Opinion
No. State 82.
Argued November 30, 1971. —
Decided January 6, 1972.
APPEAL from a judgment of the circuit court for Rock county: CLARENCE TRAEGER, County Judge of Dodge County, Presiding. Reversed.
For the appellant there was a brief by Campbell, Brennan, Steil Ryan, S.C., and Thomas J. Basting and James E. Welker, all of Janesville, and oral argument by Mr. Basting.
For the respondent the cause was argued by Robert J. Vergeront, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
This is an appeal from a judgment dated May 6, 1970, of the circuit court for Rock county which found and adjudged the defendant, Attorney Mark L. Korb, guilty of two charges of contempt of court, one on the 8th day of April, 1970, and the other on the 6th day of May, 1970. He was fined $25 on each charge and, in the event the fines were not paid, he was to be committed to three days' confinement in the Rock county jail on each charge.
The case arises out of an alleged traffic violation in which Korb's client, Harvey G. Dickson of Morton Grove, Illinois, was charged with a criminal misdemeanor in violation of sec. 346.57(3), Stats. — operating a motor vehicle too fast for the existing conditions. Dickson was given a citation to appear in branch II of the county court of Rock county on January 26, 1970, at 2 p.m.
Prior to the date of appearance, Attorney Korb was retained by Dickson to represent him in the proceedings. Using a form customarily employed in Rock county, Dickson executed a "Request Case Be Tried In Absentia," wherein he stated that he had authorized his attorney, Mark L. Korb, to represent him at any stage of the proceedings and further requested that the case be tried in his absence. The records of the county court, branch II, indicate that prior to or on the return date on the citation, the request for trial in absentia was accepted for filing. On the return date, Attorney Korb appeared for the defendant and entered a plea of not guilty.
Upon the request for a trial by jury, the court ordered that the case be transferred to the circuit court for Rock county for trial. Subsequent thereto, a document carrying the caption, "Order for Pre-Trial Conference," was mailed to Dickson's attorney, Mark L. Korb, and to the district attorney. The document bore the heading, "Circuit Court Chambers, Janesville, Wisconsin." The document recited:
"The above case having been filed in Circuit Court,
"It Is Hereby Ordered that a pretrial conference be held in the third-floor hearing room in the Courthouse in the City of Janesville, on the 8th day of April, 1970, at 4:15 P.M. o'clock. The defendant, his attorney, the prosecutor and the arresting officer are to be present. A copy of this order will be mailed to the defendant or his attorney and to the prosecutor.
"District Attorney "Mark L. Korb "Dated March 17, 1970 "Harold V. Schmidley Clerk of Courts"The purported signature is a rubber-stamp impression. At that time, County Judge CLARENCE TRAEGER was, for some purposes, assigned as acting judge for the circuit court for Rock county. On March 30, 1970, Attorney Korb sent the following letter to Judge TRAEGER at the courthouse at Juneau, Wisconsin, in Dodge county, where Judge TRAEGER normally presided. The letter stated:
"Honorable Judge Clarence Traeger County Court Branch II County Courthouse Juneau, Wisconsin
Re: Rock County Circuit Court State of Wisconsin vs. Harvey Dickson Dear Judge Traeger:I have been informed that you will be the presiding judge at the pre-trials to be held on April 8, 1970 in the Circuit Court for Rock County, Wisconsin. The above matter is scheduled for 4:15 p.m. on that date. Mr. Dickson is an Illinois resident and has filed an authorization with the court permitting me to enter all appearances on his behalf.
I have been discussing this matter with the office of the district attorney and hope that we will be able to present some kind of a resolution at the time of the pre-trial. However, because of the high economic cost involved in having Mr. Dickson come up from Illinois, I would appreciate your waiving his appearance at the time of pre-trial.
Sincerely yours, CAMPBELL, BRENNAN, STEIL RYAN, S.C. By [Mark L. Korb] MLK:tme"On April 1, 1970, Judge TRAEGER mailed the following reply to Attorney Korb:
"I have your letter of March 30, 1970, wherein you request that the defendant need not appear in person at the time of the pretrial.
