In re Duckman

Annotate this Case

In re Duckman (2004-483); 179 Vt. 467; 898 A.2d 734

2006 VT 23

[Filed 10-Mar-2006]

[Motion for Reargument Denied 26-Apr-2006]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2006 VT 23

No. 2004-483

In re Appeal of Lorin Duckman Supreme Court

On Appeal from
District Court of Vermont,
Unit No. 2, Addison Circuit

March Term, 2005

Helen M. Toor, J.

William A. Nelson, Middlebury, for Appellant.

William H. Sorrell, Attorney General, and John Treadwell, Assistant
Attorney General, Montpelier, for Appellee.

John L. Pacht of Hoff, Curtis, Pacht, Cassidy, Frame, Somers & Katims,
P.C., Burlington, for Amicus Curiae Vermont Association of Criminal Defense
Lawyers.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General,
Montpelier for Amicus Curiae Office of the Defender General.

PRESENT: Dooley and Johnson, JJ., and Eaton, D.J., Gibson, J. (Ret.),
and Martin, Supr. J. (Ret.), Specially Assigned

¶ 1. DOOLEY, J. Attorney Lorin Duckman appeals a district
court order finding him in summary criminal contempt and placing him in
custody for forty-five minutes. On appeal, attorney makes numerous claims
regarding the court's contempt order and subsequent denial of his motion to
vacate. Generally, these claims can be summarized as follows: (1) attorney
was justified in disobeying the court's order because the court did not
have the authority to issue the order, and an exception to the collateral
bar rule applies; (2) the court's contempt order was based on erroneous
factual findings; (3) attorney was denied his due process guarantees of
notice, a hearing, and an impartial tribunal; and (4) the sentence was
beyond the court's discretion. We reject all of these claims and affirm
the rulings of the district court.

¶ 2. The events forming the basis for the contempt finding
occurred on August 30, 2004, when attorney was in Addison District Court
representing the defendant in the criminal trial of State v. Barrows, Nos.
163-3-03, 602-10-03, and 240-6-04 Ancr. The parties presented the court,
Judge Helen M. Toor presiding, with a written plea agreement. At the time,
the plea agreement included the proposed sentence, except for the element
of restitution, which the parties were still negotiating. The parties
discussed restitution and the defendant's ability to pay with the court.
The victim did not support the plea agreement and gave an unsworn statement
to that effect.

¶ 3. Before ruling on acceptance of the plea agreement, the court
turned to the defendant to conduct a Rule 11 colloquy (FN1) and allow the
defendant a chance to speak. Attorney objected, and asked that the court
rule on whether the plea agreement would be accepted before addressing his
client. The court declined to change its procedure, and attorney stated
that he would then be forced to withdraw his client's plea.(FN2)

¶ 4. The court explained that attorney had no independent
authority to withdraw his client's plea and must first consult with his
client. Attorney refused to adjourn and consult with his client and
claimed that the court was interfering with his attorney-client
relationship. The court ordered attorney to leave and speak with his
client. When attorney refused, the court found him in contempt for
expressly refusing to comply with the court's order and directed a court
officer to place him in a holding cell until 1:00 p.m., which was
approximately 45 minutes later.(FN3)

¶ 5. In a written order, the court certified the contempt
finding on August 31, 2004, stating that attorney's "direct refusal of the
court's order, along with [his] angry, confrontational, and disrespectful
manner . . . made it impossible to proceed with the case, evidenced an
utterly inappropriate manner for a lawyer to use in the courtroom towards a
judge, and constituted contempt of court." On September 9, 2004, attorney
filed a motion to vacate the contempt order, arguing that it was invalid on
several grounds. Attorney also requested an evidentiary hearing to present
his own version of the facts. On October 20, 2004, the court denied
attorney's request for a hearing, finding that it was unnecessary because
the contemptuous conduct took place in the court's presence.

¶ 6. The ruling on the motion to vacate was extensive and
addressed each of attorney's claims at length. The introduction set the
stage:

The undersigned has never in twenty-two years in the legal
profession . . . seen an attorney behave in as disrespectful
and angry a manner towards a judge as Attorney Duckman has on
repeated occasions, both in the courtroom and in chambers.
Prior to August 30, 2004, the court had attempted to address
Respondent's behaviors by, for example, speaking to
Respondent in chambers, asking one of his superiors to speak
to him, and clearly explaining the court's expectations of
him. He and his superior were also advised that if such
conduct continued the court would be forced to take more
serious action. On at least one prior occasion, Respondent
was warned that he was on the verge of being held in
contempt.

On August 30, not only did Respondent display the same rude
and disrespectful behavior that he had displayed on previous
occasions - repeatedly interrupting the judge - but he went
further than he had in the past. On this occasion, he
willfully refused to comply with a direct order of the court
intended to protect his client's right to determine whether
to proceed with a guilty plea pursuant to a proffered plea
agreement, or whether to withdraw from that agreement.
Moreover, Respondent's refusal forced the courtroom
proceedings to come to a halt. Because of this direct
refusal to comply with the court's order, as well as the
disrespectful way in which it was done and its interference
with the ongoing proceeding, the court concluded that it had
no choice but to take immediate action. Such action was
needed to punish the behavior, to deter similar future
behavior by Respondent, and to make clear to others that such
behavior would not be tolerated. Because Attorney Duckman's
actions demonstrated that repeated prior attempts to remedy
his behavior had been unsuccessful, the court also concluded
that a severe sanction was necessary. For all of these
reasons, the court imposed the sanction of a brief
incarceration until after the lunch hour.

The introduction was followed by a section entitled "Past Inappropriate
Conduct," which provided "a brief summary of some of the prior instances of
unprofessional conduct." The court explained the influence of these prior
acts:

These incidents were not the basis for the contempt finding,
but they contributed to the court's decision that there was
no less severe action that would adequately address the
situation. They also contributed to the court's decision to
impose the sanction it chose, rather than a monetary
sanction.

The court then went on to describe the events that led up to the contempt
finding. The court reiterated the reasons stated in the August order:
"The court's finding of contempt was based upon the willful refusal of
counsel to comply with a clear order of the court, as well as the 'angry,
confrontational, and disrespectful manner' in which he did so." The court
analyzed the grounds necessary for an adjudication of contempt and held
that they were present. The court concluded:

As noted above, the court had been faced over a period of months
with repeated challenges to its authority, displays of anger,
and other unprofessional conduct by Attorney Duckman. . . .
[C]ounsel was well aware of the court's expectations, and
kinder and gentler efforts to modify his behavior had been
unsuccessful.

If the conduct on August 30 had been the first incident of
oppositional and disrespectful behavior by Attorney Duckman,
the court likely would not have taken the action it did.
Generally, the court seeks to speak at the bench or in
chambers with attorneys about any issues with their courtroom
behavior. With another attorney, that would have been the
likely course of action. Here, however, the prior history
with Attorney Duckman had made it clear that lesser steps
would be ineffective. Given the interruption of the
proceedings, the willful and disrespectful nature of the
conduct, and the court's past experience with the attorney in
question, it was apparent that a severe sanction was
necessary to convey the message that such behavior was
unacceptable.

