*1
[898 734] A.2d No. 04-483 Dooley Johnson, JJ., Eaton, D.J., Gibson, (Ret.), Martin, Present: J. (Ret.), Supr. Specially Assigned J. 10, 2006
Opinion Filed March 26, 2006 Reargument April Motion for Denied *2 Nelson, Middlebury, William A. Appellant. Sorrell, Treadwell, Attorney General,
William H. and John Assis- General, Attorney Montpelier, tant Appellee. Curtis, Pacht,
John L. Pacht Hoff, Frame, Cassidy, Somers & *3 Katims, P.C., Burlington, for Amicus Curiae Vermont Association of Criminal Defense Lawyers. Valerio, General,
Matthew F. Saxman, Defender and Anna Dep- uty General, Montpelier, Defender for Amicus Curiae Office of the Defender General.
¶ Dooley, 1. Attorney J. Lorin appeals Duckman a district court him finding placing criminal and him in custody forty-five On appeal, attorney minutes. makes numerous claims regarding the court’s order and subsequent denial of his Generally, motion vacate. can these claims be summarized as (1) attorney follows: justified disobeying was the court’s order because the court authority order, did not the have to issue the and an exception (2) to the collateral bar rule applies; the court’s con- tempt (3) order was based on findings; erroneous factual was process guarantees notice, denied his due hearing, and an (4) impartial tribunal; and the beyond sentence was the court’s reject discretion. We all of these affirm rulings claims and the district court. finding the forming the basis The events District in Addison when August occurred on trial of State in the criminal the defendant representing Court 602-10-03, parties Ancr. The
Barrows, 163-3-03, 240-6-04 Nos. a written court, presiding, with Helen M. Toor Judge the presented time, agreement included plea At agreement. plea restitution, which sentence, except for the element proposed restitution parties discussed negotiating. were still parties did not The victim with the court. ability pay the defendant’s to that unsworn statement gave agreement support plea effect. the court plea agreement, acceptance of the ruling on 3. Before colloquy1 and allow a Rule to conduct
turned to the defendant asked that Attorney objected, and speak. defendant a chance accepted before would be plea agreement rule on whether court change procedure, its court declined to addressing his client. The his client’s forced to withdraw that he would then be attorney stated plea.2 open plea, personally the defendant in accepting guilty must address court Before guilty plea. including consequences rights, of certain and inform him 11(c).
V.R.Cr.P. around whether or Although in the courtroom revolved the discussion withdraw from plea, whether the client would the real issue was client would withdraw began by addressing yet the client: agreement, plea The court as no had been taken. Barrows, you go right, going over this with I’m
THE COURT: All Mr. say going you to make a de- going have to and I’m I’m to hear whatever then going accept proposal point or not. All about whether I’m cision at right? you Judge, prefer before make the decision I would MR. DUCKMAN: any admissions. he makes Well, going I want to hear what he has to I’m not to because THE COURT: say to me in his allocution. have a... But then we don’t MR. DUCKMAN: my That’s view. THE COURT: agreement. But then we don’t have an MR. DUCKMAN: way that’s the it works. That’s correct and THE COURT: well, go Okay, going then we’re not forward. DUCKMAN: MR. longer plea. Anything you he said is no Then can withdraw the THE COURT: *4 No, you agree think that if have an with that. I MR. I don’t DUCKMAN: agreed-upon sentence. Duckman, always how it works. Mr. that’s THE COURT: I, I... DUCKMAN: But but MR. explained 4. The had no author- independent court ity plea his client’s must his client. withdraw first consult with adjourn Attorney refused and consult with his client and claimed interfering attorney-client relationship. the court with The court client. speak ordered leave with his When refused, him expressly the court found refusing to with the comply court’s and directed a officer place holding p.m., him in cell approximately until 1:00 which was 45 minutes later.3 plea, say, everybody I THE COURT: take the I hear what I decide. has to things your say One I take what into account is client has to about his responsibility, judge always that’s one of the that a account. issues takes into exchange proceeded as follows: Well, Duckman, you THE Mr. on. I COURT: hold think need with to consult your you right plea client. I think have the to now don’t withdraw his without consulting him. And I’m with sure... you’re interfering my relationship MR. I think with DUCKMAN: with him now, right Judge. withdrawing... I’m — Well, going you stop. THE COURT: I’m to ask Okay. MR. DUCKMAN: you I THE COURT: Or will hold of court. anything contemptuous. MR. I DUCKMAN: haven’t done Stop. Stop. appropriate lawyer THE thing COURT: I don’t think it’s an plea discussing client, pros client’s withdraw a without it with the cons, before, say anything and benefits. You once costs did this I didn’t appropriate. you your about it. I do not think it’s think I need to with consult going spoken client risks you’ve about the to trial he does that. If after him, forward, go accept
with he comes in and tells me he wishes to not will I that, him, okay? to hear- it but I need think, you’re Judge, doing interfering my MR. I DUCKMAN: what with my relationship with client. THE COURT: You can... for, right MR. DUCKMAN: I would ask ask I would for a now so continuance prepare appropriate papers perhaps I can I will come back ask for a change prepared proceed. But I of venue. don’t think that I am Well, accepting request. why you go THE I’m COURT: So don’t out Well, MR. I’d DUCKMAN: ask for a continuance. THE No. COURT: inappropriate. MR. And I DUCKMAN: think it’s speak your THE Go with COURT: client. inappropriate I contempt. MR. DUCKMAN: think it’s to threaten me with Duckman, Stop. you speak THE COURT: Mr. I’ve told what to do. Go your you’ve client. I will available in ten once minutes talked to him. Judge, you my go MR. I DUCKMAN: don’t think can tell me to client. talk to *5 contempt finding on order, the court certified 5. In a written the court’s refusal of 31, 2004, attorney’s “direct stating that August confrontational, disrespectful order, angry, along with [his] case, an evidenced proceed to impossible it manner... made lawyer use in the courtroom manner for utterly inappropriate September On contempt of court.” judge, and constituted towards order, arguing 2004, 9, attorney filed a motion vacate Attorney requested also grounds. invalid on several that it was of the facts. On own version hearing present evidentiary hearing, attorney’s request for a the court denied October contemptuous conduct unnecessary because finding that it was presence. in the court’s place took to vacate was extensive ruling on the motion 6. The The introduction set length. claims at each of