"Personally, I do not understand how a pretrial can be meaningful with the defendant not present, and that is why I always desire to have him present, and insist on it.
"The only way that I will allow the defendant not to make an appearance with you on April 8, 1970, is that you have authority to plead your client guilty should the facts and circumstances of the case warrant that."
The record then shows that on April 8, 1970, Attorney Korb appeared before Judge TRAEGER at the courthouse in Janesville, apparently at the third-floor hearing room referred to in the notice mailed by the clerk of court. Attorney Korb appeared, but his client did not. The transcript shows the following colloquy between Judge TRAEGER and counsel:
" Court: You aren't inclined to plead him in?
" Mr. Korb: No, sir.
" Court: He's out in the hall?
" Mr. Korb: No, sir. This man, I wrote you about, who is in Illinois, and I talked with Mr. Ebbott about it. Since I wrote you and got your letter back, when you said I should be here with an authorization. I talked with him on the phone, revealing to him what Mr. Ebbott had revealed to me, and I'm here with an authorization — in fact, as you see, by the written authorization, I feel, to do anything that is necessary.
" Court: You have an authorization to plead?
" Mr. Korb: If that should be deemed necessary, yes. This has been our practice for parties under a written authorization."
After a brief discussion referring to the incident that led to the arrest, the judge asked Korb's present position. Korb replied, "To continue the plea of not guilty." Judge TRAEGER responded:
"You come in here without your man with a piece of paper, which he signed, saying it can be tried in his absence — but you were sent a letter by the court. But this is a trial in his absence. Then, let's get to trial right away." (Emphasis supplied.)
At this point, the prosecutor pointed out that the officer who made the arrest had been excused from attendance because he had been up all night and did not have any sleep. The prosecutor stated that it would be impossible to proceed to trial and that, in addition, there had been a request for a jury. The following colloquy took place:
" Court: Is he entitled to a jury trial here? He is not here to argue.
" Mr. Korb: I think he would be.
" Court: "He isn't here making any defense.
" Mr. Korb: I think he would be. The practice this is based upon is one quite commonly used. He didn't come today to avoid an economic reason.
" Court: That's not true. It may be in this county, but my practice is to have the defendant present, and when they are not present, I find them in contempt, and fine them $25.00, and hold the parties responsible for any terms which might be required, and finally, I won't change my practice here."
Attorney Korb reminded the judge that he had written to him asking that his client be excused from attendance and, further, asserted that he understood the judge's letter to mean that he could appear with the defendant absent if he had authority to enter any plea. He further stated, in response to questioning by the court, "I have legal authority — in fact my man would like me to do whatever is necessary, whatever he says, and he says `No.'" Judge TRAEGER responded:
"Insofar as you have no authority to plead him guilty here today, with regard to your statement, and by that failure, he will be held in contempt and fined $25.00." (Emphasis supplied.)
Korb took exception to the court's finding and asked for a hearing on the contempt charge. Judge TRAEGER denied a hearing and stated that Korb would be notified of a new pretrial conference.
On April 21, 1970, another purported order for pretrial conference was sent to Attorney Korb. The document was identical in form to the purported order of March 17, 1970, except that it provided that the pretrial conference would be held in the lawyer's conference room on May 6, 1970. This document again bore the rubber-stamped signature of the clerk of courts. The document bore the letterhead "Circuit Court Chambers, Arthur L. Luebke, Judge." At the time and place designated, Attorney Korb appeared, again without the presence of his client. Attorney Korb made a statement to the court in which he acknowledged that, in view of his authorization to appear on behalf of his client, he had advised him that it would not be necessary to attend. This statement was in explanation of the events that occurred on April 8th. Judge TRAEGER then explained that his letter merely meant that, ". . . if you choose to plead him guilty and had such authority to do so, he was not required to be present." He went on to explain:
"If you had authority to plead him, of course, we can dispose of the matter but a mere statement that a man is not guilty, doesn't open the door for any discussion leading to a disposition either of the case or by virtue of an amendment and because of that fact and because you chose to ignore the request of the court by way of an order that the defendant be present, . . ."
