76 Hawai'i 187, Schutter v. Soong

• Decision Date: 02 May 1994
• Docket Number: No. 17282,17282
• Citation: 873 P.2d 66,76 Hawaii 187
• Parties: 76 Hawai'i 187 David C. SCHUTTER, Attorney at Law, Applicant-Petitioner, v. The Honorable Melvin SOONG, Judge of the Circuit Court of the First Circuit, State of Hawai'i, Respondent.
• Court: Hawaii Supreme Court

Page 66

873 P.2d 66

76 Hawai'i 187

David C. SCHUTTER, Attorney at Law, Applicant-Petitioner, v. The Honorable Melvin SOONG, Judge of the Circuit Court of the First Circuit, State of Hawai'i, Respondent.

No. 17282.

Supreme Court of Hawai'i.

May 2, 1994.

Syllabus by the Court

1. Hawai'i Revised Statutes (HRS) § 601-7 provides that an affidavit to disqualify a judge in an action or proceeding should be filed before the trial or hearing of the action or proceeding, unless good cause is shown for the failure to file within such time.

2. Where a party fails to move for a disqualification of a judge prior to the commencement of the action or proceeding, but the court addresses the merits of the motion at a later date, we may properly review the lower court decision to deny the motion.

3. Where contempt is committed in the immediate view and presence of the court or under such circumstances that the court has knowledge of all facts constituting the offense, the determination of whether the contempt proceedings may be had before the accuser depends on the nature of the alleged misconduct and the character of the judge's response to the misconduct.

4. Where the record reflects marked personal feelings on both sides inflicting lingering personal stings on the judge, another judge should be substituted for the purpose of finally disposing of the charges of summary contempt.

5. Where conviction and punishment for trial conduct are delayed until after trial, and where the judge: (1) responds to the alleged direct summary criminal contempt dispassionately and with a decorum befitting a judicial proceeding; (2) affords the accused an opportunity to be heard in his own behalf; and (3) gives the alleged contemnor reasonable notice of the specific charges, due process does not mandate a substitution.

6. Where an affidavit to disqualify a judge is timely filed pursuant to HRS § 601-7(b) and is not based upon matters of record, we must accept the facts alleged in the affidavit as true, and our only function is to determine whether the facts sufficiently establish personal bias and prejudice.

7. While the essential document of a motion to disqualify is an affidavit, we may consider the entire record where the affidavit to disqualify is based upon matters of record.

8. Where conviction and sentencing is postponed until the conclusion of the trial, the alleged contemnor must have reasonable notice of the specific charges and an opportunity to be heard on his own behalf.

9. A person accused of contempt receives reasonable notice of the specific charges where the court describes both the contemptuous conduct as well as the statute the contemnor is being charged under.

10. Prior to imposing punishment for criminal contempt, a court should give the contemnor at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment.

11. Once a defendant is denied the opportunity to be heard, this denial of due process cannot be corrected later at a motion for reconsideration.

12. Judicial proceedings should be conducted through dignified and orderly procedures. Although a lawyer has the duty to zealously represent his client, he should not engage in any conduct that offends the dignity and decorum of the proceedings.

Brook Hart of Hart & Wolff, Honolulu, for applicant-petitioner.

Steven Michaels, Deputy Atty. Gen., Honolulu, for respondent.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

Attorney David C. Schutter (Schutter) petitions this court for a special proceeding to review his two convictions for contempt of court and for writs of mandamus and prohibition. Schutter contends that the convictions for contempt of court and sentences should be vacated because: (1) First Circuit Court Judge Melvin Soong (Judge Soong) failed to disqualify himself; (2) the actions for which he was cited with contempt did not constitute contempt; (3) Judge Soong failed to make an on-the-record determination of whether Schutter understood the contempt charges; (4) Judge Soong erred when he denied Schutter the right to pre-sentence allocution; and (5) the contempt of court sentences were unreasonably severe.

We agree only insofar as Judge Soong denied Schutter his right to pre-sentence allocution. Accordingly, we vacate the sentence against Schutter and remand for re-sentencing.

I. FACTS

The contempt convictions in question arose during the civil medical malpractice jury trial of Aga v. Hundahl, Civil No. 91-2292. ¹ During the course of the trial, Judge Soong cited Schutter, plaintiffs' counsel, twice for criminal contempt of court.

