Horn v. District Court, Ninth Judicial Dist.

• Decision Date: 15 July 1982
• Docket Number: No. 5653,5653
• Citation: 647 P.2d 1368
• Parties: Robert W. HORN, Appellant (Defendant), v. DISTRICT COURT, NINTH JUDICIAL DISTRICT, Appellee (Plaintiff), a contempt proceeding originating in: John E. BAINE, Jr., (Plaintiff), v. COWBOY BAR OF JACKSON HOLE, INC., a Wyoming Corporation, David Hauser, Rod Grathwal and Mark Watkins, (Defendants).
• Court: Wyoming Supreme Court

Page 1368

647 P.2d 1368

Robert W. HORN, Appellant (Defendant), v. DISTRICT COURT, NINTH JUDICIAL DISTRICT, Appellee (Plaintiff),

a contempt proceeding originating in:

John E. BAINE, Jr., (Plaintiff), v. COWBOY BAR OF JACKSON HOLE, INC., a Wyoming Corporation, David Hauser, Rod Grathwal and Mark Watkins, (Defendants).

No. 5653.

Supreme Court of Wyoming.

July 15, 1982.

Don W. Riske, Cheyenne, for appellant, and Robert W. Horn, pro se.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Sr. Asst. Atty. Gen., Cheyenne, and Michael J. Sullivan and William F. Downes of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellees.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROSE, Chief Justice.

The appellant, Robert W. Horn, while serving as the attorney for a plaintiff in a negligence action was summarily convicted of contempt of court during a trial being conducted in Teton County District Court. Acting under the authority of Rule 41(a), W.R.Cr.P., ¹ the trial judge determined that appellant was in contempt and ordered him to pay a fine of $100 and to pay all costs incurred by the other party to the lawsuit, which costs amounted to $36,927.18. The judge also declared a mistrial. As a result of the trial court's action, the appellant filed the present appeal and he words the issues for review as follows:

"I. MAY AN ORDER SUMMARILY FINDING AN ATTORNEY IN CONTEMPT OF COURT BE SUSTAINED WHERE THE TRIAL COURT HAS FAILED TO COMPLY WITH THE PROVISIONS OF RULE 41(a) OF THE WYOMING RULES OF CRIMINAL PROCEDURE?

"II. WHEN DURING AN IN-COURT DEMONSTRATION TO SHOW THE UNTRUTH OF THE TESTIMONY BY A WITNESS, AN ATTORNEY PRECIPITATES PHYSICAL CONTACT WITH THE WITNESS, DOES THIS CONDUCT CONSTITUTE SUCH A PATENTLY CONTEMPTUOUS MATERIAL

OBSTRUCTION OF THE JUDICIAL PROCESS THAT RESORT TO SUMMARY CONTEMPT PROCEDURES ARE NECESSARY TO VINDICATE THE AUTHORITY AND DIGNITY OF THE COURT?

"III. ARE THE DUE PROCESS GUARANTEES CONTAINED IN THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND IN ARTICLE 1 SECTION 6 OF THE CONSTITUTION OF THE STATE OF WYOMING VIOLATED WHERE AN ATTORNEY IS SUMMARILY CONVICTED OF CONTEMPT OF COURT AND FINED THIRTY SEVEN THOUSAND TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($37,027.18) WITHOUT REASONABLE NOTICE OF THE SPECIFIC CHARGES OR A FORMAL HEARING TO REFUTE THE TRIAL COURT'S ALLEGATION OF CONTEMPT?

"IV. DOES THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES GUARANTEE THE RIGHT TO JURY TRIAL FOR A CRIMINAL CONTEMPT PUNISHED BY A FINE OF THIRTY SEVEN THOUSAND TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($37,027.18)?

"V. MAY AN ATTORNEY BE SUMMARILY CONVICTED OF CRIMINAL CONTEMPT WHERE THE TRIAL COURT HAS FAILED TO GIVE HIM NOTICE OR WARNING THAT HIS CONDUCT IS IMPERMISSIBLE AND SANCTIONS MAY BE IMPOSED FOR ITS REPETITION?

"VI. DOES DUE PROCESS OF LAW REQUIRE THAT A NEW AND IMPARTIAL JUDGE HEAR A CRIMINAL CONTEMPT CITATION WHERE THE TRIAL JUDGE HAS BECOME SO EMBROILED WITH THE ATTORNEY AND PROVOKED BY THE CONDUCT THAT HE CANNOT MAINTAIN THE CALM DETACHMENT NECESSARY FOR FAIR ADJUDICATION?

"VII. HAS AN ATTORNEY BEEN SUBJECTED TO DOUBLE JEOPARDY WHERE HE HAS BEEN SUMMARILY CONVICTED OF CRIMINAL CONTEMPT AND FINED ONE HUNDRED DOLLARS ($100.00) WHEN, AFTER PAYMENT OF THAT FINE, AND WITHOUT ADDITIONAL CONTEMPTUOUS CONDUCT ON HIS PART, THE TRIAL COURT IMPOSES AN ADDITIONAL PENALTY OF THIRTY SIX THOUSAND NINE HUNDRED TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($36,927.18)?

"VIII. DID THE TRIAL COURT EXCEED THE REASONABLE BOUNDS OF ITS DISCRETION THROUGH IMPOSITION OF FINES TOTALLING THIRTY SEVEN THOUSAND TWENTY SEVEN DOLLARS AND EIGHTEEN CENTS ($37,027.18) FOR A SINGLE CONTEMPT OF COURT CITATION?

