*1 19, 1973.] In Nо. 16621. Bank. Oct. [Crim. re on Habeas Corpus. LAWRENCE BUCKLEY
Counsel
Keith C. Monroe for Petitioner. Counsel, Adrian Sevier, Kuyper, Charles B. County Coun- County Deputy sel, Hicks, Cecil District Michael R. Attorney, Assistant District Capizzi, Stotler, Oretta D. and Attorney, Sears Alicemarie District Attor- Deputy neys, for Respondents.
Opinion
SULLIVAN, J. In this in habeas Lawrence corpus,1 petitioner proceeding an seeks to annul an Buckley, attorney, order Orange County Supe rior court, in direct him him adjudging contempt sentencing $500.2 for five a fine jail days imposing
The occurred in court trial alleged during jury open case in criminal which defendant. In the course represented petitioner defense, of the case in called as a witness the petitioner unexpectedly prose- Brian, cutor Mr. district The attorney.3 admon- deputy judge thereupon sought a a writ of corpus 1Petitioner writ of habeas alternative certiorari. or (John (1951) remedy Bryant properly Either Co. invoked. Breuner 36 Cal.2d 356]; Cal.App.2d P.2d re Circosta petition Cal.Rptr. corpus praying We chose treat as one for a writ of habeas Respondents show superior issued an order to cause. and Sheriff Orange County separate have filed returns. that, fine, 2The also provided pay petitioner order of failure to event serve, remaining days, day $25 should five of the fine addition to the for each one unpaid. Buckley: 3“Mr. Call Mr. Brian. say? “Mr. Brian: Who did had in were open and the following proceedings the jury
ished and excused court, jury. outside presence so that alleged events in some detail subsequent shall set forth We excused, the jury After setting. can be viewed in its proper court, which prosecutor at the start of ensued open argument ex what he offer of make an order
requested petitioner portions as a witness. pertinent calling prosecutor pected prove below.5 of the record are set forth witness, other any to call the that he had the right prosecutor
Asserting stands Attorney District “I don’t believe the as follows: continued petitioner him witness, to call and if I want other stead or difference from in any inter- can be witness. Objections I to call him as a as a witness have right question question. posed “The Court: Mr. Brian. Buckley: “Mr. Mr. Patrick Brian. nonsense, Buckley’s Honor, get any of Mr. we into “Mr. Brian: Your before hearing at the bench?
may we have a on that matter Well, .” lovely . . jury goes back into that nice room. “The Court: incorporates part as a adjudging contempt attaches and order 4The “colloquy” as the proceedings described рortion of the oral transcript thereof a of a *5 leading alleged contempt. toup Honor, just Your for the record— 5“Mr. Brian: you. why wants to call explained a He hasn’t
“The Court: Give him chance. that, to make an offer would the Court ask counsel Brian: Before he does “Mr. regarding purports to elicit from me. proof the evidence that he expect get “The I Court: that. it, justification conduct. relevancy for that type Brian: And the
“Mr. Buckley: Mr. Par- in the courtroom is I think the record should show that “Mr. assert, going nell, Attorney opposi- Attorney. a The District is Deputy District witness, calling people be without counsel. would to me him as tion argument. making no such “Mr. Brian: I’m Buckley: Parnell could argument itself. Mr. Age-old that will resolve “Mr.
substitute in. calling Pat waiting you propose prove what Mr. “The to hear Court: I’m Brian, County Orange. Attorney of the Deputy District Buckley: Well, give personal I’d have would me recess if the Court “Mr. interview, questions Brian, my then he would answer with and if conversation I would be able to Mr. things. I think he testify really he can to material know whether can. “The Court: Such as? Buckley: directing Well, got the defense to order “Mr. the Court involved in an of alibi witnesses. prosecution to the the names and addresses
make available cases seem to indicatе that’s about as much defense, discovery, in terms from the as the Court can order.” so, his in the case. You
“The Court: I don’t believe in view of status have an obligation— Buckley: so that the The Court should let me finish my position
“Mr. record clear. went on
“The I had finished. I didn’t know you you Court: thought forever. Buckley:
“Mr. The Court’s persistent interruptions— Don’t characterize conduct my interruptions “The persistent Court: I’ll cite Get on you contempt. your argument. Buckley: inter- the Court’s I train of because of “Mr. lost my thought ruption.” to make he was not then his required
Petitioner reiterated position The following his objection. and the renewed an offer of prosecutor proof then occurred. what- no showing There’s been And I renew my objection.
“Mr. Brian: ex- case, learned sad and I’ve to offer in ever that I have anything it unless and I refuse do Buckley to talk to Mr. person, not perience I’m the this case. have to offer nothing I there’s a witness present. [H] his tricks. It’s one of I to take the stand. cheap and refuse prosecutor, characterization. interested in your I’m not “The Court: characterization. I withdraw my “Mr. Brian: Buckley: Attorney apologize. the District the Court ask Would “Mr. him for calling stupid? Court: Did you apologize “The *6 Buckley: I call him stupid? Did “Mr. Yes, did.” Court: you
“The objection sustained prosecutor’s Aftеr a further exchange, to to argue continued Petitioner as a defense witness. to called being Buckley: testi- relevant that won’t offer call witnesses I don’t “Mr. court. testimony. and material relevant witness will offer and this mony, that is. what to first tell me You’ll have “The Court: Buckley: a heavy bear and the the Court prosecution I think “Mr. burden. Court; with Either burden. comply me about my telling
“The Stop or sit down. the order Buckley:
“Mr. What is the order? information the relevant tell me you Court: The order is unless “The call to to him. permit you I’m not going Buckley: witness? every
“Mr. Is that to be so going Attorney.” to the District No, that only applies “The Court: ensued, dur- then and the court A between lengthy exchange petitioner to interrogate prose- that he was entitled which argued ing petitioner defendants, state- since such about oral statements made to him by cutor reduced had been anyhow they would have been discoverable ments such for authority position, When asked the court writing. supporting Buckley: the Court’s continued: “Mr. I call experience books, that new law ques- as a isn’t written down in everything in the cases. tions arise aren’t every day it, denied. is that it? It’s have authority
“The Court: You don’t Buckley: The District Attorney— “Mr. It’s denied. to hear the I don’t want argument.
