Bell v. Hongisto

• Decision Date: 25 August 1972
• Docket Number: No. C-72 206.,C-72 206.
• Citation: 346 F. Supp. 1392
• Parties: Edward C. BELL, Petitioner, v. Richard D. HONGISTO, Sheriff of the City and County of San Francisco, State of California, Respondent.
• Court: U.S. District Court — Northern District of California

346 F. Supp. 1392

Edward C. BELL, Petitioner, v. Richard D. HONGISTO, Sheriff of the City and County of San Francisco, State of California, Respondent.

No. C-72 206.

United States District Court, N. D. California.

August 16, 1972.

As Amended on Petition for Rehearing August 25, 1972.

B. E. Bergesen, III, San Francisco, Cal., for petitioner.

Richard M. Sims, III, San Francisco, Cal., for respondent.

Thomas M. O'Connor, City Atty., Raymond D. Williamson, Rene Auguste Chouteau, Deputy City Attys., San Francisco, Cal., for amicus curiae.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

ZIRPOLI, District Judge.

On January 27, 1972, the Honorable Clayton Horn of the Superior Court in and for the County of San Francisco cited petitioner Edward C. Bell, a member of the bar of the State of California, for criminal contempt and summarily imposed a sentence of five days in jail and a fine of five hundred dollars, which sentence was stayed until February 1, 1972 to permit petitioner to seek habeas corpus relief from the appellate courts. On the same afternoon, the Court of Appeal for the First Appellate District denied petitioner's petition for a writ of habeas corpus without opinion. On January 28, 1972, and again on February 2, 1972, the California Supreme Court also denied two successive, but separate, petitions for habeas corpus. Meanwhile, petitioner had begun serving his sentence in the San Francisco County Jail; on February 3, 1972, he was released by order of this court pending final determination of this cause. The matter came on regularly for hearing on March 21, 1972, and after oral argument counsel for both sides expressed their view that the case was ripe for submission and their corresponding willingness to submit the case at that point for decision by the court.

Although counsel differed slightly in their presentation of the facts of this case, such differences as do exist appear to the court to be inconsequential to this decision. The operative facts, which the court summarizes below, are not in dispute:

On January 24, 1972, petitioner appeared on behalf of three defendants in the case of People v. James, No. 81855, before the Honorable Walter Calcagno, the Master Criminal Calendar Judge of the Superior Court, at which time he renewed a discovery motion which Judge Calcagno had previously denied without prejudice to such renewal. After a conference with counsel, Judge Calcagno scheduled the motion for hearing before him at 11:30 a.m. on January 27, 1972. Petitioner appeared at that time whereupon Judge Calcagno assigned the case, including the motion, to Judge Clayton Horn for trial at 1:30 p.m. and adjourned the proceedings for the noon recess. Petitioner did not immediately exercise his right to disqualify Judge Horn under Section 170.6 of the California Code of Civil Procedure.¹ However, at the conclusion of the proceedings, petitioner, who is apparently inexperienced in handling criminal matters, solicited the advice of two colleagues who told him that in their opinion he should disqualify Judge Horn. After determining to accept their advice in the interests of his clients, petitioner prepared and executed an affidavit in support of his motion to disqualify Judge Horn pursuant to the requirements of Section 170.6 and presented the affidavit to Judge Calcagno at approximately 12:55 p.m. when the court reconvened. Judge Calcagno advised petitioner that his challenge to Judge Horn was not timely.

Petitioner reported to Judge Horn's court shortly before 1:30 p.m. and, upon the arrival of the Deputy District Attorney assigned to the case, presented his affidavit to disqualify Judge Horn in chambers. Judge Horn rejected the affidavit and informed petitioner that if he did not proceed to trial he would be held in contempt of court. In response to a direct order to proceed, petitioner refused. Judge Horn cited him for contempt on the basis of his finding that the refusal was "wilful, contemptuous and without sufficient reason or any legal cause." Upon the expiration of the stay granted by Judge Horn, petitioner served nearly two days of his sentence before he was released by order of this court. He is presently at large on his own recognizance.

