Matter of Williams

817 P.2d 139, 120 Idaho 473, 1991 Ida. LEXIS 126

• Court: Idaho Supreme Court
• Decided: August 15, 1991
• Docket: 18820
• Status: Published

Opinions

McDEVITT, Justice.

The appellant was held in contempt of court for failure to appear for trial on two separate occasions. The magistrate fined the appellant $250.00 and sentenced him to 72 hours in jail. The district court affirmed the magistrate’s order.

The appellant, Joseph L. Williams, II (“Williams”), is an attorney who represented Mr. Theodore Delezene in a misdemean- or criminal case. A trial in the Delezene matter was originally scheduled for October 3,1989. Williams contacted Magistrate Judge McClure and received a verbal continuance based on his unavailability for trial. The verbal continuance was confirmed in a written continuance signed by Magistrate McClure. Trial was then reset for November 7, 1989. Williams moved for another continuance based upon his unavailability. It is unclear whether Magistrate McClure granted this continuance telephonically. Williams filed a written motion for continuance at 4:51 p.m. on November 6, 1989, and did not appear for trial on November 7. This motion for continuance was returned after November 7 and was signed “Denied by Riddoch.” Williams concluded that the paperwork had been sent to the wrong judge, so he did not inquire further about the denial. The trial was then reset for November 28, 1989.

Williams claims he filed a demand for jury trial on November 21, 1989, and Williams believed that this request would cause the November 28, 1989 trial setting to be continued. Williams then failed to appear at the November 28, 1989 trial date. However, the original demand for jury trial was not in the court file, there was no evidence in the court docket that this document had been filed and the prosecuting attorney did not receive a copy of the demand for jury trial. Williams did not have a conformed copy of this pleading to verify his assertion.

On November 29, 1989, Magistrate Riddoch issued an order to show cause why Williams and his client, Ted Delezene, should not be held in contempt for failure to appear at two trial dates. The show cause hearing was held on December 11, 1989.

At the hearing, the magistrate stated he was proceeding pursuant to I.C. § 7-603. Williams requested that the magistrate recuse himself because he was the individual initiating the contempt proceedings and also because Williams wanted to call him as a witness, but this request was denied. After a lengthy hearing, the magistrate found Williams in contempt, fined him $250.00 and ordered him to serve 72 hours in jail, effective immediately.

The issues we confront on appeal are: (1) does an attorney’s failure to be present at court when scheduled without valid excuse constitute direct or indirect contempt; (2) is the magistrate’s finding of direct civil contempt supported by substantial and competent evidence; and, (3) were the appellant’s constitutional rights violated?

STANDARD OF REVIEW

Idaho Appellate Rule 11(a)(4) allows a direct appeal from an order of contempt. Thus, we review an appeal from an order of contempt the same as any other appeal. We are not in the position to weigh the evidence and then make an independent determination, we only conduct a review of the record to determine if there is substantial evidence to support the order of contempt. Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965). We will also review the sanctions imposed under the abuse of discretion standard. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).

Contempt proceedings are quasi-criminal in nature. Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972); Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967). Although the proceedings are quasi-criminal, an “en masse application of criminal rules, both substantive and procedural ... is unwarranted.” State v. Palmlund, 95 Idaho 150, 153, 504 P.2d 1199, 1202 (1972). The proceedings are sui generis, therefore, both civil and criminal law rules are utilized to determine the proper procedural guidelines to be employed. Id.

1. AN ATTORNEY’S FAILURE TO BE PRESENT IN COURT WHEN SCHEDULED WITHOUT VALID EXCUSE CONSTITUTES A FORM OF DIRECT CONTEMPT.

Williams challenges the finding of direct contempt. He asserts that an attorney’s failure to appear in court is indirect contempt, which requires heightened procedural safeguards. There are three distinct lines of authority dealing with an attorney’s failure to appear in court. The first holds that the failure to appear is indirect contempt; the second holds that the failure is direct contempt; and, the third holds that the failure to appear is a hybrid form of direct contempt.

