Bell v. Hongisto

• Decision Date: 26 July 1974
• Docket Number: No. 72-2797,72-2797
• Citation: 501 F.2d 346
• Parties: Edward C. BELL, Petitioner-Appellee, v. Richard D. HONGISTO, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 346

501 F.2d 346

Edward C. BELL, Petitioner-Appellee, v. Richard D. HONGISTO, Respondent-Appellant.

No. 72-2797.

United States Court of Appeals, Ninth Circuit.

July 26, 1974, Rehearing and Rehearing En Banc Denied Sept. 19, 1974.

Herbert F. Wilkinson, Deputy Atty. Gen. (argued), San Francisco, Cal., for respondent-appellant.

B. E. Bergesen, III, (argued), Youth Law Center, San Francisco, Cal., for petitioner-appellee.

Before CHAMBERS, CARTER and WALLACE, Circuit Judges.

OPINION

JAMES M. CARTER, Circuit Judge:

Richard D. Hongisto, the Sheriff of San Francisco, appeals from the order of the district court granting a writ of habeas corpus to the petitioner Edward Bell. Bell, an attorney, had been summarily convicted of direct contempt of the San Francisco Superior Court and was sentenced to five days in jail and a $500 fine. After exhausting his state remedies he brought this petition.

We are faced with three issues, each of constitutional dimensions: (1) Does 1222 of the California Code of Civil Procedure, which denied Bell the right to appeal his contempt conviction, thereby violate the equal protection clause of the United States Constitution? (2) Does 1222, Code Civ.P., which denied Bell the right to bail pending review of his conviction by petition for certiorari or habeas corpus, thereby violate the equal protection clause? (3) Does 1211 of the California Code of Civil Procedure, which permits a summary punishment of those persons who commit contempt in the immediate presence of the court, violate the due process clause of the United States Constitution under the circumstances of this case?

The district court answered the first two of these questions affirmatively, and ordered Bell's release without reaching the question of due process. We reverse. While we express no opinion on the wisdom of 1222, Code Civ.P., we cannot hold it in violation of the equal protection clause. We are thus confronted with the due process question which the district court avoided; and the record developed below is sufficient to satisfy us that 1211, Code Civ.P., as applied to the facts in this case, has no constitutional infirmity.

The Facts

On January 27, 1972, at 11:30 a.m., attorney Edward Bell appeared on behalf of three criminal defendants before the Master Criminal Calendar Judge of the San Francisco Superior Court. The Master Criminal Calendar Judge proceeded to assign the case to a trial judge. Bell was told to appear before that trial judge in two hours, that is, at 1:30 p.m. of the same day.

During the noon recess, Bell went to his office and telephoned two other attorneys for advice regarding the assigned trial judge. They informed Bell that the assigned judge was prejudiced in crucial ways.

During the remainder of the noon recess, Bell prepared a motion and affidavit to disqualify the trial judge peremptorily under 170.6, Code Civ.P. ¹ At 12:55 p.m. Bell presented the motion to the Master Criminal Calendar Judge, who denied it on the ground of untimeliness, stating that according to his reading of 170.6 Code Civ.P., a disqualification motion must be filed at the time a trial judge is assigned. Bell's motion was therefore one hour and twenty minutes too late.

At 1:30 p.m. of that day, Bell appeared as scheduled and renewed the disqualification motion before the trial judge himself, who also denied the motion as untimely, telling Bell to proceed to trial. Bell declined on the ground that, by going to trial, he might be waiving his right to appeal the denial of the disqualification motion.

The trial judge then announced, '. . . Mr. Bell, I order you to proceed with the trial of this case forthwith. And, what is your reply to that?' Bell replied, 'I refuse to go to trial, your Honor.' ^1A Thereupon the trial judge found Bell in direct contempt of court and sentenced him to five days in jail and a $500 fine.

Under California law, Bell had no right to appeal this judgment of contempt, but he did have the right to petition the higher state courts for a writ of habeas corpus or a writ of certiorari. In order to allow Bell time to file such petitions, the trial judge stayed execution of the sentence until 9:30 a.m. of the following day (the 28th of January) and later extended the stay for four additional days (until February 1).

Bell quickly filed two petitions for review, one with the California Court of Appeals and, later, one with the California Supreme Court. Both petitions were denied. Bell went to jail on February 1, 1972. Subsequently, an additional petition in the California Supreme Court was denied on February 2, 1972.

On February 3, Bell filed a petition for a writ of habeas corpus in the federal district court. The district court ordered his release from custody on grounds that 1222, Code Civ.P., violated the equal protection clause.

