Oliveto v. Circuit Court for Crawford County

EICH, C.J.1

Roseann Oliveto, an assistant state public defender, was summarily found in contempt of court when, immediately following the sentencing of her client, she was heard to remark, "Ridiculous."

She argues on appeal that: (1) her remark was not a contemptuous act; (2) her statement cannot form the basis for contempt because it was a "privileged communication" to her client which was not intended to be heard by the court; and (3) she was denied her right of allocution. We resolve all questions against Oliveto and affirm the judgment.

Oliveto was representing Paul Kruse, the defendant in a bail jumping case. Kruse had been convicted and was in court for sentencing. Immediately after the trial court imposed sentence and denied Oliveto's request for a stay pending appeal, the following occurred:

MS. OLIVETO: So he is to start his sentence today?
THE COURT: That's right.
*329(A discussion was held off the record.)
THE COURT: Did I hear you say ridiculous, Attorney Oliveto?
MS. OLIVETO: Yes, I did, Your Honor.
THE COURT: It seems to me that — make the record reflect that the attorney for the Defendant, in open court to her client, indicated that she thought the Court's sentence was ridiculous.
MS. OLIVETO: That's not exactly what I said, Your Honor. I didn't say that entire thing.
THE COURT: Well, exactly what did you say then?
MS. OLIVETO: I just said "ridiculous." That's the only word I said, Your Honor.
THE COURT: Well, it certainly indicated to the Court contempt for the Court's sentence, and the Court will find that the defense counsel is in contempt of court and fine her $250. Pay that immediately.
MS. OLIVETO: Can I be allowed to go outside to get my—
THE COURT: You can go pay it right now at the clerk of court's office.
MS. OLIVETO: My purse is in my car.
THE COURT: Go . . . and bring it in and pay it. Twenty years of practicing law and being on the bench I have never heard a defense attorney sit around and call the Court's sentence ridiculous in the courtroom.
The Court thought the Court was being somewhat generous in view of the recommendations from the Probation Department. It was a three-year sentence with one year in jail, and in view of [the *330defendant's] past behavior, irresponsible behavior and conduct and the presentence report's negative factors all taken in part, the Court felt that a compromise between what the prosecution was asking for and what the defense was asking for was a reasonable sentence, and certainly finds that that comment of the defense attorney was unreasonable, unprofessional and contemptuous of the Court and will report this to the State Bar [Board] of Professional Responsibility. Prepare a transcript and send it.

Several weeks later, the trial court entered written findings of fact including, among other things, the following:

2. Immediately at the conclusion of the sentencing process and while court was in session defendant's attorney, Rose Oliveto, turned her head to her left towards the defendant and in an aside to him angrily denounced the court's decision as ridiculous.
3. Attorney Rose Oliveto was in the actual presence of the court at all times when her visible actions and audible statement occurred inside the ... Courtroom.
4. Court was in session.
5. The officers of the court were present.
6. The court officers present were assembled and sitting in front of the rail. They were: District Attorney Timothy Baxter sitting at counsel table; Attorney Rose Oliveto . . . sitting at counsel table with her client, Paul Kruse; Court Reporter, Kathleen White sitting at her reporting position; and the Clerk, Marilyn Seymour sitting at the Clerk of Court's table.
*3317. That other attorneys, parties, criminal defendants and spectators were seated in the gallery behind the rail awaiting hearings on several other cases.
8. Attorney Oliveto's actions, demeanor and statement were visible, perceptible and audible in the courtroom.
9. Attorney Oliveto's actions, demeanor and statement were seen, perceived and heard by Judge George S. Curry.
10. Attorney Oliveto's actions, demeanor and statement were clearly and unequivocally intended to lower the defendant's respect for the court's judgment given at sentencing.
11. When [A]ttomey Oliveto looked up after making her statement to the defendant... Judge Curry then immediately conducted a summary contempt proceeding.
12. Attorney Oliveto was afforded the opportunity to explain her actions, demeanor, statement and conduct.
13. Attorney Oliveto verified the essence of her statement but her allocution did not offer any explanation or apology to the court for her actions, demeanor, statement or conduct, nor did she attempt to mitigate them, nor did she indicate any remorse.
14. None of Attorney Oliveto's actions, statement or conduct took place in private. They were all in the actual presence of the court. They were all contemptuous of this court.
15. Attorney . . . Oliveto's actions, demeanor and statement clearly indicated contempt for the court's sentencing decisions and were precisely targeted to the defendant to diminish his appreciation and *332respect for the court's sentencing of him on the felony conviction.
16. This was defendant Paxil Kruse's fourth felony conviction and therefore it was of paramount and compelling importance that respect for the court be held in high regard by him.
17. Attorney Oliveto's actions, statement and conduct interfered with the administration of justice and impaired respect due the court.

