Contempt of Reeves, In re

• Citation: 733 P.2d 795,112 Idaho 574
• Decision Date: 11 February 1987
• Docket Number: No. 16365,16365
• Parties: In re CONTEMPT OF Reginald REEVES, Attorney. Reginald REEVES, Petitioner-Appellant, v. Honorable Jerry D. REYNOLDS, Respondent.
• Court: Court of Appeals of Idaho

Page 795

733 P.2d 795

112 Idaho 574

In re CONTEMPT OF Reginald REEVES, Attorney.

Reginald REEVES, Petitioner-Appellant, v. Honorable Jerry D. REYNOLDS, Respondent.

No. 16365.

Court of Appeals of Idaho.

Feb. 11, 1987.

Petition for Review Denied April 24, 1987.

Marc J. Weinpel of Weinpel, Woolf, Just, Combo & Davis, Idaho Falls, for petitioner-appellant.

Dona A. Pike, Idaho Falls, for respondent.

SWANSTROM, Judge.

The appellant, Reginald Reeves, is a licensed attorney in the State of Idaho. A magistrate found Reeves in contempt of court and fined him $500 for directing his client to disobey a court order. Reeves' arguments on appeal fall into two general categories. First, he asserts that the contempt sanction must be reversed because it is based on the violation of a void order. Second, he argues that certain defects in the initiation and conduct of the contempt proceedings mandate a reversal. We find Reeves' arguments to be without merit, and affirm the magistrate's order.

The facts may be briefly stated. Reeves represented the wife in a divorce action. The husband obtained an ex parte order temporarily prohibiting the wife from "interfering with [the husband's] custody" of the couple's child. The order provided for a hearing sixteen days later. Before the scheduled hearing, however, the husband filed a motion, supported by affidavits, asking that the wife "and/or her attorney of record Reginald R. Reeves" be found in contempt of court for violating the ex parte order. The affidavits, sworn by the husband and by the director of a day care center which the child attended, recited that the wife removed the child from the center without the consent of the husband and over the objection of the director, and refused to return the child for several days. The wife told the director that "she had talked to her attorney Mr. Reeves and that he said that she could go to the Day Care Center and take the minor child ... because the Restraining Order was no good."

A hearing was scheduled on the motion for a contempt order, and notice was served upon Reeves by personal delivery to his office in accordance with I.R.C.P. 5(b). On several occasions the date of hearing was postponed. In each case, an amended notice was delivered to Reeves' office. The final notice was given nearly two weeks before the hearing. The final notice was given nearly two weeks before the hearing. Meanwhile the wife obtained substitute counsel. The motion for contempt was dismissed as to her, but not as to Reeves. The day before the contempt hearing actually was held, an affidavit by the wife was delivered to Reeves' office. Reeves was out of town and did not attend the hearing. The magistrate found Reeves in contempt and initially ordered him to pay a $1,000 fine. ¹ Reeves filed a "Motion to Reconsider," supported by affidavit, and a hearing was held. The magistrate denied the motion, except that he reduced the fine to $500. Reeves sought relief in the district court. That court affirmed the magistrate's order, and Reeves appealed to this court.

I

The first issue presented is the scope of review to be accorded Reeves' request for relief. Reeves denominated his request to the district court a "Petition for Writ of Review or, in the alternative, Notice of Appeal." The district court treated the request as a writ of review. The writ of review was denied, and Reeves "appealed" to this court.

The apparent confusion of the parties--as to whether relief from a contempt order is available only through a writ of review or whether an appeal can be taken--is understandable. For nearly a century, our Supreme Court considered contempt orders not to be appealable. See, e.g., Glenn Dale Ranches, Inc. v. Shaub, 95 Idaho 853, 522 P.2d 61 (1974); Mathison v. Felton, 90 Idaho 87, 408 P.2d 457 (1965); Levan v. Richards, 4 Idaho 667, 43 P. 574 (1896). This position was grounded in a statute, I.C. § 7-614, which states that "[t]he judgment and orders of the court or judge, made in cases of contempt, are final and conclusive." Although the Supreme Court interpreted this statute to bar the appeal of contempt orders, it did not consider the statute to preclude all scrutiny of trial court actions. Idaho Code § 7-202 empowered a superior court to issue a writ of review in circumstances, such as contempt cases, where no appeal could be taken. However, the court's power of review under such a writ was limited to a determination whether the lower court "exceeded its jurisdiction." Barnett v. Reed, 93 Idaho 319, 460 P.2d 744 (1969); Mathison v. Felton, supra; Levan v. Richards, supra; I.C. § 7-208 (review limited to determination whether inferior tribunal "regularly pursued [its] authority").

