Tyler v. Heywood

Sievers, Judge,

dissenting.

I must respectfully dissent. To conclude that Tyler’s statements made directly to the trial court are contemptuous is no more difficult than saying that the sky is blue or that there is a *563lot of sand at the beach. My esteemed colleagues find that a court cannot dismiss Tyler’s lawsuit as punishment for his direct contempt. Direct contempt is that which occurs in the presence of the court so that the court has personal knowledge of the facts and no need to inform itself of them by witnesses or other evidence. In re Contempt of Potter, 207 Neb. 769, 301 N.W.2d 560 (1981). Tyler’s conduct was direct contempt.

My colleagues analyze the matter under Neb. Rev. Stat. § 25-601 (Reissue 1995), dealing with the court’s ability to dismiss actions without prejudice on its own motion. I believe that the more correct statutory analysis is under Neb. Rev. Stat. § 25-2121 (Reissue 1995), which provides that every court of record shall have the power to punish by fine and imprisonment, as for criminal contempt, persons guilty of disorderly, contemptuous, or insolent behavior toward the court. Admittedly, the statute does not include dismissal of the underlying action as an express statutory remedy. However, it has long been recognized that “[t]he power to punish for contempt is incident to every judicial tribune, derived from its very constitution, without any expressed statutory aid.” Kregel v. Bartling, 23 Neb. 848, 852, 37 N.W. 668, 670 (1888). More recently, it was held that the courts of this state have the inherent power to do those things reasonably necessary for the administration of justice in the exercise of their jurisdiction. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).

With these doctrines in place, it is appropriate to recognize the impossibility of meaningfully punishing Tyler for his direct contempt, except by dismissing the underlying action. This only puts a very brief brake on his hobby of litigation from his penitentiary cell. He has filed a storm of lawsuits, the great majority of which lack even a semblance of merit and do little but steal judicial resources (at taxpayer expense) from litigants who are before the trial and appellate courts in good faith. See State ex rel. Tyler v. Douglas Cty. Dist. Ct., 254 Neb. 852, 580 N.W.2d 95 (1998) (district court order restricting Tyler to one lawsuit per month when proceeding in forma pauperis upheld by Supreme Court).

Therefore, the question against this backdrop is how to punish Tyler for his obviously contemptuous conduct given that he *564has neither freedom nor money, the two matters provided for in the statutory provision on contempt, § 25-2121. I would hold that to punish Tyler by dismissing his lawsuit is an appropriate vehicle to address his behavior and is an appropriate exercise of the trial court’s inherent power. In this instance, Tyler’s conduct is also contrary to the underlying notion in our courts that litigants act like civilized adults. If Tyler’s lawsuit cannot be dismissed as punishment for his profane verbal abuse of the trial judge, then we will have allowed Tyler to degrade the decorum and sanctity of our judicial process, all to no good purpose except his own amusement. I would affirm.