addressed stage: twenty-two years legal undersigned has never disrespectful behave as profession ... seen Attorney Duckman has angry manner towards a as occasions, and in cham- in the courtroom repeated on both 80,2004, attempted had to ad- August the court bers. Prior to by, example, speaking to Respondent’s behaviors dress chambers, superiors speak asking one of his Respondent in him, expectations of him. clearly explaining the court’s advised that such conduct superior He and his were also forced to take more serious ac- the court would be continued occasion, Respondent was warned prior least one tion. On at being contempt. held verge that he was on the just I did. THE COURT: Well, going go But I’m not do it. MR. DUCKMAN: him in there In that are in of court, THE COURT: case, you put and we’ll at one under shackles. o’clock, speak Judge, think I’d like an to be MR. DUCKMAN: I represented by opportunity counsel. just I’ve found Duckman, THE COURT: Mr. you summary contempt by ignoring the Court’s orders. be an order that the Court shouldn’t have MR. DUCKMAN: It well may given me. talking speaking, when I am I will Excuse me. If continue THE COURT: you holding overnight, until one I understand. I am o’clock. hold do you you you ignoring at one. orders. We will see find that are in my you you contempt by August On only Respondent did display the same rude disrespectful displayed pre- behavior that he had — — vious repeatedly interrupting occasions the judge but he went past. occasion, further than he had in the On this he willfully comply refused to with a direct order of the court in- protect tended to right his client’s to determine whether to proceed guilty plea pursuant with a proffered plea to a agreement, or whether to agreement. withdraw from that Moreover, Respondent’s refusal pro- forced the courtroom ceedings to come to a halt. Because of this direct refusal to *6 order, comply with the court’s as well the disrespectful as way in which it was done and its interference with the ongoing proceeding, the court concluded that it had no choice but to take immediate action. Such action was needed to punish behavior, the to deter similar by future behavior Respondent, and to make clear to others that such behavior would not be tolerated. Attorney Because Duckman’s actions demonstrated repeated prior attempts to remedy his unsuccessful, behavior had been the court also concluded that a severe necessary. reasons, sanction was For all of these the imposed court the sanction of a brief incarceration until after the lunch hour.
The introduction was by followed a section entitled “Past Inappropriate Conduct,” provided which “a brief summary of some of prior unprofessional instances of conduct.” The court explained the influence of prior these acts:
These incidents were not the basis for finding, they but contributed to the court’s decision that there was no less severe action that would adequately address the situa- They tion. also contributed to the court’s decision to impose chose, the sanction it rather monetary than a sanction.' The court then went on to describe the up events that led to the contempt finding. The court reiterated the reasons stated in the August order: “The court’s finding of upon was based willful refusal of comply court, counsel to with a clear order of the as ‘angry, confrontational, well as the disrespectful manner’ which he did so.” The analyzed grounds necessary for an adjudication they and held that present. were The court concluded: above, period faced over a the court had been
As noted authority, displays of challenges to its repeated months with by Attorney unprofessional other anger, and Duckman____[C]ounsel expec- court’s aware of the was well tations, modify his behavior gentler efforts to and kinder and had been unsuccessful. the first incident of August 80 had been
If the conduct Attorney disrespectful behavior oppositional it Duckman, likely have taken the action the court would not Generally, speak bench did. the court seeks courts attorneys any issues with their chambers with about attorney, that would have been With another room behavior. however, Here, history prior likely course of action. steps made it clear that lesser Attorney Duckman had interruption proceed- ineffective. Given would be conduct, nature of the ings, disrespectful willful question, it past experience with the the court’s necessary convey sanction was apparent was severe unacceptable. message that such behavior procedural our rules: 7. Under summarily if the contempt may punished A criminal constituting the that he or heard the conduct certifies saw presence actual contempt and that it was committed shall recite the facts and the court. The order *7 by entered of record. signed judge shall be and 42(a). adjudi Although provides procedure rule for V.R.Cr.P. this cating contempt, a criminal common law dictates the substantive Allen, 593, 600, 496 summary contempt. State v. 145 Vt. elements of (1985). 168, 172 Summary contempt directly is “an act ‘committed A.2d court, authority tending impede interrupt its against the of the Morse, 85, 98 proceedings dignity.’” (quoting or lessen its Id. re Vt. omitted). (1924)) 90, 550, (emphasis 551 Trial courts have 126 A. orders, contempt and reversal of a discretion to issue if either judgment appropriate only is “the trial court’s discretion was totally grounds clearly exercised on untenable or unrea withheld or in carefully of this discretion cases sonable.” Id. We review exercise proceedings in “the otherwise summary contempt of because those in prosecutor, jury and are united one inconsistent functions (9th 1985). 1352, 1363 Flynt, v. 756 F.2d Cir. individual.” United States
475 Therefore, summary contempt power “as the decision to use we view only after careful extraordinary to be undertaken exercise are mindful that the good reason.” Id. We also consideration with necessary “preserve order and power summary contempt 1, States, 343 U.S. 21 Sacher v. United decorum” (1952). the courtroom. I. the court had no au- attorney’s 8. We first address claim that client, justified in thority speak him to with his so he was to order Attorney validity ruling of the disobeying its order. attacks (1) process grounds, including plea several that: the court’s did Vermont Rules of Criminal Proce- comply requirements (2) 32; acceptance of requiring speak dure 11 and his client to before plea agreement right against would violate client’s self- his (3) incrimination; spoke subject he could be his client (4) later; prosecution perjury for his client would risk harsher spoke acceptance agreement. if he before of the The State sentence requirements of 11 complied maintains that the court with the Rules 32, additionally submits that the collateral bar rule validity by engaging precludes challenging the court’s order contemptuous conduct. We do not reach substantive arguments prevents because we conclude that the collateral bar rule challenging validity of the court’s order as a judgment to the of contempt. defense reemphasize grounds finding attorney 9. We at the outset the for contempt. refusing go along He was not found plea procedure. Obviously, opposi-
with the court’s consideration procedure tion to the was the context that led not, however, judgment; judgment. it was the reason for that Instead, refusing he was found in to discuss the client, plea agreement along withdrawal of the with his with his confrontational, angry, disrespectful manner. The narrow reason contempt finding many objections for the answers made part argument. of his provides 10. The collateral bar rule cannot individuals challenge validity by violating of a court order the order. See (1999) (mem.) Crown, 547, 549, State Vt. A.2d (‘We generally person do not allow a who under a court it.”); Austin, challenge by violating it State v. 165 Vt. (1996) 1076, 1084 holding probationer
A.2d (articulating rule and *8 476 validity probation
may
challenge
condition
revocation
(Iowa
506,
Court,
Allen v. Iowa Dist.
