State for a Writ of Habeas Corpus Ad Prosequendum Re Nam, Application of, 8774
| Decision Date | 15 July 1982 |
| Docket Number | No. 8774,8774 |
| Citation | 648 P.2d 1101,65 Haw. 119 |
| Parties | In the Matter of the Application of the STATE of Hawaii FOR A WRIT OF HABEAS CORPUS AD PROSEQUENDUM RE Kenneth P. H. NAM, Defendant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. There is no requirement that the form of an order summarily holding an attorney in contempt of court contain a recital that the court is treating the matter as a petty misdemeanor.
2. Summary punishment for contempt should be limited to those unusual situations where instant action is necessary to ensure the orderly administration of justice and vindicate the dignity and authority of the court.
3. Where a contempt is committed in the presence of the court, the summary punishment thereof will not be overturned absent an abuse of discretion on the part of the judge in whose presence the contempt was committed.
Colleen K. Hirai, Deputy Corp. Counsel, for petitioner Kenneth Nam.
Walter G. Chuck (Allison H. Lynde and Alexander T. MacLaren with him on the memoranda), for Judge Acoba.
Before RICHARDSON, C. J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.
This is a petition for a writ of habeas corpus commanding the release of Kenneth P. H. Nam, a special deputy prosecutor of the City and County of Honolulu, from custody resulting from an order holding him in contempt of court and sentencing him to imprisonment for the period of 24 hours.
On July 6, 1982, a hearing was held before the Honorable Simeon R. Acoba, Jr., presiding judge of the Twelfth Division, First Circuit, State of Hawaii, in Criminal No. 54601, State of Hawaii v. Patrick Dale Cullen. Petitioner and Darwin L. D. Ching, Esq. appeared for the State of Hawaii. From the transcript, it appears the hearing was called for the purpose of hearing arguments on a motion for a protective order and for the quashing of a subpoena duces tecum directed to the petitioner and issued at the behest of the defendant in that criminal action. However, after the appearances of counsel and before that motion could be heard, Prosecutor Ching moved orally for the court to recuse itself under Canon 3 C(1) of the Code of Judicial Conduct. After judgment, that motion was denied.
Thereafter, the court heard the arguments on the motion for protective order and to quash the subpoena. The arguments on behalf of the State were made by Prosecutor Ching. In the course of that hearing, it became apparent that at a prior hearing, the court had ordered the petitioner to produce a particular document and the petitioner had refused. The counsel for the defendant in the criminal action had thereafter caused to be issued a subpoena duces tecum directed to the petitioner requiring him to produce that document. At the close of the argument on the motion, the court stated that it would take the matter under advisement and issue a decision. The court then added:
After a further exchange between defendant's counsel, Ms. Yuen, and Prosecutor Ching, the court stated:
Shortly thereafter, the court reconvened the case, stating that he called the attorneys back to court because he believed that Mr. Nam's last statement to the court was something the court could not ignore. Prosecutor Ching raised the question of jurisdiction and the court found that it had jurisdiction. The prosecutor protested the lack of notice as to the hearing and the court responded that it was not a hearing. Prosecutor Ching then asked if the State's attorneys could leave and the court ordered them to be present. Prosecutor Ching also protested that there was a lack of counsel for Mr. Nam and that the alleged contempt was not in the immediate view and presence of the court. The court then stated:
THE COURT: Let me state the following for the record: That the Court has at numerous times observed Mr. Nam's behavior, and I have attempted to not take any action either in-and the record will show-the prior proceedings because I felt that any contempt proceeding ultimately demeans the administration of the law especially where a contempt proceeding has to be brought against an officer of the court.
And I do not have any personal problems with Mr. Nam, and I really personally do not care what his opinion may be of me as a person. But we all have the obligation to observe certain rules in court, and the Court has to follow them, and the lawyers, as officers of the court, have to follow them, and I would not, because of any kind of criticism, be true to the duty that I have to uphold the rules of court if the Court were to take that kind of criticism as an obstacle to following through on what its duty must be.
Now, even if an attorney does not have respect for a particular judge-and being an attorney only two years ago, I know that attorneys have different feelings towards judges-but if there is a legitimate problem, then the Rules of Court provide the basis for taking action, and I think that the reason that the Rules of Court provide the basis for taking action is that the kinds of disrespect shown in court are to be avoided. Otherwise, as I said before, that deameans (sic) the entire administration of justice.
The Motion for Protective Order and Quashing Subpoena Duces Tecum, having come on for hearing before the Court on July 6, 1982, and the Court having listened to arguments, Mr. Kenneth Nam, Special Prosecuting Attorney, entered his appearance on the record and, through all of the proceedings, turned his back and head to the Court and thereafter stated when this was noted on the record, "I was just trying to hide my contempt." By his actions and statements, Mr. Nam recklessly engaged in contemptuous behavior committed during the sitting of the Court in its immediate view and presence and directly tended to impair the respect due to the Court's authority.
Prosecutor Ching took exception to the ruling of the court, and again argued that there was no jurisdiction and notice. Petitioner was subsequently incarcerated.
We granted a temporary writ of habeas corpus, ordering the petitioner to show cause why the writ should not be dissolved and the respondent to file responsive memoranda. That has been done.
As we understand petitioner's memorandum, two points are raised: First, petitioner contends that since the order of contempt refers only to § 710-1077(1)(a) and does not recite that the court is treating the offense as a petty misdemeanor under § 710-1077(3) that, therefore, petitioner was held guilty of committing a misdemeanor (rather than a petty misdemeanor) and that the court, accordingly, could not proceed summarily against him.
We find this contention without merit. Under § 701-107(4), it is provided:
A crime is a petty misdemeanor if it is so designated in this Code or in a statute other than this Code enacted of subsequent thereto, or if it is defined by a statute other than this Code which provides that persons convicted thereof may be sentenced to imprisonment for a term of which the maximum is less than one year.
Section 706-663 provides:
A person who has been convicted of a misdemeanor or a petty misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall not exceed one year in the case of a misdemeanor or thirty days in the case of a petty misdemeanor.
The sentence of 24 hours imprisonment is apposite in the case of a conviction for a petty misdemeanor.
Section 710-1077 in pertinent part provides as follows:
(1) A person commits the offense of criminal contempt of court if:
(a) He recklessly engages in disorderly or contemptuous behavior, committed during the sitting of a court in its immediate view and presence, and directly tending to interrupt its proceeding or impair the respect due to its authority;
....
(3) The court may treat the commission of an offense under subsection (1) as a petty misdemeanor, in which case:
(a) If the offense was committed in the immediate view and presence of the court, or under...
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