*1 Dist., AO17704. First Div. Two. June [No. 1983.] BOBB, CAROLYN Plaintiff and Appellant, JUDICIAL
THE MUNICIPAL THE COUNTY COURT FOR MONTEREY COUNTY, DISTRICT OF MONTEREY Defendant and Respondent; PEOPLE, THE Real in Interest and Party Respondent.
Counsel Stoner, Amitai Katherine E. C. Alan L. Schlosser and Crosby, Margaret Schwartz for Plaintiff and Appellant.
No for Defendant and appearance Respondent. Bidwell, Kuchler, Counsel, County R. and W. Allen
Ralph County Deputy Counsel, Real Party for in Interest and Respondent.
Opinion MILLER, J. deny- from court’s Carolyn judgment Bobb appeals superior her for writ court’s judg- of certiorari and ing affirming respondent petition ment of contempt. 26, 1982, this case January facts of are not in On dispute. appellant,
attorney, municipal was called and on a criminal case jury appeared duty court. take her in the box as a jury prospec- When called to appellant place judge: tive voir dire examination was conducted juror following Bobb, “The Court: Miss what is your occupation? I’m an
“Miss Bobb: attorney. well as criminal law as your you “The Court: And do practice practice civil law? No, I law.
“Miss Bobb: practice entirely bankruptcy All Mr. Is there a Bobb? right. “The Court: noticed because I’ve I have some with that difficulty “Miss Bobb: the women have been asked to answer that. Yes, there a Mr. Bobb? I have Bobb—is know. Do a Mr. you “The Court: care to to see if they Are the men “Miss Bobb: you going pool [szc] disclose— not. have a I’m ask if husband you you No, just going
“The Court: Do a husband? you have
“Miss relative to women is don’t care to answer it then. What’s I Bobb: relative to men. Yes, I know. What is husband’s
“The Court: your occupation?
“Miss Bobb: I don’t care to answer that. I instruct to answer.
“The Court: you
“Miss Bobb: I don’t think should. I’ve be in understand that
“The Court: got—you you’ll *4 rules, an don’t Court—jury—you’re attorney, you? understand these you No, “Miss Bobb: I do not understand women are asked certain why only and the men questions aren’t asked the same questions. law,
“The Court: Mrs. an question you, attorney Bobb—you’re you understand the rules and of—of—of And the regulations attorney. being now is: you What is husband’s simply your occupation?
“Miss Bobb: I refuse to answer. Court,
“The Court: You’re held in Mrs. Bobb.” contempt Immediately thereafter was taken to a to await appellant facility holding transfer to the After at the county jail. 15 minutes spending approximately was on holding facility, ordered released on her own appellant recognizance condition that she return at 3 that afternoon for p.m. sentencing by respondent court.
At the to obtain sentencing hearing a continuance order appellant requested counsel and to do further research. The continuance. After court denied the ap- further her the court to the voir dire pellant explained objection questioning, her but acknowledged sincerity posed its conviction that repeated questions were valid and that refusal to of court. Ap- answer them constituted contempt was then sentenced to for her time served. pellant one with credit day jail, that court for a writ certiorari Appellant petitioned superior requesting orders made court be annulled and set aside. by superior respondent that the cases court affirmed finding court’s respondent judgment contempt cited California Constitutions’ the United States and appellant regarding racial the facts in the present discrimination did not prohibition against apply action. her, ad
On
when
concedes that the
appeal appellant
questions put
However,
context,
ministered in a
valid.
gender-neutral
constitutionally
she
that when the
a discriminatory pat
contends
are
questions
posed
part
(Yick
tern
constitute a denial of
Hopkins
Wo v.
they
equal protection.