582 N.W.2d
508-09
proceeding);
1998)
if
(explaining
obeyed,
that court orders must be
even
errone
ous). Generally, attorneys
comply
ruling regard
must
with court’s
ruling
legal support.
Meyers,
less of whether the
has
See Maness v.
(1975) (“Persons
449,
private
419
458
who make
determinations
U.S.
obey an
generally
of the law and refuse to
order
risk criminal
incorrect.”). Thus,
ultimately
even if
the order is
ruled
generally
against
contempt finding
cannot
defend
violating
by arguing
underlying
an order
order was
(4th
Att’y
of N.C.,
unlawful. See Nakell v.
Gen.
15 F.3d
Cir.
1994) (dismissing attorney’s claim that his disobedience of court
correct).
justified
legal position
instruction was
because his
was
protect
rationale for this rule is to
efficient
administration of
justice
to encourage litigants
to follow court orders. In re Hern
Works,
(9th
1989).
Inc.,
Iron
If
F.2d
Cir.
incorrect,
illegal
feels that the court’s order is
or
the attorney’s
obligation
object
preserve
point
is to
of error for appeal.
Maness,
¶ 11. exception. The rule is not without “Courts have declined apply adequate the collateral bar rule when there not an remedy effective challenged ruling, to review the or compli where irreparable injury ance could may repaired by cause not be which Allen, cases).4 appellate vindication.” (citing N.W.2d at 509 Attorney urges exception us to find an to the collateral bar rule case, claiming compliance with the order court’s would have irreparable resulted in Attorney’s argument harm. basic is that following jeopardized the court’s order would have his client’s Fifth rights. Amendment support 12. In argument, attorney of his cites Maness for the
proposition
punished
that an
cannot
violating
a court
good
believes in
might
faith that obedience
implicate
Fifth
rights. Although
his client’s
Amendment
recognize
we
4Two additional
that have been
in some cases are not
in this
exceptions
applied
applicable
issuing
subject-matter
jurisdiction
underlying
“[I]f
case.
lacks
over
jurisdiction
over the
its order
be violated with
controversy
it,
personal
parties
may
Novak,
(11th
Crown,
1991);
In re
he There, Id. at 466. had his client that counsel advised courtroom. urged him incriminate and therefore producing documents could right against his Fifth Amendment self- to invoke client strong Supreme that there were The Court noted incrimination. ability lawyer’s give a honest advice protecting for policy reasons (“If duty to client clients. Id. lawyer’s advise a performance exposes lawyer the threat is available privilege that hardly it that some giving honest advice debatable independence.”). may forthrightness their zeal for advocates lose risk accept choose to advice clients Whether Maness Court charges another matter. themselves is attorney’s ability speak preserving concerned with was that the legal There was no claim candidly options. to his client about contrast, By of a order. acted direct disobedience faulty furnishing his client punished here not was advice, for failing comply but with the direction to court’s consult with his client. Last, Maness, 15. there no was indication that fact, Supreme
acted
defiance of the court. In
emphasized
Court
that the record was “devoid of evidence of
contumacious
469;
any disrespect for the court.” Id. at
see Waste
Inc. v.
Conversion
1990)
(NJ), Inc.,
(3d
Rollins Envtl. Servs.
F.2d
Cir.
(reversing contempt
emphasizing
attorneys’
“conduct was
contrast, here,
disrespectful”).
neither defiant nor
the court found
confrontational,
“angry,
disrespectful” during
proceedings.
Attorney
argues
also
that other
harms
could
appeal might
complying
remedied on
have
resulted
with the
rejection
court’s instruction.
alleged
These
harms include the court’s
*10
agreement,
of
attorney-client
harm to the
relationship, and an
best,
imprudent response by attorney’s client. At
these harms are
event,
speculative.
any
they do
type
irrepara
not amount to the
of
necessary
justify
ble harm
to
disobeying the court’s order to consult
Works,
with the client.
re
See In
Hern Iron
II.
¶ Attorney
17.
next challenges whether his actions were sufficient
contempt,
constitute
alleging that the
factual findings
court’s
were
clearly
Attorney
dispute
erroneous.
does not
that he violated the
order,
court’s
and we conclude that the court’s finding
disrespectful
demeanor was
was not erroneous.
gave attorney
and,
18. The court
a direct
though
order
even
order,
disagreed
it,
with the
he was still bound to follow as
Attorney’s
discussed above.
of
disobedience
a direct order was
sufficient
support
the contempt finding. Compare Pounders v.
Watson,
(1997)
curiam)
521 U.S.
(per
(upholding state trial
finding
summary contempt
court’s
of
where
“willfully
order”),
comply
Nakell,
refused to
with the court’s
press ruling. enjoyment Full court’s considered obtain the controversy, will be for the heat of with due allowance right, infringed by trial courts. when by appellate courts protected adverse, it right to resist ruling is it is not counsel’s But if the — only respectfully pre- right his to insult the appeal. his point serve right let Furthermore, his “never has at 9.
