Chapman v. Pacific Tel. and Tel. Co.
| Decision Date | 07 November 1979 |
| Docket Number | No. 78-3745,78-3745 |
| Citation | 613 F.2d 193 |
| Parties | Judy CHAPMAN, T. Dolores Butler, Leslie Ann Jassman, Plaintiffs, Deborah Halvonik, Plaintiff-Appellant, v. PACIFIC TELEPHONE AND TELEGRAPH CO., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ephraim Margolin, San Francisco, Cal., for plaintiffs.
Clement L. Glynn and Eric J. Swenson (argued), Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee; William O. Dillingham, Noble K. Gregory, Eric J. Swenson, Asst. U.S. Atty., Clement L. Glynn, Pillsbury, Madison & Sutro-San Francisco, Cal., on brief.
Appeal from the United States District Court for the Northern District of California.
Before WRIGHT and ANDERSON, Circuit Judges, and SOLOMON, Senior District Judge. *
Deborah Halvonik was one of the attorneys for multiple plaintiffs in a Title VII action. During pretrial proceedings, she refused to comply with the order of the district court asserting that the order was confusing and invalid for unconstitutionality. The court found that the order was clear and definite.
The issue here is whether the district court may hold an attorney in criminal contempt for willfully refusing to comply with a clear and definite order, even though the attorney asserts that the order is unconstitutional and that she was confused. We hold that the court had that right and affirm the order holding the attorney in criminal contempt.
At a pre-trial conference on January 6, 1978, the district court orally ordered Mrs. Halvonik, lead counsel, to submit a written narrative statement of the direct testimony of each witness whom plaintiffs intended to call at the trial. The court observed that such statements would be helpful to the court in understanding the issues and would compel the parties to prepare adequately for trial. Appellant was given ten days to comply.
She made no attempt to prepare the statements. Instead, on January 16, she petitioned this court for a writ to prohibit the district court from enforcing the order. We denied the petition as premature.
On January 26, she attended another pre-trial conference. The court inquired what progress had been made in preparing the witness statements. Mrs. Halvonik informed the court that nothing had been done. The court held her in contempt but withheld fixing punishment until after the conclusion of the Title VII trial.
When the court informed Mrs. Halvonik she was in contempt, she asked for and was granted a recess to consult with co-counsel. After the recess, Mrs. Halvonik said she did not intend to comply with the order because she was confused. The court found her confusion "self-induced and self-perpetuated."
On that day, the court reduced its order to writing. Mrs. Halvonik still did not make even a good faith attempt to prepare witness statements.
On January 30, the trial date, plaintiffs were unable to proceed because Mrs. Halvonik was not present and co-counsel were not prepared to examine their witnesses. The case was continued to February 6, when it was tried essentially without the aid of Mrs. Halvonik's witness statements. Despite this inauspicious beginning, two of the plaintiffs prevailed.
On June 9, 1978, the district court asked for post-trial briefs addressing the issues of awarding attorney's fees and certifying contempt. Mrs. Halvonik did not submit the requested materials.
On September 1, the court issued its final judgment, including an award of $3,624 for attorney's fees to Mrs. Halvonik. On that day, the court certified Mrs. Halvonik's criminal contempt for refusing to comply with the January 6 oral order. She was fined $500.
Mrs. Halvonik's non-compliance was found contumacious under 18 U.S.C. § 401(3) which provides:
A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
Criminal contempt is established when:
(1) there is a clear and definite order, and the contemnor knows of the order, In re Rubin, 378 F.2d 104, 108 (3d Cir. 1967); and
(2) the contemnor willfully disobeys the order. In re Allis, 531 F.2d 1391, 1392 (9th Cir.), Cert. denied, 429 U.S. 900, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976).
Mrs. Halvonik argues that the order was not clear and definite. She portrays the court's infinite patience, its repeated explanations of the order and its attempts to mollify Mrs. Halvonik as vacillation. We are at a loss to see what more the court could have done to clarify and define its order.
Mrs. Halvonik also argues that willfulness cannot be established because she was confused. The district court characterized her confusion as "self-induced and self-perpetuated," a finding amply supported by the record.
No recitation of particulars can adequately communicate the agonizing frustration the district court endured here. We recite in the margin only one example of Mrs. Halvonik's conduct but it alone would be sufficient to sustain the court's finding of willfulness. 1
Attorneys, as officers of the court, have a duty to cooperate with the court to preserve and promote the efficient operation of our system of justice.
The Code of Professional Responsibility, Disciplinary Rule 7-106(A) provides:
A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.
The Code further exhorts the lawyer that:
Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. Thus while a lawyer may take steps in good faith and within the framework of the law to test the validity of rules, he is not justified in consciously violating such rules and he should be diligent in his efforts to guard against his unintentional violation of them.
Ethical Code 7-25. Mrs. Halvonik's conduct in this case far surpassed the bounds of a good faith testing of the district court's order.
We cannot believe Mrs. Halvonik was ignorant of her ethical duties. Her counsel seeks to excuse her conduct, arguing that she is "young and inexperienced." She is 37 years old. At oral argument, her counsel estimated she had practiced law for six years. She is sufficiently mature and experienced to understand her obligation to comply with a court order. If she is not, she lacks the basic competence to practice law.
Mrs. Halvonik argues she was privileged to disobey the court's order because it was invalid. An attorney who believes a court order is erroneous is not relieved of the duty to obey it. The proper course of action, unless and until the order is invalidated by an appellate court, is to comply and cite the order as reversible error should an adverse judgment result. Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975).
Mrs. Halvonik attempts to avoid the Maness rule by insisting that the court's order was unconstitutional. 2 We disagree. We believe the district court acted properly, in a laudable effort to save trial time and to assure adequate representation by counsel.
The procedure employed by the court in this case was not "trial by affidavit" as appellant insists. See Locklin v. Switzer Brothers, Inc., 348 F.2d 244 (9th Cir. 1965). Indeed, it was commendable. Direct oral testimony was to be permitted to supplement the written narrative statement "where there may be questions of credibility or other particular problems." Oral cross-examination and oral redirect were also contemplated.
Submission of direct testimony in written form is expressly provided for by the court rules of other districts and has been employed productively by other trial courts. 3 We should think that Mrs. Halvonik would have welcomed, rather than resisted the court's plan to clarify and simplify the issues at trial.
The district court purported to hold Mrs. Halvonik summarily in contempt under Rule 42(a). She argues that summary disposition was inappropriate. We need not decide this issue because the procedure employed complied with the notice and hearing requirements of Rule 42(b).
This court, in In Re Allis, 531 F.2d 1391 (9th Cir. 1976), Cert. den., 429 U.S. 900, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976), held that Rule 42(b) is satisfied if a "reasonable time for the preparation of the defense" is provided. Allis, an attorney, made a tardy appearance before the court. The court told him there was imminent likelihood he would be held in contempt. After a ten-minute recess, during which Allis conferred with counsel, the court asked whether he could excuse his conduct. Allis offered no excuse and was held in contempt. This court affirmed the contempt citation though the trial court purported to act summarily under Rule 42(a).
The present case is similar to Allis except that Mrs. Halvonik was never at a loss for excuses. This is not a compelling distinction. We find Allis controlling.
The contempt order is affirmed.
* Of the District of Oregon.
Secondly, that the plaintiffs are entitled to, by Rule 43, present in all trials on the merits, oral testimony in open court, and that this Court's rule...
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