State v. Gundlah ex rel. Smallheer

• Decision Date: 02 April 1993
• Docket Number: No. 92-409,92-409
• Citation: 624 A.2d 368,160 Vt. 193
• Parties: , 21 Media L. Rep. 1349 STATE of Vermont v. Charles GUNDLAH, ex rel. Susan SMALLHEER.
• Court: Vermont Supreme Court

Page 368

624 A.2d 368

160 Vt. 193, 21 Media L. Rep. 1349

STATE of Vermont v. Charles GUNDLAH, ex rel. Susan SMALLHEER.

No. 92-409.

Supreme Court of Vermont.

April 2, 1993.

Gary Kessler, Supervising Appellate Prosecutor, Montpelier, for plaintiff-appellee.

Richard V. Aborjaily and John W. Vorder Bruegge, Law Clerk (on the brief), Norwich, for defendant-appellee.

Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington, for appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Appellant Susan Smallheer appeals a contempt order that did not recognize her asserted newsgatherer's qualified testimonial privilege. Because defendant Charles Gundlah subsequently pled nolo contendere, appellant's testimony will no longer be needed at the trial and her appeal regarding the newsgatherer's privilege is moot. We therefore dismiss her appeal of the contempt order; however, we reverse on attorneys' fees and prospective coercive contempt sanctions.

This appeal arises out of the criminal prosecution of Charles Gundlah for an alleged escape from the Woodstock Correctional Center on April 8, 1991. Appellant is a reporter who interviewed defendant by telephone and published the results of the interviews in articles appearing in the May 1, 1992 and May 30, 1992 issues of the Rutland Herald. The May 1 article contains an alleged confession to the escape by Mr. Gundlah.

The State placed appellant on its witness list and, in response, defendant subpoenaed her to a deposition. Appellant appeared at the deposition but, claiming a newsreporter's privilege, refused to answer questions and filed a motion to quash the subpoena. The trial court denied her motion to quash and granted both the State's and defendant's motions to compel. After appellant continued to refuse to answer questions regarding her interview with defendant, the trial court found her in contempt of court and ordered the payment of $3,985.05 as compensatory damages to the State and defendant's attorney, with additional prospective fines of $1,000 for the first day and $2,000 per additional day of continued disregard for the court's motion to compel.

Appellant raises three issues on appeal. First, she claims that the trial court failed to recognize a newsgatherer's qualified First Amendment testimonial privilege. Her second claim is that the Vermont Constitution provides more protection to the press than the First Amendment and protects a newsgatherer's qualified testimonial privilege. Finally, appellant argues that the trial court abused its discretion by ordering attorneys' fees and prospective sanctions in its contempt order.

Appellant's first two arguments are moot. On March 10, 1993 defendant pled nolo contendere to the charge of escape. Because there will be no trial, appellant's testimony is no longer sought. A case becomes moot when the issues are no longer "live." Doria v. University of Vermont, 156 Vt. 114, 117, 589 A.2d 317, 319 (1991). Moreover, the mootness doctrine requires that there be an actual controversy in existence at all stages of review. Id. Although mootness generally precludes appellate review, we recognize an exception to the doctrine in cases that are capable of repetition but evade review. Id. at 118, 589 A.2d at 319. In cases that are not class actions, this exception is narrowly limited to situations where two elements are present: (1) the duration of the challenged action was too short to be fully litigated prior to its expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. In re S.H., 141 Vt. 278, 281, 448 A.2d 148, 149 (1982). A repetition of the fact pattern presented seems highly unlikely and certainly does not rise to a reasonable expectation. The issue is moot and is dismissed.

Appellant also claims that the trial court erred by imposing compensatory fines in the form of attorneys' fees and prospective contempt sanctions. We agree.

Judgments of contempt lie squarely within the trial court's discretionary powers and will not be disturbed on appeal unless "the court's discretion was 'entirely withheld or was exercised on grounds clearly untenable.' " Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, ----, 617 A.2d 411, 414 (1992) (quoting Persons v. Lehoe, 150 Vt. 582, 585-86, 554 A.2d 681, 683 (1988)). Although attorneys' fees are "ordinarily awarded in contempt actions as part of the compensation due complainants for [the] actions [of the party in contempt]," id. at ----, 617 A.2d at 416 (citations omitted), Vermont continues to follow the "American Rule," which requires that each side bear its own attorney's fees. Departure from the American Rule is warranted only in ca...