Thereafter, the judge found Attorney Korb in contempt and imposed a fine of $25 or three days in jail for the alleged contempt committed on April 8th. Attorney Korb then stated that he had served an affidavit of prejudice on the district attorney asking that Judge TRAEGER be disqualified from further hearing of the case. The court refused to honor the affidavit and motion for change of judge and sentenced Attorney Korb for a separate contempt for failing to have his client present at the pretrial conference on May 6th. The same fine and alternative jail sentence was imposed.
Attorney Korb stated that he had authorization to appear for his client, that he had the right to enter any plea which he thought was appropriate, and he argued that he had complied with the court's letter in that he had authority to take any action necessary on behalf of his client. Judge TRAEGER refused a request for a hearing and concluded the pretrial conference, stating:
". . . We recognize that the purpose of the pretrial is with the thought in mind of trying to get the parties reconciled to a complete termination of the matter. The purpose being to avoid a trial. . . . No matter what you may have thought or you may have figured would be right just is not a matter of concern to this court. You received an order to have him produced here and you have not respected that order and I don't think it is a privilege of yours to take upon yourself to do that which is contrary to an order and accordingly the matter will stand."
A certificate of conviction and judgment reciting the two convictions for contempt was signed the same day and filed with the circuit court for Rock county on May 13, 1970. Upon the posting of a cash bond by Attorney Korb, execution was stayed pending appeal to this court.
It is apparent from the record that there was no conduct on the part of Attorney Korb that constituted a contempt of court.
Sec. 256.03, Stats., itemizes what acts might be punished as criminal contempts. The itemization is exclusive, and the preamble to the statute specifically provides that persons may be found guilty only for the stated acts and for no other. Sec. 256.03(1) provides that conduct may be punished as contempt which is:
In referring to this statute, we do not retreat from the rationale of State v. Cannon (1928), 196 Wis. 534, 221 N.W. 603, and State v. Cannon (1929), 199 Wis. 401, 226 N.W. 385, which discussed the authority of Wisconsin courts to maintain their dignity, transact their business, and accomplish the purpose of their existence, as a matter of inherent power, separate from any legislative authorization.
"Disorderly, contemptuous or insolent behavior committed during its sittings, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due its authority."
The record reveals that Attorney Korb's conduct was at all times restrained and lawyer-like and evinced nothing but a respectful, though firm, disagreement with the position taken by the judge. Sub. (3) of the same statute provides that a court of record shall have the power to punish as criminal contempt the "Wilful disobedience of any process or order lawfully issued or made by it."
In the instant case, there was no order of the court which could have been disobeyed. The record shows that Judge TRAEGER relied upon the document bearing the caption, "Circuit Court Chambers," and rubber-stamped with the name of the clerk of court. A direction issued by the clerk is not an order of the court in the sense used in legal procedures. Sec. 269.27, Stats., makes it clear that orders issued "out of court" may be made only by judges or, in the appropriate cases, by court commissioners. Nowhere in the statutory recitation of the powers and duties of a clerk of court is there any grant of power to issue orders over his own signature.
It is well recognized in Wisconsin that a clerk of court may not exercise any judicial powers. Wisconsin Lumber Supply Co. v. Dahl (1934), 214 Wis. 137, 252 N.W. 714, held that, in the absence of a specific grant of power, a clerk of court could not authorize the calendaring of cases for trial. The limitations on the powers of a clerk of court were further defined in Pacific National Fire Ins. Co. v. Irmiger (1949), 254 Wis. 207, 212, 36 N.W.2d 89, wherein we said:
". . . the acts of the clerk of court are ministerial and clerical, and he may not exercise judicial power except in accordance with the strict language of a statute conferring such power upon him."
