an attorney. His bad taste in using them is not the question in the case. His professional brethren may justly regard him guilty of that offense, but his loss of their respect is the only penalty for it, if the language used was privileged under the law.

The test of the appellant’s privilege is not whether the words spoken were true, but whether they were spoken in the course of a judicial proceeding and were relevant or pertinent to the subject or cause of the inquiry: Hoar v. Wood, 3 Met. 193. The right of Stough to remove to the United States courts the suits brought against him in the Common Pleas of Luzerne County was purely statutory, and the condition of thie act of congress upon which he could remove them was that he should make it appear to the Federal court that, from prejudice and local influence, he would not be able to obtain justice in the State court. In his petitions to the United .States court, asking for the removal of the suits to it, he averred that, from prejudice and local influence in favor of the plaintiffs and adverse to him, he would not be able to obtain justice in the courts of Luzerne County, or in any other State court to which he might, under the laws of the State, have a right to remove the same on account of such prejudice or local influence. This petition was supported by two affidavits, and the suits were removed to the Federal court. Subsequently the respective plaintiffs moved to remand them to the State court, and, in opposition to this, affidavits of residents of Luzerne County were filed, with the court’s permission, charging such prejudice and local influence against the defendant as would make it impossible for him to obtain justice, in the State court; and these affidavits, in effect, charged that the prejudice or local influence extended to the judges of the Court of Common Pleas. This was the situation in the Federal court when the appellant used the language for which the court below found him guilty of misbehavior in his office as an attorney. As already stated, prejudice and local influence, within the contemplation of the act of congress, are such as affect judges as well as jurors, and we are, therefore, constrained to hold that, in view of the averment in the petition to remove the suits to the Federal court, and of what appeared in the affidavits filed in opposition to the motions to remand them, the appellant was privileged in saying what he did in resisting the effort to have the suits against his client remanded. He was charging, with affidavits apparently supporting him, what the act of congress required his client to show, if the suits were to remain in the United States court. What he said was spoken in the course of a judicial proceeding, and was relevant and pertinent to the subject or cause of the inquiry. The rule taken against him was for certain language used by him in the Federal court, and for nothing else, and, on his appeal from the order suspending him from Ms office as an attorney, we must confine ourselves to it. Being of opinion, for the reason just given, that the appellant was within Ms privilege in making a disrespectful criticism of the learned and upright court below, the order from which he has appealed must be reversed.

Decree reversed, the costs below and on this appeal to be paid by the County of Luzerne.