Citing
In Hamilton a black woman a witness refused who was called as in- to as “Mary” cross-examination so as she was referred questions long stead of “Mrs. her in of court. Hamilton.”1 The trial court held However, conviction annulled curiam the United per States Court. Court found Hamilton Although Monterey Superior action, other it cited cases to the appellant’s present appears inapposite *5 are cases directly point. California
Equal “while protection provisions Constitution ‘substantially of’ the equivalent contained in the Fourteenth guarantees Constitution, Amendment to the United States are of an independent possessed which, case, in a vitality given demand an different from that analysis which would obtain if (Serrano the federal standard were v. applicable.” 728, (1976) 345, Priest 18 929].) Cal.3d 764 It be 557 P.2d can Cal.Rptr. [135 seen that this state has a standard of review different from that applied applied 248-249, 226, Maryland 1The Hamilton record in Bell quoted 378 U.S. v. 822, 871, footnote 4 L.Ed.2d 84 S.Ct. [12 1814]: “ Rayburn: ‘Cross examination Solicitor “ name, your please? What is ‘Q. “ Mary ‘A. Miss Hamilton. “ Mary, believe—you you by? I were arrested arrested—who ‘Q. “ correctly. My ‘A. name is Miss Hamilton. Please address me “ you by, Mary? Who were arrested ‘Q. “ question— ‘A. will answer a “ ‘By Attorney Amaker: The name is Miss Hamilton. witness’s “ —your question correctly. ‘A. until I am addressed “ question. ‘The Court: Answer the “ correctly. ‘The Witness: I will not answer them unless I am addressed “ ‘The Court: You are in of court— “ Honor, ‘Attorney Conley: Honor—your Your “ days jail court, five you are sentenced to are in ‘The Court: You fifty dollar fine.’” “ slavery.’” Douglas exchange one of the ‘relics of Justice characterized this
865 by federal courts under Amendment the Fourteenth in cases which involve 1, (Molar classifications based on v. 12 Gates gender. 239, 12 605].) A.L.R.4th Cal.Rptr. [159 California,
In which the traditional two-tier test of equal pro employs tection, distinctions or classifications that “suspect classifications” involving courts, “fundamental impair will rights” subjected scrutiny to strict and the state will be to bear the both that it required burden heavy showing has a interest which the clas compelling justifies the classification sification is necessary (Hawkins further that interest. v. Supe compelling 584, 435, rior Court 916]; Cal.3d 586 P.2d Cal.Rptr. Westbrook Mihaly (1970) v. Cal.3d 784-785 Cal.Rptr.
P.2d Inn, For in Sail’er example, Inc. Cal.3d 1 Kirby 485 P.2d A.L.R.3d woman the constitutionali- challenged of a California law ty females from bar or their they unless prohibiting tending husbands held a liquor license on Our Court equal protection grounds. Supreme applied the strict scrutiny first, standard of because the limited review statute the fundamental right one class a lawful persons pursue profession, ” second, “because classifications based sex be treated as suspect. should upon (Id., at
The court then analyzed on sex why subject classifications based should be the same strict that the review- scrutiny United States Court applies ing race, classifications such as lineage origin: national
“Sex, trait, like race and immutable a status into lineage, *6 class members are locked by the accident of birth. What sex from differentiates statuses, such nonsuspect as or it intelligence aligns and physical disability, with the recognized suspect classifications is that the characteristic frequently bears no to relation or to ability contribute perform society. [Citation.] result is that the whole without class is to an inferior status relegated legal to the regard or capabilities characteristics of its individual members. [Cita- Where the relation is so between characteristic and evil to be tion.] prevented tenuous, must courts look at classifications based on that characteristic closely lest outdated social in result laws or stereotypes invidious practices.
