State v. Dickson

• Decision Date: 06 January 1972
• Docket Number: No. 82,82
• Citation: 193 N.W.2d 17,53 Wis. 2d 532
• Parties: STATE of Wisconsin, Respondent, v. Harvey G. DICKSON, Defendant, Mark L. Korb, Appellant. State
• Court: Wisconsin Supreme Court

Page 17

193 N.W.2d 17

53 Wis.2d 532

STATE of Wisconsin, Respondent, v.Harvey G. DICKSON, DefendantMark L. Korb, Appellant.

State No. 82.

Supreme Court of Wisconsin.

Jan. 6, 1972.

This is an appeal from a judgment dated May 6, 1970, of the circuit court for Rock county which found and adjudged the defendant, Attorney Mark L. Korb, guilty of two charges of contempt of court, one on the 8th day of April, 1970, and the other on the 6th day of May, 1970.He was fined $25 on each charge and, in the event the fines were not paid, he was to be committed to three days confinement in the Rock County Jail on each charge.

The case arises out of an alleged traffic violation in which Korb's client, Harvey G. Dickson of Morton Grove, Illinois, was charged with a criminal misdemeanor in violation of sec. 346.57(3), Stats.--operating a motor vehicle too fast for the existing conditions.Dickson was given a citation to appear in branch II of the county court of Rock county on January 26, 1970, at 2 p.m.

Prior to the date of appearance, Attorney Korb was retained by Dickson to represent him in the proceedings.Using a form customarily employed in Rock county, Dickson executed a 'Request Case Be Tried In Absentia,' wherein he stated that he had authorized his attorney, Mark L. Korb, to represent him at any stage of the proceedings and further requested that the case be tried in his absence.The records of the county court, branch II, indicate that prior to or on the return date on the citation, the request for trial in absentia was accepted for filing.On the return date, Attorney Korb appeared for the defendant and entered a plea of not guilty.

Upon the request for a trial by jury, the court ordered that the case be transferred to the circuit court for Rock county for trial.Subsequent thereto, a document carrying the caption, 'Order for Pre-Trial Conference,' was mailed to Dickson's attorney, Mark L. Korb, and to the district attorney.The document bore the heading 'Circuit Court Chambers, Janesville, Wisconsin.'The document recited:

'The above case having been filed in Circuit Court,

'IT IS HEREBY ORDERED that a pretrial conference be held in the third-floor hearing room in the Courthouse in the City of Janesville, on the 8th day of April, 1970, at 4:15 P.M. o'clock.The defendant, his attorney, the prosecutor and the arresting officer are to be present.A copy of this order will be mailed to the defendant or his attorney and to the prosecutor.

'District Attorney

'Mark L. Korb

'Dated March 17, 1970.

'Harold V. Schmidley,

Clerk of Courts.'

The purported signature is a rubberstamp impression.At that time, County Judge Clarence Traeger was, for some purposes, assigned as acting judge for the circuit court for Rock county.On March 30, 1970, Attorney Korb sent the following letter to Judge Traeger at the courthouse at Juneau, Wisconsin, in Dodge county, where Judge Traeger normally presided.The letter stated:

'Honorable Judge Clarence Traeger

County Court Branch II

County Courthouse

Juneau, Wisconsin

Re: Rock County Circuit Court

State of Wisconsin vs. Harvey

Dickson

Dear Judge Traeger:

I have been informed that you will be the presiding judge at the pre-trials to be held on April 8, 1970 in the Circuit Court for Rock County, Wisconsin.The above matter is scheduled for 4:15 p.m. on that date.Mr. Dickson is an Illinois resident and has filed an authorization with the court permitting me to enter all appearances on his behalf.

I have been discussing this matter with the office of the district attorney and hope that we will be able to present some kind of a resolution at the time of the pre-trial.However, because of the high economic cost involved in having Mr. Dickson come up from Illinois, I would appreciate your waiving his appearance at the time of pre-trial.

Sincerely yours,

CAMPBELL, BRENNAN, STEIL & RYAN, S.C.

By (Mark L. Korb)

MLK:tme'

On April 1, 1970, Judge Traeger mailed the following reply to Attorney Korb:

'I have your letter of March 30, 1970, wherein you request that the defendant need not appear in person at the time of the pretrial.

'Personally, I do not understand how a pretrial can be meaningful with the defendant not present, and that is why I always desire to have him present, and insist on it.

'The only way that I will allow the defendant not to make an appearance with you on April 8, 1970, is that you have authority to plead your client guilty should the facts and circumstances of the case warrant that.'