“The Court: Buckley: It’s the contrary. has none to District Attorney “Mr. with all other— consistent on it. I’ve heard enough argument
“The Court: Buckley: Ferguson, In Cal.3d Re I’ll cite to the Court “Mr. turn over Attorney the District
which talks about the obligation and ma- a substantial defense, all even without information request, fact, the or not. nature; it is written about whether terial says nothing notice that a written for the defense make there is no need says my That’s with unnecessary H] will the Court’s file paperwork. just clog a mistrial. case. I on that. I’ll move Court for rely H] “The Court: Denied. Buckley: the law. apply want obviously doesn’t This Court
“Mr. *7 tell me I don’t down. Don’t me and sit insulting “The Court: Stop Hi] to cite time I’m going and this the law. It’s insulting want to grossly apply this in impugning behavior for For you contemptuous contempt. grossly un- highly insulting, It the law. is highly a desire not to Court willful apply true, and you’re with five punished days County and a Orange jail dollars, fine of five hundred the sentence to take effect the conclusion of this It trial. will be until the verdict stayed is rendered in this case.”6 (Italics added.)
At the start of the on the proceedings following morning, petitioner court and outside the open of the to the court for presence jury apologized late. court, In the being ensuing between and the colloquy petitioner during which remarked that “this petitioner Court has about cred- questions my ibility,” to the petitioner court for “the I apologized comment made yester- discloses, day.”7 however, The record that the further reflection judge upon chose to the regard as proffered salt on apology having “poured wound.”8 the afternoon session that
During day, and out open of the addressed the presence jury on the of his judge subject prior and the apology court’s observation that subsequent “only apology magnified nature of the His contempt.” inquiry why had rejected was met that he “never apology judge’s response it or it” but had considered that the accepted rejected “only magni- apology insult, fied the because the accusation was a on of this charge integrity was, law, court. The accusation knew the I and didn’t it. obey merely So law, I knew the stating merely the fact that I had no emphasized integrity.”9 6The then ordered 10-minute There is recess. no indication in record nor in the order that necessary the recess was to maintain order or was in any way a result of remark. Buckley: Well, 7“Mr. respect yesterday, to the apologize comment I made I combat, to the anger Court. That made perhaps comment in the heat of I apologize, knowledge, do because I do respect legal this Court and the Court’s Court, disagree disrespect I with the but 1 don’t it. good I’ll see whether “The Court: that’s made in faith the manner in which you yourself conduct the remainder of this trial. Buckley: I’ll my “Mr. support do best to it.” course, Buckley 8“Of the record will I cited also show that Mr. for
yesterday apology morning. willfully He purported his this accused me of disobeying help prosecution the law in order to conduct unfair trial in stupidity behalf of his client. I’d much rather be than of malice. accused “Today enough knowledge Buckley say respected my Mr. was kind law, only charge disobeying which willfully made the it all the more serious. wound, expunging contempt, Rather my eyes my with all poured than salt on because law, knowledge Buckley’s purported there would be even less excuse Mr. disobedience of it.” interesting point petitioner appears pursued 9It that court in to have note at that Buckley: interrogating position. respect course of to his above “Mr. position That was the Court’s . . . ? “The Court: I That’s as understand it. *8 remark, for his allegedly contemptuous to exonerate
Declining in con- order adjudicating petitioner and filed a written made the judge was Petitioner in the margin.10 set forth in relevant which we part tempt, in habeas corpus released. This but was later proceeding taken into custody followed.11 Buckley: morning event, right. anything transpire this did All In “Mr. apology? interpreted the the Court apology the and when
between time I made the Well, language. think about the “The Court: I had chance to Buckley: was apology indicated the Nothing the occurred on record “Mr. good faith? not made in testing sure, you Are but I don’t think so the moment. “The Court: I’m not anything I at the moment. subjectively? me can’t think of Buckley: to—see, with the statement today quite I startled trying “Mr. I was thought made, apology good faith and I I had made because considering— Court was at least lawyer my apology does not exonerate opinion, “The Court: the so-called it’s an excuse presence of I don’t think contemptuously who behaves the Court. contemptuous for conduct. . . .” found, hereby adjudged 10“It is ordered and that: Court, “(1) 19, 1972, September presence view of On immediate and action, Buckley,
during defendant, counsel proceedings Lawrence in the above-entitled Judge not want to ‘obviously does open stated in court that the Trial law,’ hereto and made which is attached apply a colloquy portion in a the full of part hereof. “(2) Judge integrity, lack of tended effect accused the Trial of Such statement in contemp- interrupt progress, to tuous of and constituted the due course the trial then behаvior. “(3) hereby Buckley is committed to contempt, For said of the Sheriff of said Lawrence Orange Days hereby fined the Sum custody County for Five and is ($500.00), penalty plus of Five Hundred Dollars assessment. “(4) re- Buckley ‘apologized’ and contempt, After said said Lawrence said only knowledge ‘apology’ spected purported Such served effect, charged Court’s of law. Court, integrity which in emphasize previous attack on the transcripts refusing obey knowing deliberately it. The the Court regarding the law part apology HSH also attached hereto and made a said are hereof. “(5) committing the said Lawrence stay only provisions A those of this order is Buckley custody Orange County granted verdict to the the Sheriff of until jury discharged proceeding. rendered or the in the above-entitled Buckley “(6) committing said Lawrence stay only provisions A further those granted the institution custody Orange County shall to by Sheriff adjudica- review the within Buckley proceedings to appropriate said Lawrence of One of bail the sum higher upon posting in a court tion by (Italicized ($1,000.00) handwritten and initialed portion Dollars.” Thousand judge.) 11 Orange County, Although only the Sheriff cause named the order show counsel) (repre sheriff county (represented superior both the Both rеturns. and written attorney) have filed “answers” sented the district respondent. will to herein as parties be referred
246
Petitioner a directs attack on the order him three-pronged adjudicating His (1) contentions as contempt. may summarized follows: That the order is insufficient on face its to the the support jurisdiction of trial court record; and is not (2) the that under the supported circumstances of the case, the trial as judge a matter due required, of to refer the process, of the to charge alleged another for contempt adjudication; (3) that matters, California procedure insofar as fails to contempt pro- vide for a an or as a stay matter of denies a contemner appeal right, of equal the laws. protection
I we make some Preliminarily observations as to the under review. order read, it Fairly indicates that was found to be in only petitioner contempt for a act of single misconduct—his “This statement in court that open Court 10, ante, doesn’t want to obviously (See the law.” fn. and text apply 6.)12 fn. Nowhere does the order accompanying state that made petitioner loud, boisterous, this statement in a recite, or insolent rude It does manner. however, that the statement “tendеd to due course of the trial interrupt then in almost identical with that found in progress,” language subdivision 1 of section of the Code of Civil Procedure.13 observe additionally We to, that there are attached order, and made a of the part transcripts full (see 10, of portion between and the court fn. colloquy ante, 1st well of par.) (id., as 4th petitioner’s apology par.).
