Section 785.03. Procedure.

 

(1)   Nonsummary procedure.

(a) Remedial sanction. A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter.

(b) Punitive sanction. The district attorney of a county, the attorney general or a special prosecutor appointed by the court may seek the imposition of a punitive sanction by issuing a complaint charging a person with contempt of court and reciting the sanction sought to be imposed. The district attorney, attorney general or special prosecutor may issue the complaint on his or her own initiative or on the request of a party to an action or proceeding in a court or of the judge presiding in an action or proceeding. The complaint shall be processed under chs. 967 to 973 . If the contempt alleged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial of the contempt unless the person charged consents to the judge presiding at the trial.

(c) Joint hearing and trial. The court may hold a hearing on a motion for a remedial sanction jointly with a trial on a complaint seeking a punitive sanction.

(2)   Summary procedure. The judge presiding in an action or proceeding may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court.

(3)   Appeal. A defendant aggrieved by a determination under this chapter may appeal in accordance with s. 809.30 if the proceeding was prosecuted by the state.

1979 c. 257 ; 1983 a. 377 . Juvenile courts must follow the procedures in ch. 785 when exercising contempt powers. Contempt Finding Against B.L.P. 118 Wis. 2d 33 , 345 N.W.2d 510 (Ct. App. 1984). A contempt proceeding prosecuted by a family court commissioner under s. 767.29 (1) [now s. 767.57 (1)] was "prosecuted by the state" within the meaning of sub. (3). Biel v. Biel, 130 Wis. 2d 335 , 387 N.W.2d 295 (Ct. App. 1986). A contemnor has the right to allocution in summary contempt proceedings. Contempt in State v. Dewerth, 139 Wis. 2d 544 , 407 N.W.2d 862 (1987). When a trial court had no personal knowledge of the circumstances surrounding a subpoenaed witness's failure to appear, summary procedures were inappropriate. Matter of Contempt in State v. Levin, 146 Wis. 2d 166 , 430 N.W.2d 718 (Ct. App. 1988). A summary contempt proceeding is not "prosecuted by the state" and an appeal is pursuant to s. 808.04 (1). Matter of Contempt in State v. Simmons, 150 Wis. 2d 178 , 441 N.W.2d 308 (Ct. App. 1989). An attorney's tardiness is not contempt committed in the actual presence of the court. Summary procedures under sub. (2) are unavailable. Gower v. Marinette County Circuit Court, 154 Wis. 2d 1 , 452 N.W.2d 354 (1990). A sentence requiring imprisonment for a definite period of time without the possibility of purging through compliance with a court order is permitted only via punitive sanction proceedings. State ex rel. N.A. v. G.S., 156 Wis. 2d 338 , 456 N.W.2d 867 (Ct. App. 1990). Defense counsel's audible remark, "ridiculous," uttered upon entry of the sentence against her client sufficiently impinged on the court's ability to discharge its duties. Summary contempt was warranted, but failure to allow allocution rendered the order unenforceable. Olivetto v. Crawford County Circuit Court, 194 Wis. 2d 418 , 533 N.W.2d 819 (1995). A remedial sanction must be purgeable. A punitive sanction need not be purgeable but may only be imposed after provision of a due process by proceeding under sub. (1) (b). In re Paternity of Cy C. J. 196 Wis. 2d 964 , 539 N.W.2d 703 (Ct. App. 1995), 94-3375 . A nonsummary contempt motion is a part of the underlying action from which it arises. The time for requesting judicial substitution runs from the commencement of the action, not from receipt of notice of the contempt proceeding. James L. J. v. Walworth County Circuit Court, 200 Wis. 2d 496 , 546 N.W.2d 460 (1996), 94-2043 . When a defendant's liberty is threatened in a remedial contempt action, the court must advise the defendant of the right to appointed counsel if the defendant is indigent. The circuit court must initiate a colloquy clearly conveying the right to the defendant and inquiring whether the defendant believes himself or herself indigent. State v. Pultz, 206 Wis. 2d 112 , 556 N.W.2d 708 (1996), 94-2806 . Because a guardian ad litem's allegedly contumacious act or omission had nothing to do with the violation of a pretrial, scheduling, or procedural order, the circuit court's authority to sanction the guardian ad litem for noncompliance with its substantive order directing the disposition of a minors' settlement proceeds was more firmly grounded in sub. (1) (a) rather than s. 805.03. Reed v. Luebke, 2003 WI App 207 , 267 Wis. 2d 596 , 671 N.W.2d 304 , 02-2211 . Remedial sanctions under sub. (1) (a) are sanctions imposed for the purpose of terminating a continuing contempt of court. For a remedial sanction to be entertained, there must be a motion to the court by an aggrieved person other than the trial court. Upon the filing of a motion seeking remedial sanctions for contempt, an on-the-record hearing must be held for due process purposes and the evidence must support findings that the contemnor engaged in intentional disobedience, resistance, or obstruction of the authority, process, or order of a court. Reed v. Luebke, 2003 WI App 207 , 267 Wis. 2d 596 , 671 N.W.2d 304 , 02-2211 .