ON MOTION TO STRIKE SPECIAL CONCURRING OPINION FROM FILES. (Opinion filed June 7, 1937.) On May 26, 1937, this court delivered an opinion affirming the judgment of the district court herein. The Chief Justice, concurrently with the promulgation of this opinion, delivered a special opinion in the case which did not disagree with the result announced in affirming the judgment in that case, but proceeded further than the majority opinion and concluded by finding the defendant and each of its attorneys guilty of contempt of this court arising out of the presentation of the cause to this court and the conduct of the course of this litigation, and proceeded to attempt to impose a fine and punishment for such contempt upon the defendant in the sum of $25,000, and additional fines on the counsel of $10,000 each, although the maximum fine which may be imposed under the statute for contempt is the sum of $500 (sec. 9917, Rev. Codes). All the members of this court, aside from the Chief Justice, subscribed to the *Page 573 opinion of the court declaring that they disclaimed all responsibility for the remarks, observations, statements and conclusions appearing in the special opinion of the Chief Justice.
Now, the attorneys for the defendant have, as individuals and on behalf of their client, filed in this court a motion praying that the special opinion be stricken from the files of the court upon numerous grounds, among which it is asserted that such opinion is "scandalous, scurrilous and defamatory."
It may be observed, in passing, that at the time of the argument of the cause, neither did the parties nor their attorneys, nor any member of the court, suggest that any contempt had been committed, or was being or was about to be committed. The matter of contempt was not then considered by anyone unless it was by the Chief Justice, and if so considered by him, he kept his own counsel until long after the conclusion of the argument of the cause and until the conclusion of the deliberation on the case by this court.
Epithets and adjectives are applied to the defendant and its attorneys whereby they are charged with crimes, unprofessional and immoral conduct. To here set forth these various expressions verbatim would be but to perpetuate them upon the records of this court, and if the motion were then granted, its actual purpose would thereby be destroyed. Without question, the words used in the opinion of which complaint is made by the movents are scandalous, scurrilous and defamatory. The question is thus presented: May we grant the motion in the light of this situation?
Preliminary to the consideration of this question, the inquiry[17] is suggested, May the movents secure relief under the laws relating to libel? A publication is privileged when made "in any judicial proceeding." (Sec. 5692, Rev. Codes.) An unbroken line of judicial decisions by the English and American courts adheres to the rule that no action will lie against a judge for acts done, or words spoken in his judicial capacity in a court of justice. Judges, when acting in a judicial capacity, are absolutely immune from responsibility for slander or libel. (Newell *Page 574 on Slander Libel, 3d ed., secs. 517, 518; Mundy v.McDonald, 216 Mich. 444, 185 N.W. 877, 20 A.L.R. 398; see cases collated in note, 20 A.L.R. 407; also, article in 9 Columbia Law Review, pp. 463 and 600.)
The reason for this rule of law was very well expressed by the English court in the case of Scott v. Stanfield, (1868), L.R. 3 Exch. 220, 15 Eng. Rul. Cases, 42: "This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences."
Having determined that the movents are without right to secure relief under the law under the subject of libel, some suggestions are made as to relief possible in such a situation as we have here at hand, in the article in the Columbia Law Review, supra, from which we now quote as follows: "Moreover, underlying this whole doctrine of absolute immunity is the conception of an alternative remedy. Although the law, for reasons of public policy, denies an action for defamation, the occasions to which immunity applies almost always afford other remedies, which minimize, if indeed they do not always afford adequate relief for, the damage which a person defamed may have sustained. Of course, these remedies are not uniformly available in all cases; in some instances they are almost entirely lacking; but it is hardly possible to conceive of a case in which there is no recourse of any kind against abuse. In the case of judicial proceedings, in which the rule of immunity has the widest scope, the underlying idea is that there is a tribunal whose proceedings are governed by formal methods specially designed for the orderly and efficient performance of the functions of those who participate in them; a tribunal presided over by a judge or judicial officer, specially equipped for his duties by character, learning and experience, who has the power, and, presumably, the will, to regulate and discipline all those who participate or appear before him. Judicial procedure implies notice to persons in interest, with the right to appear in person and by witnesses *Page 575 in answer to any charges that may be made, and the right to a formal judgment by an impartial court and jury. If a judge forgets his duty and demeans his high office he may be impeached and removed. Jurors, witnesses, counsel and parties litigant who overstep the bounds of decorum may be reprimanded, fined or punished by imprisonment, and the defamatory utterance may be expunged from the record. It is true that punishment for contempt is in theory punishment for an indignity offered to the court, rather than reparation to the aggrieved person for the injury sustained by him. But it is a matter of common observation that in the proper exercise of his powers by a judge, the malicious abuse of their functions by parties, witnesses or counsel harms them rather than the object of their malice. Offending counsel may be disbarred, and, like judges, suspended from the exercise of their office."
Since no other adequate relief is afforded to movents, it becomes most important for us to determine whether any relief may properly be afforded by granting their motion and thereby prevent the perpetuation of this document among the records of this court, as well as its publication in its reports and other law reports.