It is thus apparent that the clerk could not issue a directive having the authority and dignity of a court order and, in fact, in the instant case the clerk attempted no such usurpation of power. It did not purport to be an order "by the court." It was a mere notice signed by the clerk and carried with it none of the qualities of a properly issued order of a court.
Judge TRAEGER conceived the clerk's notice to be a court order. It simply was not such a document. It is equally apparent, although Judge TRAEGER did not rely on the letter he sent to Attorney Korb, that the letter contained no unequivocal direction that the defendant be present at the so-called pretrial conference. Statements of Judge TRAEGER in that letter were so qualified that it could have been interpreted, as it was by Attorney Korb, to authorize him to appear without his client if he had plenary authorization to assert a plea and appear at trial.
The conclusion of this court that the notices issued over the signature of the clerk of court on March 17th and on April 21st were not court orders is sufficient to require a reversal of the judgment of conviction. It appears appropriate, however, to emphasize that the power of a judge to punish for contempt is limited not only by the statute referred to above but by well-established principles of common law. We have pointed out that there can be no contempt, in the legal sense, of a clerk of court. It is equally true that legally the offense of contempt of a judge is unknown. See Beilfuss, Contempt of Court, Wisconsin Bar Bulletin (April 1958), 10, 12. Rubin v. State (1927), 192 Wis. 1, 6, 7, 211 N.W. 926, articulated the role of the judge from that of the court while discussing a contempt committed by an attorney. We said therein:
"Courts are institutions set up by society for the purpose of administering justice, the attainment of which is the ultimate end of organized government. Because of the grave and delicate nature of their functions, society, from time immemorial, has accorded to courts the greatest respect. This respect proceeds from an intuitive and deep-seated sense of propriety. Human instinct decrees it as the appropriate attitude for society to assume towards the most exalted institution of its creation. This respect is not accorded to the Judge — the man. The Judge presiding over a court is one character. The Judge in his chambers another. The Judge in his home or on the street quite another. The Judge as an individual may or may not be accorded the respect which by common consent belongs to the institution — the Court. The Judge as the individual is not entitled per se to any particular degree of respect. He is entitled only to that regard to which his standing and character in the community entitles him. As an individual he has no power to coerce respect. It is the institution — the Court — to which belongs that degree of respect commensurate with the place which it occupies in the scheme of organized society, The Judge and the Court are not identical. The Judge is a man. The Court is an institution. It requires something more than a Judge sitting on the bench to constitute a Court. It requires, in addition, the existence of conditions authorizing the exercise of the powers of a court. It requires the presence of that upon or over which the powers of a court may be exerted, namely, a controversy involving legal or human rights. It requires the presence of litigants, generally attorneys, usually officers, such as bailiff, clerk, etc., and frequently jurors. To constitute a court, some of these elements must concur with the presence of a presiding judge. It is this institution, as distinguished from the Judge, that merits and enjoys the respect of society."
The transcript in the instant case reveals that Judge TRAEGER was not, at the time of the alleged contempts, acting in the role of judge presiding over a court. The meeting was held not in the courtroom and not for the purpose of adjudicating the rights of the parties, but rather was an informal plea-bargaining session, conducted in the lawyer's conference room.
The primary contention of the defendant's brief is that the circuit court was without jurisdiction to order a pretrial conference because statutory provision is made for pretrial conferences only in civil cases. The state's primary contention is that a circuit court has inherent power to order pretrial conferences in criminal cases, and the failure to comply with the pretrial order therefore constituted contempt of a lawful order of the court. Since there was no order of the court, both of these arguments miss the mark as applied to the facts of this case.
We agree with the defendant to the extent that the statutes do not specifically authorize the holding of pretrial conferences in criminal cases. We agree with the state in its contention that a judge acting as a court may, as a part of his duties in the orderly administration of justice, order a pretrial conference in criminal cases where the circumstances render a conference of that nature appropriate.
