Finding of Contempt in State v. Kruse, Matter of, 93-1074
| Decision Date | 28 June 1995 |
| Docket Number | No. 93-1074,93-1074 |
| Parties | In the Matter of the FINDING OF CONTEMPT IN STATE v. PAUL KRUSE: Roseann OLIVETO, Appellant-Petitioner, v. CIRCUIT COURT FOR CRAWFORD COUNTY, the Honorable George S. Curry, Presiding, Respondent. |
| Court | Wisconsin Supreme Court |
For the appellant-petitioner there were briefs by Mark Lukoff, Asst. State Public Defender and Michael Tobin, Director, Trial Div., State Public Defender and oral argument by Mark Lukoff.
For the respondent the cause was argued by James H. McDermott, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.
This is a review of a published decision of the court of appeals, Finding of Contempt in State v. Kruse, 186 Wis.2d 323, 519 N.W.2d 769 (Ct.App.1994), which affirmed a judgment of the circuit court for Crawford County, George S. Curry, Circuit Judge. Assistant State Public Defender, Roseann Oliveto, seeks review of a court of appeals decision which affirmed the circuit court's summary finding that she was in contempt of court.
The issue presented on review is whether it was proper for the circuit court to use the summary contempt procedure as set forth in sec. 785.03(2), Stats., 1 to find Attorney Roseann Oliveto (Oliveto), in contempt of court for uttering the word "ridiculous" to her client following the court's imposition of sentence and denial of her request to release the defendant on bail pending appeal. Under the facts of this case, we conclude that, although the circuit court was entitled to proceed summarily to find Oliveto in contempt, it was not entitled to then impose sanction without first providing Oliveto with her right to allocution. Accordingly, we reverse the decision of the court of appeals. 2
The circumstances of the alleged contempt are a matter of record. On February 26, 1993, Roseann Oliveto, in her capacity as an assistant public defender, was present in Crawford County circuit court with her client, defendant Paul Kruse, at his sentencing hearing before Judge Curry. Following oral arguments by counsel and after the defendant had exercised his right of allocution, Judge Curry sentenced Kruse, on his conviction for bail jumping, to the Division of Intensive Sanctions for two years, with nine months confinement and other conditions. After sentence was imposed, Oliveto asked the court to release the defendant on bail pending appeal. The request was denied. Thereafter, the following record was made:
Ms. Oliveto: So he is to start his sentence today?
The Court: That's right.
(A discussion was held off the record.)
The Court: Did I hear you say ridiculous, Attorney Oliveto?
Ms. Oliveto: Yes, I did, Your Honor.
The Court: It seems to me that--make the record reflect that the attorney for the Defendant, in open court to her client, indicated that she thought the Court's sentence was ridiculous.
Ms. Oliveto: That's not exactly what I said, Your Honor. I didn't say that entire thing.
The Court: Well, exactly what did you say then?
Ms. Oliveto: I just said "ridiculous." That's the only word I said, Your Honor.
Ms. Oliveto: My purse is in my car.
The Court: Go to your purse and bring it in and pay it. Twenty years of practicing law and being on the bench I have never heard a defense attorney sit around and call the Court's sentence ridiculous in the courtroom.
The Court thought the Court was being somewhat generous in view of the recommendations from the Probation Department. It was a three-year sentence with one year in jail, and in view of Mr. "Mellem's" [sic] past behavior, irresponsible behavior and conduct and the presentence report's negative factors all taken in part, the Court felt that a compromise between what the prosecution was asking for and what the defense was asking for was a reasonable sentence, and certainly finds that the comment of the defense attorney was unreasonable, unprofessional and contemptuous of the Court and will report this to the State Bar of Professional Responsibility. Prepare a transcript and send it.