These of matters out we turn to preliminary way, first contention. his Essentially this: That the order of rests point 12The sufficiently specific any conjecture might order is preclude to that it be based petitioner. on other acts of The quotes first sentence order the remark a copy transcript attaches next it was show the context in which made. charges sentence Judge that statement “Such in effect accused the Trial of lack integrity, interrupt tended to the due progress, course the trial then in (Italics added.) constituted contemptuous behavior.” reason, concerning For by petitioner only this facts other behavior are relevant they light extent that shed on intent with which the remark was made or effect which the the proceedings. remark had on Other conduct not serve as grounds independent contempt, requirement since to do would violate the that so show, (Chula speculation, the facts without the aid that a occurred. Superior Cal.Rptr. P.2d Cal.2d A.L.R.2d following pertinent part: or provides 13Section 1209 “The acts omissions therein, justice, authority respect proceedings contempts or are [1¡] Disorderly, contemptuous, of the court: 1. or insolent behavior toward court, tending holding interrupt trial other while due course of judicial proceeding.” Hereafter, indicated, to the unless otherwise all section references are Code of Procedure. Civil such to be on remark nine words single alleged contemptuous; loud, or offen- in a boisterous statement was not found to have been made manner; due course sive to have tended found although interrupt *10 that, trial, record; and is totally such finding unsupported result, a did statement not constitute petitioner’s contempt.
In
“the
before
an
of
sole
adjudication
reviewing
question
contempt,
is
of
under
us
one
the trial
to render the judgment
of
court
jurisdiction
review,
to determin
and in such a case
of the evidence
limited
the review
whether
to sustain the jurisdiction
there was
substantial evidence
ing
(The
(1940)
Superior
of the trial
v.
Court
15
court.”
Times-Mirror Co.
99,
1029],
(1941)
given expression
opinions.
407,
the Code
It is inherent well established that court has punish power 8, (In McKinney re Cal. (1968) Cal.2d 10-11 [73 580, cited). As this court declared and cases there 447 P.2d Rptr. 972] this inherent case cited with many years ago repeatedly approval, conferred “is a incident to execution necessary powers power court, and is to maintain its if not ex- necessary its dignity, very (In re Shortridge 526, istence.” (1893) Cal. P. [34 Thus it is the settled law of this state that commits attorney direct when he of the court statements impugns integrity , made in Ciraolo, court either open orally (In re writing. 389, Cal.2d (false 394-395 affidavit); Superior accusation in Hume v. Court (1941) 17 Cal.2d 513-514 (false P.2d of collusion charge 669] General); Blodgett Superior Attorney Court 1,16 Cal. P. (false 72 A.L.R. in legal charge corruption 482] memorandum); Shay Matter (1911) 160 Cal. 407-408 P. 442] (letter conduct to imputing Lamberson improper Supreme justices); *11 v. Superior Court (1907) 458, (affidavit 151 Cal. to P. 462-464 [91 100] disqualify and judge motives); In re charging corrupt Grossman improper (1972) 624, 24 (false 634-640 Cal.App.3d accusations Cal.Rptr. [101 176] Municipal Gillen v. against (1940) 428, 429, judge); 37 Cal.App.2d 431 (oral P.2d statement [99 555] counsel won before he opposing started); Superior Hallinan v. 433, Court (1938) 27 438-439 Cal.App.2d (affidavit P.2d Friday [81 of In re charging dishonesty 254] presiding judge); (1934) 660, 138 663 P.2d Cal.App. to court’s (objections rulings [32 1117] trial falsely conduct); Ewell charging judge parte (1925) Ex improper 71 (letter 747-748 P. Matter Cal.App. judge); [236 attacking 205] of Application Lapique (1915) (affidavit 26 258 P. in Cal.App. 690] of of motion for support of venue lack change of in integrity judge). imputing Witkin, See 4 1971), Cal. (2d 2973-2974.)14 ed. Procedure Insolence to рp. the the form words or conduct in has insulting traditionally court been law recognized common as for constituting grounds contempt. (Oswald (1911) 51-54.) on Contempt As we said pp. recently 14Section may establishes a list of acts or omissions which constitute con court, tempt including Disorderly, contemptuous “1. or insolent behavior toward court, the judge tending holding interrupt while the the course due a trial or judicial (Italics added.) exclusive, other proceeding.” however, list is not for the power punish of a court by contempt act which impugns integrity an its exists independent (Cf. Shortridge, supra, 532.) statute. In re Cal. “The legislative regulate department may procedure power, it enlarge and but trenching powers cannot without upon destroying constitutional the court balances, autonomy system of checks and is one of the which chief (Id.) triple-department government, power features of our form of fetter the itself.” (See also In re San Francisco Chronicle 1 Cal.2d 634-635 P.2d 369].) contempt We that note that order here remark states “accused conduct, record, Judge Trial integrity.” supported by of lack of Such if text, supra. general punished by rule forth in We need under set trial, interrupt not consider whether the remark also tended to the due course of the alleges, grounds justify independent the order so as to under section 1209, subdivision 1. “ Ciraolo, Lamberson, supra, supra, Friday, supra, 'The from quoting is well his court within his own rights protecting reputation and it is his bounden from attacks his groundless judicial duty upon integrity Friday, supra, re (In of his court.’ protect integrity Cal.App. Court, 660, 663; Daily see Superior supra, also Cal.App.2d P.2d ‘However be to willing may forego injury, private is due him his oath to maintain the to the obligation upon respect ” Ciraolo, (In 394-395.)15 over which he re presides.’ pp. Nevertheless we have warned that the ultimate judge’s weapon caution, summary “must be exercised with lest contempt power great stifle the freedom of so to a fair trial under thought speech necessary our That adversary system. built the belief that truth will system best be served if defense counsel is the maximum given leeway possible manner, in a but nonetheless ob- urge respectful determined questions, jections, he deems to the defendant’s case: ‘He has argument necessary right and to an erroneous press legitimate argument ruling.’ protest Indeed, so essential is this ‘fundamental interest of the [Citation.] public maintaining bar’ . . . that ‘a mere mistaken act coun- independent *12 sel cannot render him of court. Even if contemрt legal proposition untenable, faith; counsel it may he do so even properly urge good may successful, though course, not may to be that he does expect provided ” not resort to deceit or (Smith to wilful obstruction of the orderly processes.’ v. Superior Court 547, 1, (1968) 68 Cal.2d 560 440 P.2d Cal.Rptr. [68 65], Gallagher Court, 788, Municipal 784, v. quoting supra, 31 Cal.2d 795, When, 796.) however, to insolence and aggressive advocacy way gives towards the disrespect court and when it into “im- particularly degenerates scandalous, pertinent, or on the insulting contemptuous language reflecting Court, integrity court” (Hume Superior supra, v. at 17 Cal.2d p. 513) it is the trial “bounden of his judge’s duty protect integrity 15Distinguishable holding attorney from these cases are decisions that an is not guilty good of court when in faith he states facts which he believes to be true allegations and which support of bias made in connection with a motion to disqualify judge. (Woolley (1937) 611, Superior Cal.App.2d v. Court 19 627-628 680]; (1932) 625, 902, P.2d In re Cal.App. [66 Cunha 123 635 P.2d 18 P.2d 979].) distinguishable Also from the cases cited above are those of con instances temptuous judge subject behavior where “to ridicule and insult gestures accompanying (Gallagher intonations and wholly words innocuous. . . .” Court, cases, Municipal supra, 796.) v. p. 31 Cal.2d at We held have that in such “sоmething required support more is order recital therein that than mere 1179, (In (1969) the tone contemptuous.” of voice used was re Hallinan 71 Cal.2d Cal.Rptr. judge 1181-1182 [81 459 P.2d The record must show attorney expression first warned the offensive. that his tone of voice and facial are (Id. 1185; Court, 797.) Gallagher Municipal supra, at p. p. at v.
250 663; Lamberson v. Su- (In Friday, supra,
court.” re at see 138 Cal.App. p. Court, supra, 461-462.) perior 151 at Cal. pp. us, we think it authorities to matter before foregoing
Applying is manifest that an attack on the integrity statement constituted want the court. doesn’t obviously Court offending language—“[t]his read, means, took as indeed the trial judge law”—fairly apply mean, it. In that the knew the law but chose to deliberately ignore judge is, bias, that does a mere accusation of essence statement not constitute (1918) Cal. (Estate a mere Friedman “condition of mind” “ mind; or 140]) P. or preposses merely ‘leaning propensity ” (Evans view, v. sion toward an or not the mind indifferent’ object leaving from Superior P. quoting 662] Cal.App. Dict.) New Internat. Webster’s mental a mere
In our view the statement
one
beyond
reflecting
goes
dishonesty.
outlook or
and makes a
of deliberate judicial
predilection
charge
ac
such an
not
We are of the
that the record does
support
opinion
offensive,
insolent,
and that the
cusation
statement
against
of the court. We conclude
insulting,
integrity
impunged
is not
order
statement was
on its face.16 Since
contemptuous
Court, supra,
Municipal
(Gallagher
based on
innocuous”
“words wholly
insolent, con
796)
at
or
of which is in itself not
Cal.2d
on “language
p.
Hallinan,
1181) the
at
(In
re
Cal.2d
p.
disorderly”
temptuous
taking disciplinary
was not
first to warn
before
required
Hallinan, supra,
797;
In re
(Gallagher, supra,
action
him.
against
1183.)
us is
contends, however,
before
that reversal of the order
Petitioner
*13
Inin
the recent decision of the United States
by
Supreme
compelled
708,
re Little
S.Ct.
There
(1972)
Our
Little
our inability
is further
reading
complicated
court’s result. The
constitutional
infirmity
high
specific
dictating
its
concluded that reversal of the conviction
merely
required
Virginia
L.Ed.2d
earlier
in Holt v.