A pretrial conference, however, should never be held for the purpose of giving a judge an opportunity to coerce a plea of guilty. It is not designed to make final disposition of the merits of the case. Judge TRAEGER misconceived the function of a pretrial conference when he stated:
". . . the purpose of the pretrial is with the thought in mind of trying to get the parties reconciled to a complete termination of the matter. The purpose being to avoid a trial."
He also displayed his misunderstanding of the purpose of a pretrial conference when he indicated that it was intended to be a session at which counts were dropped and a plea of guilty was to be entered as a quid pro quo for concessions made by the prosecutor. Such a pretrial conference would be nothing more than a "plea-bargaining" session presided over by the judge. We stated in Young v. State (1971), 49 Wis.2d 361, 367, 182 N.W.2d 262, relying on earlier cases:
". . . this court has made it clear that trial courts are not to participate in plea bargains. In this state there is to be no courtroom counterpart of the fixed prizefight in which the participants waltz through a prearranged script to a predetermined outcome."
Nevertheless, a pretrial conference in criminal cases is highly desirable to advise the judge and the parties of the real issues of the case so that there may be an expeditious and orderly trial. The American Bar Association Project on Minimum Standards for Criminal Justice in its Approved Draft, 1970, Discovery and Procedure Before Trial, pages 123, 124, enumerates the circumstances under which a pretrial conference should be held in criminal cases:
5.4 Pretrial Conference
". "(a) Whenever a trial is likely to be protracted or otherwise unusually complicated, or upon request by agreement of counsel, the trial court may . . . hold one or more Pretrial Conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. The accused shall be present unless he waives this in writing. Matters which might usefully be considered include:"(i) making stipulations as to facts about which there can be no dispute;
"(ii) marking for identification various documents and other exhibits of the parties;
"(iii) waivers of foundation as to such documents;
"(iv) excision from admissible statements of material prejudicial to a codefendant;
"(v) severance of defendants or offenses;
"(vi) seating arrangements for defendants and counsel;
"(vii) use of jurors and questionnaires;
"(viii) conduct of voir dire;
"(ix) number and use of peremptory challenges;
"(x) procedure on objections where there are multiple counsel;
"(xi) order of presentation of evidence and arguments where there are multiple defendants;
"(xii) order of cross-examination where there are multiple defendants; and
"(xiii) temporary absence of defense counsel during trial.
"(b) Conferences should be recorded. At the conclusion of a conference, a pretrial order, or memorandum of the matters agreed upon, should be signed by counsel, approved by the court and filed, which should be binding upon the parties at trial, on appeal, and in postconviction proceedings unless set aside or modified by the court in the interests of justice. However, admissions by an accused if present should bind the accused only if included in the pretrial order and signed by the accused as well as his attorney."
We adopt such standard and conclude that its implementation lies within the inherent power of the courts of general jurisdiction of the state. It should be noted, however, that the power does not extend to the compulsory presence of the defendant, desirable as his presence may be in most cases. The power does extend to attorneys who are officers of the court and who are obliged to obey lawful court orders. The standard adopted by the American Bar Association Project on Minimum Standards for Criminal Justice is not unlike, in its rationale excluding the defendant from the compulsion of the court, the interpretations given by this court to sec. 957.07, Stats. 1967:
" Defendant to be present. A defendant accused of a felony shall be personally present during the trial. A defendant accused of a misdemeanor may at his written request and by leave of court be tried in his absence if represented by his attorney duly authorized for that purpose."
An examination of the cases decided by this court shows that the purpose of this statute is to protect the defendant — that there may not be a trial in absentia without the consent of the defendant. The annotations to this statute reveal a multitude of cases which show that the purpose is to guarantee the right of a defendant to be present during trial. A right under proper circumstances may be waived expressly or by conduct. Ramer v. State (1968), 40 Wis.2d 79, 84, 161 N.W.2d 209, certiorari denied, 394 U.S. 989, 89 Sup.Ct. 1476, 22 L.Ed. 2d 764; State v. Biller (1952), 262 Wis. 472, 55 N.W.2d 414; State v. Sasse (1888), 72 Wis. 3, 38 N.W. 343.
