This is аn original proceeding wherein Robert Ong Hing, hereinafter called petitioner, seeks a writ of certiorari or, in the alternative, a writ of prohibition to prohibit, compel and direct judge Edwin R. Thurston, hereinafter referred to as respondent, from enforcing or in any manner carrying out his order of June 1, 1966, which found petitioner guilty of contempt of court and imposed a fine of $500 to be paid within 48 hours, or be incarcerated in the county jail for fifteen days. After a hearing, we issued an alternativе writ of prohibition.
The facts on which the writ was issued are: On May 5, 1966, the First National Life Insurance Company held its annual shareholders’ meeting in Pheonix, Arizona. Some of the shareholders, being dissatisfied with the procedure followed and the results of this meeting, filed an action in the Superior Court of Maricopa County on May 12, 1966, alleging various irregularities with respect to the conduct of the meeting, and obtained a restraining order postponing announcement of the results of the election. The title of this action was Dempsey-Tegeler & Co., Inc., et al., v. Goldberg, et al., and this action carried Cause No. 188223.
On May 16, 1966, the First National Life Insurance Co., one of the defendants in Cause No. 188223, filed a separate action as plaintiff, designated as No. 188345, attacking the validity of proxies solicited by Dempsey-Tegeler & Co., Inc., on the grounds of misrepresentation and also because of other alleged illegalities.
At the conclusion of a hearing in Cause No. 188223, respondent directed counsеl to appear before him on May 21, at which time findings of fact were completed. Included in the order on that date was an appointment of a Special Master and his directions with respect to a shareholders’ meeting which was ordered to be held on May 27, 1966. A portion of respondent’s
“That all parties hereto, and all persons having knowledge of this order on the Court’s own motion be and they are hereby restrained from interfering with or obstructing the Special Master in any manner in discharging his duties hereunder and from in any manner interfering with or obstructing the orders, requirements, directions and instructions herein made and provided by the Court.”
Petitioner was a party to this action as well as attorney for the defendants.
Petitioner filed a notice of appeal from the above-mentioned order to the Court of Appeals and filed an application for Stay of Order on Appeal before respondent. The application for stay was denied by respondent аnd on May 25, 1966 petitioner filed a petition for Stay of Order on Appeal in this Court. On May 26, 1966 this Court denied the petition for Stay of Order on Appeal.
On May 26, 1966 petitioner appeared before the Special Proceedings Judge of the Superior Court of Maricopa County and, upon advising the judge that the restraining order which he then sought [in Cause No. 188345] was in a completely separate cause from No. 188223, he obtained an order restraining certain of the DempseyTegeler group frоm voting certain proxies at the May 27th meeting.
This second restraining order was served just prior to the Special Master’s convening the shareholders’ meeting the morning of May 27th. After such service, the Special Master recessed the meeting until later the same day. The defendants, in Cause No. 188345, filed a motion for an order vacating the second restraining order and obtained an order for an immediate hearing of said motion. The motion was assigned to the presiding judge and was heard by him on the same day. After vacating the temporary restraining order in Cause No. 188345, he ordered that Cause No. 188345 be consolidated with Cause No. 188223 and to thereafter proceed as No. 188223.
While the above motion was being heard, and in which petitioner was appearing as an attorney of record and a party, an associate of petitioner appeared ex parte before another judge and obtained a restraining order in Cause No. 188223 which was served and restrained the Special Master and others from carrying out the order of respondent with respect to the recessed shareholders’ meeting. Apparently, when presented with this third restraining order in Cause No. 188223, the judge commented to the effect that there was a hearing going on in that matter at that moment and apparently the representation was made that the hearing was in Cause No. 188345 and that the instant restraining order being sought was in Cause No. 188223 and that they were different. Upon this assurance, the judge issued the rеstraining order sought, which was retained by petitioner’s associate and held by him until after the ruling was made on the motion that was being heard. This ruling was ■ contrary to petitioner’s contention and as the Special Master and others left the courtroom, the Special Master was served with the restraining order.
Prior to May 27, 1966, respondent had advised all parties that he had made arrangements to, and that it was necessary for him to be out of the city of Phoenix on the date of the shareholders’ meeting. Upon returning to his office on May 31, respondent was advised of the above developments in this matter whereupon he notified petitioner to appear in his court at eleven o’clock a.m. on June 1, 1966. There is no indication that petitioner was advised as to the nature of said proceedings or what was to be taken up at said hearing. Petitioner appeared on June 1, 1966 and the proceedings began by respondent calling on the judge who issued the second restraining order to make a statement in open court concerning the circumstances surrounding the issuance of the restraining order- and order to show cause. Respondent then had
Petitioner contends he has no plain, adequate or speedy remedy from the judgment of contempt entered by respondent on June 1, 1966, and no appeаl therefrom. In addition, petitioner alleges that respondent has clearly taken this action in violation of due process of law in that petitioner was never advised or informed of the nature of the proceedings held on June 1, 1966 until such time as respondent actually entered his order of contempt.
There are two questions presented by this matter:
(1) Whether respondent employed proper procedures in issuing this contempt decree?
