State v. GussmanState v. Gussman
Charles J. Gussman was convicted by the Municipal Court of the Township of Weehawken of contempt of court for writing and mailing a letter. The letter, which was provoked by a ticket given him for speeding through the Lincoln Tunnel, reads:
“Mr. George L. McNally, Judge, Municipal Court, Weehawken, N.J.
Sir:
In reference to Summons number 4934, bail receipt number 401:
As the arresting officer is not to appear at the scheduled hearing and since all you would be called on to decide would be the veracity of the officer as against mine, it is manifestly futile for me to drive a hundred and twenty-five miles [from Mr. Gussman‘s residence in Pennsylvania] 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 shake-down: in the corrupt municipalities along the Jersey side of the Hudson it is notorious that you arrest largely those with out-of-state licenses; they haven‘t a vote, they weigh inconvenience and futility against their indignation at the decadent morality they encounter.
You, sir, are a party to this degeneracy, whether you choose to acknowledge it or not. The police lieutenant (name on bail receipt illegible) was rude and arrogant and the arresting officer dishonest and foul-mouthed because both realized they could count on being supported by the fraternity of mutual immorality you share with them.
Let me assure you, however, that the twenty-five dollars extorted from me is not a profit to those of you whose pockets it reaches. Because I address readers of thirty-nine newspapers thru my weekly column and reach almost three million radio homes with my program Weehawken will, in adverse public relations resulting from mentions I make in years to come, suffer a loss many, many times the amount extorted from me.
Shame on you, sir, for participating in the degradation of democratic processes.
I am, Sincerely, Charles J. Gussman”
The case was tried below before a judge of the Hudson County Court specially assigned to the municipal court for the cause, and Gussman was sentenced to the Hudson County Jail for ten days. Gussman by this appeal challenges the conviction, first, as violating his right of free speech and, second, as lying beyond the power of the court.
Little attempt seems ever to have been made to state broadly and with any precision the limits of the great concept of free speech. That it is not an absolute, is a commonplace observation. Kovacs v. Cooper, 135 N.J.L. 64, 68 (Sup. Ct. 1946), affirmed 135 N.J.L. 584, 587 (E. & A. 1947), affirmed 336 U.S. 77, 85, 69 S.Ct. 448, 93 L.Ed. 513 (1948); Thomas v. Casey, 121 N.J.L. 185, 187 (Sup. Ct. 1938); State v. Boyd, 86 N.J.L. 75, 79 (Sup. Ct. 1914), affirmed 87 N.J.L. 328 (E. & A. 1915).
The State refers us to the
“Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.”
But this plainly gives us no standard to go by. Chafee, Free Speech in the United States 12 (1942).
Gussman cites Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947), cases of contempt. They hold, he says, that all criticism of a court is suffered by the Constitution, unless it engenders an “extremely serious” and “extremely” imminent likelihood, cf. State by Van Riper v. Traffic Tel. Workers’ Fed. of N.J., 2 N.J. 335, 347 (1949), of producing an unfair trial.
This is the “clear and present danger” test taken by Justice Holmes perhaps from the law of criminal attempts. Hall, 50 Harv. L. Rev. 583, 621 (1937); but cf. Howe, 55 Harv.
For clearly the test is no universal solvent. It is no gauge controlling the law of libel and slander, rendering speech actionable only in case of a clear and present danger of some substantive evil. Cf. 8 Cooley, supra, 883. Nor, according to the accepted view, does it lead to the exoneration of all verbal contempts in the courtroom other than those which create an extremely serious and extremely imminent prospect of bringing about a miscarriage of justice. Fisher v. Pace, 336 U.S. 155, cf. 163, 69 S.Ct. 425, 93 L.Ed. 569 (1949). Indeed the Bridges case (314 U.S., at page 266, 62 S.Ct. 195) and the Pennekamp case (328 U.S., at page 335, 66 S.Ct. 1031) concede there was of course no question as to the power to punish for “disturbances and disorder in the courtroom.”
Lacking, then, a broad standard, we must inspect the public and individual interests involved in the argument. The Bridges, Pennekamp and Craig cases were concerned with a very different matter from what we have here. There the court was concerned with comment by the public press, save that in the Bridges case there was also a threat of a strike, made by Bridges through a telegram to the person to whom he had the constitutional right to petition. There quite plainly the court was dealing with the great public interest in leaving truth to “the competition of the market.” Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (Holmes, J., 1919). As Milton (Areopagitica 51, Hales ed. 1917) put it in his ringing words:
“And though all the windes of doctrine were let loose to play upon the earth so Truth be in the field, we do injuriously by licencing and prohibiting to misdoubt her strength. Let her and Falsehood grapple * * *.”
In Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925), a lawyer wrote a derogatory letter to a judge and had his client deliver it to him in chambers. No one seems to have supposed he was entitled to protection under the Constitution. Here the circumstances are not so very different, and we conclude, there simply is no sensible basis for extending to them the great public concerns of free speech. Gussman‘s first contention fails.
His second contention is that the contumacious act here was not committed in the court‘s actual presence, and that this leaves the court without power in the premises.
