Cohen v. State

Thompson, J., delivered the opinion of the Court. The question to be decided on this appeal is whether or not Rhea L. Cohen, the appellant, was güilty of direct criminal contempt of court by reason of filing a written and oral motion that the judge disqualify himself on the grounds of bias and prejudice. We hold that she was not. The contempt citation arose during the trial of a complaint in equity by the appellant and five others, on behalf of the property owners and taxpayers of Montgomery and Prince George’s Counties, against the Maryland-National Park and Planning Commission, the Prince George’s County Planning Board, and others in the Circuit Court for Prince George’s County.

The plaintiffs sought to prevent the use of a portion of the Commission’s park land for the construction and operation of the Largo Sports Arena. The plaintiffs charged that the land had been leased by the Planning Board without due consideration of the potential detrimental effect of the Sports complex upon the environment of the Park’s system; that the lease was ⁸⁷ invalid; and, that the rental to be paid thereunder by the partnership operating the complex was far below the fair rental value of the property. Because of the importance of these questions both to the parties and to the public, the trial judge expedited the proceedings by accelerating the pretrial discovery procedures and by holding court in the evenings throughout the four-day trial. The last day of trial fell on Saturday, December 16, 1972, at which time the testimony was concluded: each side rested its case; and, closing arguments were delivered.

At the conclusion of rebuttal argument on the part of the attorney for the plaintiffs, the following discourse transpired: “The Court: Does anybody else have anything they wish to say in connection with this case before the Court takes further proceedings? Mrs. Rhea L. Cohen (Plaintiff): Your Honor, may I be heard? The Court: Yes, you may. Mrs. Cohen: I should like to present to the Court my affidavit of bias and prejudice.

I state that I am a plaintiff in the case and a citizen of Prince George’s and I state that Judge Perry Bowen has unfairly prevented the Plaintiffs from entering into the record evidence and testimony essential to the Plaintiffs’ case. He has willfully harassed the plaintiffs and has shown a lack of consideration for the welfare of the plaintiffs and their witnesses by scheduling sessions to extend into late night hours and by stating his intention to hear the case on Saturday and Sunday as well until the trial is over. And also the Judge has made an outrageous false statement in open court on December 12, 1972 that the citizens of Prince George’s County have no right to referendum on certain laws for which said citizens, including the plaintiff, myself, are now circulating petitions in compliance with Section 319 of the Prince George’s County Charter. I should like to add that I feel that from the ⁸⁸ beginning it has been quite impossible for the plaintiffs to carry on the case and to enter into the record the points they felt were most pertinent because witnesses were denied the right to testify and because material evidence was not permitted into the record.

I found this unbelievable. This is a court of justice and I feel this was a travesty on the court system. I also spoke to Judge Murphy, Chief Judge of the Maryland courts and I asked him if it is customary for hearings and trials of this sort to be carried on at late night hours and over weekends. He said over weekends it is almost unheard of — this is what he told me — and it is very rare to have such trials carried over into evening hours.

I found that this was very inconveniencing but also a form of harassment to me and I feel this is a matter that should be in the record of this trial. The Court: Madam, the Court regards your comments as a direct indication of contempt for this court. Mr. Bailiff, you will take this woman into your custody and present her before the Court for an order.” The written affidavit filed in the proceedings read as follows: “Affidavit of Bias and Prejudice Comes now Rhea L. Cohen, who is a plaintiff and alleges as follows: 1. She is a citizen of Prince George’s County, Maryland, residing at ■ 10 Greendale Place, Greenbelt, Maryland; 2.

Perry G. Bowen, the Judge in this case, has unfairly prevented the plaintiffs from entering into the record evidence and testimony essential to plaintiffs’ case; 3. Judge Bowen has willfully harassed' the ⁸⁹ plaintiffs and has shown a lack of consideration for the welfare of the plaintiffs and their witnesses by scheduling sessions to extend into late night hours and by stating his intention to hear the case on Saturday and Sunday, as well, until the trial is over; and, 4. Judge Bowen made the outrageous and false statement in open court on December 12, 1972, that the citizens of Prince George’s County have no right to referendum on certain laws for which said citizens, including the plaintiff herein, are now circulating petitions in compliance with Sec. 319 of the Prince George’s County Charter. WHEREFORE, plaintiff herein prays Perry G. Bowen, Judge of the Seventh Circuit Court of Maryland, to disqualify himself from this case. /s/ Rhea L. Cohen RheaL.

Cohen, Plaintiff STATE OF MARYLAND SS: COUNTY OF PRINCE GEORGE’S SWORN TO AND SUBSCRIBED before me this 15th day of December, 1972. /s/ James J. Cassels Notary Public My commission expires: 1 July 1974” The court then adjourned from 12:21 p.m. until 1:45 at which time it delivered its opinion in the proceedings, concluding at 2:50 p.m. The court recessed until 3:50 p.m. in order to frame a decree. The court then took up the question of the appellant’s citation for contempt: “The Court: Mr. Reporter, the Court directs that you prepare and type the following proceedings of the Court as the written record required by Rule P 3, proceedings where defendants are cited for direct contempt of Court. The basis of this citation is that Mrs. Rhea L. ⁹⁰ Cohen, one of the parties plaintiff in a case standing before this Court for trial, appeared in open court and stated in the presence of the Court on the bench the written allegations contained in a paper writing which purports to be an affidavit entitled ‘Affidavit of bias and prejudice’ and which states the following matters which the Court believes constitute a direct contempt of this Court: That the presiding judge ‘unfairly prevented the plaintiffs from entering into the record evidence and testimony essential to plaintiffs’ case,’ and that he ‘willfully harassed the plaintiffs,’ and that he made an outrageous and false statement in open court.

