Covers cases on the inherent power of the court—constitutional grant of power—contempt

Abbott, Charles F., Jr.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 36 Number 2 Washington Case Law—1960 7-1-1961 Judicial Administration Charles F. Abbott Jr. Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Courts Commons Recommended Citation Charles F. Abbott Jr., Washington Case Law, Judicial Administration, 36 Wash. L. Rev. & St. B.J. 153 (1961). Available at: https://digitalcommons.law.uw.edu/wlr/vol36/iss2/6 This Washington Case Law is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON CASE LAW-1960JUDICIAL ADMINISTRATIONInherent Power of the Court-Constitutional Grant of Power-Contempt. In State v. Estill' the Washington Supreme Court held thatit would not be bound by the terms of the contempt statutes. C. J.Brooks, the father of Ermie Estill, and Robert Reditt, her fiancee, gavefalse testimony as defense witnesses in her jury trial. Brooks andReditt were cited for contempt of court "on the basis of the clearlyapparent and partly conceded perjury of each.. ."2 and were adjudgedguilty in that "said conduct tended to impair the authority of the courtand to interrupt the course of the trial ... ." The two defense wit-nesses consolidated their appeals and obtained a reversal from thecourt, sitting departmentally. On petition for rehearing the courtagreed with the conclusion of the departmental opinion, but disagreedwith the reasons set forth.The departmental opinion set out the statutory definition of con-tempts of cour and held that this perjury did not fall within its terms,saying:As to the existence of common-law contempts in this state, we haveset out the statutory definition in its entirety because its comprehensivenature indicates that the legislature intended to cover the entire field ofcontempts. The legislature has the power of superseding the commonlaw. It has elected to do so in this instance. We, therefore, limit our-selves to an interpretation of the statute.5The court, en banc, firmly rejected this holding, stating:A majority of the court does not agree that the legislature has thepower to supersede the inherent power of a constitutional court topunish for contempt; nor does a majority of the court believe that thelegislature has attempted to do so.6This statement, as well as the excerpts quoted by the court fromvarious authorities, is ambiguous because of its brevity. The courtdoes not make it clear whether the legislature may affect the court'scontempt powers at all, and indeed loosely implies that it may not.Generally, the courts of other jurisdictions allow regulatory legislation,but not limitary legislation.'155 Wn.2d 576, 349 P2d 210 (1960), affirming on other groun& 50 Wn.2d 331, 311P2d 667 (1957).2 State v. Estill, 50 Wn.2d 331, 332, 311 P.2d 667, 688 (1957).3Id. at 332, 311 P.2d at 668.4 RCW 7.20.010.5 State v. Estill, 50 Wn2d 331, 334-35, 311 P.2d 667, 669-70 (1957).6 State v. Estill, 55 Wn.2d 576, 579, 349 P.2d 210, 212 (1960).7 See Annot., 121 A.L.R. 215 (1939); THomAs, PwOBysaS OF CoNTEMPT OF COURT50 (1934).19611WASHINGTON LAW REVIEWThe court cited Corpus Juris Secundums for the proposition that thelegislature may not destroy, or abridge, or limit, as by definition, theinherent power of courts to punish for contempt.' However, that refer-ence further states that "although there is authority to the contrary,the legislature may, however, regulate the use of the power, and insome jurisdictions.., the punishment that may be imposed.""0Similarly, American Jurisprudence" was cited by the court but itmust be noted that American Jurisprudence qualifies its remarks withthe assertion that: "It [a constitutionally created court] may, how-ever, regulate the practice in proceedings for contempt, . . . limit orextend the powers of punishment . . .""Washington has recognized the power of the legislature to regulateprocedural matters, provided that it does not deprive the court ofpowers essential to the proper exercise of its judicial functions. 