“Another characteristic which underlies is the all classifications suspect and stigma inferiority second class with associated them. citizenship [Cita- Women, aliens, like have labored Negroes, the poor historically tion.] were, citizens, under severe and social disabilities. Like legal they black and, many denied the serve on years, recently, to vote until right right states. juries many against are excluded from or discriminated They and educational have employment Married women opportunities. particular been treated as inferior and in- persons numerous laws relating property business and the to make contracts. dependent right ownership “Laws which disable women from full in the business participation political, and economic arenas are often characterized as and beneficial. ‘protective’ Those same laws to racial or ethnic minorities would applied readily as invidious recognized which women impermissible. pedestal upon often, have been has all too closer been revealed as a placed upon inspection, We conclude cage. that the sexual classifications are treated as sus- properly when those classifications are made with to a fun- pect, particularly respect 18-20, omitted.) damental interest such as (5 Cal.3d fns. employment.” pp. Since Sail’er Inn our Court has reaffirmed its consistently holding that gender-based differentials are to be treated as classifications” “suspect (See, to strict v. Bd. subject scrutiny. Workers Arp Comp. Appeals 395,400 849]; Cal.3d Stumpf 563 P.2d v. Cal.Rptr. Hardy Cal.3d 576 P.2d
In of Sail’er Inn’s no difference can light pronouncement, significant be seen between a of a ordering witness to submit to attorney’s imposition names, “relic of such as their first slavery” blacks addressing only by female status and ordering only to announce their marital prospective jurors husbands’ when women occupations is likewise a relic of a bygone age reinforce Both orders presumed incapable thought. independent stigma second-class inferiority citizenship. where, here, contends interest” is no “fundamental
Respondent affected, the strict test should not be This must fail scrutiny applied. argument sex, since in both federal and state cases classifications other than involving courts have held that if a classification involves either consistently suspect interest, (Molar classification or fundamental strict must be scrutiny applied. Gates, therein.) 14 and cases cited contention that strict since
Respondent’s appellant scrutiny inapplicable was not denied entitled is constitutionally which she was right legally Gates, Molar v. 1 involved the constitu- unpersuasive. supra, 98 Cal.App.3d *7 of the tionality County policy practices pursued Orange providing minimum out- security facilities with their attendant jail including privileges, side work for male such facilities and assignments, while prisoners denying to female inmates. The trial court ruled that the was violative privileges practice com- and directed issuance of a writ of mandate equal protection peremptory treat- the sheriff and board of to end the manding discriminatory supervisors test, ment of female inmates. the the court of af- strict Utilizing scrutiny appeal
867 firmed. court to duty noted that did not have a although legal county minimum hence (and facilities outdoor work provide security opportunities female had inmates no the female to such facilities and/or right opportunities), clear inmates had a to of the laws right of the enjoyment equal protection also, 25; (Id., and the had a clear In- county to see duty respect right. mates Brand 130 Sybil Inst. Women v. Los Angeles County for 89, and dif- classification Cal.App.3d Cal.Rptr. based [181 599] [sex court, ference in treatment in to to outdoor recreation access transportation areas, and contact visits a com- justified by respondents showing Thus, interest].) strict pelling governmental to invoke application standard no need be scrutiny other than the right to right equal protection asserted. bench, strict
Applying scrutiny standard to case at respondent does not and we think of suggest cannot interest governmental compelling for one set of posing to female to male questions Clearly, but not jurors jurors. administrative convenience cannot justify a classification in the face of suspect the strict scrutiny (Inmates test. Sybil County Brand Inst. Women v. for 89, Los Angeles, supra, 130 102.) The fact that counsel was free to ask the men the same were questions as to the women does not alter fact put that the initiated and reinforced judge treatment special practice female jurors. found herself in a situation to
Appellant identical the one faced by Mary Hamilton some 20 earlier. Just Hamilton years Mary justified the court’s order disobeying so was respond discriminatory questioning, in her appellant justified discriminatory refusal with comply ques- equally tioning. conclusion, reached the
Having above it is not needed that we address ap- contention that pellant’s her due violated process rights respondent’s denial of a continuance. is reversed. judgment accordingly
KLINE, I concur. P. J.