The record indicates that throughout the Aga trial, Schutter directed numerous "attacks" at Judge Soong. For example, on May 19, 1993, Schutter accused the court of having ruled on the basis of anger and prejudice and stated that the court was "leaning over backwards to try to help them [defendant and defense counsel] to violate every rule in this courtroom."

Later that same day, Schutter moved to strike an answer that he felt was a "speech." The court denied the motion explaining that both parties had made "speeches," and that the parties should "move forward." Schutter responded by stating in the presence of the jury that, "steamrollers move forward, your Honor, trials are supposed to decide questions."

The court, thereafter, called both counsel to the bench. During the bench conference, Schutter accused the court of "going out of [its] way to prejudice [plaintiffs] in front of the jury." The court put Schutter on notice that any comments he may have with respect to the court should be made at the bench. Schutter responded, "I just beg and pray that some day we get a fair trial in this case and I hate to have to have my client go through the expense of appeal and remand. Why not give it to us now?"

Schutter, however, continued to challenge the court, in the jury's hearing, on whatever perceived injustice he inferred from the court's rulings. Another example occurred later that same day during Schutter's cross-examination of a defense witness. Defense Counsel Dennis O'Connor (O'Connor) objected to Schutter's question regarding an answer in the witness' prior deposition. O'Connor stated that the question as asked by Schutter did not include the entire answer given in the deposition.

Schutter was asked by the court to read the answer. Schutter responded, "My God. Am I going to be subjected to this harassment throughout without any help." At this point, the court took a recess and asked to meet with both counsel in chambers. The following discussion ensued:

THE COURT: It is apparent, Mr. Schutter, that you are going to have outbursts and you're challenging the court when the court is trying to be fair to both parties. This last incident it would appear that you had exploded because of a comment by Mr. O'Connor that the portions weren't read. And as I understand it, you were intending to read the answer [in] part, but Mr. O'Connor was pointing out that that was not the complete reading of the question and the answer and you erupted.

SCHUTTER: That completely misstates what happened, Your Honor.

THE COURT: Well,--

SCHUTTER: I read the question which had already been read before. Mr. O'Connor stood up and said you haven't read the whole answer. I hadn't read any of the answer. Your Honor knew I hadn't read any of the answer. Mr. O'Connor knew I hadn't read any of the answer.

A false vicious statement was made to try to make the jury think that I had read less than a whole answer. And instead of rendering the assistance the court is supposed to render when asked to end that kind of shitty conduct, the court not only eschews doing its job, but goes back to the statement you've been making throughout ["]let's move ahead. ["] And I know then we come into chambers and you completely misstate what happened.

The court felt it necessary to again place Schutter on notice that he control his temper. Schutter responded by putting the court on "notice" that he would continue to respond in the "appropriate manner" if the court continued to slant the record to favor the defendant. Schutter also accused the court and O'Connor of participating in a "two man con game" during bench conferences with O'Connor "telling" the court how to rule. He concluded with "Jesus Christ, judge. Let's have a fair trial. Stop trying your damnedest to influence the jury against me."

Despite being put on notice a second time, Schutter continued to challenge the court's authority. Thus, on the following day, May 20, 1993, the court issued a third warning to Schutter. Before issuing the warning the court excused the jury and took a short recess; the following then ensued:

THE COURT: Mr. Schutter, you have openly challenged the court in many instances throughout the trial. I have tried to counsel you, both at the bench and we had another session yesterday in chambers, if you do not like the court's ruling, voice your complaint at the bench and I have made that clear numerous times.

Despite such warnings you continue to openly defy the court, and therefore, I am placing you on notice and I will also advise your client, Mr. Aga, that the court, if this continues, may take further action because the court deems it is an imposition on the orderly procedure of the court and the administration of justice.

You can zealously defend or promote your client's interest, Mr. Schutter, but when you openly defy the court despite warnings against it, continue to do so before the jury, I am giving you a last warning. Cut it out, it's enough. And I will take further consequences should that type of behavior continue.

Have I made myself clear?

SCHUTTER: No, your Honor, you haven't.

Absolutely, I am on bended knee, and may the record reflect I am bending my knees, may I beg you for a fair trial, may I beg you to give us one percent of the consideration you're giving Senator O'Connor, ² may I beg...