Currie v. Schwalbach

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN; Schwalbach; We affirm the court of appeals in its holding that the penalty be vacated and the case be remanded to accord Currie his right of allocution. We consider the allocution that will take place on remand to be part of the original s
• Citation: Currie v. Schwalbach, 139 Wis.2d 544, 407 N.W.2d 862 (Wis. 1987)
• Decision Date: 24 June 1987
• Docket Number: No. 84-1811,84-1811
• Parties: In the Matter of the Finding of Contempt in State of Wisconsin v. Thomas M. Dewerth. Bruce CURRIE, Appellant-Petitioner, v. Honorable James B. SCHWALBACH, Circuit Court Judge for Washington County, Respondent and Cross-Petitioner.

Page 862

407 N.W.2d 862

139 Wis.2d 544

In the Matter of the Finding of Contempt in State of Wisconsin v. Thomas M. Dewerth Bruce CURRIE, Appellant-Petitioner, v. Honorable James B. SCHWALBACH, Circuit Court Judge for Washington County, Respondent and Cross-Petitioner.

No. 84-1811.

Supreme Court of Wisconsin.

Argued April 29, 1987.

Decided June 24, 1987.

Robert J. Lerner (argued), for appellant-petitioner; Perry, First, Lerner & Quindel, S.C., Milwaukee, on brief.

James H. McDermott, Asst. Atty. (argued), for respondent and cross-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

HEFFERNAN, Chief Justice.

This is a review of a published decision of the court of appeals ¹ which affirmed in part and reversed in part an order of James B. Schwalbach, circuit judge for Washington county, finding Bruce Currie (Currie) in contempt of court in the case of State v. Thomas Dewerth and remanded only for the purpose of affording him the right of allocution. We affirm the decision of the court of appeals.

On July 24, 1984, voir dire was conducted in the Dewerth case. In the course of voir dire, Currie, a panel member, was summarily found in contempt of court and ordered to pay a fine. The court of appeals affirmed the order but vacated the penalty and remanded the case to afford Currie an opportunity for allocution prior to imposition of the penalty. Because we find, consistent with the court of appeals decision, that use of the summary contempt procedure was proper, and also agree that Currie should have been accorded the right of allocution before contempt sanctions were imposed, we affirm the decision of the court of appeals.

Bruce Currie was summoned as a venire panel juror in the Dewerth case. Dewerth was charged with operating a motor vehicle while intoxicated. In the course of voir dire, Judge Schwalbach asked whether there was "anyone on the panel who has had any dealings with the Washington county District Attorney's Office of one sort or another." Currie stated that his brother had been "murdered by a drunk driver" and that his family had had dealings with the Washington county District Attorney's office. Judge Schwalbach then asked Currie whether his experiences had prejudiced him. Currie responded, "I don't like anybody in the Washington county District Attorney's Office."

Judge Schwalbach excused Currie. On his way out of the courtroom, he passed the defense table and said to the defendant, "I hope they hang you." Judge Schwalbach immediately excused the jury panel. He directed Currie to remain in the courtroom. In response to the judge's inquiry, the court reporter stated that she had not heard Currie's remark. Judge Schwalbach said he had only heard a portion of what Currie had said because Currie was facing away from him at the time the remarks were uttered. He asked defense counsel to repeat what Currie had said. Defense counsel stated that Currie had said, "I hope they hang you," and that he had said it "with feeling and expression." Judge Schwalbach said that he heard "hang him."

Judge Schwalbach granted defense counsel's motion for a new jury panel. He then summarily found Currie in contempt of court and imposed a fine of $1,000. ² Currie attempted to speak, but Judge Schwalbach warned him that his punishment might be increased if he did not keep quiet. ³ Judge Schwalbach then gave his reasons for summarily finding Currie in contempt:

"You just blew close to $1,000 worth of county money by infecting this panel. You've just blown two days this court set aside to try this case. You just cost the defendant possibly additional attorney fees; I don't know because he's going to have to come back here, and you've now delayed the trial of this.

"...

"You're summarily held in contempt of court for the remark you made in the presence of the jury. I would like the record to show I did hear the words "hang him." I did not hear the entire remark because he was facing away. The record should reflect, I don't know how many of those actually in the back heard the entire remark. I'm sure those down at the end, close to Mr. Eisenberg's table were capable of hearing them, and certainly all the potential jurors in the back of the room were capable of hearing that remark because it was directed right at them as he went out."