Justice Miller has in view reached the result for the reason. my right wrong issue,1 think it facts of unnecessary reach the constitutional for on the unique absolutely 1“A court will decide a such constitutional unless construction is Theatres, (Palermo 53, Inc. 1], Stockton necessary." quoting P.2d Cal.2d People Estate Johnson 424]; v. Williams 139 Cal. P. see also Cal.Jur.3d, Law, Cal.3d P.2d and 13 Constitutional 106-108, cited.) pp. cases there § *8 868
this case would not sustain the if the court’s ques- even judgment persuaded Moreover, valid. tioning I believe the most constitutionally significant issue raised this case relates more than the to the treatment of proper jurors of women. rights first whether was sufficient
Our is to ascertain there responsibility simply evidence of the and order. facts to sustain jurisdictional necessary judgment 237, (In 121, re P.2d Buckley (1973) 10 Cal.3d 514 Cal.Rptr. 247 [110 865, 389, In re 450 P.2d (1969) Ciraolo 70 quoting Cal.2d 394 Cal.Rptr. [74 241]; 404, (1965) see also Arthur v. 62 409-410 Superior Court Cal.2d [42 441, 598, 777]; and (1924) 398 P.2d In re Mason Cal.Rptr. Cal.App. in mind that 157].) 603-605 P. In we must making keep this determination [232 must there- summary is the and ultimate contempt power judicial weapon caution, used fore be with lest it be employed prudence and great improperly 249; Smith v. (In stifle freedom of at thought Buckley, supra, speech. p. 1, 65]; Court 440 P.2d (1968) 68 Cal.2d Superior Cal.Rptr. [68 681].) Because Superior v. Court Cal.2d P.2d Lyons [278 nature, criminal bemay citation of a validity is “no presumptions in case with indulged as would be the support judgments contempt, 44 Cal.2d respect (Freeman v. Court ordinary judgments.” Superior 857]; see also 34 Cal.2d P.2d Raiden v. Court Superior 83, 86 Martin P.2d Court Superior 1081] conduct
It is for me relevant to whether supremely petitioner’s as a that it occurred while was examined contemptuous being prospec- she bench, jurors tive Unlike all others who before the juror. prospective appear for those has and not just are This fact critical judges. implications, prospective us, our be As de judged. jury process “instill[s] reminds Tocqueville astutely citizen, habits those some of the habits of the into judicial every just mind (de are the to be free.” very Tocqueville, best way people preparing transí.; edit.; Lawrence, Anchor Democracy America J.P. (George Mayer, 1969) observed, 274.) Books The p. regarded American he “should jury, as a free school which is and in which learns his always each juror open (Id., . . . and rights, in the law . . . at given practical p. lessons .” de also “the Tocqueville society jury, discerned because it represents his though seeming enlarges diminish rights, reality magistrate’s and in sway, no other are where the so those country judges powerful 276; (Id., have a share in their people generally see privileges.” (Simon 1975).) salutary in America Elevation of these Jury System edit. which are too lost of in the work purposes, easily day-to-day sight courts,2 and the require willing par- very integrity justice system ex-juror regularly 2On matters one believed too the remedial judges, overlooked Men, thereto, Chesterton, Trifles jury role of the Twelve in Tremendous respect with see (12th 1930) pages ed. 55-59.
869 and today of our If the views that are commonly diverse ticipation people. unnecessarily on a venire in this state are properly represented penalized, context, then, those fit for as the out a different pointed Court either it with juries disquiet “will shun the burdens of the service or perform (Sinclair (1929) and United 765 L.Ed. disgust” States 279 U.S. [73 938, 946, 1258]),3 might 49 S.Ct. and trial by capable juries 63 A.L.R. become an impossibility.4 The of trial in which only phase interact with court and jurors extensively ” dire,
counsel is voir upon means “to the truth. speak Prospective jurors who conscientiously dare and truth not speak act their must upon personal reason, be deemed to have presumptively behaved For this improperly. because the refusal of a answer a all prospective juror may inexcusable, circumstances be this case falls within class of that a contempts should be measured aby higher standard than normally applies.