Categorizing contempt is important, as Idaho law prescribes different procedures for direct and indirect contempt. Idaho Code § 7-603 allows for direct contempt to be punished summarily, but it requires that an indirect contempt must be initiated by an affidavit. See also, I.C.R. 42. The absence of an attorney presents a unique situation that does not fit easily into either category. We have not passed upon this issue previously. We find that a review of the three lines of authority from other jurisdictions is instructive on determining this issue.

An example of those cases holding that an attorney’s failure to appear is indirect contempt is State v. Hatten, 70 Wash.2d 618, 425 P.2d 7 (1967). In Hatten, the attorney represented the defendant in a criminal trial. On the second day of trial, the attorney failed to appear at the appropriate time. After one hour and fifteen minutes, the absent attorney finally arrived at court. The trial judge immediately placed the absent attorney under oath and questioned him about the reasons for being late. The attorney failed to proffer an adequate excuse or apology, so the trial judge ordered the attorney to appear the next day and defend against the charge of contempt. The hearing was held and the attorney again failed to provide an adequate excuse for arriving late for trial. The trial court set forth findings of fact and placed the attorney in contempt.

The Hatten Court stated that an attorney’s failure to appear in court is not a contempt committed in the presence of the court. Although one aspect of the contempt, the failure to appear, is viewed by the court, the explanation for the absence is not known. The Washington State Supreme Court held that the alleged contemnor must be given the opportunity to be heard and to produce witnesses or other evidence to excuse the absence, therefore, summary disposition is inappropriate.

A few jurisdictions hold that an attorney’s failure to appear is a direct contempt, properly punished using summary proceedings. In Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980), the absent attorney missed the weekly roll call of trials. Upon his arrival at the courthouse three hours later, the trial judge asked for an explanation for the absence. Upon receiving an inadequate response, the trial judge found the absent attorney to be in direct contempt and punished him accordingly.

The Pennsylvania Supreme Court affirmed the finding of contempt. The court held that the absence of an attorney is a direct affront to the judicial system and it is proper to punish such conduct summarily. The court specifically found that summary adjudication allowed the court to dispense with the “traditional steps” used in most cases, i.e., “the issuance of process, service of complaint and answer, holding of hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a traditional court trial.” Commonwealth v. Marcone, 487 Pa. 572, 579, 410 A.2d 759, 763 (1980).

The third line of cases is best explained in the concurring opinion in Chula v. Superior Court of Orange County, 57 Cal.2d 199, 18 Cal.Rptr. 507, 368 P.2d 107 (1962). In concurring in the opinion that affirmed a finding of contempt, Chief Justice Gibson described the situation a “hybrid;” the contempt arises from the failure to appear by the attorney, which occurs in the presence of the court, which is claimed to be excused by matters taking place outside of the court. In this situation, Chief Justice Gibson found no reason to require an affidavit or outside testimony to substantiate the facts surrounding the alleged contempt. All that is required is an order to show cause to apprise the attorney of the charges against him and a hearing to allow the attorney to explain the absence.

In re Yengo, 84 N.J. 111, 417 A.2d 533, cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1980), is an example of those jurisdictions that have adopted the hybrid approach. Yengo dealt with an attorney who was absent for two days during a complex trial involving multiple defendants that lasted five weeks. On the days that the attorney was absent, he sent a second attorney to represent his client, the substitute was not knowledgeable about the case. The trial judge became concerned that the second attorney was inadequately informed to represent the defendant. The trial judge then tried to ascertain the whereabouts of the absent attorney. A call to his residence revealed that Yengo had taken a short vacation to Bermuda. The trial judge sent a telegram to the attorney’s residence ordering him to appear and show cause why he should not be held in contempt for failure to appear at trial.

