State v. Martina, 90-382

• Decision Date: 06 December 1991
• Docket Number: No. 90-382,90-382
• Citation: 135 N.H. 111,600 A.2d 132
• Parties: The STATE of New Hampshire v. Vincent C. MARTINA.
• Court: New Hampshire Supreme Court

Page 132

600 A.2d 132

135 N.H. 111

The STATE of New Hampshire v. Vincent C. MARTINA.

No. 90-382.

Supreme Court of New Hampshire.

Dec. 6, 1991.

John P. Arnold, Atty. Gen. (Peter G. Beeson, Asst. Atty. Gen., on the brief and orally), for the State.

Law Offices of Andrew P. McEvoy, Concord (Andrew P. McEvoy, on the brief and orally), for defendant.

Shaheen, Capiello, Stein & Gordon, Concord (Stephen M. Gordon, on the brief and orally), for the New Hampshire Bar Ass'n, as amicus curiae.

HORTON, Justice.

This case presents the primary question whether a district court judge possesses the authority to sanction misconduct which occurs in his presence through direct criminal contempt and also addresses a number of related procedural issues. For the reasons stated herein, we hold that a district court judge does have such authority, and vacate and remand so that a hearing may be held after the contemnor has received proper notice.

On August 16, 1990, the matter of State v. Theresa Sestito was scheduled for trial in the Pittsfield District Court. The contemnor, who was counsel for Ms. Sestito, did not appear that afternoon on behalf of his client, who had been charged with issuing a bad check, RSA 638:4. Upon learning that the parties hoped to resolve this matter by negotiated plea, an attempt was made to secure the contemnor's presence at trial. This effort was not successful. The District Court (Lind, J.) then appointed new counsel, and accepted a negotiated plea proposed by the parties. On that same day, the contemnor was instructed by telephone to appear in court on August 23, 1990, to explain his absence from the trial.

On August 23, 1990, the contemnor appeared as directed before Judge Lind, at which time a hearing was held. The court proceeded to question the contemnor regarding his non-appearance on August 16th. The contemnor stated that he had had "an agreement with [police prosecutor] Whitmarsh that my client could attend on her own, with my instructions on how to proceed." The court, apparently troubled that the contemnor had entered an appearance on his client's behalf, yet failed to appear, did not accept this explanation and continued to inquire. Following a short exchange, the contemnor stated that "[m]y reasons for not showing up were personal reasons. I am trying to make a living. This was a pro bono matter and I felt that my client was not unintelligent. She was fully informed. I simply entered an appearance to expedite it." Again, the court did not accept this explanation and questioned whether the contemnor's conduct was consistent with his professional obligation to provide competent and diligent representation. The contemnor informed the court that if the proposed plea had not been accepted, "[w]e, then, would have proceeded to a fair jurisdiction, a fair forum, where she would have been exonerated of this ridiculous charge." Shortly thereafter, the following exchange took place:

"Judge Lind: All right, I don't understand at all, your basis for not showing up, sir, and I'm going to refer this matter to the Professional Conduct Committee....

Mr. Martina: Thank you. I.....

Judge Lind: .... and whether there's going to be charges brought or not, I'll leave up to the County Attorney, sir.

Mr. Martina: Thank you, and I should advise the court I intend to bring you to the Judicial Conduct Committee. I think your actions before this Bench were quite frankly ignominious.

Judge Lind:

All right, sir, I find you in direct contempt of court. The sentence ... do you have anything to say before I impose a sentence, sir?

Mr. Martina: I have nothing more to say to this Court.

Judge Lind:

All right, do you understand that you're being found in direct criminal contempt of this Court, sir?

Mr. Martina: Whatever you say.

Judge Lind:

All right, the punishment sir, is a fine of five hundred dollars and fifteen days in the House of Correction, stand committed. Bailiff, he's in your custody."

The court issued a written order that same day which further noted that the contemnor was "belligerent, caustic, and contentious from the outset" and that "the Court had to ask Mr. Martina to stand when he was addressing the Court." The court further stated that the contemnor's "demeanor, such as his facial expressions, his posturing and the tone of his voice, was openly disrespectful and contumacious," and that his conduct was a "a conscious and deliberate attempt to intimidate and deride the court in the presence of the parties and witnesses waiting for their scheduled trials."

