State v. Cherryhomes

• Decision Date: 06 October 1992
• Docket Number: No. 13479,13479
• Citation: 114 N.M. 495,840 P.2d 1261,1992 NMCA 111
• Parties: , 61 USLW 2346 STATE of New Mexico, Plaintiff-Appellee, v. Tom CHERRYHOMES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1261

840 P.2d 1261

114 N.M. 495, 61 USLW 2346

STATE of New Mexico, Plaintiff-Appellee, v. Tom CHERRYHOMES, Defendant-Appellant.

No. 13479.

Court of Appeals of New Mexico.

Oct. 6, 1992.

Certiorari Denied Nov. 18, 1992.

[114 N.M. 496] Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Gary C. Mitchell, Ruidoso, for defendant-appellant.

OPINION

MINZNER, Judge.

Attorney Tom Cherryhomes appeals from a decision of the district court holding him in contempt for failure to comply with a court order. The order, issued on the basis of a local rule, required Cherryhomes to wear a conventional tie when he appeared in Judge Shuler's courtroom. We affirm.

FACTS

On September 13, 1991, Cherryhomes appeared in Judge Shuler's courtroom to represent a client in a child abuse/neglect proceeding. Cherryhomes was wearing a short-sleeved, conventional dress shirt with the neck unbuttoned. He had a light blue piece of cloth or bandanna tied around his neck, above his collar, and he was not wearing a jacket.

Judge Shuler asked Cherryhomes about his attire, noting that they had previously discussed appropriate dress for his courtroom, as outlined in the local rules for the Fifth Judicial District, which require that male attorneys "wear sport or suit coats, slacks and ties while attending or appearing before the Court, unless some physical reason prevents the wearing of such articles." Rule 1-12(2) (5th Dist. Nov. 1990), N.M.Loc. & Fed.R.Hnbk. (1992). Cherryhomes responded that his arm continued to heal from an injury, which was why he was not wearing a jacket. He also said he was wearing a tie, even if Judge Shuler did not like his choice, and referred to a book on nineteenth century western wear and a dictionary definition of "tie," which he had brought with him. Judge Shuler disagreed with Cherryhomes's interpretation of the meaning of the local rules requirement of a tie, and found Cherryhomes in contempt, fining him $50.

Cherryhomes requested a hearing, and the judge granted his request, scheduling the hearing for later that afternoon, after the pending matter was decided. At the hearing, Cherryhomes requested that Judge Shuler recuse himself because he did not think the judge could be objective. Judge Shuler denied his request, stating that he believed that he could fairly decide the case. Judge Shuler stated that on two separate occasions earlier in the week he had discussed Cherryhomes's neckwear with him and had asked him not to appear dressed in that manner again. The judge stated that he believed Cherryhomes's attire violated the local rule. He also noted that on the second occasion when Cherryhomes appeared with his bandanna around his neck rather than a conventional tie, he took no action because Cherryhomes claimed he had no notice that he was violating the local rule.

Cherryhomes argued that the issue was a matter of interpretation of the local rule and whether his neckwear satisfied the tie requirement. He again referred to his book on western wear, and argued, on the basis of references in that book, that his bandanna was a necktie. He stated that his choice of neckwear was a matter of personal expression and that he should not be subjected to someone else's interpretation of the local rule.

Judge Shuler noted that he was charged with maintaining proper decorum in his court. Stating that courtroom matters require an element of formality that is reflected in proper courtroom attire, Judge Shuler said that the dress code was enacted to facilitate that end.

After pointing out that he had twice before requested that Cherryhomes not appear in his court wearing the bandanna, Judge Shuler inquired whether Cherryhomes was intentionally trying to provoke a contempt citation. Cherryhomes replied that he was not, but that he could not change himself to meet someone else's taste. Cherryhomes further argued that he had a First Amendment right to dress as he pleased and that the judge's interpretation of appropriate dress was not contained in the local rules. After the hearing, Judge Shuler again found Cherryhomes in contempt, fining him $50.

DISCUSSION

Cherryhomes contends that the issue before this court is whether his choice of neckwear disrupted the decorum of the court. He contends that his dress caused no disruption, that the judge required him to comply with a unique and personal interpretation of the local rule, and that the judge's ruling infringed his First Amendment right of free expression. We disagree with Cherryhomes's characterization of the issue.

