Appendix — Dodson v. Superior Court of Connecticut

% Upreme Court, U.S

FILED

90-190 ma m

— —FOSEPH F. SPANIOL, JR,

CLERK

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1989

IN THE MATTER OF MICHAEL J. DODSON,

AN ATTORNEY-AT-LAW OF THE

STATE OF CONNECTICUT,

Petitioner,

V.

SUPERIOR COURT OF THE

STATE OF CONNECTICUT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

MARGARET P. LEVY

60 Washington Street

Hartford, CT 06106

(203) 527-7735

Counsel for Petitioner

Printed by

Brescia's Printing Services, Inc.

66 Connecticut Boulevard

East Hartford, CT 06108

528-4254

APPENDIX

TABLE OF CONTENTS

OPINION OF THE CONNECTICUT

SUPREME COURT DATED MARCH

27, 1990, AFFIRMING SUPERIOR

COURT'S JUDGMENT OF CONTEMPT........

ORDER OF THE CONNECTICUT

SUPREME COURT DATED APRIL

25, 1990, DENYING

RESPONDENT'S MOTION FOR

RECONSIDERATION..... Coccccecccccccese

ARTICULATION OF HONORABLE

HIGGINS, J. DATED DECEMBER

7 i: eres 6.08 @66860 680 808908080 80 642682849208 98 8 8 @ ©

+-2a =<

IN RE MICHAEL J. DODSON

(13622)

Peters, C.J., Healey, Shea, Callahan,

Glass, Covello and Hull, Js.

Argued December ~-5, 1989-Decision

released March 27, 1990

Writ of error from the judgment of the

of Hartford-New Britain at Hartford,

Higgins, J., finding the petitioner in

contempt of court and imposing a fine. No

error.

Brian M. O'Connell, for the appellant

(petitioner).

Timothy J. Sugrue, deputy assistant

state's attorney, for the appellee

(state).

ARTHUR H. HEALY, J. The petitioner

Michael J. Dodson has brought a writ of

error to this court seeking a reversal of

the Superior Court judsment finding him

a ae

in contempt of court and imposing a fine

of $100. The writ raises the issue of

whether the petitioner's adjudication and

punishment of summary criminal contempt

comported with due process under the

fourteenth amendment to the United States

1

constitution, article first, Section 8

e and

of the Connecticut constitution

Sections 985 and 988 of the Practice

Book.°

‘The fourteenth amendment to the

United States constitution provides in

part: "nor shall any State deprive any

person of life, liberty, or property,

without due process of law...."

“The constitution of Connecticut,

article first, Section 8 provides in

part: "No person shall...be deprived of

life, liberty or property without due

process of law..... -

3practice Book Section 985 provides:

"A criminal contempt is conduct that is

directed against the dignity of the

court. The sanction for a criminal

contempt is punitive in order’ to

vindicate the authority of the court."

Practice Book Section 988, entitled

"Nature of Proceedings" (summary

ot

"The present case, which involves a

review of a summary criminal contempt

proceeding, comes before us on a writ of

error which is the sole method of review

of such picousdiaes. Whiteside v State,

148 Conn. 77, 78-79, 167 A.2d 450 (1961) ;

Goodhart v State, 84 Conn. 60, 63, 78 A.

853 (1911). The scope of our review

reaches only those matters appearing as

of record. State v. Assuntino, 180 Conn.

345, 347, 429 A.2d 900 (1980); Reilly v.

contempt), provides: "A criminal

contempt may be punished summarily if the

conduct constituting the contempt was

committed in the actual presence of the

court or the judicial authority and such

punishment is necessary to maintain order

in the courtroom. A judgment of guilty

of contempt shall include a recital of

those facts on which the adjudication of

guilt is based. Prior to the

adjudication of guilt the judicial

authority shall-inform the defendant of

the accusation against him and inquire as

to whether he has any cause to show why

he should not be adjudged guilty of

contempt by presenting evidence of

excusing or mitigating circumstances."

» t=

State, 119 Conn. 217,, 223, 175 A. 582

(1934). In a review of summary criminal

contempt, the inquiry is limited to a

determination of the jurisdiction of the

court below. Tyler v. Hammersley, 44

Conn. 393, 413 (1877). . Subsumed in this

inquiry are three questions, namely, (1)

whether the designated conduct is legally

susceptible of constituting a contempt;

Goodhart v. State, supra; (2) whether the

punishment imposed was authorized by law;

State v. Jackson, 147 Conn. 167, 169, 158

A.2ad 166 (1960); and (3) whether the

judicial authority was qualified to

conduct the hearing. Mayberry 7.

Pennsylvania, 400 U.S. 455, 465-66, 91

S.Ct. 499, 27 L.Ed.2d 532 (1971) .”. Moore

v. State, 186 Conn. 256, 257, 440 A.2d

969 (1982).

The record discloses, inter alia, the

followina. On November 10, 1988, the

“-fa «

petitioner, an attorney admitted to the

practice of law in Connecticut, was

representing Michael Walker® at a

sentencing hearing before the Honorable

James Higgins in the Superior Court.

During the course of that hearing, and

immediately following the imposition of

‘on September 22, 1988, after a jury

trial, Michael Walker had been found

guilty of one count of murder in

violation of General Statutes Sections

53a-8 and 53a-54a(a), one count of

conspiracy to commit murder in violation

of General Statutes Sections 53a-48(a)

and 53a-54a(a) and one count of assault

in the first degree in violation of

General Statutes Sections 53a-59(a) (1)

and 53a-8. The first count involved the

death of Thomas Dixon; the second count

involved Tracey Fisher as a

coconspirator; and the third count

involved the injury of Barrington

Solomon. The trial court, Higgins, J.,

imposed a sentence of sixty years on the

first count, and sentences of twenty

years on each of the second and third

counts to be served concurrently but to

be served consecutively to the sentence

imposed on the first count. Thus, the

total effective sentence was’ eighty

years. The petitioner also represented

Walker during his trial.

- 7a-o-

sentence, the following took place

between the court and the petitioner:

"Mr. Dodson: I think it is most

unusual. I think that is totally

outrageous. The court can do-

"The Court: You may notify the

defendant-

"Mr. Dodson: Thirty years more on the

same set of facts, I think ...

"The Court: Notify the defendant of his

rights to appeal.

"Mr. Dodson: There is no basis-

"The Court: You're out of order.

"Mr. Dodson: I know I am, but there is

no basis for that sentence.

"The Court: He is held in contempt of

this Court.

"Mr. Dodson: I apologize for. my

remarks.

"The Court: Notify the defendant of his

rights to appeal on the record."

° @6 «

The court thereupon took a recess.

The petitioner was asked to remain in the :

courtroom and was allowed access to a

telephone to obtain counsel. Shortly

thereafter, Attorney Gerald Klein arrived |

at Judge Higgins' chambers to indicate

that he represented the petitioner. At

that time, Klein was shown a copy of the

transcript of the prior proceedings that

had already been prepared. The Court was

prepared to continue and finish the

summary contempt proceedings at that

time. A request for a continuance, made

by Klein, was granted to Tuesday,

November 15, 1988. (November 11, 1988, a

Friday, was a holiday and there was no

court on November 14, 1988, the following

Monday, due to the Connecticut State Bar

Association meeting.)

On Tuesday, November 15, 1988, the

court held a hearing at which the

Ss a

o Qe «

petitioner appeared with Klein. AFter

the court inquired whether the petitioner

wished to be heard, both Klein and the

petitioner addressed the court. At the

conclusion of the hearing, the court

imposed a fine of $100. This writ of

error by the petitioner followed.

The petitioner maintains that his

conduct in open court on November 10,

1988, did not constitute a contempt

within the meaning of Practice Book

Section 985. This rule states that

"criminal contempt is conduct that is

directed against the dignity and

authority of the Court." See State v.

Jackson, Supra. In denying the

applicability of Section 985, the

petitioner points to Practice Book

Section 986° which provides who may be

*Practice Book Section 986, entitled

"Who May Be Punished [for Criminal

Contempt", provides: "The judicial

authority may punish by fine or

- 10a -

punished for criminal> contempt. He

contends that his conduct does not place

him within any portion of Section 986,

which, he says, must involve not only an

act that "disturbs" the dignity and

authority of the court, but must also be

directed against it. His conduct, he

asserts, does not reflect an intent t

disobey the rules or orders of the court

but rather "the record clearly depicts

[him] in the‘role of an advocate, engaged

in the representation of a client." His

imprisonment or both:

"(1) Any person who in the court's

presence behaves in a contemptuous or

disorderly manner;

"(2) Any person who violates’ the

dignity and authority of any court, or

any judicial authority, in its presence

or so near thereto as to obstruct the

administration of justice;

"(3) Any officer of the court who

misbehaves in the conduct of his official

court duties; or

"(4) Any person disobeying in the

course of a civil or criminal proceeding

any order of a judicial authority."

