Bobb v. Municipal Court

• Decision Date: 14 June 1983
• Citation: 143 Cal.App.3d 860,192 Cal.Rptr. 270
• Parties: , 39 A.L.R.4th 432 Carolyn BOBB, Plaintiff and Appellant, v. MUNICIPAL COURT OF CALIFORNIA, COUNTY OF MONTEREY, SALINAS DIVISION, Defendant and Respondent, PEOPLE of the State of California, Real Party in Interest and Respondent. A017704.
• Court: California Court of Appeals Court of Appeals

Page 270

192 Cal.Rptr. 270

143 Cal.App.3d 860, 39 A.L.R.4th 432

Carolyn BOBB, Plaintiff and Appellant, v. MUNICIPAL COURT OF CALIFORNIA, COUNTY OF MONTEREY, SALINAS DIVISION, Defendant and Respondent PEOPLE of the State of California, Real Party in Interest and Respondent.

A017704.

Court of Appeal, First District, Division 2, California.

June 14, 1983.

Hearing Denied Aug. 11, 1983.

Katherine E. Stoner, Pacific Grove, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for plaintiff and appellant.

Ralph R. Kuchler, Monterey County Counsel, W. Allen Bidwell, Deputy County Counsel, Salinas, for defendant and respondent and real party in interest and respondent.

MILLER, Associate Justice.

Carolyn Bobb appeals from the superior court's judgment denying her petition for writ of certiorari and affirming respondent court's judgment of contempt.

The facts of this case are not in dispute. On January 26, 1982 appellant, an attorney, was called and appeared for jury duty on a criminal case in municipal court. When appellant was called to take her place in the jury box as a prospective juror the following voir dire examination was conducted by the trial judge:

"THE COURT: Miss Bobb, what is your occupation?

"MISS BOBB: I'm an attorney.

"THE COURT: And in your practice do you practice criminal law as well as civil law?

"MISS BOBB: No, I practice entirely bankruptcy law.

"THE COURT: All right. Is there a Mr. Bobb?

"MISS BOBB: I have some difficulty with that question because I've noticed only the women have been asked to answer that.

"THE COURT: Yes, I know. Do you have a Mr. Bobb--is there a Mr. Bobb?

"MISS BOBB: Are you going to pool [sic] the men to see if they care to disclose-- "THE COURT: No, I'm just going to ask you if you have a husband or not. Do you have a husband?

"MISS BOBB: I don't care to answer it then. What's relative to women is relative to men.

"THE COURT: Yes, I know. What is your husband's occupation?

"MISS BOBB: I don't care to answer that.

"THE COURT: I instruct you to answer.

"MISS BOBB: I don't think I should.

"THE COURT: I've got--you understand that you'll be in contempt of Court--jury--you're an attorney, you understand these rules, don't you?

"MISS BOBB: No, I do not understand why only the women are asked certain questions and the men aren't asked the same questions.

"THE COURT: The question to you, Mrs. Bobb--you're an attorney at law, you understand the rules and regulations of--of--of being an attorney. And the question to you now simply is: What is your husband's occupation?

"MISS BOBB: I refuse to answer.

"THE COURT: You're held in contempt of Court, Mrs. Bobb."

Immediately thereafter appellant was taken to a holding facility to await transfer to the county jail. After spending approximately 15 minutes at the holding facility, appellant was ordered released on her own recognizance on condition that she return at 3 p.m. that afternoon for sentencing by respondent court.

At the sentencing hearing appellant requested a continuance in order to obtain counsel and to do further research. The court denied the continuance. After appellant further explained her objection to the voir dire questioning, the court acknowledged her sincerity but repeated its conviction that the questions posed were valid and that refusal to answer them constituted contempt of court. Appellant was then sentenced to one day in jail, with credit for her time served.

Appellant petitioned the superior court for a writ of certiorari requesting that the orders made by respondent court be annulled and set aside. The superior court affirmed respondent court's judgment of contempt finding that the cases cited by appellant regarding the U.S. and California Constitutions' prohibition against racial discrimination did not apply to the facts in the present action.

On appeal appellant concedes that the questions put to her, when administered in a gender-neutral context, were constitutionally valid. However, she contends that when the questions are posed as part of a discriminatory pattern they constitute a denial of equal protection. (Yick Wo v. Hopkins (1886) 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.)

