Safer v. Superior Court

1 The order, inter alia, required pickets surrounding any given field to maintain a distance of at least 50 feet between themselves except at field entrances, at which they were permitted to have 4 pickets; the total number of pickets at any field could not exceed 50 regardless of the extent of the property to be picketed. Defendants challenge the validity of this order, but because of our resolution of the case, we do not reach this issue.

2 In the declaration initiating the subsequent contempt proceeding under the Code of Civil Procedure, the declaring sheriff's officer indicated that some 250 persons had assembled to picket at one of the fields. Although the declarant swore that the behavior in question constituted a violation of the court order, he noted no other actions as constituting independent violations of law. Indeed he even noted that when defendants parked their vehicles in order to alight and engage in the conduct which led to their arrest, they parked “off the traveled portion of the roadway.”

3 Penal Code section 166 provides, in relevant part: “Every person guilty of any contempt of court, of either of the following kinds, is guilty of a misdemeanor: ... 4. Wilful disobedience of any process or order lawfully issued by any court.”

4 This service occurred in a questionable fashion. Although Penal Code section 1043 permits a misdemeanor trial to proceed if the defendant fails to appear at the time set for trial, and we have recently approved the entry of a guilty plea by counsel in such cases (Mills v. Municipal Court (1973) 10 Cal.3d 288 , 304 [ 110 Cal.Rptr. 329 , 515 P.2d 273 ]), the trial court nevertheless required the personal attendance of the defendants at a proceeding which the district attorney had told counsel would be a motion for dismissal of the charges. When defendants appeared for this purported dismissal, however, the district attorney procured service of orders to show cause in contempt prosecuted under the Code of Civil Procedure. At oral argument of this case the district attorney indicated that his office had suggested this procedure to the judge of the municipal court; although not briefed on this hearing, the propriety of this use of a court’s discretionary power to require attendance at a dismissal appears highly questionable. (Cf. Witkin, Cal. Criminal Procedure (1973 Supp.) p. 396; Bridges v. Superior Court (1939) 14 Cal.2d 464 , 477 [ 94 P.2d 983 ].)

5 Code of Civil Procedure section 1209 provides, in relevant part: “The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: ... 5. Disobedience of any lawful judgment, order, or process of the court....” Although the statute does not in terms require wilful disobedience, as the analogous Penal Code provision does (see supra, fn. 3), the courts have long required proof of wilfulness beyond a reasonable doubt for conviction under this statute. (Uhler v. Superior Court (1953) 117 Cal.App.2d 147 , 154 [ 255 P.2d 29 , 256 P.2d 90 ]; Bridges v. Superior Court (1939) 14 Cal.2d 464 , 484 [ 94 P.2d 983 ].)

6 Because we conclude that in the instant case the district attorney lacked the authority to bring the action in question, we do not decide whether Penal Code section 1387 would bar a district attorney’s prosecution of contempt under the Code of Civil Procedure in a case in which he did have the authority to bring the action, but prior to bringing it had filed and dismissed misdemeanor charges for the same offense. (See People v. Nelson (1964) 228 Cal.App.2d 135 [ 39 Cal.Rptr. 238 ]; Ephraim v. Jamestown Judicial Dist. Ct. *235 (1953) 120 Cal.App.2d 741 , 744 [ 262 P.2d 56 ]; Uhler v. Superior Court, supra, 117 Cal.App.2d 147 , 154; Mills v. Municipal Court, supra, 10 Cal.3d 288 ; In re Bye (1974) 12 Cal.3d 96 , 103 [ 115 Cal.Rptr. 382 , 524 P.2d 854 ].)

7 Our holding that the district attorney may not bring these proceedings obviates the need to reach the defendants’ claim of the right to jury trial as persons accused of contempt and facing incarceration under Code of Civil Procedure section 1209. (See ante, fn. 6.) We therefore need intimate no views as to the necessity of a jury trial under either the federal or California Constitutions in cases of civil, criminal, direct, or indirect contempt under section 1209, whether prosecuted by the district attorney or private litigants. (See Bloom v. Illinois (1968) 391 U.S. 194 , 201 [ 20 L.Ed.2d 522 , 528, 88 S.Ct. 1477 ]; Gordon v. Justice Court (1974) 12 Cal.3d 323 [ 115 Cal.Rptr. 632 , 525 P.2d 72 ]; Mills v. Municipal Court, supra, 10 Cal.3d 288 , 298-299, fn. 8; In re Harris (1968) 69 Cal.2d 486 , 491 [ 72 Cal.Rptr. 340 , 446 P.2d 148 ]; United Farm Workers, AFL-CIO v. Superior Court (1968) 265 Cal.App.2d 212 , 215 [ 71 Cal.Rptr. 513 ].)

