Old Missoula

Burton Wheeler 1919 – No Justice

Disbar Wheeler View of Lawyers

Missoula Attorneys Protest Remarks Made in Address in Butte.

Objections in State

Widespread Resentment Over Bitter Attack on Courts of Montana.

“You cannot expect justice in the district court or the supreme court. You might as well use your law books for fuel. They are no longer of any value in this state.” Burton K. Wheeler, Butte.

When Burton K. Wheeler, a former United States prosecuting attorney of Montana, made the foregoing remarks at a mass meeting last Sunday at Butte, he little realized the storm of protest they would arouse. Wheeler made them in a speech to a mass meeting which had been called to protest the refusal of the state supreme court to order that the name of William Francis Dunn, candidate of the radical element of Butte, be placed on the ballots as an independent nominee for mayor at the election there last Monday.

Missoula Lawyers in Protest.

Yesterday, leading attorneys of Missoula united in a protest against these utterances, and almost without exception declared them grounds for barring Wheeler from practicing law in the courts of Montana. That he should be punished also, by having other legal proceedings brought against him, was opinion expressed, though the attorneys were in some cases in doubt as to whether the proper procedure would be a suit for libel, or for slander, or a summons to show cause why he should not be held in contempt of court.

“It is up to the lawyers of Montana,” said Harry H. Parsons, “to uphold the dignity and honor of our courts. If they don’t do so, who will? The court’s salvation is based upon the support given them by the attorneys, and the rights of all of us are dependent upon their integrity.”

Protests Elsewhere in State.

But not only in Missoula have protests been heard. A recent issue of the Livingston Enterprise, the leading newspaper of Park county, and a prominent Democratic publication, gave considerable space to a recital of protests made by the lawyers of that city and county against the remarks of the former federal prosecutor.

The outstanding feature of the interviews given The Missoulian regarding the statements attributed to Wheeler is the virtually unanimous opinion, amounting almost to a demand, that the State Bar association take action, and that disbarment proceedings be instituted against him. The opinions given by Missoula lawyers follow:

By Harry H. Parsons.

If the lawyers of the state do not uphold the law and protect the courts, then who will? The courts’ salvation is based upon their being upheld, and the rights of all of us are dependent upon it. I believe that there should be disbarment proceedings instituted against Mr. Wheeler because of these remarks, for the courts must take up such cases as these to defend their dignity. They have the inherent right to prevent anyone practicing before them who slanders them and vilifies them. I believe it is the duty of the State Bar association to take this matter up and possibly the courts after the bar association. I recall that Judge Bourquin in the United States court, fined H. L. Maury, a Butte lawyer $500 for contempt of court when he declared in court that he did not expect that the jury in a certain case could give him justice, and on the other hand, in the Metcalf case from Ravalli county, the court held that a criticism of it, was not libel, because the “freedom of the press” demanded that the newspapers had the right to comment adversely on any decisions of the courts.

By Walter L. Pope.

The first impression one receives from the remarks of Mr. Wheeler is that it is a charge of corruption against the courts of the state, which charge, if not true – and we know it is not true – constitutes both libel and contempt. However, it might be a charge of incompetence or error, rather than of corruption. The courts have many times held that one may express opinion of the legal ability of the court, or of the correctness of a court’s decision, without being in contempt. Mr. Wheeler, if he were called upon to make a defense of his remarks, probably would say that he meant the judges are not able judges. If he were convicted of an offense against the court he could be disbarred, but I do not believe his remarks alone are grounds for disbarment.

By Representative W. J. McCormick.

If the remarks of Mr. Wheeler were made maliciously or with malicious intent they are grounds for disbarment. I believe. If they were made with regard to a case pending in court they are grounds for contempt. In any event, I believe they constitute slander.

By Frank A. Roberts.

I believe that the statements attributed to Mr. Wheeler regarding the state courts are grounds for disbarment proceedings. An attorney is nothing more nor less than an officer of the court, and if he feels as Mr. Wheeler appears to regarding them, then he has no business to be such an officer.

Offhand, I would say that I do not believe he is guilty of contempt, as his remarks were made outside of the presence of the court, and were not made in consideration of any pending matter. He might, however, be found guilty of doing damage to the individual members of the court, and compelled to pay damages. However, this is merely a “curbstone” opinion without any investigation of the law or the facts, and should be so regarded.