- 4484 -°

"statement" did not, he maintains,

"interrupt the Court in its pronouncement

of sentence, but rather occurred after

the court had recited all penalties and

imposed costs." Moreover, the petitioner

claims that “his forbearance clearly

belies any claim that his intention was

to disrupt the proceedings at hand." In

addition, he claims: that it cannot be

"alleged" that he violated any procedural |

rule restricting an attorney's

opportunity to address the court

subsequent to the imposition of sentence.

In a word, his’ conduct, from his

perspective, was confined to his legal

responsibilities of providing effective

representation. We hold nonetheless that

the petitioner's conduct constituted a

contempt under Section 985.

I

Since we speak of criminal contempt as

- 12a -

conduct against the dignity and authority

of the court, it is useful briefly to

articulate the concepts of dignity and

authority encompassed in this context.

The expression "dignity of the court"

proclaims a demand, to all dealing with

the ° court, for proper respect and

obedience in its function of

interpreting, administering and enforcing

the law within its authority to do so.

See generally Brannon v. State, 202 Miss.

571, 582, 29 So.2d 916 (1947).

"Authority" can be and has been said to

mean the "[rjight to exercise powers; to

implement and enforce laws; to exact

obedience; to command; to judge....{It

is] [o]ften synonymous with power."

Black's Law Dictionary (5th Ed.) In a

free society, the courtroom "is a forum

for the courteous and reasoned pursuit of

truth and justice." Taylor v.Hayes, 418

~~ pea =

U.S. 488, 503, 94 S.Ct. 2697, 41 L.Ed.2a

897 (1974). These concepts meaningfully

embody that view of dignity and authority

that should attend the proper,

independent and fair discharge by the

court of its duties under the rule of

law. That view is hardly to be

implemented platitudinally here, but in

the warp and the woof of due process of

law.

It is also useful to note at this point

that where aia contempt is involved,

the United States Supreme Court has

indicated that it is wary of the power

and cognizant et ite potential for abuse.

It, therefor, became established early in

American jurisprudence that contempt

limits a court in such cases to "the

least possible power adequate to the end

proposed." Anderson v. Dunn, 19 U.S. (6

~|i4a -

Wheat.) 204, 231, 5 L.Ed. 242 (1821),°

quoted, inter alia, in In Re Michael, 326

U.S. 224, 227, 66 S.Ct. 78, 390 L.Ed. 30

(1945); In Re Oliver, 333 U.S. 257, 274,

68 S.Ct. 499, 92 L.Ed. 682 (1948); Harris

v. United States, 382 U.S. 162, 165, 86

S.Ct. 352, 15 L.Ed.2d 240 (1965);

Shillitani v. United States, 384 U.S.

364, 371, @6 &:Ce,.. 1331, 16. bE. 2a 622

(1966). The purposes, nevertheless, of

a criminal contempt order are to punish

willful disregard of the authority of the

court and to deter the occurrence of

similar derelictions. United States v.

United Mine Workers, 330 U.S. 258, 302-

In Anderson v. Dunn, 19 U.S. (6

Wheat.) 204, 227, 5 L.Ed. 242 (1821), the

court also said that courts "by their

very creation [are vested] with power to

impose silence, respect, and decorum, in

their presence, and submission to their

lawful mandates...." See also Young v.

United States ex. rel. Vuitton et Fils

SA. , 461. U.S. -787,: 198, 107 S.Ct.” 2124,

95 L.Ed.2a 740 (1987).

- 158-<

303, 67 S.Ct. 677, 91 L.Ed. 884 (1947);

In. re Irving,. 600 F.2a .1027,: 1037 (24

Cir. 1979), cert. denied, 444 U.S. 866

100..$.Ct. 137, 62 L.<Ed.2a 89 (1979)-.

Only recently, the United States Supreme

Court has observed that "(t]he underlying

concern that gave rise to the contempt

power was not, however, merely the

disruption of court proceedings. Rather,

it was disobedience to the orders of the

judiciary, regardless of whether such

disobedience interfered with the conduct

of trial." Young v. United States ex rel.

Vuitton et Fils S.A., 481 U.S. 787, 798,

107 S.Ct. 2124,°95 L.Ed.2d 740 (1987).’

In Young v. United States ex rel.

Vuitton et Fils S.A., 481 U.S. 787, 795,

107 S.Ct. 2124, 95 L.Ed.2d 740 (1987),

the court also noted "'[t])hat the power

to punish for contempt is inherent in all

courts, has been many times decided and

may be regarded as settled law. ae S68

essential to the administration of

justice.'" See also Gompers v. Bucks

Stove & Range Co., 221 U.S. 418, 450, 31

S.Ct. 942, 55 L.Ed. 797 (1911).

The American Bar Association Standards

= 468: +

There can be little doubt that an

attorney may be, and should be, zealous

in his representation of a client and

"(fjull enjoyment of that right, with due ———

allowance for the heat of controversy,

will be protected by appellate courts

when infringed by trial courts." Sacher

v. United States, 343 0.8. 2, 95.12 beeen

451, 96 L.Ed. 717 (1952); see People v.

DeJesus, 42 N.Y.2d 519, 369 N.E.2d 752,

399 N.Y.S.2d 196 (1977). “The arguments

of a lawyer in presenting his client's

case strenuously and persistently cannot

for Criminal Justice (2d Ed.Sup. 1982),

Special Functions of the Trial Judge,

Standard 6-4.1, entitled "Inherent power

of the court," provides: "The court has

the inherent power to punish any contempt

in order to protect the rights of the

defendant and the interests of the public

by assuring that the administration of

criminal justice shall not be thwarted.

The trial. judge has the power to cite

and, if necessary, punish’ summarily

anyone who, in the judge's presence in

open court, willfully oobstructs’7 the

course of criminal proceedings."

-~ 448 *

amount to a contempt of court so long as

the lawyer does not in some way create an

obstruction which blocks the judge in the

performance of his judicial duty." In re

McConnell, 370 U.S. 230, 236, 82 S.Ct.

1288, 8 L.Ed.2d 434 (1962); In _re

Meizlish, 72 Mich.App. 732, 736, 250

N.W.2d 525 (1977). The attorney's right

to be zealous, vigorous, persistent and

complete in the representation of a

client is not, however, unlimited. That

representation must be within the bounds

of the law. "[Ajn attorney as an officer

of the court should be held to a higher

standard of courtroom conduct than a

layman." Commonwealth v. Stevenson, 482

Pa. 76, 90, 393 A.2d 386 (1978). As an

officer of the court, he must "preserve

and promote the efficient operation of

our system of justice." Chapman Vv.

Pacific Telephone and Telegraph Co., 613

sentehthietnn pees

- 18a -

F.2d 193, 197 (9th Cir. 1979); see Maness

V,._Meyers, 419 U.S. 449, 95 S.Ct. -584,

42 L.Ed.2d 574 (1975); Cologne _v.

Westfarms Associates, 197 Conn. 141, 148,

496 A.2d 476 (1985).

On the matter of "courtroom decorum,"

an attorney "[a]Js an officer of the

court...should support the authority of

the court and the dignity of the trial

court by strict adherence to the rules of

decorum and by manifesting an attitude of

professional respect toward the judge,

opposing counsel, witnesses, jurors, and

others in the courtroom." American Bar

Association Standards for Criminal

Justice (2d Ed.Sup. 1982), The Defense

Function, Standard 407.1. The Code of

a Professional Conduct provides, inter

alia, that a "lawyer shall not...(c)

[e]ngage in conduct intended to disrupt

a tribunal." Code of Professional

= 19a :--

Conduct Rule 3.5(c). It also provides

that "{i]t is professional misconduct for

a lawyer to...(d) engage in conduct that

is prejudicial to the administration of

justice." Code of Professional Conduct

Rule 8.4(d). It is appropriate to

consider and apply ethical benchmarks, as

well as case law, when determining

whether an attorney's conduct is

inappropriate to his role and thus

constitutes contumacious’~ behavior-all

within the rule of law.

As to the court, "'({tjhe role of the

Trial Judge is neither that of automaton

or advocate'...nor is a judge merely an

‘umpire in a forensic encounter' but

'Trhje is a minister of justice' and in

'whatever he does...the trial judge

should be cautious and circumspect in his

language and conduct. ** State V.

