WOLLEN V. STATE, 1974-NMSC-009, 86 N.M.
1, 518 P.2d 960 (S. Ct. 1974)
CASE HISTORY ALERT: affected by
1983-NMSC-094
see ¶9 - affects 1973-NMCA-142
Julius WOLLEN, Petitioner,
vs.
STATE of New Mexico, Respondent.
SUPREME COURT OF NEW MEXICO
1974-NMSC-009, 86 N.M. 1, 518 P.2d 960
James R. Toulouse & Associates,
Briggs F. Cheney, Albuquerque, for petitioner.
David L. Norvell, Atty. Gen., F. Scott
MacGillivray, Asst. Atty. Gen., Santa Fe, for respondent.
McMANUS, C.J., wrote the opinion. OMAN,
STEPHENSON, MONTOYA and MARTINEZ, JJ., concur.
{1} This suit began in the
District Court of Bernalillo County. A decree of divorce between Robert William
Gruber and Carol Lynn Gruber was entered February 9, 1972. The plaintiff-wife,
represented by petitioner Wollen, an attorney, obtained an order entered
November 17, 1972, amending the original decree. A motion to vacate the last
order was filed on November 27, 1972 and a hearing was held before Judge
Riordan on December 20, 1972 on defendant-husband's motion to vacate the
amended decree, which gave rise to the events herein involved.
{2} Petitioner, in open
court, presented a motion and order to vacate the hearing on the basis of lack
of jurisdiction and partiality of the court. The motion was denied. Following
the denial of this motion petitioner advised the court that he felt that the
court was unable to render an impartial decision in this matter. As grounds for
such allegation petitioner asserted that the judge had been approached by
opposing counsel, a former law school classmate of the judge, who had insisted
that the judge hear the matter. Petitioner further implied that bribes may have
been offered to another judge in regard to this particular cause of action and,
before leaving the courtroom, stated:
"* * * I think this whole case is fraught with politics.
I don't know what opposing counsel is trying to do through the back door that
he can't do through the front door. He lost this case, and if he didn't like
the decision that a judge that we didn't pick rendered, let him appeal to the
Supreme Court. But I seriously suspect the motives in coming before this Court
under the circumstances and asking for a hearing.
"I do not intend to stay to argue the matter on the
merits. I will state to the Court that I am going to leave, * * *."
{3} Judge Riordan then
advised petitioner that if he left the court he would be held in contempt.
Petitioner then left the courtroom and, on January 15, 1973 (26 days after the
hearing), an order adjudging petitioner in contempt of court was entered by
Judge Riordan.
{4} Petitioner appealed to
the New Mexico Court of Appeals from the order of contempt, asserting three
points for reversal. The Court of Appeals decided the
{*2}
matter, basing its decision on only one of the points raised by petitioner:
that the court denied him due process of law by entering the judgment of
contempt 26 days after the events involved, without notice or hearing. The
court vacated the judgment of contempt and remanded the case for a hearing. We
agree with this part of the decision. Petitioner then argued that due process
required that a judge other than Judge Riordan preside over this hearing. The
Court of Appeals concluded that the conduct of the petitioner was not such as
to personally embroil the judge to the extent as to require his
disqualification. State v. Wollen,
85 N.M. 764,
517 P.2d 748 (Ct. App., Nov. 7,
1973). The matter is now before us on certiorari to the Court of Appeals.
{5} The only issue which is
presented to this court is whether or not a judge who originally issues a
non-summary contempt citation should later be allowed to preside over the
hearing at which the validity of such a citation is considered.
{6} In a contempt proceeding,
"[t]rial before 'an unbiased judge' is essential to due process."
Johnson v. Mississippi, 403 U.S. 212, 216, 91 S. Ct. 1778, 1780, 29 L. Ed. 2d
423 (1971). The question then becomes: What determines whether or not a judge
is biased?
{7} In Mayberry v.
Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971), it was
determined that when a judge becomes embroiled to the point where it is
unlikely that he can maintain the calm detachment necessary for fair
adjudication, then he should be prohibited from rendering the contempt
judgment. The problem with such a rule is that the personalities and
temperaments of judges vary considerably from judge to judge and what might
"embroil" one judge might not so affect another. The sound
administration of justice should not allow for such an arbitrary standard.
Would it not be much easier, as well as more just, to provide a standard rule
whereby the determination of personal embroilment on a case-by-case basis is no
longer necessary? The Court of Appeals of Michigan thought so and, in the case
of People v. Kurz, 35 Mich. App. 643, 660, 192 N.W.2d 594, 603 (1971),
concluded that:
"* * * in the absence of circumstances necessitating
immediate corrective action (i. e., a summary contempt proceeding) a person
accused of contempt by a trial judge should be tried before a different judge,
one not involved in the subject matter of the contempt or in the citation of
the contemnor."
{8} We agree that this result
is the one which most adequately provides for the fair administration of
justice and one which no longer necessitates the painstaking evaluation of
whether a judge has become embroiled or has lost his objectivity.
{9} The cause is therefore reversed
and remanded to the district court for action consistent with this opinion.
OMAN, STEPHENSON, MONTOYA and MARTINEZ, JJ., concur.