Weaver v. Superior Court, Third Judicial Dist.

• Citation: 572 P.2d 425
• Decision Date: 16 December 1977
• Docket Number: No. 2873,2873
• Parties: Mark A. WEAVER, Appellant, v. The SUPERIOR COURT OF the State of Alaska, THIRD JUDICIAL DISTRICT, Appellee.
• Court: Supreme Court of Alaska (US)

Page 425

572 P.2d 425

Mark A. WEAVER, Appellant, v. The SUPERIOR COURT OF the State of Alaska, THIRD JUDICIAL

DISTRICT, Appellee.

No. 2873.

Supreme Court of Alaska.

Dec. 16, 1977.

Barbara J. Miracle and John M. Murtagh, Asst. Public Defenders, Brian Shortell, Public Defender, Anchorage, for appellant.

Warren G. Kellicut, Peterson, Melaney & Kellicut, Anchorage, for appellee.

Before BOOCHEVER, Chief Justice, RABINOWITZ, CONNOR and BURKE, Justices, and DIMOND, Justice Pro Tem.

OPINION

BURKE, Justice.

In this appeal, attorney Mark Weaver challenges a contempt citation and fine imposed upon him by Superior Court Judge C. J. Occhipinti. Weaver, an assistant public defender, was assigned in October, 1975, to represent Jean Fox, ¹ who had been indicted for the crime of shooting with intent to kill, wound, or maim. On the morning of December 16, 1975, the day scheduled for trial in the Fox matter, a panel of prospective jurors was assembled and counsel for both sides began their voir dire examination.

Judge Occhipinti allowed counsel somewhat over two hours in which to complete their individual questioning of the prospective jurors. After that period of time had elapsed, he took over the questioning requiring the attorneys thereafter to submit any proposed questions to him. ² Weaver objected to the judge's curtailment of the attorneys' individual questioning of the prospective jurors and further argued that he needed additional time to prepare questions for submission to the trial court. The court overruled Weaver's objections and resumed its questioning of prospective jurors.

After Judge Occhipinti finished questioning one member of the jury panel, he allowed Weaver to follow up with some questions of his own. When the judge cut off that line of questioning, appellant again objected to the sufficiency of the voir dire examination. Weaver then moved for a mistrial on the grounds that the trial court had given the jury the impression that Weaver was trying to delay the proceedings and that the voir dire questioning was not probative. Judge Occhipinti granted the motion for mistrial and then imposed a $100 fine on appellant for contemptuous conduct. ³ The trial court further suspended Weaver from practice before any trial court in the Third Judicial District until the fine had been paid or an appeal perfected. Weaver challenges the trial court's imposition of contempt sanctions and contends that the superior court exceeded its authority in suspending him from practice before the trial courts.

I. THE TRIAL COURT'S FAILURE TO MAKE FINDINGS OF FACT

Appellant first contends that the trial court's failure to recite the facts which formed the basis of the contempt citation constitutes reversible error. Rule 90(a), Alaska Rules of Civil Procedure, requires the trial court to make findings of fact in cases where a direct contempt, committed in the presence of the court, is punished summarily. Rule 90(a) provides:

Contempt in Presence of Court. A contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record. (emphasis added).

The appellee trial court admits that no specific findings of fact were made but argues that the Rule 90(a) requirement should not be mandatory where the record clearly discloses the facts and reflects the conduct of the parties. Acknowledging that the purpose of a requirement of findings of fact is to provide a basis for appellate review, the trial court contends that the record sufficiently establishes the factual background of the contempt for the purposes of this court. However, it is unclear from the transcript which of appellant's remarks were considered contemptuous, and neither the judge's remarks at the time the citation was given ⁴ nor the contempt order itself ⁵ gives a clue as to the basis of the citation.

The trial court also relies on this court's decision in Taylor v. District Court for the Fourth Jud. Dist., 434 P.2d 679 (Alaska 1967), to support its contention that failure to comply with Rule 90 requirements should not warrant reversal of the contempt. In Taylor, the trial court failed to file an affidavit in accordance with Rule 90(b). ⁶ We held that defect not to be fatal, since the purpose of the affidavit requirement was to give notice and that purpose had already been fulfilled by the court's order to show cause. The purpose of Rule 90(a)'s requirement that the judge recite the facts upon which the contempt citation is based is to aid this court's review of the record, as well as apprise the contemnor of the conduct for which he is being sanctioned. Neither of these purposes has been fulfilled, and thus our reasoning in Taylor is inapplicable to the instant case. The trial court's failure to make findings of fact, therefore, requires reversal of the contempt sanction imposed by Judge Occhipinti or a remand for the purpose of entering such findings.

