Hallinan, In re

• Decision Date: 03 October 1969
• Docket Number: Cr. 13216
• Citation: 459 P.2d 255,71 Cal.2d 1179,81 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 459 P.2d 255 In re Vincent HALLINAN on Habeas Corpus.

Page 1

81 Cal.Rptr. 1

71 Cal.2d 1179, 459 P.2d 255

In re Vincent HALLINAN on Habeas Corpus.

Cr. 13216.

Supreme Court of California, in Bank.

Oct. 3, 1969.

Garry, Dreyfus, McTernan & Brotsky, Benjamin Dreyfus, San Francisco, and Harold McDermid, for petitioner.

Joseph A. Ball, Long Beach, Melvin M. Belli, San Francisco, George E. Bodle, Los Angeles, Willie L. Brown, Jr., San Francisco, Grant B. Cooper, Los Angeles, LeRoy Hersh, Michael J. Keady, San Francisco, Robert S. Morris, Los Angeles, Clinton W. White, Oakland, and A. L. Wirin, Los Angeles, as amici curiae on behalf of petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Robert

R. Granucci, Deputy Atty. Gen., for respondent.

BURKE, Justice.

Petitioner Vincent Hallinan, an attorney, seeks annulment of an order of direct contempt issued by the San Francisco Superior Court, sentencing petitioner to five days in jail. As hereinafter appears, we have concluded that the facts set forth in the order fail to support the finding of contemptuous behavior, and that the order should be annulled.

The conduct found contemptuous occurred during the jury trial of a defendant represented by petitioner and charged with battery upon a police officer. Contempt committed in the immediate view and presence of the court, known as direct contempt, may be treated summarily. All that is required is that an order be made reciting the facts, adjudging the person guilty, and prescribing the punishment. (Code Civ.Proc. § 1211; In re Ciraolo (1969) 70 A.C. 405, 409--410(1), 74 Cal.Rptr. 865, 450 P.2d 241; Arthur v. Superior Court (1965) 62 Cal.2d 404, 407(2), 42 Cal.Rptr. 441, 398 P.2d 777.) In the present case the order recites two instances of conduct deemed contemptuous by the court under the provisions of Code of Civil Procedure, section 1209, subdivision 1. ¹ The first occurred on December 19, 1968, when petitioner addressed certain language to the court, and the second occurred on December 26, 1968, when petitioner addressed certain language to a witness. ²

As noted in Lyons v. Superior Court (1955) 43 Cal.2d 755, 762--763(8), 278 P.2d 681, this court when it first gave consideration to the subject in People ex rel. Field v. Turner (1850) 1 Cal. 152, 153, carefully pointed out, and it has never been doubted, that the power to adjudicate a direct contempt 'is necessarily of an arbitrary nature, and should be used with great prudence and caution. A judge should bear in mind that he is engaged, not so much in vindicating his own character, as in promoting the respect due to the administration of the laws; and this consideration should induce him to receive as satisfactory any reasonable apology for an offender's conduct.'

When the contempt order is based on statements of an attorney made in open court the language of which is in itself not insolent, contemptuous or disorderly, the cases have held that something more is required to support the order than the mere recital therein that the tone of voice used was contemptuous. Thus in Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 192 P.2d 905, in annulling an order finding contemptuous conduct alleged to have extended over many pages of court record although not mentioned therein, this court declared that 'Broadly speaking, judges are empowered to punish summarily for contempt of court in order to facilitate the orderly administration of justice. Disobedience of court orders tends to lessen the effect of those orders; intemperate behavior in the course of a trial * * * lessens the mastery of the trial judge over the progress of the proceedings and thus tends to obstruct the course of the trial. Considerable summary power, not usually available to the officers of any other branch of the government, is therefore vested in judges. If that power is not wisely exercised it can readily become an instrument of oppression. In a summary contempt proceeding the judge who metes out the punishment is usually the injured party and the prosecutor as well. Since such a situation invites caprice, appellate courts almost without exception require that the order adjudging a person in direct contempt of court recite in detail the facts constituting the alleged transgression rather than the bare conclusions of the trial judge. (Code Civ.Proc. § 1211; see Anno., 154 A.L.R. 1227.) This rule in itself demonstrates, if only by implication, that some objective support must be present to support the order of contempt. If a trial judge had only to state that the contemnor raised his voice and twisted his features, no contempt order could be attacked. The well-recognized principle that in a criminal contempt proceeding the accused is afforded many of the protections provided in regular criminal cases would be rendered meaningless (citations); and the burden of proof would be sustained by the subjective reactions of the offended judicial officer. * * *

