Vaughn v. Municipal Court

Appellant, an attorney at law, was adjudged guilty of two counts of contempt (1) for his wilful misrepresentation to respondent court on Sepember 13, 1965, of the fact that he was required to appear in the federal district court in Chicago on September 14, 1965, for pretrial in Sibley v. Illinois Central Railroad; and (2) for his wilful failure to appear for trial of People v. Powers on September 15, 1965, in

The next day, September 15, 1965, at 8 :05 a.m., respondent Court convened for further trial of Powers • all persons except appellant were present, as ordered, and ready to proceed. Attorney Odis Jackson appeared and told Judge Nebron that he was there for the purpose of continuing the matter on behalf of appellant; had not discussed the case with appellant, only with his secretary; did not know Powers was on trial but thought it was a motion; had never seen Powers, did not represent him, had not consented to represent any of appellant’s clients and was not prepared to try the ease; had been told about the appearance for the first time by appellant’s secretary between 3:30 and 4 p.m. on the day before (September 14) • thought appellant’s wife was having a baby and knew nothing about appellant going to Washington, D.C. Then the clerk, upon instructions of the judge, called appellant’s secretary who told her that appellant “was called to Washington, D.C. . . . regarding a national bank” and “he left about 10 o’clock yesterday [September 14, 1965] and would be back on Friday [September 17, 1965].” Thus, Powers was left without representation in the middle of a criminal trial; he had not been advised by appellant that he would not appear and his trial was continued to September 30,1965.

On September 29, 1965, appellant called the clerk by telephone requesting another continuance of Powers; upon specific instruction of Judge Nebron, the clerk refused his request, told him he must appear and advised him that the court ‘‘ was reserving jurisdiction in this matter to issue a possible contempt citation” against him.

The next morning (September 30) appellant appeared;

Two hearings (October 13, 1965, and December 22, 1965) were held. In connection with count I, appellant’s first explanation (October 13) for having represented to the court that he was required to be in Chicago on September 14, 1965, was that on September 13, 1965, he believed that the pretrial of Sibley v. Illinois Central Railroad was set in the United States District Court for September 14, 1965. He testified that after 5 p.m. on September 13 he called Mr. Cerne, attorney for the railroad in Chicago in Sibley but. was told he had gone home; two hours later, Cerne called him and discussed settlement ; Cerne told him he would have to submit the offer to his company and that he (Cerne) would call the court and have the pretrial go over. Appellant admitted he had never made any reservation for transportation to Chicago on September 14, 1965, to attend the pretrial of Sibley v. Illinois Central Railroad.

On the second hearing (December 22, 1965), certified copy of Docket, No. 64-C 1190, United States District Court, Northern District of Illinois, Sibley v. Illinois Central Railroad, was received in evidence; it showed that there had b'een no hearing scheduled in that case on September 14, 1965, but that it was scheduled for September 22, 1965. Given further opportunity to explain, appellant then told a second, new and different version, conflicting with that given by him on October 13, 1965. He testified that on September 10, 1965, he had been advised by Eskridge, co-respondent counsel in Chicago in Sibley, that the pretrial would be held September 14,1965, at 1.30 p.m. but thought there was a good chance of settlement; on September 13, 1965, between 7:30 and 9 p.m., he called Eskridge in Chicago who told him the pretrial would not be held on September 14, 1965, but on September 22, 1965. However, at a later point in his testimony, appellant stated that in his conversation with Eskridge on September 13, 1965, Eskridge advised him that the matter was being negotiated and he (Eshridge) would call the attorney for the railroad and have the pretrial go over. In appellant’s personal day book and office calendar the Sibley pretrial was shown as set for both September 14, 1965, and September 22, 1965; he did not explain the conflict in dates and was unable to identify the handwriting on the conflicting entries.

