(dissenting). The contempt power "is, perhaps, nearest akin to despotic power of any power existing under our form of government." State ex rel. Attorney Gen. v. Circuit Court for Eau Claire County, 97 Wis. 1, 8, 72 N.W. 193, 194-95 (1897). The summary exercise of that power "is ancient." Dan B. Dobbs, Contempt of Court: A Survey, 56 CORNELL L. Rev. 183, 187 (1971).1
*345Attorney Oliveto hurled a figurative brickbat at the trial judge when, upon sentencing, she turned to her client and audibly expressed her view that the sentence just ordered was "ridiculous." The trial court fielded this verbal brickbat with more aplomb than the assizes' judge and imposed on Oliveto the modest penalty of $250.
The trial judge acted pursuant to § 785.03(2), Stats., which provides:
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. [Emphasis added.]
The threshold question is whether there was a "pressing demand," United States v. Bradt, 294 F.2d 879, 885 (6th Cir. 1961), that the trial court dispose of Oliveto's alleged contempt immediately and without according her the due process protections accorded any criminal defendant. Unless that pressing demand existed, the trial court should have referred the matter to the district attorney, the attorney general or a special prosecutor appointed by the court to try Oliveto under chs. 967-73, STATS, (criminal procedure). Section 785.03(l)(b), Stats.
Section 785.03, STATS., prescribes two procedures for imposing a punitive sanction upon an alleged con-*346temnor: a nonsuxnmary procedure, subsec. (1) or a summary procedure, subsec. (2). If the alleged contempt involves disrespect to or criticism of a judge, the nonsummary procedure must be followed unless an immediate sanction is necessary to preserve order in the court and protect the authority and dignity of the court; the judge is disqualified from presiding at the trial of the contempt unless the person charged consents.
Section 785.03(l)(b) provides:
The district attorney of a county, the attorney general or a special prosecutor appointed by the court may seek the imposition of a punitive sanction by issuing a complaint charging a person with contempt of court and reciting the sanction sought to be imposed. The district attorney, attorney general or special prosecutor may issue the complaint on his or her own initiative or on the request of a party to an action or proceeding in a court or of the judge presiding in an action or proceeding. The complaint shall be processed under chs. 967 to 973. If the contempt alleged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial of the contempt unless the person charged consents to the judge presiding at the trial. [Emphasis added.]
The trial court entered findings of fact, the validity of which Oliveto challenges, and conclusions of law. I cannot say that the trial court's findings of fact are clearly erroneous. Section 805.17(2), STATS. However, the trial court did not find that Oliveto's remark disrupted the sentencing proceedings. Nor did the court find that it was necessary that it take immediate action to correct a continuing contempt. The trial court's concern was the effect of Oliveto's remark on the *347defendant. The court found that her "actions, demeanor and statement were clearly and unequivocally intended to lower the defendant's respect for the court's judgment given at sentencing."
Clearly, the power to preserve courtroom order is essential. Dobbs, Contempt of Court, at 184. Hurling actual or verbal brickbats at the trial court judge during the course of a trial is intolerable. To maintain order in the courtroom, it is necessary for a judge to be able to find a person in contempt and impose a punitive sanction summarily. Robert J. Martineau,2 Contempt of Court: Eliminating the Confusion Between Civil and Criminal Contempt, 50 U. CIN. L. Rev. 677, 699 & n.132 (1981) (citing Bloom v. Illinois, 391 U.S. 194, 210 (1968)). "[S]ummary power is genuinely and urgently needed for cases in which the immediate judicial process is interrupted." Dobbs, Contempt of Court, at 229. The "Chicago Seven" trial showed what can happen when courtroom misconduct by some of the parties and their attorneys is not handled properly. Martineau, Contempt of Court, at 699; see In re Dellinger, 461 F.2d 389 (7th Cir. 1972), aff'd on reh'g, 502 F.2d 813 (7th Cir. 1974), cert. denied, 420 U.S. 990 (1975). The trial judge who was subjected to numerous and vicious verbal insults waited until the end of the trial during which such conduct occurred before proceeding with contempt citations. The government conceded that the contempt citations of all of the appellants, except the two trial counsel, had to be reversed and remanded for consideration by another trial judge. The court concluded that the trial judge was disqualified from *348passing on the contempt specifications against trial counsel. Dellinger, 461 F.2d at 395. The court said that the insults leveled by the attorneys against the trial judge "were apt to strike 'at the most vulnerable and human qualities of a judge's temperament,' thus requiring 'a public trial before a judge other than the one reviled by the contemnorfs].'" Id. at 395-96 (quoting Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971)).
