State v. Blume

• Decision Date: 02 September 1987
• Docket Number: No. 16495,16495
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Bill BLUME, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 92

743 P.2d 92

113 Idaho 224

STATE of Idaho, Plaintiff-Respondent, v. Bill BLUME, Defendant-Appellant.

No. 16495.

Court of Appeals of Idaho.

Sept. 2, 1987.

Bill O. Blume, pro se.

Jim Jones, Atty. Gen. by David R. Minert, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

The issue presented is whether a magistrate, who entered a judgment of conviction for a misdemeanor and imposed a sentence containing a fine, should have been disqualified later from finding the defendant in contempt for failure to pay the fine. Upon a petition for writ of review, the district court upheld the magistrate's refusal to be disqualified. Today we affirm.

This case is a chapter in the long-standing dispute between Bill Blume and the State of Idaho over his operation of a barbershop without a license. The dispute arises from Blume's assertion that state regulation infringes upon his religious liberties. The constitutional dimensions of this dispute are fully examined in Gregersen v. Blume, 113 Idaho 220, 743 P.2d 88 (Ct.App.1987). The question before us here is different; it focuses upon a litigant's right to a disinterested and impartial judge.

After the state filed a misdemeanor complaint against Blume for operating without a license, he invoked I.C.R. 25(a) and automatically disqualified the first magistrate assigned to the case. Another magistrate, the Honorable Debra A. Heise, was appointed pursuant to I.C.R. 25(e). Blume then moved to disqualify Judge Heise for cause under I.C.R. 25(b). ¹ He contended that Judge Heise--as a citizen, a state employee and an "advocate of the abstract concept called the State of Idaho"--could not render impartial justice in a prosecution brought by the state. Judge Heise conducted a hearing and denied the motion. Blume was convicted and was ordered to pay a $200 fine, plus costs. He did not appeal the judgment of conviction.

Several months later, the prosecutor moved for an order directing Blume to show cause why he should not be held in contempt for failing to pay the fine. A hearing was held. Blume orally renewed his motion to disqualify Judge Heise and he refused to participate further in the proceedings. Judge Heise orally pronounced Blume in contempt and imposed a sanction of five days in jail. Later that day the judge--apparently concerned that the order to show cause might not have given Blume full notice that he faced a possible contempt sanction--ordered his release. ² An amended order to show cause was issued and a new hearing date was set. Meanwhile, Blume filed a second written motion to disqualify Judge Heise for cause. This motion apparently was denied at the hearing. Blume then promised to pay his fine in installments. The order to show cause was dismissed, subject to being reissued if Blume breached his promise. Nevertheless, Blume petitioned the district court for a writ of review of Judge Heise's refusal to disqualify herself. The district court considered and denied the petition. Blume has appealed the district court's ruling.

I

Prefatorily, we must decide whether the district court had jurisdiction to entertain Blume's petition for a writ of review. The state argues that the district court lacked jurisdiction because no written judgment of contempt appears in the record. The state relies on State v. Mason, 102 Idaho 866, 643 P.2d 78 (1982), in which our Supreme Court held that a district court ordinarily cannot entertain an appeal from a criminal conviction in the magistrate division unless a written judgment has been entered in the record. The state would have us hold that the same is true of an appeal from a contempt sanction.

However, we do not think such an appeal was filed in this case. Indeed, Blume did not file an appeal at all; rather, as we have noted, he filed a petition for writ of review. ³ The petition alleged generally that Judge Heise had "acted in excess of jurisdiction." The appeal now before us refers only to the district court's denial of the petition for writ of review. The issue presented is Judge Heise's alleged lack of jurisdiction after refusing to be disqualified in the contempt proceeding. Consequently, we need not decide the broad question posed by the state, whether absence of a written order would bar a contemnor from appealing a judgment of contempt. Our focus is solely on the disqualification question.

A litigant is not required to await final judgment before challenging a trial judge's refusal to be disqualified. Rather, he may seek immediate relief by means of a writ of prohibition. ⁴ Hultner-Wallner v. Featherstone, 48 Idaho 507, 283 P. 42 (1929); see also Price v. Featherstone, 64 Idaho 312, 130 P.2d 853 (1942). Although Blume's pleading was denominated a petition for a writ of review rather than for a writ of prohibition, we evaluate a pleading by its substance rather than by its caption. The substance, as we view it, was that Blume wanted the district court to determine that Judge Heise was disqualified and no longer had jurisdiction in the case. Judge Heise's participation was still a potential concern to Blume because the contempt proceedings had been discontinued upon his promise to pay. Resumed proceedings were possible. We conclude that Blume's petition was properly entertained by the district court.

