Michaels v. Superior Court In and For Riverside County

• Decision Date: 23 September 1960
• Citation: 7 Cal.Rptr. 858,184 Cal.App.2d 820
• Parties: Pat Francis MICHAELS, Petitioner, v. SUPERIOR COURT of the State of California, in and for the COUNTY OF RIVERSIDE, Respondent. Civ. 6388.
• Court: California Court of Appeals Court of Appeals

Page 858

7 Cal.Rptr. 858

184 Cal.App.2d 820

Pat Francis MICHAELS, Petitioner, v. SUPERIOR COURT of the State of California, in and for the COUNTY OF RIVERSIDE, Respondent.

Civ. 6388.

District Court of Appeal, Fourth District, California.

Sept. 23, 1960.

Hearing Denied Nov. 16, 1960.

James C. Monroe and George H. Chula, Santa Ana, for petitioner.

Stanley Mosk, Atty. Gen., Charles A. O'Brien, Chief Asst. Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., William O. Mackey, Dist. Atty., County of Riverside, and Roland Wilson, Deputy Dist. Atty., Riverside, for respondent.

GRIFFIN, Presiding Justice.

Petitioner seeks a writ of prohibition restraining the respondent from proceeding further with its consideration of a matter wherein petitioner is charged with contempt of court by reason of his refusal to answer questions at a hearing before the Riverside County Grand Jury.

The petition and supporting documents and the transcripts of the proceedings before the grand jury and the respondent court show that the following events have occurred:

On June 17, 1960, the Riverside County Grand Jury was investigating whether certain crimes of violence, amounting to felonies and conspiracies to commit crimes of violence were committed or existed in the city of Elsinore in Riverside County as charged by petitioner in a television program entitled 'The City of Hate' which was broacast on December 11, 1959.

On June 17, 1960, petitioner appeared before the grand jury pursuant to a subpoena and was asked certain questions seeking to elicit petitioner's sources of information concerning crimes or conspiracies occurring within the city of Elsinore during the last three years. He was asked if he was a television commentator for Station KTLA, Channel 5, on April 6, 1960, if he broadcast a certain 'Big Three' program on April 7, 1960 and made certain remarks derogatory to certain people in the city of Elsinore. He was also asked if during the television broadcast he had stated, in part:

'We know who they are, or at least who some of them are, and are willing to turn our files over to the proper law-enforcement agencies who will protect the constitutional rights of the people of that city.'

Petitioner was asked whether he would turn over to the grand jury information concerning crimes occurring in the city of Elsinore involving persons other than himself. Petitioner refused to answer all of these questions, basing such refusal upon the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution and upon the privilege of section 1881, subsection 6 of the Code of Civil Procedure. Thereafter the grand jury unanimously agreed to cite the petitioner for contempt by reason of his refusal to answer.

On July 7, 1960 there was filed with the respondent court a verified 'request for hearing' on charge of contempt alleging in substance that the above-described events had occurred, that defendant was believed to have information concerning the alleged commission of the crimes referred to and that defendant was not accused of or charged with the commission of any of the alleged crimes. The 'request for hearing' sought the issuance of an order to show cause commanding petitioner to appear in respondent court and show cause why he should not be punished for contempt by reason of his refusal to answer the questions put to him before the grand jury. Appended to the 'request for hearing' and incorporate therein by feference was a transcript of the petitioner's testimony in his appearance before the grand jury.

On July 7, 1960, an order was issued by Judge Gabbert of the respondent court commanding petitioner to appear before the court on July 29, 1960, to '* * * show cause, if any he has, as to why he should not be deemed in contempt of Court for refusal to answer questions propounded to him by the Riverside County Grand Jury * * * and be punished according to law.'

