People v. Razatos

• Decision Date: 20 May 1985
• Docket Number: No. 80SA249,80SA249
• Citation: People v. Razatos, 699 P.2d 970 (Colo. 1985)
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Peter S. RAZATOS, Attorney-Respondent.
• Court: Colorado Supreme Court

Page 970

699 P.2d 970

The PEOPLE of the State of Colorado, Complainant, v.Peter S. RAZATOS, Attorney-Respondent.

No. 80SA249.

Supreme Court of Colorado En Banc.

May 20, 1985.

Linda Donnelly, Disciplinary Prosecutor, Philip A. Harley, Deputy Disciplinary Prosecutor, George S. Meyer, Deputy Disciplinary Prosecutor, Denver, for complainant.

Tallmadge, Tallmadge, Wallace & Hahn, P.C., John W. Smith, III, Harvey P. Wallace, Denver, for attorney-respondent.

LOHR, Justice.

On September 16, 1983, we issued a rule to show cause why the respondent should not be held in contempt of court for failing to pay restitution and court costs previously ordered by this court and for representing that the court costs had been paid when they had not.We now conclude that we cannot impose contempt sanctions against the respondent on the record before us.Therefore, we discharge the rule.

I.

On June 22, 1981, this court suspended respondentPeter S. Razatos from the practice of law for three years and ordered him to pay restitution of $2,500 to a former client and to pay court costs of $692.65.People v. Razatos, 636 P.2d 666, 672(Colo.1981).The facts and procedural history leading up to that disciplinary action are set forth in the published opinion and will not be repeated here.

On September 13, 1983, the People filed a Motion for Contempt Citation against Razatos, alleging that he had failed to pay the restitution and court costs previously ordered and that he had misrepresented that the costs had been paid.

Based upon the People's motion, this court, on September 15, 1983, issued an order to show cause that stated:

IT IS THIS DAY ORDERED that a rule to show cause issue out of this court commanding the respondent to answer in writing and show cause within ten (10) days from service of such rule why he should not be held in contempt of Court for disregarding the Court's order to pay restitution and costs and for misrepresenting to the Court that he had paid the court ordered costs.

A rule to show cause was issued to Razatos the following day, containing the language prescribed by the order.

On December 15, 1983, after Razatos filed a response to the rule to show cause, the court referred this matter to a special master.SeeC.R.C.P. 53.The master was directed "to determine whether the Respondent has the ability to pay the restitution previously ordered."The allegations concerning court costs were not mentioned in the referral to the master.The master was further directed to hold a hearing and "determine all questions of fact and file a written report."

The appointed master then set March 29, 1984, for a hearing.Prior to the hearing, on March 2, the master issued an order declaring that it was necessary for him "to have full and complete information concerning Respondent's financial condition" from June 22, 1981, the date of our opinion imposing the requirement to pay restitution and costs, to the date of hearing.Razatos was directed to produce the following documents and information:

a. Copies of Respondent's Federal and State income tax returns for 1980, 1981, 1982, and 1983.If the 1983 returns are not yet complete, he is directed to furnish the Court with a verified statement of all income showing amounts and source, received in 1983 and to date, in 1984.

b. A verified statement of all assets owned by Respondent in which he had any interest, as of June 22, 1981, and a statement of all liabilities as of that date.

c. A verified statement of all assets, real, personal or mixed, owned by Respondent, or in which Respondent had any interest, whether acquired or transferred during the period June 22, 1981, to date of the scheduled hearing.Respondent may, if so advised, present to this Court a verified statement of any cause or reason he may claim rendering him unable to comply with the Court's prior order.This order is entered on the Court's own motion.

At the hearing before the master on March 29, 1984, Razatos' former client testified that the restitution ordered by the court had not been paid.The People then called Razatos to testify as an adverse witness and asked him to produce the documents ordered by the master on March 2.Razatos responded by filing with the master a "Hearing Certificate," in which Razatos contended that the order directing him to produce the financial information was in violation of his privilege against self-incrimination guaranteed by the United States and Colorado Constitutions.Stating that his actions were taken "[n]otwithstanding the objections to the compulsion being exercised here," Razatos attached to the certificate the following financial material in partial compliance with the order of the master:

A. 1980 Income Tax Return;

B. 1981 Income Tax Return;

C. 1982 Income Tax Return;

D. 1983 Income Tax Return;

E.Report from Bell Credit Reporting, Inc. regarding outstanding judgments against the Respondent as of March 21, 1984;

F.Note from Peter G. Razatos dated June 15, 1980 payable to M.Grant and assigned to Respondent on June 15, 1980;

G.Financial Statement.

