People v. Godfrey

White, P.J.

At the conclusion of a criminal trial in which he represented the defendant, attorney Henry M. Scharg was found in contempt pursuant to MCL 600.1711; MSA 27A.1711. Scharg was sentenced to fifteen days in jail and fined $250 pursuant to MCL 600.1715; MSA 27A.1715. He appeals as of right. We vacate the order of adjudication and sentence for contempt and remand for further proceedings.

In finding Scharg guilty of contempt, the court cited five incidents that occurred during the course of the trial and in the court’s presence, in which the court found Scharg to be disrespectful and disruptive. However, the contempt citation was deferred until the conclusion of the trial. After being informed that the court found his conduct contumacious, Scharg requested a hearing, which was denied. On appeal, Scharg argues that because the contempt order was deferred until the conclusion of the trial, he was entitled to a full hearing before a different judge. We agree.

Although summary punishment of contumacious behavior is proper when the behavior is committed in the court’s presence, and the court further determines that immediate corrective action is necessary, MCL 600.1711; MSA 27A.1711, summary punishment is regarded with disfavor when deferred until the conclusion of a trial. People v Kurz, 35 Mich App 643, 657; 192 NW2d 594 (1971). The contempt power is limited by necessity and extends only to the least possible power adequate to the end proposed. Id. at 656, citing Harris v United States, 382 US 162, 165; 86 S Ct 352; 15 L Ed 2d 240 (1965). Where the contumacious behavior does not require an immediate response, there is no need to sacrifice traditional procedural safeguards. Kurz at 656-657. Thus, it has been said that "in every case where a judge defers consideration of a contempt citation until after the conclusion of the trial the charges must be considered and heard before another judge.” Id. at 659.

Several cases have been cited as supporting a contrary conclusion. We have reviewed these cases and find that they do not compel a contrary result. While a court certainly acts appropriately when deferring the adjudication of an attorney’s contempt until the conclusion of the proceedings, inherent in that deferral is the conclusion that the contumacious behavior does not require an immediate response. Such a case presents a different factual situation than a case where the jury is excused and the attorney is immediately cited for contempt. We commend the court for concluding the proceedings without interruption in the face of what the court perceived to be contumacious behavior. However, the court having thus determined that the need to respond was not immediate, Scharg should have been afforded a full hearing before a different judge.

Kurz also cites Mayberry v Pennsylvania, 400 US 455; 91 S Ct 499; 27 L Ed 2d 532 (1971). In Mayberry, the judge had become embroiled in a running bitter controversy with the contemnor. It is argued in this case that a hearing before another judge is not necessary because there is no such controversy between Scharg and the judge. However, recognizing that "[i]t is not in the interest of the sound administration of justice to encourage persons charged with or convicted of criminal contempt to search the transcript of proceedings and attempt to demonstrate that the trial judge acted out of personal animosity, or became personally embroiled, or that his objectivity can reasonably be questioned,” Kurz at 659-660, Kurz requires a hearing before an independent judge in all deferred summary contempt citations, regardless of the actual objectivity of the court. Id. at 660.

The order of adjudication and sentence for contempt is vacated and the matter is remanded for a hearing before a different judge. We do not retain jurisdiction.

Neff, J., concurred.