By Thomas N. Marlowe.

On the face of his remarks, it seems that a lawyer speaking as Mr. Wheeler did should be guilty of contempt of court, and necessarily he ought to be made the object of an investigation by the State Bar association with a view to disbarment proceedings. As I recall the decision of the supreme court in the Metcalf suit from Ravalli county, however, this case of Mr. Wheeler’s might not imply contempt of court, though it might be grounds for criminal libel, I believe.

By County Attorney Dwight N. Mason.

If Mr. Wheeler made the statement, I think that charges of unprofessional conduct should be brought against him and he should be disbarred from practicing in the state. I believe that the courts of Montana are fair and impartial.

By Assistant County Attorney Fred R. Angevine.

The statement sounds like that made by a man who has lost his case and has to offer some excuse. Of course, he is playing to the radical element and they always like to hear something like that. He has certainly been guilty of conduct unbecoming to a lawyer.

By Representative Ronald Higgins.

From my experience I can say that the courts of the state are fair. It is always easy enough to criticize the courts, but they have always been more conservative than radical. Certainly the people have confidence in the judges of the supreme court for both Brantly and Holloway have been re-elected several times. One will find in the decisions of the court that the corporations have not been favored and the court has always taken a liberal view.

In fact, sometimes we feel that the view is too liberal as in the recent case in regard to picketing at the mines.

I have known Wheeler as a careful man and it seems to me that he has lost his head in this case. I know that our own courts in this county are fair and I believe that the supreme court as well as the others in the state are not corrupt.

Robert E. Mulroney.

The laws and courts in this state are essentially like those in any other state, and if Mr. Wheeler thinks he can’t get justice in Montana, I don’t think he would be able to get it any place in the Union. He has lost a case and, of course, had to blame it on someone. I think that the supreme court could hold him in contempt of court, but doubt if they could make the charges stick.

The above article appeared in The Daily Missoulian on April 11, 1919.

 

University of Montana history graduate, Kurt Wetzel, wrote the following in 1973 regarding William Dunne’s case:[1]

“Dunne involved himself in partisan politics at state and local levels. Twice he ran for the state legislature, winning once. In one of Montana’s most dishonest and abusive elections, Dunne made an unsuccessful bid for the Butte mayoralty. No matter who Dunne’s formal opponents were, each campaign revealed that his actual adversary was the Anaconda Copper Mining Company. This powerful corporation controlled two daily newspapers in Silver Bow County and many public officials both in Butte and in Helena. It held power over the economic livelihoods of a majority of the county’s electorate. ACM unhesitatingly used any threat, lie, or unscrupulous tactic to repulse Dunne’s assaults on its hegemony over Montana. A successful revolt might have encouraged others, so it was important for the company to defeat Dunne’s political bids.”

Dunne was arrested for sedition in 1918 and tried in Helena early in 1919, with Burton Wheeler as his attorney. Although he was convicted after a 3-day trial, the verdict was overturned in 1920.

In the Butte primary election for mayor in March 1919, Dunne was initially declared the winner of the Democratic seat. However, an article in the Butte Daily Bulletin newspaper suggested that the results were inaccurate which apparently was enough pretext to cause an election inquiry. When the election results were “canvassed” by the mayor and city council, Dunne lost the nomination.

The election has been cited as an example of Montana’s egregious election fraud at the hands of the Anaconda Company.

Dunne subsequently announced he would run as an independent, but, “When Dunne attempted to file as an independent, the county clerk refused his petition.” Dunne and his attorneys then attempted to obtain a writ of mandate from the Montana Supreme Court but it was denied, since it was found to be untimely.

Two days later at a meeting following a blistering speech by Dunne, Burton Wheeler made the controversial remarks that were quoted above.

“You cannot expect justice in the district court or the supreme court. You might as well use your law books for fuel. They are no longer of any value in this state.”

Wheeler would later be elected a Montana senator in 1923 and would serve 4 terms.

A radicalized Dunne went on to help found the Communist Labor Party of America. After spending time in Moscow, Russia in 1924 he returned to the United States and became the editor of the Communist newspaper, The Daily Worker. He was a Communist candidate for governor of N.Y. twice. He was later involved in the Communist movement at least until the start of WW2, when he worked for the Navy as a cook in the Aleutian Islands. After falling out of favor with party officials he was removed from all official offices in the 1940’s. He died in New York in 1953.

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