Based on those findings, the court concluded that Oliveto's actions constituted contempt of court and entered judgment ordering her to pay $250. The judgment noted that she had paid the fine on the date of the incident.

J. The Contempt

Section 785.01, Stats., defines "contempt of court" as "intentional. .. [mjisconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs the respect due the court. . . ." The statute contemplates two types of sanctions for contempt: remedial and punitive. Section 785.01(2) and (3). There is no question that the trial court's judgment in this case was punitive — "a sanction imposed to punish a past contempt of court for the purpose of upholding the authority of the court." Section 785.01(2); see also Lemmons v. Racine County Circuit Court, 148 Wis. 2d 740, 746, 437 N.W.2d 224, 226-27 (Ct. App. 1989).

A punitive sanction for contempt may be imposed in either a summary proceeding under § 785.03(2), STATS., or in a nonsummary proceeding under § 785.03(l)(b). The nonsummary procedure contemplates issuance of a formal complaint by the district *333attorney, the attorney general or a special prosecutor, and it proceeds under the normal procedural rules applicable to criminal cases. Section 785.03(2), under which Judge Curry proceeded in this case, provides as follows:

The judge presiding in an action or proceeding may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court.

Whether a defendant's act constitutes a contempt of court is a question committed to the discretion of the trial court. Currie v. Schwalbach, 132 Wis. 2d 29, 36, 390 N.W.2d 575, 578 (Ct. App. 1986), aff'd, 139 Wis. 2d 544, 407 N.W.2d 862 (1987). This is so because the question "is one which the trial court has far better opportunity to determine than a reviewing court." Id. Thus, even though the remedy — the finding of contempt and the sanction imposed — may be "harsh," we will not reverse the trial court's determination "except in a plain instance of mistake or abuse of discretion." Id. And in reviewing such a determination, we defer to the trial court's findings of fact, which will not be overturned unless they are "clearly erroneous." Id.

With respect to the summary contempt procedure, Oliveto correctly points out that, because of the extraordinary nature of the power — it permits the "imposition of punitive sanctions without the procedural safeguards normally accorded in criminal prosecutions" — it is "properly used only under a limited *334set of circumstances." Gower v. Circuit Court, 154 Wis. 2d 1, 10, 452 N.W.2d 354, 357 (1990). Thus, under the summary-procedure provisions of § 785.03(2), STATS., the contumacious act must have been committed in the "actual presence" of the court and the sanction must be imposed for the purpose of "preserving order in the court" and "protecting the authority and dignity of the court." See also Currie v. Schwalbach, 139 Wis. 2d 544, 552, 407 N.W.2d 862, 866 (1987).2 It is, however, "universally recognized that a court must be able to deal summarily with contempts committed in the actual presence of the court." Gower, 154 Wis. 2d at 10, 452 N.W.2d at 357 (quoting Judicial Council Committee Note, 1979, § 785.03(2), WlS. STAT. Ann.).

Oliveto argues that her act was not committed in the "actual presence of the court." She cites a footnote in the supreme court's Currie opinion indicating that the intent of the "actual presence" language in § 785.03(2), STATS., is that "the contempt need only be committed in the courtroom while court proceedings are taking place." Currie, 139 Wis. 2d at 553 n.4, 407 N.W.2d at 866 (emphasis added). And she contends that, because the transcript reveals only that Judge Curry and the court reporter were present in the courtroom, "there was no court proceeding taking place at the time of the alleged contemptuous act."

The argument is based on two premises: (1) that the proceedings ended the instant Judge Curry pronounced that the motion for bail pending appeal was denied; and (2) that Judge Curry's subsequent written findings, noting various facts surrounding the incident *335including that others were present in the courtroom at the time,3 must be disregarded. We reject both assumptions.

First, if anything that might occur in court in the seconds following a ruling from the bench — even acts far more egregious than those occurring here — must, as a matter of law, be deemed beyond the court's authority to sanction or correct in the exercise of its contempt powers,. those powers would be hollow indeed. We decline to so diminish the contempt statutes.

Second, we are not persuaded by Oliveto's argument that we must ignore Judge Curry's written findings of fact. She cites State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748, 758 (1987), for the proposition that "any conflicts between the transcript of proceedings and a written document, especially one created months after an event, are decided in favor of the matters recited or not recited in the transcript."

