
    GENEVIEVE CANCELLIERI AND PHILIP CANCELLIERI, HER HUSBAND, PLAINTIFFS, v. JOSEPHINE DE MODICA AND JOSEPH DE MODICA, HER HUSBAND, DEFENDANTS. RE: ALLEGED CONTEMPT OF DONALD V. MORAN, THOMAS SHERMAN, MATTHEW VALLONE, ROBERT J. ALBERQUE, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of New Jersey Law Division
    Decided November 4, 1959.
    
      
      Mr. Joseph N. Donatelli, assigned attorney for prosecutor John G. Thevos.
    
      Mr. Nicholas Martini, attorney for Genevieve & Philip Cancellieri.
    
      Mr. Harry Green, attorney for Nicholas Martini.
    
      Mr. Hyman W. Rosenthal, attorney for Theresa Greco.
    
      Mr. Archibald Kreiger, attorney for Donald V. Moran.
    
      Mr. Thomas Maher, attorney for Matthew Vallone.
    
      Mr. Vincent C. Duffy, attorney for Robert J. Alberque.
    
      Mr. Carl Gelman, attorney for State Farm Mutual Automobile Insurance Company.
   Kolovsky, J. S. C.

Trial of the above-entitled automobile negligence ease resulted in verdicts of “no cause for action” on both the main case and the counterclaim. Thereafter, plaintiffs filed a petition, on which an order to show cause issued, by which plaintiffs sought to have Donald V. Moran, Thomas Sherman, Matthew Vallone, Robert J. Alberque, and State Parm Mutual Automobile Insurance Company (hereinafter called “respondents”) adjudged guilty of a criminal contempt of court for

“abuse of process and for allegedly examining and obtaining by fraud, deceit and misrepresentation, confidential and privileged records consisting of personal Law Diary and personal message book of Nicholas Martini, attorney for the plaintiffs in the above matter on February 24, 1959, and for making false and deceitful representations that they, the said parties or either of them, were requested and authorized by Nicholas Martini to examine and obtain said confidential and privileged records, and induce his secretary, Theresa Greco, to give depositions thereon, in an automobile behind the Court House, Paterson, New Jersey, on said date, when, in fact, said Nicholas Martini at no time requested or authorized either of said parties to examine or obtain said records and obtain a deposition from his secretary, regarding confidential and privileged matter relating to the above entitled action then pending and on trial in this Court.”

State Earm Mutual Automobile Insurance Company was defendants’ liability insurance carrier; respondent Alberque is an attorney who was retained by the carrier to appear for the defendants; Moran is an employee of the insurance company; Sherman is an investigator retained by Alberque; and Yallone is Sherman’s employee. On the return day of the order to show cause, respondents pleaded not guilty.

The court now has before it for determination a motion, made by respondents on completion of the testimony offered in support of the charges, seeking dismissal of the order to show cause and a judgment of acquittal upon the ground that the proofs failed, as a matter of law, to show a situation justifying a finding that respondents were guilty of criminal contempt. In addition, respondents Alberque and State Earm Mutual Automobile Insurance Company respectively urge that there was no proof that the action complained of had been authorized or directed by them.

As I remarked during the course of the argument, Yallone’s conduct in misrepresenting to Martini’s secretary that he was an investigator employed and sent by Martini, as the result of which he induced her to permit him to examine and take Martini’s diary and personal message book and to give a deposition with respect thereto, was reprehensible even if his purpose was to attempt to disprove testimony given by a witness called by Martini as to the date when he had gone to Martini’s office. Indeed, it may give rise to an action for damages by Martini for willful invasion of his rights, and if an attorney authorized or directed such conduct he would be subject to disciplinary proceedings for a violation of professional ethics.

But those questions are not before the court. The sole issue is, has a criminal contempt been shown?- Since, as Judge Jayne said in Swanson v. Swanson, 10 N. J. Super. 513, 520-521 (App. Div. 1950), affirmed 8 N. J. 169 (1951):

“A prosecution for criminal contempt is veritably a criminal trial in which the accused possesses most of the substantial rights of a person accused of crime, among which are the presumption of innocence, the burden of proving the alleged guilt beyond a reasonable doubt and the rules of evidence apjdicable in the trial of an indictment * * *.
Its title or label may now give it the ostensible appearance of a motion or integral component of the action in which the alleged public offense occurred, but the proceeding inaugurated to determine the guilt or innocence of the accused continues in truth and reality to be a new, independent, and collateral matter * *

the test to be applied on this motion is that applicable to such motions in criminal trials: Is there legal evidence before the court from which an inference can be legitimately drawn that respondents were guilty of the criminal contempt charged? R. R. 3:7-6; State v. Kollarik, 22 N. J. 558 (1956).

Examination of the many cases dealing with criminal contempt which are found in the books leads me to the conclusion that the conduct disclosed by the evidence would not justify conviction of the respondents for criminal contempt.

A criminal contempt, unlike a civil contempt, whose object is the vindication of private rights, “concerns itself with conduct directed against the authority or dignity of the court. * * * It involves the element of public injury or offense.” In re Bozorth, 38 N. J. Super. 184, 188 (Ch. Div. 1955); In re Caruba, 139 N. J. Eq. 404 (Ch. 1947), affirmed 140 N. J. Eq. 563 (E. & A. 1947), certiorari denied 335 U. S. 846, 69 S. Ct. 69, 93 L. Ed. 396; In re Jenkinson, 93 N. J. Eq. 545 (Ch. 1922); see also N. J. S. 2A:10.