343 U.S. zeal, disrespectful, him into accusative temper, or his intention lead States, 191 F.2d v. United language to the court.” MacInnis 1951). (9th Thus, also to only to the words uttered but we look not Cir. tone, look, used, the they “the which were connection (1859). 253, 256 manner, Cooper, In re 32Vt. emphasis.” Here, disrespectful in a man- attorney, the court found that attempt- ner, before willfully to talk with the client violated its order proceedings disrupting ing plea agreement, from the to withdraw encour- Although lawyers are making impossible proceed. it States zealously, as the United pursue their clients’ interests aged to ‘fearless, vigorous, and “[ajdvocacy that is Supreme explained, Court trial effective,’ in the course of disruptive does extend specific direction from knowing clear and in violation Sacher, 343 U.S. at Pounders, (quoting at 991 521 U.S. judge.” trial 13). *11 tone, manner,
¶ look, case, emphasis and 20. In this attorney was in that played a role court’s determination Ordinarily, left to Vt. 256. we would be contempt. Cooper, re 32 at alone, almost transcript the circumstances from determine these case, however, events were For this the in-court impossible task. record, to have been able view the court and we videotaped create 53.1(b) (videotape V.R.Cr.P. videotape proceedings.5 the See the of 5 it is not the same as Although in our review, the the helpful availability videotape observing the hearing Thus, availability and the the presenters person. presentation Freeman, v. our standard of review. See State change 2004 VT the does not videotape appeal). tape fully While capture official record does not moment, attorney upset,
the emotion of the
it
show that
does
was
as
stated,
issued,
angry.
he
and
At the
time
order was
ceased,
attorney
effective
communication between
and
had
attorney
defiant.
no
appeared
be
We find
abuse of discretion
attorney
adjudication
contempt.
that
was
¶ Having
findings
concluded
the court’s factual
were not
erroneous,
arguments
we also address the
of amici in this case that
threatening public
defenders with summary
will have a
chilling
adequate
effect
representation.
acknowledge
on access
We
of contempt may
ability
that continual threats
chill the bar’s
adequately represent
however,
recognize,
client interests. We also
behavior, namely,
order,
that contumacious
disobedience of a court
generally
cannot
advocacy.
excused as zealous
In re Ellenbogen,
(D.C.
1995).
153, 158
72 F.3d
Cir.
As
above-quoted passage
reflects,
supra,
duty
Sacher
of an advocate
faced
when
order,
a clear court
wrong,
even one that is
is to comply
respect
fully
in higher
seek review a
if necessary.
court
Both amicus briefs
proceed
premise
from the
that the order that counsel violated
anwas
to have
give
presentence
the client
allocution
before
accept
court decided whether to
plea agreement,
at least
attorney convey
order that
to the client the
going
wisdom of
forward
procedure.
under the court’s
We have held above that this view of the
erroneous,
record is
and we
it
again.
stress
here
The court’s order
only
client,
was
gave
consult with the
no
it
direc
tion as to what advice
give
should
the client. Nor does this
require
belong
case
us
detail which powers
lawyer
to the
belong
Bean,
290, 300,
which
to the client.
See State
Vt.
(2000)
A.2d
(noting
certain
belong
decisions which
client).
exclusively to
While
may have believed that a
dispute
power
coming,
over his
was
his refusal to talk with the client
premature.
short,
22. In
we do not view this case as one in which the
outcome will chill
advocacy,
opposed
zealous
as
to deter contemptu
ous behavior.
line
bright,
crossed was
he
so
did
judge’s
out
anger
procedure,
thoughtful
not out of a
judg
necessary
ment that his actions
protect
were
his client’s interests.
(mem.) (holding
Vt. 478,
ease.
controversy with
running
because she had become embroiled.in
slights
insulting
by “perceived past
and was motivated
Second,
he
found in
argument
that was
behavior.”
he makes
related
time,
period of
occurring
conduct
over an extended
for
courtroom,
thus due
was not on the record
some of which
all the
requires
opportunity
have an
heard on
process
that he
correct,
summary contempt
arguments
If
then
charges.
are
could not occur
this case.
adjudication
adju
justifications
summary contempt
There are two
efficiency
necessity.
adjudication
Such
is efficient
dication:
record,
contemptuous
has
on the
because
occurred
development
unnecessary.
