State v. Wollen , 85 N.M. 764 ( 1973 )

OPINION

LOPEZ, Judge.

Counselor Wollen appeals from an order of contempt issued by the District Judge in Bernalillo County. He willfully disobeyed the order of District Judge Riordan, for which judgment was entered ordering him to pay a fine of $200 and be imprisoned for one day. ,

The events which gave rise to the contempt citation were as follows: A divorce decree between Robert William Gruber and Carol Lynn Gruber was entered February 9, 1972. The plaintiff-wife,, represented by Counselor Wollen, obtained an order amending the original decree. A hearing on December 20, 1972 on defendant-husband’s motion to vacate the amended decree gave rise to the events involved herein. Counselor Wollen attacked the jurisdiction and partiality of the court to hear the motion. After the rejection of his contentions by Judge Riordan, Wollen announced to the court his intention to leave the hearing. The court advised that if he left, he would be held in contempt, Wollen willfully ignored the warning and a judgment of contempt was entered 26 days later.

Wollen raises three points for reversal. In view of our disposition of this case, we need consider only one: that the court denied defendant due process of law by entering the judgment of contempt 26 days after the events involved without notice or hearing.

The disposition of the issue requires, at the outset, consideration of a number of principles of law on which the parties do not disagree. Conduct violating a court order in the presence of the court is a direct, criminal contempt. Such contempts can be punished summarily. “Summary” proceedings are not necessarily immediate. Rather, a summary proceeding is one in which the formal requisites of notice and hearing or trial are dispensed with. The justification for allowing such a procedure is set out by the court in State ex rel. Bliss v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957), as follows:

“. . . Summary measures may be the only effective means of defending the dignity of judicial tribunals and of insuring that they are able to accomplish the purpose of their existence. So there should be no feeling that courts may safely be trifled with. . . .”

The major issue presented by this appeal is whether the policy considerations allowing summary contempt are still compelling 26 days after the hearing. We think they are not. The court in United States v. Meyer, 149 U.S.App.D.C. 212, 462 F.2d 827 (1972), states:

“The other policy justification for summary disposition — the need to preserve order in the courtroom — is by definition inapplicable after the trial is over. . The normal constitutional presumption in favor of a due process hearing is therefore controlling. . . .”

In certain situations summary contempts have been upheld despite delay. We do not have such a case here, however-. For example, there could have been no prejudice to Wollen’s client by an immediate entry of the order. Cf. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). Nor can such a delay be justified by considerations allowing a “cooling off” period or giving the defendant time to apologize. The court may, in a proper case, allow a delay in the adjudication of contempt for any of the above reasons. However, once a delay as long as the one involved here has ensued, the reasons for dispensing with the constitutional requisites of notice and hearing are not compelling. See Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972); People v. Burt, 257 Ill.App. 60 (1930); In re Foote, 76 Cal. 543, 18 P. 678 (1888). Therefore, we vacate the judgment of contempt and remand the case to the trial court with instructions to hold a hearing which comports with the requirements set forth by Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925).

Appellant Wollen contends that Judge Riordan should not be allowed to preside at such a hearing. However, we do not think that the conduct of appellant, grave as it was, “personally embroiled” the judge to such an extent as to require his disqualification. The conduct of the appellant did not approach the level of intensity as that engaged in by the defendant in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Rather, we compare Wollen’s conduct to that of the defendant in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), where the Court stated:

“It is true that Ungar objected strongly to the orders of the court and to its conduct of the trial during his examination. His final outburst, the subject of the contempt, was a flat refusal to answer, when directed by the court, togethér with an intemperate and strongly worded comment on the propriety of the court’s ruling. But we are unwilling to bottom a constitutional rule of .disqualification solely upon such disobedience to court orders and criticism of its rulings during the course of a trial. . . .”

However, it should finally be noted that nothing in this opinion requires Judge Riordan to hear the case on remand. He may decide to follow the dictum of Justice Douglas in Mayberry v. Pennsylvania, supra, as follows: “. . . it is generally wise where the marks of the unseemly conduct have left personal stings to ask a fellow judge to take his place. . . .”

The order of contempt is vacated and the case is remanded for proceedings consistent herewith.

It is so ordered.

HERNANDEZ, J., concurs.