Judge Schwalbach then asked Currie how much time he would need to pay the fine. Currie asked whether he could have a lawyer. Judge Schwalbach replied, "No, buster. This is summarital [sic], summarily occurred right in the presence of the Court." He told Currie that the fine was to be paid within sixty days. Currie again attempted to speak:

"MR. CURRIE: I got a question for you, sir. I was up here how many times in front of you, and you were aware of what our family has gone through in the past.

"THE COURT: I don't have the foggiest what your family went through.

"MR. CURRIE: It was in your court.

"THE COURT: I don't know what your family went through, sir, and I don't care in that regard; it doesn't excuse the remark. Okay. The case [Dewerth] will be rescheduled, Mr. Eisenberg. We'll contact you.

"A thousand dollars I want from you within 60 days."

Currie appealed Judge Schwalbach's order to the court of appeals. He argued that his behavior did not constitute contempt of court, that the trial court's findings were insufficient to support a conclusion that contempt had occurred, that the court had erred in employing the summary contempt procedure, and that he should have been accorded an opportunity for allocution. The court of appeals rejected all but the last of Currie's arguments. The court of appeals upheld the trial court's order but remanded the case "for purposes of an allocution proceeding wherein Currie will have an opportunity to make a statement in mitigation of his offense." 132 Wis.2d at 32, 390 N.W.2d 575. Both parties petitioned this court for review.

It is Currie's contention that Judge Schwalbach should have employed the nonsummary contempt procedure, rather than the summary procedure. Chapter 785, Stats., outlines two procedures whereby a person may be found in contempt and punished. Nonsummary procedure involves the filing of a motion or complaint, notice, and a hearing or trial on the contempt charge, which sometimes must be held before a different judge. In essence, the contumacious act becomes the subject of a new proceeding. Summary procedure, on the other hand, takes place immediately after the contumacious behavior. Section 785.03, provides:

"785.03 Procedure. (1) NONSUMMARY PROCEDURE. (a) Remedial sanction. A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter.

(b) Punitive sanction. The district attorney of a county, the attorney general or a special prosecutor appointed by the court may seek the imposition of a punitive sanction by issuing a complaint charging a person with contempt of court and reciting the sanction sought to be imposed. The district attorney, attorney general or special prosecutor may issue the complaint on his or her own initiative or on the request of a party to an action or proceeding in a court or of the judge presiding in an action or proceeding. The complaint shall be processed under chs. 967 to 973. If the contempt alleged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial of the contempt unless the person charged consents to the judge presiding at the trial.

(c) Joint hearing and trial. The court may hold a hearing on a motion for a remedial sanction jointly with a trial on a complaint seeking a punitive sanction.

(2) SUMMARY PROCEDURE. The judge presiding in an action or proceeding may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court.

(3) APPEAL. A defendant aggrieved by a determination under this chapter may appeal in accordance with s. 809.30 if the proceeding was prosecuted by the state."

A trial court's finding that a person has committed a contempt of court will not be reversed by a reviewing court unless contrary to the great weight and clear preponderance of the evidence. In re Adam's Rib, Inc., 39 Wis.2d 741, 746-47, 159 N.W.2d 643 (1968). Moreover, this court does not ordinarily re-examine the court of appeals' determination of the sufficiency of the evidence. Winkie, Inc. v. Heritage Bank, 99 Wis.2d 616, 621-22, 299 N.W.2d 829 (1981). However, whether Judge Schwalbach proceeded under the proper subsection of the contempt procedure statute is a question of statutory construction. A question of statutory construction is a question of law. Sacotte v. Ideal-Werk Krug & Priester, 121 Wis.2d 401, 405, 359 N.W.2d 393 (1984). In addition, to the extent that this court must engage in an interpretation of the language of the summary contempt statute, it is confronted with a question of law. This court decides questions of law independently, without deference to the trial court or court of appeals. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984).

Section 785.03(2), Stats., provides that the summary procedure may only be used if the following requirements are met: (1) The contumacious act must have been committed in the actual presence of the court; (2) the sanction must be imposed for the purpose of preserving order in the court; (3) the sanction must be imposed for the purpose of protecting the authority and dignity of the court; and (4) the sanction must be imposed immediately after the contempt.

There is no doubt that Currie's actions...