It must be taken as settled law that municipal courts, apart from statute, have an implied authority to punish for contempt. Board of Health, Weehawken Tp. v. N.Y. Central R. Co., 10 N.J. 284 (1952), dealing with a conviction for contempt entered (see 10 N.J., at 298) 12 days before
We concern ourselves, not with the extent of inherent judicial power, but with the statutes.
“to punish for contempt shall not be construed to extend to any case except the:
a. Misbehavior of any person in the actual presence of the court.”
Our concern is with the statutory words “actual presence.” It will be seen that they have received a somewhat free rendering in our cases. After an extended discussion in In re Merrill, 88 N.J. Eq. 261, 283 (Prerog. 1917), it was held that a contempt in the court‘s actual presence, a contempt in the face of the court (in facie curiae) and a direct contempt
Swanson v. Swanson, 8 N.J. 169, 184 (1951), indicated that an act of contempt may be in facie curiae though the judge does not see or hear it, and the case pointed out that this is a distinction maintained by our rules. See the pertinent rule as to the municipal court, R.R. 8:8, taken from Rule 42 of the Federal Rules of Criminal Procedure which, as the Advisory Committee on the Federal Criminal Rules has said —
“is substantially a restatement of existing law, Ex parte Terry, 128 U.S. 289 [9 S.Ct. 77, 32 L.Ed. 405]; Cooke v. United States, 267 U.S. 517 [45 S.Ct. 390, 69 L.Ed. 767].”
As above stated, Cooke v. United States was a case where an attorney wrote a contumacious letter to a judge and caused another to deliver it to the judge in chambers. The Supreme Court indicated he had committed contempt in the presence of the court. It might be observed at this point that acts of attorneys in the sending of a letter and the filing of papers
For other cases of contempt, see Seastream v. New Jersey Exhibition Co., 69 N.J. Eq. 15 (Ch. 1905), affirmed 72 N.J. Eq. 377 (E. & A. 1907); McCauley v. McCauley, 88 N.J. Eq. 392, 395 (Ch. 1918); and Sachs v. High Clothing Co., 90 N.J. Eq. 545 (Ch. 1919), papers filed with the court; In re Bowers, 89 N.J. Eq. 307 (Ch. 1918), a threat made out of court to a solicitor; In re Megill, 114 N.J. Eq. 604 (Ch. 1933), a resolution of a municipal governing body criticizing the court; cf. In re Jibb, 123 N.J. Eq. 251 (E. & A. 1938), taking a false affidavit, “to be used” in Chancery, held not in the court‘s presence.
This is a substantial body of authority, and we do not think we should dismiss it and substitute our own view. Nearly all the cases stem from In re Merrill, 88 N.J. Eq. 261, 283 (Prerog. Ct. 1917), supra, and In re Caruba, 139 N.J. Eq. 404, 413, 422, 423, 426 (Ch. 1947), affirmed 140 N.J. Eq. 563, 564 (E. & A. 1947), which construe the phrase “actual presence.” This body of authority colors the phrase as we see it today.
When the statute was enacted as a part of Title 2A, the last sentence was added, doubtless to meet the adverse decisions of In re Merrill, supra, and In re Caruba, supra, insofar as they dealt with the inherent constitutional jurisdiction of Chancery and the Prerogative Court. But those cases, as above stated, also put a liberal construction on the concept of actual presence. When the Legislature reenacts a portion of a statute after it has been construed in the cases, the courts are somewhat more reluctant to overrule that construction. Cook v. Bennett Gravel Co., 90 N.J.L. 9, 12 (Sup. Ct. 1917); Ross v. Miller, 115 N.J.L. 61, 64 (Sup. Ct. 1935); State v. Moresh, 122 N.J.L. 77, 79 (E. & A. 1939); State v. Deegan, 132 N.J.L. 261, 268 (E. & A. 1944); D., L. & W.R. Co. v. Division of Tax Appeals, 3 N.J. 27, 37 (1949); Hooton v. Neeld, 12 N.J. 396, 403 (1953).
Weighing the pros and cons, we conclude that the statutory words “misbehavior * * * in the actual presence” are to be held to include the sending of this letter to the magistrate at his court and the reading of it by him. Gussman‘s second contention therefore fails.
Gussman urges us to substitute a fine for the jail sentence which was imposed below. When the State‘s counsel suggested to Gussman on the stand that between the time he dictated the letter and the time he mailed it, he had had three days to reconsider whether to send it, he replied that he had left home for those days —
“It was an automatic,” he said, “it was out of my hands once it had been dictated and signed.”
But is this entirely so? The letter, he says, was not transcribed until the third day, and he therefore doubtless did not sign until then.
We have his counsel‘s apology for him in the form of leading questions below and an earnest plea before us, but no substantial evidence of any genuine regret, on Gussman‘s part, as to his offense. Indeed this educated man apparently had no realization of the nature of the offense until his counsel pointed it out to him. He had written, he testified,
“* * * from an overfoaming frustration.” “Whereas an officer shoots from the hip, I shoot from my typewriter and usually when it is out of the typewriter, it is out of my system.”
His counsel stipulated to the falsity of the letter insofar as it reflected on the magistrate.
We find Gussman guilty and direct that he be brought before the court on March 21, 1955 for sentencing.