Petitioner makes three arguments in support of his petition for a writ of habeas corpus. In two related, but conceptually distinct, arguments petitioner attacks on due process grounds the manner in which Judge Horn exercised his contempt powers. Petitioner argues, first, that since his motion to disqualify Judge Horn was "timely" under settled principles of California law, his contempt citation was at best arbitrary and at worst discriminatory; and, second, that the use of the summary contempt power in the circumstances of this case was an "abuse" of the court's power. In his third argument, petitioner challenges on equal protection grounds the statutory scheme which excludes both the right to appeal and the right to bail pending appeal as incidents of an adjudication of contempt. The court will consider petitioner's equal protection argument first.

The structure of petitioner's equal protection argument is relatively straightforward. Under California law, every individual convicted of a crime has a right to appeal whether it is a felony or a misdemeanor. Calif.Penal Code §§ 1237, 1466. While bail pending appeal is a matter of discretion for convicted felons, id. § 1272(3), convicted misdemeanants are entitled to bail pending appeal as a matter of right, id. § 1272(2). Thus, misdemeanants are by California law absolutely entitled to an appeal and bail pending the outcome of that appeal. However, a contemnor has no right to appeal, Calif.Code Civ. Pro. § 1222, or to bail pending appeal.² Since criminal contempt is a misdemeanor, Calif.Penal Code § 166, petitioner argues that depriving a misdemeanant contemnor of the right to appeal and bail pending appeal is a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. While there is no question that the statutory scheme discriminates against a class of misdemeanants, the question before this court is whether that discrimination is in fact unconstitutional.³

In a series of decisions throughout the last 30 years the United States Supreme Court has identified a number of interests as "fundamental" and recognized that these interests deserve special consideration under the equal protection clause.⁴ While the court has not articulated a general formula to distinguish "fundamental" interests from others, it has deemed these interests important because they are "individual and personal," Reynolds v. Sims, 377 U.S. 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and touch upon a "sensitive and important area of human rights," Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 536, 62 S.Ct. 1110, 1111, 86 L.Ed. 1655 (1942). To be sure, there is some question whether the right to appeal from a criminal conviction and the incidents of that right are constitutional rights. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court held unconstitutional conditioning direct appellate review of a criminal conviction on the defendant's ability to purchase a transcript, but reaffirmed that the right to appeal was not a constitutional right. The Court there said:

It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. See, e.g., McKane v. Durston, 153 U.S. 684, 687-688, 14 S.Ct. 913, 914-915, 38 L. Ed. 867. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty. Appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like petitioners from invidious discriminations. Id. at 18, 76 S.Ct. at 590.

Similarly, in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Court held that where the merits of the one and only appeal an indigent had of right were decided without benefit of counsel, there existed an invidious discrimination between the rich and the poor which violated equal protection.⁵ See also Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L. Ed.2d 892 (1963); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959). As the Court put it in Rinaldi v. Yeager, 384 U.S. 305, 310-311, 86 S. Ct. 1497, 1500, 16 L.Ed.2d 577 (1966): "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts."

Thus, while appeal and the right to bail pending appeal may not be constitutional rights, the question yet remains whether the interest which they protect is fundamental for purposes of applying the equal protection clause. In the court's view, it is. What is at stake here is petitioner's transcendent personal interest in his liberty pending termination of what the State of California recognizes as an integral part of the administration of justice in all misdemeanor cases with the sole exception of misdemeanor contempts.

The right to bail pending appeal is "fundamental" in that it involves issues of personal freedom in the most immediate and literal sense of those words. . . . The harm done to an innocent defendant who "serves time" before his conviction is reversed on appeal cannot be undone and serves as a continuing affront to our sense of justice. There may well be times when the state is justified nonetheless in denying bail pending appeal. But when different

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