As in In stated Jasper Cal.Rptr. [106 a “[o]rdinarily, specific wrongful intent is not an element in essential contempt proceedings and a disavowal in of intentional or disrespect wrongful [citation] tent is not However, a defense therein. an examination of other cases [Citation.] shows there that exists a class of is of where an act doubtful contempts, in which propriety, intent does to the faith go the offense and gravamen good or lack of on the it of the contemner oc part may determine whether a contempt 988; curred. (Id., at see also In re Cal. p. Carrow [Citations.]” 924, 933 App.3d and In re Cal. Burns 601] 137, 141, 143 App.2d P.2d The requirement specific wrongful one, intent a strict, is indeed strict but the law on for is it is criminal nature; of an criminal for imposition essentially conduct penalty may commitment represent conscientious warrants the closest principle scrutiny. case, then, central issue in this did petitioner possess specific intent to or
wrongful court or its impeach interrupt proceedings embarrass the 3The conduct Sinclair was the strict and systematic by condemned in jurors surveillance corps private procured acting detectives in a at defendant criminal case others his direction. Such surveillance was held it part instigators, a criminal on the of its as States, (Sinclair “tended to obstruct v. United justice” honest and fair administration 946]). 279 U.S. at p. L.Ed. eventuality 4Such an study unfortunate is not entirely speculative. empirical prospective An jurors in an area of New Jersey “clearly majority jury citizens shows that of the selected for Jury (Richert, Attitudes Toward variety service did not wish to serve Juror’s reasons.” concluded, Service 243.) System study Justice J. As the author of the finding agent “undermines ... the possibility jury serving major as a of socialization since opposition many as a result of their jurors, up not serve and those who end citizens will as veniremen harbor juries resentment. It is to see difficult how under such circumstances ” (Id., attitudes, may develop participatory feelings sympathy judicial toward institutions. at p. or, did This most contrary, inquiry to the she act on faith? good principle *10 of the begins with an trial court’s order. appropriately analysis Code of Civil Procedure section 1211 that for a to be contempt provides made, “an treated facts as summarily occurring order must the reciting court], immediate view the that the person and presence adjudging [the] [of is of a that he be against thereby punished proceeded guilty contempt, 1179, (See therein also In re Hallinan 71 Cal.2d prescribed.” 1, P.2d 255].) with is a jurisdictional Cal.Rptr. Compliance provision can which be met if the order direct only summarily requirement, punishing “recites facts on with sufficient to demonstrate its face contempt particularity (In conduct Buckley, that constituted a re petitioner’s legal contempt.” 247.) 10 Cal.3d at p. set behavior con-
The sole basis forth in the order for finding petitioner’s that her refusal to answer the in issue “created an im- temptuous ”5 the The act course of the then in passe interrupting proceeding only progress. or omission the de- relating judicial statutorily interruption proceedings fined as court here is in Code of Civil Pro- contempt set forth pertinent 1209, 1, or cedure section subdivision as follows: “Disorderly, contemptuous, court, behavior tending insolent toward the while the judge holding interrupt words, of a trial it not the due course or other In other is judicial proceeding.” the mere that constitutes within the of the interruption contempt meaning statute, but or do so.6 “disorderly, tending insolent behavior” contemptuous the list of which court Admittedly, acts or omissions constitute contempt exclusive, “for set forth section 1209 is not the of a court punish by power statute,” (In an act which its exists contempt impugns integrity independent 248, 14.) Cal.3d at fn. But the case law definition Buckley, supra, p. “ or also act that ‘tends to embarrass obstruct requires an impeach, the court in the duties.’” Court discharge (Lloyd Superior its 896, Shortridge In re quoting 526, 532 P. the from is there any Cal. Nowhere in order appealed or that her conduct was statement intent indication regarding petitioner’s insolent, rude or the conclusory The order sets forth disrespectful. simply that the to answer “constituted declaration caused refusal by interruption behavior.” contemptuous Buckley, In re 5This bare statement is far court in less informative than order of the trial supra, 10 Cal.3d at page interrupted had footnote which also found that the contemnor petitioner’s but was made “in a proceedings specifically court failed to find that the statement (Id., loud, boisterous, insolent or Court remedied this rude manner.” at record, examination of here.
