In re Byrnes

• Decision Date: 08 August 2002
• Docket Number: No. 22,443.,22,443.
• Citation: 132 N.M. 718,54 P.3d 996
• Parties: In re Barry J. BYRNES, Attorney-Appellant, Susie Fuentes Misquez, f/k/a Susie Baca, Petitioner, v. Louie Francis Baca, Respondent.
• Court: Court of Appeals of New Mexico

54 P.3d 996

132 N.M. 718

In re Barry J. BYRNES, Attorney-Appellant,

Susie Fuentes Misquez, f/k/a Susie Baca, Petitioner, v. Louie Francis Baca, Respondent.

No. 22,443.

Court of Appeals of New Mexico.

August 8, 2002.

Patricia A. Madrid, Attorney General, Cindy J. Cordova, David K. Thomson, Assistant Attorneys General, Santa Fe, NM, for Appellee.

Barry J. Byrnes, Las Cruces, NM, Pro se Appellant.

OPINION

PICKARD, Judge.

{1} Attorney Barry Byrnes appeals from two orders issued by Judge Grace Duran. The first order held Byrnes in contempt of court for disruptive behavior during a court hearing. The second suspended Byrnes from practicing in Division VI of the Third Judicial District. Because Byrnes defied two direct orders from Judge Duran while in court and disrupted the court proceeding, we affirm the order of contempt. Nonetheless, because Judge Duran failed to give Byrnes sufficient notice of the charges she was relying on in Byrnes's suspension hearing, we reverse the suspension order. We address additional issues that Byrnes raises in order to clarify the authority of courts to suspend attorneys from practicing before them.

BACKGROUND

{2} Byrnes, an attorney in Las Cruces, New Mexico, practices in the area of domestic relations. In January 2001, Byrnes was hired to represent Susie Misquez in a custody dispute with her former husband, Louis Baca. The parties appeared before Judge Duran on June 13, 2001, for a hearing to establish a parenting plan for the couple's two sons. A few days before the hearing, Baca had informed Misquez that he would agree to her proposed parenting plan, which split the custody of the couple's two sons, giving Baca sole legal custody of the couple's older son and Misquez sole legal custody of the younger son. On the morning of the hearing, about 20 minutes before the hearing was scheduled to begin, Baca's attorney, Kenneth Egan, called Byrnes to confirm his client's intention. Egan told Byrnes that he believed Baca would agree to the proposed parenting plan, but said he needed to confer with Baca to confirm. Egan indicated he would call Byrnes back before the hearing. When Byrnes did not hear back from Egan, he and his client hurried to the courthouse to attend the hearing. When the hearing began, Egan indicated that Baca wanted joint custody of both children and would not agree to Misquez's parenting plan.

{3} Byrnes did not take this news well. He complained that "this is very weird and possibly a fraud on me and my client." He alleged that Egan and his client purposely misled him in order to secure a default. Unmoved, Judge Duran asked the parties to go forward with the hearing. During a discussion about the purpose of the hearing, Byrnes commented that "this happens too frequently in this Court." When Judge Duran asked him what he meant, he stated that "we start out with one thing and it gets changed to another." Then, during a discussion about the proper scope of the hearing, the following exchange occurred:

THE COURT: I'm not going to go over testimony that has already been presented to the Court both in July and December —

MR. BYRNES: I don't believe this testimony has ever been presented.

THE COURT: Mr. Byrnes, can you please refrain from interrupting my sentences while I'm speaking?

MR. BYRNES: Yes.

THE COURT: It is very difficult to get a record when that happens.

{4} Egan then called Misquez to the stand. While questioning the witness, Egan objected to an answer that included hearsay. The following exchange occurred:

MR. BYRNES: I think the witness should be allowed to answer instead of being cut off. It's — this hearing is, I believe, improper, and it's being limited, unduly limited, and I don't believe her answers should be cut off.

THE COURT: All right, Mr. Byrnes, if we're going to get through this, I think that you need to state the nature of your objection at —

MR. BYRNES: My —

THE COURT: Just a minute.

MR. BYRNES: My objection is she's allowed to answer the question.

THE COURT: Just a — can you please refrain from interrupting me when I'm speaking? This is the second time I have had to admonish you. If you're going to make an objection, make an objection regarding what has been testified to up to that point, not also adding as an aside whatever criticism you have of the proceeding. We are —

MR. BYRNES: Objection. This constitutes a legal denial of due process.

THE COURT: This is now the third time you've interrupted me, Mr. Byrnes. If I have finished, I'm sure you will know that I have finished because I will stop talking.

