Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1987)

No. 87-6184.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and DAVID R. THOMPSON, Circuit Judges, and PHILIP M. PRO^** , District Judge.

MEMORANDUM^* 

JOSEPH DANIEL DAVIS appeals from an order of the district court dismissing his consolidated Petitions for Writs of Habeas Corpus. We have jurisdiction under 28 U.S.C. § 2253.

DAVIS was the attorney for a party plaintiff in a civil action tried from September 24, 1986 to October 17, 1986, before the Honorable Dzintra I. Janavs, Judge of the Superior Court of the State of California for the County of Los Angeles. During the course of trial, DAVIS was twice held in contempt of court for conduct occurring on October 1 and October 7, 1986. As punishment for the first judgment of contempt, DAVIS was ordered to confinement in the Los Angeles County Jail for one day. For the second judgment of contempt, DAVIS was ordered to confinement for a term of two days and to pay a fine of $500.00.

DAVIS unsuccessfully sought habeas corpus relief from both contempt convictions in the California Court of Appeals and California Supreme Court. On January 12, 1987, DAVIS filed separate Petitions for Writs of Habeas Corpus pursuant to 28 U.S.C. § 2254 in United States District Court for the Central District of California. The actions were consolidated before the Honorable Alicemarie H. Stotler, United States District Judge. On July 14, 1987, Judge Stotler entered judgment adopting the findings, conclusions and recommendations of the Honorable Ronald W. Rose, United States Magistrate, and dismissed DAVIS' consolidated Petitions for Writs of Habeas Corpus with prejudice. ...

Execution of the sentences for contempt ordered by Judge Janavs has been stayed pending this appeal.

The first act of contempt for which DAVIS was cited is described in the Judgment and Order Re Contempt entered by Judge Janavs on October 6, 1986, as follows:

2. Whereas throughout the trial, both in chambers' conferences and on record the court had admonished, instructed and ordered counsel not to address each other in front of the jury in court, not to interrupt each other and with respect to objections, to state that they object and the grounds for the objection, without argument and elaboration and the record expressly shows that:

a) On September 24, 1986, (having observed counsel's conduct over a period of time in chambers), the court, among other things, instructed counsel outside the presence of the jury that they are not to address each other in court in front of the jury;

b) On September 25, 1986, Davis outside the presence of the jury but before the court stated "I don't want to sink to his level. The true Gary Sawtelle," and the court admonished Davis, among other things, that the comment was not called for. Later the same day, having observed Davis shake his head from side to side in front of the jury during defendant's opening statement and one time, while doing so, lean over to plaintiff and whisper "that's not true" loudly enough for the court to hear, the court admonished Davis that this kind of conduct was not acceptable, and if it continued, other measures would have to be taken, and objections could be made, but such body language was to be avoided.

c) On September 29, 1986, the court admonished counsel not to make derogatory comments about opposing counsel. When Davis, instead of objecting to a question posed by defense counsel, burst out before the jury with a reference to an accident not before the court, "Mr. Nunes who lost four fingers," and persisted in a further reference to Mr. Nunes, though the court directed counsel to approach the bench, the court again instructed Davis that objections before the jury would have to be limited to stating "objection" and the grounds, such as "hearsay." The court noted the disruptiveness of such outbursts and warned that in future, contempt will be considered.

d) On September 30, 1986, the court admonished counsel not to interrupt each other, and when Davis persisted, cited him for contempt for violation of the court order, but accepted Davis' explanation that his conduct was not intentional, noting that such excuse may not be convincing in the future.

3. Despite the above, on October 1, 1986, in view and presence of the court and before the jury, Davis turned to defense counsel who had barely completed an objection and as the court opened its mouth to sustain the objection, blurted out in a sarcastic and contemptuous tone "He (referring to plaintiff) can think anything."

Such conduct was in violation of the court's previous admonitions and orders and interrupted the course of the proceedings and the court cited Davis for contempt.

4. On being cited for contempt, Davis was given an opportunity to respond to the contempt charge and, in essence, stated that his comment was to give guidance to the court and that other judges customarily permit such comments, and he was attempting to avoid a side bar conference. Davis did not apologize, and admitted that his conduct was in violation of the court's admonitions and orders.

5. The court after considering Davis' explanation, his admissions and failure to apologize, found that his conduct was wilful and disruptive and bordering on misconduct and in violation of the rules and orders previously made herein.

The second act of contempt for which DAVIS was cited occurred during trial on October 7, 1986, wherein the following colloquy occurred between DAVIS and Judge Janavs:

MR. DAVIS: Admittedly it's not as formal of a statement, but it does have a question mark at the end of it, so I think it is a question.

Frankly, Your Honor, that was perhaps the key thing I'm offering this man's deposition for, is that he agrees with me that machine NO. 10, palm buttons and foot switch, is an ideal machine for safety sake.