On July 29 at 10:00 a. m. petitioner, through his counsel, appeared in Judge Gabberts' court and the matter was immediately assigned to Judge Bucciarelli of that court. At that time petitioner did not orally or otherwise announce that that judge was prejudiced. Since there are seven superior court judges in Riverside County, we will assume the courts there operated under a master calendar system. The record is not altogether clear in this respect but the parties, in open court here, agreed that Judge Gabbert was in charge of the regular calendar that morning and assigned out the several cases appearing thereon to other departments and that this cause was assigned as indicated. Petitioner had no previous notice that this particular judge was to hear the matter. After such assignment and before the hearing on the merits was commenced, counsel for petitioner announced that petitioner was appearing specially and objected to proceeding further at that time. The court then stated that the 'point here is whether or not this respondent is properly here today' and counsel agreed. The sufficiency of the order to show cause was then attacked on the ground that the court did not acquire jurisdiction of petitioner's person and also claimed that the court had no jurisdiction and was without power to punish him for contempt. In this connection, it was argued that the court had no jurisdiction because it had ordered petitioner to show cause why he should not be deemed in contempt of court for failure to answer questions propounded to him by the grand jury rather than indicate to him that he should appear and show cause why he sould not be ordered to answer certain specified questions before the grand jury or, on his failure to do so, to be punished for contempt.

Considerable argument ensued on the points presented. The court denied the motion on the claimed special appearance. The trial judge asked if petitioner was in court and represented by counsel. The answer was in the affirmative and his attorney announced to the court that he was now before it for the first time on the general appearance and petitioner immediately filed with the clerk in that court an affidavit of prejudice under section 170.6 of the Code of Civil Procedure. The court, after some discussion, struck the affidavit from the files, stating that it had been filed too late, since the hearing on the matter had already commenced, and that it had not been filed in accordance with the provisions of section 170.6, Code of Civil Procedure, supra. That section provides in part, in subdivision 1:

'No judge * * * shall try any civil or criminal action or special proceeding of any kind or character nor hear any matter therein which involves a contested issue of law or fact when it shall be established as hereinafter provided that such judge is prejudiced against any party or attorney * * * appearing in such action or proceeding.'

Subdivision 2 of the same section provides in part:

'Any * * * attorney appearing in any such action or proceeding may establish such prejudice by an oral or written motion without notice supported by affidavit that the judge before whom such action or proceeding is pending or to whom it is assigned is prejudiced * * *. If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. * * * If the motion is directed to a hearing (other than the trial of a cause), the motion must be made not later than the commencement of the hearing. In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.'

It therefore appears that since the petitioner did not make and file his motion of prejudice to the judge supervising the master calendar, but awaited the outcome of a ruling of the judge to which the cause was assigned before making his motion and filing his affidavit, there was no compliance with the statute and the trial court was authorized to strike it from the files.

Furthermore, the entire cause was assigned for hearing and determination by the judge. The so-called special appearance, judging from the argument, was not altogethe confined to the question of notice and jurisdiction of the person but involved the power of the grand jury to 'compel a witness to testify, unless the court, after proper proceedings, orders him to testify' and that such testimony can be given only before the grand jury and not in the presence of the court and the general public. It was also argued, in this connection, that sections 1985 to 1991, inclusive, of the Code of Civil Procedure, pertaining to punishment for contempt, disobedience to a subpoena, etc., set forth the procedure necessary to follow in the instant proceeding. It was also claimed that the court had no jurisdiction over the matter without first directing the petitioner here to answer the questions propounded by the grand jury. The court then cited Ex Parte Rowe, 7 Cal. 181, 184, as indicating the proper procedure and denied the motion and directed counsel to proceed. Thereafter the affidavit of prejudice was filed and the question of the court's jurisdiction and the procedure again arose, and the court announced that it would follow the procedure indicated in Ex Parte Rowe, supra, i.e., to avoid making public testimony to be taken before the grand jury the question could be propounded of the witness in writing by the judge and counsel could make any objections thereto desired, and the court would rule whether the witness should answer the question, and if ordered to do so he would write the answer out and, after being transcribed, the question and answer would be delivered to the grand jury, and if he refused to answer he would be in contempt of court; that accordingly the questions and answers would not necessarily be known to any person but the officers of the court, the witness and his counsel. It is the law that even a judge...