Fernandez, 198 Conn. 1, 10, 501 A.2d 1195

- 20a -

(1985); State v. Woolcock, 201 Conn. 605,

622, 518 A.2d 1377 (1986). adn

judge...should conduct himself at all

times in a manner that promotes public

confidence in the integrity and

impartiality of the judiciary.'...The

trial judge should be the exemplar of

dignity and impartiality." Swenson v

Dittner, 183 Conn. 289, 297, 439 A.2d 334

(1981); State v. Echols, 170 Conn. 11,

13-14, 364 A.2d 225 (1975). The trial

judge has the obligation to use his or

her power to prevent distractions from

and disruptions of the trial. Where the

judge decides to impose sanctions for

misconduct, "ordinarily [the judge

should] impose the least severe sanction

appropriate to correct the abuse and to

deter repetition..." American Bar

Association Standards for Criminal

Justice (2d Ed.Sup. 1982), Special

Pa

~/23a =

Functions of the Trial Judge, Standard 6-

see Commonwealth v. Garrison, 478

Pa. 356, 366, 386 A.2ad 971 (1978);

Burgess v. Towne, 13 Wash.App. 954, 960,

538 P.2d 559 (1975).

In addition, it is proper to note that

"‘tjhe law of contempt is not made for

the protection of judges who may be

sensitive to the winds of public opinion.

‘The American Bar Association

Standards for Criminal Justice (2d

Ed.Sup. 1982), Special Functions of the

Trial Judge, Standard 6-3.3, entitled

"Judge's use of powers to maintain

order," provides: "The trial judge has

the obligation to use his or her judicial

power to prevent distractions from and

disruptions of the trial. If the judge

determines to impose’ sanctions’ for

misconduct affecting the trial, the judge

should ordinarily impose the least severe

sanction appropriate to correct the abuse

and to deter repetition. In weighing the

severity of a possible sanction for

disruptive courtroom conduct to be

applied during the trial, the judge

should consider the risk of further

disruption, delay, or prejudice that

might result from the character of the

sanction or the time of its imposition."

- 22a -

Judges are supposed to be men of

fortitude, able to thrive in a hardy

Climate." Craig v. Harney, 331 U.S. 367,

376, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947).

They must be on guard against confusing

offenses to their sensitivities with the

obstruction of justice. In re Little, 404

U.S. -353, 3935, 92 8.Ct. 659, 30 L.EA.2¢d

706 (1972). Indeed, "[{a]} court of law is

not the personal fiefdom of the

individual who happens to be sitting at

the bench." Edmunds v. Chang, 365 *.Sup.

941, 948 (D.Haw. 1973), rev'd on other

grounds, 509 F.2d 39 (9th Cir.), cert.

denied, 423 U.S. 825, 96 S.Ct. 39, 46

L.Ed.2d 41 (1975). The trial judge,

nevertheless, has the duty to deter and

correct misconduct of attorneys with

respect to their obligations as officers

of the court to support the authority of

the court and enable the trial to proceed

- 238 =

with dignity. American Bar Association

Standards of Criminal Justice 2d Ed.Sup.

1982), Special Functions of the Trial

Judge, Standard 6-3.5.° In Sacher v.

United States, supra, ia: while

*The American Bar Association

Standards for Criminal Justice (2dEd.Sup.

1982), Special Functions of the Trial

Judge, Standard 6-3.5, entitled

"Deterring and correcting misconduct of

attorneys," provides: "The trial judge

should require attorneys to respect their

obligations as officers of the court to

support the authority of the court and

enable the trial to proceed with dignity.

When an attorney causes a significant

disruption in a criminal proceeding, the

trial judge, having particular regard to

the provisions of standard 6-3.3, should

correct the abuse, and if necessary,

discipline the attorney by use of one or

more the following sanctions:

"(a) censure or reprimand;

"(b) citation or punishment for

contempt;

"(c) removal from the courtroom;

"(d) suspension for a limited time of

the right to practice in the court where

the misconduct occurred if such sanction

is permitted by law; and

"(e) informing the appropriate

disciplinary bodies in every jurisdiction

where the attorney is admitted to

practice of the nature of the attorney's >

misconduct and of any sanction imposed."

- 24a -

recognizing the duty of the trial judge

to protect fully an attorney's right to

represent his client vigorously, the

court also acknowledged the duality of

the role of an attorney, as an officer of

the court as well as an advocate. In

dealing with circumstances involving a

potential contempt of an attorney, trial

judges should remain aware that = an

attorney is a vital component of our

legal system unlike that of a criminal

defendant or a party to a civil action.

The remarks of the trial court and the

petitioner, as well as the action of the

court on November 10, 1988, have already

been referred to. To these must be added

that during the petitioner's "outburst"

the trial court later said that the

petitioner's voice was "elevated" and

that he "threw" his pencil on the counsel

- 25a - ®

table.'° This conduct can technically be

at the November 15, 1988 hearing,

counsel for the petitioner characterized

his client's conduct on November 10,

1988, as an "outburst." He also noted

titat he had read the transcript of

November 10, 1988, and that he understood

"from speaking to other people who were

here that the way [the petitioner]

expressed himself was worse than what you

see in black and white." The general

rule is that the admissions of an

attorney are imputed to his client.

Lafayette Bank & Trust Co., v. Aetna

Casualty & Surety Co., 177 Conn. 137,

140, 411 A.2d 937 (1979); see 7

Am.Jur.2d, Attorneys at Law Section 136.

We note that it was not until November

28, 1988, at least thirteen days after

the trial court imposed the fine upon the

petitioner, that he filed a motion -for

articulation in Which he asked for a

written articulation "of the nature of

the legal basis for the sanctions placed

upon him for conduct which transpired on

November 10, 1988." That motion also

"specifically" requested "that the court

apprise him as to whether its action was

civil or criminal contempt and whether if

of a criminal nature, the action was

taken under Connecticut Practice Book

Section 988. Alternatively, if no

contempt was found, [petitioner

requested] whether the aforementioned

action was .taken under’ Connecticut

General Statutes Section 51-84."

The trial judge's articulation stated

that the "proceedings were Summary

Criminal Contempt under P.B. Sec. 988."

It also said that "[{t]he contempt was

self-evident. The court imposed a fine

- 26a -

said not to have taken place during the

"trjal." A criminal "trial" may be said

in ee those proceedings to determine the

guilt or innocence of an accused and

ordinarily ends with the verdict or other

decision of the trier of fact. See People

v. Smith, 4 Cal.App.3d 403, 410, 84

Cal.Rptr. 412 (1970); State v. Drake, 259

N.W.2d 862, 868 (Iowa 1977); State v.

Johnson, 363 So.2d 458, 461 (La. 1978);

Black's Law Dictionary (5th Ed.); cf.

People v. Betillo, 53 Misc.2d 540, 279

N.Y.S.2d 444 (1967). The petitioner's

conduct took place immediatey after

sentencing. A sentence is the judgement

of the court formally pronounced which

"award([s] the punishment to be

inflicted." Belden v. Hugo, 88 Conn. 500,

of $100 in punishment of said contempt to

uphold the dignity of the court. State v.

Jackson,. 147 Conn. 167, 169 [158 A.2ad

166) (1960)."

= e278 ~.,

501, 91 A. 369 (1914). The petitioner's

conduct took place while the sentencing

court was "in session" when the court was

actively presiding while engaged in

processing the business of the Superior

Court.

It is against this background and the

legal and ethical benchmarks that we

must now determine whether the

petitioner's conduct in open court on

November 10, 1988, was contumacious

because it went beyond the permissible

parameters of po and, thus, a

contempt of court. We answer this in the

affirmative.

The petitioner's conduct took place in

open court with the trial judge on the

bench. It took place several weeks after

a jury had found the petitioner's client,

Walker, guilty; the trial was over. It

took pace as the trial judge” was

- 358 =

attempting to instruct the clerk to give

Walker notice of his rights to ‘appeal, as

provided for by Practice Book Section

945.'' The court attempted to accomplish

this twice and was interrupted by the

petitioner on both occasions after the

petitioner has already indicated that the

sentence was "totally outrageous."

Persisting after the second interruption

of the court, the petitioner told the

“practice Book Section 945, entitled

"Notification of Right to Appeal,"

provides: "Where there has been a

conviction after a trial, or where there

has been an adverse decision upon an

application for a writ of habeas corpus

brought by or on behalf of one who has

been convicted of a crime, it shall be

the duty of the-clerk of the court,

immediately after the pronouncement of

the sentence or the notice of a decision

on the application for a writ of habeas

corpus, to advise the defendant in

writing of such rights as he may have to

an appeal, of the time limitations

involved, and of the right of an indigent

person who is unable to pay the cost of

an appeal to apply for a waiver of fees,

costs, and.expenses for the appointment

of counsel to prosecute the appeal."

~ 265

court that "there is no basis for the

sentence just imposed," at which time the

court warned him: "You're out of order."

Rather than taking heed, the petitioner

immediately responded, "I know I am, but

there is no basis for that sentence."'

(Emphasis added.) After acknowledging

this, the trial ‘court. said: "The

petitioner] is held in contempt..." Then

the court again directed that the clerk

notify the defendant Walker of his rights

to appeal on the record.

