Oliveto v. Circuit Court for Crawford County

• Decision Date: 30 June 1994
• Docket Number: No. 93-1074,93-1074
• Parties: In the Matter of the FINDING OF CONTEMPT IN STATE V. PAUL KRUSE. Roseann OLIVETO, Appellant, d v. CIRCUIT COURT for CRAWFORD COUNTY, The Hon. George S. Curry, Presiding, Respondent.
• Court: Wisconsin Court of Appeals

Page 769

519 N.W.2d 769

186 Wis.2d 323

In the Matter of the FINDING OF CONTEMPT IN STATE V. PAUL KRUSE Roseann OLIVETO, Appellant, ^d v. CIRCUIT COURT for CRAWFORD COUNTY, The Hon. George S. Curry Presiding, Respondent.

No. 93-1074.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 13, 1993.

Opinion Released June 30, 1994.

Opinion Filed June 30, 1994.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

EICH, Chief Judge. ¹

Roseann Oliveto, an assistant state public defender was summarily found in contempt of court when, immediately following the sentencing of her client, she was heard to remark, "Ridiculous."

She argues on appeal that: (1) her remark was not a contemptuous act; (2) her statement cannot form the basis for contempt because it was a "privileged communication" to her client which was not intended to be heard by the court; and (3) she was denied her right of allocution. We resolve all questions against Oliveto and affirm the judgment.

Oliveto was representing Paul Kruse, the defendant in a bail jumping case. Kruse had been convicted and was in court for sentencing. Immediately after the trial court imposed sentence and denied Oliveto's request for a stay pending appeal, the following occurred:

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.

THE COURT: Well, it certainly indicated to the Court contempt for the Court's sentence, and the Court will find that the defense counsel is in contempt of court and fine her $250. Pay that immediately.

MS. OLIVETO: Can I be allowed to go outside to get my--

THE COURT: You can go pay it right now at the clerk of court's office.

MS. OLIVETO: My purse is in my car.

THE COURT: Go ... 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 [the defendant's] 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 that comment of the defense attorney was unreasonable, unprofessional and contemptuous of the Court and will report this to the State Bar [Board] of Professional Responsibility. Prepare a transcript and send it.

Several weeks later, the trial court entered written findings of fact including, among other things, the following:

2. Immediately at the conclusion of the sentencing process and while court was in session defendant's attorney, Rose Oliveto, turned her head to her left towards the defendant and in an aside to him angrily denounced the court's decision as ridiculous.

3. Attorney Rose Oliveto was in the actual presence of the court at all times when her visible actions and audible statement occurred inside the ... Courtroom.

4. Court was in session.

5. The officers of the court were present.

6. The court officers present were assembled and sitting in front of the rail. They were: District Attorney Timothy Baxter sitting at counsel table; Attorney Rose Oliveto ... sitting at counsel table with her client, Paul Kruse; Court Reporter, Kathleen White sitting at her reporting position; and the Clerk, Marilyn Seymour sitting at the Clerk of Court's table.

7. That other attorneys, parties, criminal defendants and spectators were seated in the gallery behind the rail awaiting hearings on several other cases.

8. Attorney Oliveto's actions, demeanor and statement were visible, perceptible and audible in the courtroom.

9. Attorney Oliveto's actions, demeanor and statement were seen, perceived and heard by Judge George S. Curry.

10. Attorney Oliveto's actions, demeanor and statement were clearly and unequivocally intended to lower the defendant's respect for the court's judgment given at sentencing.

11. When [A]ttorney Oliveto looked up after making her statement to the defendant ... Judge Curry then immediately conducted a summary contempt proceeding.

12. Attorney Oliveto was afforded the opportunity to explain her actions, demeanor, statement and conduct.

13. Attorney Oliveto verified the essence of her statement but her allocution did not offer any explanation or apology to the court for her actions, demeanor, statement or conduct, nor did she attempt to mitigate them, nor did she indicate any remorse.

