Hamilton v. Municipal Court of City of Mesa, 1

• Decision Date: 16 November 1989
• Docket Number: CA-CV,No. 1,1
• Citation: 788 P.2d 107,163 Ariz. 374
• Parties: Lynn HAMILTON, an attorney licensed to practice law in the State of Arizona, Plaintiff/Appellant, v. The MUNICIPAL COURT OF THE CITY OF MESA; the Honorable Harold Reeb, a judge thereof, Defendant/Appellee. 88-285.
• Court: Arizona Court of Appeals

Page 107

788 P.2d 107

163 Ariz. 374

Lynn HAMILTON, an attorney licensed to practice law in the State of Arizona, Plaintiff/Appellant, v. The MUNICIPAL COURT OF THE CITY OF MESA; the Honorable Harold Reeb, a judge thereof, Defendant/Appellee.

No. 1 CA-CV 88-285.

Court of Appeals of Arizona Division 1, Department A.

Nov. 16, 1989.

As Corrected Feb. 26, 1990.

Review Denied March 29, 1990.

[163 Ariz. 375] Burch & Cracchiolo, P.A. by David G. Derickson and William Foreman, Phoenix, for plaintiff/appellant.

Richard M. Gerry, P.C. by Richard M. Gerry, Phoenix, for defendant/appellee.

OPINION

ROLL, Judge.^*

Attorney Lynn Hamilton appeals from a superior court judgment in a special action which affirmed her conviction for one count of indirect criminal contempt of court by the Honorable Harold Reeb, Presiding City Magistrate of the City Court of Mesa. Judge Reeb sentenced Hamilton to 120 consecutive hours in jail and imposed a fine of $290 for her failure to appear as defense counsel at the commencement of a city court trial. For the reasons set forth below, we affirm the finding of contempt but vacate that portion of her sentence requiring incarceration.

FACTS

Lynn Hamilton represented Sharon Snow in a domestic relations matter scheduled for trial on February 4, 1987, at 10:00 a.m. in the southeast judicial district of Maricopa County Superior Court. Hamilton was also scheduled to appear as counsel for Scott Kolsrud in a misdemeanor trial set for February 5, 1987, at 8:30 a.m. in Mesa City Court before Judge Reeb. When Hamilton arrived for the superior court trial on February 4, she was informed that the Snow case had been reassigned to Judge Linda Scott and was reset for 1:30 p.m. Hamilton and opposing counsel met with Judge Scott at 1:30 p.m. and the trial began around 3:30 p.m.

Hamilton had anticipated that the Snow matter would take approximately one hour. When it became apparent that the trial would not be concluded that day, she requested a recess in order to advise the Mesa City Court that she would be unable to appear the next morning for the Kolsrud trial. During the recess, Hamilton called her secretary to request her assistance in calling the city prosecutor and Judge Reeb in order to request a continuance of the Kolsrud trial. Hamilton personally called the city prosecutor's office to speak to Rose Gavin, the assistant city prosecutor assigned to the Kolsrud matter. Hamilton was unable to reach her, but informed Gavin's secretary of Hamilton's conflicting court schedule. Hamilton then called her own secretary back and learned that a member of Judge Reeb's staff had stated that the city prosecutor opposed any motion to continue. Hamilton then made a second unsuccessful attempt to contact the assistant city prosecutor personally because she believed that there must have been a miscommunication.

The Snow trial recessed at approximately 5:15 p.m., whereupon Judge Scott scheduled testimony to resume at 9:00 a.m. the following morning. Hamilton did not inform Judge Scott that she had been unable to get the Kolsrud trial continued.

Hamilton arrived at her office at approximately 8:00 a.m. on February 5, 1987, and dictated a motion to continue the Kolsrud trial. However, Hamilton's secretary did not usually arrive until 8:30 a.m. Hamilton was also unsuccessful in her attempts to reach prosecutor Gavin and Judge Reeb by phone. Hamilton did speak to Judge Reeb's court clerk and stated that she would be compelled to attend the ongoing trial in superior court. Judge Reeb was informed of Hamilton's message.

Judge Reeb directed his clerk to contact Hamilton's office and inform Hamilton that if she was not in his court by 9:00 a.m., he would hold her in contempt. Hamilton's secretary received this message at approximately 8:30 a.m.

At 8:30 a.m., Judge Reeb took the bench to start the Kolsrud trial. The prosecutor, the civilian witnesses, the jury panel, and defendant Kolsrud were present. Kolsrud was unaware of Hamilton's trial conflict.

Hamilton arrived at superior court at approximately 8:30 a.m., where she met with opposing counsel and the respective clients and tried unsuccessfully to reach a settlement. At approximately 8:45 a.m., Judge Scott called the parties and counsel into chambers to determine whether the matter would be settled. The conference was interrupted by a telephone call from Judge Reeb to Hamilton. Hamilton talked to Judge Reeb in Judge Scott's chambers and explained her prior unsuccessful attempts to contact his court and the prosecutor. She requested that Judge Reeb speak with Judge Scott to reconcile the conflicting trial schedules. Judge Reeb refused to speak to Judge Scott and no resolution was reached during his telephone conversation with Hamilton.