In connection with count II, appellant’s explanation for failing to appear for Powers’ trial on September 15, 1965, as ordered, was that he went to Washington, D.C., on September 14, 1965, in connection with an application for a bank charter on behalf of a group of Negro clergymen and others called the Committee To Organize The National Bank of Commerce which he represented as attorney. He testified that this group had threatened to initiate picket lines in front of and distribute literature urging a boycott of two banks in the Negro community on September 19, 1965, and if this occurred would cause a second race riot in Los Angeles; to avoid this it was necessary for him to go to Wahington, D.C., on an emergency basis to negotiate for the bank charter for his group; a telegram signed by him and Reverend Brookins was sent by the committee August 25, 1965, to James Saxon, Comptroller of Currency, United States Treasury Department, Washington, D.C., informing him that commencing September 19, 1965, two hundred Baptist ministers would initiate the picket lines and distribute literature urging the boycott. Appellant told Judge Nebron under oath that if the bank charter were granted to the group he represented and the bank established, he anticipated he would hold stock therein, probably be chairman of the board of directors and be retained to repre

On behalf of respondent Court, Reverend H. Hartford Brookins testified that he was chairman of the United Civil Rights Committee, comprising forty-five organizations addressing themselves to civil rights activities in the Negro area in Los Angeles. Appellant strenuously objected to further testimony of Reverend Brookins on the ground that it would be “unreasonable,” “unfair” and “unjust” to him (appellant) to have Brookins questioned. Reverend Brookins’ testimony was very damaging to appellant’s credibility. He testified that where civil rights groups have planned demonstrations he knows of these plans, particularly if the demonstration is to be on any significant scale and relates to matters of concern to the Negro community; at no time was he ever informed of any planned demonstration on or about September 19, 1965; he did not authorize the use of his name in a telegram relating to the National Bank of Commerce; there would be no broad interest in or concern of the Negro community over procedures connected with granting a bank charter unless it was being denied on grounds of race, and it never came to his attention that the bank charter being sought by appellant’s group was of interest in the Negro community or to any civil rights group; he did not know of any plan for picket lines in front of or for distribution of literature urging a boycott of any bank on or about September 19, 1965; when a demonstration is being planned, information has to be put out widely to the Negro community in order to attract demonstrators; he had no information from any source in the community that there was any plan for a mass demonstration on September 19, 1965, and if any such were planned, he and his organization would know of it.

Reverend Maurice A. Dawkins, appellant’s witness testified that he is Associate Director of The Vista Program; on September 14, 1965, in Washington, D.C., he had a telephone conversation with appellant in which he suggested that appellant come to Washington because there was an opportunity to do something positive toward establishing a Negro bank in' Watts; he had no information concerning a planned massive demonstration until he talked to appellant and received a telegram sent by a group appellant represented; he assumed it would consist of peaceful picketing but did not know the details or how many would participate, nor did he know if the demonstration would be carried out; he opposed the idea of picketing; he did not participate in a conference call on September 14, 1965, which included Dr. Brimer; appellant did not advise him on September 14, 1965, that he was engaged in trial and the first he knew of it was on September 15, 1965, when a call from Los Angeles sought to locate appellant and he (Dawkins) was advised of a problem concerning a trial which had to be straightened out.

Finding that the court ordered appellant to appear in Division 26, at 8 a.m. on September 15, 1965, for the trial of Pow ers; the order was made in open court in appellant’s presence and he heard and understood the order; appellant failed to appear on September 15, 1965, as ordered; appellant had the ability to comply with the court’s order and wilfully neglected and failed to appear without sufficient reason or excuse; and appellant’s testimony is not worthy of belief and does not constitute a sufficient explanation for his failure to appear, respondent Court adjudged appellant guilty of contempt.

