Arthur v. Superior Court of Los Angeles County

• Decision Date: 09 February 1965
• Citation: 42 Cal.Rptr. 441,62 Cal.2d 404,398 P.2d 777
• Court: California Supreme Court
• Parties: , 398 P.2d 777 Bradford A. ARTHUR, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondents. L. A. 28120.

Page 441

42 Cal.Rptr. 441

62 Cal.2d 404, 398 P.2d 777

Bradford A. ARTHUR, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondents.

L. A. 28120.

Supreme Court of California, In Bank.

Feb. 9, 1965.

Bradford A. Arthur, in pro. per.

A. Brigham Rose, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Donald K. Byrne, Deputy County Counsel, for respondents.

MOSK, Justice.

Bradford A. Arthur, an attorney at law, seeks a writ of certiorari to review an order of the respondent court holding him in contempt.

On the morning of April 17, 1964, Arthur had two matters pending before Judge Joseph Wapner in department 100 of the Superior Court of Los Angeles County (the criminal master calendar department), one matter pending in department 101, and a jury deliberating in a case in department 107. Prior to 9:15 a. m., Arthur notified the clerk in 101 that he had two matters in department 100, that he intended to be present and would return shortly. After completing one of his matters in 100, Arthur was notified by the clerk from 107 that the jury there had just returned. Thereupon Arthur left 100 for 107, even though he had the next case on the calendar in 100. When the next case was called, Arthur was not present to represent his client. Judge Wapner, upon being informed by his clerk that Arthur had just left the courtroom, sent his bailiff to bring him back. The bailiff found Arthur in the corridor and stated to him, 'The judge wants you back in court now.' Arthur replied that he had a jury returning in another court.

Up to this point no factual conflict exists, but the testimony reveals some doubt as to what Arthur did the thereafter.

Two hearings were conducted by Judge Wapner before he made his contempt order final. At the first hearing, held later the same day as the incidents related above, Arthur stated h thought the bailiff who accosted him in the corridor was from 101, although he admitted that he did not go to 101 before going to 107. At Arthur's request the court held a further hearing a week later. At that time Arthur testified that he had gone to 101 and told the clerk that he had a jury returning in another court, before going to 107. The clerk in 101 testified that Arthur had been in that court twice during the morning, but was unable to recall enough details to otherwise corroborate Arthur's version of the events. Consistently, however, Arthur insisted that he thought the bailiff had been sent by the judge presiding in 101.

Judge Wapner was unconvinced by Arthur's testimony. He found that Arthur in fact knew that the bailiff was from his court, and that Arthur made no effort to comply with the order to return to 100. In so finding, Judge Wapner noted the inconsistent statements about Arthur's proceeding to 101 before going to 107, that Arthur had appeared frequently in his court, and that the bailiff had served in that courtroom for more than a year. The judge stated that Arthur had failed to appear with clients in the past and had a prior contempt conviction in that court for the same offense. Judge Wapner sentenced Arthur to two days in jail.

Two issue are presented in this case. The first is whether appropriate procedure was followed by the court below, and the second is whether sufficient evidence exists to support the finding of contempt.

Section 1211 of the Code of Civil Procedure establishes the procedure that is to be followed in adjudging persons in contempt of court. Contempt committed in the immediate view and presence of the court, known as direct contempt, may be treated summarily. All that is required is that an order be made reciting the facts, adjudging the person guilty, and prescribing the punishment. If, however, the contempt did not occur in the immediate view and presence of the court, it becomes indirect contempt and a more elaborate procedure must be followed in order to notify the person so charged and to allow him an opportunity to be heard. In such cases an affidavit must be presented to the court stating the facts constituting the contempt, an order to show cause must be issued, and a hearing on the facts must be held by the judge. (Code Civ.Proc. § 1212-1217.)