8 The dissent, in attacking the characterization of these contempt proceedings, misses the point of this case. Seeking a result by an appeal to nomenclature, the dissent fails to perceive that the issue before us is not whether we should characterize contempt as “civil” or “criminal,” but whether the district attorney may bring these proceedings, whatever label one attaches to them. As we show, the district attorney can point to no such authorization. The dissent points to no such authorization. Moreover, we denominate as “civil” not the contempt proceedings themselves, but the unquestionably private litigation from which they issued. Of course we do not question the long line of cases which, in granting constitutional and other legal protections to accused contemners, have denominated contempt *236 “criminal,” as a shorthand expression of their conclusion that the protections in question were warranted. (Eg., Bloom v. Illinois (1968) 391 U.S. 194 , 201 [ 20 L.Ed.2d 522 , 528, 88 S.Ct. 1477 ] (right to jury trial); Hotaling v. Superior Court (1923) 191 Cal. 501 , 504 [ 217 P. 73 , 29 A.L.R. 127 ] (right to specific allegations in charging affidavit); Ex Parte Gould (1893) 99 Cal. 360 , 362 [ 33 P. 1112 ] (right against self-incrimination); Ex parte Hollis (1881) 59 Cal. 405 , 408 (habeas corpus as mode of review).) At the same time we note that other decisions, in considering other issues, have differently characterized contempt; thus In re Morris (1924) 194 Cal. 63 , 66 [ 227 P. 914 ], states that “[sjummary proceedings for the punishment of contempt . . . have always been recognized as sui generis, frequently arising in connection with civil actions, often partaking somewhat of the character of civil remedies, and always partaking largely of the character of criminal prosecutions.” (See also City of Culver City v. Superior Court (1952) 38 Cal.2d 535 , 541 [ 241 P.2d 258 ]; Bridges v. Superior Court (1939) 14 Cal.2d 464 , 474-476 [ 94 P.2d 983 ].)

9 Government Code section 26523 provides that the district attorney may test the validity of laws requiring the disbursement of funds only upon the request of certain officials; Government Code section 26522 sets forth that he shall entertain questions *237 regarding bond issues only upon request of the school board; Business and Professions Code section 16754 declares that he may institute actions concerning the restraint of trade only upon order of the Attorney General; Welfare and Institutions Code section 5114 states that he shall prosecute Lanterman-Petris-Short actions only if the board of supervisors has not delegated this duty to the county counsel.

10 Government Code section 26529 specifically provides that in counties which employ county counsel a district attorney may not render an opinion to county officers (Gov. Code, § 26520), test the validity of laws providing for the'payment of county funds (Gov. Code, § 26523), render school bond assistance (Gov. Code, § 26522), or represent a judge or court in its official capacity as a defendant (Gov. Code, § 26524). More generally, Government Code section 26529 provides that “county counsel shall defend or prosecute all civil actions in which the county ... is concerned. ...” (Italics added.) In construing this statute we start with the obvious proposition that county legal officers may become involved in litigation only if the county or public interest is involved; the quoted statute divides the litigative authority between the two county officers responsible for it, specifying that county counsel shall handle all civil matters. Thus even if one conceded the propriety of any public participation in this case, the statutes of this state provide that the county counsel shall bring this civil action. As we shall show, however, the defects in this action run deeper than the mere need for the substitution of county counsel.

11 See Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224 , 235 [ 11 Cal.Rptr. 97 , 359 P.2d 465 ], We note that, in spite of the broad powers granted to the district attorney in matters criminal by Government Code section 26500, the Los Angeles County District Attorney in 1973 concluded that he should seek special legislation to authorize his participation in a project aimed at the decrease of juvenile delinquency. (Declaration of Assemblyman Alan Sieroty, petitioners’ exhibit K; Gov. Code, § 26500.5.) Such caution manifests a proper concern that the district attorney “should always do his sworn duty, of course, but he should always do it fairly and justly and not permit the great power with which he is clothed to be converted into an instrument of persecution.” (People v. Hail (1914) 25 Cal.App. 342 , 358 [ 143 P. 803 ].)

12 Indeed for all that we can tell from the record in this case, the private parties plaintiff may have decided that vindication of an abstract legal right would not measurably assist in resolving the labot; dispute from which the litigation grew; the record reveals no trace of plaintiffs’ interest in prosecuting the contempt action. (Cf. Hart & Sacks, The Legal Process (1955) pp. 312-313.)

13 Embracing this suggestion of the district attorney, the dissenting opinion argues that the punishment of contempt “secures an important public interest.” (Infra, p. 245; italics in original.) From this axiom the dissent deduces that “a public official should be permitted to go forward.” (Infra, at p. 245; italics added.) Concealed in the phrase just quoted lies an extraordinary proposition of law; that the district attorney possesses the authority under Code of Civil Procedure section 1209 to enforce any order stemming from any civil litigation in this state. Not surprisingly, the dissent cites no authority for this innovation, for no case has so held. District attorneys hold statutory powers, not, as the dissent seems to suggest, a roving commission to do justice.

14 See In re Morris (1924) 194 Cal. 63 [ 227 P. 914 ]; in rejecting the argument that contempt may not constitute both a crime punishable under the Penal Code and an act susceptible to punishment under the Code of Civil Procedure, Morris does not, of course, consider or resolve the question of the district attorney’s authority to prosecute a contempt under the Code of Civil Procedure.

