State v. Gundlah

STATE_V_GUNDLAH.92-409; 160 Vt. 193; 624 A.2d 368


  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.


				  No. 92-409


  State of Vermont                             Supreme Court

					       On Appeal from
       v.                                      District Court of Vermont,
					       Unit No. 1, Windsor Circuit

  Charles Gundlah, ex rel.                     September Term, 1992
  Susan Smallheer


  George F. Ellison, J.

  Gary Kessler, Supervising Appellate Prosecutor, Montpelier, for
    plaintiff-appellee

  Richard V. Aborjaily and John W. Vorder Bruegge, Law Clerk (On the Brief),
    Norwich, for defendant-appellee,

  Robert B. Hemley and Dennis R. Pearson of Gravel and Shea, Burlington, for
    appellant, Susan Smallheer


  PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       ALLEN, C.J.   Appellant Susan Smallheer appeals a contempt order that
  did not recognize her asserted newsgatherer's qualified testimonial
  privilege.   Because defendant Charles Gundlah subsequently pled nolo
  contendere, appellant's testimony will no longer be needed at the trial and
  her appeal regarding the newsgatherer's privilege is moot.  We therefore
  dismiss her appeal of the contempt order; however, we reverse on attorneys'
  fees and prospective coercive contempt sanctions.
       This appeal arises out of the criminal prosecution of Charles Gundlah
  for an alleged escape from the Woodstock Correctional Center on April 8,
  1991.  Appellant is a reporter who interviewed defendant by telephone and
  published the results of the interviews in articles appearing in the May 1,
  1992 and May 30, 1992 issues of the Rutland Herald.  The May 1 article
  contains an alleged confession to the escape by Mr. Gundlah.
       The State placed appellant on its witness list and, in response,
  defendant subpoenaed her to a deposition.  Appellant appeared at the
  deposition but, claiming a newsreporter's privilege, refused to answer
  questions and filed a motion to quash the subpoena.  The trial court denied
  her motion to quash and granted both the State's and defendant's motions to
  compel.  After appellant continued to refuse to answer questions regarding
  her interview with defendant, the trial court found her in contempt of court
  and ordered the payment of $3,985.05 as compensatory damages to the State
  and defendant's attorney, with additional prospective fines of $1,000 for
  the first day and $2,000 per additional day of continued disregard for the
  court's motion to compel.
       Appellant raises three issues on appeal.  First, she claims that the
  trial court failed to recognize a newsgatherer's qualified First Amendment
  testimonial privilege.  Her second claim is that the Vermont Constitution
  provides more protection to the press than the First Amendment and protects
  a newsgatherer's qualified testimonial privilege.  Finally, appellant argues
  that the trial court abused its discretion by ordering attorneys' fees and
  prospective sanctions in its contempt order.
       Appellant's first two arguments are moot.  On March 10, 1993, defendant
  pled nolo contendere to the charge of escape.  Because there will be no
  trial, appellant's testimony is no longer sought.  A case becomes moot when
  the issues are no longer "live".  Doria v. University of Vermont, 156 Vt.
  114, 117, 589 A.2d 317, 319 (1991).  Moreover, the mootness doctrine
  requires that there be an actual controversy in existence at all stages of
  review.  Id.  Although mootness generally precludes appellate review, we
  recognize an exception to the doctrine in cases that are capable of
  repetition but evade review.  Id. at 118, 589 A.2d  at 319.  In cases that
  are not class actions, this exception is narrowly limited to situations
  where two elements are present:  (1) the duration of the challenged action
  was too short to be fully litigated prior to its expiration, and (2) there
  is a reasonable expectation that the same complaining party will be
  subjected to the same action again.  In re S.H., 141 Vt. 278, 281, 448 A.2d 148, 149 (1982).  A repetition of the fact pattern presented seems highly
  unlikely and certainly does not rise to a reasonable expectation.  The issue
  is moot and is dismissed.
       Appellant also claims that the trial court erred by imposing
  compensatory fines in the form of attorneys' fees and prospective contempt
  sanctions.  We agree.
       Judgments of contempt lie squarely within the trial court's
  discretionary powers and will not be disturbed on appeal unless "the court's
  discretion was 'entirely withheld or was exercised on grounds clearly
  untenable.'"  Vermont Women's Health Center v. Operation Rescue, __ Vt. __,
  __, 617 A.2d 411, 414 (1992) (quoting Persons v. Lehoe, 150 Vt. 582, 585-86,
  554 A.2d 681, 683 (1988)).  Although attorneys' fees are "ordinarily awarded
  in contempt actions as part of the compensation due complainants for [the]
  actions [of the party in contempt]," id. at __, 617 A.2d  at 416 (citations
  omitted), Vermont continues to follow the "American Rule," which requires
  that each side bear its own attorney's fees.  Departure from the American
  Rule is warranted only in cases of exceptional circumstances.  Id. at __,
  617 A.2d  at 417.  This Court upheld attorneys' fees in Vermont Women's
  Health Center because defendants had forced plaintiffs into a second round
  of litigation to enforce a clearly defined right that should have been
  respected without judicial intervention.  Id.
       Unlike Vermont Women's Health Center, the facts of this case do not
  warrant departure from the American Rule.  A defendant's right to compel a
  newsreporter's testimony has not been clearly defined, as evidenced by the
  multitude of conflicting cases.   Appellant should not be penalized for
  bringing a colorable constitutional claim by having to pay attorneys' fees
  for the other party.  Thus, the trial court's award of attorneys' fees was
  in error.
       Appellant also claims that the trial court erred in ordering pro-
  spective coercive fines.  In the context of contempt proceedings, purely
  prospective fines are not favored in Vermont.  Id. (citing State v. Pownal
  Tanning Co., 142 Vt. 601, 606, 459 A.2d 989, 992 (1983)).  Where the
  circumstances are "extreme and extraordinary," however, prospective coercive
  contempt sanctions are allowed.  Id.  In Vermont Women's Health Center, the
  pertinent circumstances that supported prospective coercive sanctions were
  the violent tendencies of defendants, the magnitude of the harm, that
  defendants' acts were "willful, outrageous, and presented a clear and
  present danger to the public health and safety", and that "defendants
  claimed to act under 'higher law' and did not feel bound by the injunction."
  Id.  None of these circumstances is present in this case; therefore,
  prospective coercive sanctions are not appropriate.  To hold otherwise would
  cause a party to pay prospective coercive sanctions during the time period
  pending appeal.(FN1) This would unreasonably chill a person's ability to bring
  constitutional claims before this Court.
       The finding of contempt is dismissed as moot and the order awarding
  attorneys' fees and prospective sanctions is reversed.

					  FOR THE COURT:




             				  Chief Justice
      

 FN1.        Although appellant received a stay pending appeal in the present
  case, the stay was ordered after the contempt order and is not guaranteed in
  future cases.