Our initial task is to determine whether substantial evidence supports Judge Shuler's determination that Cherryhomes violated a court order. See State ex rel. Bliss v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957) (contempt verdict supported by substantial evidence will not be disturbed on appeal). It is undisputed that the proceeding was one for criminal contempt. Consequently, proof of guilt had to be beyond a reasonable doubt. Id. However, in reviewing the evidence, we do so in the light most favorable to the verdict. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978).

We must first determine whether an order existed that was sufficient to put Cherryhomes on notice of what was required of him. See Friedman v. District Court, 611 P.2d 77, 79 (Alaska 1980); see also Sandstrom v. State, 309 So.2d 17, 19 (Fla.Dist.Ct.App.1975). The record on appeal supports a conclusion that there was a prior order of which Cherryhomes was aware.

We note that Cherryhomes represented himself throughout most of the appellate proceedings. Mr. Mitchell entered his appearance on Cherryhomes's behalf after briefing was completed and the court had heard oral argument.

Cherryhomes never disputed the existence of an order in either his brief-in-chief or his reply brief. See SCRA 1986, 12-213(A)(3) (Repl.Pamp.1992) (findings not specifically attacked in brief shall be deemed conclusive). In oral argument before this court, he admitted that Judge Shuler had ordered him to wear a tie; he contended that Judge Shuler's directive was ambiguous, because Cherryhomes believed that his bandanna was a tie.

However, the evidence clearly supports a finding that Cherryhomes was put on notice that he was required to appear in Judge Shuler's courtroom wearing a conventional tie, not a bandanna. There was evidence that Cherryhomes knew that his bandanna was the disputed article of clothing and that Judge Shuler specifically told him not to wear it. Judge Shuler told Cherryhomes that he was required to appear wearing a conventional tie. Furthermore, Cherryhomes presented himself to Judge Shuler wearing the offending bandanna, armed with historical authority which he believed supported his position and prepared to debate what constituted a "tie." Judge Shuler was entitled to conclude from Cherryhomes's actions that he had notice of the previous order and that he understood it.

Because we have determined that an order existed, we need not review Cherryhomes's argument that the judge's interpretation of the local rule abridged his First Amendment rights. Cherryhomes was required to abide by the district court's order, even if the order was subject to being set aside later on appeal or by hearing on extraordinary writ. See United States v. United Mine Workers of America, 330 U.S. 258, 293-94, 67 S.Ct. 677, 696-97, 91 L.Ed. 884 (1947). "[A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the Act under which the order is issued." Id. at 293, 67 S.Ct. at 696 (footnote omitted); see also Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967) (petitioners could not disregard temporary injunction on the grounds that it impermissibly interfered with the exercise of First Amendment rights). This principle is sometimes characterized as the "collateral bar rule." See generally Richard E. Labunski, The "Collateral Bar" Rule and the First Amendment: The Constitutionality of Enforcing Unconstitutional Orders, 37 Am.U.L.Rev. 323 (1988) [hereinafter "Labunski"]. "The collateral bar rule requires that court orders, even those later determined to be unconstitutional, must be complied with until amended or vacated." Id. at 327 (footnote omitted). "The collateral bar rule in prior restraint cases differs from the more accepted practice of reversing a conviction for violating a statute that is later declared unconstitutional." Id. at 328.

Willful violation of a court's order without testing its validity through established processes directly affects a court's ability to discharge its duties. United States v. Dickinson, 465 F.2d 496, 510 (5th Cir.1972). Such a direct affront to the power of the court cannot be tolerated. Territory v. Clancy, 7 N.M. 580, 37 P. 1108 (1894). Because the evidence indicates that Cherryhomes violated a court order, the district court had the discretion to exercise its inherent power to issue a contempt sanction to preserve its authority and maintain respect for the courts, State v. Wisniewski, 103 N.M. 430, 708 P.2d 1031 (1985), and we conclude that no abuse of discretion occurred in this case.

Cherryhomes acknowledges that the district court has the authority to maintain order and decorum, but contends that, in the absence of any evidence of a disruptive act, he may express himself through his personal interpretation of the tie requirement. He bases this claim on the First and Fourteenth Amendments to the United States Constitution. We understand his argument to be that Judge Shuler's order was an unconstitutional restraint on his right to free expression. We recognize that exceptions to the general rule of the inviolability of court orders have been recognized in other jurisdictions under limited circumstances. See, e.g., In re Providence...