The absent attorney appeared at the appointed time for the show cause hearing. When asked to explain his absence he stated that he went to Bermuda on behalf of another client. The trial court noted that the attorney had not informed the court prior to his leaving, although he had informed the prosecuting attorney and the other defense lawyers. The trial court found this explanation unsatisfactory and found the attorney in contempt and fined him $500.00. The New Jersey Supreme Court held that the unexplained absence of an attorney is appropriately dealt with summarily. The absence is within the presence of the court and once the attorney returns and offers an explanation, both elements of the offense are in the presence of the court. Thus, the contempt is a hybrid, but is ultimately a direct contempt committed in the presence of the court.

We find the hybrid form of direct contempt argument persuasive. The circumstances surrounding the absence of an attorney in court are readily apparent to the court. The court is aware that the attorney’s presence is required, that the attorney was aware that his presence was necessary and that the attorney is absent. Once the attorney has been given the opportunity to explain the absence to the court, all elements of direct contempt are present. Therefore, the attorney’s absence is a direct contempt. Von Hake v. Thomas, 759 P.2d 1162 (Utah 1988). While we conclude that an attorney’s absence is a direct contempt, this unique situation cannot be dealt with in a purely summary fashion, the contempt is a hybrid and must be dealt with accordingly. The subject attorney must be notified of the charge of contempt, the specific order of the court allegedly violated, and other important facts surrounding the alleged contempt. Proof of knowledge by the attorney of the original court order must also be shown. After receiving notice the absent attorney must be given a meaningful opportunity to explain the absence. These requirements are best met by issuing an order to show cause and conducting a hearing to allow the attorney to explain the absence. The subject attorney must be given the opportunity to be represented by counsel, to call witnesses is his or her behalf and to present evidence. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988); Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972). Any other method would not preserve the subject attorney’s due process rights.

Although notice of the charges and the hearing are necessary, an attorney’s failure to appear is best dealt with in a direct contempt manner. This allows the involved judge to preside at the show cause hearing and to remain as a judicial officer and not as a litigant. These considerations best serve the administration of justice. Lyons v. Superior Court of Los Angeles County, 43 Cal.2d 755, 278 P.2d 681, cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955).

In the present case, the magistrate issued an order to show cause on November 29, 1989. The original hearing date was December 6, 1989. The hearing was continued and was eventually held on December 11, 1989. The magistrate’s order to show cause stated that the original trial was set for October 3, 1989, but was continued because of counsel unavailability and was reset for November 7, 1989; that Williams filed a late motion to continue the November 7 trial date on November 6 (which evidences that Williams was aware of the November 7 trial date); that this motion was denied and Williams and his client failed to appear at the November 7 trial; that by order of court the trial date was reset for November 28 (which order was served upon Williams); and, that Williams and his client failed to appear for trial on November 28. The order then required Williams and his client to appear and show cause why they should not be held in contempt. Thus, fulfilling all of the requirements necessary.

At the hearing, Williams was given the opportunity to explain his absence. His client was also allowed to explain his absence.¹ Williams stated that he felt the November 7 trial date had been continued and so he did not appear. Williams then called four witnesses to explain his absence on November 28. Williams attempted to prove that he had filed a demand for jury trial on November 21, which he felt would then require the November 28 trial to be reset. The court’s file did not contain the demand for jury trial and Williams did not have a conformed copy of the demand, nor did Williams serve a copy of the demand on the prosecuting attorney. Williams asserted that the clerk’s office either negligently lost the original demand for jury trial or that the demand was misfiled. Williams further attempted to prove that the court clerks refused to conform copies when asked. Despite these accusations, and without any evidence that Williams had filed the demand, the magistrate came to the conclusion that the demand had not been filed.

Finally, a basic requirement is that, while findings of fact and conclusions of law are not necessary, the order finding contempt must state the specific acts that are considered to be contemptuous. I.C. § 7-603; I.C.R. 42(a). In his order, the magistrate found Williams in contempt for “failure to appear as counsel of record for trial on November 7th and 28th, 1989 and for last minute continuances and tardy requests for jury trial (if filed at all) in the case of State v. Delezene____” This is a sufficient explanation of the acts found to be contumacious.