so that
factual
judge,
before
further
Sacher,
adjudication
necessary
Summary contempt
Judge presided Toor should not have over the disqualification Offutt, in ground The for such first arose where the summary contempt adjudication of trial trial conducted a in the counsel after a trial had closed and case was hands of the not jury. judges The Court observed that trial should them- “sit[] judgment upon contempt selves in misconduct of counsel where the charged entangled judge’s personal feeling against is with the however, lawyer.” Court, quoted Id. The cited and v. Cooke United States, applied held a rule which that such where ‘“conditions do not impracticable, delay injure may public make it or where the not or ” States, 517, private right.’ (quoting v. 267 Id. Cook United U.S. 539 (1925)). Mayberry This is in v. point Pennsylvania, reinforced 400 (1971). There, judge’s 455 in U.S. Court discussed detail the options a lawyer litigant personally judge: where or attacks the Where, however,
A judge cannot be driven out of a case. he committed, not contempt does act the instant the is but waits balance, trial, until the end of the it is generally wise unseemly where marks personal of the conduct have left stings to judge place. ask fellow take his Id. at 463-64. Allen, 601-02, this v. We addressed issue in 145 at State Vt. 172-73, argued
496 A.2d at contempt involving where defendant that personal insults had to be judge referred another a later time 42(b). under Rule requiring We stated that a that flagrant “rule all personal responded only delay insults be after would undermine the court’s dignity authority. and its A judge merely is not individual; he or represents authority she of the law.” Id. at 496A.2d at 172. — general, 29. In judges rule must turn Offutt
contempt adjudications colleagues over to if they personally are in disputes litigant embroiled lawyer with the accused — 42(a) is judge not applicable acting under is Rule “the committed,” instant the contempt is Mayberry, U.S. at out of necessity prevent State, of proceeding. obstruction See Barlow v. (Ga. 1999) 513 S.E.2d App. 277-78 Ct. (allowing summary parties direct, after disobeyed lawful order and warned parties contumacious); Donaldson, behavior generally see R. Annotation, Disqualification Judge in State Proceedings Open Court and Involving Against or Contempt Punish Himself 2005) (1985 Supp. & Presence, 37 A.L.R.4th Actual in His judges disqualification of involving (categorizing cases 42(a) of Rules requirements The differences proceedings). Vermont, 42(b) like where significant states especially small are such, impossible; as judge usually by another is immediate action would also therefore adjudication in states summary contempt such Nonetheless, ruling are holding, we impossible. stage disqualification never reach the where hostility can personal necessary protect summary contempt imposition of from the proceeding even where obstruction fundamental fairness however, hostility, personal occurring. circumstances example, For Sandstrom to warrant result.6 must be extreme — (11th 1984) Butterworth, only case cited F.2d 1200 Cir. judge that the trial by attorney appellate court ruled which disqualified imposing an immediate have been should — trial counsel of during sentence trial accused *14 have years you him that “for ten had “acting like an animal” and told in every other court this this your nauseating upon effect Court retorts personal Id. at 1204. Counsel’s were courthouse.” beyond any far personal was equally extreme. embroilment present that be here. disqualifying might circumstances ¶ we cannot conclude on applied, 30. Even if the standard Offutt disqualified. Judge Judge Toor should have been record that civil, all county judge in a where covers courts: sitting Toor was one criminal, family. at the end a six-month rotation. She was by public a statewide indigent provided Criminal for the defense Attorney public a §§ 5201-5277. was system. V.S.A. defender role, county. appearing regularly he In this was defender interaction, in each had Judge Inevitably, Toor. that extensive before cases, generally in views about how other handled both specific instances.
¶ brief, want con- 31. As himself has stressed we tempt be and in narrow circumstances. sparingly citations to used proceedings, If on and events in other the basic standard the cause based conduct — “judge judge disqualifying generally that where the has a is, would be that for a trial prejudice concerning or a Code Judicial bias party party’s lawyer.” personal 3(E)(1)(a). extreme that A.O.10, the situation must Conduct, Thus, sufficiently Canon proceeding gave judge that rise to the have been from the should disqualified judgment.
Thus, judge to the has extent concerns about the behavior lawyer court, appearing regularly judge’s who is we want judge to find an for those of contempt. outlet concerns short In the ruling order, Judge on motion to vacate the Toor past she had taken in the detailed actions correct behavior. recognize 32. We vigorously disputes that he had just inappropriately past, disputes
behaved as he that his contemptuous August behavior was 30. But this difference over professional does not mean that judge developed had against personal attorney. allegation animus There is no personal made judge, attacks on the the most common Ojfutt Mayberry, circumstances in the line of cases. See U.S. (noting judge’s difficulty 465-66 in holding impartial hearing repeatedly trial); after being United throughout insulted Pina, (1st States v. 1, 13-14 1988) (same). 844 F.2d Cir. The sentence so excessive that it indicates improper Although motives. charges against made attorney, serious all charges involved his professional specific behavior instances. She said “to she acted 30], punish August [on the behavior to deter similar future behavior by Respondent, clear and make to others that such behavior would not be tolerated.”7 that, recognize We also attorney, Judge like Toor appears videotape upset angry have become over her interac- attorney.8 Perhaps
tion with her state of mind was demonstrated shackles, her order to have away taken an order that was implemented, never and one she regretted. anything, If however, her visible mental state reacting showed she was August events of not imposing punishment a calculated past behavior. conclusion, if 34. In personal we found animus this case suffi- Toor, disqualify Judge
cient to we personal would have find such *15 argument, aIn claims that the separate court misused attorney criminal as a contempt behavior gentler modification made tool, because “kinder and efforts to necessary modify behavior judge his had been While ruling unsuccessful.” the used those words the on the motion to there is no indication vacate, that the to lead into attempted behavior in order to Judge sanction. Instead the contemptuous record reflects that Toor holding believed that was the of his actual contempt necessary consequence August behavior on Judge angry Toor as ruling fact, described herself in her on the to motion vacate. availability of cases, the would reduce greatly in most which animus necessary prevent the obstruction when contempt even Judge disqualified not that Toor was hold proceedings. We summary contempt. holding attorney’s argument related response have 35. We a similar respond to opportunity that he an process requires have that due ruling motion to vacate the con- on the judge’s charges the its argument, we start with tempt order. To address certification, contempt Following court. presentation the trial motion contempt vacate order. The attorney filed a motion to also primarily legal argument, but asked presented (1) whether evidentiary hearing following on the issues: court; (2) his any disrespect to the whether contempt intended effectively and to client “professionally, intent was to represent (3) abilities”; “angry, of his whether his demeanor was the best (4) found; confrontational, the court had disrespectful” as harshness; in its unprecedented order was whether (5) chilling on trial had a effect whether has evidentiary request The court denied the lawyers Vermont. that presence court’s so hearing because the conduct occurred knowledge had the relevant facts.” the court “first-hand appeal, attorney arguments made to 36. On reiterates ruling recitation primarily trial court but relies the court’s its argues He that because the past inappropriate conduct. con- actions of the reason for the past part stated that these were these entitled to evidence to meet tempt present citation he was charges. attorney’s ruling that the on the accept premise 37. We cannot made to citation was
motion vacate showed specifically stated punish past behavior. The court “[tjhese finding.” not the for the incidents were basis finding: the contempt court stated basis for comply refusal with the or- Because this direct court’s der, disrespectful way in it was as well as the which done proceeding, the court con- ongoing its interference with no choice action. cluded it had but to take immediate behavior, punish action needed to to deter Such by Respondent, and to make clear to similar future behavior others such would be tolerated. behavior *16 hand, On the other the court made statements that indicate that she in determining contempt used discretion whether a citation was necessary, choosing as well as discretion in In the sanction. words emphasized by attorney, she stated: [prior]
These not the the contempt incidents were basis for finding, they but contributed to court’s decisionthat there was no action would adequately less severe address the They situation. also contributed the court’s decision to im- chose, pose monetary that it rather sanction than a sanc- tion. fully
These words are
consistent with her statement that the contempt
sanction
imposed
August
actions on
BO.As we
above,
sanction,
stressed
always
contempt
there will
a context
for a
and we do
not want
court to strike too
with a
soon
Moreover,
contempt judgment.
