In re LaMarre

• Decision Date: 03 April 1974
• Docket Number: No. 73-1510.,73-1510.
• Citation: 494 F.2d 753
• Parties: In the Matter of Charles LaMARRE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

494 F.2d 753 (1974)

In the Matter of Charles LaMARRE, Respondent-Appellant.

No. 73-1510.

United States Court of Appeals, Sixth Circuit.

Argued October 9, 1973.

Decided April 3, 1974.

Richard A. Harvey, Detroit, Mich., on brief, for respondent-appellant.

Ralph B. Guy, Jr., U. S. Atty., Fred M. Mester, Asst. U. S. Atty., Chief, Civ. Div., Detroit, Mich., on brief, for appellee: The Hon. John Feikens.

Before WEICK, EDWARDS and LIVELY, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant LaMarre appeals from a judgment finding him in contempt of court and imposing a $100 fine under 18 U.S.C. § 401(3) (1970). The finding and sentence were entered by a District Judge in the United States District Court for the Eastern District of Michigan, Southern Division, after a citation for contempt and a full hearing.

The facts which triggered this controversy, with two exceptions which we have italicized, are undisputed and we recite them from the Memorandum Opinion of the District Judge:

The events leading to this result are as follows: The case of Audrey Frazier, et al. v. Travelodge International, et al., Civil Action No. 36641, was set for trial before this court. Insurance Company of North America was the insurer of defendant Travelodge, and thus had a right to and was obligated to provide the defense in that case. Respondent herein, LaMarre, was a claims manager for INA, and had principal charge of the defense of the case for INA and Travelodge. For this purpose, respondent retained the law firm of Harvey, Kruse and Westen of this city to defend the suit.

At the time that the trial of the case was ready to commence, it appeared that counsel for both plaintiffs and defendants were agreed on a settlement figure. A phone call was thereupon made to Mr. LaMarre by INA\'s counsel, and it was indicated to the court and counsel that Mr. LaMarre would not accept the recommendation of his counsel. Since counsel for INA and personal counsel for one of the defendants nonetheless thought the settlement figure acceptable, the court requested that Mr. LaMarre attend the conference and so indicated to INA\'s counsel. A phone call was made, and Mr. LaMarre indicated through his counsel that he refused to attend the conference. The Court thereupon indicated it would recess the matter for approximately one hour and indicated to INA\'s counsel that Mr. LaMarre should come to its chambers from his office (about two blocks away) at 11:30 a. m. Thereupon, INA\'s counsel, Mr. Milan, was joined by his senior partners, Messrs. Harvey and Kruse, who advised the court that Mr. LaMarre would not attend the conference; hence the second request was refused. The court thereupon ordered INA\'s counsel to advise Mr. LaMarre that the court required his appearance at 2:00 p. m. of the same day in the courtroom and that failure on his part to appear could lead to sanctions. At 2:00 p. m. on February 22, 1973, the court was notified by INA\'s counsel that Mr. LaMarre refused to appear. His counsel indicated, in open court, that they had notified him of the court\'s order and that they had not counseled him to refuse to comply with the court\'s order. Again the court deferred, and during the afternoon of that day the court notified Mr. LaMarre through his counsel that he was ordered to attend a hearing in court to answer why he refused to comply with the court\'s order. That hearing was set for February 23, at 9:00 a. m. Again at that time Mr. LaMarre, for the fourth time, refused to comply. The court in open court both on the previous day and on February 23 in the presence of INA\'s counsel made a complete record of these proceedings. Having dictated an order on the record and then to the court\'s secretary, the Marshal was ordered to proceed to Mr. LaMarre\'s office and to compel his appearance in court.

Mr. LaMarre was thereupon brought to court, and the court, orally, and in open court, gave him notice of the charge and the essential facts constituting the contempt charged. He was accompanied by Richard Harvey, Esq. A hearing date (several weeks later) was also set which allowed him reasonable time to prepare a defense and he was admitted to bail in the form of a personal bond. This procedure was in accord with Rule 42(b) of the Federal Rules of Criminal Procedure.