This conduct was a criminal contempt,

directed as it was against the dignity

and authority of the court. Practice

Book Section 985. "'From necessity the

court must be its own judge of contempts

committed within its presence.' Goodhart

There is no claim by the petitioner

on appeal that the sentence imposed was

in excess of permissible’ statutory

limits.

-- 30a =

v. State, supra [62-63]." McClain v.

Robinson, 189 Conn. 663, 669, 457 A.2d

1072 (1983). In In re Little, supra,

555-56, the court drew a distinction

between the manner of the use of words by

the alleged contemnors and doing so in a

loud and boisterous manner. as well as

considering the effect of the conduct

upon court proceedings. In reversing the

state court judgment of contempt, the In

re Little court said: '*yt if not

charged that [the alleged contemnors]

disobeyed any valid court order, talked

loudly, acted boisterously, or attempted

to prevent the judge or any other officer

of the court from carrying on his court

duties....'" Id., 556. From what we have

already noted, what occurred on November

10, 1988, is factually very different

from In re Little. With reference to any

"reason" for the petitioner's conduct, we

- 348 =

note that the record is absolutely barren

of any "running, bitter controversy"

between the trial judge and the

petitioner even though the petitioner had

only recently been through a murder trial

before the same judge. See Naunchek v.

Naunchek, 191 Conn. 110, 118-19, 463 A.2a

603 (1983); but cf. Taylor v. Hayes, 418

U.S. 488, 501, 94 S.Ct. 2697, 41 L.Ed.2d

897 (1974); Mayberry v Pennsylvania, 400

U.S... 455, 465, 91 §&.CE. 499, 27 L.Ed.2ad

532 (1971). The petitioner's statements

and his conduct, insofar as the record

discloses, were ceivecteat against the

dignity and authority of the court" as an

institution and not against the trial

judge personally. Conduct which is

directed against the dignity and

authority of the court must be

accompanied by the intent on the part of

the alleged contemnor to do that. See

= 22a *

e.g. Matter of Pilsbury, 866 F.2d 22, 27

(2d Cir. 1989); United States v. Seale,

461 F.2d 345, 367-68 (7th Cir. 1972).

While the Untied States Supreme Court in

In re McConnell, supra, properly

recognized the wide latitude to be

permitted defense counsel in vigorously

defending a client, "McConnell cannot be

read as an immunization for all conduct

undertaken by an attorney in good faith

representation of his client...." In re

Dellinger, 461 F.2d 389, 398 (7th Cir.

i972),. .aff*d, $02: F.24 813° (7th Cir.

1974), cert. denied, 420 U.S. 990, 95

S.Ct. 1245, 43 L.Ed.2d 671 (1975).

Conduct, when allegedly contumacious,

cannot be justified merely by asserting

that it was undertaken in good faith.

State v. Campbell, 497 A.2d 467, 473 (Me.

1985). cert. denied, 474 U.S. 1032, 106

S.Ct. 594, 88 L.Ed.2d 5741 (1985). Under

= 334 =

the circumstances of this case, the

petitioner "should reasonably have been

aware that his conduct was wrongful."

State v. Campbell, supra. He actually

stated that he knew that he was “out of

order" when the trial judge so cautioned

him. There was thus nothing, insofar as

the petitioner was concerned, that was

unclear or indefinite about the trial

court's caution. See Commonwealth v.

Garrison, supra, 977.

To be held in criminal contempt, a

contemnor must have the requisite intent;

the conduct must be willful. Matter of

Pilsbury, Supra; United States v.

Thoreen, 653 F.2d 1332, 1342 (9th Cir.

1981); Sykes v. United States, 444 F.2d

928, 930 (D.C. Cir. 1971); Black's ‘Law

Dictionary (5th Ed.). Intent may be

inferred from facts and circumstances.

United States w Thoreen, supra.

- 34a -

Generally, willfulness may be inferred

from a reckless disregard for a court's

order. United States v. Delahanty, 488

F.2d 396 (6th Cir. 1973); Sykes v. United

States, Supra; Murphy v. State, 46

Md.App. 138, 416 A.2d 748 (1980). Stated

another way, "[{tjhe minimum requisite

intent [for criminal contempt] is better

defined as a volitional act by one who

knows or should reasonably be aware that

his conduct is wrongful." United States

v. Seale, supra, 368. The requisite

intent in this case may properly be

inferred from the record of what occurred

on November 10, 1988. An attorney need

not be accorded one contemptuous remark

before a judge may consider a summary

contempt adjudication. Commonwealth v.

Stevenson, 482 Pa. 76, 90, 393 A.2d 386

(1978). The danger of the allegedly

contumacious conduct of offending the

- 35a -

authority and dignity of the court "'must

not be remote or even probable, it must

immediately imperil [it])....'" In re

Little, supra, 555; accord In re

McConnell, supra (contempt reversed where

attorney failed to carry out threat to

disobey court order); United States v.

Seale, supra, 370. It is evident that

the authority of the court in this case

was significantly hindered by the

petitioner's conduct. Despite the

court's order to the clerk to notify the

defendant Walker of his right to appeal,

the petitioner's conduct obstructed the

execution of that valid order. This was

not a mere affront to the sensibilities

of the trial judge qua trial judge; it

directly hindered and interfered with the

Superior Court qua Superior Court in its

orderly processing of business before it.

- 36a -

This misconduct” led to obstruction and

delay and was directed against’ the

dignity of the court. The petitioner was

guilty of criminal contempt in violation

of Practice Book Section 985 and the

trial court had the summary contempt

power to deal with such contumacious

conduct that took place in open court and

in its immediate presence and view. See

Naunchek v. Naunchek, supra, 113.

Il

It is appropriate here to advert to the

judgment of contempt which this writ of

error brings to this court. In his

second claim of error, the petitioner

maintains that he was held in contempt on

one court has noted the difficulty

of defining "misconduct" in the context

of contempt and defined it "as conduct

inappropriate to the particular role of

the actor, be he judge, juror, party,

witness, counsel or spectator." United

States v. Seale, 461 F.2d 345, 366 (7th

Cir. 1972).

- 3/a =

November 10, 1988, without any

opportunity to address the court prior to

the adjudication of guilt. The state

argues, to the contrary, that the trial

court's statement that "[the petitioner]

is held in contempt of this court" on

November 10, 1988, was not a final

adjudication of guilt because, otherwise,

it would have been pointless to have

afforded him an opportunity to obtain

counsel and there would not have been any

need to "continue and finish" the

proceedings as the court was prepared to

do on November 10, 1988. The state

claims, accordingly, ‘that the final

adjudication of guilt did not take place

until the conclusion of the hearing on

November 15, 1988. It contends that the

petitioner incorrectly claims that he was

not given the opportunity because the

court's statement on November 10, 1988,

- see =

i.e., "({hje is held in contempt" did not

constitute a final adjudication of guilt.

The state maintains rather that the final

adjudication of guilt did not occur until

November 15, 1988, at which time the

petitioner was represented by counsel who

addressed the court and the petitioner

himself spoke on his own behalf."

Although the court, in its

articulation, said that "[the petitioner]

was held in contempt [on November 10

1988]," a writ of error lies only froma

final judgment and for errors of law

“We note that during the hearing of

November 15, 1988, counsel for the

petitioner said, inter alia, to the

court: "IT have read the transcript of

what occurred Thursday. I was not, of

course, there. I asked the court before,

and I will ask again, to consider

changing its ruling." It is fair to say

that a t the hearing of November 15,

1988, which was the date to which the

matter had been continued at the request

of petitioner's counsel, the latter asked

the court to open and change its ruling

of November 10, 1988.

- 39a -

apparent on the face of the _ record.

Geddes v. Sibley, 116 Conn. 22, 24, 163

A. 596 (i932). Even though the

petitioner was held in contempt on

November 10, 1988, it is evident, and the

petitioner does not contend otherwise,

that there was no final judgment on that

date from which a writ of error would

lie. This is so because no sanction or

punishment had yet been imposed and,

therefore, there had been no _ final

judgment disposing of the matter. State

v. Curcio, 191 Conn. 27, 31, 463 A.2d 566

(1983); see Barbato ¥; x & M.

Corporation, 194 Conn. 245, 247-48, 478

A.2d 1020 (1984). No final judgment

existed in this contempt proceeding until

the court decided on November 15, 1988,

not to change its earlier ruling but

proceeded to final adjudication and

imposed the sanction of the $100 fine.

- 40a <-

This, we submit, has significance on the

remaining issues - to be decided,

particularly the petitioner's claim that

the continuance to November 15, 1988,

which he requested, all but steemee

the nature of the proceeding against him

as one in summary criminal contempt and

required, inter alia, the recusal of the

trial judge.

| III

The petitioner next claims that the

proceedings that culminated in the

finding of summary criminal contempt were

conducted in violation of his due process

rights as set forth in Section 988 of the

Practice Book and as afforded by the

fourteenth amendment to the United States

constitution and article first, section

15

8, of the Connecticut constitution. In

Owe need not discuss the

petitioner's assertion concerning article

first, section 8 of the Connecticut

constitution. He provides no separate

- 4la -

making this claim, he maintains that the

matter was "improperly adjudicated"

before the same judge before whom the

alleged contemptuous conduct occurred.

