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Lawyers, Judges, Politics and the Press, 1927 Style

Likening the newspapers of the day to the bombastic extravagance of the carnival barker, historian Frederick Lewis Allen named the period of time just before the stock market crash of 1929 “the ballyhoo years.” “When something happened which promised an appeal to the popular mind,” Allen wrote, “one had it hurled at one in huge headlines.”Just as significant to Allen, the press seemed to have the power “to excite the millions over trifles.”Certainly the readers of the two Albuquerque newspapers in 1927 saw most of the same treatment of national news as Allen, but in May, the month that Lindbergh captured the headlines and the popular imagination, a political columnist for the Albuquerque Journal created a stir that gave ballyhoo some local color.

The Governor Hannett Case

by Mark Thompson

Likening the newspapers of the day to the bombastic extravagance of the carnival barker, historian Frederick Lewis Allen named the period of time just before the stock market crash of 1929 “the ballyhoo years.”[1] “When something happened which promised an appeal to the popular mind,” Allen wrote, “one had it hurled at one in huge headlines.”[2] Just as significant to Allen, the press seemed to have the power “to excite the millions over trifles.”[3] Certainly the readers of the two Albuquerque newspapers in 1927 saw most of the same treatment of national news as Allen, but in May, the month that Lindbergh captured the headlines and the popular imagination, a political columnist for the Albuquerque Journal created a stir that gave ballyhoo some local color.[4]

Arthur Thomas (“A.T.”) Hannett had lost his bid for re-election as governor in 1926. Instead of returning to Gallup, where he had practiced law and served as mayor, Hannett moved to Albuquerque and opened an office in January of 1927. In its Sunday morning edition on the fifteenth of that month, the Journal announced with great fanfare that Hannett would be writing a political column for its afternoon edition.[5] Hannett’s page-one column, “New Mexico Day by Day,” contained the usual political fare, but on January 24th he started a campaign, seemingly risky for a practicing lawyer, against the sitting judge of the First Judicial District, Reed Holloman. In that first volley, Hannett merely asserted that Judge Holloman had the Republican Party “in his hand” and that he could “get the Legislature to his bidding.” Later, on May 2, 1927, Hannett accused Holloman of “perverting his court into an engine of oppression,” alleging that Holloman had conspired to throw a Gallup utility into receivership. Hannett called for Holloman’s impeachment. He followed up on May 9th by accusing Holloman of threatening the Journal and alleging that he had “personally known [Holloman] to be intoxicated on the bench.”

 Elected district judge in 1918 and re-elected in 1924, Reed Holloman was by 1927 no stranger to controversy. He had played a role, as a district court judge, in the efforts to discredit, or possibly imprison, the Albuquerque journalist, Carl Magee. According to one historian writing about the Magee cases, “Holloman remained on the bench and continued his partisan activities causing his legislative adversaries in 1925 to draft, although not use, articles of impeachment against him.”[6] Apparently those “partisan activities” included the attempt to declare the Republican Manuel B. Otero the winner in the contested gubernatorial election of 1924.[7] The ultimate winner was, of course, the Democrat A.T. Hannett!

The Journal wasted no time in stirring the pot. In an editorial on May 10, 1927, it declared that Holloman should respond to Hannett’s charges.[8] Meanwhile, Hannett hired that ubiquitous company of “private eyes,” the Burns Detective Agency,[9] to go undercover in Gallup and get evidence to back up Hannett’s allegations about the receivership conspiracy. Posing as an agent for a potential investor, the detective was on the job at least by May 20th according to his reports to Hannett.[10] Apparently the detective played his role very well. Two legal actions were eventually brought by persons alleging that Hannett was the undisclosed investor and was bound by the acts and representations of his agent, as if the activities of the detective were actually an attempt to buy equity in the utility.[11]

With a headline only slightly smaller than the “Lindbergh in Paris” banner it had used on May 21st, the Journal announced on June 9th that the Board of Bar Commissioners had passed a resolution directing its committee on ethics, grievance and discipline to prepare formal charges against Hannett by June 15, 1927. The resolution also provided that Hannett should file a response by July 15th  and then “show cause” why he should not be disciplined, including proof of the truth of his statements, at a hearing before the Board on Aug. 2, 1927.[12] Hannett and his lawyers saw an opening and not only filed an answer but also additional specific allegations against Holloman, giving the Journal yet another opportunity to headline the case.[13]

It seems fair to say that the law of “lawyering,” i.e., professional ethics and discipline, was unsettled in 1927. To begin with, both the legislature and the New Mexico Supreme Court each believed it had the power to provide the procedure for lawyer discipline.[14] The Board of Bar Commissioners proceeded in accordance with its understanding of the legislation. In addition, there was no codified substantive law governing lawyer conduct. The American Bar Association Canons of Ethics, issued in 1908, were treated as guidelines, without the force of law.[15] Consequently, the Hannett case proceeded much like a defamation action, with the burden on the lawyer to prove the truth of his statements or face discipline.[16]