'Another consideration is the fundamental interest of the public in maintaining an independent bar. Attorneys must be given a substantial freedom of expression in representing their clients. 'An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly and adverse views of the Judge or Judges expressed on the case during its argument, to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client, and to caution juries against any interferences by the Judge with their functions, or with the advocate when addressing them, or against any strong view adverse to his client expressed by the presiding Judge upon the facts of a case before the verdict of the jury thereon. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client's case.' (Citations.) The public interest in an independent bar would be subverted if judges were allowed to punish attorneys summarily for contempt on purely subjective reactions to their conduct or statements.

'An attorney has the duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling. * * * (A)n attorney may assert that which he believes to be correct in a forthright manner, if he is acting in the due course of a judicial proceeding. (Citation.)

'We do not mean to suggest by anything said herein, that it is impossible for an attorney to subject a judge to ridicule and insult by intonations and gestures accompanying words wholly innocuous, or that, in such event, the judge is powerless to protect the dignity of the court. We merely recognize * * * that an attorney so skilled in the art of speech and at the same time so lacking in an understanding of his obligations, could be curbed by first warning him of his misconduct, and, if he persisted, by disciplinary action.' (Pp. 794--796 of 31 Cal.2d pp. 912--913 of 192 P.2d.)

In the present case, as in Gallagher v. Municipal Court, Supra, 31 Cal.2d 784, 192 P.2d 905, the record fails to show that the trial court warned petitioner of his 'antagonistic, insulting and disrespectful tone of voice' (see fn. 2, Ante) with respect to either of the two instances of conduct found contemptuous. The only warning with respect to the first such instance was that If petitioner, in announcing his objections to certain unspecified rulings of the court and his possible intent to ask for a mistrial, was 'inferring that this Court is siding with anybody here, I cite it as contempt.' Petitioner immediately disclaimed and such implication, although reiterating his view that restrictions imposed upon the evidence had been unfair to the defendant. When the court thereupon stated, 'I cite that as contempt also,' petitioner again declared he intended no contempt and had great respect for the judge, but mentioned what he considered his own obligation to defendant to protest rulings he believed unfair. Thus the only warning given by the court was as to the possible intent of petitioner as shown by the words petitioner used, and no mention was made of objection to petitioner's tone of voice or manner. 'An attorney is entitled to advocate respectfully and in good faith his contentions on behalf of his client even though asserted inadequacies in the action taken by the court are pointed out.' (Raiden v. Superior Court (1949) 34 Cal.2d 83, 86(5), 206 P.2d 1081, 1082--1083; see also Cooper v. Superior Court (1961) 55 Cal.2d 291, 298--300(3, 5), 10 Cal.Rptr. 842, 359 P.2d 274; Gallagher v. Municipal Court, Supra, 31 Cal.2d 784, 788(1), 192 P.2d 905.)

With respect to the second instance of conduct found contemptuous, the record likewise fails to disclose any prior warning to petitioner concerning his tone of voice or language used toward the witness. Instead, although not reflected in the order of contempt, the record shows that After petitioner addressed the offending, and offensive, remark to witness Merle (fn. 2, Ante), the court warned petitioner that 'One more remark like that, Mr. Hallinan, and you will again be cited for contempt,' to which petitioner responded, 'I certainly don't mean anything to you, Judge, you understand, or to the dignity of the...