The state, on the other hand, contends

that the petitioner's adjudication of

summary criminal contempt comported with

the requirements of due process as

provided in the United States and

Connecticut constitutions and the

Practice Book. In oral argument before

this court, the state, while conceding

that the "literal terms" of the Practice

Book had not been complied with, argued

analysis under the Connecticut

constitution of that matter as pertains

to this clain. In any event, we note

that we have said that the due process

provisions of the United States and

Connecticut constitutions generally have

the same meaning and impose similar

constitutional limitations. See Keogh v.

Bridgeport, 187 Conn. 53, 59-60, 444 A.2d

225 (1982); State v. Brigandi, 186 Conn.

Sana, waa, £42 A.2G 927 (1982).

- @286 =

that the substance of the due process

prescribed by the Practice Book had been

fully extended to the petitioner.

The Untied States Supreme Court "has

often recognized that the requirements of

due process cannot be ascertained through

mechanistic application of a formula."

Groppi v. Leslie, 404 U.S. 496, 500, 92

S.Ct. 582, 30 L.Ed.2d 632 (1972). The

essence of due process is fundamental

fairness. United States ex rel. Crist v.

Lane, 745 F.2d 476, 482 (7th Cir. 1984),

cert. denied, 471 U.S. 1068, 105 S.Ct.

2146, 85 L.Ed.2d 503 (1985). Due process

is an element that, when absent, produces

the reaction given to that which is

"shocking to the universal sense of

justice." United States v. Russell, 411

U.S. 423, 432, 93 $.Ct.. 1637, 36 L.Ed.2a

366 (1973). Due process, unlike some

legal rules, is not a technical

- 43a -

conception with a fixed content unrelated

to time, place and circumstances.

Williams v. Bartlett, 189 Conn. 471, 476,

457 A.2da 290, appeal dismissed, 464 U.S.

801, 104 S.Ct. 46, 78 L.Ed.2d 67 (1983);

Lee v. Board of Education, 181 Conn. 69,

73, 434 A.2d 333 (1980).

The petitioner contends that he was

denied the due process provided for by

Practice Book Section 988. The state

disagrees, claiming that he was accorded

the required due process although it does

concede that Section 988 was not followed

literally. The lack of a "mechanistic

application"; see Groppi v. Leslie,

Supra; of Practice Book Section 988

should not serve to defeat its due

process requirements if they were

substantively met. "The design of the

rules of practice is both to facilitate

business and to advance justice; 'they

- 44a -

will be interpreted liberally in any case

where it shall be manifest that a strict

adherence to them will work surprise or

injustice.'" Snow v. Calise, 174 Conn.

567, 574, 392 A.2d 440 (1978). Rules of

practice must be construed reasonably and

with consideration of this purpose.

Densmore v. Eyles, 32 Comn.Sup. 519, 521,

342 A.2da 62 (1975); 20 Am.Jur.2d, Courts

Section 86. Rules “are a means to

justice, and not an end in themselves;

their purpose is to provide for a just

determination of every proceeding." State

v. Emmett, 108 N.J.Super. 322, 325, 261

A.2d 374 (1970).

The petitioner was not denied due

process despite the trial court's failure

to comply literally with Practice Book

Section 988. His being held in contempt

on November 10, 1988, cannot be said to

have come as any surprise to him at that

- 45a -

time, because his conduct as an officer

of the court was such that he

acknowledged that he knew, as he should

have, that he was "out of order."

Moreover, there was nothing unclear or

indefinite about that caution given by

the court Undaunted, however, he

compounded the earlier "totally

outrageous" tenor of his view of the

sentence by saying thereafter "but there

is no basis for that sentence." The

trial court then said that "[(the

petitioner] is held in contempt of this

court." The petitioner clearly

understood the trial judge's perception

of his conduct. See Pennsylvania v. Local

Union 542, International Union of

Operating Engineers, 552 F.2d 498, 512

n.20A (3d Cir.), cert denied, 434 U.S.

822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977).

This scenario, in justice, cannot be said

”"™

_—

- 464 -

to avoid the contempt merely because it

did not include on November 10, 1988, "a

recital of those facts in which the

adjudication of guilt is based" as set

out in Section 988. Significantly, on

November 10, 1988, as well as on November

15, 1988, neither the petitioner nor his

counsel ever claimed that he did not

understand the factual scenario upon

which the trial court "held" him in

contempt on November 10, 1988. This is

SO especially when his counsel discussed

the matter with the trial court in

chambers on November 10, 1988, at which

time his counsel was shown the court

proceedings of that date. Further, with

reference to a "recital" of the facts

under Section 988, it must not be

overlooked that on November 10, 1988, as

well as on November 15, 1988, neither

the petitioner nor his counsel, who are

- 47a -

both attorneys at law, ever claimed that

there was a constitutional deprivation of

notice of the factual scenario upon which

the court "held" the petitioner in

contempt on November 10, 1988, or for

that matter, any violation of a statute

or rule of practice.

As to that portion of Practice Book

Section 988 that provides, "[p]rior to

the adjudication of guilt the judicial

authority shall...inquire as to whether

[the petitioner] has any cause to show

why he should not be adjudged guilty of

contempt by presenting evidence of

excusing or mitigating circumstances,"

there was no violation of the substance

of this portion of the rule. Any claim

that this portion was not literally

complied with overlooks the fact that the

petitioner availed himself of the

opportunity on November 10, 1988, to

- 48a -

obtain counsel who forthwith came to

court, spoke to the trial judge and was

shown a copy of the transaction at that

time. The trial court “was prepared to

continue and finish the summary contempt

proceedings at that time." We are

entitled to presume that the trial court

would have done so by according the

petitioner the due process prescribed by

Practice Book Section 988. See State v.

Crumpton, 202 Conn. 224, 231, 520 A.2d

226 (1987); Brookfield v. Candlewood

Shores Estates, Inc., 201 Conn. 1, 6, 513

A.2dad 1218 (1986). We have had occasion

to say: "“'Where a contempt occurs in the

presence of the court, no witnesses are

required in proof of the contempt, and

the court has inherent power to impose

punishment on its own knowledge and of

its own motion without formal

presentation or hearing of the person

- 49a -

adjudged in contempt. State v. Jackson,

147 Conn. 167, 169, 158 A.2d 166 [1960];

McCarthy v. Hugo, 82 Conn. 262, 266, 73

A. 778 [1909]....' Whiteside v. State,

[148 Conn. 77, 78, 167 A.2d 450 (1961))."

Moore v. State, 186 Conn. 256, 259, 440

A.2ad 969 (1982). As already noted,

petitioner's counsel, however requested

and was granted a continuance until the

next court day, at which hearing the

petitioner and his counsel were fully

heard before sentence was imposed. Once

again there was no claim raised below

that this portion of Practice Book

Section 988 was violated.

In addition, Practice Book Section 988

permits a criminal contempt to be

punished “summarily if the conduct

constituting the contempt was committed

in the actual presence of the court...and

such punishment is necessary to maintain

- 50a -

order in the courtroom." Although

punishment, in this case, was not imposed

“summarily,"’®

in a technically temporal

sense, it was imposed on the next court

day to which it had been continued at the

request of the petitioner's counsel. Of

course, "(d]jue process cannot be measured

in minutes and hours or dollars and

cents." Traylor v. Hayes, supra, 500.

Judgment forthwith is not required by the

test of Practice Book section 988.

‘ewSummary" in this context has been

said not to refer to the timing of the

action with reference to the offence but

refers rather to a procedure which

dispenses with the formality, delay and

digression that would result from the

issuance of process, service of complaint

and answer, holding hearings, to bring

evidence, awaiting briefs and the like.

Sacher v. United States, 343 U.S. 1, 39,

72 S.Ct. 451, 96 L.Ed.2d 717 (1952). The

term refers to the character of the

proceedings, not its timing; it does not

demand instant punishment. People v.

Fusaro, 18 Cal. App. 3d 877, 889, 956

Cal.Rptr. 368 (1971), cert. denied, 407

U.S. 912, 92 S.Ct. 2445, 32 L.Ed.2d 686

(1972).

- 51a -

Moreover, if the conduct of an attorney

warranted immediate summary punishment,

no possible prejudice to him could result

from some delay if it were appropriate.

The delay in imposing punishment here was

appropriate, especially when it came

about by the petitioner's request.