defect as we are to undertake similarly required of Civil defines as 6See also Code Procedure section subd. which also disturbance, conduct, tending to peace, interrupt “A breach of the or court boisterous violent or judicial proceeding.” the due course of a trial other Attached to made a of the court’s order is a full transcript part both the dire hear- voir issue and portion proceedings sentencing in- ing. These fail to that transcripts conclusion petitioner support tended to act con- contumaciously but opposite disrespectfully, support clusion, court, and in virtually conceded the trial she acted principle faith. good dire, between the court and forth colloquy at voir is set petitioner its Justice it entirety Miller’s need not be reiterated. opinion, *11 (Though note
relevant to that the this “interruption” assertedly represents colloquy could half.) not have lasted much longer than a minute and a The statements the court and at the petitioner do relate to sentencing hearing peti- specifically tioner’s intent. At this her as follows: hearing petitioner position explained “What I was to . . be in- . was the inference . . . that would objecting [women] men, fluenced hand, their and the . . . be in- spouse on the other wouldn’t fluenced their no spouses because had man ... as to you any questions And, what their did. I felt drawn wom- spouses this line between men and en prospective jurors this And I I morning very, very was strongly. hoping wouldn’t be called ... to the box because I knew I would have to I jury object. afterwards, but, had wanted to keep my to a letter to objections you possibly when name was I unfortunately, my called and had to forth and answer the go I had to questions, decide whether I I was to this or not and going participate elected not to and I don’t feel as a citizen I have to. ... ... I did not come [if] in here to make a I’m statement. not known for my erratical espousal [szc] causes. All I know is it hurt And that’s I took the did.” just my gut. stand I why
To this and related the trial included the explanations, judge’s response comments: following “. . . I think honest about and—that you’re that does give me some for feelings this too. If you were a who thumbed nose person their just at flat authority, it’s just because then I it a authority, way. would see different But I don’t it in see that with way I think a woman of you. you’re prin- high that, and an ciples attorney and that done this high principles you’ve feeling mind, own your that were a stand did justifiably, you going make and you make the ...” stand.
At no time this was trial he during hearing it ever that suggested by judge considered disre- conduct to insolent or petitioner’s admittedly principled fol- spectful. her in is the explanation provided finding statement of the re- lowing “The refusal to answer judge: questions upon Court, course, Civil quest is a matter under contemptuous [Code Procedure You 1211. intended not citation is section] [The § 1211.] § raise no reason not those grounds—no why you should answer quesions—any constitutional reasons that would tend to incriminate or such you privilege you have. no but to feel that you Court had alternative Consequently, did answer own will. You directly by your just that opposed
not want to answer the weren’t to. And that’s contemp- You question. going So, tuous of the Court’s the reason for it.” When petitioner that was power. restated refused she felt the that she to answer because thereupon pattern women,” was “I understand to all the court questioning “insulting responded: fact, have all as a matter of with your position, your agree position, along.” short, record
In no evidence in the only is there court or finding by that acted in intent an insolent manner or petitioner possessed specific the court trial court embarrass its but the interrupt proceedings, specifically that acted articulated principle on the basis acknowledged petitioner did so faith. record I cannot conclude that peti On this respectfully good inexcusable,” is an conduct was wilfiil “in the it is tioner’s sense that Burns, Cal. (In element class of essential contempts. re The excuse for failure to App.2d petitioner respond, at the conscience did not per stated her peatedly sentencing hearing, *12 a mit “insulting”; her to in a she believed participate pattern questioning not in belief trial court was The this excuse is the allowed genuine. validity affected fact that is an by attorney. Prospective jurors the way petitioner and serve in their To or diminish the enlarge rights citizens. capacity would be duties a his or her status to prospective juror according professional have numerous adverse inimical to the of the and fundamentally jury concept and even dangerous consequences. exer- cases little on the whether the guidance reported provide
cise of
for
conscience
excuse
the refusal
a
provides
acceptable
prospective
case
a
no
to answer
voir dire.7 There
juror
question upon
being
reported
are
in which
those most
to the one before us
cases
analogous
precisely
point,
for
for
to serve.
was cited
refusal
juror
prospective
contempt
seen,
As
the
the motive
will be
of these cases also turn upon
dispositions
96,
Minn.
(1963)
intent of the
contemner. In
re
265
97
potential
In
Jenison
[120
515, 516],
on the ground
N.W.2d
the defendant refused to serve on the jury
not,
Testament,
that it
of a
in the
“Judge
was
contravention
statement
New
af-
so
will not be
you
defendant’s conviction
judged.”
contempt
Court,
firmed
the state
the Minnesota
which found it did
offend
by
Supreme
constitutions,
was inconsistent
federal
and that
to serve as a juror
refusal
contempt of
reported
juror
7Most
the few
in which
been held in
prospective
cases
has
ger
here
upon
court involve concealment or wilful
facts
voir dire and are not
misstatement of
993,
465];
(See,
Clark v. United States
1
e.g.,
mane.