the sanction chosen is a criminal
sentence that reflects the crime committed as well the circumstances
person
and record of the
before the court. The one hallmark of the
reported
ever,
judge
cases is that the
rarely,
involved
finds
opportunity,
the first
attempting
ways
other
of correcting the
offending conduct. That is a
why
main reason
we
accord discretion to
summary contempt
Allen,
judgment.
See
¶ argument. procedural second reject 40. alsoWe and was attorney’s motion to vacate in argument was not raised This merits, conclude we would Even if we reached therefore waived. in found Shortly before on a factual error. it is based held in might that he trial court contempt, the warned only warning responding as Attorney interpreted has contempt. warning read the talking judge. We attorney’s practice of over ¶ n.3, the court stated above, broadly. We believe supra, more or he of the court stop arguing with the directions attorney should in contempt. held would be
¶ event, warning reverse for lack of any we would not 41. relevant standard Attorney urges adopt this case. us denies that its disagreement with the dissent. The dissent our fundamental This is — alleged finding relies on of or a sentence for past rule time a desired “[a]ny — eliminate the use of cannot be used would in effect misconduct,” summary contempt Post, be a reiterate that there will almost always criminal 58. We contempt. long concludes of actions before only short or history improper go adjudication proceeding forward allow the of will properly. 488.
American Association Criminal Justice Standards. ABA Bar Standards, Special Judge, Functions the Trial Criminal Justice (2d 1980). warning requires Standard 6-4.3 ed. That standard clear Standard-6-4.2(a) “willfullycontemptuous.” if the not conduct was Id. Thus, willfully contemptuous. court found warning require Standards would this case.
V. Last, that, claims even acts were contemptuous, the was an court’s sentence abuse its discretion unduly a punishment because it constituted and was influenced past history. presence “Punishment for committed the court is within court’s sound discretion absence of MacInnis, appeal.” abuse thereof will not be disturbed on Imprisonment recognized by F.2d at 162. other courts- as an appropriate (affirming sanction disobedience of court orders. Id. contempt consisting three-month sentence for disregarding orders trial). disrupting forty-five-minute We no find abuse incarceration sanction. *18 above, 43. As have we we held conclude that the court acted attorney’s
to punish August behavior punish on 30 and not to his may, however, behavior in past. past The court consider behavior Allen, fashioning appropriate an sanction. See 145 Vt. at (concluding A.2d at 173 that trial court did not its abuse discretion in imposing ninety-day sentence for where contemnor a had convictions, history of rather removing than contemnor from court room). Thus, the court attorney’s appropriately prior considered determining behavior in its for contempt. sentence Affirmed. D.J., Eaton, 44. dissenting. power of a trial court to summa-
rily punish attorney or party for criminal unique, as this case only demonstrates. It is the I am circumstance aware of in may which a deprive liberty individual of with none of the procedural safeguards normally deprivation. attend a such It is precisely for power summary punishment this reason that the strictly has been limited courts. ¶ 45. my knowledge, To this is first time in Vermont that an attorney criminally jail has been convicted and held in for to efforts protect rights. a greater given client’s This is of even concern Rather, attorney never opportunity hearing. this case had the for a due received less yet conviction a criminal subject he was complaint or a noise charged with who is than someone process power have the must trial While the ticket. speeding court, institution of for the respect preserve maintain order fairness. expense procedural done at the cannot be 42(a), summary Procedure Rule of Criminal Vermont 46. Under constituting the misconduct imposed where may only be punishment case, In this of the court. presence in the immediate contempt occurs (1) that an finding decision: trial court’s stages there were two (2) scope and committed; deciding the contempt had been act of the first regard to contempt. With for the punishment severity of attorney’s contempo- solely on relied arguably stage, the trial court August (i.e., of a court order disobedience his raneous conduct But contempt. 2004) an act of attorney had finding committed stated that explicitly stage, the trial court second regard to the alleged past array of upon relied a wider it considered attorney’s severity of scope and deciding the by attorney in circumstances, exceeded the trial court Under these punishment. without summarily punishing authority scope of its for and remand I would reverse disputed past conduct. hearing on his hearing.10 such a dissent, majority disagree that the collateral with the I also not the focus of this While The collateral the trial court’s order. applies preclude review of the merits of rule
bar objections attorneys appeal a trial court’s preserve their for rule mandates that bar Meyers, disobey 458-59 simply U.S. the order. Maness order rather than (1975). necessary exception where majority recognizes, to this rule exists As the ante, majority Yet the does not appellate available. See review is not effective of the court’s order other suggest have obtained review in this case could how through disobedience. than Here, attorney’s objection consulting not be a basis for with his client would conjunction appeal with an it could be reviewed in error such that reversible that would recur. cf. State v. underlying this a situation criminal matter. Neither was 1992) (N.M. 1261, 1263 (reviewing contempt charge App. for Cherryhomes, Ct. 840 P.2d code). way way, there was no for Stated another violations of dress preserve point appeal. would not obey Because the order and both review, opportunity appellate he should be able to address have had an otherwise *19 appeal contempt conviction. order in the of his merits of the trial court’s order, first consider whether Upon reviewing trial court I would the merits of the potential his client’s Fifth attorney properly a violation of concerned about order to consult was rights of the trial court’s whether his disobedience Amendment may to consult compliance with the court’s order While motivated that concern. violation, plea process participation in the as directly to such a continued have led