¶ 7. Under our procedural rules,

[A] criminal contempt may be punished summarily if the judge
certifies that he saw or heard the conduct constituting the
contempt and that it was committed in the actual presence of
the court. The order of contempt shall recite the facts and
shall be signed by the judge and entered of record.

V.R.Cr.P. 42(a). Although this rule provides the procedure for
adjudicating a criminal contempt, common law dictates the substantive
elements of summary contempt. State v. Allen, 145 Vt. 593, 600, 496 A.2d 168, 172 (1985). Summary contempt is "an act 'committed directly against
the authority of the court, tending to impede or interrupt its proceedings
or lessen its dignity.' " Id. (quoting In re Morse, 98 Vt. 85, 90, 126 A. 550, 551 (1924)) (emphasis omitted). Trial courts have discretion to issue
contempt orders, and reversal of a contempt judgment is appropriate only if
"the trial court's discretion was either totally withheld or exercised on
grounds clearly untenable or unreasonable." Id. We review the exercise of
this discretion carefully in cases of summary contempt because in those
proceedings "the otherwise inconsistent functions of prosecutor, jury and
judge are united in one individual." United States v. Flynt, 756 F.2d 1352, 1363 (9th Cir. 1985). Therefore, we view the decision to use summary
contempt power "as an extraordinary exercise to be undertaken only after
careful consideration and with good reason." Id. We are also mindful that
the power of summary contempt is necessary to "preserve order and decorum"
in the courtroom. Sacher v. United States, 343 U.S. 1, 21 (1952).

¶ 8. We first address attorney's claim that the court had no
authority to order him to speak with his client, so he was justified in
disobeying its order. Attorney attacks the validity of the ruling on
several grounds, including that: (1) the court's plea process did not
comply with the requirements of Vermont Rules of Civil Procedure 11 and 32;
(2) requiring his client to speak before acceptance of the plea agreement
would violate his client's right against self-incrimination; (3) if his
client spoke he could be subject to prosecution for perjury later; and (4)
his client would risk a harsher sentence if he spoke before acceptance of
the agreement. The State maintains that the court complied with the
requirements of Rules 11 and 32, and additionally submits that the
collateral bar rule precludes challenging the validity of the court's order
by engaging in contemptuous conduct. We do not reach attorney's
substantive arguments because we conclude that the collateral bar rule
prevents attorney from challenging the validity of the court's order as a
defense to the judgment of contempt.

¶ 9. We reemphasize at the outset the grounds for finding
attorney in contempt. He was not found in contempt for refusing to go
along with the court's plea consideration procedure. Obviously, his
opposition to the procedure was the context that led to the contempt
judgment; it was not, however, the reason for that judgment. Instead, he
was found in contempt for refusing to discuss the withdrawal of the plea
agreement with his client, along with his angry, confrontational, and
disrespectful manner. The narrow reason for the contempt finding answers
many of the objections made by attorney in this part of his argument.

¶ 10. The collateral bar rule provides that individuals cannot
challenge the validity of a court order by violating the order. See State
v. Crown, 169 Vt. 547, 549, 726 A.2d 493, 495 (1999) (mem.) ("We do not
generally allow a person who is under a court order to challenge it by
violating it."); State v. Austin, 165 Vt. 389, 401, 685 A.2d 1076, 1084
(1996) (articulating rule and holding that probationer may not challenge
validity of probation condition at revocation proceeding); Allen v. Iowa
Dist. Court, 582 N.W.2d 506, 508-09 (Iowa 1998) (explaining that court
orders must be obeyed, even if erroneous). Generally, attorneys must
comply with a court's ruling regardless of whether the ruling has legal
support. See Maness v. Meyers, 419 U.S. 449, 458 (1975) ("Persons who make
private determinations of the law and refuse to obey an order generally
risk criminal contempt even if the order is ultimately ruled incorrect.").
Thus, an attorney cannot generally defend against a contempt finding for
violating an order by arguing that the underlying order was unlawful. See
Nakell v. Att'y Gen. of N.C., 15 F.3d 319, 324 (4th Cir. 1994) (dismissing
attorney's claim that his disobedience of court instruction was justified
because his legal position was correct). The rationale for this rule is to
protect the efficient administration of justice and to encourage litigants
to follow court orders. In re Hern Iron Works, Inc., 881 F.2d 722, 726
(9th Cir. 1989). If an attorney feels that the court's order is illegal or
incorrect, the attorney's obligation is to object and preserve the point of
error for appeal. Maness, 419 U.S. at 459.

¶ 11. The rule is not without exception. "Courts have declined
to apply the collateral bar rule when there was not an adequate and
effective remedy to review the challenged ruling, or where compliance could
cause irreparable injury which may not be repaired by appellate
vindication." Allen, 582 N.W.2d at 509 (citing cases).(FN4) Attorney
urges us to find an exception to the collateral bar rule in this case,
claiming that compliance with the court's order would have resulted in
irreparable harm. Attorney's basic argument is that following the court's
order would have jeopardized his client's Fifth Amendment rights.

¶ 12. In support of his argument, attorney cites Maness for the
proposition that an attorney cannot be punished for violating a court order
if the attorney believes in good faith that obedience might implicate his
client's Fifth Amendment rights. Although we recognize this general
principle, we do not agree that Maness is controlling in this situation.
In Maness, a lawyer was held in contempt for advising his client that he
could refuse to produce allegedly obscene magazines on the ground that they
might incriminate him. 419 U.S. at 451-52. At the outset, the United
States Supreme Court reiterated that court orders must be obeyed, even if a
person believes they are incorrect. Id. at 458. The Court held, however,
that the attorney could not be subjected to contempt for advising his
client to invoke a Fifth Amendment privilege, even if this advice caused a
witness to disobey a court order, where the attorney had a good faith
belief that the material may have incriminated his client. Id. at 465.

¶ 13. The situation on appeal differs in several respects from
Maness. First, and most importantly, in Maness, there was a risk to the
client's Fifth Amendment rights, and here no such risk existed. Attorney
opines that "[t]he self-incrimination risk of an unprotected allocution . .
. is no different from the disclosures ordered in Maness." As we
emphasized above, we disagree with attorney's characterization of the risk
because the order that subjected attorney to contempt was not an order to
the client to make potentially incriminating statements. The court
directed attorney to discuss the implications of withdrawing from the plea
agreement with the client. This order did not impact the client's
constitutional protection against self-incrimination.

¶ 14. Second, the attorney in Maness was punished for the
advice he gave his client, not for the attorney's direct disobedience in
the courtroom. Id. at 466. There, counsel had advised his client that
producing documents could incriminate him and therefore urged the client to
invoke his Fifth Amendment right against self-incrimination. The Supreme
Court noted that there were strong policy reasons for protecting a lawyer's
ability to give honest advice to clients. Id. ("If performance of a
lawyer's duty to advise a client that a privilege is available exposes a
lawyer to the threat of contempt for giving honest advice it is hardly
debatable that some advocates may lose their zeal for forthrightness and
independence."). Whether clients choose to accept the attorney's advice
and risk contempt charges themselves is another matter. The Maness Court
was concerned with preserving the attorney's ability to speak candidly to
his client about legal options. There was no claim that the attorney acted
in direct disobedience of a court order. By contrast, attorney here was
not punished for furnishing his client with faulty advice, but for failing
to comply with the court's direction to consult with his client.