II

We next consider whether Blume was entitled to an automatic disqualification of Judge Heise at the beginning of the contempt proceedings. At all times relevant to this case, I.C.R. 25(a) provided, in pertinent part, as follows:

In any action in the district court or the magistrates division thereof, any party may disqualify one (1) judge by filing a motion of disqualification which shall not require the stating of any grounds therefor, and the granting of such motion for disqualification, if timely, shall be automatic.... Such motion must be made not later than 5 days after service of a notice setting the action for trial, pre-trial or hearing on the first contested motion, and must be made before any contested proceeding in such action has been submitted for decision to the judge....

As noted above, Blume automatically disqualified one judge when the misdemeanor prosecution was initiated. However, Blume asserts that the contempt proceeding constituted a new proceeding, separate and distinct from the underlying criminal prosecution, at which he again had a right to one automatic disqualification. We disagree.

Rule 25 allows one automatic disqualification in any "action." Consequently, the issue is whether the contempt proceeding was a separate "action" within the meaning of the Rule. No Idaho appellate court has yet confronted this issue. However, the issue has been resolved in other jurisdictions. The leading case is McClenny v. Superior Court, 60 Cal.2d 677, 36 Cal.Rptr. 459, 388 P.2d 691 (1964). Justice Tobriner, writing for a unanimous court, held that a contempt proceeding brought to enforce a domestic relations decree was a continuation of the underlying action and that a contemnor's motion for an automatic disqualification of the judge was, for that reason, untimely. Justice Tobriner observed that allowing a party automatically to disqualify a judge who attempts to enforce a previous order would "unduly impede the administration of justice" and "would permit litigants to obtain, by repeated cycles of a contemptuous act and a motion [for automatic disqualification], a perpetually fresh forum for testing disadvantageous decisions." Id. 36 Cal.Rptr. at 467; 388 P.2d at 699. The Alaska Court of Appeals recently arrived at a similar conclusion, citing McClenny. See Webber v. Webber, 706 P.2d 329 (Alaska Ct.App.1985). In other contexts as well, courts have expressed the view that a contempt proceeding is a continuation of the underlying suit. E.g., Opperman v. Sullivan, 330 N.W.2d 796 (Iowa 1983) (because contempt proceeding is part of underlying dissolution case, trial court did not need to establish independent basis for jurisdiction); Frey v. Willey, 166 P.2d 659 (Kansas 1946) (contempt proceeding to enforce injunction is part of underlying suit); Shapiro v. Shapiro, 303 N.Y.S.2d 565 (N.Y.Sup.Ct.1969) (motion to hold party in contempt for violation of court order is part of underlying action, and must be brought in same court as that action).

We note that these cases involved what is commonly called "civil" contempt--an exercise of the contempt power to coerce compliance with a prior court order rather than simply to punish disobedience of the order. Although the contempt proceedings in the present case arose from a misdemeanor prosecution, the primary object manifestly was to obtain Blume's compliance with an obligation to pay the fine earlier imposed. The magistrate discontinued the proceedings when Blume promised to pay. Accordingly, we believe the McClenny rule--treating the contempt proceeding as a continuation of the underlying case, and precluding a second automatic disqualification--is applicable here.

We further believe McClenny to be sound law. A judge should not be lightly divested of the power to enforce his or her own orders. The contempt power is virtually the only tool a court can employ to compel obedience of its decisions. In addition, the judge who presides over the underlying action is familiar with the subject matter of the suit, and often will be in the best position to evaluate the merits of one party's motion to hold the other in contempt. Accordingly, we reject Blume's argument that he was entitled to a second automatic disqualification in this case. ⁵

III

Finally, we turn to Blume's contention that the magistrate should have disqualified herself for cause. As noted above, Blume filed a motion to disqualify, and a supporting affidavit, in the early stages of the underlying criminal prosecution. The motion was denied and Blume was convicted. The motion was renewed during the contempt proceeding. With one exception discussed below, the second written motion...