We
constitutional
merely affirming,
grounds
upon
due
ad
summarily
settled rule that an
not be
process,
attorney may
rule and its
judged
for
but
This
aggressive
advocacy.
respectful
(1952)
limitations are
set forth in
v. United States
Sacher
eloquently
717,
451],
U.S. 1
L.Ed.
summary
72 S.Ct.
conviction
upholding
[96
of an
for direct
while
the de
attorney
committed
representing
(See
fendant in
(1949)
a criminal case.21
Fisher v. Pace
U.S.
also
filing
thought
something
contempt
about
supra,
might
for
is
these motions unless it
be
that there
language
(Holt
Virginia,
justify
which
v.
used
would
the conviction.”
293-294];
added.)
pp.
pp.
254 574, 569, 425]; (6th United 69 S.Ct. States v. Cir. 163 L.Ed. [93 Schiffer Court, 94; 91, Raiden at
1965)
Superior
supra,
351
v.
34 Cal.2d
F.2d
p.
Court,
796-797;
86; Gallagher Municipal
v.
Unlike the in remark attorneys’ Buckley’s affidavit was not [itself], in no in offensive “plain English, way wholly appro (Holt v. Virginia, supra, to bias . . . .” priate charge 381 U.S. 137 p. Rather, 294].) L.Ed.2d at the remark “This court doesn’t obviously [14 p. bornly stances of each given defiant defendants be the circum- must sufficient discretion to meet who, attorneys, by case.” These words a to apply fortiori conduct by training, position judicial system. their duty have the to insure order in our might 22Further for confusion arises references in Little be read cause from which “ that, implying contempt, punishable to be for conduct must result in ‘an direct ” imminent, supra, Little, merely likely, justice.’ not a re threat to the administration of {In 711], Harney Crаig (1947) quoting 404 U.S. 555 L.Ed.2d at 367, 1552, 1249]) 1546, 331 U.S. administration L.Ed. 67 S.Ct. or “obstruction an {Id., (1958) justice.” quoting Brown v. United of States U.S. 589, 595, L.Ed.2d 72 A.L.R.2d Petitioner seizes S.Ct. that, arguing this upon language punishable contempt, for conduct must to be physically disrupt proceedings. somehow Court, stating Supreme We are the above- unconvinced that the United States dicta, only quoted apply of state contempt power intended to limit courts physical those cases in which there has been a obstruction to the administration Craig, Craig justice. supports An examination of and Brown this conclusion. In adjudication contempt against Supreme constructive several reversed an ruling. attacking newspapermen judicial articles a The decision based for traditionally protection press the First Amend- zealous freedom under free-wheeling proper a for newspaper, Unlike is not a forum ment. courtroom exchange setting tempered attorney’s speech in this must ideas. An freedom of they created—dispensing accomplish for which were to insure that courts of law short, reasonable, to see how the we fail justice in efficient fair manner. attorney. Craig contempt by applies involving to a case direct rule with the to this case. Brown dealt employed apрly Nor does test Brown power contempt contempt. The federal punish for power of a court to direct federal to limit the long which has held passed in 1831 been is defined federal statute statute, contemptuous summarily This conduct. punish of federal courts to power Code, part: of the United “A court in relevant 18 United States section states discretion, such punish imprisonment, at its have fine or power States shall other, person Misbehavior authority, and none as—[11] of its (Italics justice.” the administration thereto as obstruct presence its near so added.) not, however, rule, which reflect merely statutory federal “does Brown restates (9th (Weiss v. Burr Cir. powers.” of the states’ the constitutional limits 13.) 973, 982, 1973) F.2d fn. face, fact, want to basis in law” on its had no apply contemptuous *17 and was not made in furtherance of motion to any legitimate disqualify It with the court’s judge. merely served emphasize petitioner’s displeasure adverse, refusal to rule in his “But not favor. if the is it is counsel’s ruling to resist it or insult the right judge—his right only pre- respectfully States, his serve 343 at (Sacher supra, for v. United U.S. point appeal.” L.Ed. at 9 p. [96 p.
holdWe here that when argument turned from petitioner’s advocacy insult, the trial court was in him in We acting holding contempt. properly of the are that Little does California not from the settled opinion derogate us, (see 14, ante) set forth that supra rule text fn. an attor- by accompanying commits a direct of the court ney when he contempt impugns integrity Indeed, view, statements in rests court. in our Little on only not open a different but is also have en- on its facts. We principle distinguishable trial, deavored to evaluate in the petitioner’s language perspective claim, mindful the fact that he is an advocate his him pressing according enjoyment of that heat due allowance for the of con- right, “[f]ull States, (Sacher troversy” supra, v. United at L.Ed. at U.S. 9 [96 p. 723]), and sensitive to the in p. hazard that dignity vindicating court, of the authority judge’s must not become “an contempt power Pace, instrument (Fisher v. L.Ed. tyranny.” 336 U.S. at p. 574]; circumstances, at Douglas, of all these dissenting.) light cannot we that say was as conduct a matter law not con- temptuous.
II We now turn to that the trial petitioner’s argument judge required, as a matter of due to refer the matter of process, adjudication alleged Pennsylvania another Petitioner contempt judge. Mayberry relies 499], U.S. 455 L.Ed.2d S.Ct. proposition that a defendant in criminal should be given public contempt proceedings trial before a оther than the one reviled judge contemner.