Whether the failure of an attorney to appear in court when ordered is a direct or indirect contempt is not a new issue before this court, but it is nonetheless perplexing. It arose in Chula v. Superior Court (1962) 57 Cal.2d 199, 18 Cal.Rptr. 507, 368 P.2d 107, 97 A.L.R.2d 421, and Lyons v. Superior Court (1955) 43 Cal.2d 755, 278 P.2d 681. In both cases the court held that the contempt was direct, and in both cases a dissenting opinion was filed on this point. The majority opinions in both Chula and Lyons took the position that all the relevant facts constituting the contempt occurred when the attorney failed to appear, and that the burden of offering an appropriate excuse was on the attorney. (Chula, supra, at pp. 203, 207, 18 Cal.Rptr. 507, 511, 368 P.2d 107, 111; Lyons, supra, at p. 760, 278 P.2d 681.)

In the Chula case, Chief Justice Gibson wrote a concurring opinion indicating that elements of both direct and indirect contempt were present and that the situation was a 'hybrid.' He maintained that the statutory procedure for direct contempt was suitable as long as an appropriate hearing was held on the question of excuse and that the procedure for indirect contempt was not required to protect the rights of the accused. (Chula v. Superior Court (1962) supra, 57 Cal.2d at p. 207, 18 Cal.Rptr. 507, 513, 368 P.2d 107, pp. 112, 113.)

The dissenting opinion in Chula pointed out that an element of the offense is lack of an excuse and that therefore not all the events constituting the contempt occurred in the 'immediate view and presence of the court.' No finding of contempt can be made until it is determined whether the actions of the absent person occurring outside the courtroom provided him with an excuse. (Chula v. Superior Court (1962) supra, 57 Cal.2d 199, 209, 18 Cal.Rptr. 507, 513, 368 P.2d 107, 113 (dissenting opinion).) The dissent urged that summary procedures would violate due process requirements, that the only alternative is to follow the procedures for indirect contempt, and that 'Anything less than the protections afforded by these procedures would be inadequate.' (Chula v. Superior Court (1962) supra, at p. 211, 18 Cal.Rptr. at p. 515, 368 P.2d at p. 115.)

We conclude that the procedure outlined in sections 1211, 1212 and 1217 of the Code of Civil Procedure for indirect contempt contemplates a situation in which virtually none of the facts involved in the alleged contempt have occurred in the judge's presence but have arisen entirely outside the courtroom. In such cases, due process requires notice and hearing lest the alleged contemner be convicted ex parte. (See In re Oliver (1948) 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682.) Where counsel fails to appear, however, the offensive conduct, to wit, the absence, occurs in the presence of the court. Thus, when an absent attorney reappears in the courtroom, due process should be satisfied if the judge confronts him with the charge and offers him a reasonable opportunity to explain.

Elusive attorneys are a recurring problem in trial courts, particularly in calendar departments, a fact of which this court may take judicial notice. Three cases of this nature have reached this court in the past decade, and in each of those cases there was evidence of repeated offenses by the attorneys held in contempt. Insistence upon strict adherence to the procedure for indirect contempt would provide insulation to attorneys who now overextend themselves, and encourage them to go further in trying the patience of trial judges through absences which obstruct normal courtroom procedure but border upon being excusable.

Before an attorney may be held in contempt for an absence from the courtroom, he must be notified that he is being cited and given a reasonable opportunity to show why he should be excused. In the absence of arbitrariness on the part of the sentencing judge, and with a showing that a reasonable opportunity was afforded the attorney to explain the reasons for his absence, this court should not annul contempt proceedings against attorneys who fail to appear in court when properly ordered to do so.

We now reach the question whether the court had sufficient cause to find this petitioner in contempt. In a proceeding in certiorari to review an adjudication of contempt the question whether the acts constituted a contempt is jurisdictional, and in the absence of evidence showing contempt, the order of commitment should be annulled. (Chula v. Superior Court (1962) supra, 57 Cal.2d 199, 204-205, 18 Cal.Rptr. 507, 368 P.2d 107; Fortenbury v. Superior Court (1940) 16 Cal.2d 405, 407-409, 106 P.2d 411; cf. In re Zerbe (1964) 60 Cal.2d 666, 667-668, 36 Cal.Rptr. 286, 388 P.2d 182.) The judgment and commitment order in this case stated that Arthur was absent when ordered to appear,...