¶ 15. Last, in Maness, there was no indication that the
attorney acted in defiance of the court. In fact, the Supreme Court
emphasized that the record was "devoid of evidence of contumacious conduct
or any disrespect for the court." Id. at 469; see Waste Conversion Inc. v.
Rollins Envtl. Servs. (NJ), Inc., 893 F.2d 605, 611 (3d Cir. 1990)
(reversing contempt and emphasizing that attorneys' "conduct was neither
defiant nor disrespectful"). In contrast, here, the court found that
attorney was "angry, confrontational, and disrespectful" during the
proceedings.

¶ 16. Attorney also argues that other harms that could not be
remedied on appeal might have resulted from complying with the court's
instruction. These alleged harms include the court's rejection of the
agreement, harm to the attorney-client relationship, and an imprudent
response by attorney's client. At best, these harms are speculative. In
any event, they do not amount to the type of irreparable harm necessary to
justify disobeying the court's order to consult with the client. See In re
Hern Iron Works, 881 F.2d at 728-29 (noting that the irreparable injury
exception is applied in only limited cases, namely those implicating Fifth
Amendment privileges). Therefore, we conclude that the collateral bar rule
prevents attorney from attacking the validity of the court's procedure, and
we decline to address attorney's arguments pertaining to the merits of the
procedure.

II.

¶ 17. Attorney next challenges whether his actions were
sufficient to constitute contempt, alleging that the court's factual
findings were clearly erroneous. Attorney does not dispute that he
violated the court's order, and we conclude that the court's finding that
attorney's demeanor was disrespectful was not erroneous.

¶ 18. The court gave attorney a direct order and, even though
attorney disagreed with the order, he was still bound to follow it, as
discussed above. Attorney's disobedience of a direct order was sufficient
to support the contempt finding. Compare Pounders v. Watson, 521 U.S. 982,
989 (1997) (per curiam) (upholding state trial court's finding of summary
contempt where attorney "willfully refused to comply with the court's
order"), and Nakell, 15 F.3d at 324 (affirming contempt where a "rational
trier of fact could find that Nakell willfully disobeyed a lawful order of
the court"), with United States v. West, 21 F.3d 607, 608-09 (5th Cir.
1994) (reversing trial court's contempt order because attorney did not
disobey an order or obstruct the administration of justice). The point was
squarely covered in Sacher:

Of course, it is the right of counsel for every litigant to
press his claim, even if it appears farfetched and untenable,
to obtain the court's considered ruling. Full enjoyment of
that right, with due allowance for the heat of controversy,
will be protected by appellate courts when infringed by trial
courts. But if the ruling is adverse, it is not counsel's
right to resist it or to insult the judge-his right is only
respectfully to preserve his point for appeal.

343 U.S. at 9. Furthermore, an attorney "never has the right to let his
temper, his zeal, or his intention lead him into disrespectful, accusative
language to the court." MacInnis v. United States, 191 F.2d 157, 159 (9th
Cir. 1951). Thus, we look not only to the words uttered but also to "the
connection in which they were used, the tone, the look, the manner, the
emphasis." In re Cooper, 32 Vt. 253, 256 (1859).

¶ 19. Here, the court found that attorney, in a disrespectful
manner, willfully violated its order to talk with the client before
attempting to withdraw from the plea agreement, disrupting the proceedings
and making it impossible to proceed. Although lawyers are encouraged to
pursue their clients' interests zealously, as the United States Supreme
Court explained, "[a]dvocacy that is 'fearless, vigorous, and effective,'
does not extend to disruptive conduct in the course of trial and in knowing
violation of a clear and specific direction from the trial judge."
Pounders, 521 U.S. at 991 (quoting Sacher, 343 U.S. at 13).

¶ 20. In this case, attorney's tone, look, manner, and emphasis
played a role in the court's determination that attorney was in contempt.
In re Cooper, 32 Vt. at 256. Ordinarily, we would be left to determine
these circumstances from the transcript alone, an almost impossible task.
For this case, however, the in-court events were videotaped to create the
court record, and we have been able to view the videotape of the
proceedings.(FN5) See V.R.Cr.P. 53.1(b) (videotape is the official record
on appeal). While the tape does not fully capture the emotion of the
moment, it does show that attorney was upset, as he stated, and angry. At
the time the contempt order was issued, effective communication between the
judge and attorney had ceased, and attorney appeared to be defiant. We
find no abuse of discretion in the adjudication that attorney was in
contempt.

¶ 21. Having concluded that the court's factual findings were
not erroneous, we also address the arguments of amici in this case that
threatening public defenders with summary contempt will have a chilling
effect on access to adequate representation. We acknowledge that continual
threats of contempt may chill the bar's ability to adequately represent
client interests. We also recognize, however, that contumacious behavior,
namely, disobedience of a court order, cannot generally be excused as
zealous advocacy. In re Ellenbogen, 72 F.3d 153, 158 (D.C. Cir. 1995). As
the above-quoted passage from Sacher reflects, supra, ¶ 18, the duty of
an advocate when faced with a clear court order, even one that is wrong, is
to comply and respectfully seek review in a higher court if necessary.
Both amicus briefs proceed from the premise that the order that counsel
violated was an order to have the client give his presentence allocution
before the court decided whether to accept the plea agreement, or at least
an order that attorney convey to the client the wisdom of going forward
under the court's procedure. We have held above that this view of the
record is erroneous, and we stress it here again. The court's order was
only that attorney consult with the client, and it gave no direction as to
what advice attorney should give the client. Nor does this case require us
to detail which powers belong to the lawyer and which belong to the client.
See State v. Bean, 171 Vt. 290, 300, 762 A.2d 1259, 1266 (2000) (noting
certain decisions which belong exclusively to the client). While attorney
may have believed that a dispute over his power was coming, his refusal to
talk with the client was premature.

¶ 22. In short, we do not view this case as one in which the
outcome will chill zealous advocacy, as opposed to deter contemptuous
behavior. The line that attorney crossed was bright, and he did so out of
anger at the judge's procedure, not out of a thoughtful judgment that his
actions were necessary to protect his client's interests. Our procedures
provide methods to challenge a judge's ruling that violates the governing
rules, particularly where constitutional rights are in jeopardy.
Contemptuous behavior is not one of those methods.

III.

¶ 23. Next, attorney makes a number of objections to the
procedures, or absence of procedures, that were employed. The first two
objections argue that the trial judge should have been disqualified from
determining whether attorney was in contempt, and that due process of law
required a hearing on the prior instances of inappropriate conduct the
judge relied upon. To address these arguments, we look first at the
general procedures for criminal contempt.

¶ 24. Criminal contempt proceedings are governed by Vermont
Rule of Criminal Procedure 42, which is "virtually identical to Federal
Rule 42." Reporter's Notes V.R.Cr.P. 42. As stated above, Rule 42(a)
contains an authorization for a summary contempt adjudication like the one
in this case. Rule 42(b) contains an authorization for "Disposition Upon
Notice and Hearing," which applies when Rule 42(a) does not. Rule 42(b)
provides for notice and hearing, trial by jury, and trial before a
different judge if the charge involves "disrespect to or criticism of a
judge."