We hold that the magistrate followed the correct procedure in adjudicating the contempt. There was no error.

2. THE MAGISTRATE’S FINDING OF DIRECT CIVIL CONTEMPT IS SUPPORTED BY SUBSTANTIAL AND COMPETENT EVIDENCE.

The appellant challenges the sufficiency of the evidence in finding him in contempt. A thorough reading of the transcript and a review of the court files offers substantial and competent evidence to support the finding of the magistrate.

At the hearing, Williams testified that he obtained a verbal continuance for the November 7 trial date from Magistrate McClure, so he knowingly did not appear for trial on that date. When the written continuance was returned to him “Denied by Riddoch,” he failed to inquire further into the matter. Williams then testified that he thought that the demand for jury trial would continue the November 28 trial date, so again he failed to appear for trial. Williams then failed to produce conclusive evidence that the demand was filed. The evidence supports the finding that Williams failed to appear on two trial dates.

While we understand appellant’s contention that he felt that he had valid reason not to appear, we cannot condone his conduct. Sometimes, oral continuances the day before a scheduled trial are necessary for unforseen reasons. However, the testimony of the appellant showed a habitual use of successive oral continuances and late filing of motions for continuances.

Nor are we sympathetic to appellant’s claim that the clerk of the court lost the original demand for jury trial. Both I.R.C.P. 5(a) and I.C.R. 49 require service of all pleadings filed with the court upon all parties affected. Undoubtedly, the prosecuting attorney would be affected by the demand and Williams failed to serve a copy of the demand on the prosecuting attorney. Williams offered no excuse for failing to serve the prosecuting attorney. We cannot say that the magistrate erred in finding that appellant’s conduct was contemptuous.

Appellant further contends that the magistrate erred in finding civil contempt. Williams asserts that the sanctions imposed were criminal, rather than civil in nature. When sanctions are imposed to punish the contemnor for past acts, the contempt is criminal; when sanctions are imposed for compensatory or coercive reasons, the contempt is civil in nature. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983). In this case, the sanctions were imposed to penalize Williams for failing to appear on two trial dates without valid excuse. It is also evident from the court’s colloquy that the sanctions were also imposed to induce Williams to better manage his affairs and to not file tardy requests for continuances and requests for jury trial. Thus, the sanctions imposed had both a criminal and a civil purpose. There was no error in labeling the contempt as civil rather than criminal. Any error in nomenclature, if any, is harmless.

3. THE APPELLANT’S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED.

Appellant has alleged that several of his constitutional rights were violated. First, Williams contends that his right to present evidence and confront witnesses was violated. Appellant takes exception to this statement made by Magistrate Riddoch:

I don’t doubt that [the contention that Williams obtained a verbal continuance from Judge McClure] is what your witnesses will testify to. I don’t accept that as the truth at all. In fact I have serious doubts that is the practice of Judge McClure because on other matters not involving yourself ... and not involving this case ... I have had the opposite of that.

Williams asserts that this statement shows that the magistrate would not consider any evidence or believe any of the witnesses produced by Williams. We disagree. Williams was given the opportunity to call three witnesses on his behalf, in addition to testifying himself. Williams also introduced four instruments claiming the originals had been filed. The magistrate considered this evidence, but took the position that only conformed copies of the filed pleadings were evidence of filing. This was not erroneous. It was permissible for the magistrate to rely upon the clerk’s record to determine that the original pleadings had not been filed. There is no constitutional violation.