The record then shows that on April 8, 1970, Attorney Korb appeared before Judge Traeger at the courthouse in Janesville, apparently at the third-floor hearing room referred to in the notice mailed by the clerk of court.Attorney Korb appeared, but his client did not.The transcript shows the following colloquy between Judge Traeger and counsel:

'COURT: You aren't inclined to plead him in?

'MR. KORB: No, sir.

'COURT: He's out in the hall?

'MR. KORB: No, sir.This man, I wrote you about, who is in Illinois, and I talked with Mr. Ebbott about it.Since I wrote you and got your letter back, when you said I should be here with an authorization.I talked with him on the phone, revealing to him what Mr. Ebbott had revealed to me, and I'm here with an authorization--in fact, as you see, by the written authorization, I feel, to do anything that is necessary.

'COURT: You have an authorization to plead?

'MR. KORB: If that should be deemed necessary, yes.This has been our practice for parties under a written authorization.'

After a brief discussion referring to the incident that led to the arrest, the judge asked Korb's present position.Korb replied, 'To continue the plea of NOT GUILTY.'Judge Traeger responded:

'You come in here without your man with a piece of paper, which he signed, saying it can be tried in his absence--but you were sent a letter by the Court.But this is a trial in his absence.Then let's get to trial right away.'(Emphasis supplied.)

At this point, the prosecutor pointed out that the officer who made the arrest had been execused from attendance because he had been up all night and did not have any sleep.The prosecutor stated that it would be impossible to proceed to trial and that, in addition, there had been a request for a jury.The following colloquy took place:

'COURT: Is he entitled to a jury trial here?He is not here to argue.

'MR. KORB: I think he would be.

'COURT: He isn't here making any defense.

'MR. KORB: I think he would be.The practice this is based upon is one quite commonly used.He didn't come today to avoid an economic reason.

'THE COURT: That's not true.It may be in this county, but my practice is to have the defendant present, and when they are not present, I find them in contempt, and fine them $25.00, and hold the parties responsible for any terms which might be required, and finally, I won't change my practice here.'

Attorney Korb reminded the judge that he had written to him asking that his client be excused from attendance and, further, asserted that he understood the judge's letter to mean that he could appear with the defendant absent if he had authority to enter any plea.He further stated, in response to questioning by the court, 'I have legal authority--in fact my man would like me to do whatever is necessary, whatever he says, and he says 'No."Judge Traeger responded:

'In so far as you have no authority to plead him guilty here today, with regard to your statement, and by that failure, he will be held in contempt and fined $25.00.'(Emphasis supplied.)

Korb took exception to the court's finding and asked for a hearing on the contempt charge.Judge Traeger denied a hearing and stated that Korb would be notified of a new pretrial conference.

On April 21, 1970, another purported order for pretrial conference was sent to Attorney Korb.The document was identical in form to the purported order of March 17, 1970, except that it provided that the pretrial conference would be held in the lawyer's conference room on May 6, 1970.This document again bore the rubberstamped signature of the clerk of courts.The document bore the letterhead 'Circuit Court Chambers, Arthur L. Luebke, Judge.'At the time and place designated, Attorney Korb appeared, again without the presence of his client.Attorney Korb made a statement to the court in which he acknowledged that, in view of his authorization to appear on behalf of his client, he had advised him that it would not be necessary to attend.This statement was in explanation of the events that occurred on April 8.Judge Traeger then explained that his letter merely meant that, '. . . if you choose to plead him guilty and had such authority to do so, he was not required to be present.'He went on to explain:

'If you had authority to plead him, of course, we can dispose of the matter but a mere statement that a man is not guilty, doesn't open the door for any discussion leading to a disposition either of the case or by virtue of an amendment and because of that fact and because you chose to ignore the request of the Court by way of an order that the defendant be present. . . .'

Thereafter, the judge found Attorney Korb in contempt and imposed a fine of $25 or three days in jail for the alleged contempt committed on April 8.Attorney Korb then stated that he had served an affidavit of prejudice on the district attorney asking that Judge Traeger be disqualified from further hearing of the case.The court refused to honor the affidavit and motion for change of judge and sentenced Attorney Korb for a separate contempt for failing to have his client present at the pretrial conference on May 6.The same fine and alternative jail sentence was imposed.

Attorney Korb stated that he had authorization to appear for his client, that he had the right to enter any plea which he thought was appropriate, and he argued that he had complied with the court's letter in that he had authority to take any action...