¶ 25. In his first two procedural arguments, attorney claims
that all or part of the procedures provided in Rule 42(b) were required in
this case. First, he argues that Judge Toor should have been disqualified
because she had become embroiled in a running controversy with attorney and
was motivated by "perceived past slights and insulting behavior." Second,
he makes a related argument that he was found in contempt for conduct
occurring over an extended period of time, some of which was not on the
record in the courtroom, and thus due process requires that he have an
opportunity to be heard on all the charges. If his arguments are correct,
then summary contempt adjudication could not occur in this case.

¶ 26. There are two justifications for summary contempt
adjudication: efficiency and necessity. Such adjudication is efficient
because the contemptuous conduct has occurred on the record, and before the
judge, so that further factual development is unnecessary. Sacher, 343 U.S. at 9. Summary contempt adjudication is necessary in order to remove
obstructions to the fair administration of justice. Offutt v. United
States, 348 U.S. 11, 14 (1954). Over time, the necessity justification has
become the primary reason for the use of summary procedures.

¶ 27. With this background, we address attorney's argument that
Judge Toor should not have presided over the contempt adjudication. The
ground for such disqualification first arose in Offutt, where the trial
court conducted a summary contempt adjudication of trial counsel after a
trial had closed and the case was in the hands of the jury. The Court
observed that trial judges should not "sit[] themselves in judgment upon
misconduct of counsel where the contempt charged is entangled with the
judge's personal feeling against the lawyer." Id. The Court, however,
cited and quoted Cooke v. United States, which held that such a rule
applied where " 'conditions do not make it impracticable, or where the
delay may not injure public or private right.' " Id. (quoting Cook v.
United States, 267 U.S. 517, 539 (1925)). This point is reinforced in
Mayberry v. Pennsylvania, 400 U.S. 455 (1971). There, the Court discussed
in detail the judge's options where a lawyer or litigant personally attacks
the judge:

A judge cannot be driven out of a case. Where, however, he
does not act the instant the contempt is committed, but waits
until the end of the trial, on balance, it is generally wise
where the marks of the unseemly conduct have left personal
stings to ask a fellow judge to take his place.

Id. at 463-64.

¶ 28. We addressed this issue in State v. Allen, 145 Vt. at
601-02, 496 A.2d at172-73, where defendant argued that contempt involving
personal insults had to be referred to another judge at a later time under
Rule 42(b). We stated that a "rule requiring that all flagrant personal
insults be responded to only after delay would undermine the court's
dignity and its authority. A judge is not merely an individual; he or she
represents the authority of the law." Id. at 601, 496 A.2d at 172.

¶ 29. In general, the Offutt rule-that judges must turn contempt
adjudications over to colleagues if they are personally embroiled in
disputes with the litigant or lawyer accused of contempt-is not applicable
if the judge is acting under Rule 42(a) "the instant the contempt is
committed," Mayberry, 400 U.S. at 463, out of necessity to prevent
obstruction of a proceeding. See Barlow v. State, 513 S.E.2d 273, 277-78
(Ga. Ct. App. 1999) (allowing summary contempt after parties disobeyed
direct, lawful order and warned parties behavior was contumacious); see
generally R. Donaldson, Annotation, Disqualification of Judge in State
Proceeding to Punish Contempt Against or Involving Himself in Open Court
and in His Actual Presence, 37 A.L.R.4th 4004, (1985 & Supp. 2005)
(categorizing cases involving disqualification of judges in contempt
proceedings). The differences in the requirements of Rules 42(a) and 42(b)
are especially significant in small states like Vermont, where immediate
action by another judge is usually impossible; as such, summary contempt
adjudication in such states would also therefore be impossible.
Nonetheless, by this holding, we are not ruling that personal hostility can
never reach the stage where disqualification from the imposition of summary
contempt is necessary to protect fundamental fairness even where
obstruction of the proceeding is occurring. The circumstances of the
personal hostility, however, must be extreme to warrant that result.(FN6)
For example, in Sandstrom v. Butterworth, 738 F.2d 1200 (11th Cir.
1984)-the only case cited by attorney in which an appellate court ruled
that the trial judge should have been disqualified from imposing an
immediate summary contempt sentence during trial-the trial judge accused
counsel of "acting like an animal" and told him that "for ten years you
have had your nauseating effect upon this Court and every other court in
this courthouse." Id. at 1203, 1204. Counsel's personal retorts were
equally extreme. The personal embroilment was far beyond any disqualifying
circumstances that might be present here.

¶ 30. Even if the Offutt standard applied, we cannot conclude
on this record that Judge Toor should have been disqualified. Judge Toor
was sitting in a county where one judge covers all courts: civil, criminal,
and family. She was at the end of a six-month rotation. Criminal defense
for the indigent is provided by a statewide public defender system. 13
V.S.A. §§ 5201-5277. Attorney was a public defender for the county. In
this role, he was appearing regularly before Judge Toor. Inevitably, in
that extensive interaction, each had views about how the other handled
cases, both generally and in specific instances.

¶ 31. As attorney himself has stressed in his brief, we want
contempt citations to be used sparingly and in narrow circumstances. Thus,
to the extent a judge has concerns about the behavior of a lawyer who is
appearing regularly in the judge's court, we want the judge to find an
outlet for those concerns short of contempt. In the ruling on the motion
to vacate the contempt order, Judge Toor detailed the actions she had taken
in the past to correct attorney's behavior.

¶ 32. We recognize that attorney vigorously disputes that he
had behaved inappropriately in the past, just as he disputes that his
behavior was contemptuous on August 30. But this difference over
professional conduct does not mean that the judge had developed personal
animus against attorney. There is no allegation that attorney made
personal attacks on the judge, the most common circumstances in the Offutt
line of cases. See Mayberry, 400 U.S. at 465-66 (noting judge's difficulty
in holding impartial contempt hearing after being repeatedly insulted
throughout trial); United States v. Pina, 844 F.2d 1, 13-14 (1st Cir. 1988)
(same). The sentence is not so excessive that it indicates improper
motives. Although the judge made serious charges against attorney, all
charges involved his professional behavior in specific instances. She said
she acted "to punish the behavior [on August 30], to deter similar future
behavior by Respondent, and to make clear to others that such behavior
would not be tolerated."(FN7)

¶ 33. We also recognize that, like attorney, Judge Toor appears
from the videotape to have become upset and angry over her interaction with
attorney.(FN8) Perhaps her state of mind was demonstrated by her order to
have attorney taken away in shackles, an order that was never implemented,
and one that she regretted. If anything, however, her visible mental state
showed she was reacting to the events of August 30, not imposing a
calculated punishment for past behavior.

¶ 34. In conclusion, if we found personal animus in this case
sufficient to disqualify Judge Toor, we would have to find such personal
animus in most cases, which would greatly reduce the availability of
summary contempt even when necessary to prevent the obstruction of
proceedings. We hold that Judge Toor was not disqualified from holding
attorney in summary contempt.

