State v. Stout

672 P.2d 645, 100 N.M. 472

• Court: New Mexico Supreme Court
• Decided: November 23, 1983
• Docket: 14993; 7035
• Status: Published

Opinions

PAYNE, Chief Justice,

specially concurring.

I concur with the majority opinion in holding that the trial judge could hear the contempt matter in issue in this case. I am not comfortable, however, in completely overruling the Wollen v. State, 86 N.M. 1, 518 P.2d 960 (1974), case and returning to the Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), rationale in all contempt cases. I feel that neither the Wollen decision nor the Mayberry decision should be mutually exclusive.

The traditional method of basing disqualifications of judges to hear contempt matters upon distinctions of either “direct” or “indirect” classifications is also inadequate. The ability of a judge to fairly hear a contempt matter does not exclusively lie within the context of whether the alleged contumacious behavior occurred either’in or out of the court’s presence. Nor does it lie exclusively within the other definitional parameters that might be considered under direct or indirect classifications.

The critical issue to be resolved in such cases is the ability of the judge to be fair while also considering the need to maintain control of judicial proceedings. The May-berry rule has the weakness of leaving to the judge the exclusive right to make the decision of fairness. New mortals ever admit to unfairness even if they recognize some bias in themselves. Extreme cases of bias or unfairness may be detected by an appellate court and thus give relief to a litigant who has been unfairly found to have been contumacious. The subtle cases present a more difficult problem.

No. 7035.

I agree with the majority that the May-berry rule should be the foundation for any rule dealing with contempt proceedings. I also agree with the majority that if a judge or the judge’s staff is likely to be a witness in such proceedings, the judge should step aside. I would, however, more clearly define additional guidelines.

If the alleged contumacious actions or inactions occur during a proceeding where corrective measures must be taken to avoid disruption or delay, the trial judge should have the power to rule on such matters. Likewise, a judge must have the power to act to maintain control and decorum in the courtroom without having to refer the matter to another judge.

It is more difficult to draw a line that will allay the concerns expressed as the reason for the Wollen rule, that “the personalities and temperaments of judges vary considerably from judge to judge and what might ‘embroil’ one judge might not so affect another. The sound administration of justice should not allow for such an arbitrary standard.” However, the sound administration of justice does not cry out for transferring every non-summary contempt proceeding to another judge with all the attendant problems of delay and disruption of calendars. Such would create an unnecessary burden upon other litigants who also are entitled to have their cases heard without undue delay.

An appeal from a determination of a judge in a non-summary contempt proceeding with review by an appellate court may be more efficient and just for the few cases wherein it is alleged that the trial judge should not have heard the matter.

If the contempt matter deals with an affront to the person of the judge as opposed to that of the process or the court, or if the alleged contempt deals with conversations or discussions between the contemnor and the judge other than normal judicial rulings or handling the business of the courts, I would not leave it to the judge to apply the Mayberry rule. The per se rule of Wollen should apply in such an instance.