But Perry states no such rule. Perry was a criminal case where the transcript of the trial court's sentence differed from the written judgment of conviction, and the portion of the opinion cited to us by Oliveto holds simply that "where a conflict exists between a court's oral pronouncement of sentence and a written judgment, the oral pronouncement controls." Perry, 136 Wis. 2d at 114, 401 N.W.2d at 758. There was no question in Perry concerning the efficacy of a trial court's written findings of fact made after the occurrence of an event. And we note that a trial court's findings often recite matters occurring in court that perforce would *336not be shown in a written transcript, matters such as the demeanor of witnesses, or the reaction of jurors to a remark or event occurring in the courtroom.4

We noted above that summary contempt procedures are unique in that they depart from conventional constitutional protections and procedures in order to protect and preserve order and the authority and dignity of the court. See Lemmons, 148 Wis. 2d at 746-47, 437 N.W.2d at 227. And we said in Lemmons that the law tolerates such a departure "only because of its confidence in the fairness and ability of the presiding judge to accurately and fairly recount what has just occurred." Id. at 747, 437 N.W.2d at 227. Because of that confidence, the standard fact-finding procedure is abandoned and further hearings are considered unnecessary in light of the fact that "the trial court has personally observed the offense and is acting on those observations." Id. The fact that Judge Curry's findings were formally entered several weeks after the event does not undermine our confidence in his ability to fairly and accurately report it.

Oliveto also argues that the finding of contempt was improper because she had not been given notice *337that Judge Curry was considering such a finding. She cites In re Pilsbury, 866 F.2d 22, 27 (2d Cir. 1989), as supporting her argument that "[w]here a reasonable person would not know that the court considered his [or her] conduct contemptuous, warning is required before a summary contempt conviction may be made, and some opportunity to be heard must be provided unless inconsistent with the preservation of order."

She cites no Wisconsin case on the point, and even if we were to consider Pilsbury as stating the rule to be followed in this state, we agree with the attorney general that a reasonable person in Oliveto's position would have known, given the exchange with Judge Curry following the remark, that contempt was a distinct possibility. After asking, "Did I hear you say ridiculous, Attorney Oliveto?" and she responded in the affirmative, the court stated: "[M]ake the record reflect that the attorney for the Defendant, in open court to her client, indicated that she thought the Court's sentence was ridiculous." Given that exchange and the ensuing colloquy, Oliveto has not persuaded us that she could not reasonably be expected to have anticipated the possibility that a finding of contempt was in the offing.

Finally, Oliveto suggests that a summary finding of contempt was improper because the circumstances were not such that summary action was necessary for the preservation of order or the protection of authority and dignity of the court. She offers a lengthy quotation from In re Little, 404 U.S. 553 (1972), as dispositive of the issue. Again, we disagree. Little was a case where a defendant, appearing pro se, stated in his closing argument that the court was biased and that he was a "political prisoner." Id. at 554. The court summarily *338held him in contempt, finding that "[the defendant's] remarks were very disrespectful and tended to subvert and prevent justice." Id. The United States Supreme Court reversed, stating at one point in its per curiam opinion that the defendant's remarks did not "actually disrupt! ] the court proceeding" or constitute an "imminent threat" to the administration of justice. Id. at 555. And the Court noted that, because " ']j]udges are supposed to be men [or women] of fortitude, able to thrive in a hardy climate,'" id. (quoting Craig v. Harney, 331 U.S. 367, 376 (1947)), they should be " 'on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.' "Id: (quoting Brown v. United States, 356 U.S. 148, 153 (1958)). While the points made by the Court in Little are worth noting, we agree with the State that the case offers little guidance for disposition of the case before us.

We have recognized that there must be a "compelling reason" for a summary finding of contempt that is "related to 'vindication of the court's dignity and authority,'" State v. Van Laarhoven, 90 Wis. 2d 67, 70-71, 279 N.W.2d 488, 489 (Ct. App. 1979) (quoting Harris v. United States, 382 U.S. 162, 164 (1965)), and we believe Judge Curry's findings state a compelling reason for his action.

The incident for which Oliveto was found in contempt occurred immediately after the court had imposed its sentence on her client and denied Oliveto's request for a stay. As Judge Curry noted in his findings of fact, Oliveto's remark was audible to several people then present in the courtroom. Most importantly, however, Judge Curry specifically found that "Attorney Oliveto's actions, demeanor and statement were clearly and unequivocally intended to lower the defendant's respect for the court's judgment given at sentencing" in *339a proceeding in which, due to the defendant's past conduct and lengthy criminal record, the judge believed "it was of paramount and compelling importance that respect for the court be held in high regard" by the defendant.