Razatos then refused to answer any questions concerning his financial status.

The master found that the exercise of the privilege was "without merit" under the circumstances and ordered Razatos to testify, threatening him with the imposition of contempt sanctions if he continued to refuse.When Razatos persisted in his refusal, the master found him in contempt and ordered him to jail until such time as he should purge himself of contempt by complying with the master's order to testify.

On March 30, upon the respondent's motion, this court ordered him released upon his own recognizance and directed the People to show cause why the master's contempt order should not be vacated.The People responded by acknowledging that the master had no authority to adjudicate the respondent to be in contempt.The People noted that the master instead could simply make factual findings and refer the matter to this court to determine whether the facts found by the master constitute contempt.The contempt order was vacated by this court on May 3, 1984, and the matter was returned to the master.

A further hearing was held before the master on June 12, 1984.The People again called Razatos to the stand as an adverse witness.Notwithstanding another order from the master, Razatos once more refused to answer questions concerning his financial condition.

On June 18, 1984, the master issued his findings.The master found that Razatos' refusal to testify, based on the assertion of his privilege against self-incrimination, was unjustified; that Razatos' continued refusal to testify after being ordered to do so by the master constituted contempt committed in the presence of the court; that if the master was without authority to determine contempt, the findings were submitted to the court for such determination; and that the limited financial evidence in the record was sufficient to establish that "at all times since the entry of the Supreme Court's order for restitution ..., [Razatos] has been financially able to, and capable of, complying with the Court's order."Razatos filed objections to the findings of the master in this court, and the People filed a reply to those objections.

After reviewing the entire record, including the findings, objections and reply, we conclude: (1) While the evidence in the record may be sufficient to indicate that Razatos had the ability to pay the ordered restitution during the period from June 22 1981, into 1983, the evidence is insufficient to support the finding by the master that Razatos had the ability to pay such restitution at the time of the hearing.For that reason, this court is unable to enter a finding of contempt and impose remedial contempt sanctions on Razatos for failure to pay the ordered restitution.(2) While the evidence in the record might be sufficient to support the imposition of punitive contempt sanctions against Razatos for a failure to pay restitution over the prior three years when he was able to do so, no foundation for the imposition of such punitive sanctions is provided by the rule to show cause, the order appointing the master, or the hearing provided to Razatos.(3) Razatos' exercise of the privilege against self-incrimination was valid.Therefore, his refusal to testify when so ordered by the master did not constitute an act of contempt.Based on these conclusions, we hold that Razatos' objections to the master's findings are well taken, and that the rule must be discharged.

We consider first whether the record would support the imposition of either remedial or punitive sanctions for Razatos' failure to pay restitution as ordered by this court.We then address whether Razatos' assertion of the privilege against self-incrimination was valid, and whether contempt sanctions can be imposed for his refusal to answer questions as ordered by the master notwithstanding the claim of privilege.

II.

Contempt of court can be divided into two categories, civil and criminal, dependent on the purpose and character of the sanctions sought to be imposed.People v. Barron, 677 P.2d 1370, 1372 n. 2(Colo.1984).Civil contempt proceedings are remedial in nature and are not intended to punish the contemner or to deter offenses against the public.Id.In contrast, criminal contempt proceedings are designed to preserve the power and vindicate the dignity of the court by imposing punishment on the contemner.Id.

The power to punish for criminal contempt is an inherent and indispensable power of the court and exists independent of legislative authority, id., at 1372, although criminal contempt is not a common law or statutory crime, id., at 1373.Procedures for prosecuting criminal contempt charges are set forth in C.R.C.P. 107(b)(contempt committed in the presence of the court) and C.R.C.P. 107(c)(contempt committed outside the presence of the court).¹

Courts also have the...