On August 24th, the contemnor filed a motion to reconsider, an alternative motion for ex parte temporary stay, and a request for immediate hearing and for other further relief, in the Pittsfield District Court. On that same day, the contemnor filed a petition for writ of habeas corpus with this Court. We stayed the commitment order, the contemnor having already served one day of incarceration, and set an August 31, 1990 deadline for preparation of the transcript of the hearing.

On September 6, 1990, we denied the pending petition for writ of habeas corpus, set a deadline for filing a notice of appeal, and continued the stay of the commitment order. On September 12th the contemnor filed a motion with the district court requesting a ruling on his previously filed motion for reconsideration, to which the State responded, through the office of the attorney general, on September 19th. Further pleadings were filed in this Court, seeking a remand, and on October 2, 1990, we remanded to the district court with instructions to rule upon the pending motion for reconsideration. That motion was denied on October 31st, and this appeal was then filed on November 30th. An amicus brief has been filed on the contemnor's behalf by the New Hampshire Bar Association ("the Bar").

The contemnor makes three arguments on appeal: (1) that the Pittsfield District Court did not have jurisdiction over his alleged misconduct; (2) that his rights to fundamental due process were violated; and (3) finally, that if the court did, in fact, have jurisdiction, and his due process rights were not violated, the record does not support a finding of direct criminal contempt. The Bar makes the same three arguments and also contends that the contempt hearing should have been held before a different judge and at a later date. The Bar also sets forth a multi-step process which it suggests this Court adopt to govern contempt proceedings.

The State responds to these arguments by contending, first, that a district court does have the authority to sanction misconduct which occurs in its presence through direct criminal contempt; second, that the contemnor's conduct did constitute criminal contempt; third, that the district court properly exercised its discretion in employing summary contempt; fourth, that the district court did not become so personally involved in the hearing as to warrant its disqualification from the case; and fifth, that this matter should be remanded so as to allow the initiation of contempt proceedings with proper notice to the contemnor.

We will first address the issue of jurisdiction, then review the procedure which was utilized by the district court, and finally, examine the merits of the finding of contempt. In so doing, we will address the various contentions raised by the parties.

The contemnor argues that the district court, and all courts for that matter, lack subject matter jurisdiction over criminal contempt in light of the enactment of RSA 625:6 (abrogating all common law crimes) and, in this case, lacked both personal and subject matter jurisdiction because there was no pending case or controversy. The contemnor also argues that the district court has no powers of criminal contempt because it is a court of limited jurisdiction relying on the legislature for its jurisdiction. See State v. Moquin, 105 N.H. 9, 12-14, 191 A.2d 541, 544-45 (1963) (Kenison, C.J., and Duncan, J., dissenting). The contemnor urges that we overrule our prior holding in Benton v. Dist. Ct., 111 N.H. 64, 65, 274 A.2d 876, 878 (1971), that the district court has the authority to sentence for contempt.

RSA 625:6 provides that "[n]o conduct or omission constitutes an offense unless it is a crime or violation under this code or another statute." The contemnor maintains that this language has abrogated the authority of the courts to utilize the power of criminal contempt. We have, however, long recognized and repeatedly reaffirmed the inherent criminal contempt authority vested in New Hampshire courts of all levels. See State v. Matthews, 37 N.H. 450, 453 (1859) (the authority to punish for contempt is inherent in all courts of law or equity independent of statutory provisions); State v. Towle, 42 N.H. 540, 544-45 (1861) (power of magistrate or justice of the peace to punish for contempt); Opinion of the Justices, 86 N.H. 597, 602, 166 A. 640, 646 (1933) (power of contempt is essential attribute of courts of general jurisdiction); Moquin, supra 105 N.H. at 10-11, 191 A.2d at 543-44 (municipal court); Benton, supra 111 N.H. at 65, 274 A.2d at 878 (authority of district court to sentence for contempt as extensive as that of municipal court); Kersevich v. Jaffrey Dist. Ct., 114 N.H. 790, 791, 330 A.2d 446, 447 (1974) (authority of district court to punish for contempt "is required to prevent acts or conduct which would obstruct or interfere with the orderly administration of justice"); Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 385 A.2d 851 (1978) (authority of superior court); State v. LaFrance, 124 N.H. 171, 179-80, 471 A.2d 340, 344-45 (1983) (it is necessary that the judiciary be permitted to control its own proceedings). "It is not a power granted by the legislature, but is a necessary incident to the exercise of judicial power inherent in the functioning of the court system." LaFrance, supra at 179, 471 A.2d at 344. It is the "duty and responsibility of courts...