This, of course, does not mean that in an appropriate case a trial judge may not through the use of bail, its revocation, or by bench warrant compel the presence of the defendant at trial.
A pretrial conference, however, is not a part of a trial, and sec. 957.07, Stats. 1967, relied upon by the state, cannot be transmuted from a device to shield the defendant into a sword to compel his presence at a pretrial conference.
The defendant also argues herein that the judge was without jurisdiction to make a finding of contempt because of the prior interposition of an affidavit of prejudice. We agree with Judge TRAEGER in his refusal to honor the affidavit where the only evidence of service was that upon an assistant district attorney. This case is not in an appropriate posture to determine the extent to which affidavits of prejudice may be utilized in contempt proceedings. Woods v. Winter (1948), 252 Wis. 240, 31 N.W.2d 504; John F. Jelke Co. v. Beck (1932), 208 Wis. 650, 242 N.W. 576.
We are satisfied that, had the notice issued by the clerk of court been in fact an order, the violation of which could be punished by contempt, Judge TRAEGER abused his discretion in this case. He relied on a rule which he had heretofore enforced in his own court in another county. The very authorization for Attorney Korb to appear for trial in the absence of his client had already been filed on the return date of the citation by the judge of the local county court in accordance with local practices. We stated in Hauer v. Christon (1969), 43 Wis.2d 147, 150, 168 N.W.2d 81, that a judge on special assignment to a county which had adopted its own local rules should be bound by the rules of the jurisdiction in which he then presides. We said, "We think a judge on such an assignment is bound by the local rules and should, when in Rome, do as the Romans do."
It should be pointed out that the record reveals no evidence of a formal rule sanctioning the practice of an attorney to appear without his client. The record does make clear, however, that such was the practice in Rock county and that practice was relied upon by attorneys there.
For a discussion of the need for uniform rules of practice and the confusion created by the existence of local rules, see Wilkus, The Mirage of Uniformity — in Probate Practice, Wisconsin Bar Bulletin (December 1971), 42.
Moreover, we conceive it to have been an abuse of discretion summarily to have found Attorney Korb in contempt when Korb stated that in his view he had complied with the terms of the judge's letter. Judge TRAEGER stated, "No matter what you may have thought or you may have figured would be right just is not a matter of concern to this court." The interpretation placed upon the letter by Attorney Korb was at least arguably meritorious, and in view of the vague nature of the letter, summary contempt without a showing that the alleged violation was unlawful and done with the contumacious intention of flouting the order of the court constituted an abuse of discretion.
Insofar as the rights of the client Dickson were concerned, the judge's conduct interfered with the role of an attorney in representing a client. As argued in the appellant's brief, the State Bar Rules and Canons of Ethics allow an advocate to:
". . . urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail." American Bar Association Code of Professional Responsibility (paperback 1969), p. 24, Canon 7, EC 7-4 (adopted by the Wisconsin Supreme Court with miscellaneous amendments pursuant to Rule 9 of the Rules of the State Bar of Wisconsin, and reprinted in 43 Wis.2d at lii).
The record shows that the contempt finding was imposed upon the client Dickson not because of his absence but because the judge was piqued when he discovered the unavailability of the state's witness made it impossible to try the case. The record shows that, after knowing the defendant was not present, Judge TRAEGER nevertheless stated that the matter would proceed to immediate trial, but, upon being informed by the prosecutor that he (the judge) had excused the state trooper and that a jury trial had been requested, the judge found the defendant Dickson in contempt. The record evinces caprice constituting an abuse of discretion.
The order which Attorney Korb was found guilty of wilfully refusing to follow was not an order of the court. There was no evidence of wilful disobedience of any order or direction of the court. The court was without power to compel the presence of the defendant Dickson at a pretrial conference, and the procedures used in making the finding of contempt with respect to both the lawyer Mark L. Korb and his client Dickson evince the abuse of judicial discretion.
By the Court. — Judgment reversed.