Gould, In re

• Decision Date: 25 August 1961
• Docket Number: Cr. 7815
• Citation: 15 Cal.Rptr. 326,195 Cal.App.2d 172
• Parties: In re GOULD. Application for a Writ of Habeas Corpus, in Behalf of Charles Gould, by Dorie RUTGER, Petitioner.
• Court: California Court of Appeals Court of Appeals

Page 326

15 Cal.Rptr. 326

195 Cal.App.2d 172

In re GOULD Application for a Writ of Habeas Corpus, in Behalf of Charles Gould, by Dorie RUTGER, Petitioner.

Cr. 7815.

District Court of Appeal, Second District, Division 3, California.

Aug. 25, 1961.

Warner, Sutton & Warner, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel and Robert C. Lynch, Deputy County Counsel, Los Angeles, for respondent Sheriff of Los Angeles County.

Bernard & Jaffe, Beverly Hills, for real party in interest.

SPARKS, Justice pro tem.

Contemner, Charles Gould, was committed to jail for five days by respondent court for wilful violation of its order. In the petition for writ of habeas corpus filed in his behalf, it is alleged that his imprisonment is illegal and void, 'in that said commitment does not show that said Charles Gould had knowledge of the support orders referred to, and further, does not affirmatively show that John Leslie Goddard, a Superior Court Commissioner, was acting as judge pro-tem in the matter * * *.' The return of Peter J. Pitchess, Sheriff of Los Angeles County, and the reply to petition by Dorothy Gould, as wife of contemner, and self-designated real party in interest, have been filed herein. It was stipulated at the time of the hearing that the allegations of the petition might be deemed a traverse to those of said return and reply.

Contemner's thesis as set forth in the petition for said writ is contained in the following statement: 'The commitment in a contempt proceeding measures the jurisdiction of the Court, and must recite all jurisdictional facts.' It is argued that the commitment here was fatally defective in that it fails to show: (1) that contemner had knowledge of the order, and (2) compliance with the qualification requirements of a judge pro tempore. At the hearing this attack on the latter point was broadened to encompass the entire procedure employed by the Los Angeles Superior Court in assigning court commissioners as judges pro tempore to hear matters before it. ¹

The challenged portions of the commitment read: '* * * and the defendant having appeared in Court of said date, and after a hearing the Court having found that the defendant was present at the time of trial and heard said order pronounced, or that said order was personally served upon said--, and that he had knowledge of the order, * * * [Signed] John Leslie Goddard, Judge Pro Tem.' (Emphasis added.)

Contempt proceedings which are ancillary to civil actions are nonetheless of a criminal or quasi-criminal nature (Phillips v. Superior Court, 22 Cal.2d 256, 137 P.2d 838; Warner v. Superior Court, 126 Cal.App.2d 821, 273 P.2d 89), and as such must be strictly construed. Butler v. Superior Court, 178 Cal.App.2d 763, 3 Cal.Rptr. 180; Foust v. Foust, 47 Cal.2d 121, 302 P.2d 11. Since the proceeding is essentially punitive and separate from the cause out of which it arises, all the prescribed procedural safeguards must be accorded the alleged contemner. Foust v. Foust, supra, 47 Cal.2d 121, 302 P.2d 11; Butler v. Superior Court, supra, 178 Cal.App.2d 763, 3 Cal.Rptr. 180; Killpatrick v. Superior Court, 153 Cal.App.2d 146, 314 P.2d 164; Nieri v. Nieri, 124 Cal.App.2d 292, 268 P.2d 547. Viewing the record before us and construing petitioner's contentions in the light of these rules, we are nevertheless of the opinion that the imprisonment of contemner constituted but a legal exercise of the inherent power of a court to punish for a violation of its orders. In reaching this conclusion, we are mindful that the violation of the order of the court here was an indirect or 'constructive,' as contrasted with a direct contempt. A direct contempt must be committed within the immediate view and presence of the court and is punished summarily. Consequently the order must recite with sufficient particularity and conclusiveness all necessary facts and findings. Raiden v. Superior Court, 34 Cal.2d 83, 206 P.2d 1081; Blake v. Municipal Court, 144 Cal.App.2d 131, 300 P.2d 755; Bennett v. Superior Court, 99 Cal.App.2d 585, 222 P.2d 276. The failure to do so is jurisdictional and renders such an order fatally defective.