Contempt of court may take a number of forms: disruption in court; obstruction of the court's processes; perjury, forgery and alteration of records; symbolic acts; insult and insolence; out-of-court publications; and disobedience of court orders. Dobbs, Contempt of Court, at 186-220. Professor Dobbs suggests that a full hearing should be afforded on any disputed issue, unless for demonstrable reasons a summary hearing is urgently needed. Id. at 229. He recommended that a nonsummary hearing should carry with it the same rights as any criminal trial. Id. "Particularly, it should carry with it the disqualification of the offended or even exasperated judge." Id.
Professor Dobbs' observations and recommendations are especially important because his approach was adopted by the Wisconsin Judicial Council's Committee on Contempt (1979-80) which drafted ch. 785, Stats. Professor Martineau states that the judicial council, as a matter of policy, saw no reason to treat persons charged with contempt differently from those charged with ordinary crimes. Martineau, Contempt of Court, at 697-98. The committee adopted the "operational" approach suggested by Professor Dobbs. Id. at 687-88. This approach abandons any attempt to distinguish between or even to define civil and criminal contempt and concentrates on the procedure for impos*349ing sanctions for contempt. Id. Section 785.03, Stats., is the heart of this approach; it establishes that a decision must be made at the initiation of the proceeding on the type of sanction sought to be imposed. This decision determines not only the type of sanction to be imposed, but also the procedure to be used in the contempt proceeding. Id. at 695.
The legislature has provided that the trial judge shall impose a punitive sanction for contempt only in very limited circumstances. The judicial council's comment to the summary procedure, § 785.03(2), Stats., states in part:
It is universally recognized that a court must be able to deal summarily with contempts committed in the actual presence of the court in order to preserve order in the court and to protect its dignity and authority. This power is very limited, as is the penalty that can be imposed under s. 785.04(2)(b).
Judicial Council Committee Note, 1979, § 785.03(2), Wis. Stat. Ann.
The "operational" requirements of § 785.03(2), Stats., are that a punitive sanction thereunder must be imposed immediately and that its sole purpose is to preserve order in the court and protect the authority and dignity of the court. Martineau, Contempt of Court, at 700. If these conditions are not present at the time of the alleged contempt, the trial court must refer the alleged contempt to the district attorney, the attorney general or a special prosecutor for nonsummary prosecution under § 785.03(l)(b).
Our pre-revision decision, State v. Van Laarhoven, 90 Wis. 2d 67, 279 N.W.2d 488 (Ct. App. 1979), continues to be precedential on the question of when the trial judge may summarily impose a punitive sanction for contempt of court. The prior contempt of court statute *350provided that the trial judge could act summarily "only immediately after the allegedly contemptuous behavior has taken place, if necessary to preserve the order of the court and protect the authority of the court." Section 757.04(l)(b), Stats., 1977. The judicial council's comment to § 785.03(2), STATS., does not show that the committee considered that the language of § 785.03(2) changed the law in this respect.
In Van Laarhoven, the defendant, upon hearing the jury's guilty verdict in his brother's trial, called the members of the jury "stupid" and stated that he did not know how they could live with themselves. The trial judge immediately excused the jury and summarily held Van Laarhoven in contempt and sentenced him to ten days in jail. When Van Laarhoven made disrespectful remarks directed at the judge, the judge extended his jail sentence to thirty days. We affirmed the sentence of ten days, but vacated the extended sentence. We recognized that to justify summary contempt, due process required that there be a compelling reason for immediate punishment related to " 'vindication of the court's dignity and authority.'" Van Laarhoven, 90 Wis. 2d at 70-71, 279 N.W.2d at 489 (quoting Harris v. United States, 382 U.S. 162, 164 (1965)). We held that a compelling reason existed for the initial ten-day sentence because the jury had been exposed to insulting remarks and actions within the courtroom. Id. at 71, 279 N.W.2d at 489-90. However, as to the twenty-day sentence, we concluded that summary contempt was not appropriate for two reasons. First, at that time, the trial judge had become "embroiled with" Van Laar-hoven. Second, summary contempt was not necessary to preserve order because Van Laarhoven had been arrested and was being removed from the courtroom by *351a bailiff.3 We concluded that the contempt should have been handled under the nonsummary contempt procedures.4 Id. at 73, 279 N.W.2d at 491.
The facts in Van Laarhoven are not greatly dissimilar from the facts in this case. In each case, the court proceeding was over. In each case, the contemptuous conduct involved disrespect to or criticism of the judge. Of course, Oliveto's conduct did not approach that of Van Laarhoven's. The extent to which the trial judge became "personally embroiled" with Oliveto was far less than the embroilment of the judge in Van Laar-hoven with the alleged contemnor. However, the degree to which the trial judge has become "personally *352embroiled" with the alleged contemnor does not determine which procedure should be followed. If it did, the contemnor whose conduct was egregious would receive more procedural safeguards than the alleged contem-nor whose disrespect of the judge was relatively mild. This paradox was discussed in a note considering the decision of the United States Supreme Court in Offutt v. United States, 348 U.S. 11 (1954). Note, Criminal Law — Contempt—Conduct of Attorney During Course of Trial, 1971 Wis. L. Rev. 329, 339-41 (hereafter Note, Contempt During Course of Trial).