In Mayberry, the Court overturned Supreme adjudications defendants, in a state made a lawyer, Three none of them proceeding. rep- trial, resented criminal themselves trial before a At the end jury. held in court and judge them in for numerous remarks made directed and re- The vacated the judge. Supreme judgment, manded the case one at whom to be considered other than the aby judge remarks were directed. reversal. Mayberry on two factors court in focused compelled ad
First, trial to had waited until the end of out that the pointed judge Second, the court and most important, defendants judge contempt.23 behavior on did not from sitting judgment prohibit judges contemptuous them; rather, a new and it held due that occurs before process requires the trial “has become where there is evidence that only impartial judge trial as to make the so with a lawyer embroiled’ ‘personally L.Ed.2d (Id. to sit on unfit the contempt charge.” judgment 540].)24 at p. *18 bench, wait Mayberry, court did not to
In the case at unlike the trial there cited and soon but him immediately adjudge petitioner contempt, from our commitment. More after the of importantly, order signed record, cannot review of the was so say the instant we that judge pеrsonally the con to sit in on judgment embroiled with that he was unfit which did not of words” The attack here consist tempt “fighting charge. the for as to Mayberry require carried such a bias found potential conduct, did not Petitioner’s even though disqualification. disrespectful, the evidence rise to level of which itself would by vilification personal give trial court’s embroilment.25 probable personal he unfit to sit in Nor do made indicate that was statements by judge 11, (Contrast (1954) United 16-17 States U.S. judgment. Offutt v. 11, remark, 17-18, 11].) L.Ed. cited 75 S.Ct. For judge’s example, forever,” “I didn’t went an inter- that know on made after you petitioner, committed, however, 23“Where, he does the instant is but not act balance, trial, generally until of the wise where the marks of waits the the end on is stings judge personal have ask a fellow to take his unseemly conduct left to Pennsylvania, (Mayberry supra, pp. L.Ed.2d at place.” v. U.S. at 463-464 [27 539].) disqualifies is, course, sitting. judge 24“It a from every not attack on that him 575, Ungar Sarafite, challenge, though lawyer’s ‘dis v. we ruled U.S. that insulting ruptive, disagreeable commentary,’ recalcitrant and was still not ‘an attack judge potential disquali integrity carrying require such for bias as to Id., Many judge fication.’ at words leveled at the in the instant case were 584. sonofabitch,’ words’—‘dirty ‘dirty tyrannical highly personal ‘fighting aspersions, evеn dog.’ ‘stumbling dog,’ charged running Spanish Inqui old and ‘fool.’ He was ‘Keep your kind to to hell’ shut.’ Insults of that are sition apt told ‘Go mouth judge’s temperament.’ qualities strike ‘at the most vulnerable human Illinois, (Id. v. at 465-466 L.Ed.2d at pp. Bloom 391 U.S. 202.” Burr, supra, (insulting concerning page remarks 25See Weiss v. 484 F.2d Grossman, embroiled); In re judge ruling; personally the court’s held not remarks; (insulting judge personally held em Cal.App.3d pp. 24 broiled). 632-633 not (1972) Meyer App.D.C. 462 F.2d 212] But see United States V. (accusation attorney up his mind on the case before judge that had made doctrine,” Mayberry entering “sufficiently personal held to invoke the courtroom (Id. 844.)). at p. but certainly demonstrate ruption petitioner’s argument, impatience “I cannot not embroilment. remarks Similarly, judge’s personal attribute on delay cunning, part] anything except petitioner’s [the me,” an ac- shrewd and deliberate to thwart attempt appear represent conduct, bias. curate rather than an picture petitioner’s example difficult, however, More assertion disposition demonstrated his by totally involvement judge personal misconstruing noted, As after day petitioner’s attempt previously peti- apologize. tioner was cited to the for the remarks contempt, apologized (See. reflection, ante.) fn. construed this question. judge, upon as a further affront to his since it that he knew apology integrity, implied the law and (See it. wilfully ante.) fn. disobeyed We have held that in instances of direct apology should be (People serious consideration. v. Turner given 152, 153.)26 1 Cal. The effect to be to such a factor lies given mitigating in the sound exclusively (Lyons Superior discretion of the trial judge. *19 Court, supra, 763; 43 City Superior Cal.2d at (1952) Vernon v. Court p. of 509, 38 Cal.2d 243]; 520 Friday, supra, P.2d In re 138 at [241 Cal.App. 664.) p.
While the trial to have judge seriously considered appears it is apology, did, that he arguable it.27 Even if he we think misinterpreted that this is insufficient to establish that the was embroiled judge personally with A useful petitioner. be made comparison may v. United Offutt States, 11, supra, U.S. in which 348 the Court reversed a con- Supreme made tempt adjudication by a federal the judge. other Among things, made the judge statements in following the at the end of discharging jury “ the case: T also realize that you had a difficult a task disagreeable judge 26“A should engaged, vindicating bear in mind that he is not so much in his character, promoting laws; own as in the respect due to the administration of the and this consideration should induce satisfactory any him to receive reasonable apology Lyons Superior (1955) for an offender’s conduct.” also See v. 755, “Likewise, Cal.2d finding P.2d [278 even where the of 681]: appears essential proper the conduct court’s business no class of offense occurs to us in mitigating readily give which the court should more search out and effect to contempts.” circumstances than in cases direct 27Our intuition tempered must be the we forced to depend realization that are upon convey surrounding apology. record which fails to the full circumstances contempt holding depends very special setting, “A way on the and such elusive voice, expressions, physical gestures factors as the tone of the facial and the contemner; these except cannot be dealt with full ventilation of facts. Those on present totally often have a impression different of the events what would from Little, appear (In even in a at transcript faithful of the record.” re 404 U.S. 711]; p. Burger, J., p. concurring.) L.Ed.2d at C. in this case. You have been to sit and dis- compelled through disgraceful on the of a who is lawyer unworthy being reputable performance part I, a member of as a member of the profession; legal profession, ” 17, blush that we have (Id. should such a in our midst.’ specimen 17].) fn. 3 L.Ed. Court concluded: “The record Suprеme discloses not a rare not a show of evanescent irritation—a modi- flare-up, cum of that must be allowed even is quick The record temper judges. law, that instead of persuasive representing authority impersonal trial himself to become with the judge embroiled permitted personally There an an petitioner. intermittently continuous on unedifying wrangle level between the two. one reason or For another failed to im- judge his moral pose authority His behavior upon proceedings. precluded which should austerity dominate a criminal atmosphere especially trial and which is sense of indispensable appropriate responsibility court, on counsel and (Id.) part jury.” The record in this case fails to disclose such vitriolic attack as that any which the court directed attorney Nor against Offutt. there evidence that the his his moral judge abrogated duty impose authority To the record discloses con proceedings. contrary, siderable and control on the of a faced with patience part repeated of counsel. conclude from the record before us that the impertinences We trial was not as a matter of due to refer matter required, process, (Cf. Ungar adjudication another alleged contempt judge. 376 U.S. L.Ed.2d S.Ct. Sarafite
III Finally, contends been denied the that has petitioner equal protection from, of the laws because California statutes do not for provide appeal of, or for a stay an order of court. The adjudicating person contempt of his at is this: He assumes that conviction ... point argument “[t]he Code, 1), issue ... subd. but as misdemeanor” Pen. (citing § serts that the court below under the “necessarily proceeded provisions of C.C.P. 1209.” that the of if Asserting right § appeal, provided state, all,” “must be and by available to fairly argues equally petitioner misdemeanant, him, is denied since convicted equal protection “[e]very one convicted of obtains review The conten except by contempt” appeal. tion is devoid of merit.