"IX. DID THE TRIAL COURT ABUSE ITS DISCRETION THROUGH A SUA SPONTE DECLARATION OF A MISTRIAL WHICH WAS NEITHER EXPRESSLY NOR IMPLIEDLY CONSENTED TO BY THE PARTIES AND WHERE THE TRIAL COURT FAILED TO SOLICIT ALTERNATIVE SUGGESTIONS FROM THE PARTIES?"

While the appellant raises a number of contentions, his principal focus is on the propriety of the trial judge's invocation of the powers vested by Rule 41(a), W.R.Cr.P., and the imposition of the $37,027.18 fine. With this in mind, we view the pertinent issues for review as follows:

1. Did the trial judge act properly in finding the appellant in contempt under Rule 41(a), W.R.Cr.P.?

2. Did the circumstances present below warrant the imposition of the $37,027.18 fine which was levied against appellant?

In answering these contentions we will affirm the appellant's contempt conviction and reverse that portion of the fine payable to the other party in the underlying lawsuit.

FACTS

Appellant was representing the plaintiff in a lawsuit in which his client was suing the Million Dollar Cowboy Bar in Jackson, Wyoming, together with several employees of the establishment. The plaintiff had alleged that he suffered severe injuries as a result of a beating he received at the hands of several doormen who had ejected him from the bar. ²

During the trial attorney Horn asked one of the defendants to step down from the witness chair so that appellant could perform a demonstration for the jury. It would seem that attorney Horn intended to demonstrate that the witness had testified to an impossible fact situation. The witness was asked to assume a position similar to the position he had assumed on the night of the incident, and to demonstrate to the jury how he, the defendant, had turned and swung his fist at the plaintiff after plaintiff had allegedly kicked him from behind. The witness was instructed to react upon hearing Mr. Horn say the word "Now." Suddenly, appellant Horn gave the signal and, without warning, kicked the witness with enough force to drive him into the jury box. The record reflects that the following dialogue took place:

"MR. SULLIVAN: Your Honor, I object.

"MR. DOWNES: I object.

"THE COURT: That's sustained. That's highly improper. That's one of the most disgusting things I have witnessed in the courtroom.

"Take the jury out.

"(Whereupon, the jury leaves the courtroom.)

"THE COURT: Let the record reflect that the jury is out. Let the record also reflect that counsel just kicked this witness in the back in front of the jury box with sufficient force to drive him from where he was into the jury box and over the rail. One of the most improper, highly contemptuous matters I have ever witnessed in a courtroom.

"Do you have something to say, Mr. Sullivan?

"MR. SULLIVAN: I just wanted to make sure the record reflected what's happened and what's taking place and the Court is doing that so-

"THE COURT: The behavior that just occurred is highly disruptive to these proceedings. It's contemptuous and I won't stand for it, and I fine you $100 and you pay the Clerk right now.

"Court's in recess.

"MR. HORN: Your Honor, may I say something?

"THE COURT: After I cool off.

"(Whereupon, a brief recess was had.)" (Emphasis added.)

During the short recess the appellant paid the $100 fine levied by the trial judge.

Some 15 minutes later the judge declared a mistrial and ordered appellant to pay "each and every cost" incurred by the defendants up to that point of the trial. At this juncture, appellant apologized to the court and attempted to explain that his only purpose was to represent his client zealously and to refute the witness' story. As noted earlier, the costs assessed against appellant totaled $36,927.18.

CONTEMPT

Before discussing the relevant aspects of the case at bar, it may be helpful to first examine the law of contempt.

Contempts of court are divided into a number of categories. They are usually classified as either civil or criminal in nature, although a given contemptuous act can involve both classes. It is clear, however, that the type of punishment to be imposed is the factor that decides whether a civil or criminal contempt has been committed. As stated by the United States Supreme Court in Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941):

" ' * * * While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public.' " 313 U.S. at 42, 61 S.Ct. at 812 (citing from McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108).

Thus, a civil contempt is generally intended to compel a party to comply with a lawful court order, while a criminal contempt is punitive in character and is enforced so that the authority of the law and the court will be vindicated. Tucker v. State, 35 Wyo. 430, 251 P. 460 (1926); Laramie National Bank v. Steinhoff, 7 Wyo. 464, 53 P. 299 (1898). Another way of distinguishing between the two is to say that the primary purpose of criminal contempt is to punish, while the primary purpose of civil contempt is to coerce. City of Wilmington v. General Teamsters Local Union 326, Del.Supr., 321 A.2d 123 (1974).

Contempts are also categorized depending upon the way that they occur. In Spriggs v. Pioneer Carissa Gold Mines, Inc., Wyo., 378 P.2d 238, 240 (1963), we spoke of these distinctions:

"Generally speaking, contempts of court are classified as either direct or constructive, the latter being dependent upon whether the contemptuous conduct is committed in the presence or out of the presence of the court."

Thus, not only may a contempt of court be of a criminal or civil nature but it also can be either a direct contempt or a constructive, indirect one. Direct contempts are those committed in the court's presence and constructive contempts are those committed outside of the hearing or view of the judge.

CHARACTERIZATION OF THIS CASE

At oral argument a question was raised by the parties concerning the proper designation of the contempt in this case, keeping in mind that the major portion of the...