In Offutt, the trial judge gave the contemnor as good as he got. The Supreme Court concluded that the trial judge's behavior "precluded that atmosphere of austerity which should especially dominate a criminal trial and which is indispensable for an appropriate sense of responsibility on the part of court, counsel and jury." Offutt, 348 U.S. at 17. The Court concluded that the trial judge should not have determined the contempt summarily because his embroilment with the alleged contemnor raised a question as to the judge's ability to impartially determine the contempt.
The author of Contempt During Course of Trial observes, that the Sixth Circuit Court of Appeals resolved the paradox by substantively extending Offutt to a case in which the trial judge was, at best, only arguably personally embroiled.5 Note, Contempt During Course of Trial, at 341. The court said: "In the present case, we find no pressing demand that con*353tempt proceedings be heard and disposed of immediately." Bradt, 294 F.2d at 885.
The legislature has resolved the paradox by requiring that the trial judge who has been shown disrespect or been criticized refer the matter for prosecution, unless it is necessary for the trial judge to act immediately to preserve the order of the court. Section 785.03(l)(b), (2), STATS. The degree to which the trial judge has become "embroiled" with the alleged contemnor is irrelevant under this statute; if the alleged contempt involves disrespect to or criticism of the judge, that judge may not decide the contempt, unless immediate action is necessary.
The approach which the legislature adopted in ch. 785, STATS., reflects a balancing of the needs of the court as a judicial institution and the rights of the individual. This balancing of the public and private interests is required whenever the question is the process due the individual. The factors involved in that balancing are set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976):
[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
These factors militate in favor of providing an alleged contemnor with most of the safeguards of procedural due process, where the government's interest does not require immediate action.
*354Weighing heavily in favor of the individual is the nature of the contempt power. "Criminal contempt is a crime in the ordinary sense . . . ." Bloom, 391 U.S. at 201; see also Vilter Mfg. Co. v. Humphrey, 132 Wis. 587, 590, 112 N.W. 1095, 1096 (1907). While the legislature has abolished the distinction between civil and criminal contempt, it has made the procedures which govern ordinary criminal matters applicable to contempt complaints seeking punitive sanctions. Martineau, Contempt of Court, at 697.
Professor Martineau states that the judicial council thought it particularly important that the judge not file the charges against the alleged contemnor because of the adverse affect on the appearance of justice. Id. Professor Martineau comments that: "The prohibition protects the appearance of justice and limits the potential for abuse of the contempt power." Id. at 698-99.
The legislature has determined that unless it is imperative that the trial judge act immediately to quell a disruption of proceedings, the interests of the individual require that his or her guilt be determined in a proceeding which provides the process afforded a person charged with a crime. Under § 785.03(l)(b), STATS., the alleged contemnor has all of the rights and privileges of a defendant in a criminal proceeding, including (1) a hearing before an unbiased judge, Mayberry, 400 U.S. 455; (2) a presumption of innocence until proven guilty beyond a reasonable doubt, Gompers v. Buck's Stove & Range Co., 221 U.S. 418 (1911); (3) notice of the charges, and a right to prepare and present a defense, Cooke v. United States, 267 U.S. 517 (1925); and (4) a right to a jury trial if the sentence imposed is imprisonment for more than six months, Bloom, 391 U.S. 194. Martineau, Contempt of Court, at 697 n.126.
*355Professor Martineau notes that the safeguards afforded the contemnor under ch. 785, STATS., exceed those mandated by the United States Supreme Court. Id. at 697. He states that the Wisconsin Judicial Council, as a matter of policy, saw no reason to treat persons charged with contempt differently from those charged with ordinary crimes. Id. at 697-98. See also Judicial Council Committee Note, 1979, § 785.03(l)(b), WlS. Stat. Ann. The judicial council concluded that application of the criminal procedure to punitive sanction contempt proceedings eliminates confusion as to the procedures to be followed. Martineau, Contempt of Court, at 698.
The judicial council intended that § 785.03(2), Stats., be in accord with its federal counterpart, Federal Rule of Criminal Procedure 42. Judicial Council Committee Note, 1979, § 785.03(2), WlS. STAT. Ann. Decisions construing Rule 42 are therefore persuasive in interpreting and applying § 785.03(2). Congress intended to limit " 'the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice.1" United States ex rel. Robson v. Oliver, 470 F.2d 10, 13 (7th Cir. 1972) (quoting In re McConnell, 370 U.S. 230, 236 (1962)). In United States v. Wilson, 421 U.S. 309, 319 (1975), the Court said:
Where time is not of the essence... the provisions of Rule 42(b) [785.03(1)(b), STATS.] may be more appropriate to deal with contemptuous conduct. We adhere to the principle that only "[t]he least possible power adequate to the end proposed" should be used in contempt cases. Anderson v. Dunn, 6 Wheat. 204, 231 (1821). See Taylor v. Hayes, 418 U.S. 488, 498 (1974).