II. DUE PROCESS

Appellant also contends that the trial court deprived him of his right to due process, basing this argument on four separate grounds. Before we can consider appellant's due process claims, however, we must first decide whether the proceedings in this case were criminal or civil in nature, since in the case of a criminal contempt, the contemnor is "entitled to all procedural safeguards which are consistent with the interests of the court in upholding its efficiency, dignity and authority." Continental Insurance Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 405 (Alaska 1976). Despite the trial court's argument to the contrary, the contempt sanction imposed on appellant was clearly criminal in nature, since the $100 fine was imposed for past actions, was not conditioned on any further action by appellant and could not be avoided by any subsequent action on Weaver's part. Id. Although the trial court's suspension of appellant from practice was conditioned on payment of his fine or perfection of an appeal, that suspension appears not to have itself been a sanction for the direct contempt, but rather a method of enforcing quick payment of the $100 fine which was the sanction. Since the fine was not "coercive" or "remedial," this contempt must be classified as criminal, its sole purpose appearing to have been to uphold the dignity and authority of the court. Id. Since the contempt was criminal, appellant was entitled to certain procedural safeguards.

a. Right to Warning

Appellant first claims that the trial court's failure to give him a warning before finding him in contempt was violative of his right to due process. The trial court concedes that no specific warning was issued but argues that such a warning is not necessary. In Continental Insurance Cos. v. Bayless & Roberts, Inc., supra, we stated that "in most cases the court may be required to at least provide a warning before it can properly hold a person in contempt." (citations omitted). 548 P.2d at 402 n. 6. We cited in support of this proposition People v. Ellis, 540 P.2d 1082 (Colo.1974), in which the court partially based its reversal of a contempt on the trial court's failure to give any warning. The Ellis court looked to the language of Justice Powell's concurring opinion in Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974), in which he stated:

I place a high premium on the importance of maintaining civility and good order in the courtroom. But before there is resort to the summary remedy of criminal contempt, the court at least owes the party concerned some sort of notice or warning.

415 U.S. at 700, 94 S.Ct. at 1231.

Appellee argues that the Ellis and Eaton cases are distinguishable from the case before us now, since they both condemn the trial court's failure to issue warnings to non-attorneys, who might not otherwise know that their conduct could constitute a contempt. The ABA Standards Relating to the Function of the Trial Judge, § 7.2, lend support to the trial court's position that a warning may not be necessary if the contemnor knew or should have known that his conduct was contemptuous.

§ 7.2 Admonition and Warning

No sanction other than censure should be imposed by the trial judge unless:

(i) it is clear from the identity of the offender and the character of his acts that disruptive conduct was willfully contemptuous, or

(ii) the conduct warranting the sanction was preceded by a clear warning that the conduct is impermissible and that specified sanctions may be imposed for its repetition.

However, the commentary to this standard does not suggest that warnings need be issued only to laymen; it reasons that a warning is desirable before punishing all but "flagrant" contempts, since (1) it may prevent further disorder; (2) it assures the court that the subsequent conduct will be willfully contemptuous and deserving of punishment; and (3) it reduces the risk that attorneys will be deterred by fear of punishment from exercising zealous advocacy. In this case the conduct of appellant was certainly not flagrantly contemptuous, and thus he was entitled to a warning that his behavior could constitute the basis for imposition of contempt sanctions. Such a procedural safeguard is particularly necessary in a case such as this one, in which an attorney's conduct may tread the borderline between zealous advocacy and contempt.

b. Notice and Hearing

Appellant next contends that he should have been afforded notice and a formal hearing in which he would have the opportunity to refute the trial court's allegations of contempt. We have previously held that such notice and hearing may not be necessary in cases where the contempt was a direct one, committed in the presence of the court. ⁷

Thus it may not be necessary to furnish any notice for a direct contempt committed in the presence of the court, but a notice and...