¶ 35. We have a similar response to attorney's related
argument that due process requires that he have an opportunity to respond
to the judge's charges in the ruling on the motion to vacate the contempt
order. To address this argument, we start with its presentation to the
trial court. Following the contempt certification, attorney filed a motion
to vacate the contempt order. The motion presented primarily legal
argument, but also asked for an evidentiary hearing on the following
issues: (1) whether attorney intended any contempt or disrespect to the
court; (2) whether his intent was to represent his client "professionally,
effectively and to the best of his abilities"; (3) whether his demeanor was
"angry, confrontational, and disrespectful" as the court had found; (4)
whether the contempt order was unprecedented in its harshness; and (5)
whether the contempt order has had a chilling effect on trial lawyers in
Vermont. The court denied the request for an evidentiary hearing because
the conduct occurred in the court's presence so that the court had
"first-hand knowledge of the relevant facts."

¶ 36. On appeal, attorney reiterates the arguments made to the
trial court but relies primarily on the court's ruling with its recitation
of past inappropriate conduct. He argues that because the court stated
that these past actions were part of the reason for the contempt citation,
he was entitled to present evidence to meet these charges.

¶ 37. We cannot accept attorney's premise that the ruling on
the motion to vacate showed that the contempt citation was made to punish
attorney's past behavior. The court stated specifically that "[t]hese
incidents were not the basis for the contempt finding." The court stated
the basis for the contempt finding:

Because of this direct refusal to comply with the court's
order, as well as the disrespectful way in which it was done
and its interference with the ongoing proceeding, the court
concluded that it had no choice but to take immediate action.
Such action was needed to punish the behavior, to deter
similar future behavior by Respondent, and to make clear to
others such behavior would not be tolerated.

On the other hand, the court made statements that indicate that she used
discretion in determining whether a contempt citation was necessary, as
well as discretion in choosing the sanction. In words emphasized by
attorney, she stated:

These [prior] incidents were not the basis for the contempt
finding, but they contributed to the court's decision that
there was no less severe action that would adequately address
the situation. They also contributed to the court's decision
to impose the sanction that it chose, rather than a monetary
sanction.

These words are fully consistent with her statement that the contempt
sanction was imposed for attorney's actions on August 30. As we stressed
above, there will always be a context for a contempt sanction, and we do
not want the court to strike too soon with a summary contempt judgment.
Moreover, the sanction chosen is a criminal sentence that reflects the
crime committed as well the circumstances and record of the person before
the court. The one hallmark of the reported cases is that the judge
involved rarely, if ever, finds contempt at the first opportunity,
attempting other ways of correcting the offending conduct. That is a main
reason why we accord discretion to a summary contempt judgment. See Allen,
145 Vt. at 600, 496 A.2d at 172 ("Orders of contempt are discretionary
acts.").

¶ 38. Properly exercised, summary criminal contempt is
consistent with due process. In re Oliver, 333 U.S. 257, 275 (1948). We
cannot conclude that criminal contempt was improperly exercised here. If
anything, in comparison to other cases described in the reported decisions,
the trial judge in this case was more candid and detailed in describing why
she held attorney in contempt and why she imposed the sanction she did.
Nevertheless, as we have held above, valid grounds existed to hold attorney
in contempt, and the judge acted within her discretion in doing so, and in
imposing the sanction she chose. Thus, the court did not err in refusing
to consider the evidence attorney proffered in his motion to vacate. We do
not believe that the additional information contained in the written ruling
on the motion to vacate retroactively created a due process deficiency in
the summary contempt adjudication or created the right to a hearing on the
motion to vacate. If we found a due process right to a hearing on how the
judge exercised her discretion, we would essentially eliminate the use of
summary criminal contempt.(FN9)

IV.

¶ 39. Attorney makes two additional procedural arguments: the
trial court could not find attorney in contempt without first giving him an
opportunity to respond to the contempt charge; and the court could not hold
him in contempt without first warning him that his conduct would produce
that result. The first argument was squarely rejected in State v. Allen,
145 Vt. at 602 n.2, 496 A.2d at 173 n.2. We see no reason to reconsider
that holding in this case where the direction to attorney was clear and was
stated three times, and attorney's rejection of the judge's direction was
equally clear. Attorney explained why he would not follow the court's
direction; an additional opportunity to explain his conduct would have made
little difference. Thus, even those courts in jurisdictions that
ordinarily require that the person charged with summary contempt be given
an opportunity to respond, see, e.g., Doral Produce Corp. v. Paul Steinberg
Assocs., 347 F.3d 36, 45 (2d Cir. 2003) (recognizing factors that obviate
need to afford alleged contemnor right to defend himself), would be
unlikely to reverse because of the absence of such opportunity in this
case.

¶ 40. We also reject attorney's second procedural argument.
This argument was not raised in attorney's motion to vacate and was
therefore waived. Even if we reached the merits, we would conclude it is
based on a factual error. Shortly before attorney was found in contempt,
the trial court warned attorney that he might be held in contempt.
Attorney has interpreted this warning as responding only to attorney's
practice of talking over the judge. We read the warning above, supra, ¶
4 n.3, more broadly. We believe the court stated that attorney should stop
arguing with the directions of the court or he would be held in contempt.

¶ 41. In any event, we would not reverse for lack of a warning
in this case. Attorney urges us to adopt the relevant standard of the
American Bar Association Criminal Justice Standards. ABA Criminal Justice
Standards, Special Functions of the Trial Judge, Standard 6-4.3 (1980).
That standard requires a clear warning if the conduct was not "willfully
contemptuous." Id., Standard 6 4.2(a) The court found the conduct
willfully contemptuous. Thus, the Standards would not require a warning in
this case.

¶ 42. Last, attorney claims that, even if his acts were
contemptuous, the court's sentence was an abuse of its discretion because
it constituted a punishment and was unduly influenced by past history.
"Punishment for contempt committed in the presence of the court is within
the court's sound discretion and in the absence of an abuse thereof will
not be disturbed on appeal." MacInnis, 191 F.2d at 162. Imprisonment is
recognized by other courts as an appropriate sanction for disobedience of
court orders. Id. (affirming three-month sentence for contempt consisting
of disregarding orders and disrupting trial). We find no abuse in the
forty-five-minute incarceration sanction.

¶ 43. As we have held above, we conclude that the court acted
to punish attorney's behavior on August 30 and not to punish his behavior
in the past. The court may, however, consider past behavior in fashioning
an appropriate sanction. See Allen, 145 Vt. at 602, 496 A.2d at 173
(concluding that trial court did not abuse its discretion in imposing
ninety-day sentence for contempt where contemnor had a history of
convictions, rather than removing contemnor from courtroom). Thus, the
court appropriately considered attorney's prior behavior in determining its
sentence for contempt.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

-------------------------------------------------------------------------
Dissenting

¶ 44. EATON, D.J., dissenting. The power of a trial court to
summarily punish an attorney or party for criminal contempt is unique, as
this case demonstrates. It is the only circumstance I am aware of in which
a court may deprive an individual of liberty with none of the procedural
safeguards that normally attend such a deprivation. It is for precisely
this reason that the power of summary punishment of contempt has been
strictly limited by the courts.

¶ 45. To my knowledge, this is the first time in Vermont that
an attorney has been criminally convicted and held in jail for efforts to
protect a client's rights. This is of even greater concern given that
attorney in this case never had the opportunity for a hearing. Rather, he
was subject to a criminal conviction and yet received less due process than
someone who is charged with a noise complaint or a speeding ticket. While
the trial judge must have the power to maintain order and preserve respect
for the institution of the court, this cannot be done at the expense of
procedural fairness.