In a rambling brief which fails to conform to the requirements of rule 15(a), California Rules of Court, appellant cites at random eases of indirect contempt, quotes general statements of law and, in a factual argument based on testimony favorable to him, seeks determinations, by this court

“An order adjudging a person guilty of contempt in the immediate view and presence of the court must recite facts showing acts which constitute a contempt. (Code Civ. Proc., § 1211.) This is jurisdictional, and an order which assumes to punish summarily a direct contempt of court is void unless it shows on its face facts sufficient to constitute a legal contempt. (Raiden v. Superior Court, 34 Cal.2d 83 , 86 [2] [ 206 P.2d 1081 ]; In re Wells, 29 Cal.2d 200 , 201 [2] [ 173 P.2d 811 ]; Ex parte Hoar, 146 Cal. 132 , 133 [ 79 P. 853 ].) Such facts must be stated with sufficient particularity to show, without the aid of speculation, that a contempt actually occurred. (Blake v. Municipal Court, 144 Cal.App.2d 131 , 136 [7] [ 300 P.2d 755 ] [hearing denied by the Supreme Court].) ” (Chula v. Superior Court, 57 Cal.2d 199 , 203 [ 18 Cal.Rptr. 507 , 368 P.2d 107 , 97 A.L.R.2d 421 ].) In the present case it is clear that the Findings and Order of Contempt and Commitment meet the foregoing requirement; voluminous facts supporting each count are stated therein that appellant in the presence of the court committed a contempt. ‘ ‘ Thus, the responsibility of this court is merely to ascertain whether there was sufficient evidence before the trial court to sustain its judgment and order.” (Arthur v. Superior Court, 62 Cal.2d 404 , 409 [ 42 Cal.Rptr. 441 , 398 P.2d 777 ].)

As to count I, appellant challenges Judge Nebron’s factual determination that he wilfully made the misrepresentation knowing it to be false. That appellant knew the falsity of his misrepresentation at the time he made it and deliberately directed the same to the judge to mislead him is demonstrated by the elaborate detail with which, on September 13, 1965, appellant related to him the plane schedule of his trip to Chicago, and his later admission (October 13, 1965) that he had never made any arrangements for transportation to Chicago on September 14, 1965; his conflicting explanations concerning his misrepresentation; and his failure to explain the conflict of dates in entries in his office records and identify the handwriting thereof. The judge simply did not believe appellant’s testimony; he rejected appellant’s expía

Appellant’s misrepresentation of a fact to respondent Court for the purpose of obtaining a continuance was a deliberate deceit and a wilful obstruction of the orderly processes of respondent Court; an intentional violation of his duties as a member of the Bar and officer of the court, his conduct is denounced by law and constitutes contempt. Among others, the following acts in respect to a court are contempts of the authority of the court: “Misbehavior in office, or other wilful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service” and “Any other unlawful interference with the process or proceedings of a court.” (§1209, subds. 3, 8, Code Civ. Proc.) Further, the law imposes upon an attorney at law a duty “(d) To employ, for the purpose of maintaining the causes confided to him such means only as are consistent with truth, and never to seek to mislead the judge of any judicial office by an artifice or false statement of fact or law. ” (§ 6068, subd. (d), Bus. & Prof. Code.) “The presentation to a court of a statement of fact known to be false presumes an intent to secure a determination based upon it and is a clear violation of the quoted provision. [§6068, Bus. & Prof. Code.] . . . The conduct denounced by the Business and Professions Code is not the act of an attorney by which he successfully misleads the court, but the presentation of a statement of fact, known by him to be false, which tends to do so. It is the endeavor to secure an advantage by means of falsity which is denounced.” (Pickering v. State Bar, 24 Cal.2d 141 , 144-145 [ 148 P.2d 1 ].) Deceit, whether negative or affirmative in nature, may form the basis of a charge for contempt. (Daily v. Superior Court, 4 Cal.App.2d 127 , 131-133 [ 40 P.2d 936 ].)

