State v. Dugan
| Decision Date | 02 July 1999 |
| Docket Number | No. 22376-7-II,22376-7-II |
| Citation | 979 P.2d 885,96 Wn.App. 346 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Appellants, v. Sheldon Karl DUGAN, Sr., Respondent. |
William L. Dowell, Longview, for Respondent
James Jay Stonier, Cowlitz County Prosecutor, for Appellant
Cowlitz County Deputy Prosecutor Christoper T. Mahre appeals from a summary order of contempt. The trial court sanctioned him for asking a criminal defendant a question that, according to the trial judge, was "irrelevant, scandalous, and inflammatory." Because a trial court may impose a summary contempt sanction pursuant to RCW 7.21.050 only for conduct constituting contempt under RCW 7.21.010, such as violating a court order or behaving in a disorderly, contemptuous, or insolent manner that tends to disrupt or interrupt the proceedings so severely as to warrant immediate sanction, and because Mahre's conduct did not fit within any of those categories, it was an abuse of discretion to impose the summary order of contempt. Accordingly, we reverse.
This controversy arose during the trial testimony of a criminal defendant charged with multiple counts of assault and one count of false imprisonment. Upon direct examination, the defendant claimed that he had tried to help the victim overcome a drinking problem and characterized himself as "kind of a health nut." During cross-examination, Mahre asked:
Report of Proceedings at 14. Defense counsel objected to the last question and asked for a curative instruction. Mahre replied, "He opened the door, Your Honor."
After removing the jury, the trial court demanded of Mahre, "Give me one rational theory under which that question is admissible." Without citing a specific case or evidence rule, Mahre argued that impeachment testimony is permissible when a party opens the door to a particular subject. 1
In response, the trial court stated: The court then brought the jury back, instructed it to disregard the question, and resumed trial.
After trial, the court denied Mahre's motion to dismiss the sanction. 2 The trial court did not enter findings of fact and conclusions of law. Mahre then appealed to this court.
Before Mahre filed his appellate brief, the trial judge, representing the Cowlitz County Superior Court and using his state bar number moved to remand the matter to the trial court for entry of findings of fact and conclusions of law. A commissioner of this court denied the motion "without prejudice."
The judge, again using his bar number, moved to modify the commissioner's ruling. A panel of judges of this court issued an order requesting briefing on the issue of the judge's authority to file motions on the trial court's behalf. When the judge failed to submit any authority, this court denied the motion to modify without prejudice.
Shortly thereafter, the judge appointed a private lawyer "special counsel to appear on behalf of the superior court" in this matter. At that point, the judge had already written part of the trial court's appellate brief.
On the same date that he filed the trial court's appellate brief, the judge, acting through counsel, moved again to remand to the superior court to complete the record, which motion another commissioner of this court granted. Contemporaneously, the judge sent to Mahre proposed findings of fact and conclusion of law, drafted by himself and counsel.
On remand, Mahre asked the judge to disqualify himself under the appearance of fairness doctrine. Mahre complained that the judge had collaborated with the trial court's counsel in preparation of the appellate brief and proposed findings of fact and conclusions of law.
The judge conceded that he had written a "substantial" part of the brief and proposed findings prior to retaining counsel. But the judge declined to disqualify himself and continued with argument on the proposed findings.
The trial court subsequently issued findings of fact and conclusions of law, drafted by the judge and his counsel, which included supplemental findings drafted by Mahre. Among other things, the conclusions of law stated that "[t]he unwarranted introduction of irrelevant, scandalous and inflammatory material into a jury trial is contemptuous conduct by a lawyer."
Mahre appeals, arguing that his actions were not contemptuous as a matter of law. He also challenges the findings of fact and conclusions of law under the appearance of fairness doctrine.