I. contempt, The trial initial written the court’s certification of day the after the trial court ordered held in entered custody, attorney’s day, stating focused on conduct that that order, of the attorney’s along angry, “direct refusal court’s with the confrontational, so, disrespectful [attorney] manner did which impossible made with case.” went proceed it The court on to note not the [attorney] that “this first time has behaved [was] courtroom, as in inappropriately as well chambers. The court extremely has been with outbursts in but patient past, his this cannot conduct continue.” reasoning length- 48. The trial court elaborated on in much its a attorney’s outset,
ier order denying written motion to vacate. At the the court stated that because the decision turned on that evidentiary hearing presence, occurred court’s was unnec- However, essary. contempt finding the discussion of the leads off undersigned twenty-two with the observation that has “[t]he never years legal profession ... seen behave as a disrespectful angry [attorney] manner a towards as has occasions, repeated both in the courtroom and in chambers.” Further, an entire section order is devoted discussion of section, Inappropriate In explains “Past Conduct.” the court that while incidents were not the basis for the finding, “[t]hese they ... contributed court’s decision that was no there less adequately severe action that would address the situation.” conclusion, the period court reiterates that it “had been over faced repeated of months with challenges displays to its authority, anger, and other unprofessional by attorney. conduct” The court emphasizes August the conduct on “[i]f had been the first of oppositional disrespectful incident by [attorney], behavior likely did,” would not have taken prior the action it “the but history” “past experience” “apparent made it necessary convey message severe sanction was that such Thus, was unacceptable.” being behavior punished behavior jeopardized rights the trial court have could client’s interpreted by Second, indirectly. reviewing hearing, I conclude upon would behavior videotape finding was not so as based on tone and disruptive attitude support might alone. greater While and should have conducted himself with decorum, escalating all these events took in a few moments under place conditions. courts Many litigants. far se hear worse from routinely pro
491 behavior”) past misconduct (“such includes by appearances all paragraph. in the same referenced earlier contempt finding of supporting court’s order 49. The trial August conduct on attorney’s characterizes in essence punishment its over an of encounters in a series 30, the “last straw” 2004 as of the disrespectful attorney was time where period of extended permeated are the order Indeed, reasoning of the tone and court. alleged past misconduct of and condemnation an awareness contempt undermining the court’s assertion attorney, attorney’s past based, part, at least not finding itself was finding was However, assuming that even misconduct. 30, August of attorney’s contemporaneous solely on based attorney’s past misconduct 2004, explicitly concedes punishing its decision: stage of second was determinative custody. 45 minutes attorney with
II. the trial Procedure Rule of Criminal 50. Under Vermont have past conduct should consideration court’s admitted protections of notice process minimal attorney to the due entitled 42 majority, Rule by the be heard. As discussed opportunity summary addressing contempt: procedures two distinct provides hearing. and a Under disposition upon notice disposition rule, hearing is the default notice and language and structure special circumstances be followed unless procedure that should 42(b) See V.R.Cr.P. disposition present.11 are warranting summary (criminal except where upon notice prosecuted shall be 42(a) (criminal 42(a) may be apply) & circumstances of committed the actual summarily misconduct was punished where court); Vt. Lafayette, see also State presence of the (1989) summary punish- n.2, (characterizing 1069 n.2 564 A.2d 42(a) rule of exception general contempt under Rule as ment of hearing). notice and analogous federal rule Rule 42 and the interpreting law 51. Case (1) extraordinary summary disposition is emphasized that:
has (2) maintain necessary for courts to power; power and narrow justice; threatens the administration order where misconduct 42(b) jury right but this would trial, for the to a only applicable Rule also provides sentencing finding of not the phase. contempt, (3) the fact occurs in presence misconduct the court delay finding punishing and that is no the contempt there process protections. excuses the of normal absence due subject Because sanction is requirements trial jury opportu- the usual of a or notice and heard, nity summary contempt necessity, to be is a rule of re- exceptional served for circumstances category and a narrow contempt. summary proceedings allows [Rule 42] *21 criminal ence____Both pres- based on misconduct the court’s eyewitness
the court’s role as an and the desir- ability response against swift militate of a observance of the procedural safeguards. usual Marshall, 42, (2d 2004) (citations,
United States v. 371 45-46 F.3d Cir. omitted). footnote, quotations and of absence these circum stances, summary See, punishment e.g., of is not available. Walker, 432, 430, (1963) 460, Walker v. 123 (holding Vt. 192 A.2d 461 process requirement that due an opportunity of to be heard applies contemptuous where alleged place presence conduct took of out of court) (superseded by grounds recognized rule on by other as Chaker Chaker, 20, 29, 581 737, (1990)). 742 155Vt. A.2d ¶ Thus, justification 52. permitting power of summary (1) punishment is twofold: because the is immediately misconduct court, evidentiary observed and procedural concerns are not issue; (2) summary absence a procedure, the trial court unable put would be to immediate to end misconduct disrupting justice. justifications the administration turn, punishment, define scope and limit the of the appropriate punishment of the summary power. use Stated another way, the power summary punishment necessary is to remove justice, obstacles to the administration of but it must be only used to — past serve punish this end See conduct. Pounders v. Watson, 982, (1997) 521 U.S. 987 (recognizing summary punish- ment of contempt appropriate where “the court must act instantly suppress physical disturbance or violence or obstruction or court”) (citation disrespect omitted); quotations to the United (2d 161, 2003) Cooper, States v. 353 (noting F.3d 164 Cir. that “[t]he summary contempt power generally limited to cases in which steps immediate corrective are needed to restore maintain court”) omitted). dignity authority (quotations