In the two italicized sentences the District Judge uses the words "required" and "ordered" when speaking of LaMarre's appearance. These words doubtless represent the Judge's intent. Actually, as far as the appellate record is concerned, he never employed either word until after LaMarre's arrest. The word he did use repeatedly was the more polite (but much less definite) word "request." (See Appendix.)

Preliminarily we answer several of appellant's questions because of the probability of their reoccurrence. Appellant claims that the District Judge should have disqualified himself and referred this contempt charge for hearing before another judge. Under Rule 42(b) of the Federal Rules of Criminal Procedure, if the contempt charge involves disrespect toward or criticism of the judge, that judge is, of course, required to disqualify himself from the hearing of the contempt. This record demonstrates no such disrespect or criticism. The District Judge was correct in refusing to disqualify himself.

Appellant also disputes the authority of the District Judge to compel LaMarre's appearance. Although the "order" involved appears to us to present a question of first impression, we believe it was well within the judicial power. Pretrial proceedings, whether for preparation for trial or for settlement conferences, are an integral and vital part of the judicial process. Rules of court guide and control pretrial. Fed.R.Civ.P. 16; Handbook for Effective Pretrial Procedure, adopted by the Judicial Conference of the United States (1964), 37 F.R.D. 255. We perceive no grounds for denying the trial judge the power to require attendance of any party to the case at any session of the court where the judge deems his presence to be necessary. We believe the District Judge was correct in holding that LaMarre was a party to the proceeding before the court. The Insurance Company of North America was by contract required to defend and to pay the damages, if any, assessed within its policy limits in the District Court suit entitled Frazier, et al. v. Travelodge International, et al., Civil Action No. 36641. While Michigan law, Mich. Comp.Laws Ann. § 500.3030 (1967); Pitcairn v. Rumsey, 32 F.Supp. 146 (W. D.Mich.1940), prohibits the naming of any insurance company as a party defendant, the reality of the matter is that INA had retained counsel, was prepared to defend the suit, and was in complete control of settlement negotiations. Further, it is undisputed that Charles LaMarre was the resident agent of INA in charge of the case.

In short, we have no doubt that the District Judge had the right and the power to issue an order to Mr. LaMarre to attend a pretrial session of the court and, on refusal, to enforce said order by contempt proceedings. Mr. LaMarre's expressed determination not to accept the recommendation of his own counsel and settle the underlying case could have been reiterated in the conference. It is, of course, clear that on due process grounds, no judge can compel a settlement prior to trial on terms which one or both parties find completely unacceptable. But LaMarre could not, in our judgment, refuse a lawful order to attend such a conference to discuss the matter.

Finally, we find no merit to appellant's contention that the judgment should be reversed because of the asserted unlawfulness of LaMarre's arrest. The order for LaMarre's arrest, based on ample probable cause, was entered on the record in open court. Its lawfulness was not defeated by the fact that the Marshal did not have a copy of it in hand.

This reasoning had led a majority of this court to the verge of affirmance of the contempt judgment. LaMarre's protestations that he considered the Judge's requirement of his attendance at the repeatedly adjourned settlement conference to be merely a request rather than an order was counterbalanced by his own attorney's affidavit that he (the attorney) had received the "order" from the District Judge and had told LaMarre that he (LaMarre) was "ordered" to attend. On searching this record for the order, however, we have been unable to find it.

In the record references of court sessions on February 22, 1973, (the day before the District Judge ordered LaMarre's arrest) the District Judge had repeatedly phrased his desire to have LaMarre appear in terms of a "request." As a matter of courtesy, we believe LaMarre should have honored the request. It was certainly not an onerous one.

Further, we think it highly probable that in a telephone call in the afternoon of February 22, the District Judge ordered attorney Milan to tell LaMarre that the District Judge had ordered LaMarre to appear at 9 a. m. on February 23, and that Milan did so. Both the deposition of Milan and the District Judge's subsequent statements reflect that at this point the District Judge ceased to "request." There, is however, no record of this "order" to be found in this appellate record.

The judicial power to punish for contempt is an awesome power. See Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958) (Black, J., dissenting). Because of the potential for abuse, contempt power has been defined by federal statute and circumscribed by case law.

The applicable statute provides:

§ 401. Power of court

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as —

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order,

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