A proceeding for the punishment of an indirect contempt is commenced by the presentation of an affidavit setting forth the alleged contemptuous acts. Code Civ.Proc. § 1211. The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish. In re Felthoven, 75 Cal.App.2d 465, 171 P.2d 47; John Breuner Co. v. Superior Court, 112 Cal.App.2d 304, 246 P.2d 694; Uhler v. Superior Court, 117 Cal.App.2d 147, 255 P.2d 29. In the instant proceeding, no defect is claimed or suggested either in the affidavit filed for the order to show cause, or in the order and judgment of contempt. The attack is directed solely at the commitment. The order and judgment, as exemplified in the reply of Dorothy Gould reads: 'The Court finds defendant had knowledge of the Order of October 26, 1960 and the Order of February 15, 1961; that he had the ability to make the payments of child support of $112.50 that became due March 1, 1961; that he had the ability to pay the support payment of $37.50 that became due May 1, 1961; that he failed and refused to pay any part thereof and is therefore found to be in contempt of court and sentenced to serve a period of five (5) days in the County Jail.'

The findings of knowledge of the order, ability to respond thereto and failure and refusal to comply therewith are sufficient to sustain the order. In re Hadley, 57 Cal.App.2d 700, 135 P.2d 381.

The disjunctive recitals of the commitment are not approved even though followed by the positive finding 'that he had knowledge of the order.' However, as we have seen, in indirect contempts the allegations of the affidavit and of the order itself are controlling, since a commitment is merely the implementation of the judgment. Pen.Code, § 1215; People v. Rivas, 85 Cal.App.2d 540, 193 P.2d 151; People v. Sourisseau, 62 Cal.App.2d 917, at page 928, 145 P.2d 916; People v. Flannelly, 128 Cal. 83, at page 94, 60 P. 670; In re Ralph, 27 Cal.2d 866, at page 870, 168 P.2d 1.

We are further of the opinion that the judgment of imprisonment is not fatally defective by reason of its failure affirmatively to show that the court commissioner who imposed it was legally authorized to act as a judge of the superior court pro tempore. Nor do we find any unconstitutionality in the method adopted in the appointment, designation and qualification of the commissioner as such a judge. The authority of a court commissioner deraigns directly from the Constitution itself. Article VI, section 14, of the California Constitution provides in part:

'The Legislature may also provide for the appointment, by the several superior courts, of one or more commissioners in their respective counties, or cities and counties, with authority to perform chamber business of the judges of the superior courts, to take depositions, and to perform such other business connected with the administration of justice as may be prescribed by law.' (Emphasis added.) Implementing this section of the Constitution, the Legislature adopted section 259a, Code of Civil Procedure, relating to the powers of court commissioners in counties and cities and counties having a population of 900,000 inhabitants or more. Said section reads in part: '4. To act as judge pro tempore when otherwise qualified so to act and when appointed for that purpose; * * *'

Article VI, section 5, of our State Constitution, also provides (last paragraph): 'Upon stipulation of the parties litigant or their attorneys of record a cause in the superior court or in a municipal court may be tried by a judge pro tempore who must be a member of the bar sworn to try the cause, and who shall be empowered to act in such capacity in the cause tried before him until the final determination thereof. The selection of such judge pro tempore shall be subject to the approval and order of the court in which said cause is pending and shall also be subject to such regulations and orders as may be prescribed by the Judicial Council.'

The record before us shows that John Leslie Goddard, was and is a commissioner of the Superior Court of Los Angeles County; that Honorable Louis H. Burke, presiding judge of said court, by minute order, appointed each of the commissioners of said superior court, a judge pro tempore to hear any and all matters assigned to him as such judge pro tempore; ^{2 2} that contemner in response to an order to show cause re contempt appeared in Department 8 of the Superior Court of Los Angeles County and stipulated that the contempt hearing should be held by the said John Leslie Goddard sitting as judge pro tempore. ³

Substantial and sufficient compliance with the constitutional provisions and implementation by Rule of the Judicial Council ⁴ appear here. The presiding judge approved the selection of Commissioner...