This restricted review apparently troubled the appellate courts. Understandably, the Supreme Court often desired to reach beyond subject matter and personal jurisdiction to correct other errors of the trial court. As a result, the term "jurisdiction" was used very broadly in a series of cases. See, e.g. Marks v. Vehlow, supra (civil contempt sanctions subject to appellate review for abuse of discretion); Mathison v. Felton, supra (lower court acted in excess of jurisdiction where no substantial evidence supported finding of contempt); Hay v. Hay, 40 Idaho 159, 232 P. 895 (1924) (lower court exceeded jurisdiction where it held person in contempt in absence of showing that he was able to comply with order). In this approach, our Supreme Court was not alone. See, e.g., In Re Berry, 68 Cal.2d 137, 65 Cal.Rptr. 273, 280, 436 P.2d 273, 280 (1968) ("any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction."); Cox, The Void Order and the Duty to Obey, 16 U.CHI.L.REV. 86, 90 (1948) (hereinafter Cox) (noting that the United States Supreme Court has "extended the concept of jurisdiction ... into areas where the propriety of its application is open to question").

Eventually, our Supreme Court altered its view regarding the prohibition against appeals in contempt cases. In Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967), the court agreed to entertain the appeal of a contempt order, "inasmuch as respondent does not challenge the appeal ... and since Idaho's Constitution, Art. 5, § 9, provides that '[t]he Supreme Court shall have jurisdiction to review, upon appeal, any decision of the district courts....' " Id. at 580, 428 P.2d at 499. In a concurring opinion, Chief Justice Taylor argued that I.C. § 7-614 had been misconstrued by the Court. Rather than barring an appeal, he believed, the statute should be interpreted to make a contempt order final and appealable, even though the order is issued before final judgment is entered in the action. He further suggested that I.C. § 13-201, which then provided that an appeal could be taken "from any special order made after final judgment," effectively displaced the prior interpretation of I.C. § 7-614. The Court did not immediately embrace Justice Taylor's position, but it did continue to hold that the Court had plenary power under the Idaho Constitution to hear appeals of contempt orders in the discretion of the Court. See Marks v. Vehlow, supra; Lester v. Lester, 99 Idaho 250, 580 P.2d 853 (1978); Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975). However, the Court indicated a reluctance to exercise that discretionary power. Marks v. Vehlow, supra; Lester v. Lester, supra.

The Legislature subsequently took action which supported Justice Taylor's position. In 1977, I.C. § 13-201 was amended to provide that "[a]n appeal may be taken to the Supreme Court from a district court in any civil action by such parties from such orders and judgments, and within such times and in such manner as prescribed by Rule of the Supreme Court." ² The court soon acted under this new authority. The first step was taken in the Idaho Criminal Rules. Idaho Criminal Rule 54(a)(8), adopted in 1979, allows a party to appeal from the magistrate division to a district court "[a]ny order holding a person in contempt of court other than those contempts defined in Rule 42(a)." In 1985, the Supreme Court amended I.R.C.P. 83(a)(2) to allow an appeal to the district court of "any contempt order or judgment certified by the [magistrate] to be final as provided by Rule 54(b)...." Similarly, I.A.R. 11(a)(3) was amended to allow "an appeal as a matter of right" from any contempt order or judgment so certified. The latter two amendments took effect on July 1, 1985, nearly four months before the district court granted an "Amended Writ of Review" of the magistrate's contempt order in this case.

The magistrate in this case did not certify the judgment against Reeves as final. Rule 54(b) states that "when multiple parties are involved, the court may direct the entry of a final judgment upon one or more but less than all of the ... parties ..." only upon the proper showing. As our Supreme Court has explained, the purpose of Rule 54(b) is to avoid piecemeal litigation and appeals. Long v. Goodyear Tire and Rubber Co., 100 Idaho 183, 595 P.2d 717 (1979). Lack of certification would usually bar the appeal of a contempt order. Id. However, this is not a case where a contempt order was entered against one of multiple parties to a suit. Reeves was not a party to the suit at all. At the time the contempt order was entered, he no longer had any involvement with the suit whatsoever. We do not believe that the Supreme Court intended the certification provision to apply to nonparties, at least where all involvement with the suit has been severed. This is consistent with the federal approach that a contempt order against a nonparty is the subject of an immediate appeal. See, e.g., Fenton v. Walling, 139 F.2d 608 (9th Cir.1943), cert. denied, 321 U.S. 798, 64 S.Ct. 938, 88 L.Ed.2d...