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COURT OF APPEALS DECISION DATED AND RELEASED October 3, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2806
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN and
CITY OF MILWAUKEE,
Plaintiffs-Respondents,
v.
DALE PULTZ,
Appellant,
MISSIONARIES TO THE
PREBORN, ET AL.,
Defendants.
APPEAL from an order of
the circuit court for Milwaukee County:
ROBERT W. LANDRY, Reserve Judge.
Affirmed.
WEDEMEYER, P.J.[1] Dale Pultz appeals from an order issuing a
remedial contempt citation for violating a permanent injunction that was issued
on December 10, 1992, enjoining activities of certain abortion protestors at
medical clinics throughout the City of Milwaukee. The injunction prohibits certain named individuals, and anyone
acting in concert with those individuals, from engaging in particular
activities at medical clinics. Pultz
claims that the trial court erred in issuing a contempt order against him
because: (1) he was not provided notice
of the contempt hearing; (2) he was denied his constitutional right to an
attorney; (3) the sentence imposed exceeded the trial court's authority; and
(4) it failed to obey an appellate order.
Because this court resolves each contention in favor of upholding the
order, this court affirms.
I. BACKGROUND
On December 10, 1992, a
Milwaukee trial court issued a permanent injunction order prohibiting certain
individuals, and anyone acting in concert with those individuals, from engaging
in certain activities at medical clinics that provide abortions. Pultz was one of the named defendants in the
permanent injunction. The State of
Wisconsin and the City of Milwaukee commenced a contempt proceeding against
Pultz, alleging that he violated the permanent injunction: on January 14, 1994,
by blocking the door of a medical clinic in Milwaukee; on April 23, 1994, by
blocking access to a medical facility in Milwaukee; on May 11, 1994, by
blocking access to a facility named in the permanent injunction; and on June
20, 1994, by engaging in protest activity within twenty-five feet of a facility
and within ten feet of persons seeking access to the facility.
The notice of motion and
motion for contempt was served on Pultz on August 22, 1994, with a hearing date
set for August 31, 1994, at 9 a.m. The
hearing was adjourned until September 7, 1994.
Pultz objected to the hearing taking place on the grounds that he was
not properly notified of the hearing and because he did not have a chance to
obtain counsel. His objections were
overruled and the hearing took place.
The trial court found
Pultz in contempt. As a sanction for
the violation, Pultz was ordered to pay a forfeiture or take an oath indicating
that he will not violate the permanent injunction. If Pultz refused to pay a forfeiture, or take the oath within
five days, he would be imprisoned for 380 days. Pultz would be able to purge the contempt at any time by agreeing
not to violate the permanent injunction.
Pultz now appeals.
II. DISCUSSION
This court's standard of
review involving contempt orders is limited.
Whether a defendant's act is a contempt of court is a discretionary
determination because the question “is one which the trial court has far better
opportunity to determine than a reviewing court.” Currie v. Schwalbach, 132 Wis.2d 29, 36, 390 N.W.2d
575, 578 (Ct. App. 1986), aff'd, 139 Wis.2d 544, 407 N.W.2d 862
(1987). A reviewing court will not
reverse a trial court's determination “except in a plain instance of mistake”
or erroneous exercise of discretion. Id. Further, findings of fact made by the trial
court will be accepted unless they are clearly erroneous. See § 805.17(2), Stats.
A. Notice.
Pultz's first claim is
that he was not given proper notice as to the actual date of the hearing. The trial court found that the proper notice
requirements had been satisfied. This
court agrees.
Pultz admits that he was
served with the notice of motion and motion for contempt papers on August
22. These papers included notice of the
contempt hearing date set for August 31.
For some unknown reason, the hearing was adjourned until September
7. The record indicates that an attempt
was made to notify Pultz of the new date, but the court clerk did not have
Pultz's current address and, therefore, was unable to notify him.
Although, it would have
been preferable to have served Pultz with notice of the adjournment, the fact
that he was effectively served on August 22 satisfies proper notice
requirements. If Pultz would have
appeared for the contempt hearing on August 31, Pultz would have been notified
of the adjournment. Pultz, however, failed
to show up for the original hearing date and failed to notify the court of his
inability to attend the original date.
Accordingly, this court is not persuaded by Pultz's claims that he was
not properly notified.
B. Right
to Attorney.
Next, Pultz claims that
he was denied his constitutional right to have an attorney represent him. The trial court determined that Pultz had
plenty of time to hire an attorney on his own, and that he did not have the
right to a court-appointed attorney.
This court agrees.
Pultz cites Ferris
v. State, 75 Wis.2d 542, 249 N.W.2d 789 (1977), and Brotzman v.
Brotzman, 91 Wis.2d 335, 283 N.W.2d 600 (Ct. App. 1979), for the
proposition that an indigent defendant has a constitutional right to a
court-appointed attorney in a contempt proceeding. Although both Ferris and Brotzman
support this proposition, Pultz's reliance on these cases is misplaced. The record demonstrates that Pultz did not
claim to be indigent or request a court-appointed attorney at the time of the
hearing. Rather, the record indicates
that Pultz's complaint was that he did not have a chance to hire an
attorney. This court agrees with the
trial court's assessment that Pultz had plenty of time to hire an attorney
between the time he was served on August 22 and the time of the contempt
hearing on September 7.
Accordingly, we reject
Pultz's claim that he was denied his constitutional right to counsel.
C. Authority
to Impose 380 day prison term.
Next, Pultz claims the
trial court exceeded its authority under § 785.04(b), Stats., when it imposed the 380 day
prison term. Pultz argues that
§ 785.04(b) restricts the imprisonment penalty to six months or less. This issue was not raised at the trial court
level and, therefore, we decline to address it on appeal. See Wirth v. Ehly,
93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980) (appellate court
generally will not review issue raised for the first time on appeal).
D. Violation
of Appellate Order.
Finally, Pultz claims
that the trial court violated an order of this court, which required the trial
court to conduct a hearing to reconsider the trial court's prior order
regarding Pultz's release pending appeal.
This court has reviewed the portions of the record relevant to this
issue. This court concludes that the
trial court's hearing conducted on December 20, 1994, clearly satisfied the
dictates of this court's order of January 5, 1995. Accordingly, we reject Pultz's claim.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.