Williams contends that he was denied the opportunity to confront his accuser, Magistrate Riddoch. This argument is without merit. In summary contempt proceedings, the necessities of the case require the judge who witnessed the conduct to preside at the hearing. Vaughn v. Municipal Court of Los Angeles Judicial Dist., 252 Cal.App.2d 348, 60 Cal.Rptr. 575, cert. denied, 393 U.S. 856, 89 S.Ct. 125, 21 L.Ed.2d 126 (1967). Indeed, both I.C. § 7-603 and I.C.R. 42 allow, if not require, that the judge who witnessed the conduct punish such conduct. It is also important to consider that the Idaho Rules of Evidence bar a judge from serving as both judge and witness in the same proceeding. I.R.E. 605. Because the judge is to preside at the hearing and the judge cannot be called as a witness, there is no right to call the judge as a witness in summary contempt proceedings. Nor does this violate any constitutional rights. All facts within the judge’s knowledge were recited in the order to show cause. There was no question that Williams had failed to appear and the only issue was whether that failure was excusable. Requiring the judge to be a witness would not have brought any additional facts to light.

Appellant contends that his right to adequate representation of counsel was denied. Appellant did not request counsel be appointed nor did he complain of lack of counsel at the show cause hearing. Normally, because of the failure to assert this right, we would not consider this issue. State v. Hernandez, 107 Idaho 947, 694 P.2d 1295 (1983); State v. Kellogg, 102 Idaho 628, 636 P.2d 750 (1981). However, Williams did file and obtain a continuance of the original date set for the show cause hearing. In his affidavit to obtain the continuance Williams stated that, “[i]t would be wise for counsel to be retained to represent myself in these proceedings, and time would be needed to arrange for counsel to be present____” While this brief statement is insufficient to raise the issue, in the interest of justice we will address the issue of adequate representation of counsel.

A defendant has the right to the effective assistance of counsel. Stuart v. State, 118 Idaho 932, 801 P.2d 1283 (1990). Idaho Rule of Civil Procedure 6(c)(2) requires an order to show cause be served upon the party to whom it is directed five days prior to the date set for hearing. The order to show cause was served upon Williams on November 30th. The original hearing date was set for December 6. This gave Williams five days to obtain representation. The motion for continuance was made December 4, and the hearing was continued to December 8. Later, the magistrate continued the hearing to December 11. This gave Williams another five days to obtain representation. We hold this was a sufficient amount of time to obtain representation. At the hearing, Williams failed to assert his inadequate representation claim. It is evident that Williams knew that he could be represented by an attorney. Williams failed to inform the court of his desire to be represented or of any difficulty in obtaining counsel. Any possible prejudice was occasioned by appellant’s own actions. Appellant was given sufficient time to obtain counsel, but failed to do so on his own account. We hold there was no constitutional violation.

Williams asserts as error the magistrate’s failure to recuse himself because of bias. At the beginning of the hearing, the appellant stated:

Number one, I am a little bit concerned, and I don’t mean to sound disrespectful to the Court, but I am a little bit concerned since the Court has sought to bring this Order, that the Court is hearing it today. I am a little concerned that the Court has been privy to information, ex parte conferences with court personnel that I haven’t been present on. In fact there has been some sort of an investigation conducted inhouse [sic], information has been obtained from the court clerk, the Judge’s clerk Evie, or the Judge himself.

I would like to make a motion that the Judge consider having someone else hear this so that in fact we don’t have the appearance of any impropriety if in fact the Judge has been biased by some of the one-sided conversations he may or may not have heard. I believe that would be proper since in fact the Court is bringing this motion.

In response to the allegation of bias, the magistrate reassured the appellant that he was not biased. The appellant failed to allege any facts that would show bias. Williams merely asserts that he has heard “rumors” that there was bias. Without specific allegations evidencing the bias, it was proper for the magistrate to deny the motion.

As to appellant’s contention that the court was biased because it was the one bringing the motion, this too was properly denied. A judge is not automatically prejudiced because it is the judge that is bringing the motion to show cause. Continental Ins. Cos. v. Bay less & Roberts, 548 P.2d 398 (Alaska 1976); State ex rel. Wendt v. Journey, 492 S.W.2d 861 (Mo.App.1973). Requiring recusal by a judge because it is the judge that institutes the contempt proceedings would not serve the interests of justice. Lyons v. Superior Court of Los Angeles County, 43 Cal.2d 755, 278 P.2d 681, cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955). The magistrate did not err by refusing to recuse himself.