That the matter was not fully disposed

of until November 15, 1988, cannot

convert the contempt proceedings started

on November 10, 1988, into one requiring

a hearing before another judge. See

Matter of DeMarco, 224 N.J.Super. 105,

118, 539 A.2d 1230 (1988). Some Courts

have indicated that it is often useful to

postpone disposition of a contempt charge

against an attorney for a time after the

alleged contumacious conduct. Sacher v.

United States, supra 8-10; see Taylor v.

Hayes, supra, 498-500; sylvania v.

Local Union 542, International Union of

- 52a -

Operating Engineers, supra, 512-14 (trial

judge's twenty-four hour delay did not

bar summary contempt proceeding); United

States v. Schiffer, 351 F.2d 91, 93-94,

616 (9th Cir. 1965), cert. denied, 384

U.S. 1003, 86 S.Ct. i914, 16 L.Ed.24d

1017, reh. denied, 385 U.S. 890, 87 S.Ct.

12, 17 L.Ed.2d 121 (1966); In re Osborne,

344 F.2d 611, 616 (9th Cir. 1965). One

court has noted that when the misconduct

is not likely to be repeated, withholding

immediate action "has much in its

favor....A deliberate course encourages

a more dispassionate evaluation of the

incident." In re Contempt of Ungar, 160

N.J.Super. 322, 333, 389 A.2d 995 (1978) ;

see State v. Zoppi, 72 N.J.Super. 432,

436-37, 178 A.2d 632 (1962). In this

case, the matter was finally disposed of

on the next court day following the

incident. The trial judge was prepared

- 328 °-

to continue and finish the summary

proceedings on the day the contempt

occurred. He, however, decided to

continue the matter at the request of the

petitioner's counsel."” It would be

anomalous to conclude that, having

postponed a final disposition at the

petitioner's request, the trial court's

power to uphold the authority and dignity

of the court in this summary criminal

contempt proceeding thereby became so

attenuated and enfeebled as to render it

constitutionally impermissible for the

“There is no transcript of the

circumstances of the granting of this

continuance on November 10, 1988. We do,

however, know that after the court

recessed, following the contumacious

conduct, an attorney representing the

petitioner came to the trial judge's

chambers. What transpired at that time

is not in the transcript. The same

attorney also represented the petitioner

at the subsequent hearing on November 15,

1988. He, however, did not argue the

writ of error before this court.

- 9484 =

proceedings to be completed by this trial

judge on the next court day.

Further, the petitioner advances

another basis for arguing that a

different judge should have conducted the

hearing on November 15, 1988. The

petitioner now claims, although he never

did in the trial court, that his

"remarks" were directed at the trial

judge, specifically the sentence imposed.

He argues that his "statement" and the

trial judge's "reaction," i.@:,

immediately holding him in _ contempt,

were, without question, "causally

linked." The petitioner says’ that

"(wjhile it is not at all apparent that

[his] remarks constituted a 'personal

attack' upon the trial judge, the

circumstances’- reveal at minimum a

disagreement between the Court and [the

petitioner] to cause 'embroilment' of the

pa =

judge." The nature of the circumstances

on the record, the petitioner contends,

"reasonably suggests that marked personal

feelings were potentially present on both

Sides." He maintains that it is apparent

from the record that there was sufficient

reason and opportunity to convene a

hearing before a different judge. We

note that, despite his present clain,

there is nothing on the record to suggest

that he or his counsel ever raised the

matter of the recusal of the trial judge

in the trial court.”

The concern of due process is the fair

administration of justice. Mayberry v.

Pennsylvania, supra 465. There are times

when a judge, instead of representing

"'the impersonal authority of [the]

'’The transcript of the hearing of

November 15, 1988, is reproduced in the

state's brief.

«~ 368 <

law,'" has permitted himself to"become so

‘personally embroiled' with a lawyer in

the trial as to make the judge unfit to

sit in judgment on the contempt charge."

Id.; Offutt v. United States, 348 U.S.

iil, i7, 75 S.Ct. 21, 99 Lae. 11 (1994)

(in Offutt, there was "an intermittently

continuous wrangle on ané_e unedifying

level" between the trial judge and the

attorney over the fourteen days of the

trial). This case is not Offutt, as the

trial judge in this case was "not an

activist seeking combat [as in Offutt],"

nor is there any claim of any difficulty

between the trial judge and the

petitioner during the underlying murder

trial. Mayberry v. Pennsylvania, supra.

This trial judge did not find himself in

the position of the trial judge in

Mayberry, where during the course of a

twenty-one day criminal trial, the

“ 2?

defendant repeatedly insulted and

Slandered the trial judge calling hin,

inter alia, a "dirty son of a bitch," "a

dirty tyrannical old dog," a "stumbling

dog," a “fool," telling him to "go to

hell," "You need to have some kind of

psychiatric treatment. You're some kind

of nut," "I ask Your Honor to keep your

mouth shut while I'm questioning my own

witness" and "you ought to be Gilbert and

Sullivan the way you sustain the district

attorney every time he objects to the

questions. " Id., 457-62. In vacating

the contempt convictions” and remanding

for a trial before a different judge, the

°The trial judge in Mayberry v.

Pennsylvania, 400 U.S. 455, 912 S.Ct.

499, 27 L.Ed.2d 532 (1971), found that

Mayberry had committed one or _ more

contempts on eleven of the twenty-one

days of trial and sentenced him to not

less than one and not more than two years

for each of the eleven contempts or a

total of eleven to twenty-two years.

~ Fe =

United States Supreme Court said that a

judge, "vilified as was this Pennsylvania

judge, necessarily becomes embroiled in

a running bitter controversy" and "[nJjo

one so cruelly slandered is likely to

maintain that calm detachment necessary

for fair adjudication." Id., 465; see

Naunchek v. Naunchek, supra, 117.

In circumstances where’ the final

adjudication of criminal contempt and the

sentencing are postponed until after the

underlying trial, the later case of

Taylor v. Hayes, supra, is instructive on

the fundamental due process requirements

of the fourteenth amendment in state

court criminal contempt proceedings.

Factually, Taylor is significantly

20

distinguishable from this case. In

“Tn Taylor v. Hayes, 418 U.S. 488,

94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), the

petitioner Taylor represented the accused

in a Kentucky murder trial. During that

"turbulent" trial, the respondent judge

Hayes informed the petitioner on nine

- 59a -

Taylor, where final conviction and

punishment were delayed and the

petitioner was denied the opportunity,

although he requested it, to respond to

the trial judge, the court concluded that

the petitioner "was entitled to more of

a hearing and notice than he received

different occasions that he was. in

contempt of court. Id., 490. No sentence

was imposed during the trial on any

charge and petitioner was permitted to

respond to most, but not all, of the

charges. At the conclusion of the trial

and in the presence of the jury that had

rendered a guilty verdict, the trial

judge made a statement concerning the

petitioner's trial conduct. He also

refused the petitioner's request to

respond and imposed consecutive sentences

on nine counts of contempt aggregating

almost four and one-half years'

imprisonment, including sentences of one

year's imprisonment on each of two

counts. Later, the respondent amended

the judgment to eliminate the first

contempt charge but was silent on whether

all of the sentences were to- run

concurrently or consecutively. A few

days after the original sentence, the

respondent also barred the petitioner

from practicing law in the respondent's

division of the criminal branch of court.

- 608 -

prior to final conviction and sentence."

Where conviction and punishment are

delayed, Taylor noted that "'it is much

more difficult to argue that action

without notice or hearing of any kind is

necessary to preserve order and enable

[the court] to proceed with its

business.'" Id., 498. Taylor then

appropriately turned to Groppi's allusion

to the circumstance that the contemnors

in Sacher were "'given an opportunity to

speak'" and the "'trial judge [in Sacher]

would, no doubt[{,] have modified his

action had their statements’' proved

persuasive.'" Id.; see Groppi v. Leslie,

Supra, 506 n.11. Drawing further on

Groppi, Taylor stated that "Groppi

counsels that before an attorney is

finally adjudicated in contempt = and

sentenced after trial for conduct during

trial, he should have reasonable notice

- 61a -

of the specific charges and opportunity

to be heard on his own behalf" that could

include, it said, inquiry that the

"behavior at issue was not contempt but

acceptable conduct of any = attorney

representing his client; or, he might

present matters in mitigation or

otherwise attempt to make amends with the

court." Taylor v. Hayes, supra, 498, 499.

We recognize that there are cases where

"contemptuous conduct, though short of

personal attack, may still provoke a

trial judge and so embroil him in

controversy that he cannot ‘hold the

balance nice, clear and true between the

State and the accused....' Tumey v. Ohio,

273 U.S. 510, 532 (47 S.Ct. 437, 71 L.Ed.

749] (1927)." Id., 501. The inquiry in

making this ultimate judgment "must be

not only whether there was actual bias on

[the trial judge's} part, but also

- 62a -

whether there was ‘such a likelihood of

bias or an appearance of bias that the

judge was unable to hold the balance

between vindicating the interests of the

court and the interests of the accused.’