493 III. majority recognizes 53. The the trial past court considered in exercising respect punishment, misconduct its discretion with ante, 37, justifies but the trial reliance past court’s misconduct in First, ways. noting always will a two “there context for a sanction,” majority draws an analogy between summa rily punishing contempt and criminal Id. The sentencing. majority that, just only asserts criminal sentence as reflects not crime convicted, for which the surrounding defendant was but also circumstances, past a trial should be able to consider miscon in summarily duct Id. punishing contempt. The critical distinction the overlooks, however, majority is that a criminal already defendant has process ample protections throughout been afforded due the course See, Carter, prosecution, sentencing. In re e.g., conviction 2004 ¶21, (criminal 49, 322, VT right 176 Vt. A.2d 281 defendant’s counsel); Merchant, 249, 258, 790 386, (2001) State v. 173Vt. A.2d (criminal self-incrimination); right against defendant’s In re Cardinal, (1994) (criminal 162 Vt. A.2d defend trial); right jury (procedural ant’s V.R.Cr.P. 32 protections during Further, 32(c)(4), sentencing). under Rule criminal defendant has a right present to comment and evidence on sentencing issues.12 By contrast, party attorney subject summary punish- enjoys protections ment these none of because the finding *22 is made on spot. example, attorney the For in this case vigorously disputes the trial court’s alleged past characterization of his miscon- defendant, But any duct. unlike other criminal who would be entitled present to comment and sentencing evidence relevant to under Rule 32(c)(4), attorney opportunity had no to contest these allegations. summary While process contempt may for be desirable for the above, reasons discussed the of due process protections absence at any stage analogy defeats the majority drawn the to the process of criminal sentencing. subject Not does an only for attorney summary punishment receive less due than a criminal he or she also defendant, receives less due than process process sanctioned under inherent the sanctioning attorney the of court. In such the eases, powers finding court must not make a that the acted in bad but also only faith, provide Day Center, Inc., hearing. v.
notice and an
Lawson Brown’s Home
Care
for
opportunity
¶
(mem.).
2004 VT
61, 14, 177
Vt.
A.2d 1048
If the sanction
is
in
imposed
punitive
Id.
additional
nature,
due
protections
process
may apply.
¶
facts of
Second,
comparison between the
majority draws a
55.
the
(1985).
Allen,
this- proposition the that “[t]he cites Allen for majority the Specifically, appropriate in may past fashioning ... behavior consider however, Court, squarely Ante, did not 43. The Allen sanction.” not a broad question, support the does such decision address Rather, in that the Court Allen reasoned proposition. or conclusive in that was not exces- severity penalty of case the the (1) offender, notice as repeat the defendant was on as a sive because (2) courtroom, the defendant had been proper decorum Allen, during hearing. the See 145 Vt. disruptive previously same Here, attorney was A.2d there no issue of whether at 173. is decorum, past of miscon- proper nor was consideration his aware (or during hearing even limited to behavior the same duct case). holding supports in Allen Neither of the elements of same — on party’s past proposition that an or misconduct — multiple during multiple proceedings different earlier dates severity of may deciding punishment considered contempt, especially disputed. where disagreements above Finally, addition much approach, majority I too majority’s spends also believe the the trial examining question time whether court suffered ¶¶ Ante, This bias in this case. 23-34. is understandable personal I appellate on the issue brief. because focuses same believe, however, personal point issue is here. bias beside short, part bias on of the court must be shown personal while hearing judge, to a before a different to demonstrate entitlement personal bearing has no on the more presence absence of bias of whether was entitled to the basic question fundamental 42(b). personal protections of Rule A lack of animus is procedural rule, and a equivalent process. to due Under the entitlement to notice hearing findings supporting makes is assumed unless trial court summary punishment. Focusing imposition whether the effect of showing personal suggesting made a bias has affirmatively attorney must demonstrate his entitlement to notice hearing, not the which is case. Allen, 57. As the fundamental between recognized distinction where punishment situations where is available and those delayed, not is immediate or not whether punishment it is whether *23 Allen, contempt impersonal in nature. 145 Vt. personal the is See 601, 496 the trial be (holding A.2d at 172-73 that court should empowered immediately, preserve to deal some court, of the if authority contempt personally even is directed at majority (i.e., judge). disqualifica The itself notes that the rule Offutt nature) presiding tion of judge personal the is does not 42(a) the apply acting where trial court is Rule instant the under “the ¶ Ante, (quoting Mayberry Pennsyl committed.” vania, (1971)). 400 U.S. emphasizes This further that the purpose summary punishment put disrup narrow is to end —delay past tive conduct without not punish behavior or even deter future misdeeds.
IV. ¶ view, my scope the trial court authority exceeded of its in employing summary punishment under facts of case. The majority we process right contends that found a a hearing “[i]f due discretion, on judge how the exercised her essentially we would Ante, summary eliminate the use of contempt.” criminal I38. respectfully disagree. I believe power punishment of contempt effectively to be used and fairly there must be a rule clear for when use of power permissible. that distinction between conduct punished is observed and simultaneously past and alleged is a bright-line misconduct rule that easy would Any enforce and finding understand. time a of or a for contempt misconduct, sentence relies on alleged past requires factfinding beyond scope therefore judge of what the observed, immediately has procedural protections additional 42(b) Rule apply. should fully 59.1 cognizant am of the right need and of the trial
control the courtroom dignity and maintain authority In that regard, court. presiding judge given must be authority punish summary to determine and it when occurs Here, judge’s presence. it is admitted that the trial court imposed a sentence it would have alleged but for the past instances allegations misconduct. These have should been tested the crucible hearing. Attorney of a here has been denied any opportunity to do I good so. cannot in agree conscience that he has been protections afforded the process requires. due reasons, 60. For these the trial court should have allowed a hearing order, motion to vacate I and would remand to the trial purpose. respectfully court for that I dissent.