Historically, Washington courts have imposed summary contempt sanctions for particularly contumacious behavior. See State v. Hobble, 126 Wash.2d 283, 294, 892 P.2d 85 (1995); In re Salvesen, 78 Wash.2d 41, 46, 469 P.2d 898 (1970); State v. Caffrey, 70 Wash.2d 120, 122-23, 422 P.2d 307 (1966); State v. Zioncheck, 171 Wash. 388, 392-93, 18 P.2d 35, 23 P.2d 1118 (1933); In re Willis, 94 Wash. 180, 183-84, 162 P. 38 (1917); State v. Buddress, 63 Wash. 26, 30, 114 P. 879 (1911); Hedican v. Pennsylvania Fire Ins. Co., 21 Wash. 488, 490, 58 P. 574 (1899). Here, the trial court imposed the order of contempt under RCW 7.21.050, which gives the court authority to summarily impose a sanction for a "direct contempt" - one committed in the courtroom. Hobble, 126 Wash.2d at 293, 892 P.2d 85. A trial court may impose a summary contempt sanction "if the judge certifies that he or she saw or heard the contempt" and "only for the purpose of preserving order in the court and protecting the authority and dignity of the court." RCW 7.21.050(1); 3 Hobble, 126 Wash.2d at 283, 892 P.2d 85.
Punishment for contempt of court lies within the sound discretion of the trial court; a reviewing court will not disturb a trial court's contempt ruling absent an abuse of that discretion. Schuster v. Schuster, 90 Wash.2d 626, 630, 585 P.2d 130 (1978); In re Marriage of Humphreys, 79 Wash.App. 596, 599, 903 P.2d 1012 (1995); Caffrey, 70 Wash.2d at 122-23, 422 P.2d 307. A trial court abuses its discretion when it exercises it in a manifestly unreasonable manner or bases it upon untenable grounds or reasons. State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995).
RCW 7.21.010 defines the acts constituting contempt. 4 The statute does not include asking a question for which there is no legal basis. Nor does it include "[t]he unwarranted introduction of irrelevant, scandalous and inflammatory material into a jury trial."
The trial court stated in its findings of fact that Mahre had not violated a court order. RCW 7.21.010(1)(b). Consequently, the only category of contempt that might apply to Mahre's conduct is intentional "[d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings." RCW 7.21.010(1)(a). Under this definition, the contemptor must (1) act with intent, (2) in a manner that is disorderly, contemptuous, or insolent toward the judge while holding court, and (3) with the effect that it tends to impair the trial court's authority or interrupt its proceedings. RCW 7.21.010(1)(a). Mahre's conduct did not fall within that definition.
Mahre certainly intended to ask the offending question, so the intent element is not at issue. But Mahre did not act in a manner that was disorderly, contemptuous, or insolent toward the court.
Although we find no bright line rule defining disorderly, contemptuous, or insolent behavior, the case law describes particularly egregious conduct. See Salvesen, 78 Wash.2d at 46, 469 P.2d 898 (); Caffrey, 70 Wash.2d at 122, 422 P.2d 307 (); Zioncheck, 171 Wash. at 392-93, 18 P.2d 35 (); Willis, 94 Wash. at 183-84, 162 P. 38 (); Buddress, 63 Wash. at 30, 114 P. 879 (); Hedican, 21 Wash. at 490, 58 P. 574 (). 5 Further, the offending conduct must not only be disorderly, contemptuous, or insolent toward the court, it must also tend to impair the court's authority or interrupt its proceedings. RCW 7.21.010(1)(a).
In Buddress, the donnybrook between the offending parties forced the trial court to temporarily suspend its "business." 63 Wash. at 31, 114 P. 879. In Hedican, the juror's intoxication resulted in a new trial. 21 Wash. at 490, 58 P. 574. In Willis, the offending behavior forced the bench to deviate from its regular docket. 94 Wash. at 181, 162 P. 38. These acts were so disruptive that the trial court "would have been both lacking in dignity and recreant to its duty if it had not visited summary punishment upon" the offenders. Buddress, 63 Wash. at 30, 114 P. 879. 6
Washington's approach to summary contempt is consistent with federal practice. Summary contempt is appropriate where the offending behavior disrupts court proceedings and requires immediate judicial action to preserve order and protect the institution of the court. See Pounders v. Watson, 521...
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