dissenting.
I cannot concur with the majority opinion which overrules Wollen v. State, 86 N.M. 1, 518 P.2d 960 (1974). I believe that if Wollen is to be overruled, this Court should set standards for determining (1) when a judge is so embroiled in a controversy as to be disqualified from hearing the case, and (2) who is to decide whether the judge is so embroiled. Because the majority opinion does not address these two issues, I would hold that Wollen should not be overruled in the instant case. I would affirm the judgment of the Court of Appeals.
The facts in this case which are not set forth in the majority opinion may be found in the opinion of the Court of Appeals.
I respectfully dissent and adopt as my dissent the memorandum opinion, appended hereto in toto, written by Judge Thomas A. Donnelly and concurred in by Chief Judge Mary C. Walters and Judge William W. Bivins.
APPENDIX
Court of Appeals of New Mexico.
MEMORANDUM OPINION
DONNELLY, Judge.Appellant, a district public defender, appeals from an order finding him in contempt of court and imposing a fine. In the calendaring notice filed herein, we proposed summary reversal on three grounds, one of which we find to be determinative of the issues herein. The State has filed a timely memorandum in opposition to the calendaring notice.
We discuss the requirement that a judge who initiates a citation involving allegations of indirect contempt may not preside over the contempt proceedings.
Appellant, with co-counsel Gary Mitchell, participated as defense counsel in a criminal case, wherein the defendant William McGhee was charged with capital murder. Venue in the case was changed from Dona Ana to Lincoln County. Appellant, together with co-counsel, represented McGhee throughout the pretrial proceedings and trial. The jury returned a verdict finding McGhee guilty of first degree murder. Thereafter, the court conducted a capital felony sentencing procedure pursuant to NMSA 1978, § 31-20A-1, et seq., to determine whether a sentence of death or life imprisonment should be imposed. Following jury deliberations, the jury was unable to unanimously agree upon whether a sentence of death or life imprisonment should be imposed.
Immediately after notice of the jury’s inability to agree on a sentence, the trial judge indicated his intent to proceed immediately to sentence McGhee in accordance with NMSA 1978, § 31-20A-3. Appellant requested a continuance in order to be able to investigate the possibility of calling witnesses from out-of-state at the sentencing hearing. The trial judge granted appellant’s request and set the hearing on sentencing for January 5, 1983, at 9:00 a.m. in Dona Ana County.
On the date set by the court for sentencing, neither appellant nor his co-counsel appeared for the court hearing. Both appellant and co-counsel were in Carlsbad representing other defendants in a capital murder trial which had commenced on January 3,1983. During the last week of December 1982, appellant made arrangements with the District Public Defender’s Office in Las Cruces, which office had participated in a limited role in the McGhee case, to have one of the attorneys cover the sentencing hearing in his place. Appellant did not communicate to the trial judge the fact that he would not appear.
Appellant spoke with Mario Esparza of the District Public Defender’s Office in Las Cruces and informed him how he felt he should proceed in representing McGhee at the sentencing hearing. Appellant advised Esparza that it would be impossible for him to attend the sentencing hearing, and Esparza assured him he was ready to proceed.
On the morning of January 5, 1983, Esparza appeared at the sentencing hearing and requested a further continuance. The judge suspended the sentencing hearing to contact appellant in Carlsbad. Upon reaching appellant by telephone, the court orally ordered him to appear and show cause on January 7, 1983, why he should not be held in contempt of court and to then proceed in the McGhee sentencing hearing.
Appellant and Esparza met in chambers with the court and had a discussion off the record. Thereafter, on January 7, 1983, appellant, Esparza and two other public defenders appeared in open court before Judge Martin. Appellant gave an explanation of why he had failed to appear at the prior sentencing hearing. Appellant argues that he was not prepared for a formal contempt hearing and that he thought his previous explanation to the court had mooted the matter. At the hearing before the trial judge, appellant explained his conduct and apologized for inconveniencing the court. Following appellant’s statements, the trial court found him in contempt for his failure to attend the sentencing hearing on January 5, 1983.
At the time the court announced its decision to hold appellant in contempt, appellant expressed surprise at the ruling, objected to the proceedings, and requested a full hearing with the due process protections embodied in the New Mexico Rules of Criminal Procedure and Rules of Evidence. Appellant also requested that the court voluntarily or involuntarily be recused from the proceedings.
