People v. Kurz

• Decision Date: 30 August 1971
• Docket Number: No. 1,Docket No. 9417,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter A. KURZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 594

192 N.W.2d 594

35 Mich.App. 643

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter A. KURZ, Defendant-Appellant.

Docket No. 9417.

Court of Appeals of Michigan, Division No. 1.

Aug. 30, 1971.

Rehearing Denied Oct. 4, 1971.

Released for Publication Jan. 3, 1972.

Leave to Appeal Denied March 6, 1972.

James K. Robinson, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Rostash, Pros. Atty., for plaintiff-appellee.

Sheldon M. Meizlish, Detroit (American Civil Liberties Union of Michigan), Michael Frank, Executive Director, Lansing, George V. Warren, Lansing (Michigan Trial Lawyers Ass'n), amici curiae.

Before DANHOF, P.J., and McGREGOR and LEVIN, JJ.

LEVIN, Judge.

The appellant, Walter A. Kurz, is a lawyer. He represented Joseph John Bates who, following a jury trial, was convicted of driving while under the influence of intoxicating liquor, second offense. ¹

After the trial, Kurz was cited for contempt of court based on his conduct during the trial. The contempt charges were tried before the same judge who presided at the trial. 107 separate acts of contempt were charged, and Kurz was convicted of 106 of the charges. He was sentenced to serve 152 days and 7 hours in jail and was fined $9,550. We reverse.

Bates was convicted and sentenced in June 1969. The order to show cause citing Kurz for contempt was issued nine months later, on March 26, 1970.

The order to show cause recites that the prosecutor and Kurz estimated that Bates' trial would require 2 days and that in actuality it took 6 1/2 days and 3 nights to try. The recitals continue: 'During the first 3 days of trial counsel made numerous statements, interrupted questioning by opposing counsel, interrupted the court while speaking, made approximately 125 objections, required that the jury be excused approximately 14 times over and beyond regular excusals for recesses and adjournments and otherwise hindered the trial.' On the morning of the fourth day of the trial the court, 'having determined certain rules were essential to the conduct of the trial, set the following such rules to govern the conduct of counsel during the trial and warned counsel that any counsel who violated any rule would be in contempt of court.

'1. Neither counsel shall interrupt the judge while the judge is speaking;

'2. No motions will be made in the presence of the jury, except to strike testimony of to instruct the jury to disregard or for other good cause;

'3. No motion for mistrial shall be made in the presence of the jury;

'4. No facetious question will be asked or facetious remark will be made;

'5. Neither counsel shall address each other, or the jury except, of course, upon argument at the conclusion of the case;

'6. Any counsel who wishes to object to testimony shall state that he objects and then state succinctly the reason for the objection. Grounds for the objection must be stated with perspicuity.

'7. After the court has ruled on any matter, neither counsel shall argue that same matter or again object to the same matter. Of course, this does not prevent counsel from objecting to subsequent matters which are raised after the court's ruling. In such an event, counsel should indicate a continuing objection;

'8. No objection to any question shall be made after the answer has been given;

'9. No counsel shall object to any question until the question has been completely finished--stated.'

Excerpts from the transcript tending to support the 107 separate charges were set forth in the order to show cause. See Appendix for the text of about half of the excerpts. ²

Substantially all the charges grow out of the manner in which Kurz voiced objections to questions propounded by the prosecutor. It is claimed that on 17 occasions Kurz stated his objection too early--before the question was fully stated; on another 17 occasions he stated his objection too late--after an answer had been given; that on 15 occasions he did not state the objection succinctly and with perspicuity; on 43 occasions he made an unnecessary objection either because he had obtained or was entitled to a continuing objection or he reargued an objection upon which the court had already ruled; on 11 occasions, primarily in the course of stating or arguing objections, he interrupted the judge; on one occasion during the course of registering an objection he addressed opposing counsel; and that on 2 occasions in responding to the court he made a facetions remark.

While there was a stenographic record and, as well, an electronic recording of the Bates trial proceedings, the contempt citation was tried on a 53-page transcript consisting solely of the excerpts set forth in the order to show cause. The relative brevity of this transcript can be appreciated when it is considered that with 107 citations the excerpt for each charge averaged one-half page of transcript.

