In re Duckman

• Decision Date: 10 March 2006
• Docket Number: No. 04-483.,04-483.
• Citation: 2006 VT 23,898 A.2d 734
• Parties: In re Appeal of Lorin DUCKMAN.
• Court: Vermont Supreme Court

898 A.2d 734

2006 VT 23

In re Appeal of Lorin DUCKMAN.

No. 04-483.

Supreme Court of Vermont.

March 10, 2006.

Motion for Reargument Denied April 26, 2006.

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William A. Nelson, Middlebury, for Appellant.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Appellee.

John L. Pacht of Hoff, Curtis, Pacht, Cassidy, Frame, Somers & Katims, P.C. Burlington, for Amicus Curiae Vermont Association of Criminal Defense Lawyers.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Amicus Curiae Office of the Defender General.

Present: DOOLEY and JOHNSON, JJ., and EATON, D.J., GIBSON, J. (Ret.), and MARTIN, SUPR. J. (Ret.), Specially Assigned.

DOOLEY, J.

¶ 1. Attorney Lorin Duckman appeals a district court order finding him in summary criminal contempt and placing him in custody for forty-five minutes. On appeal, attorney makes numerous claims regarding the court's contempt order and subsequent denial of his motion to vacate. Generally, these claims can be summarized as follows: (1) attorney was justified in disobeying the court's order because the court did not have the authority to issue the order, and an exception to the collateral bar rule applies; (2) the court's contempt order was based on erroneous factual findings; (3) attorney was denied his due process guarantees of notice, a hearing, and an impartial tribunal; and (4) the sentence was beyond the court's discretion. We reject all of these claims and affirm the rulings of the district court.

¶ 2. The events forming the basis for the contempt finding occurred on August 30, 2004, when attorney was in Addison District Court representing the defendant in the criminal trial of State v. Barrows, Nos. 163-3-03, 602-10-03, and 240-6-04 Ancr. The parties presented the court, Judge Helen M. Toor presiding, with a written plea agreement. At the time, the plea agreement included the proposed sentence, except for the element of restitution, which the parties were still negotiating. The parties discussed restitution and the defendant's ability to pay with the court. The victim did not support the plea agreement and gave an unsworn statement to that effect.

¶ 3. Before ruling on acceptance of the plea agreement, the court turned to the defendant to conduct a Rule 11 colloquy¹ and allow the defendant a chance to speak. Attorney objected, and asked that the court rule on whether the plea agreement would be accepted before addressing his client. The court declined to change its procedure, and attorney stated that he would then be forced to withdraw his client's plea.²

¶ 4. The court explained that attorney had no independent authority to withdraw his client's plea and must first consult with his client. Attorney refused to adjourn and consult with his client and claimed that the court was interfering with his attorney-client relationship. The court ordered attorney to leave and speak with his client. When attorney refused, the court found him in contempt for expressly refusing to comply with the court's order and directed a court officer to place him in a holding cell until 1:00 p.m., which was approximately 45 minutes later.³

¶ 5. In a written order, the court certified the contempt finding on August 31, 2004, stating that attorney's "direct refusal of the court's order, along with [his] angry, confrontational, and disrespectful manner ... made it impossible to proceed with the case, evidenced an utterly inappropriate manner for a lawyer to use in the courtroom towards a judge, and constituted contempt of court." On September 9, 2004, attorney filed a motion to vacate the contempt order, arguing that it was invalid on several grounds. Attorney also requested an evidentiary hearing to present his own version of the facts. On October 20, 2004, the court denied attorney's request for a hearing, finding that it was unnecessary because the contemptuous conduct took place in the court's presence.

¶ 6. The ruling on the motion to vacate was extensive and addressed each of attorney's claims at length. The introduction set the stage:

The undersigned has never in twenty-two years in the legal profession . . . seen an attorney behave in as disrespectful and angry a manner towards a judge as Attorney Duckman has on repeated occasions, both in the courtroom and in chambers. Prior to August 30, 2004, the court had attempted to address Respondent's behaviors by, for example, speaking to Respondent in chambers, asking one of his superiors to speak to him, and clearly explaining the court's expectations of him. He and his superior were also advised that if such conduct continued the court would be forced to take more serious action. On at least one prior occasion, Respondent was warned that he was on the verge of being held in contempt.

