Buckley, In re

• Decision Date: 19 October 1973
• Docket Number: Cr. 16621
• Citation: 10 Cal.3d 237,110 Cal.Rptr. 121,514 P.2d 1201
• Court: California Supreme Court
• Parties: , 514 P.2d 1201, 68 A.L.R.2d 248 In re Lawrence BUCKLEY on Habeas Corpus.

Page 121

110 Cal.Rptr. 121

10 Cal.3d 237, 514 P.2d 1201, 68 A.L.R.2d 248

In re Lawrence BUCKLEY on Habeas Corpus.

Cr. 16621.

Supreme Court of California In Bank.

Oct. 19, 1973.

Rehearing Denied Nov. 28, 1973.

Keith C. Monroe, Santa Ana, for petitioner.

Adrian Kuyper, County Counsel, Santa Ana, Charles B. Sevier, Deputy County Counsel, Irvine, Cecil Hicks, Dist. Atty., Michael R. Capizzi, Santa Ana, Oretta D. Sears, Deputy Dist. Atty., Fullerton, and Alicemarie Stotler, Deputy Dist. Atty., Santa Ana, for respondents.

SULLIVAN, Justice.

In this proceeding in habeas corpus, ¹ petitioner Lawrence Buckley, an attorney seeks to annul an order of the Orange County Superior Court adjudging him in direct contempt of court, and sentencing him to jail for five days and imposing a fine of $500. ²

The alleged contempt occurred in open court during the jury trial of a criminal case in which petitioner represented the defendant. In the course of the case in defense, petitioner unexpectedly called as a witness the prosecutor Mr. Brian, a deputy district attorney. ³ The judge thereupon admonished and excused the jury and the following proceedings were had in open court, outside the presence of the jury.

We shall set forth in some detail the subsequent events so that the alleged contempt can be viewed in its proper setting. ⁴ After the jury was excused, an argument ensued in open court, at the start of which the prosecutor requested that the judge order petitioner to make an offer of what he expected to prove by calling the prosecutor as a witness. The pertinent portions of the record are set forth below. ⁵

Asserting that he had the right to call the prosecutor or any other witness, petitioner continued as follows: 'I don't believe the District Attorney stands in any stead or difference from any other witness, and if I want to call him as a witness I have a right to call him as a witness. Objections can be interposed question by question.

'THE COURT: I don't believe so, in view of his status in the case. You have an obligation--

'MR. BUCKLEY: The Court should let me finish my position so that the record is clear.

'THE COURT: I thought you had finished. I didn't know you went on forever.

'MR. BUCKLEY: The Court's persistent interruptions--

'THE COURT: Don't characterize my conduct as persistent interruptions or I'll cite you for contempt. Get on with your argument.

'MR. BUCKLEY: I lost my train of thought because of the Court's interruption.'

Petitioner then reiterated his position that he was not required to make an offer of proof and the prosecutor renewed his objection. The following then occurred.

'MR. BRIAN: And I renew my objection. There's been no showing whatever that I have anything to offer in the case, and I've learned by sad experience not to talk to Mr. Buckley in person, and I refuse to do it unless there's a witness present. ( ) I have nothing to offer this case. I'm the prosecutor, and I refuse to take the stand. It's one of his cheap tricks.

'THE COURT: I'm not interested in your characterization.

'MR. BRIAN: I withdraw my characterization.

'MR. BUCKLEY: Would the Court ask the District Attorney to apologize.

'THE COURT: Did you apologize for calling him stupid?

'MR. BUCKLEY: Did I call him stupid?

'THE COURT: Yes, you did.'

After a further exchange, the judge sustained the prosecutor's objection to being called as a defense witness. Petitioner continued to argue to the court.

'MR. BUCKLEY: I don't call witnesses that won't offer relevant testimony, and this witness will offer relevant and material testimony.

'THE COURT: You'll have to first tell me what that is.

'MR. BUCKLEY: I think the Court and the prosecution bear a heavy burden.

'THE COURT: Stop telling me about my burden. Either comply with the order or sit down.

'MR. BUCKLEY: What is the order?

'THE COURT: The order is unless you tell me the relevant information I'm not going to permit you to call him.

'MR. BUCKLEY: Is that going to be so with every witness?

'THE COURT: No, that only applies to the District Attorney.'

A lengthy exchange between petitioner and the court then ensued, during which petitioner argued that he was entitled to interrogate the prosecutor about oral statements made to him by defendants, since such statements would have been discoverable anyhow had they been reduced to writing. When asked by the court for authority supporting such a position, petitioner continued: 'MR. BUCKLEY: I call upon the Court's experience as a judge that everything isn't written down in law books, that new questions arise every day that aren't in the cases.