Thereafter, on January 11, 1983, the trial court entered a written order finding appellant in contempt. The order signed by the court provided in part:
[That] attorney Stout not having offered any reason or excuse for not having advised the Court that he would not be present; and the Court having previously in this proceeding had hearings scheduled with witnesses subpoenaed on a motion filed by attorney Stout, at which time he failed to appear and failed to notify the Court, but arranged for another Public Defender to appear and to withdraw the motion, and on another occasion in this proceeding in which attorney Stout had filed an evidentiary motion which required the State to bring out-of-state witnesses to Las Cruces and at the time scheduled for such hearing attorney Stout requested that the witnesses be placed under the rule while other matters were heard, and having such witnesses sequestered most of the day then announced that he was unprepared and could not proceed with the motion, and on such prior occasions, as well as his failure to appear at the sentencing hearing on January 5, 1983, indicating a lack of regard for attorney Stout’s obligation to appear at hearings for which he is attorney of record, and for his lack of consideration for witnesses who are compelled to appear in Court, and based upon attorney Stout’s prior actions in this proceeding, as well as his statements at the contempt hearing and lack of acceptable explanation for his failure to appear or to arrange to be excused, the Court finds that attorney Stout willfully disobeyed the Court’s order in failing to appear at the time this matter was scheduled for sentencing hearing and that such action was contemptuous and for the purpose of delaying this proceeding.
IT IS THEREFORE ORDERED that attorney Michael L. Stout is hereby found in contempt of court and assessed a fine of Five Hundred Dollars ($500.00). * * * [Emphasis added.]
Appellant filed a timely appeal from the above order.
Appellant contends that due process requirements necessitate that indirect, non-summary contempt proceedings accord an alleged contemnor the right, among others, to specific notice of the charge or charges against him. Appellant contends the order entered by the trial court indicates that in addition to the charge of contempt for his failure to appear at the sentencing hearing on January 5, 1983, the trial court considered other “activities” of appellant as basis for the finding of contempt. The court order finding appellant in contempt refers to other acts of appellant on “prior occasions, as well as his failure to appear at the sentencing hearing on January 5, 1983, indicating a lack of regard * * * for [his] obligation to appear at hearings.”
We assume, but do not decide, that the trial court limited its contempt finding to the one instance of alleged contempt based on appellant’s failure to appear at the January 5 sentencing hearing.
To the extent that appellant was held in contempt for his non-appearance on January 5, 1983, the alleged act of contempt constituted an indirect act as opposed to a direct act. In State v. Diamond, 94 N.M. 118, 607 P.2d 656 (Ct.App.1980), the court noted that contempt may be classified into two categories: (1) “direct” contempt, consisting of contumacious words spoken or acts committed in the presence of the court, and (2) “indirect” or “constructive” contempt, consisting of misconduct or some disobedient, scurrilous, or other defiant act engaged in out of the court’s presence. The court in Diamond held that the failure of an attorney to appear for a scheduled hearing constitutes “indirect” contempt not appropriate for summary contempt proceedings.
In Diamond, the court quoted with approval from In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948):
Except for a narrowly limited category of contempts, due process of law * * * requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent “demoralization of the court’s authority” before the public.
As held in Diamond, in cases involving allegations of direct contempt, the court may proceed summarily, but, if the contempt is considered indirect, an alleged eontemnor is entitled to more expansive procedures. State v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957); see also Annot., 97 A.L.R.2d 431 (1964). Indirect criminal proceedings are governed by rules of criminal law. Lindsey v. Martinez, 90 N.M. 737, 568 P.2d 263 (Ct.App.1977). Direct contempt as contrasted with conduct outside the court’s presence, is generally considered to necessitate immediate action to maintain the dignity and authority of the court. See Roybal v. Martinez, 92 N.M. 630, 593 P.2d 71 (Ct.App.1979). See also Contempt of Court, Institute of Public Law, published in NMSA 1978, Crim.P.R., Reporter’s Addendum to Rule 52 (Repl.Pamp.1980). The rationale for allowing summary procedure for direct contempt is that, when the contempt occurs in the presence of the court, the judge is fully aware of all facts necessary to determine the propriety of the questioned conduct and immediate action is required to preserve the court’s authority. See State v. Diamond, supra.
Under the facts herein, the conduct of appellant did not constitute “direct” contempt rendering the matter appropriate for summary disposition. Appellant requested that the trial court recuse himself or be disqualified from hearing the allegations of contempt. In Wollen v. State, 86 N.M. 1, 518 P.2d 960 (1974), the Supreme Court adopted a standard rule that, in the absence of circumstances necessitating immediate corrective action, a person accused of contempt by a trial judge should be tried before a different judge. The court in Wollen quoted with approval from People v. Kurz, 35 Mich.App. 643, 660, 192 N.W.2d 594, 603 (1971), stating:
[I]n the absence of circumstances necessitating immediate corrective action (i.e., a summary contempt proceeding) a person accused of contempt by a trial judge should be tried before a different judge, one not involved in the subject matter of the contempt or in the citation of the contemnor.
We find the ruling in Wollen controlling in the instant case.
Because our ruling herein is grounded upon procedural and due process considerations, we do not address the merits of the alleged contempt. The cause is reversed and remanded to the district court for further action consistent with this opinion.
IT IS SO ORDERED.
WE CONCUR:
/s/ Mary C. Walters MARY C. WALTERS, Chief Judge /s/ William W. Bivins- WILLIAM W. BIVINS, Judge