Now, insofar as these remarks relate to this member of the Court personally, if that were all that were involved it would simply be passed over without further comment or any comment at all. But the position the Court takes is that this sort of conduct cannot be permitted or passed over without serious impairment to the dignity and standing of the Circuit Court for Prince George’s County as a court and that to address to the Court on the bench such matters tends to bring the entire judicial system into contempt and constitutes a clear and present danger to the administration of justice. Madam, those are the matters which the Court has against you. I now afford you an opportunity to present any matters which you wish to present relating thereto.

Mr. Gaegler: If the Court please — The Court: Mr. Gaegler, do you enter your representation for this defendant in this case? Mr. Gaegler: Yes, I do. The Court: Madam Clerk, enter the appearance of Mr. Gaegler for the defendant in this proceeding. Mr. Gaegler: Mrs. Cohen has'requested of me to ⁹¹ ask for a trial by jury under a 1968 Supreme Court case that started out or came out of Illinois in which there were serious matters of contempt, that the defendant who is being cited for contempt would be entitled to a trial by jury and therefore she has asked me to make this request to this Honorable court.

The Court: Mr. Gaegler, I know of no authority which entitles a defendant in a direct criminal contempt proceeding to trial by jury unless the sentence the Court intends to impose exceeds six months confinement. If you have any such authority I will be glad to see it. If you do not, I assume that you agree that the Court’s interpretation of the law is correct and I represent to you that I have no idea of confining Mrs. Cohen for anything in excess of six months. Mr. Gaegler: She has shown me Title 42, Section 1983 of the Civil Rights Act, Your Honor, and — The Court: Well, sir, I don’t know of anything that makes Title 42 of the Civil Rights Act binding upon this Court.

Mr Gaegler: I am aware of that, Your Honor. We would like to — (Mr. Gaegler and Mrs. Cohen confer.) Mr. Gaegler: I have informed my client of what I feel is the appropriate situation. If she feels aggrieved by the decision — The Court: I am not concerned with any information and advice you may give your client, except that I ask you if there is anything else you or your client desire to present in the instant proceeding. Mr. Gaegler: Only in this respect, Your Honor: In the heat of a trial or in the course of carrying on the trial of causes that one feels very strongly in connection with, especially the plaintiff who has spent a good deal of time and effort and perhaps is ⁹² not wordly wise in the law or in the framework of that area in which we deal, with the efforts that she has extended in terms of gathering the names on the petitions, felt that she was sincere in her attitude that within her heart that she was entitled to the right of petition by referendum.

Of course the Court remembers — and I apologize again — the Court remembers that the decisions made in connection with the order on CB 160 and 167, or Bill 166, deal with the order of the emergency aspect of it, basically and the opinion that was addressed to the right of referendum was in addition thereto, or was prior to the time the Court had entered the order. She felt sincere in her efforts even though she may have been wrong in that aspect of it in terms of the word ‘false’. I think it is a mischoice of words or use of words. I think a better word would have been ‘wrong’.

I think that would have been subject to understanding by this Court, knowing the Court’s attitude that reasonable men can get together and have differences of opinion and one can be wrong. And certainly this Court can be appealed. On behalf of my client I plead to the Court to accept this in the position that it was made with understanding and ask the court to consider it in its sentence in terms of this direct summary procedure, contempt procedure. The Court: Very well, if there are any matters you wish to present to the Court before determination is made in this case the Court now affords you an opportunity to do so.

Mrs, Cohen: No, thank you. The Court: Very well, Madam Clerk, you will mark this paper writing entitled ‘Affidavit- of Bias and Prejudice’ as Exhibit 1 to the transcript of this proceeding, it being the document which was ⁹³ offered for filing in open court by the defendant in this case in proper person.. The Court takes the position in this matter, as the preceding remarks have indicated, that the actions of this defendant constituted a direct contempt of this Court. As a Court, we find the defendant guilty of that.

We have afforded her an opportunity to be heard and an opportunity for counsel to be heard, and while we concede that everything he says may be true and in fact do believe it to be true, while that may go to mitigation of the punishment to be imposed it does not excuse nor justify the contemptuous actions. Under the circumstances, the Court directs that this defendant purge herself of the contempt committed by paying a fine of $500 and standing committed to the County Jail for three months. Mr. Sheriff, she is in your custody.” Appellant argues that, in the absence of anything in the record showing that the remarks were delivered in an improper manner, including her tone of voice and demeanor, the words were not contemptuous because her actions: (1) did not constitute misbehavior; (2) did not result in an obstruction of the judicial