Petitioner was Penal section 166 or any not convicted Code violating other was in direct section Penal Code. He adjudged contempt court and his under Code summary adjudication contempt proper of Civil Procedure section made in a 1211.28 an order Although 1222; Bry is not Co. v. (§ John Breuner contempt proceeding ant, appealable Circosta, 878; supra, at Cal.2d In re Cal.App.2d or, 785), it be habeas by rеviewed certiorari where may by appropriate, (John Co., Circosta, Breuner have supra; supra), We al corpus outlined in this ready earlier our of review and opinion scope emphasized our examine the the end whether record to responsibility determining there is substantial evidence to These procedures judgment. support below; afford he is review petitioner safeguard proceedings not discriminated because a conviction of criminal against merely under Penal Code section 166 reviewed the usual appellate ' . process.
The order to cause is show writ is discharged petition denied. J., McComb, J., Burke, J., Clark, J., C.
Wright, concurred.
MOSK, J.I dissent.
I begin by for this able and trial considerate expressing sympathy judge. believed, Undoubtedly his was worn what he thin cor- patience perhaps were the rectly, tactics dilatory exasperating attorney. realizes, As any with trial court there arises inevitably experience that one case in a thousand when the tensions of the and the over- argument zealousness of counsel cause to overcome tolerance righteous normal anger and serenity.
If moment understandable lashes out humanly rage the resultant fails to survive citation not response, infrequеntly review. is the case. Analyzing That circumstance instant appellate here, I as Justice involved would characterize colloquy precisely Holmes, dissent, Oliver Wendell articles in his to the reacted newspaper involved Newspaper in Toledo Co. V. United 247 U.S. States *21 560]; L.Ed. S.Ct. “I that I all this or confess cannot find in in the a evidence in the case would have mind of that affected anything fortitude, reasonable and still less there that obstructed can I find anything part: 28Section 1211 in a in the states relevant “When is committed chambers, court, judge immediate be presence view of the of the and made, occurring punished summarily; reciting which as an order be the facts must against is person proceeded in such view and that the presence, adjudging immediate thereby guilty contempt, punished prescribed.” that he a and therein the administration of in sense that I can to those justice possibly give words.”
In the and of a between span nearly century quarter citations, there have been innumerable cases most of involving contempt them trial some factually some court re- distinguishable, affirming rulings, cited, however, Of all the cases which can be I find most rele- versing. vant and to have been decided in those two persuasive years. Gallagher
Justice
wrote
this court
Munic-
Traynor
decision for
ipal
The trial found the statements court harsh, insolent, boisterous, and contemp- offensive aggressive, belligerent, on and expression tuous tone and with sneering contemptuous of voice thereof court and thе his face and a demeanor toward said threatening court, a disorderly and in the lawful and disobedience of orders court further said court.” The and insolent toward manner did and course of said trial “did the due found the conduct interrupt the orderly interfere with pro- and obstruct administration justice of the court.” ceedings in de- much more pejorative fulsome finding, the foregoing
Despite there was order, this found that in the instant than scription record to nothing words “nothing contemptuous examina- due course show that conduct tended his interrupt tion,” been “regularly who had attorney merely that petitioner his client.” interests of faithfully representing *22 Gallagher “Another con- his Justice out: Traynor In opinion pointed an inde- is sideration the fundamental interest of the maintaining public freedom of bar. must be substantial Attorneys given expression pendent is at when liberty, addressing their clients. ‘An advocate representing course, adverse views Court in to combat contest regular strongly object its or on the case argument, Judge Judges expressed during which the take and to and which the course protest against any Judge client, and his the interests of advocate thinks or detrimental to irregular functions, with their to caution interference Judge juries against аny them, view any strong or against the advocate when addressing of a the facts adverse to his client Judge upon expressed presiding allowed to be case An advocate ought before verdict of the thereon. jury case.’ of his client’s and in the conduct freedom and latitude both in speech See, Rongetti, People (3d ed.), Court 56-57. (Oswald, Contempt pp. in an interest 292].) independent 344 111. N.E. The public [176 sum- attorneys were allowed to bar would be subverted if punish judges conduct "or to their reactions marily for on subjective purely statements. client. He has of his
“An has the the interests attorney duty protect . . . ruling. an erroneous and to right press legitimate argument protest concerned, debate, where liberty heat of courtroom particularly 795-796, (Id. at counsel.” pp. often rise to on part gives persistence (1949) 34 Cal.2d Superior Court 797.) is Raiden v. To the same effect where the was annulled 1081], citation P.2d in which a contempt the ends justice.” order “defeated asserted the trial judge’s attorney undeniably a fair investigation about Gallagher’s persistent inquiries was yet unfair investigation; that the was an conducting implied to petitioner’s comment remarkably comparable exonerated. His want doesn’t obviously that “This court statеment in the instant case law,” conducting the court was similar implication apply unfair trial. Little, 404 U.S. In re decided the United Court States Supreme are not words given L.Ed.2d While 92 S.Ct. precise 659]. made found “Petitioner
in the text of the opinion, Supreme The trial the case.” biased and had statements that the court was prejudged “ dis very remarks were court’s order recited that the court felt ‘[T]hese they re . . that . justice and tended to subvert respectful prevent flected the Court and tended subvert prevent on integrity ” (Id. L.Ed.2d at justice.’ *23 262
The court found that the high petitioner, as his acting pro. own per. counsel, was entitled to latitude in his defense conducting and in vigorously his cause. The espousing Craig court cited Harney (1947) 367, 331 U.S. 1546, 1552, 376 L.Ed. 1249], 67 S.Ct. that the “law is not made for the protection who be judges sensitive .... may are Judges fortitude, to be men of supposed able to thrive in a climate.” hardy court also recalled the words of caution in Brown v. United States (1958) 589, 596, U.S. L.Ed.2d 818], 78 S.Ct. 72 A.L.R.2d that trial courts “must be on guard against offenses their confusing sensibilities with obstruction to the administration of justice.”