Though perhaps not with the bang that the Journal had hoped for,[17] the hearing opened on Tuesday, August 2, 1927, in the chambers of the House of Representatives in Santa Fe. The Board heard seven days of testimony and argument over the next two weeks, recessing for the Bar Convention, and announced its decision on Tuesday, August 16, 1927. “Suspend Hannett 1 Year,” the banner headline screamed.[18] In a written decision issued the next day, the Board had something for everyone. The five-two ruling[19] found that Hannett had failed to prove the truth of almost all of the statements he made about Judge Holloman and that he had brought “into disrepute the orderly administration of justice.” But in Finding Number 17, the Commissioners gave Holloman’s opponents some ammunition: “The Board is of the opinion that the political activities of Judge Holloman are such that they tend to interfere with the impartial performance of the duties of his office.”[20]

Within 10 days of the decision, Hannett had filed his “appeal,” an application for writ of certiorari, in the First Judicial District Court in Santa Fe. Judge Holloman was, of course, disqualified, and, after hearing argument from the parties, Judge Henry A. Kiker of Raton, signaled that he was prepared to rule that the Board of Bar Commissioners did not have the constitutional power to discipline lawyers.[21] The Board promptly sought a writ of prohibition from the Supreme Court on the grounds that the district court had no jurisdiction to entertain an appeal from the Board.[22] On November 2, 1927, the Supreme Court held that the district court had jurisdiction.[23]  On November 12th Judge Kiker ruled that the discipline order was null and void because the legislation giving the Board jurisdiction to discipline lawyers lacked constitutional authority.[24]

The Board voted to appeal the Kiker decision, and also chose to use a disciplinary action already pending before the Supreme Court to argue its position on the constitutionality of the legislation.[25] In the meantime, the Journal kept the pot boiling by calling daily in its editorial column for Holloman’s impeachment.[26] On November 22, 1927, a Journal editorial urged the Bar Commissioners to take disciplinary action against, Francis E. Wood and H.W. Yersin, two of the attorneys involved in the Gallup utility “conspiracy”.[27] This prompted Wood to file a defamation action against both Hannett and the Journal which was initially successful, but which eventually resulted in a complete victory for the defendants.[28]

On May 2, 1928, the New Mexico Supreme Court issued an opinion in the Charles Royall disciplinary case including the statement that “[it] is not seriously contended by counsel for the board that the board can be lawfully empowered to make the order of disbarment.”[29] Probably not wanting to subject its counsel to further embarrassment, the Board apparently gave the Hannett case a proper burial.[30] Hannett himself merely noted the Royall decision as part of his summing up of the entire affair in his column of May 8, 1928.[31] The Journal, on the other hand, could not allow such an anticlimax to the whole affair. It continued a daily call for Judge Holloman’s impeachment through and including his last day on the bench, Dec. 31, 1930.[32]

 


[1]Frederick Lewis Allen, Only Yesterday (New York: Harper & Row, 1931; Perennial Library ed., 1964), pp. 155-187

[2]Id., at p. 158

[3]Id., at p. 160

[4]From 1926 to 1933, the Journal published two daily editions, Monday through Saturday, and only a morning edition on Sunday. The evening edition was probably published in an effort to adversely impact the other afternoon paper, the New MexicoState Tribune. I appears that the editors worked on the assumption that both editions would be read by its subscribers. For convenience, I will identify citations to the Journal articles as either “Morning ed.” or “Evening ed.”

[5]In his memoir, Hannett expressed his appreciation to the Journal publisher for giving him a job while he was trying to build a new practice. Arthur Thomas Hannett, Sagebrush Lawyer (New York: Pageant Press, 1964), pp. 183-86.

[6]Susan Ann Roberts, The Political Trials of Carl C. Magee, 50 N.M Hist. Rev. (1975), pp. 291, 307. 

[7] Susan A. Roberts, A Political History of the New Mexico Supreme Court, 1912-1972, N.M. Law Rev. (Special Issue, Oct. 1975), pp 36-39. (Roberts also includes a good, short summary of the Hannett/Bar Commission litigation, but, in my opinion, misreads the holding in the prohibition case. See note 23, infra, and accompanying text.)

[8]Morning ed., p. 4.