4 Also,acting in the interest of self-preservation, the court has held that itsdignity and the necessity for orderly procedure require that the legis-lature not be allowed to provide for the intervention of a jury in acontempt proceeding. 5 In addition, it has been indicated that the leg-islature is limited in its power to prescribe the punishment which maybe inflicted for contemptuous conduct. 6 While early cases" havestated that the legislature may declare what acts or omissions shallconstitute contempt, State v. Estill follows the majority rule 8 in point-ing out that the legislature may not exhaustively do so.The philosophy which seems to have governed the Washington courthas been carefully stated in a student casenote:This power [to punish for contempt], therefore, is an inherent one8 17 C.J.S. Contempt § 43(b) (1939).9 55 Wn.2d 576, 579, 349 P.2d 210, 212 (1960).10 17 C.J.S. Contempt § 43(b) at 59 (1939).11 12 AM. JuR. Contempt § 49 (1938).12 55 Wn.2d 576, 579, 349 P.2d 210, 212 (1960)."s 12 Am. JUR. Contempt § 49, at 424 (1938).14 In the well known case, State ex. rel. Foster-Wyman Lumber Co. v. SuperiorCourt, 148 Wash. 1, 267 Pac. 770 (1928), the court asserted its power to prescriberules of procedure, but avoided a decision as to whether the power was granted by thelegislature or was inherent. However, eight years later, in Blanchard v. Golden AgeBrewing Co., 188 Wash. 396, 418, 63 P.2d 397, 407 (1936), it was held: "Undoubtedly,the legislature may prescribe reasonable regulations governing court procedure. ...But the courts are not required to recognize a legislative restriction which has theeffect of depriving them of a constitutional grant or of one of their inherent powers."15 Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 423-24, 63 P.2d 397, 409(1936); State ex. rel. Dailey v. Dailey, 164 Wash. 140, 144-45, 2 P.2d 79, 81 (1931).16 See State v. Buddress, 63 Wash. 26, 29, 114 Pac. 879, 881 (1911) (dictum).1 State v. Buddress, supra note 16, at 29, 114 Pac. at 881 (dictum) ; In re Coulter,25 Wash. 526, 529, 65 Pac. 759, 760 (1901) (dictum) ; State v. Tugwill, 19 Wash. 238,252-53, 52 Pac. 1056, 1061 (1898) (dictum).Is See TH OMAS, PROBLEMS OF CONTEMPT OF COURT 51 (1934).[VOL. 36WASHINGTON CASE LAW-1960because it, like the power to compel the attendance of witnesses or thepower to call a grand jury and instruct it, is essential to the function-ing of the court ... . 9 It follows therefore, that while the jurisdictionof a legislative court may be varied by legislative action, if a court isone of record, whether of constitutional or statutory origin, the legis-lature cannot destroy its inherent power to punish contempt.On the other hand, despite occasional, loose language to the contrary,this power is not an absolute one .... [T]he authority of the legisla-ture to regulate this inherent power itself within certain reasonablelimits is recognized even among the strictest inherent power advocates.. . . [W]hether or not a statutory regulation is valid should dependupon whether it preserves to the court sufficient power to protect itselffrom indignities and to enable it effectively to administer its judicialfunctions. 2oOf course, serious problems may arise in distinguishing between leg-islation so limitary as to be invalid and that which is merely regulatory.Abstract rules2 ' can furnish only a rough guide, and perhaps the betterapproach is to survey the cases of other jurisdictions in a search forpursuasive holdings as well as in an attempt to understand the under-lying factors and attitudes which have motivated the courts.Judge Mallery, in an opinion concurring in result only, stated thatthe Washington contempt statute was in force before the constitutionwas adopted, and that while our constitutional forefathers were awareof it they put no provisions in the constitution repugnant to it.22 Heconcluded, therefore, that the statute was "constitutionally validated"and should not be declared a nullity."Judge Foster, in a concurring opinion,24 disagreed with Judge Mal-lery in that he felt that the statute was repugnant to the constitution,at least in so far as it diminished the jurisdiction of the court. Thisviewpoint is more consistent with the controlling philosophy of