Further, the court has inherent power to punish for acts committed in the immediate view and presence of the court where they impede, embarrass and obstruct the court in the discharge of its duties. (Raiden v. Superior Court, 34 Cal.2d 83 , 86 [ 206 P.2d 1081 ]; In re Shortridge, 99 Cal. 526 , 534 [ 34 P. 227 , 37 Am.St.Rep. 78 , 21 L.R.A. 755 ].) The enforcement of an order of contempt is for the maintenance

Appellant’s ability to comply with the order is demonstrated by his own testimony that instead of remaining in Los Angeles to be available for a resumption of Powers’ trial on September 15, 1965, he chose to place himself outside of the jurisdiction of the court by going to Washington, D.C., the day before in the hope of obtaining a bank charter for a group he represents; this he did wilfully and intentionally, for he admitted that if he was successful he anticipated that he would hold stock in the bank, become chairman of the board of directors and be retained as the bank’s lawyer. For his own personal advantage, by a deceit practiced on the court, appellant deliberately abandoned his client in the middle of a criminal trial in favor of a more lucrative representation elsewhere. Reverend Dawkins and Reverend Brookins discredited appellant’s claim of “emergency” requiring him to go to Washington on September 14, 1965, to prevent another race riot; it is clear that the urgency, if any existed, was to obtain the charter to promote his own selfish financial and personal interests. As an officer of the court, appellant not only deliberately violated a court order and

Appellant’s argument that the proceeding should have been initiated by affidavit or order to show cause presupposes that his acts constituted indirect contempt; he gives no reason for his suggestion that the act described in each count in the Findings and Order is not a direct contempt.

The procedure for direct contempt where the facts are within the knowledge of the court is summary and requires no affidavit or formal accusation. (Curran v. Superior Court, 72 Cal.App. 258 , 264 [ 236 P. 975 ].) “When a contempt is committed in the immediate view and presence of the court ... it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.’' (§ 1211, Code Civ. Proc.) When the contempt is not committed in the immediate view and presence of the court, an affidavit of the facts constituting the contempt must be presented to the court. This “contemplates a situation in which virtually none of the facts involved in the alleged contempt have occurred in the judge’s presence but have arisen entirely outside the courtroom.” (Arthur v. Superior Court, 62 Cal.2d 404 , 408 [ 42 Cal.Rptr. 441 , 398 P.2d 777 ].) An attorney’s absence from the court in violation of an order to appear, as set up in count II, is a direct contempt; all the relevant facts constituting the contempt occurred when he failed to appear, and the burden of offering an appropriate excuse is on him. (Chula v. Superior Court, 57 Cal.2d 199 , 203, 207 [ 18 Cal.Rptr. 507 , 368 P.2d 107 , 97 A.L.R.2d 421 ]; Lyons v. Superior Court, 43 Cal.2d 755 , 760 [ 278 P.2d 681 ] ; Arthur v. Superior Court, 62 Cal.2d 404 , 408 [ 42 Cal.Rptr. 441 , 398 P.2d 777 ].) “Where counsel fails to appear, however, the offensive conduct, to wit, the absence, occurs in the presence of the court. Thus, when an absent attorney reappears in the courtroom, due process should be satisfied if the judge confronts him with the charge and offers him a reasonable opportunity to explain. ’ ’ (Arthur

In what can hardly be called an argument, appellant cites numerous cases in support of the claim that his deliberate misrepresentation to the court in its immediate presence and view does not constitute direct contempt. Had appellant bothered to read the eases cited by him he would have discovered his erroneous citations, the nonexistence of one ease cited by him in 232 A.C.A. 868, and the subsequent Supreme Court opinion therein reported in 62 Cal.2d 487 [ 42 Cal.Rptr. 594 , 399 P.2d 50 ] (Inniss v. Municipal Court) and the distinction between those cases and the instant one. None of his authorities relates to a wilful misrepresentation, in fact, Gallagher v. Municipal Court, 31 Cal.2d 784 [ 192 P.2d 905 ] (erroneously cited at 31 Cal.App.2d 784 ), relied upon by appellant holds that counsel’s good faith insistence on the right to act in a proceeding, although he was legally in error, is not a contemptuous act, “ provided of course, that he does not resort to deceit or to wilful obstruction of the orderly processes” (p. 788); and none is in the least similar to, or controls our determination here. The facts relating to count I are related in the Findings and Order as occurring in the immediate view and presence of the court. They are supported by reporter’s transcripts of the material proceedings in People v. Powers in respondent Court.