U.S.
L.Ed.
53 S.Ct.
289
[77
474;
(S.D.Fla.
Lampkin
(D.D.C. 1959)
United States v. Henson
United States
v.
F.Supp.
179
821;
People v.
737];
1946)
In re Bassett
F.Supp.
N.Y.S.2d
172 Mise.
219;
Wright
Murphy
Hadesman
167 Iowa
N.W.
Ill.App.
75 [148
985].)
with the
(Ibid.)
of the
peace
safety
state.
This
was vacated
the
ruling
Court,
United States
which
the
remanded
case for further considera-
(In
tion.
re Jenison (1963)
63].)
If the contempt power is to a who for inappropriate punish juror prospective serve, reasons of conscience will not it is at least to equally inappropriate punish a prospective who for the to a juror same reason refuses answer par- ticular question.9 difficulty 8The court ascertaining conceded the in particular prospective cases whether
juror
acting sincerely.
was
juror
“Where a
part
is a member of a faith which includes as a
of its
dogma
prohibition against
jury duty,
the problem
relatively simple.
is
It becomes more dif
conviction,
creed,
personal
ficult
religious
when a
any
unrelated to
Suffice
sectarian
is claimed.
say
instance,
it to
that trial courts will
to
have
determine in each
with whatever evidence is at
hand,
whether or not the
protected
assertion of a belief which is
the First
is in
Amendment
(In
spurious
fact a
claim.”
Jenison
I am mindful that the removed atmosphere appellate minimize It is not confront the trial courts. easy exigencies regularly here; circumstances nor that under no do so my purpose certainly suggest venire, to members of the question, willing put to answer if the same all *14 right privacy to of relating right privacy. not the to On the present this case does issue to 1979) (2d jurors on voir dire see United v. Barnes F.2d 121 and States Cir. 604 prospective (1978) City County and San Francisco Cal.App.3d Cal.Rptr.493]; Lehman v. 309 [145 of Privacy Prospective During Dire Comment, Right to Jurors Voir see also of Limitations Safely 708, Protecting Jurors’ Comment, Dire as a Means Voir Cal.L.Rev. and of Privacy: and United States Barnes v. 782. 93 Harv.L.Rev. venire, the trial court holding contempt, presence in the of the entire petitioner 10After in and immediately petitioner custody. place the bailiff to in ordered discriminatory questions of sexually to empirical juror 11For evidence of adverse reaction Study Empirical An dire, Breeder, Voir Dire Examinations: see women on voir So.Cal.L.Rev. 527. during voir dire the and the court 12The nature of interaction between members of venire of them affects their jurors perceive judge’s perception their can be critical because “[h]ow (Kerig, Perceptions Jury 313. See From a Box 54 State Bar J. will.” morale and Study, Empirical supra, An also Voir Dire Examinations: p. at may a recalcitrant member of a venire be held in of court. properly decision is My in strictly narrowly limited to the uncommon situation very a moral prospective juror, conscientiously is acting upon principle, in faith good to fully in voir dire for an articulated reason unwilling participate rationally related the asserted and does so in a manner. principle respectful these, Acts such as which when committed a are not in all juror prospective instances manifestly are improper, within that class of in special contempts which wrongful intent is essential to the offense and faith excuse good may what might otherwise be considered re conduct. properly contemptuous {In Jasper, 988.) The latitude granted prospective this rule is jurors by role; warranted by the nature of their it does not deprive the courts of any power remember, essential to our function. It is well to in this connection, that as reiterated the United States Court In Little “ 553,555 (1972) 404 U.S. 708,711, L.Ed.2d 92 S.Ct. law ‘[T]he is not made for who be sensitive .... protection judges are fortitude, to be Judges men supposed able to thrive a har- [and women] dy climate.’ Craig Harney, 331 (1947). U.S. ‘Trial courts . . . must on guard against confusing offenses to their with sensibilities obstruc- States, tion to the administration justice.’ Brown v. United 356 U.S. (1958).” Because was a petitioner juror and the record demonstrates she prospective acted voir dire on during basis a moral asserted principle respectfully faith, in good I concur judgment setting aside judgment contempt. ROUSE, J. dissent. respectfully
At oral argument, that, counsel for conceded if the appellant questions then she would proper, the trial to hold that challenge judge’s right ap- Therefore, refusal to pellant’s view, answer was an act my contempt. issue before this court is whether had the refuse right appellant answer the questions “Do have a husband?” “What you is occupa- [his] tion?”