The hearing on the order to show cause was set for April 9, 1970. Before the hearing, Kurz moved to disqualify the judge and for a continuance, and asked to be furnished with the electronic recording of the Bates trial proceedings and a transcript of the stenographic record of the trial. The motions were noticed for Friday, April 3. The court, on its own initiative, adjourned the motions until the return date set for the hearing on the order to show cause. On the return day, April 9, the motions were denied. ³

During the hearing Kurz addressed the judge as follows:

'Proceeding in the heat of a courtroom battle, I did not willfully or intentionally at any time in any way whatsoever intend to commit the contemptuous act to the court, I did not intentionally or willfully wish to express any disobedience to the court's orders. I did not intentionally or willfully intend to express any opinions or any arguments meant as a direct attack on the court or its authority of any kind. * * *

I had, more or less, been made aware of certain rules laid down in various cases, that it is very difficult sometimes to distinguish where the art of advocacy leaves off and the element of contempt attaches. I just simply at any point of time did not intentionally or willfully engage in any activity or any utterances which were meant or intended as a willful attack or intended act towards the dignity or authority or the decorum of the court.'

The judge responded:

'Mr. Kurz, having sat through the entire trial, I find this very difficult, in a sense, to believe. I don't know whether they were intentional or not. I do know that the effect of them, though, was as I mentioned. Whether they were intentional or not I think only you could tell us. I make no comment or judgment on that at all.'

The judge then took up each of the separate charges. On each separate charge Kurz stood mute and, when asked if there was anything he would like to say, responded through his lawyer: 'Not without the benefit of the full transcript.' He was then found guilty on the charge and the court proceeded to take up the next charge.

After the court had gone through the 107 separate charges and convicted Kurz of 106, sentence was imposed as follows: No punishment was imposed for the first conviction. For the second conviction Kurz was fined $5 and the fine was increased $5 for each succeeding conviction, e.g., $10, $15, $20, through the 20th conviction. A fine of $100 was imposed for the 21st conviction and for each of the remaining convictions. In addition, a sentence of one hour was imposed for conviction No. 22 and an additional hour for each additional conviction, e.g., 2 hours, 3 hours, 4 hours.

In that manner the court set fines aggregating $9,550 and a jail sentence of 3655 hours, or 152 days and 7 hours. Service of the sentence has been stayed pending this appeal.

The convictions and sentences are challenged on a number of grounds. Our disposition makes it unnecessary for us to consider all of them. ⁴

I.

'The power to punish for contempt is awesome and carries with it the equally great responsibility to apply it judiciously and Only when the contempt is clearly and unequivocally shown.' People v. Matish (1971), 384 Mich. 568, 572, 184 N.W.2d 915, 916. (Emphasis supplied.)

In People v. Ravitz (1970), 26 Mich.App. 263, 269, 182 N.W.2d 75, 78, we said that in reviewing a contempt citation of a lawyer for his conduct during a trial, we are ever mindful of the importance of maintaining a proper balance between the trial judge's right 'to maintain discipline and decorum in his court, and the right of counsel to fulfill to the ultimate the obligation of advocacy.'

It has also been observed that, 'A lawyer cannot be timorous in his representation. Courage and zeal in the defense of his client's interest are qualities without which one cannot fully perform as an advocate.' ⁵

Unless a lawyer's conduct manifestly transgresses that which is permissible it may not be the subject of charges of contempt. Any other rule would have a chilling effect on the constitutional right to effective representation and advocacy. ⁶ In any case of doubt the doubt should be resolved in the client's favor so that there will be adequate breathing room for courageous, vigorous, zealous advocacy. ⁷

Kurz was punished for past conduct, not to deter future conduct. Since the purpose sought to be achieved by lodging the contempt charges against Kurz was not to deter him from continuing the course of conduct found to have been in violation of the 9 rules but rather to punish him for disobedience of those rules, the contempt charges in this case were criminal, not civil. ⁸

An essential element of the crime of criminal contempt is that the defendant acted culpably, in 'wilful disregard or disobedience of the authority or orders of the court.' ⁹ The judge in this case made no finding that Kurz acted in bad faith by engaging in a willful, deliberate course of contumacious conduct. Indeed, he said that while he found Kurz's...