¶ 46. Under Vermont Rule of Criminal Procedure 42(a), summary
punishment may only be imposed where the misconduct constituting contempt
occurs in the immediate presence of the court. In this case, there were
two stages in the trial court's decision: (1) finding that an act of
contempt had been committed; and (2) deciding the scope and severity of
punishment for the contempt. With regard to the first stage, the trial
court arguably relied solely on attorney's contemporaneous conduct (i.e.,
his disobedience of a court order on August 30, 2004) in finding that
attorney had committed an act of contempt. But with regard to the second
stage, the trial court explicitly stated that it considered and relied upon
a wider array of alleged past conduct by attorney in deciding the scope and
severity of attorney's punishment. Under these circumstances, the trial
court exceeded the scope of its authority in summarily punishing attorney
without a hearing on his disputed past conduct. I would reverse and remand
for such a hearing.(FN10)

¶ 47. The trial court's initial written certification of the
contempt, entered the day after the trial court ordered attorney held in
custody, focused on attorney's conduct of that day, stating that attorney's
"direct refusal of the court's order, along with the angry,
confrontational, and disrespectful manner in which [attorney] did so, made
it impossible to proceed with the case." The court went on to note that
"this [was] not the first time [attorney] has behaved inappropriately in
the courtroom, as well as in chambers. The court has been extremely
patient with his outbursts in the past, but this conduct cannot continue."

¶ 48. The trial court elaborated on its reasoning in a much
lengthier written order denying attorney's motion to vacate. At the
outset, the court stated that because the decision turned on conduct that
occurred in the court's presence, an evidentiary hearing was unnecessary.
However, the discussion of the contempt finding leads off with the
observation that "[t]he undersigned has never in twenty-two years in the
legal profession . . . seen an attorney behave in as disrespectful and
angry a manner towards a judge as [attorney] has on repeated occasions,
both in the courtroom and in chambers." Further, an entire section of the
order is devoted to discussion of "Past Inappropriate Conduct." In this
section, the court explains that while "[t]hese incidents were not the
basis for the contempt finding, . . . they contributed to the court's
decision that there was no less severe action that would adequately address
the situation." In conclusion, the court reiterates that it "had been
faced over a period of months with repeated challenges to its authority,
displays of anger, and other unprofessional conduct" by attorney. The
court emphasizes that "[i]f the conduct on August 30 had been the first
incident of oppositional and disrespectful behavior by [attorney], the
court likely would not have taken the action it did," but "the prior
history" and "past experience" with attorney made it "apparent that a
severe sanction was necessary to convey the message that such behavior was
unacceptable." Thus, the behavior being punished ("such behavior") by all
appearances includes the past misconduct referenced earlier in the same
paragraph.

¶ 49. The trial court's order supporting the finding of
contempt and its punishment in essence characterizes attorney's conduct on
August 30, 2004 as the "last straw" in a series of encounters over an
extended period of time where attorney was disrespectful of the court.
Indeed, the tone and reasoning of the order are permeated with an awareness
and condemnation of alleged past misconduct by attorney, undermining the
court's assertion that the contempt finding itself was not based, at least
in part, on attorney's past misconduct. However, even assuming that the
contempt finding was based solely on attorney's contemporaneous conduct of
August 30, 2004, the court explicitly concedes that attorney's past
misconduct was determinative in the second stage of its decision: punishing
attorney with 45 minutes in custody.

II.

¶ 50. Under Vermont Rule of Criminal Procedure 42, the trial
court's admitted consideration of attorney's past conduct should have
entitled attorney to the minimal due process protections of notice and an
opportunity to be heard. As discussed by the majority, Rule 42 provides
two distinct procedures for addressing contempt: summary disposition and
disposition upon notice and a hearing. Under the language and structure of
the rule, notice and a hearing is the default procedure that should be
followed unless the special circumstances warranting summary disposition
are present.(FN11) See V.R.Cr.P. 42(b) (criminal contempt shall be
prosecuted upon notice except where circumstances of 42(a) apply) & 42(a)
(criminal contempt may be punished summarily where misconduct was committed
in the actual presence of the court); see also State v. Lafayette, 152 Vt.
108, 111 n.2, 564 A.2d 1068, 1069 n.2 (1989) (characterizing summary
punishment of contempt under Rule 42(a) as exception to general rule of
notice and hearing).

¶ 51. Case law interpreting Rule 42 and the analogous federal
rule has emphasized that: (1) summary disposition is an extraordinary and
narrow power; (2) this power is necessary for courts to maintain order
where misconduct threatens the administration of justice; and (3) the fact
that the misconduct occurs in the presence of the court and that there is
no delay in finding and punishing the contempt excuses the absence of
normal due process protections.

Because the summary contempt sanction is not subject to the
usual requirements of a jury trial or notice and opportunity
to be heard, summary contempt is a rule of necessity,
reserved for exceptional circumstances and a narrow category
of contempt. [Rule 42] allows summary proceedings for
criminal contempt based on misconduct in the court's
presence. . . . Both the court's role as an eyewitness and
the desirability of a swift response militate against
observance of the usual procedural safeguards.

United States v. Marshall, 371 F.3d 42, 45-46 (2d Cir. 2004) (citations,
footnote, and quotations omitted). In the absence of these circumstances,
summary punishment of contempt is not available. See, e.g., Walker v.
Walker, 123 Vt. 430, 432, 192 A.2d 460, 461 (1963) (holding that due
process requirement of an opportunity to be heard applies where alleged
contemptuous conduct took place out of presence of court) (superseded by
rule on other grounds as recognized by Sacher v. Sacher, 155 Vt. 20, 29,
581 A.2d 737, 742 (1990)).

¶ 52. Thus, the justification for permitting the power of
summary punishment is twofold: (1) because the misconduct is immediately
observed by the court, evidentiary and procedural concerns are not at
issue; and (2) in the absence of a summary procedure, the trial court would
be unable to put an immediate end to misconduct disrupting the
administration of justice. The justifications for summary punishment, in
turn, define and limit the scope of the appropriate use of the summary
punishment power. Stated another way, the power of summary punishment is
necessary to remove obstacles to the administration of justice, but it must
be used only to serve this end-not to punish past conduct. See Pounders v.
Watson, 521 U.S. 982, 987-88 (1997) (recognizing that summary punishment of
contempt is appropriate where "the court must act instantly to suppress
disturbance or violence or physical obstruction or disrespect to the
court") (citation and quotations omitted); United States v. Cooper, 353 F.3d 161, 164 (2d Cir. 2003) (noting that "[t]he summary contempt power is
generally limited to cases in which immediate corrective steps are needed
to restore order and maintain the dignity and authority of the court")
(quotations omitted).

III.