pastcases. For instance, in Blanchard v.. Golden Age Brewing Co.,25 thecourt adopted the federal viewpoint which is that "the courts of theUnited States, when called into existence and vested with jurisdiction19 Note, 21 IowA L. Rxv. 595, 596-97 (1936).20 Id. at 598.21 Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 424, 63 P2d 397, 409(1936), (legislation limitary if court is deprived of powers essential to its efficientaction and the proper administration of justice) ; State ex. reL. Dailey v. Dailey, 164Wash. 140, 145, 2 P.2d 79, 81 (1931), (power inherent if necessary to preserve the-dignity of the court and its orderly procedure) ; State cx. rel. Dysart v. Cameron, 140Wash. 101, 109, 248 Pac. 408, 411 (1926), (legislation limitary if court is deprived ofpowers essential to its very existence as a court).22 State v. Estill, 55 Wn.2d 576, 582, 349 P.2d 210, 213 (1960).23 Id. at 645, 349 P.2d at 213-14.2 4 Id. at 647, 349 P.2d at 214-15.25 188 Wash. 396, 63 P2d 397 (1936).1961]WASHINGTON LAW REVIEWover any subject, at once become possessed of the power [to punish forcontempt]."" The court made it clear that this power was givenbecause of necessity."In State v. Estill the majority apparently felt that the power to pun-ish perjury as a contempt was essential to the effective operation of thecourt. If this is true,28 then in creating the court our constitutionalforefathers must have granted this power.29 A statute denying it,passed before or after the constitution, would be repugnant to it. 0However, contrary to Judge Mallery's contention, RCW 7.20.010 isnot rendered a nullity because of the Estill decision. It still remainsin force in enumeration of particular acts which may not be within thecourt's inherent power to punish, or which the court might not wish topunish on its own accord."'The Washington practitioner should not be misled by the ratherloose language appearing in this decision which in places indicates aradical departure from established law. The court has merely deniedthe power of the legislature to deprive it of inherent powers necessaryto its effective operation. It is suggested that the acts enumerated bystatute remain as a substantial part of the Washington law of con-tempt.32  CHAIRLES F. ABBOTT JR.JURISDICTIONState Jurisdiction over Indian Country. Two recent Washingtoncases, State ex rel. Starlund v. Superior Court' and State ex rel. Adams26 Michaelson v. United States exr. rel. Chicago, St. P. M. & 0. Ry., 266 U.S. 42,65-66 (1924).27 Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 425, 63 P.2d 397, 409(1936).28 Only the court can make this decision. See State v. Frew, 24 WVa. 416, 49 Am.Rep. 257, 274 (1884).29 The majority quoted from Blanchard v. Golden Age Brewing Co., 188 Wash.396, 63 P.2d 397 (1936). "But the courts are not required to recognize a legislativerestriction which has the effect of depriving them of a constitutional grant or of oneof their inherent powers. What the legislature has not given, it cannot take away ......State v. Estill, 55 Wn.2d 576, 580, 349 P.2d 210, 212 (1960).20 Hence Judge Mallery's citation of art. XXVII, § 2, of the state constitution,which provides that "All laws now in force in the Territory of Washington, which arenot repugnant to this Constitution, shall remain in force . . ." (Emphasis added.) doesnot contradict, but supports, the majority's decision.31 See 17 C.J.S. Contempt § 43(b) (1939).22 Apparently Keller v. Keller, 52 Wn.2d 84, 86, 323 P.2d 231, 232 (1958) is a stillvalid statement of the Washington position. "In general, contempt proceedings inthis jurisdiction may be placed in three categories: (a) criminal contempt prosecutedunder RCW 9.23.010; (b) civil contempt initiated under RCW 7.20.010 et seq; and(c) contempt proceedings resulting from the long exercised power of constitutionalcourts (1) to punish summarily contemptuous conduct occurring in the presence ofthe court, (2) to enforce orders or judgments in aid of the court's jurisdiction, and(3) to punish violations of orders or judgments."1 157 Wash. Dec. 87, 356 P.2d 994 (1960).[VOL. 36

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