(2) Was petitioner’s conduct contumacious ?
In view of our determination of the first question, we find it unnecessary to comment upon petitioner’s conduct.
Petitioner contends that if his conduct was in contempt of court, it was of such a nature to be classified as criminal contempt and therefore comes within the provisions of A.R.S. §§ 12-861 through 12-863 instead of A.R.S. § 12-864. A reading, analysis, and comparison of A.R.S. § 12-861 to § 12-864 indicates we are dealing with two different subjects, with totally different procedures and results.
First, A.R.S. § 12-861 states:
“A person who wilfully disobeys a lawful writ, process, order or judgment of a superior court by doing an act or thing therein or thereby forbidden, if the act or thing done also constitutes a criminal offense, shall be proceeded against for contempt as provided in §§ 12-862 and 12-863.”
The two statutes mentioned in the above quoted statute provide, among other things, that the proceeding shall include an order to show cause, service, return, attachment of person or sequestration of property, jury trial, sentence, fine and appeal.
In the same article with the above statute is A.R.S. § 12-864 which provides:
“Contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and contempts committed by failure to obey a lawful writ, process, order, judgment of the court, and all other contempts not not specifically embraced within this article may be punished in conformity to the practice and usage of the common law.”
This, of course, is the traditional contempt power inherent in the judiciary branch of our government.
There is an apparent inconsistency in thеse statutes which has resulted in confusion in the past, and is presented again in this matter. In commenting on the difference in the statutes, we stated in In re Wright,
Another approach to this particular problem is to research the history and purpose of the contempt statutes and try to resolve any conflict by this method. We turn to former cases in our state for this information. Once again the case of In re Wright, supra, is helpful as we stated therein:
“These statutory provisions of ours classifying and regulating thе procedure in certain specific contempts were passed by our Legislature originally in 1913. * * It is generally understood that they were copies of what is commonly known as the Clayton Act, at that time pending in Congress but not enacted as a federal law until October 15th, 1914. Chapter 323, 38 Stats, at L. 738, 739, §§ 21, 22, Comp.St., §§ 1245a, 1245b; 6 Fed.Stat. Ann., (2d Ed.) pp. 141, 142 * * * [18 U.S.C.A. § 402]. There were verbal differences from the congressional act to meet local conditions, but otherwise our statute as originally passed was the same as the Clayton Act.”
The fountainhead of A.R.S. § 12-864 reads as follows:
“Sec. 24. That nothing herein contained shall be construed to relate to con-tempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to con-tempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced within section twenty-one of this Act, may be punished in conformity to the usages at law and in equity now prevailing.” 38 Stat. 739, 740, § 24.
The only significant difference in the Act as originally enacted and our present A. R.S. § 12-864 is that the latter does not contain the phrase, “Nothing herein contained shall be construed to relate to * * *.” However, as originally adopted by our legislature, the above phrase was included in our laws. R.S. § 1803, 1913. In the Revised Code of 1928 the phrase was omitted without explanation. R.C. § 4474, 1928. The statute was carried forward from 1928 in the 1939 Code as § 27-604.
The phrase referred to is important in the interpretation of the statute as shown by the case of Hill v. United States ex rel. Weiner,
We do not believe the legislature, by the omission of this phrase, intended to limit the inherent power of the judiciary to punish contempt if necessary to uphold and protect judicial processes from being brought into disrepute. There is little doubt but that the words “nothing herein contained” were omitted because they were superfluous and the meaning was still intended. This construction of the statutes is compatible and provides a workable contempt procedure. If a party litigant initiates the criminal contempt proceedings,
The facts of this case indicate that for either, or both, of the two constructions of the statutes, this matter must be determined pursuant to A.R.S. § 12-864. Certainly, the proceeding was not commenced by a party litigant, but by the respondent. Neither'can we say the restraining order specifically forbade an act particularly in regard to cause No. 188345. We find the proceeding was properly initiated according to A.R.S. § 12-864,
Thereforе, the criminal contempt we are dealing with under A.R.S. § 12-864 is different from the criminal contempt referred to in A.R.S. §§ 12-861 through 12-863. While-it carries the same label, the proceedings are entirely different. The mere label is not determinative of the question. It must be determined who instituted the proceeding — the judge or a party litigant — -as well as a- determination of the nature of the act; whether it is failure to obey an order or doing a forbidden criminal act.
Any act which is calculated to hinder, obstruct or embarrass a court in the administration of justice, or which lessens the dignity or authority of a court may be defined as contempt. Contempt has been broken down into four classifications: criminal contempt is the commission of a disrespectful act directed at the court itself which obstructs justice, Van Dyke v. Superior Court,
We have stated:
“The superior court of Maricopa county is an entity. Its separation into divisions is purely imaginary and for convenience only. The jurisdiction of the court, no matter by which judge it is - exercised, is that of the whole court, and not of one judge nor division thereof.” Peterson v. Speakman,49 Ariz. 342 ,66 P.2d 1023 .