¶ 53. The majority recognizes that the trial court considered
past misconduct in exercising its discretion with respect to punishment,
ante, ¶ 37, but justifies the trial court's reliance on past misconduct
in two ways. First, noting that "there will always be a context for a
contempt sanction," the majority draws an analogy between summarily
punishing contempt and criminal sentencing. Id. The majority asserts
that, just as a criminal sentence reflects not only the crime for which the
defendant was convicted, but also surrounding circumstances, a trial court
should be able to consider past misconduct in summarily punishing contempt.
Id. The critical distinction the majority overlooks, however, is that a
criminal defendant has already been afforded ample due process protections
throughout the course of prosecution, conviction and sentencing. See,
e.g., In re Carter, 2004 VT 21, ¶ 49, 176 Vt. 322, 848 A.2d 281 (criminal
defendant's right to counsel); State v. Merchant, 173 Vt. 249, 258, 790 A.2d 386, 393 (2001) (criminal defendant's right against
self-incrimination); In re Cardinal, 162 Vt. 418, 419, 649 A.2d 227, 229
(1994) (criminal defendant's right to jury trial); V.R.Cr.P. 32 (procedural
protections during sentencing). Further, under Rule 32(c)(4), a criminal
defendant has a right to comment and present evidence on sentencing
issues.(FN12)

¶ 54. By contrast, a party or attorney subject to summary
punishment enjoys none of these protections because the contempt finding is
made on the spot. For example, attorney in this case vigorously disputes
the trial court's characterization of his alleged past misconduct. But
unlike any other criminal defendant, who would be entitled to comment and
present evidence relevant to sentencing under Rule 32(c)(4), attorney had
no opportunity to contest these allegations. While summary process for
contempt may be desirable for the reasons discussed above, the absence of
due process protections at any stage defeats the analogy drawn by the
majority to the process of criminal sentencing.

¶ 55. Second, the majority draws a comparison between the facts
of this case and those in State v. Allen, 145 Vt. 593, 496 A.2d 168 (1985).
Specifically, the majority cites Allen for the proposition that "[t]he
court may . . . consider past behavior in fashioning an appropriate
sanction." Ante, ¶ 43. The Allen Court, however, did not squarely
address this question, and the decision does not support such a broad or
conclusive proposition. Rather, the Court in Allen reasoned that the
severity of the penalty for contempt in that case was not excessive because
(1) as a repeat offender, the defendant was on notice as to proper decorum
in a courtroom, and (2) the defendant had been disruptive previously during
the same hearing. See Allen, 145 Vt. at 602, 496 A.2d at 173. Here, there
is no issue of whether attorney was aware of proper decorum, nor was
consideration of his past misconduct limited to behavior during the same
hearing (or even in the same case). Neither of the elements of the holding
in Allen supports the proposition that an attorney's or party's past
misconduct-on multiple earlier dates and during multiple different
proceedings-may be considered in deciding the severity of punishment for
contempt, especially where that conduct is disputed.

¶ 56. Finally, in addition to the above disagreements with the
majority's approach, I also believe the majority spends too much time
examining the question of whether the trial court suffered from personal
bias in this case. Ante, ¶¶ 23-34. This is understandable because
attorney focuses on the same issue in his appellate brief. I believe,
however, that the personal bias issue is beside the point here. In short,
while personal bias on the part of the court must be shown to demonstrate
entitlement to a hearing before a different judge, the presence or absence
of personal bias has no bearing on the more fundamental question of whether
attorney was entitled to the basic procedural protections of Rule 42(b). A
lack of personal animus is not equivalent to due process. Under the rule,
entitlement to notice and a hearing is assumed unless the trial court makes
findings supporting imposition of summary punishment. Focusing on whether
attorney made a showing of personal bias has the effect of suggesting that
attorney must affirmatively demonstrate his entitlement to notice and a
hearing, which is not the case.

¶ 57. As recognized in Allen, the fundamental distinction
between situations where summary punishment is available and those where it
is not is whether punishment is immediate or delayed, not whether the
contempt is personal or impersonal in nature. See Allen, 145 Vt. at 601,
496 A.2d at 172-73 (holding that the trial court should be empowered to
deal with some conduct immediately, to preserve authority of the court,
even if contempt is personally directed at judge). The majority itself
notes that the Offutt rule (i.e., disqualification of the presiding judge
if contempt is personal in nature) does not apply where the trial court is
acting under Rule 42(a) "the instant the contempt is committed." Ante, ¶
29 (quoting Mayberry v. Pennsylvania, 400 U.S. 455, 463 (1971)). This
further emphasizes that the narrow purpose of summary punishment is to put
an end to disruptive conduct without delay-not to punish past behavior or
even deter future misdeeds.

IV.

¶ 58. In my view, the trial court exceeded the scope of its
authority in employing summary punishment under the facts of this case.
The majority contends that "[i]f we found a due process right to a hearing
on how the judge exercised her discretion, we would essentially eliminate
the use of summary criminal contempt." Ante, ¶ 38. I respectfully
disagree. I believe for the power of summary punishment of contempt to be
used effectively and fairly there must be a clear rule for when use of that
power is permissible. The distinction between conduct that is observed and
punished simultaneously and alleged past misconduct is a bright-line rule
that would be easy to enforce and understand. Any time a finding of or a
sentence for contempt relies on alleged past misconduct, and therefore
requires factfinding beyond the scope of what the judge has immediately
observed, the additional procedural protections of Rule 42(b) should apply.

¶ 59. I am fully cognizant of the need and right of the trial
judge to control the courtroom and maintain the dignity and authority of
the court. In that regard, the presiding judge must be given the authority
to determine and punish summary contempt when it occurs in the judge's
presence. Here, it is admitted that the trial court imposed a sentence
that it would not have but for the alleged instances of past misconduct.
These allegations should have been tested in the crucible of a hearing.
Attorney here has been denied any opportunity to do so. I cannot in good
conscience agree that he has been afforded the protections that due process
requires.

¶ 60. For these reasons, the trial court should have allowed a
hearing on the motion to vacate the contempt order, and I would remand to
the trial court for that purpose. I respectfully dissent.

____________________________________
District Judge, Specially Assigned

------------------------------------------------------------------------------
Footnotes

FN1. Before accepting a guilty plea, the court must personally address the
defendant in open court and inform him of certain rights, including the
consequences of a guilty plea. V.R.Cr.P. 11(c).

FN2. Although the discussion in the courtroom revolved around whether
or not attorney's client would withdraw his plea, the real issue was
whether the client would withdraw from the agreement, as no plea had yet
been taken. The court began by addressing the client:

THE COURT: All right, Mr. Barrows, I'm going to go over this
with you and then I'm going to hear whatever you have to say
and I'm going to make a decision at that point about whether
I'm going to accept this proposal or not. All right?
MR. DUCKMAN: Judge, I would prefer that you make the
decision before he makes any admissions.
THE COURT: Well, I'm not going to because I want to hear
what he has to say to me in his allocution.
MR. DUCKMAN: But then we don't have a . . .
THE COURT: That's my view.
MR. DUCKMAN: But then we don't have an agreement.
THE COURT: That's correct and that's the way it works.
MR. DUCKMAN: Okay, well, then we're not going to go forward.
THE COURT: Then you can withdraw the plea. Anything he said
is no longer . . .
MR. DUCKMAN: No, I don't agree with that. I think that if
you have an agreed-upon sentence.
THE COURT: Mr. Duckman, that's how it always works.
MR. DUCKMAN: But I, but I . . .
THE COURT: I take the plea, I hear what everybody has to
say, I decide. One of the things I take into account is what
your client has to say about his responsibility, that's one
of the issues that a judge always takes into account.