The allegations of Little that his trial court was biased and had prejudged the case are far more and the damning than judicial process the remark of this that the petitioner court did not want law. apply
The majority make the heroic declaration that statement about the court not wanting law “was on its apply contemptuous (ante, face” and 254-255). are, I pp. must There disagree. respectfully occasions, on valid reasons for a court to decline “to perfectly apply law.” The overruled, believe “the law” been has effect that it is anachronistic enforceable, and no relevant or that it violates con longer constitutional temporary that it is or principles, discriminatory oppressive I do not application. this had such suggest reservations petitioner dixit, mind. I can, Nevertheless do not ipse believe we declare petitioner’s short, bare words or se. In opprobrious, demeaning contemptuous per there are many tolerable those words. interpretations precise se,
Since the words are not actionable the fundamental here per question was, is whether the virtue of that utterance in the petitioner context said, in which it was guilty disrupting obstructing judicial process. I do not believe he was.
First, the occurred outside the Thus it colloquy jury. presence fact, could have no influence the trier of and did not affect the course in the justice fact-finding process. Second, the demand of discovery pursue through person dramatic, of the prosecutor, was not un- though overly wholly perhaps tenable in Ferguson of this court’s re light decision in In 5 Cal.3d P.2d He was entitled to Cal.Rptr. argue point 1234]. earnestly.
Third, voice, nothing record before us reflects unusual tone or boisterous or conduct In this menacing petitioner. respect *24 in reversed less than that which we court is order of the trial supportable Gallagher. the state- that
Fourth, trial in the order contempt while the court stated the the trial then in ment the due course of progress” “tended to interrupt statement, the context in court fails to describe how mere one-sentence law, from discussion, heated, and of a of as distinguished albeit over a point conduct, The entire could in fact episode proceedings. interrupt dis- seconds, it did not in actuality interrupt, concluded in a matter of and turb, its in the trial or result. or manner affect delay, rendered I find it
Finally, impossible interpret petitioner’s apology, after or as overnight confirming aggravating purported contemplation, than a I discern in the words of other fail to counsel contempt. anything offended the- court. For modest effort contrition for еxpress having trial of the an exacerbation perceive attempted apology time, from offense that an Unfortunate original of suggests, departure judicial objectivity. case
The issue was referred to in the most celebrated contempt apology Field, first very California J. history, found involving Stephen 152). Justice (People (1850) volume of California v. Turner 1 Cal Reports Bennett, Court, (at of the one three wrote original justices Supreme 153): “The thus an arbitrary vested in a court is of necessarily power nature, and be A should should used with and caution. great prudence bear char- in mind that he is so his own not much engaged, vindicating acter, laws; as in due to the administration promoting respect satisfactory any this consideration should induce him to receive as Contempt Mosk, Direct (See reasonable for an offender’s conduct.” apology (1956) 523.) 31 State Bar J.
There is no doubt that a trial must deal with obstruction both a trial use of Where disruption therapeutic contempt power. however, involved, more than is nothing disrespect discourtesy of abuse of the the benefits dangers generally outweigh contempt power con- using readiness of some find weapon. judges duct and the others to of various susceрtible interpretations, capacity their own behavior on unseemly provoke response by imperious bench, mere of abuse. It must be emphasized per- suggest dangers con- sonal be with insult or conduct should not confused irritating legally effort behavior. The the trial as constructive human nature of temptuous enhanced, to reach a result must and no person, just preserved role, that makes his should his conduct an whatever create by atmosphere this But impossible. insult, personal even discourtesy, on a relatively trivial in the whole scheme of plane and a certain amount things, should be tolerated when it falls short of actually interfering proceedings (Note, Contempt trial. (1971) 208.) Cornell L.Rev.
Some opinions speak in terms of lessening dignity (See, court. People e.g., Gholson 412 HI. 294 N.E.2d 335].) On that subject Professor Max Radin said: “Judicial is an dignity *25 element of important our system But, and serves a real function.” legal added, is, however, “It not a to be legal duty well mannered and it may even said that it would be unconstitutional to make it one. . . . [T]here is no reason why dignity court should take such dimensions or assume such a character that it demands awe or veneration.” Free (Radin, dom Speech and Contempt Court (1942) 610.) Ill.L.Rev.
I would issue the writ.
Tobriner, J., concurred.
Petitioner’s for a application was denied rehearing November 1973. Tobriner, J., Mosk, J., were of the that the should opinion application be granted.