Thus, in Judge Curry's view, the ability to instill in Oliveto's client a healthy respect for the court and its judgment was of "paramount and compelling importance" to the integrity of the proceeding itself and thus the proper administration of justice in the case. And he found that Oliveto's remark, made in open court at the time sentence was passed, was intended to dispel any such respect on the defendant's part. In Judge Curry's words, it was "precisely targeted to the defendant to diminish his appreciation and respect for the court's sentencie]-"

Where contempt is committed in open court, though occurring upon completion of the judicial act, and has the effect of frustrating an essential purpose of the proceeding, we believe a trial judge may properly determine that a summary finding of contempt is necessary to "protect!] the authority and dignity of the court" within the meaning of § 785.03(2), STATS. And where, as here, the judge has indicated that the "paramount and compelling" purpose of the proceeding was frustrated by the contemptuous act, we believe it also may be said that the outburst sufficiently impinged upon the court's ability to discharge its duties — and thus to "preserve order" in the proceeding — to warrant the use of summary contempt procedures under the statute. While not uniformly framed in the . "magic-word" language of the statute, Judge Curry's findings indicate that he had so determined in this case,5 and *340Oliveto has not satisfied us that those findings are clearly erroneous.6

We noted above that we will not reverse a trial court's determination of contempt absent "a plain . . . abuse of discretion." Currie, 132 Wis. 2d at 36, 390 N.W.2d at 578. The limited scope of our review of discretionary rulings is well settled.

Generally, "[w]e will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision." Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987). Indeed, "[bJecause the exercise of discretion is so essential to the trial court’s functioning, we generally look for reasons to sustain discretionary determinations." Schneller v. St. Mary's Hosp., 155 Wis. 2d 365, 374, 455 N.W.2d *341250, 254 (Ct. App. 1990), aff'd, 162 Wis. 2d 296, 470 N.W.2d 873 (1991).
To determine whether the trial court properly exercised its discretion in a particular matter, we look first to the court's on-the-record explanation of the reasons underlying its decision. And if that explanation indicates that the court looked to and "considered the facts of the case and reasoned its way to a conclusion that is (a) one a reasonable judge could reach and (b) consistent with applicable law, we will affirm the decision even if it is not one with which we ourselves would agree." Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991).

Steinbach v. Gustafson, 177 Wis. 2d 178, 185-86, 502 N.W.2d 156, 159 (Ct. App. 1993).

While we ourselves might not have proceeded in the same manner as Judge Curry under similar circumstances, we cannot say that he either misapplied the law or erroneously exercised his discretion under these standards when he invoked the summary-procedure provisions of § 785.03(2), STATS., to sanction Oliveto's conduct.

II. "Privileged Communication"

Oliveto argues that her remark was directed to her client and that it was thus a "privileged communication" which cannot form the basis of a contempt citation. To the extent she bases her argument on the attorney-client privilege set forth in § 905.03, STATS., it is unavailing because, under that statute, the privilege may be claimed "only on behalf of the client," and that is not the case here. And to the extent the argument is premised on general considerations of privacy in corn-*342munications between a lawyer and his or her client, we find it difficult to sustain such a contention in a situation where the comment was audible to others present in the courtroom.

Oliveto disagrees with this conclusion. Citing Parmelee Transp. Co. v. Keeshin, 292 F.2d 806 (7th Cir. 1961), which she asserts "is close to the facts of this case," she argues that, because her remark was not intended to be heard by the court, she cannot be held in contempt for making it. In Parmelee, a lawyer was alleged to have stated to cocounsel following an eviden-tiary ruling by the trial court: "That is crazy." Id. at 807. Because there was no indication in the record that the trial judge had even heard the remark, the Seventh Circuit Court of Appeals, inferred that the comment was not intended to be heard by the court and ruled that the contempt had not been proved. Id. at 807, 810. There is no question in this case that Judge Curry — and others present in the courtroom — not only heard Oliveto's remark but took immediate on-the-record notice of the incident, as the transcript plainly indicates.7

*343Oliveto has not persuaded us that the contempt citation must fail because her remark was directed to her client or because of her assertion that it was not intended to be heard by anyone else — an assertion we note she never made in responding to the court's questions after the incident had occurred.