On April 19, 1993, six weeks after the summary contempt proceeding, Judge Curry filed Written Findings of Fact, Conclusion of Law, and Judgment of Contempt. We summarize his findings of fact as follows: Attorney Oliveto's comment was made immediately after sentence had been imposed while court was in session; Oliveto "turned her head ... towards the defendant and in an aside to him angrily denounced the court's decision as ridiculous"; the comment was audible in the courtroom; court officers, other attorneys, parties, criminal defendants and spectators were present in the courtroom; the comment was "clearly and unequivocally intended to lower the defendant's respect for the court's judgment...."; a summary contempt proceeding was held immediately after the comment was made; Attorney Oliveto was afforded the right of allocution; the allocution offered no explanation or apology to the court; Attorney Oliveto's comment, made in the actual presence of the court, interfered with the administration of justice and impaired the respect due the court.
The court of appeals, in a split decision, affirmed the circuit court's judgment of contempt, holding that (1) the summary contempt procedure was appropriate; (2) the contemnor had sufficient notice that the court was instituting summary contempt proceedings when the court asked if she uttered the word, "ridiculous;" (3) the utterance is not protected by the attorney-client privilege; and (4) the contemnor was not denied her right of allocution. We granted Oliveto's petition for review.
Oliveto raises several arguments which we consider in turn: (1) merely uttering the word "ridiculous"--alone and without context, is not a sanctionable contempt of court; (2) assuming the utterance is contemptuous, the instant facts warrant the non-summary, rather than the summary, procedure; and (3) Oliveto was not afforded her right of allocution. 3
Oliveto argues that uttering the word "ridiculous" in an aside to her client could not constitute contempt because: (1) "the mere utterance of a [single] word is not sufficient to support a contempt finding," Oliveto's Brief at 13; and (2) because the word "ridiculous" is frequently used in legal opinions.
The question of whether or not an act or remark is a contempt of court is one which the circuit court has far better opportunity to determine than the reviewing court. Currie v. Schwalbach, 132 Wis.2d 29, 36, 390 N.W.2d 575 (Ct.App.1986) (citing Schroeder v. Schroeder, 100 Wis.2d 625, 640, 302 N.W.2d 475, 483 (1981). A trial court's finding that a person has committed a contempt of court will not be reversed by a reviewing court unless the finding is clearly erroneous. Id.
The statutory definition of contempt of court is clear: "Contempt of court means intentional: (a) Misconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs the respect due the court," sec. 785.01(1)(a), Stats. According to this definition, misconduct in the presence of the court, which impairs the respect due the court, is a "contempt of court." In this case, Judge Curry found that Oliveto's comment was "clearly and unequivocally intended to lower the defendant's respect for the court's judgment" and that it impaired the respect due the court. We think these findings are reasonably supported by the record.
Further, the arguments Oliveto raises in defense of her conduct--that a single word cannot constitute contempt or that the word she uttered is frequently used in legal opinions--miss the point. The utterance of even a single word, depending upon the context and the manner of delivery, has the potential to be disruptive, rude and offensive. We think Oliveto's remark, uttered, as it was after the court imposed sentence and denied her request to release the defendant on bail pending appeal, was disruptive, rude and offensive. And, contrary to Oliveto's assertion, the fact that this particular word may be inoffensively used in a myriad of other contexts including legal opinions, is not relevant to the only context of concern here, the courtroom. Nor is the fact that the word "ridiculous" is not pejorative per se, render it incapable of constituting sanctionable contempt when uttered, as it was here, in response to the sentence imposed by the court. Given the context and the manner of Oliveto's delivery, an observation made by the court in Contempt in State v. Dewerth, 139 Wis.2d 544, 557, 407 N.W.2d 862 (1987), bears repeating: "It is common knowledge that gratuitous, out-of-turn, berating, threatening, and derogatory comments are not permitted in the course of court proceedings."
As an officer of the court, Oliveto's courtroom demeanor should be above reproach. Lawyers should, by their conduct, set an example for others to follow. The Rules For Professional Conduct For Attorneys provide that a lawyer shall not "engage in conduct intended to disrupt a tribunal." SCR Rule 20:3.5(c). The Comment to this Rule provides in part: "An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics." We recite the rule and the comment to remind lawyers of their obligation to maintain decorum in the courtroom. Had Oliveto respectfully addressed the court she might have made a record concerning the defendant's sentence consistent with her obligations to maintain decorum and to preserve the integrity of the...
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