Riley v. Superior Court In and For Cochise County

• Decision Date: 26 October 1979
• Docket Number: CA-CIV,No. 2,2
• Citation: 124 Ariz. 498,605 P.2d 900
• Parties: James L. RILEY, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF COCHISE, The Honorable Richard J. Riley, Judge of the Superior Court, Division III, Respondent. 3372.
• Court: Arizona Court of Appeals

Page 900

605 P.2d 900

124 Ariz. 498

James L. RILEY, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF COCHISE, The Honorable Richard J. Riley, Judge of the Superior Court, Division III, Respondent.

No. 2 CA-CIV 3372.

Court of Appeals of Arizona, Division 2.

Oct. 26, 1979.

Rehearing Denied Dec. 3, 1979.

Review Denied Jan. 3, 1980.

Beverly H. Jenney, Cochise County Atty., James L. Riley, Deputy County Atty., Bisbee, for petitioner.

Gentry, McNulty & Desens by James F. McNulty, Jr., and Tony K. Behrens, Bisbee, for respondent.

OPINION

HATHAWAY, Judge.

Petitioner was found in contempt by the respondent judge, served an 8-hour sentence in the county jail and was ordered to pay a fine of $150. Contempt orders are not appealable. Van Baalen v. Superior Court, 19 Ariz.App. 512, 508 P.2d 771 (1973). However, they are reviewable in appropriate circumstances by special action. Weiss v. Superior Court of Pima County, 106 Ariz. 577, 480 P.2d 3 (1971); Ong Hing v. Thurston, 101 Ariz. 92, 416 P.2d 416 (1966). Since the circumstances of this case show a failure to follow the appropriate rules, we assume jurisdiction and grant relief.

The petitioner, a deputy county attorney in Cochise County, was found in contempt by the respondent court "for countermanding, interfering with, modifying an order of this Court concerning the incarceration of a criminal defendant without proper authority . . ." The petitioner was the prosecutor in a probation violation hearing scheduled before the respondent judge. The judge had overheard the prosecutor on the telephone the evening before the hearing when the prosecutor was informing defense counsel that he was going to have the jail hold the defendant pending his arrival at the court for the hearing, rather than have him released pursuant to his hardship status at 5 a. m. as the court had ordered. The judge did not intervene at the time he heard the petitioner outline his intentions regarding the defendant's release.

The court interrupted the violation hearing and addressed the prosecutor in harsh language, referring to him as stubborn, arrogant, pig-headed, and "the bane of my existence." The judge stated that he regretted having the same last name as petitioner. The transcript of the proceedings shows that the court was upset with the petitioner not only because of his alleged actions in this case but also because of a pre-existing build-up of animosity that had occurred between the two. The judge had previously spoken to petitioner's employer, the county attorney, in an attempt to change petitioner's "attitude."

The contempt involved here is criminal. Ong Hing v. Thurston, supra. If a contempt is criminal, but not within the bounds of A.R.S. Sec. 12-861, i. e., the contemptuous act is not a criminal offense by itself, the provisions of Rule 33, Arizona Rules of Criminal Procedure, 17 A.R.S., are applicable. The court punished petitioner under A.R.S. Sec. 12-864 which allows punishment "in conformity to the practice and usage of the common law" for contempts not within A.R.S. Sec. 12-861 12-863. Rule 33 outlines the procedure to be used for such punishment.

The judge stated that he had heard the prosecutor on the telephone on the previous day in what appeared to him an attempt to countermand his order regarding the prisoner's release. No ground for summary citation under Rule 33.2 was present since there was no need ". . . for immediate penal vindication of the dignity of the court . . . ." Cooke v. U. S., 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925). Citation under Rule 33.2, similar to Federal Rules of Criminal Procedure, Rule 42(a), allows a judge to act without delay to end conduct of a type that would interrupt a trial. Sacher v. U. S., 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). Since Rule 33.2 was not appropriate, the provisions of Rule 33.3 controlled. That rule states:

"Except as provided by law or by Rule 33.2, a person shall not be found in criminal contempt without a hearing held after notice of the charge. The hearing shall be set so as to allow a reasonable time for the preparation of the defense; the notice shall state the time and place of the hearing, and the essential facts constituting the contempt charged, the notice may be given orally by the judge in open court in the presence of the person charged, or by an order to show cause. The defendant is entitled to subpoena witnesses on his behalf and to release under Rule 7."

To be judged guilty of criminal contempt, it must be found that a defendant acted in a wilful manner. State v. Cohen, 15 Ariz.App. 436, 489 P.2d 283 (1971). The burden of proof, both as to the act committed and the intent, is that of proof beyond a reasonable doubt. State v. Cohen, supra. The procedure for such determination is outlined in Rule 33.3 and it was not followed here. The respondent court did not allow petitioner time to prepare a defense nor did the court establish a time for a hearing. It is therefore necessary to vacate the contempt finding and order a hearing....