# Appendix — Dodson v. Superior Court of Connecticut

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 896

## Text

% 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 = 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-
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 : 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2580%3A2. Public record. Not legal advice.