Appellant asserts that he had the right to disqualify the magistrate with or without cause pursuant to I.C.R. 25. We also find this argument to be without merit. As we stated previously, contempt proceedings are unique, criminal rules are used for guidance only, they are not mandatory. Therefore, in a proceeding for direct contempt, there is no right to disqualify the involved judge. Gipson v. State, 102 Nev. 61, 714 P.2d 1007 (1986); Turkington v. Municipal Court of San Francisco, 85 Cal.App.2d 631, 193 P.2d 795 (1948). Only in those cases where the contempt is a personal affront to the judge should the judge disqualify himself from presiding at the hearing. State ex rel. Wendt v. Journey, 492 S.W.2d 861 (Mo. App.1973). In this case, the conduct of the appellant was not a personal affront to the magistrate, therefore, it was unnecessary for the magistrate to recuse himself.

Appellant asserts as error the fact that the magistrate considered and “found him guilty” of other alleged instances where Williams failed to appear for court before other judges. The magistrate did consider other instances when Williams arrived late to court or failed to appear at all. Williams also complains of the magistrate’s private conversations with third parties concerning other alleged absences. The magistrate admitted that he had talked to other judges about appellant’s tendency to miss hearing and trial dates without valid excuse. This information was not used to support the charge of contempt, but only to determine the appropriate sanctions. A contemnor’s prior history can be considered in determining the appropriate sanction. Lyons v. Superior Court of Los Angeles County, 43 Cal.2d 755, 278 P.2d 681, cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955). We see no error in considering the prior history of the appellant’s difficulty in being in court at the appointed time.

Appellant asserts as error the fact that the order to show cause failed to notify him of the possible sanctions to be imposed if he was found in contempt. We have held that in an indirect contempt proceeding, notice of the possible sanctions (fine and/or jail term) must be given. Ross v. Coleman, 114 Idaho 817, 761 P.2d 1169 (1988); Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972). Because proceedings for direct contempt are more summary in nature, some of the safeguards applicable to indirect contempt do not apply. Arthur v. Superior Court of Los Angeles County, 62 Cal.2d 404, 42 Cal.Rptr. 441, 398 P.2d 777 (1965). At the beginning of the hearing Williams stated:

I have heard some rumors that in fact there may be some bias on behalf of the Court. I have heard some rumors that in fact the Court may be considering some sort of contempt citations to embarrass myself as counsel. One of those possible remedies may be to jail counsel if the Court feels I haven’t been candid with thé Court. I see the bailiff is present, he may have been subjected to some of those rumors. I don’t know whether he is present because the Court is considering that sanction, has discussed that sanction with the bailiff.

This statement evidences that Williams knew what sanctions were possible. After Williams made this statement, the magistrate stated that he was proceeding pursuant to I.C. § 7-603. This statement put Williams on notice that, if found in contempt, he could be sanctioned pursuant to I.C. § 7-610, which provides for a fine not to exceed $500.00 or a jail term not to exceed five days, or both. Accordingly, we hold that Williams had sufficient knowledge of the possible sanctions. There was no error by failing to include notice of the possible sanctions in the order to show cause.

We have reviewed all other assignments of error made by the appellant and find them to be without merit. We hold there was substantial evidence supporting the finding of contempt. We further hold that the magistrate did not abuse his discretion in imposing sanctions of $250.00 and 72 hours in jail. The judgment of contempt is affirmed.

Costs to respondent.

BAKES, C.J., and JOHNSON and BOYLE, JJ., concur.

1 . The client, Delezene stated to the court that he did not appear on the two trial dates because his attorney had told him the trial had been continued. The client was not found to be in contempt.