I cannot accept assertion that in- appellant’s her refusal answer such nocuous is a matter of questions constitutional dimension. Both as trial lawyer and a trial I have judge, asked similar questions many prospective jurors occasions, blissfully unaware of the sinister nature of the inference now as- cribed to them by appellant. Clearly, it area of ad- generally proper inquiry, dressed to both male venire, but, and female members of a until I read Justice *15 Miller’s opinion, was unaware any that such requirement questions put to each or to none. It seems me that the matter of one’s marital status and oc- is a cupation common subject and discussion at of two inquiry gathering or more in a persons, variety (but including confined settings, certainly sectors, and even in affairs,
to) various in the agencies private public social the courtroom. (i.e., case, his Justice Miller in by opinion
The Hamilton
relied upon
982]) is
84 S.Ct.
Hamilton v. Alabama
Appellant Instead, to the her by judge’s an different situation. present entirely responses courteous, was, view, him, a but in she my telling inquiry, apparently defiant, manner, he way that she did not approve nonetheless this, in more ap- his one her to do right conducted court. No would challenge However, nor the this was neither the time place circumstances. propriate of the how members many such an admonition. We don’t know from the record courtroom, do know how nor we venire were then prospective present pro- had which have been asked the many prospective jurors already questions that it be assumed this From responses voked controversy. appellant’s asked, men who were not. there were other women who had been a occasion was though prospective Even attendance appellant’s is, feature a my significant the fact that she was an juror, attorney judgment, viewed of the court of this scenario. How was this act of defiance an officer by challenged authority officer’s laypersons present? presiding her excusing —the hurled in face—how must he gauntlet respond? By his that, sanction, thereby creating impression without further admonition or a admoni- to answer one can avoid refusing questions, duty? By personal jury chambers, thereby lending tion at a later time in the privacy judge’s to the of access to the belief that a lawyers enjoy special privilege credence (often inaccurately nonlawyers which is not judge—one generally enjoyed by “the characterized as old school tie” relationship)? detention, as a sanc- which was imposed
While the 15 minutes of custodial fine, tion, might (a suspended, in this instance minimal was somewhat severe a matter for have nevertheless this was more properly well served purpose), the trial court’s determination. 700, the court (C.D.Cal. 1970)
In United 309 F.Supp. States Cantillon answer, a contempt by out that the failure to in order to constitute pointed a of the court’s judicial would obstructing justice, necessarily require disruption business, a conviction sustain Assuming disruption business. judicial to answer caused have to that a defendant’s failure would establish proof *16 disruption judicial business and that failure to answer defendant’s because of lack of but understanding, because a deliberate refusal to answer. course, Of would proof to show that undoubtedly a defendant was required aware of his duty answer and his refusal constituted a defiance of the court. Furthermore, it is doubtful if a conviction could be sustained in the absence of Cantillon, an order court to a (United defendant to answer. States v. In all my opinion, elements requisite in this case. The present had no judge reasonable alternative available to him in these circum- stances. More than once their not during he reminded unfriendly exchange ap- of her pellant as an responsibility, to the court re- attorney, and that refusal to would spond constitute He then the now in- contempt. repeated (or famous famous) to which she “I refuse replied, to answer.”
Obviously, views appellant this matter as a manifestation sexual bias and one of constitutional magnitude. She has one successfully persuaded col- my leagues that point. Unfortunately, I cannot with either agree col- my league’s resolution of the matter.
I would affirm the judgment. petition defendant respondent hearing Court was denied Grodin, J., August 1983. did not therein. participate