15 In re Brambini (1923) 192 Cal. 19 [ 218 P. 569 ], in which the district attorney was a proper party to the underlying suit, does not hold otherwise; that case, as the district attorney recognizes, supplies no authority for his participation in the contempt enforcement aspect of a suit which he could not institute.

16 Substantively, the United States Supreme Court reversed the result on the question of the use of the contempt power against an out-of-court act fraught with First Amendment implications. (Bridges v. California (1941) 314 U.S. 252 [ 86 L.Ed. 192 , 62 S.Ct. 190 , 159 A.L.R. 1346 ].) Since its decision in 1939 no California appellate court has cited Bridges for the standing question there discussed.

17 See footnote 3, ante. Like Bridges, McFarland v. Superior Court (1924) 194 Cal. 407 [ 228 P. 1033 ], considers only whether interested private parties other than the original suitor may bring an alleged contempt to the court’s attention; it does not stand for the proposition that the district attorney may prosecute the action. See also footnote 18, infra.

18 Thus People v. Centr-O-Mart (1950) 34 Cal.2d 702 [ 214 P.2d 378 ], readily distinguishes itself; in that case the statute in question provided that “any person or trade association may bring an action” to enjoin violation of the Unfair Trade Practices Act. (Bus. & Prof. Code, § 17070; italics added.) We there held only that “any person” included the district attorney. It is significant that the statute by its emphasized words specifically authorized the actual prosecution of the suit by “any person.” By contrast, Code of Civil Procedure section 1211, upon which the district attorney relies, merely speaks of the presentation of an affidavit; in no sense does it authorize prosecution of the ensuing proceedings by the person presenting it. Were it otherwise, anyone might preempt the prosecution of any contempt by being the first to the courthouse with his affidavit. Similarly, Pierce v. Superior Court (1934) 1 Cal.2d 759 [ 37 P.2d 453 , 460, 96 A.L.R. 1020 ], dealt with a statute which provided that “any person” might bring an action to cancel fraudulent voter registrations. After canvassing the policy considerations involved we held merely that the statutory language included the Attorney General.

19 See ante, pages 237-238.

20 An opinion of the Attorney General (56 Ops.Cal.Atty.Gen. 53 (1973)) dealing with the duties of the county counsel and district attorney to collect a fine imposed in *241 punishment of contempt lends no support to the position of the district attorney. The question in that opinion concerned the collection of a fine already imposed; nothing suggests that either public officer possesses the power to prosecute the underlying private action. Moreover, even the power to collect the fine stemmed from a specific statutory authorization. (Gov. Code, § 26521.) The only question was the effect of a subsequent legislative modification of this express authority.

21 “Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” (Duncan v. Louisiana (1968) 391 U.S. 145 , 156 [ 20 L.Ed.2d 491 ,499-500, 88 S.Ct. 1444 ].)

22 We do not here rule on the propriety of a statute authorizing the district attorney to make such an election of remedies if the defendant were not thereby deprived of his right to trial by jury; if case law or legislation secured to defendants this right, another *242 question might be presented. We do not, however, face or decide this case today. See footnote 7, ante.

1 Section 1209 provides: “The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: ... [¶] 5. Disobedience of any lawful judgment, order, or process of the court; ...”

2 The majority’s attempt to invoke the maxim of statutory construction—expressio unius est exclusio alterius—fails in the circumstances of this case. In addition to statutes *245 noted by the majority granting the district attorney express authority to appear in specified civil areas, others exist specifically restricting his authority. (See Gov. Code, § 26540 et seq.) Because specific statutes both authorize and restrict his duties, application of the statutory maxim reaches different results depending upon which set of statutes is used. Accordingly, the majority’s theory of statutory construction is inappropriate.

3 Punishment for violation of Code of Civil Procedure section 1209 is a maximum fine of $500 or a maximum of five days in jail or both. (Code Civ. Proc., § 1218.) Punishment for violation of Penal Code section 166, is a maximum of $500 or a maximum of six months in the county jail. (Pen. Code, § 19.) Penal Code section 166 is not intended to take away from the court contemned the power to punish a violator of its orders, but is intended rather to provide an additional remedy. Both'the Code of Civil Procedure and the Penal Code remedies were intended to be cumulative because each remedy is for a different offense, though the two offenses arise from the same act. (In re Morris (1924) 194 Cal. 63 ,69 [ 227 P. 914 ].)

4 If, however, the majority’s statement means that the defendants are entitled to a jury trial when an alternative offense which could have been charged entails the right, then it is beyond the majority’s own limitation that: “We therefore need intimate no views as to the necessity of a jury trial ... in cases of . . . contempt ....’’ (Ante, p. 235, fn. 7.) Moreover, any suggestion that lesser penalties may not warrant lesser rights would be contrary to existing authority. (See, e.g., Duncan v. Louisiana (1968) 391 U.S. 145 [ 20 L.Ed.2d 491 , 88 S.Ct. 1444 ]; Dyke v. Taylor Implement Co. (1968) 391 U.S. 216 [ 20 L.Ed.2d 538 , 88 S.Ct. 1472 ].)