Exhibit M shows that on September 13, 1965, in open court and in its immediate view and presence during the course of a trial, and in an endeavor to secure an advantage by means of falsity, appellant deliberately and wilfully stated as a fact that he was required to be in Chicago the next day (September 14, 1965), representing that he would fly to Chicago and return on September 14, 1965, and that September 15, 1965, “was all right” with him for resumption of the Poiuers trial; that relying thereon the judge granted the continuance and ordered him to return on September 35, 1965. The wilful misrepresentation made to secure an advantage occurred in the immediate presence of the court; the fact that the judge did not know that the representation was false until the next day (September 14, 1965), by virtue of a communication between appellant’s office and respondent Court, and on September 15, 1965, when appellant failed to appear, does not render the act of wilful misrepresentation any less a direct contempt. On September 14, 1965, between 3 and 3:30 p.m., when appellant, according to his representation to the judge,

Appellant completely ignores the reporter’s transcripts of the numerous hearings in respondent Court in claiming that he was not cited, informed of the charges or advised that he had a right not to testify. At the outset, on September 29, 1965, when appellant telephoned the clerk for a continuance of Powers, the latter, upon the judge’s direct instructions, advised him that the court was “reserving jurisdiction in this matter to issue a possible contempt citation,” there would be two eases before the court on September 30, 1965—Powers and “the matter between [respondent] court and George L. Vaughn as an officer of the court”—and the judge would discuss it with him the next morning. On September 30, 1965,

On October 13, 1965, at 8 :19 a.m., court convened and the judge advised appellant of the purpose of the hearing and the nature of the charges, reciting the circumstances material to each; then said, “I want to know exactly, if you care to tell the court, what happened during and around this period of time [September 14-15,1965] . . . Mr. Vaughn, if you care at this time to step forward and be sworn, I would like to hear from you. ...” He directed appellant’s attention to matters of concern to him and detailed what he would like to have explained. After several reporter’s transcripts (People v. Powers, September 13, 15, 29 and 30, 1965) had been received in evidence and given to appellant, the court ordered copies of the transcript of the then hearing to be given to him; then appellant asked the judge “. . . May I be sworn?” and he was. His testimony consisting of almost 90 pages of transcript, continued until 11:50 a.m. when the hearing was continued to permit appellant to bring in his secretary and office records.

On December 22, 1965, when court convened at 9 a.m., appellant was again advised by the judge of the charges; during the ensuing extended discussion between appellant and the court, he acknowledged that he understood the nature

Appellant’s exception to the failure of Judge Nebron to disqualify himself is not well taken; charged with the commission of a direct contempt, appellant could not urge his disqualification. “In a direct contempt, that is a contempt in the immediate presence of the court, the judge in whose presence the contempt was committed possesses the constitutional power to punish the offender summarily. [Citations.] Such power is necessary to preserve the integrity of the court. In such a case no question of the disqualification of the judge affronted by the direct contempt can arise. The necessities of the ease require that the affronted judge preside. ” (Turkington v. Municipal Court, 85 Cal.App.2d 631 , 635-636 [ 193 P.2d 795 ]; Briggs v. Superior Court, 211 Cal. 619 , 630 [ 297 P. 3 ] ; Blodgett v. Superior Court, 210 Cal. 1 , 10 [ 290 P. 293 , 72 A.L.R. 482 ].) Moreover, the record fails to show any partiality or prejudice on the part of the judge simply because there was a conflict between the testimony of appellant’s secretary and his clerk. In any event, the conflict was immaterial for appellant’s secretary testified that she never reported to anyone her conversation with the clerk. As to the judge’s statements concerning the credibility of Reverend Brookins, Judge Nebron expressed equal regard for appellant’s witness Reverend Dawkins.

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied October 4, 1967.