FN3. The exchange proceeded as follows:

THE COURT: Well, Mr. Duckman, hold on. I think you need to
consult with your client. I don't think you have the right
to now withdraw his plea without consulting with him. And
I'm sure . . .
MR. DUCKMAN: I think you're interfering with my relationship
with him right now, Judge. I'm withdrawing . . .
THE COURT: Well, I'm going to ask you-stop.
MR. DUCKMAN: Okay.
THE COURT: Or I will hold you in contempt of court.
MR. DUCKMAN: I haven't done anything contemptuous.
THE COURT: Stop. Stop. I don't think it's an appropriate
thing for a lawyer to withdraw a client's plea without
discussing it with the client, the pros and cons, the costs
and benefits. You did this once before, I didn't say
anything about it. I do not think it's appropriate. I think
you need to consult with your client about the risks of going
to trial if he does that. If after you've spoken with him,
he comes in and tells me he wishes to not go forward, I will
accept that, but I need to hear it from him, okay?
MR. DUCKMAN: I think, Judge, what you're doing is
interfering with my relationship with my client.
THE COURT: You can . . .
MR. DUCKMAN: I would ask for, I would ask for a continuance
right now so I can prepare appropriate papers and perhaps I
will come back and ask for a change of venue. But I don't
think that I am prepared to proceed.
THE COURT: Well, I'm not accepting that request. So why
don't you go out . . .
MR. DUCKMAN: Well, I'd ask for a continuance.
THE COURT: No.
MR. DUCKMAN: And I think it's inappropriate.
THE COURT: Go speak with your client.
MR. DUCKMAN: I think it's inappropriate to threaten me with
contempt.
THE COURT: Stop. Mr. Duckman, I've told you what to do. Go
speak with your client. I will be available in ten minutes
once you've talked to him.
MR. DUCKMAN: Judge, I don't think you can tell me to go talk
to my client.
THE COURT: Well, I just did.
MR. DUCKMAN: But I'm not going to go do it.
THE COURT: In that case, you are in contempt of court, put
him in there and we'll speak at one o'clock, under shackles.
MR. DUCKMAN: Judge, I think I'd like an opportunity to be
represented by counsel.
THE COURT: Mr. Duckman, I've just found you in summary
contempt by ignoring the Court's orders.
MR. DUCKMAN: It may well be an order that the Court
shouldn't have given me.
THE COURT: Excuse me. If you continue talking when I am
speaking, I will hold you overnight, do you understand. I am
holding you until one o'clock. I find that you are in
contempt by ignoring my orders. We will see you at one.

FN4. Two additional exceptions that have been applied in some cases
are not applicable in this case. "[I]f the issuing court lacks
subject-matter jurisdiction over the underlying controversy or personal
jurisdiction over the parties to it, its order may be violated with
impunity." In re Novak, 932 F.2d 1397, 1401 (11th Cir. 1991); see Crown,
169 Vt. at 549-50, 726 A.2d at 496 (holding alleged defect was not
jurisdictional). In addition, in some jurisdictions, orders that are
transparently invalid or frivolous are excepted from the collateral bar
rule. See, e.g., United States v. Mourad, 289 F.3d 174, 178 (1st Cir.
2002).

FN5. Although the availability of the videotape is helpful in our
review, it is not the same as hearing the presentation and observing the
presenters in person. Thus, the availability of the videotape does not
change our standard of review. See State v. Freeman, 2004 VT 56, ¶ 8,
177 Vt. 478, 857 A.2d 295 (mem.) (holding court need not substitute its own
judgment as to how event occurred based on testimonial evidence because of
video tape of incident).

FN6. If the cause was based on conduct and events in other proceedings,
the basic standard would be that for disqualifying a trial judge
generally-that is, where the "judge has a personal bias or prejudice
concerning a party or a party's lawyer." Code of Judicial Conduct, A.O.
10, Canon 3(E)(1)(a). Thus, the situation must be sufficiently extreme
that the judge should have been disqualified from the proceeding that gave
rise to the summary contempt judgment.

FN7. In a separate argument, attorney claims that the court misused
criminal contempt as a behavior modification tool, made necessary because
"kinder and gentler efforts to modify his behavior had been unsuccessful."
While the judge used those words in the ruling on the motion to vacate,
there is no indication that the judge attempted to lead attorney into
contemptuous behavior in order to sanction. Instead the record reflects
that Judge Toor believed that holding attorney in contempt was the
necessary consequence of his actual behavior on August 30.

FN8. In fact, Judge Toor described herself as angry in her ruling on
the motion to vacate.

FN9. This is our fundamental disagreement with the dissent. The
dissent denies that its desired rule- "[a]ny time a finding of or a
sentence for contempt relies on alleged past misconduct," summary contempt
cannot be used-would in effect eliminate the use of summary criminal
contempt. Post, ¶ 58. We reiterate that there will almost always be a
short or long history of improper actions before the judge concludes that
only an adjudication of contempt will allow the proceeding to go forward
properly.

FN10. While not the focus of this dissent, I also disagree with the
majority that the collateral bar rule applies to preclude review of the
merits of the trial court's order. The collateral bar rule mandates that
attorneys preserve for appeal their objections to a trial court's order
rather than simply disobey the order. Maness v. Meyers, 419 U.S. 449,
458-59 (1975). As the majority recognizes, a necessary exception to this
rule exists where effective appellate review is not available. See ante,
¶ 11. Yet the majority does not suggest how attorney in this case could
have obtained review of the court's order other than through his
disobedience.

Here, attorney's objection to consulting with his client would not be
a basis for reversible error such that it could be reviewed in conjunction
with an appeal in the underlying criminal matter. Neither was this a
situation that would recur. Cf. State v. Cherryhomes, 840 P.2d 1261, 1263
(N.M. App. 1992) (reviewing contempt charge for attorney's violations of
dress code). Stated another way, there was no way for attorney to both
obey the order and preserve the point for appeal. Because attorney would
not otherwise have had an opportunity for appellate review, he should be
able to address the merits of the trial court's order in the appeal of his
contempt conviction.

Upon reviewing the merits of the trial court order, I would first
consider whether attorney was properly concerned about a potential
violation of his client's Fifth Amendment rights and whether his
disobedience of the trial court's order to consult was motivated by that
concern. While compliance with the court's order to consult may not have
led directly to such a violation, continued participation in the plea
process as interpreted by the trial court could have jeopardized the
client's rights indirectly. Second, upon reviewing the videotape of the
hearing, I would conclude that attorney's behavior was not so disruptive as
to support a finding of contempt based on his tone and attitude alone.
While attorney might and should have conducted himself with greater
decorum, these events all took place in a few moments under escalating
conditions. Many courts routinely hear far worse from pro se litigants.

FN11. Rule 42(b) also provides for the right to a jury trial, but
this would only be applicable to the finding of contempt, not the
sentencing phase.

FN12. Not only does an attorney subject to summary punishment for
contempt receive less due process than a criminal defendant, he or she also
receives less due process than an attorney sanctioned under the inherent
powers of the court. In such cases, the sanctioning court must not only
make a finding that the attorney acted in bad faith, but also provide
notice and an opportunity for a hearing. Lawson v. Brown's Home Day Care
Center, 2004 VT 61, ¶ 14, 177 Vt. 528, 861 A.2d 1048 (mem.). If the
sanction imposed is punitive in nature, additional due process protections
may apply. Id.

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