The word “court” as used in A.R.S. § 12-864 seems to fit the definition of court as “ * * * an organization composed of individuals, established for the administration of justice.” Peterson v. Speakman, supra. The punitive aspect of the contempt power is addressed to the court as a whole but it is only exercised through individuals. The very nature of any contemptuous act requires, in most instances, jurisdiction to punish for such conduct by the individual judge. While each and all of the judges possess the contempt power as members of the same tribunal, the exercise of such power is singular rather than unanimous. It is a reasonable and practical solution to conclude that the contempt statutes are directed to the particular judge of the court instead of the broader definition of the word.
The origin and history of our contempt statutes reveal, as indicаted earlier, that they were adopted in 1913. The adoption of these statutes antecede the Peterson v. Speakman case, supra, which dealt with a- constitutional provision concerning com
The reason for differentiating contempt is that direct contempt may be adjudicated summarily and an indirect contempt requires that the alleged сontemnor be given advance notice of the charge, an opportunity to be heard, and present testimony in his own behalf. The party is entitled to his day in court.
A.R.S. § 12-864 defines direct contempt as acts “committed in the presence of the court or so near thereto as to obstruct the administration of justice * * Or as was aptly stated in In re Pugh, supra, “ ‘It is the almost universal rule that, where the contempt is direct, in the immediate presence of the court, summary punishment may be inflicted, without affidаvit, notice, rule to show cause, or other process.’ ”
Courts disagree as to the meaning of the phrase “in the presence of the court or .so near thereto as to obstruct the administration of justice,” which, of course, is direct contempt. Some courts hold that only those acts within the ocular view, or range of vision, are within the meaning of the phrase. State v. Root,
Regardless of the definition adopted for the phrase by other courts, our prior decisions require a finding of indirect contempt in the present case, if the conduct is found contemptuous. In the case of In re Quan,
The facts in the instant case indicate that the contempt proceedings arose out of an. alleged violation of the restraining' order issued by respondent on May 21, .1966. The. court had jurisdiction and authority to issue ' such an order. The faсtual situation out of which this matter arose was atypical of civil litigation, and we assume, for .the purpose of this decision the attorneys acted in good faith. It is, however, possible for an attorney to become so zealous in the manner of protection. of his client as to interfere with the administration of justice. The confusion in this matter arose because of the number of suits filed by the parties.' Petitioner contends that the two actions we're separate though related and that he could pursue the two- independently. We need not determine at this time the relationship of the suits and whether the petitioner’s conduct was contumacious. It is sufficient to say that any violation of the first
, The cáses were not consolidated until May :27, 1966, and there is nothing in the record showing that both cases had been permanently assigned to one judge. There is no doubt that cause No. 188223 was assigned to respondent frоm the beginning and failure to obey an order arising from this matter could, absent an explanation, come within the traditional definition of contempt.
An important consideration is that respondent did not have personal knowledge that petitioner violated the restraining order since the alleged violation did not take place in his presence. At the hearing, respondent relied upon the testimony of others and documentary evidence in' the case file to ascertain if an аct of contempt had occurred. This places the matter within our holding of In re Quan, supra, as respondent’s knowledge was not so perfect as to be permitted to punish summarily. It follows that any contempt in this matter was indirect and petitioner was entitled to procedural due process, i. e., notice of the charges against him and an opportunity to be heard. In re Quan, supra.
It is urged that petitioner’s conduct, as unexplained, comes perilously close to being so neаr the court as to obstruct the administration of justice. Our answer to this is that whenever there is doubt as to the character of the alleged contempt, as here, justice is better served by giving an alleged contemnor his day in court rather than summarily holding him in contempt. Ex parte Hennies,
The legal profession, the parties to an action, and the public are assured of fundamental rights by adequate procedural safeguards in contempt proceedings. Nor, does this impair the power оf the courts to uphold the dignity and authority of the judicial system by exercising the power of contempt in a judicious manner. Direct contempt may be dealt with expeditiously and summarily. Indirect contempt can be as effective as direct contempt in manner of-punishment. The only difference is that the judicial system will afford an individual an opportunity to be heard, and explain the conduct and actions, if the conduct is indirect contempt. •
. The Supreme Court of the United States, in a recent decision, expressed an opinion in this area that is helpful:
“ * * * Summary procedure, to use the words of-’Chief Justice Taft, was de- ' signed to fill ‘the need for immediate penal vindication of the dignity of the court.’ * * * We start from the prem- ' ise long ago stated in Anderson v. Dunn, 6 Wheat, 204, 231,5 L.Ed. 242 , that the limits of the power to punish for contempt are ‘the least possible power adequate to the end proposed.’ In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; nо insolent tactics had to be stopped.” Harris v. United States,382 U.S. 162 ,86 S.Ct. 352 ,15 L.Ed.2d 240 .
When all of the circumstances are considered, the proper procedure in this case is to permit petitioner to explain his acts and have reasonable notice of the contempt hearing.
For the reasons stated, the .alternative writ of prohibition heretofore granted in this matter is hereby made permanent.
NOTE: Justice LORNA E. LOCKWOOD did not participate in the determination of this cause of action.