*356See also Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 (1821) (remedy for contempt of House of Representatives is "the least possible power adequate to the end proposed"); In re Gustafson, 619 F.2d 1354, 1356-57 (9th Cir. 1980) (Rule 42(a), summary disposition, is confined to unusual situations where instant action is necessary to protect the judicial institution itself); William E. Aiken, Jr., Annotation, Attorney's Conduct as Justifying Summary Contempt Order Under Rule 42(a) of the Federal Rules of Criminal Procedure, 58 A.L.R. FED. 22 (1982).
Oliveto's right to due process will be adequately safeguarded in a nonsummary procedure. It is important that she be provided with the safeguards contained in the Criminal Code, not only because contempt is in the nature of a criminal act but because a contempt finding against an attorney may have occupation-threatening consequences. Oliveto remains subject to intra-professional discipline, the ramifications of which may far exceed those of the legal sanction imposed by the trial judge. See Note, Contempt During Course of Trial, at 352. In fact, in this case, the judge ordered the court reporter to prepare a transcript of the proceedings involving the alleged contempt and to send the transcript to the Board of Attorneys Professional Responsibility. Thus, Oliveto faces a real threat of disciplinary action.
The majority does not give sufficient weight to the fact that the Wisconsin legislature has chosen to treat a person charged with contempt as it treats a person charged with a crime. The Judicial Council Committee believed it particularly important that the summary contempt authority be used very sparingly and only when immediate action was necessary. Here, the trial judge did not find a "pressing demand that the con*357tempt proceeding be heard and disposed of immediately" as in Bradt, 294 F.2d at 885.
As I have pointed out, the process due an individual whenever the government adversely affects a person's property or liberty interest requires a balancing of the government's interest and the private interest that will be affected by the official action. Because contempt is a "despotic" power, which, if exercised summarily, deprives the defendant of most of the protections of procedural due process, that power should be exercised summarily by trial judges only in very limited circumstances, which I do not find present in this case. I see no reason why Oliveto should not be provided the same due process safeguards which protect the criminal defendant. I dissent.
In 1631 at the Salisbury assizes, a prisoner aggravated at his sentence "ject un Brickbat a le dit Justice que narrowly mist _" Dan B. Dobbs, Contempt of Court: A Survey, 56 CORNELL L. REV. 183, 187 (1971). An indictment was immediately drawn and "son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court." Id. (quoting Anonymous, Dyer 188b (note) (1688 reprint)). The translation from law French is: "[The prisoner] threw a brickbat at the said Judge, which narrowly missed; and for this an indict*345ment was immediately drawn ... against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was himself immediately hanged in the presence of the Court." Id. at n.9 (quoting 73 Eng. Rep. 416 n. (1631)).
Professor Martineau was the reporter for Wisconsin's Judicial Council Committee on Contempt (1979-80) which drafted ch. 785, STATS., enacted by Laws of 1979, ch. 257, § 11. His article describes the deliberations of the committee.
The Judicial Council Committee Note to §785.03(2), STATS., stated that the exercise of summary contempt authority "does not depend upon whether the person committing the contempt is in custody, contrary to State v. Van Laarhoven . . . ." Judicial Council Committee Note, 1979, § 785.03(2), WlS. STAT. Ann.
With respect to the "embroilment" issue, we quoted at length from United States v. Meyer, 462 F.2d 827, 839 (D.C. Cir. 1972), as follows:
In other words, once a judge has been personally attacked in such a manner that a judge of ordinary sensibilities might naturally be expected to harbor "marked personal feelings" against the attacker, the law must assume that such feelings exist, even though the judge, through admirable forbearance, gives no outward indication that he has been personally affected. This assumption is necessary, presumably, for two reasons. First, personal animosity may in. fact exist in a judge who is outwardly unperturbed; and, second, even if the judge possesses singularly charitable instincts and in fact entertains no personal feelings, the public might reasonably suspect that such was not the case. In this latter situation, disqualification would be necessary in order to protect the integrity of the judiciary — so that "justice ... [can] satisfy the appearance of justice."
State v. Van Laarhoven, 90 Wis. 2d 67, 72 n.2, 279 N.W.2d 488, 490 (Ct. App. 1979).
The Supreme Court has held it to be a violation of due process for a judge who acted as a "one-man grand jury" and before whom the alleged contempt had been committed to judge the contempt even though there was no personal involvement. In re Murchison, 349 U.S. 133, 137 (1955).