{5} Egan then continued questioning Misquez. Byrnes objected several times. Judge Duran overruled some objections, but sustained most of them. The questioning focused on Misquez's insistence that the younger child was afraid to visit his father and would suffer emotional trauma if forced to visit him. Misquez was relying in part on the opinion of a therapist, Amy Kerrigan, who at a hearing in January had recommended that visitation be postponed while both father and son received therapy. During this questioning, the following exchange occurred:

MR. EGAN: Okay, do you have any evidence to show the Court that you didn't show the Court back in the summer of last year? Do you have any new information to present the Court?

MS. MISQUEZ: I am not his therapist. I couldn't say. I mean, you would have to talk to Amy Kerrigan. She is the one who has been seeing him.

MR. EGAN: She is not present here today, is she?

MS. MISQUEZ: No, she is not.

MR. BYRNES: Because of the representation by counsel —

MR. EGAN: At 20 minutes to ten.

MS. MISQUEZ: I didn't even know we had court today.

MR. BYRNES: — this hearing wouldn't be required. That's why.

THE COURT: Just a minute.

MR. BYRNES: That's why, Your Honor.

THE COURT: Counsel —

MR. BYRNES: Saturday is not 20 minutes to ten.

THE COURT: Mr. Byrnes. Mr. Byrnes.

MR BYRNES: That is why I'm saying there has been a denial of due process here, and a fraud on me and my client.

{6} Once Byrnes concluded his fifth objection to the denial of due process and fraud, Judge Duran made the following statement before calling a recess:

THE COURT: All right. I am sick and tired, Mr. Byrnes, of you interrupting the Court. I am also sick and tired of you continuing to badger not only Mr. Egan but other people who are present in this courtroom. I am not going to tolerate any more. I am going to call a recess of this case at this time, and then the two of you will proceed in a gentlemanly fashion. Is that understood? Otherwise, Mr. Byrnes, I will hold you in contempt of court because I am not going to go through this again. Is that clear? Is that clear?

MR. BYRNES: I heard what you said, Judge.

THE COURT: We're in recess.

{7} Despite her statement, which indicated that Byrnes would be held in contempt for any additional interruptions or comments, when Judge Duran returned from recess, she stated for the record that Byrnes's behavior constituted contempt. She stated that Byrnes had continued to interrupt the Court despite warnings that his conduct was impermissible. She also stated that he had inappropriately raised his voice and had been "obstructive, disruptive, and interruptive" of the proceedings. She then found him in direct contempt and fined him $1000, payable by noon the next day.

{8} After making that finding, she then allowed Byrnes to make a statement in his defense. Byrnes explained why he believed his client's due process rights were being violated. He asserted that his behavior was necessary in order to adequately represent his client and see that she received a fair hearing. He pointed out that Judge Duran had sustained several of his objections. He also stated that, contrary to Judge Duran's finding, he did not believe he raised his voice. Judge Duran stated that she disagreed with his interpretation of events, "reaffirmed" her finding of contempt, and ordered Byrnes to pay the $1000. She then adjourned the hearing.

{9} The same day, Byrnes paid the fine, and also filed a notice of appeal. The next day, Judge Duran filed the order of contempt and issued Byrnes an order to show cause why he should not be suspended from practicing in her division. The order was placed in Byrnes's box at the Dona Ana County courthouse. The order contained only the following language:

Notice is hereby given for Barry J. Byrnes to appear before the Honorable Grace B. Duran, District Judge, at the Dona Ana County District Court, 201 W. Picacho Ave., Las Cruces, New Mexico, at 1:30 p.m. on June 25, 2001 to determine if he should be suspended from practicing law in Division VI of the Third Judicial District.

The caption on the order read "In re Barry J. Byrnes." There was no cause of action number on the order, although it had been filed with the court clerk.

{10} According to Byrnes, he did not receive the order until June 20. The next day, he filed a response, raising several "affirmative defenses." Byrnes asserted that Judge Duran did not have jurisdiction to suspend him because (1) our Supreme Court has exclusive jurisdiction over disciplinary matters, (2) he had filed a notice of appeal for the initial contempt order and for the order to show cause, (3) personal service was required and service in his courthouse box did not constitute valid service, and (4) the court failed to initiate a separate action against him. He also asserted that Judge Duran could not initiate the suspension proceedings because he purged the contempt order when he paid the $1000 fine. Finally, he argued that his right to due process of law was violated because the order to show cause did not list the charges against him.

{11} The suspension hearing was held on June 25, 2001. Because Byrnes appeared without counsel, Judge Duran asked whether he was representing himself. He responded that he had not had time to hire an attorney. Without addressing the issue of representation, Judge Duran then began the hearing. She rejected each of Byrnes's...