OUR JUDICIAL OLIGARCHY, (THIRTEENTH ARTICLE)
Roe, Gilbert E.
OUR JUDICIAL OLIGARCHY THIRTEENTH ARTICLE:—POPULAR DISTRUST OF THE COURTS SOME SUGGESTIONS AS TO A REMEDY By GILBERT E. ROE (CapTTighted 1911, The Robert M. La Follette Co.) What We Must Do to...
...You will be especially interested in Mr...
...We • Oswald, Contempt of Court (1911), p. 5. 4 In re Thatcher, 80 Ohio St...
...It isn't sentiment or politics with them...
...8 Id...
...Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities...
...Has it come to pass in Ohio when a citizen cannot exercise the constitutional right of free speech?' asked Smith, warming up to his subject...
...A messenger from the Supreme Court of Ohio called upon the judiciary committee, of which I am a member,' said Smith, 'with a request that the committee come over to the Supreme court to discuss senate bill No...
...Roe's conclusions regarding the recall as applied to the judges.—Editor's Note...
...Immediately following the passage of the bill by the house there were rumors that pressure was being brought to bear upon the chief executive to veto the bill...
...He followed with: 'The court in disbarring Thatcher sat upon its own case and rendered a verdict...
...and the peculiar methods of publishing them and the time at which it was done made them all the more inflammatory and dangerous...
...Contempt of court has been not inaptly termed a "legal thumbscrew...
...Id...
...Four of the seven are lawyers...
...Id...
...Roe's articles with this number, but exigencies of space make it necessary to postpone the final article until next week...
...cizing Judge Morris of the Common Pleas court of Lucas County...
...10 Colombo Citizen, April 13, 1911...
...The vote on the bill in the house was attended by sensational and unprecedented features, in which Speaker Vining was forced to rap the house to order for applauding an arraignment of the Supreme Court judges...
...Legislature Overturns Court's Decision THE COURT in disbarring Thatcher, apparently feeling that the contempt charges might be insufficient, based its judgment in part upon the alleged fact that he procured suit to be brought upon certain notes which had been paid and the cause of action thereon extinguished.7 The suit on the notes which Thatcher advised to be brought was pending at the time the disbarment proceeding was heard in the Supreme Court.8 After the decision of the Supreme Court disbarring Thatcher, the action on the notes was tried and it was judicially determined that the notes had not been paid and that the cause of action thereon had not been extinguished.9 The Legislature of the State of Ohio promptly took action in respect to the disbarment of Thatcher and passed an act overturning the judgment of the Supreme Court and reinstating Thatcher...
...The vote was 79 for Thatcher to 7 against...
...3 It is derived from the more ancient offense of contempt of king...
...Among the statements that Thatcher circulated was the following: "The attorneys who try the suits against the corporations are against Morris to a man...
...They never would be against Morris if he were a 'people's judge.'" Concerning the circulation of this statement under the circumstances mentioned, the court said:6 "Whether he (Thatcher) wrote these words or not, he made himself responsible for them by distributing these circulars...
...In other words, if a judge is a candidate for re-election and has been guilty of offenses for which he could be impeached, 01 is believed to be guilty of such offenses, the facts relating to his alleged misconduct must not be published, and the only remedy is by impeachment proceedings to remove the offending judge from office...
...The chief stress of the defense has been upon the claim that what the respondent did, and he denies very little, he did as a citizen and not as an attorney...
...It is business...
...That the process of contempt is used to violate the fundamental guaranties of freedom of speech and of the press is freely charged, and it certainly is subject to great abuse...
...but no man has a right at any time to degrade and intimidate a public officer and bring his office into contempt by the publication of libelous matter imputing to him impeachable offenses, and the fact that the officer is a candidate for re-election does not remove the ban...
...With a trumpeter and an automobile and the crippled Gravell, he went about gathering curious crowds and giving out harrowing stories of corruption, oppression and injustice, wrought in the name of the law...
...A case formerly cited in this discussion presents one of the most recent instances of the use of contempt proceedings to punish and prevent hostile criticism of the official conduct of a judge.4 In that case it appears that Lindlay W. Morris was, in the fall of 1908, a candidate for re-election for a fourth term as judge of the Court of Common Pleas in the judicial district of which Lucas County was a part...