A careful search has revealed no case in the annals of[18, 19] American Jurisprudence where a judge of the highest appellate court of any jurisdiction has had his judicial utterance called in question in this manner, nor have we found a similar case in the English reports. The courts have, however, on occasion spoken upon the subject of keeping their records free from stain and scandal. "Scandal" is an unnecessary statement which bears cruelly upon the moral character of an individual, or the statement of anything which is contrary to good manners, or anything which is unbecoming the dignity of the court to hear. (Kelley v. Boettcher, 85 Fed. 55.) In the case of Green v.Elbert, 137 U.S. 615, 624, 11 Sup. Ct. 188, 34 L. Ed. 792, Mr. Chief Justice Fuller, speaking for the court, said: "We regret that we find ourselves compelled to add something further. The printed argument of plaintiff in error contains many allegations *Page 576 wholly aside from the charges made in his complaint, and bearing reproachfully upon the moral character of individuals, which are clearly impertinent and scandalous, and unfit to be submitted to the court. It is our duty to keep our records clean and free from scandal."
Again, Chief Justice White, in delivering the opinion for the court in the case of Royal Arcanum v. Green, 237 U.S. 531,546, 35 Sup. Ct. 724, 59 L. Ed. 1089, L.R.A. 1916A, 771, said: "Before making the order of reversal we regret that we must say something more. The printed argument for the defendant in error is so full of vituperative, unwarranted and impertinent expressions as to opposing counsel that we feel we cannot, having due regard to the respect we entertain for the profession, permit the brief to pass unrebuked or to remain upon our files and thus preserve the evidence of the forgetfulness by one of the members of this bar of his obvious duty. Indeed, we should have noticed the matter at once when it came to our attention after the argument of the case, had we not feared that by doing so delay in the examination of the case and possible detriment to the parties would result. Following the precedent established in Green v.Elbert, 137 U.S. 615, 11 Sup. Ct. 188, 34 L. Ed. 792, which we hope we may not again have occasion to apply, the brief of the defendant in error is ordered to be stricken from the files."
In the case of Morrison v. Snow, 26 Utah, 247, 262,72 P. 924, it is declared: "The issue thus raised is, Has a court power to expunge from its files and records, scandalous, malicious and malignant matter injected therein, that raises no issue and can serve no purpose, except to harass, annoy, wound the feelings, and besmirch the reputation of the parties at whom it is aimed? In other words, must the doors of the judiciary be thrown wide open, and become a conduit through which the malevolence, vindictiveness, and offensive personalities of litigants and attorneys may be injected, and the files, records and vaults of the courts become the public repositories in which to perpetuate such scandal? Every court has the inherent power to prevent *Page 577 libelous, impertinent and scandalous matter from incumbering its records. It would, indeed, be a sad commentary on our judicial system, if courts were powerless to enforce proper decorum in all proceedings before them, and compel litigants and attorneys to observe the rules of propriety and common decency in the bringing and conducting of suits."
The Court of Appeals of West Virginia, in the case ofJohnson v. Brown, 13 W. Va. 71, 135, said: "The court may at any time have stricken from the record scandalous matter, though it refer to a stranger to the suit, either at the instance of such stranger, or without any motion by anyone. The court of its own motion, in aid of public morals, is bound not to permit its records to be made the means of perpetrating libelous and malignant slanders, but should interfere to suppress such indecencies, which may stain the reputation and wound the feelings of the parties, their relatives and friends."
Judge Sanborn of the Circuit Court of Appeals for the Eighth Circuit in delivering the opinion of the court in the case ofKelley v. Boettcher, supra, said: "The authority and the duty of a federal court to keep its records free from stain and scandal are by no means dependent on the ability or disposition of counsel for the litigants before it, but its power is plenary, and its duty imperative, whatever the action of counsel may be." (See, also, Huffman v. State, 183 Ind. 698, 702,109 N.E. 401, 748; Pittsburgh C.C. St. L. Ry. Co. v. Muncie P.Traction Co., 166 Ind. 466, 77 N.E. 941, 9 Ann. Cas. 165, 166, and note on page 166; Brownell v. McCormick, 7 Mont. 12,35 P. 108; Diamond T.G. S. Min. Co. v. Faulkner, 17 Colo. 9,28 P. 472; Zukas v. Appleton Mfg. Co., 277 Ill. 87,115 N.E. 164.)
We fully subscribe to the doctrine announced in the foregoing cases as applied to the facts here under consideration. It, therefore, becomes our unpleasant duty to afford to the movents some relief. The motion to strike the opinion is granted accordingly.
Our associate has the right to speak freely within the record of the case. If he so desires he, of course, can file such special *Page 578 opinion as to him may seem fit and proper. But it is the duty of this court to keep its files and records free from stain and scandal not pertinent to the cause and unnecessary to a decision, and when those injured, or others on their behalf, ask for relief therefrom it should be granted.
It is, therefore, ordered that the special concurring opinion filed in this cause be stricken from the files of this court and the same expunged from its records, and that it be not published in the reports of the decisions of this court.
ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concurring.