III. Denial of the Right to Allocution

This court held in Currie that, because of the very nature of summary contempt proceedings, the defendant should have a right of allocution: "[A] limited, but meaningful, opportunity ... to offer an explanation or justification in mitigation .of the offense." Currie, 132 Wis. 2d at 49, 390 N.W.2d at 583. We said that "[i]t remains within the discretion of the trial court as to the duration and the extent of the hearing," and that "[t]his will vary from case to case depending upon the circumstances ...." Id.

Oliveto asserts that she "was allowed to say nothing in mitigation" of the matter and she characterizes the court's questions to her as asking her "to speak to guilt itself. . . ." She argues that, because she did not know she might be facing a contempt citation, she had no reason to "express contrition, remorse, or any other attitude . . . pertinent to punishment," and she claims that she was thus effectively denied the right to allocution.

We have rejected Oliveto's earlier argument that we should reverse because she could not reasonably have known that she was facing possible contempt and was not so warned by the court beforehand. She was aware from Judge Curry's remarks that he heard the remark and considered it to be made in derogation of a *344judicial act, yet she offered no comment other than to acknowledge that she in fact had made it.

Nor do we believe that Oliveto was otherwise denied the right to allocution. Upon hearing the remark, Judge Currie asked Oliveto whether he had heard her remark correctly, and she said he had. The judge then asked that the remark be memorialized on the record, and when Oliveto responded, correcting the judge's interpretation, he asked, "Well, exactly what did you say then?" Oliveto simply acknowledged that she had said "ridiculous," and that "[t]hat's the only word I said, Your Honor."

We believe the trial court afforded Oliveto the minimal opportunity to speak in mitigation of the contempt within the meaning of this court's Currie decision.

By the Court. — Judgment affirmed.

The case was assigned to the writer on May 12, 1994, pursuant to the court's internal operating procedure, which provides in part: "In the event the opinion is assigned to a judge representing the minority view, the opinion will be reassigned by lot to a member of the majority." WlS. Ct. App. IOP VI(4)(i) (July 15,1991).

In addition, the sanction must be imposed immediately after the contempt. Section 785.03(2), STATS. There is no question that Judge Curry imposed the sanction on Oliveto immediately after the occurrence.

We note in this regard that the transcript itself shows that, at the very least, the judge, the reporter, the district attorney, Oliveto and her client were present.

Indeed, in an earlier, unrelated section of the Perry opinion, the supreme court discussed at length the procedures to be followed where portions of a trial transcript are missing and the question arises whether there is a sufficient record for appeal. If, in such a situation, reconstruction of the record from reporters' notes or other sources is impossible and the parties cannot agree on a statement of facts, the trial court may, "based on its own recollection [and] trial notes," or on consultation with counsel, affidavits, or recall of witnesses, " 'settle and approve' the state of the record" for the appeal. State v. Perry, 136 Wis. 2d 92, 102, 401 N.W.2d 748, 752 (1987) (emphasis added).

In this court's opinion in Currie v. Schwalbach, 132 Wis. 2d 29, 38, 390 N.W.2d 575, 578-79 (Ct. App. 1986), we noted *340that, even where the trial judge "did [not] expressly find that [the contemnor's] conduct interfered with a court proceeding or with the administration of justice," it was "readily apparent from the record of the proceedings and from the findings and conclusion that the trial court did make," that that was the result of the conduct. "The trial court's description of the conduct and its effect upon the proceedings, coupled with the conclusion that the conduct constituted a contempt of court, satisfies all the elements of a contempt_" Id.

In Kaminsky v. Milwaukee Acceptance Corp., 39 Wis. 2d 741, 746-47, 159 N.W.2d 643, 646-47 (1968), the supreme court held that the standard of review of a trial court's findings in a contempt proceeding is whether the findings are contrary to the great weight and clear preponderance of the evidence; that is, whether they are clearly erroneous. See Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575, 577 (Ct. App. 1983) ("clearly erroneous" test and "great weight" test are "essentially the same").

The suggestion in Oliveto's brief that the only way Judge Curry could have heard her remark was either through inadvertence or "eavesdropping on protected attorney-client communications" (emphasis added) adds nothing to her argument. The same may be said, we think, for her characterization of Judge Curry's action as "Kafkajesque]," her assertion that the judge was simply using the contempt proceedings as "a club ... on [her] client," her admonition that we "should swiftly put an end to [Judge Curry's] invitation to join in a trip to Wonderland," or her statement that the court's instruction to consider her act as contempt was "the Judge[’s]... little secret."