...The bill had already passed the senate and is now up to the governor for approval...
...p. 644...
...but that duty should be exercised in subordination to another duty, which is thus expressed in the code of ethics adopted by the American Bar Association...
...As an attorney, or a citizen, he had the right to criticize the judgments and conduct of the judges in a decent and respectful manner...
...The campaign for Judge Morris' re-election was largely made upon the proposition that he was a people's judge, and that he was opposed by corporations and trusts.5 Charles A. Thatcher, a lawyer of large practice in the state of Ohio, extensively circulated literature during the campaign, claiming to prove from court records that the very contrary of the assertions made in behalf of Judge Morris was the truth...
...What We Must Do to Prevent Judges from Abusing "Contempt of Court" Practices to Shield Themselves from Wholesome Criticism ANY LEGISLATION attempting to reform the judiciary that is not preceded by thorough discussion will at the best be ineffective and probably unwise, and it is not impossible that a thorough discussion of the judicial abuses of which the public complains will render drastic legislation unnecessary...
...70 and this Thatcher bill...
...It was planned to finish publication of Mr...
...He pointed out that courts should not be above honest criticism...
...p. 665...
...and that as a citizen and an attorney he had the right, and it was his duty, to oppose a candidate whom he believed unfit for office...
...Proceedings on the part of judges like those in the Thatcher case do more to breed contempt of court than all other causes combined...
...p. 633...
...He related some untold history of the political pressure that was brought to bear to defeat the bill...
...Continuing, Smith said the action of the Supreme court was unprecedented...
...Those voting in the negative were Cowan, Langdon, Lewis, Pocock, Reid, Riddle and Speigel...
...It must be admitted, however, that judges at the present time are far too prone to secure themselves against unfavorable criticism by punishing as "contempt of court" wholesome and necessary comment and discussion of their official acts...
...Representative Smith of Butler County touched off the fireworks in a speech urging the reinstatement of Thatcher...
...concede that it is the duty of the bar to aid the public in the selection of proper persons for the bench...
...We told the messenger that whenever the Supreme court wished to call upon the committee it knew where our committee room was and we would be glad to give them the same hearing as we would any other citizen.' It was at this point that house members broke into applause...
...No charge against the judges, however untrue, could have so damaged the court in the public estimation or so impaired its usefulness as the court's own action in the premises had done...
...Two members of the court, Justices Price and Shauck, were among the members criticized by Thatcher...
...The Thatcher bill was backed principally by organized labor and a large number of attorneys...
...If the courts do not speedily abandon the practice of punishing, under the guise of contempt proceedings, those who have merely incurred the displeasure of the judges, the people must take the whole matter in hand and regulate the subject by statute and see to it that there shall be the same right to discuss the acts and abilities of judges that obtains in the case of other public servants...
...As the king came to delegate some of his authority to his judges, the power to punish for contempt seems to have been delegated along with the authority...
...You should not miss the last article...
...In such cases, but not otherwise, such charges should be encouraged, and the person making them should be protected.' * * * If the judges who were attacked in these circulars were believed by the respondent to be guilty as he charges and insinuates, it was his privilege and duty to do what he could to have them impeached so that they might be deposed from office, when found guilty...
...Concerning the scene in the legislature when the bill reinstating Thatcher was passed, I quote from one of the leading newspapers of Columbus, Ohio:10 "Applauding a caustic criticism of the state Supreme Court, the house of representatives Thursday voted to reinstate Charles A. Thatcher, Toledo attorney, who was disbarred by the Supreme Court for alleged unprofessional conduct in criti7 Id...
...It may be of interest to know that Judge Morris was defeated and that the bill to reinstate Thatcher became a law without the approval of the Governor...
...My informant in respect to this statement is a reputable attorney of Toledo, Ohio, familiar with this litigation, but whose name I have not permission to use...
...Roe will conclude his discussion of "Our Judicial Oligarchy" with some further suggestions for a remedy, including desirable and necessary legislation...
...83 Ohio St...
Vol. 3 • September 1911 • No. 36