Citing Hamilton v. Alabama (1964) 376 U.S. 650, 84 S.Ct. 982, 11 L.Ed.2d 979, Johnson v. Virginia (1963) 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 and In re Berry (1968) 68 Cal.2d 137, 65 Cal.Rptr. 273, 436 P.2d 273, appellant maintains that a court which issues an unconstitutional order acts in excess of its jurisdiction and, accordingly, there is no contempt of court on the part of one who refuses to obey such an order. The facts in Hamilton are the most analogous to the instant action.

In Hamilton a black woman who was called as a witness refused to answer questions on cross-examination so long as she was referred to as "Mary" instead of "Mrs. Hamilton." ¹ The trial court held her in contempt of court. However, the contempt conviction was annulled per curiam by the United States Supreme Court. Although the Monterey superior court found Hamilton and appellant's other cited cases inapposite to the present action, it appears that the cases are directly on point.

Equal protection provisions of the California Constitution "while 'substantially the equivalent of' the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable." (Serrano v. Priest (1976) 18 Cal.3d 728, 764, 135 Cal.Rptr. 345, 557 P.2d 929.) It can be seen that this state has applied a standard of review different from that applied by federal courts under the Fourteenth Amendment in cases which involve classifications based on gender. (Molar v. Gates (1979) 98 Cal.App.3d 1, 12, 159 Cal.Rptr. 239.)

In California, which employs the traditional two-tier test of equal protection, distinctions involving "suspect classifications" or classifications that impair "fundamental rights" will be subjected to strict scrutiny by the courts, and the state will be required to bear the heavy burden of showing both that it has a compelling interest which justifies the classification and that the classification is necessary to further that compelling interest. (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 592, 150 Cal.Rptr. 435, 586 P.2d 916; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487.)

For example, in Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, a woman challenged the constitutionality of a California law prohibiting females from tending bar unless they or their husbands held a liquor license on equal protection grounds. Our Supreme Court applied the strict scrutiny standard of review first, because the statute limited the fundamental right of one class of persons to pursue a lawful profession, and second, "because classifications based upon sex should be treated as suspect." (Id., at p. 17, 95 Cal.Rptr. 329, 485 P.2d 529.)

The Court then analyzed why classifications based on sex should be subject to the same strict scrutiny that the U.S. Supreme Court applies in reviewing classifications such as race, lineage or national origin:

"Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth. What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society. [Citation.] The result is that the whole class is relegated to an inferior legal status without regard to the capabilities or characteristics of its individual members. [Citation.] Where the relation between characteristic and evil to be prevented is so tenuous, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.

"Another characteristic which underlies all suspect classifications is the stigma of inferiority and second class citizenship associated with them. [Citation.] Women, like Negroes, aliens, and the poor have historically labored under severe legal and social disabilities. Like black citizens, they were, for many years, denied the right to vote and, until recently, the right to serve on juries in many states. They are excluded from or discriminated against in employment and educational opportunities. Married women in particular have been treated as inferior persons in numerous laws relating to property and independent business ownership and the right to make contracts.

"Laws which disable women from full participation in the political, business and economic arenas are often characterized as 'protective' and beneficial. Those same laws applied to racial or ethnic minorities would readily be recognized as invidious and impermissible. The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage. We conclude that the sexual classifications are properly treated as suspect, particularly when those classifications are made with respect to a fundamental interest such as employment." (5 Cal.3d pp. 18-20, 95 Cal.Rptr. 329, 485 P.2d 529, footnotes omitted.)

Since Sail'er Inn our Supreme Court has consistently reaffirmed its holding that gender-based differentials are to be treated as "suspect classifications" subject to strict scrutiny. (See, Arp v. Workers Comp. Appeals Bd. (1977) 19 Cal.3d 395, 400, 138 Cal.Rptr. 293, 563 P.2d 849; Hardy v. Stumpf (1978) 21 Cal.3d 1, 7, 145 Cal.Rptr. 176, 576 P.2d 1342.)

In light of Sail'er Inn's pronouncement, no significant difference can be seen between ordering a witness to submit to an attorney's...