On August 30, not only did Respondent display the same rude and disrespectful behavior that he had displayed on previous occasions—repeatedly interrupting the judge—but he went further than he had in the past. On this occasion, he willfully refused to comply with a direct order of the court intended to protect his client's right to determine whether to proceed with a guilty plea pursuant to a proffered plea agreement, or whether to withdraw from that agreement. Moreover, Respondent's refusal forced the courtroom proceedings to come to a halt. Because of this direct refusal to comply with the court's order, as well as the disrespectful way in which it was done and its interference with the ongoing proceeding, the court concluded that it had no choice but to take immediate action. Such action was needed to punish the behavior, to deter similar future behavior by Respondent, and to make clear to others that such behavior would not be tolerated. Because Attorney Duckman's actions demonstrated that repeated prior attempts to remedy his behavior had been unsuccessful, the court also concluded that a severe sanction was necessary. For all of these reasons, the court imposed the sanction of a brief incarceration until after the lunch hour.

The introduction was followed by a section entitled "Past Inappropriate Conduct," which provided "a brief summary of some of the prior instances of unprofessional conduct." The court explained the influence of these prior acts:

These incidents were not the basis for the contempt finding, but they contributed to the court's decision that there was no less severe action that would adequately address the situation. They also contributed to the court's decision to impose the sanction it chose, rather than a monetary sanction.

The court then went on to describe the events that led up to the contempt finding. The court reiterated the reasons stated in the August order: "The court's finding of contempt was based upon the willful refusal of counsel to comply with a clear order of the court, as well as the `angry, confrontational, and disrespectful manner' in which he did so." The court analyzed the grounds necessary for an adjudication of contempt and held that they were present. The court concluded:

As noted above, the court had been faced over a period of months with repeated challenges to its authority, displays of anger, and other unprofessional conduct by Attorney Duckman.... [C]ounsel was well aware of the court's expectations, and kinder and gentler efforts to modify his behavior had been unsuccessful.

If the conduct on August 30 had been the first incident of oppositional and disrespectful behavior by Attorney Duckman, the court likely would not have taken the action it did. Generally, the court seeks to speak at the bench or in chambers with attorneys about any issues with their courtroom behavior. With another attorney, that would have been the likely course of action. Here, however, the prior history with Attorney Duckman had made it clear that lesser steps would be ineffective. Given the interruption of the proceedings, the willful and disrespectful nature of the conduct, and the court's past experience with the attorney in question, it was apparent that a severe sanction was necessary to convey the message that such behavior was unacceptable.

¶ 7. Under our procedural rules:

A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

V.R.Cr.P. 42(a). Although this rule provides the procedure for adjudicating a criminal contempt, common law dictates the substantive elements of summary contempt. State v. Allen, 145 Vt. 593, 600, 496 A.2d 168, 172 (1985). Summary contempt is "an act `committed directly against the authority of the court, tending to impede or interrupt its proceedings or lessen its dignity.'" Id. (quoting In re Morse, 98 Vt. 85, 90, 126 A. 550, 551 (1924)) (emphasis omitted). Trial courts have discretion to issue contempt orders, and reversal of a contempt judgment is appropriate only if "the trial court's discretion was either totally withheld or exercised on grounds clearly untenable or unreasonable." Id. We review the exercise of this discretion carefully in cases of summary contempt because in those proceedings "the otherwise inconsistent functions of prosecutor, jury and judge are united in one individual." United States v. Flynt, 756 F.2d 1352, 1363 (9th Cir.1985). Therefore, we view the decision to use summary contempt power "as an extraordinary exercise to be undertaken only after careful consideration and with good reason." Id. We are also mindful that the power of summary contempt is necessary to "preserve order and decorum" in the courtroom. Sacher v. United States, 343 U.S. 1, 21, 72 S.Ct. 451, 96 L.Ed. 717 (1952).

I.

¶ 8. We first address attorney's claim that the court had no authority to order him to...