Ungar v. Sarafite, 376 U.S. 575, 588 [84

S.Ct. 841, 11 L.Ed.2d 921] (1964)." Id.

The conduct of both the trial judge and

the alleged contemnor are to be

considered in the calculus of the

ultimate determination of whether the

trial judge is disqualified.

With these considerations in mind, we

examine the record. It does not appear

that the trial judge ever became

embroiled in a “running controversy" with

the petitioner. Moreover, the

petitioner's conduct was not a "personal

attack" on the trial judge as his brief

all but explicitly concedes. In any

event, even though short of a “personal

- 63a -

attack," the trial judge's reaction to

the petitioner's conduct cannot fairly be

said to have been such that the trial

judge could not "'hold the balance nice,

clear and true between the state and the

[petitioner)...'" Taylor v. Hayes, supra,

501. The record does not disclose, as it

did in Taylor, "a mounting display of an

unfavorable personal attitude...and his

motives, sufficiently so that’ the

contempt issue should have been finally

adjudicated by another judge." Id., 501-

502. Significantly, the petitioner does

not refer to any instance on November 10,

1988, where the court became personally

embroiled with the petitioner. See United

States v. Renfroe, 634 F.Sup. 1536

(W.D.Pa), aff'd, 806 F.2d 254 (3d Cir.

1986). Unlike the petitioner in Taylor,

but like the petitioner in Ungar v.

Sarafite, supra, the contempt of the

- 64a -

petitioner in this case did not proceed

summarily to its conclusion in the

temporal context, but he was given notice

and afforded an opportunity for a hearing

that was conducted in a judicial setting

with proper decorum.

The transcript of the hearing of

November 15, 1988,°" also discloses that

“mhe transcript of the hearing of

November 15, 1988, discloses the

following:

"The Court: You wish to be heard?

"Mr. Klein: Yes, I do, your Honor.

"‘I am) Gerald Klein and I represent

Mr. Dodson as the court knows for the

purpose of this proceeding.

"Your Honor, since Thursday, I had an

opportunity to really educate myself on

some of the statues and cases that apply

to contempt, which occurs before the

court. I had briefly noted in chambers

State versus Andrew Maliszewski 36 Conn.

Supplement 547, which includes a very

thorough discussion between civil and

criminal contempt, and also between

summary and non-summary contempt.

"I have read the transcript of what

occurred Thursday. I was not, of course,

there. I asked the court before, and I

will ask again, to consider changing its

ruling. It appears that Mr. Dodson was

not expecting’ the legal justified

sentence that the court imposed and

reacted in an emotional way as attorneys

- 6584 -

from time to time do. I apologize to the

court on his behalf as he apologized to

the court.

"I would like to ask the court to

reconsider that, and if the court feels

that some sanction is in order, I would

again draw the court's attention to

[Section] 51-84 of the General Statutes,

which subject officers of this court,

attorneys~-at-law to certain rules and the

court can fine any lawyer up to one

hundred dollars or suspend or disbar that

lawyer for an infraction of those rules,

which is truly a civil matter. Any

action under [General Statutes Sections]

51-33 or 51-33a would, of course, be in

the nature of a criminal conviction. I

would respectfully suggest to the court

that that might be too harsh a penalty

upon this young attorney, who has been a

member of the bar five or six years and

in my opinion has a good reputation and

obviously one only has to glance at the

transcript to see that he spoke out of

line. These things happen from time to

time and I haven't seen him in that type

of a situation before, the many times I

have seen him appear before many judges.

"Again, your Honor, [Section] 51-33 to

so-called summary criminal contempt

indicates that the court may punish by

fine or imprisonment anyone who behaves

contemptuously or in a disorderly manner

up to one hundred dollars or six months

in jail or both.

"The Practice Book section in dealing

with this particular statute, Section 988

summary criminal contempt. Such

punishment as appears before the court

can take place if necessary to maintain

order in the courtroom. A judgment of

- 66a -

guilty of contempt shall include recital

of those facts on which the adjudication

is based. Prior to the adjudication of

guilt the judicial authority shall inform

the defendant of the accusations against

him and inquire as to whether he has any

cause to show why he _ should not be

adjudged guilty of contempt by presenting

evidence of excusing or mitigating

circumstances.

"Now, it is my understanding that

[Section} 51-33a non-summary criminal

contempt requires a warrant and filing of

an information and obviously from my

perspective in representing this man we

don't want that to occur.

"T don't know if the state is

interested in that type of prosecution.

I doubt it, but if the court is going to

proceed under [Section] 51-33 by way of

mitigation, I think I have stated or I

will put on the record what I told the

court on Thursday in chambers.

"T had occasion to have a discussion

with Mike Dodson earlier in the day about

this case, which very coincidentally I

know a lot about and as the State's

Attorney knows, I represented Mr.

Solomon, one of the victims. I

previously represented Tracey Fisher and

I just knew the cast of characters here.

Now, [a] very minor personal problem was

bothering him earlier in the day [that]

may have contributed to his outburst in

the courtroom.

"Again, I read the transcript and I

understand from speaking to other people

who were here, that the way he expressed

himself was worse than what you see in

black and white, but I would ask the

court to consider the various options

- er =

apparently that the court would have here

to fashion a sanction, if there is one,

into a non-criminal situation which

really if the court will not accept his

belated apology or second apology, a more

thorough apology to discipline him under

[Section] 51-84 which calls for just a

fine up to one hundred dollars.

"That is all I have to say.

"The Court: You have anything to say?

"Mr. Dodson: Yes, your Honor, please.

I have a brief statement.

"May it please the court, what I said

in court last Thursday was a spontaneous

and emotional response to-~ what I

perceived as a gross injustice done to my

client. No disrespect of the court was

intended and 4 4 my remarks were

interpreted as disrespect, I sincerely

apologize to the court. On the other

hand, to me silence in the face of

injustice is acquiescence with it. To

have said nothing would have been the

easier and safer thing to do, but not

something I could have done. As a

zealous advocate of my client's

interests, and as a human being, I had to

let the court know what I perceived as an

extreme miscarriage of justice. To that

extent I have no regrets and I would do

it again.

"Again, no disrespect shown to the

court and I apologize.

"The Court: The statement contains

portions that can be characterized as

nothing less than unmitigated gall. Your

statement concerning silence being

acquiescence apparently is lack of

recognition on your part that the process

provides an appellate review, which is

available to our client. Clients are not

- €7a -

petitioner's counsel had earlier asked

the trial judge to "consider changing his

ruling" of November 10, 1988, and that he

also asked the trial court to consider

doing so at the November 15, 1988

hearing. Petitioner's counsel spoke

first and gave his argument for

reconsideration, including the claim that

the petitioner had reacted "in = an

emotional way" to the sentence imposed on

Walker, which petitioner's counsel

referred to as "legal[{ly] justified."

Counsel also apologized to the court on

the petitioner's behalf. He referred to

to be served by outrageous outbursts of

their lawyers during a session in

Superior Court.

"The court will impose a fine of one

hundred dollars. These proceedings shall

be certified to the Judges of the

Superior Court, State Bar Grievance

Association and the Hartford County Bar

for their permanent records."

» 60m -

certain statutes“ on contempt and read

from Practice Book Section 988 and asked

that if the court were not going to

accept his apology, then the petitioner

be disciplined under General Statutes

Section 51-84, "which calls for just a

fine of one hundred dollars." That the

petitioner did not know "the nature of

[the] sanction" and that he asked for

"Clarification" at the hearing lacks

merit. He had actual knowledge of the

specific accusation.

That the petitioner was permitted to

address the trial court at the hearing to

urge that his behavior’ was "the

acceptable conduct of an attorney

representing his client," to "present

petitioner's counsel referred to

General Statutes Sections 51-33, 51-33a

and 51-84.

- 1a =

matters in mitigation"® or "otherwise

attempt to make amends with the court."

Taylor v. Haynes, supra, 499. The

petitioner was thus given this hearing

with the attendant right of allocution.

See id., 500, Groppi v. Leslie, supra,

504; Weiss v. Burr, 484 F.2d 973, 987

(9th Cir. 1973) cert. denied, 414 U.S.

1161, 94 $.C&. 924, 39 L.Ed.2a@ 115

(1974). Under due process concepts, it

is appropriate not only to allow the

alleged contemnor to be represented by

counsel, but also to allow him "to

retreat [if he so chooses} from his

*Spuring his presentation,

petitioner's counsel stated that he had

spoken to the petitioner on November 10,

1988, at a time before the conduct

involved in this appeal, and said that a

"very minor personal problem was

bothering [the petitioner] earlier in the

day [that] may have contributed to his

outburst in the courtroom." The

petitioner never referred to any such

"problem" when he addressed the court on

November 15, 1988.