'THE COURT: You don't have authority for it, is that it? It's denied.

'MR. BUCKLEY: The District Attorney--

'THE COURT: I don't want to hear the argument. It's denied.

'MR. BUCKLEY: The District Attorney has none to the contrary. It's consistent with all other--

'THE COURT: I've heard enough argument on it.

'MR. BUCKLEY: I'll cite to the Court In Re Ferguson, 5 Cal.3d 525, 96 Cal.Rptr. 594, 487 P.2d 1234, which talks about the obligation of the District Attorney to turn over to the defense, even without request, all information of a substantial and material nature; says nothing about whether it is written or not. In fact, the Court says there is no need for the defense to made a written notice that will just clog the Court's file with unnecessary paperwork. ( ) That's my case. I rely on that. ( ) I'll move the Court for a mistrial.

'THE COURT: Denied.

'MR. BUCKLEY: This Court obviously doesn't want to apply the law.

'THE COURT: Stop insulting me and sit down. ( ) Don't tell me I don't want to apply the law. It's grossly insulting and this time I'm going to cite you for contempt. For grossly contemptuous behavior in impugning to this Court a willful desire not to apply the law. It is highly insulting, high untrue, and you're punished with five days in the Orange County jail and a fine of five hundred dollars, the sentence to take effect upon the conclusion of this trial. It will be stayed until the verdict is rendered in this case.' ⁶ (Italics added.)

At the start of the proceedings on the following morning, petitioner in open court and outside the presence of the jury apologized to the court for being late. In the ensuing colloquy between petitioner and the court, during which petitioner remarked that 'this Court has questions about my credibility,' petitioner apologized to the court for 'the comment I made yesterday.' ⁷ The record discloses, however, that the judge upon further reflection chose to regard the proffered apology as having 'poured salt on the wound.' ⁸

During the afternoon session that day, petitioner in open court and out of the presence of the jury addressed the judge on the subject of his prior apology and the court's subsequent observation that the apology 'only magnified the nature of the contempt.' His inquiry as to why the judge had rejected the apology was met by the judge's response that he 'never accepted it or rejected it' but had considered that the apology 'only magnified the insult, because the accusation was a charge on the integrity of this court. The accusation was, I knew the law, and didn't obey it. So merely stating I knew the law, merely emphasized the fact that I had no integrity.' ⁹ Declining to exonerate petitioner for his allegedly contemptuous remark, the judge made and filed a written order adjudicating petitioner in contempt, which we set forth in relevant part in the margin. ¹⁰ Petitioner was taken into custody but was later released. This proceeding in habeas corpus followed. ¹¹

Petitioner directs a three-pronged attack on the order adjudicating him in contempt. His contentions may be summarized as follows: (1) That the order is insufficient on its face to support the jurisdiction of the trial court and is not supported by the record; (2) that under the circumstances of the case, the trial judge was required, as a matter of due process, to refer the charge of the alleged contempt to another judge for adjudication; and (3) that California procedure in contempt matters, insofar as it fails to provide for a stay or an appeal as a matter of right, denies a contemnor the equal protection of the laws.

I

Preliminarily we make some observations as to the order under review. Fairly read, it indicates that petitioner was found to be in contempt only for a single act of misconduct--his statement in open court that 'This Court obviously doesn't want to apply the law.' (See fn. 10, Ante, and text accompanying fn. 6.) ¹² Nowhere does the order state that petitioner made this statement in a loud, boisterous, insolent or rude manner. It does recite, however, that the statement 'tended to interrupt the due course of the trial then in progress,' language almost identical with that found in subdivision 1 of section 1209 of the Code of Civil Procedure. ¹³ We additionally ob serve that there are attached to, and made a part of the order, transcripts of the full portion of the colloquy between petitioner and the court (see fn. 10 Ante, 1st par.) as well as of petitioner's apology (Id., 4th par.).

These preliminary matters out of the way, we turn to petitioner's first contention. Essentially his point is this: that the order of contempt rests on a single remark of nine words alleged to be contemptuous; that such statement was not found to have been made in a loud, boisterous or offensive manner; that although found to have tended to interrupt the due course of the trial, such finding is totally unsupported by the record; and that, as a result, petitioner's statement did not constitute contempt.

In reviewing an adjudication of contempt, 'the sole question before us is one of jurisdiction of the trial court to render the judgment under review, and in such a case the review of the evidence is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court.' (...