The contempt power of the court, is one to be exercised with caution, with judicial self-restraint, and should not be invoked absent a clear showing. In re Bozorth, supra; Edwards v. Edwards, 87 N. J. Eq. 546, 548 (Ch. 1917); N. L. R. B. v. Deena Artware, Inc., 207 F. 2d 798 (6 Cir. 1953).

As Vice Chancellor Lane said in Edwards v. Edwards, supra, 87 N. J. at page 548:

“The power to punish for contempt is an arbitrary power, and should be used only when absolutely necessary in the interest of justice, and then with great care and discretion.”

And as Judge Haneman said in In re Bozorth, supra, 38 N. J. Super. at page 195:

“In any event, since courts in criminal contempt proceedings are sitting, to all intents and purposes, on their own function, the power to punish should be used only in flagrant cases and with the utmost forbearance. It is always better to err on the side of tolerance and even with disdainful indifference.”

Although lack of precise precedent treating a particular fact situation as a criminal contempt would not prevent a court from adjudicating it to be such if it should determine that the act complained of tended to obstruct, hinder, or hamper justice in its due course (17 C. J. S. Contempt § 8, p. 11; State ex rel. Turner v. Albin, 118 Ohio 527, 161 N. E. 792 (Sup. Ct. 1928)), the absence of such precedent must give the court pause to make certain that it is not unwarrantedly expanding the area in which it should invoke such power. 17 C. J. S. Contempt § 8, p. 11.

The evidence does not show that the acts complained of tended to obstruct, hinder, or hamper justice. (As to the meaning of the phrase “obstructing justice” see, for example, In re Caruba, 139 N. J. Eq. 404 (Ch. 1947), affirmed 140 N. J. Eq. 563 (E. & A. 1947), certiorari denied 335 U. S. 846, 69 S. Ct. 69, 93 L. Ed. 396 (1948); Shackelford v. Commonwealth, 185 Ky. 51, 214 S. W. 788 (Ct. App. 1919); State v. Shumaker, 200 Ind. 623, 157 N. E. 769, 774, 162 N. E. 441, 163 N. E. 272, 58 A. L. R. 954 (Sup. Ct. 1927); In re Bozorth, 38 N. J. Super. 184 (Ch. Div. 1955); see also Ex parle Stroud, 167 Ark. 331, 268 S. W. 13, 37 A. L. R. 1111 (Sup. Ct. 1929)).

While it is true that action taken to prevent a witness from testifying or to induce him to avoid appearing in court may be deemed to constitute criminal contempt (In re Caruba, supra; In re Hand, 89 N. J. Eq. 469 (Ch. 1918)), it does not converse^ follow that misrepresentation or other action taken to bring a witness to court constitutes a contempt.

A finding of criminal contempt, therefore, cannot be based on the misrepresentation and other action taken to bring Mrs. Greco to the courtroom.

Nor is such basis to be found in the service of a subpoena to testify on Mrs. Greco as she was entering the courtroom; it was not done under such circumstances as to cause a commotion or disturbance. Baumgartner v. Baumgartner, 273 App. Div. 411, 77 N. Y. S. 2d 668 (App. Div. 1948).

In re Bowers, 89 N. J. Eq. 307 (Ch. 1918), cited as supporting the charges against the respondents, is not pertinent. In that case the respondent, father of plaintiff-husband in a divorce suit, threatened the wife’s solicitor with political and other pressures to got him to withdraw from the case, an act which was clearly contempt, since it tended to deprive the court of the services of one of its officers prosecuting a cause before it and constituted a step towards a collusive divorce.

But the proofs in this case do not show that the conduct complained of was intended to, or that it did, have a coercive effect on Martini.

We come now to the portion of Vallone’s actions which comes closest to constituting a contempt of court— his action in obtaining by misrepresentation and deceit and examining Martini’s diary and message book.

Even if it were to be assumed that the conduct complained of constituted an unlawful search and seizure, no authority has ever held that unlawful search and seizure constitutes a contempt of court. Cf. Blumrosen, “Contempt of Court and Unlawful Police Action ” 11 Rutgers L. Rev. 526; see Eleuteri v. Richman, 26 N. J. 506 (1958), certiorari denied sub nom. Eleuteri v. Furman, 358 U. S. 843, 79 S. Ct. 52, 3 L. Ed. 2d 77 (1958).

Nor does the fact that Martini is an attorney make the conduct complained of a criminal contempt.

That an attorney is an officer of the court is settled (In re Merrill, 88 N. J. Eq. 261 (Ch. 1917); In re Bowers, 89 N. J. Eq. 307, 309 (Ch. 1918)); but he is not the court nor one of its ministerial officers. See Cammer v. United States, 350 U. S. 399, 76 S. Ct. 456, 100 L. Ed. 474 (1955). I have no doubt but that one using Vallone’s tactics to obtain documents from the chambers of a judge or from court personnel would be adjudged guilty of criminal contempt (In re Hayden, 100 N. J. Eq. 50 (Ch. 1926)), but I can find no warrant for extending that summary remedy to such action taken not in the presence of the court (In re Caruba, 139 N. J. Eq. 404 (Ch. 1947); Van Sweringen v. Van Sweringen, 22 N. J. 440 (1956)), but in a lawyer’s office and outside the courthouse with respect to a lawyer’s diary and message book. For such injuries the attorney must look to the usual remedies. See McCann v. New York Stock Exchange, 80 F. 2d 211 (2 Cir. 1935).

In view of my ruling, it becomes unnecessary to consider the additional grounds for the motion urged by the respondent Insurance Company and Alberque.

Eespondents’ motion for judgment of acquittal is granted.  