- TM <

conduct, and to have the opportunity to

correct misunderstandings on the part of

the [trial] judge." Matter of DeMarco,

224 N.J.Super. 105, 120-21, 539 A.2d 1230

(1988); In re Kozlov, 156 N.J.Super. 316,

326, 383 A.2d 1158 (1978), rev'd on other

grounds, 79 N.J. 232, 398 A.2dad 882

(1979). In his remarks on November 15,

1988, the petitioner described his

conduct of November 10, 1988, as "a

spontaneous and emotional response to

what he perceived as a gross injustice

done to f[his]}] client," that "[nJo

disrespect of the court was intended" and

"if [his] remarks were interpreted as

disrespect, [he] sincerely apologize[d]

to the court." He immediately continued,

however, and said: "On the other hand, to

me Silence in the fact (sic) of injustice

is acquiescence with it. To have said

nothing would have been the easier and

- 7a *

safer thing to do, but not something I

could have done. As a zealous advocate

of my client's interests, and as a human

being, I had to let the court know what

I perceived as an extreme miscarriage of

justice. To that extent I have no

regrets and I would do it again. Again,

no disrespect shown to the court and I

apologize." (Emphasis' added.) After

hearing both the petitioner and his

counsel, it is apparent that the trial

court did not find their arguments

"persuasive"; see Taylor v. Hayes, supra,

498; so as to cause it to change its

ruling. The trial court then imposed the

punishment of a fine.

We recognize that the "sole credible

basis for the summary contempt process is

necessity, a need that the assigned role

of the judiciary be not frustrated." In

re Fair Lawn Education Assn., 63 N.J.

- 73a =

112, 114-15, 305 A.2d 72, cert. denied,

414 U.S. 855, 94 S.Ct. 155, 38 L.Ed.2d

104 (1973). Although this judicial

"power iS as ancient as the courts to

which it is attached and ‘as ancient as

any other part of the common law'"; In re

Caruba, 139 N.J.Eq. 404, 427, 51 A.2da

446, aff'd, 140 N.J.Eq. 563, 55 A.2d 289

(1947), cert. denied 335 U.S. 846, 69

S.Ct. 69, 93 L.Ed. 396 (1948), quoting

Rex v. Almon, 97 Eng.Rep. 94, 99 (K.B.

1765); it should be exercised sparingly

and in accordance with the requirements

of due process. Summary criminal

contempt should not be employed a a

means of shia but courts have the right

in appropriate circumstances to employ it

to vindicate their dignity and authority

upon any interference and to go no

further. See R. Goldfarb, The Contempt

Power (1963) p. 182. It follows from

- 74a -

what we have said that this was an

appropriate case for its exercise and

that that exercise comported with the

applicable law.

There is no error.

In this opinion, PETERS, Pe

CALLAHAN, GLASS, COVELLO and HULL, Js.,

concurred.

SHEA, J., dissenting. I agree with the

majority that there is a sufficient basis

in the record to support the trial

court's finding of contempt. I disagree,

however, with its conclusion that "there

was no violation of the substance" of the

following provision of Practice Book

Section 988 prescribing the procedure for

a summary criminal contempt proceeding:

"Prior to the adjudication of guilt the

judicial authority shall inform the

defendant of the accusation against him

and inquire as to whether he has any

- 75a -

cause to show why he should not be

adjudged guilty of contempt by presenting

evidence of excusing or mitigating

circumstances."

The state concedes that this provision,

which incorporates the basic

constitutional requirements of notice and

hearing contained in our federal and

state constitutions, "was not followed

literally." Indeed, the record

demonstrates that the trial court found

the petitioner in contempt without any

prior notice or opportunity to be heard

before that finding was made on November

10, 1988.

The majority attempts to justify this

oversight of the trial court by relying

upon the proceedings of November 15,

1988, when the petitioner was given an

opportunity to try to persuade the judge

to reverse the finding of contempt that

- 76a -

he had previously made. The majority

does not explain how this proceeding can

be deemed to cure the deficiency in the

earlier proceeding when the contempt

finding was made. Anyone familiar with

human nature must recognize the herculean

task imposed upon a litigant seeking

reversal from the same trier of a finding

of fact that has been publicly announced.

Such a belated opportunity to be heard is

not the equivalent of the notice and

hearing prior to any adjudication of

guilt that Section 988 prescribes.

The evident purpose of the rule is to

bar any adjudication of summary criminal

contempt without prior notice that the

offending person may be held in contempt

and without allowing him to _ present

“excusing or mitigating circumstances."

Since we have the rule, the trial judge

should have followed it or, as an

- 77a -

alternative, should have referred the

matter for prosecution under Practice

Book Section 991 and 992' as a nonsummary

criminal contempt before another judge.

Accordingly, I dissent.

‘wr’ Practice Book} Sec. 991. --

NATURE OF PROCEEDINGS

"A criminal contempt not adjudicated

under Sec. 987 shall be prosecuted by

means of an information. The judicia}

authority may, either upon his own order

or upon the request of the prosecuting

authority, issue an arrest warrant for

the accused. The case shall proceed as

any other criminal prosecution under

these rules and the General Statutes."

"(Practice Book } Sec. 992. --

DISQUALIFICATION OF JUDICIAL AUTHORITY

"The trial and all related proceedings

on which the contempt charges are based

shall be heard by a judicial authority

other than the trial judge or the

judicial authority who had issued the

order which was later disobeyed."

- 78a -

STATE OF CONNECTICUT

SUPREME COURT

NO. 13622

IN RE MICHAEL DODSON

>: APRIL 25, 1990

ORDER

THE MOTION OF THE PETITIONER, FILED

APRIL 6, 1990, FOR REARGUMENT AND

RECONSIDERATION, HAVING BEEN PRESENTED TO

THE COURT, IT IS HEREBY O R DE R E D

DENIED.

BY THE COURT

ZS/ Francis J. Drumm

CHIEF CLERK

NOTICE SENT: 4-25-90

SLITT & GERACE

JAMES THOMAS, A.S.A.

TIMOTHY SURGRUE, D.A.S.A.

STEVEN M. SELLERS, A.S.A.

CLERK HARTFORD J.D.

HON. JAMES HIGGINS

REPORTER OF JUDICIAL DECISIONS

- 79a -

SUPERIOR COURT

STATE OF CONNECTICUT

JUDICIAL DISTRICT OF HARTFORD

DECEMBER 9, 1988

DOCKET NO. 5 51 07

IN RE

CRIMINAL CONTEMPT PROCEEDINGS

MICHAEL J. DODSON

ARTICULATION

The respondent-attorney represented the

defendant in an murder trial. Upon

conviction, the sentencing hearing was

held on November 10, 1988. The court

imposed sentence.

Immediately thereafter, the respondent

proceeded to speak on the record, without

leave of the court, and the following is

a transcript thereof:

MR. DODSON: I think it is most

unusual. I think that is totally

outrageous. The court can do--

THE COURT: You may notify the

defendant--

MR. DODSON: Thirty years more on the

- 80a -

same set of facts, I think --

THE COURT: Notify the defendant of his

rights to appeal.

MR. DODSON: There is no basis--

THE COURT: You're out of order.

MR. DODSON: I know I am, but there is

no basis for that sentence.

THE COURT: He is held in contempt of

this court.

MR. DODSON: I apologize for my

remarks.

THE COURT: Notify the defendant of his

rights of appeal on the record.

During said outburst by the respondent

his voice was elevated and he threw his

pencil on the counsel table. As the

record indicates, he interrupted the

court's attempt to process the appeal

notice to the defendant and he

disregarded the court's warning that he

"was out of order..." He was held in

- 8la -

contempt of court.

The court thereupon recessed. The

respondent was asked to remain in the

courtroom. Telephone access was allowed

for him to obtain counsel, if he desired.

Shortly thereafter, Attorney Klein

arrived and came to chambers to indicate

his representation of the respondent-

attorney. A copy of the transcript of

the prior brief proceedings had been

prepared and was shown to Attorney Klein.

The court was prepared to continue and

finish the summary contempt proceedings

at that time. Request by Attorney Klein

for a continuance to Tuesday, November

15, 1988 was granted (the next day was

Friday - a holiday and on the following

Monday no court was scheduled due to

State Bar meeting).

These proceedings were Summary Criminal

Contempt under P.B. Section 988. The

- $28 -

contempt was self-evident.

Thereafter, a short hearing was held on

November 15, 1988. The respondent and

his counsel each made statements of

record. The court imposed a fine of

$100.00 in punishment of said contempt,

to uphold the dignity of the court. State

v. Jackson, 147 Conn. 167, 169 (1960).

A partial copy of the proceedings of

November 10, 1988 and the hearing of

November 15, 1988 are annexed hereto and

incorporated herein.

Higgins a: Ae

Higgins