The California Statutory Scheme

Sections 1237 ² and 1466 ³ of the California Penal Code provide that the defendants in 'criminal' cases have the right to appeal from a conviction.

Section 1272 ⁴ of the Penal Code provides that convicted defendants may be released on bail pending appeal.

Section 166 ⁵ of the penal Code provides that every person guilty of eight specified types of contempt, which are labelled 'criminal contempt,' is guilty of a 'misdemeanor.'

Section 1209 ⁶ of the Code Civ.P. Lists eleven types of 'contempts of the authority of the court.' Contempt proceedings brought under this section, as distinguished from 166, Penal Code, are not 'criminal' proceedings, as a mater of terminology, although they are criminal in character. Pacific Tel. & Tel. Co. v. Superior Court for Los Angeles County,265 Cal.App.2d 370, 72 Cal.Rptr. 177 (1968).

Section 1211 ⁷ of the Code Civ.P. provides that a contempt committed in the immediate view and presence of the court may be punished summarily.

Section 1222 ⁸ of the Code Civ.P. provides that the judgment of the court in contempt cases is final and conclusive. This section, despite its broad language, does not apply to contemnors labelled 'criminal' under the Penal Code, 166. In re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201 (1973).

But it is clear that Bell does not belong to that class of contemnors labelled 'criminal' under the Penal Code. ⁹ Hence 1222, Code Civ.P., does apply to him.

Section 1222, Code Civ.P., as noted above, has been construed by California courts to bar appeals but to allow petitions for writs of habeas corpus and certiorari. E.g., Heller v. Heller, 230 Cal.App.2d 679, 41 Cal.Rptr. 177 (1964). These remedies limit the inquiry of the reviewing court solely to questions of the inferior court's jurisdiction. In re Chapman,141 Cal.App.2d 387, 295 P.2d 573 (1956). The term 'jurisdiction' covers a great deal of ground, however, for the questions of whether a petitioner's alleged acts constituted contempt, and whether the evidence was sufficient to establish those alleged acts, have been held 'jurisdictional' inquiries. In re Ciraolo, 70 Cal.2d 389, 74 Cal.Rptr. 865, 450 P.2d 241 (1969). Thus the scope of review by petition is practically as broad as the scope of review by appeal. See Comment, Contempt: Scope of Review of Contempt Orders in California, 37 Calif.L.R. 301 (1949).

Equal Protection

Bell contends that 1222, Code Civ. P., violates the equal protection clause of the United States Constitution because it precludes an appeal from an order adjudicating a person in contempt of court, and precludes bail pending review by petition, while at the same time 1237 and 1466 of the Penal Code allow 'criminal' defendants these procedural benefits. (We temper this contention with the observation that persons convicted of contempt under 166, Penal Code, are indeed permitted to appeal and have bail.)

The California Supreme Court rejected an argument identical to Bell's in In re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201 (1973). Since the contention raises a federal question, we are not bound by that state decision and are required to make an independent determination. Yet we must keep in mind that we are dealing with a state statutory scheme and the state case law interpreting and upholding it. Thus, in accordance with our principle of affording state laws a presumption of validity in order to avoid unnecessary federal interference in state affairs, see McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943), we pay deference to the views of the California Supreme Court. The discussion that follows is our own analytical journey to the same end, reached more briskly by that Court.

(a) Right to appeal

Respondent contends that Bell's argument regarding a right to equal treatment with 'criminal' defendants is eviscerated by the fact that Bell was not held in 'criminal' contempt. We reject the respondent's contention. It is true that Bell was convicted under 1209 and 1211, Code Civ.P., not under 166, Penal Code, and hence was not a 'criminal' under the statutory terminology. But Bell's contempt was essentially 'criminal' in nature, even if not 'criminal' by virtue of 166, Penal Code, because the purpose of the contempt sanction in this case was punitive rather than compensatory or coercive. See Morelli v. Superior Court of Los Angeles County, 1 Cal.3d 328, 82 Cal.Rptr. 375, 461 P.2d 655 (1969); Gompers v. Buck's Stove & Range Company, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Penfield Co. of California v. Securities & Exchange Com'n, 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117 (1947); In re Nevitt (8 Cir. 1902) 117 F. 448.

Accordingly, we consider the question whether it is constitutionally permissible to deny contemnors suffering essentially criminal sanctions the same right of appeal afforded those defendants actually labelled 'criminal.'

In equal protection cases, the burden of justification that must be carried by the state is sometimes heavy and sometimes light, depending on the nature of the classification in question and the nature of...