The Snow trial resumed at 9:00 a.m. and was concluded at approximately 10:10 a.m., at which time Hamilton contacted the prosecutor, Gavin. Gavin informed Hamilton that she had requested that Hamilton be held in contempt of court for her failure to appear.

On February 9, 1987, Judge Reeb signed an allegation of indirect criminal contempt and notice of hearing which directed Hamilton to show cause why she should not be held in contempt for "willful disobedience of a lawful court order, to wit: for failure to appear as attorney of record for and in [sic] behalf of the defendant ... on February 5, 1987 at 8:30 a.m...."

The Mesa City Prosecutor's office later decided not to prosecute Hamilton. Judge Reeb, however, requested and obtained from the Mesa City Council appointment of a special prosecutor to pursue the contempt charge against Hamilton. Hamilton attempted to disqualify Judge Reeb from hearing the matter by filing a motion for change of judge for cause pursuant to Rule 10.1, Ariz.R.Crim.P., 17 A.R.S. After a hearing on Hamilton's motion, Judge Rebecca Standage ruled that Judge Reeb could preside over Hamilton's criminal contempt trial.

Following a trial, Judge Reeb found Hamilton guilty of indirect criminal contempt of court pursuant to Rule 33, Ariz.R.Crim.P., 17 A.R.S., and scheduled a sentencing hearing.

At the sentencing hearing, three witnesses, including a superior court judge and a city magistrate pro tempore, appeared on Hamilton's behalf. Hamilton spoke on her own behalf. Uncontroverted testimony established that Hamilton is a conscientious and diligent attorney. No evidence was presented that she had ever been dilatory in court appearances or that she had ever been disciplined for unprofessional conduct. The magistrate pro tempore opined that a fine of approximately $200 would cover costs incurred in connection with the calling of the Kolsrud jury. Judge Reeb sentenced Hamilton to serve 120 consecutive hours in jail and to pay a fine of $290.

Hamilton's sentence was stayed by the superior court pending review of Hamilton's special action petition. During the pendency of the special action petition, Hamilton filed a supplemental special action alleging that Judge Reeb was a Utah resident and lacked jurisdiction to enter judgment against her.

The superior court accepted jurisdiction of both the initial and supplemental special action complaints and denied relief. Hamilton filed a notice of appeal to this court. ¹

ISSUES ON APPEAL

On appeal, Hamilton argues that her conduct was not contumacious and that, in any event, the sentence imposed was impermissibly harsh.

When a special action initiated in superior court is appealed to this court, we must conduct a bifurcated review to consider first, the superior court's acceptance or refusal of jurisdiction, and second, its decision on the merits. Bilagody v. Thorneycroft, 125 Ariz. 88, 92, 607 P.2d 965, 969 (App.1979). In the instant case, the superior court accepted the special action jurisdiction and neither party contends that the trial court abused its discretion in so doing. Accordingly, we consider only the court's decision to deny relief.

In reviewing a trial court's decision to grant or deny special action relief, this court does not sit de novo. We do not determine whether this court would have granted special action relief, but rather whether the superior court abused its discretion. Arizona Corporation Commission v. Pacific Motor Trucking Co., 97 Ariz. 157, 160, 398 P.2d 114, 116 (1964).

Indirect Criminal Contempt

Criminal contempt is defined as follows:

Any person who wilfully disobeys a lawful writ, process, order, or judgment of a court by doing or not doing an act or thing forbidden or required, or who engages in any other wilfully contumacious conduct which obstructs the administration of justice, or which lessens the dignity and authority of the court, may be held in contempt of court.

Rule 33.1, Ariz.R.Crim.P., 17 A.R.S. Indirect contempt occurs outside the presence of the court. Ong Hing v. Thurston, 101 Ariz. 92, 98, 416 P.2d 416, 422 (1966).

Failure of counsel to be present in court as required by the court may constitute both a breach of professional duty and a disruption of the judicial process punishable as criminal contempt. In re Siracusa, 458 A.2d 408, 410 (D.C.App.1983). However, defendant's acts must be wilful in order to constitute criminal contempt. Riley v. Superior Court, 124 Ariz. 498, 499, 605 P.2d 900, 901 (App.1979). Noncompliance with a court order to appear at a given time is not in itself criminal contempt unless the failure to appear was wilful. See In re Siracusa, 458 A.2d at 410; McMullin v. Sulgrove, 459 S.W.2d 383, 386 (Mo.1970). See generally Annot., Attorney's Failure to Attend Court or Tardiness as Contempt, 13 A.L.R. 4th 122, 129-42 (1983). The superior court's finding that sufficient evidence supported Judge Reeb's decision that Hamilton wilfully disobeyed his orders must be affirmed absent abuse of discretion.

The superior court determined that the evidence supported a finding that Hamilton knew she was ordered to appear in Judge Reeb's court at 8:30 a.m. and that she was not required to appear in Judge...