14. None of Attorney Oliveto's actions, statement or conduct took place in private. They were all in the actual presence of the court. They were all contemptuous of this court.

15. Attorney ... Oliveto's actions, demeanor and statement clearly indicated contempt for the court's sentencing decisions and were precisely targeted to the defendant to diminish his appreciation and respect for the court's sentencing of him on the felony conviction.

16. This was defendant Paul Kruse's fourth felony conviction and therefore it was of paramount and compelling importance that respect for the court be held in high regard by him.

17. Attorney Oliveto's actions, statement and conduct interfered with the administration of justice and impaired respect due the court.

Based on those findings, the court concluded that Oliveto's actions constituted contempt of court and entered judgment ordering her to pay $250. The judgment noted that she had paid the fine on the date of the incident.

I. The Contempt

Section 785.01, STATS., defines "contempt of court" as "intentional ... [m]isconduct 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...." The statute contemplates two types of sanctions for contempt: remedial and punitive. Section 785.01(2) and (3). There is no question that the trial court's judgment in this case was punitive-- "a sanction imposed to punish a past contempt of court for the purpose of upholding the authority of the court." Section 785.01(2); see also Lemmons v. Racine County Circuit Court, 148 Wis.2d 740, 746, 437 N.W.2d 224, 226-27 (Ct.App.1989).

A punitive sanction for contempt may be imposed in either a summary proceeding under § 785.03(2), STATS., or in a nonsummary proceeding under § 785.03(1)(b). The nonsummary procedure contemplates issuance of a formal complaint by the district attorney, the attorney general or a special prosecutor, and it proceeds under the normal procedural rules applicable to criminal cases. Section 785.03(2), under which Judge Curry proceeded in this case, provides as follows:

The judge presiding in an action or proceeding may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court.

Whether a defendant's act constitutes a contempt of court is a question committed to the discretion of the trial court. Currie v. Schwalbach, 132 Wis.2d 29, 36, 390 N.W.2d 575, 578 (Ct.App.1986), aff'd, 139 Wis.2d 544, 407 N.W.2d 862 (1987). This is so because the question "is one which the trial court has far better opportunity to determine than a reviewing court." Id. Thus, even though the remedy--the finding of contempt and the sanction imposed--may be "harsh," we will not reverse the trial court's determination "except in a plain instance of mistake or abuse of discretion." Id. And in reviewing such a determination, we defer to the trial court's findings of fact, which will not be overturned unless they are "clearly erroneous." Id.

With respect to the summary contempt procedure, Oliveto correctly points out that, because of the extraordinary nature of the power--it permits the "imposition of punitive sanctions without the procedural safeguards normally accorded in criminal prosecutions"--it is "properly used only under a limited set of circumstances." Gower v. Circuit Court, 154 Wis.2d 1, 10, 452 N.W.2d 354, 357 (1990). Thus, under the summary-procedure provisions of § 785.03(2), STATS., the contumacious act must have been committed in the "actual presence" of the court and the sanction must be imposed for the purpose of "preserving order in the court" and "protecting the authority and dignity of the court." See also Currie v. Schwalbach, 139 Wis.2d 544, 552, 407 N.W.2d 862, 866 (1987). ² It is, however, "universally recognized that a court must be able to deal summarily with contempts committed in the actual presence of the court." Gower, 154 Wis.2d at 10, 452 N.W.2d at 357 (quoting Judicial Council Committee Note, 1979, § 785.03(2), WIS.STAT.ANN.

Oliveto argues that her act was not committed in the "actual presence of the court." She cites a footnote in the supreme court's Currie opinion indicating that the intent of the "actual presence" language in § 785.03(2), STATS., is that "the contempt need only be committed in the courtroom while court proceedings are taking place." Currie, 139 Wis.2d at 553 n. 4, 407 N.W.2d at 866 (emphasis added). And she contends that, because the transcript reveals only that Judge Curry and the court reporter were present in the courtroom, "there was no court...