[9] Hannett leaves the impression in his memoir that the Journal paid for the cost of hiring the Burns Agency. Sagebrush Lawyer, note 5, supra, at pp. 183-186. It sometime seemed that Burns was involved in every celebrity divorce in the country and in 1927 it had plenty on its plate, having been charged with jury tampering in the Fall/Sinclair trial, a part of the Teapot Dome scandal. See e.g., Morning ed., 11/13/27, p. 1. Full disclosure: The author’s grandfather, one of the attorneys for A.B. Fall, was implicated by a government agent as having some role in the jury tampering, but was never charged by the government. See e.g., Morning ed., 11/12/27, p. 1.

[10]Hannett does not dwell at any length on this whole affair in his memoir, but he does reprint the Burns report as an appendix, apparently content to have his readers draw their own conclusions. Sagebrush Lawyer, note 5, supra, appendix no. 9.

[11]See e.g., Morning ed., 10/21/27, p. 1 and Morning ed., 3/1/28, p. 1.

[12]Evening ed., 6/9/27, p. 1.

[13] Evening ed., 7/15/27, p. 1. The Journal used almost two complete pages of its eight column broadsheet to print the entire response, leading with a banner headline, “Holloman Sold His Influence for $500 in Franchise Deal, Hannett Charges.”

[14]See, State ex rel Wood v. Raynolds, 22 N.M. 1, 158 Pac. 413 (1916) and N.M. Laws, 1925, ch. 100, §8. Perhaps as a result of the Hannett and other cases, the Supreme Court took its first rule making steps to take control of the Bar in 1928. See order dated June 12, 1928, published at 35 N.M. p. vi. In 1974. the court declared regulation of the Bar was within the province of the Court under the constitutional doctrine of separation of powers. In re Patton, 86 N.M. 52, 54, 519 P.2d 288, 290 (1974).

[15]The Supreme Court did not adopt substantive rules until the ABA replaced the canons of ethics with a Code of Professional Responsibility. See order dated Feb. 24, 1971, published at 82 N.M. p. xii.

[16]The modern Rule of Professional Conduct is likewise a “defamation” rule, but it incorporates the First Amendment standard and requires Disciplinary Counsel to prove that statements made about the judge were knowingly false or made with reckless disregard for truth or falsity. See Rule 16-802 NMRA. See also, Restatement, Law Governing Lawyers, § 114 (American Law Institute, 2000).

[17]The banner headline for Saturday, July 30th claimed that “Crowds Fill Santa Fe for Hannett Hearing,” but the reporter noted that the slow pace of the opening day left the audience “rather restless.” Evening ed., 7/30/ 27, p. 1 and Evening ed., 8/2/27, p. 1.

[18]Evening ed., 8/16/27, p. 1.

[19] Susan Roberts indicates that the Commissioners split along political party lines. Roberts, A Political History of The New Mexico Supreme Court , note 7, supra, at 39.

[20]Evening ed., 8/17/27, p. 1. Beginning on Sept. 8, 1927, and continuing through Oct. 25, 1927, the Journal led off its daily editorial column with the quotation of Finding no. 17. See e.g., Morning ed., 9/8/27, p. 4. 

[21]Morning ed., 9/27/27, p. 1

[22]Evening ed., 9/27/27, p. 1.

[23]State ex rel Bd. of Comm’rs of State Bar v. Kiker, 33 N.M. 6, 261 Pac. 816 (1927).

[24]Evening ed., 11/12/27, p. 1.

[25]Evening ed., 11/29/27, p. 1

[26]The Journal’s lead for the editorial column, calling for impeachment of Judge Holloman, started on Oct. 26, 1927. Morning ed., 10/26/27, p. 4.

[27]Morning ed., 11/22/27, p. 4.

[28]Wood v. Hannett, 35 N.M. 23, 289 Pac. 590 (1930). See also, Case Comment, Torts-Libel and Slander-The Libel Per Se-Libel Per Quod Distinction in New Mexico, 4 Nat. Res. J. 590, 596-97 (1965).

[29]In re Royall, 33 N.M. 386, 268 Pac. 570 (1928).

[30]I did not bother to search the archived court file for a motion to dismiss and I found no published order or opinion dismissing the Hannett case.

[31]Evening ed., 5/8/28, p. 1.

[32]Holloman was not a candidate for reelection in 1930, deciding instead to float a trial balloon as a candidate for governor. He was apparently the front runner for the Republican Party nomination, but withdrew at the last minute when the incumbent, and term limited, Republican Governor, Richard C. Dillon, refused to run for the U.S. Senate seat. See Morning ed., 9/23/30 p. 1 and Morning ed., 9/24/30, p. 1. The Republican candidate for the First Judicial District Court position, the incumbent Attorney General, M.A. Otero Jr., won an uncontested election to succeed Holloman. See N.M. Blue Book 1931 (Santa Fe, 1931), p. 51.