THE COURT: But that's not the issue whether it's an ideal situation, for one thing, and, secondly, it is put in a statement form, and I'm going to sustain the objection to that--

MR. DAVIS: Your Honor, Your Honor, Your Honor--

THE COURT: You have interrupted me before I finished, Mr. Davis.

Can you wait until I finish, please.

How many times do I have to say--

MR. DAVIS: Your Honor, let me--

THE COURT: You again interrupt me.

MR. DAVIS: Your Honor, again--

THE COURT: Come on, Mr. Davis.

I'm holding you in contempt of court right now.

We're going to take a 15-minute recess, and then I will hear from you in response to my ordering you in contempt again.

Following a brief recess, the following colloquy occurred between Judge Janavs and DAVIS:

THE COURT: Okay.

Mr. Davis, the Court has cited you for contempt for conduct which occurred in the immediate view and presence of the Court, that conduct consisting of your persistently interrupting the Court as it was trying to speak and raising your voice at the Court to where you were shouting at the Court.

The Court views this conduct as interruptive of orderly proceedings, contemptuous, disrespectful, insulting, and an affront to the dignity of the Court and in violation of numerous admonitions and orders that have been given already and including, I believe, twice already this morning.

You may respond and explain.

MR. DAVIS: I'll respond by first stating I didn't--I didn't shout at the Court. I don't care what you think, I didn't shout at the Court.

Secondly, Your Honor, I'm trying to make a point. The point is you are no different than Mr. Sawtelle a moment ago. You both speak, and then you finish a sentence, and then you decide to have another sentence and then another thought and then another thought. You interrupted him a moment ago in exactly the same fashion that I interrupted you, because you thought he was finished speaking, just as I thought you were finished speaking.

The Court has a habit of sometimes explaining notions in lengthy sentence after sentence. There's no way I can tell for certain when you're finished. Think you're finished, because I surely see your point, but sometimes the Court wishes to say the same thing in different language time and again, and there is no way I could tell you are finished.

The record will clearly not reflect that I broke you off in midsentence at any time today or any time probably at all.

Every time the Court--I shouldn't say that.

Almost every time, especially since the first go-around a few days ago, that you have thought that I have interrupted you, it's 100 percent of the time been when I had a reasonable expection, your having completed a sentence and a thought, that there was some air time for me.

You are not in the habit of, nor are any civilized people I know of, raising your hand at the end of a statement by the Court and saying, "You now may begin." We'll never get anywhere that way. You don't do that. That's not the way any of us talks to one another, and what can I say?

I think the Court is wrong.

THE COURT: Okay.

The Court has heard your explanation and finds that your conduct was willful and in violation of Court orders, and it was contemptuous.

The Court will sentence you for this contempt to two days in county jail and suspend that sentence until after this trial is over and also will fine you $500 on that.

Judge Janavs' Judgment and Order Re Contempt entered October 11, 1986, characterized the above-referenced conduct of DAVIS as follows:

2. Whereas Davis had been admonished and ordered throughout the trial, among other things, not to interrupt other counsel and the court, and whereas on October 7, 1986, he persisted in interrupting the court and raised his voice until he was shouting at the court, the court cited Davis for contempt for conduct occurring in view and presence of the court and called a recess.

3. After recess, Davis was given an opportunity to respond and though he did not deny raising his voice, denied shouting and interrupting the court.

4. The court having considered Davis' response, including his false denial of what occurred in open court in the presence of the court's staff and other, found Davis' conduct was wilful, in violation of the court's orders and contemptuous, and that such conduct was disruptive of orderly court proceedings and an affront to the dignity of the court.

The issues raised in DAVIS' Petitions for Writs of Habeas Corpus were properly framed by the district court, and restated by DAVIS in this appeal, as follow:

1. Whether the state court exceeded the limits of contempt powers established by the United States Supreme Court, thereby depriving DAVIS of due process of law.

2. Whether DAVIS' acts at trial constituted contempt.

3. Whether DAVIS' conduct obstructed justice.

4. Whether there was sufficient evidence of intent to obstruct justice.

Additionally, DAVIS contends on appeal, as he did before the district court, that the transcripts and court orders from the state court proceedings which comprise the record on appeal in this case, are insufficient to support the orders of contempt.

The district court found the record sufficient, and in rejecting DAVIS' arguments, found adequate evidence to support the orders of contempt and no deprivation of due process.

We review de novo the district court's denial of DAVIS' Petitions for Writs of Habeas Corpus. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir. 1986).

The essence of DAVIS' appeal is that the state court exceeded the limit of its contempt power, thereby depriving him of his constitutional right to due process because his conduct did not constitute contempt. Under 28 U.S.C. § 2254(d) (7), one of the grounds for habeas relief is that the petitioner was denied due process in the state court proceeding. In Weiss v. Burr, 484 F.2d 973, 980 (9th Cir. 1973), cert. denied, 414 U.S. 1161, 94 S. Ct. 924 (1974), the court found that the "due process clause does permit the states to use the summary contempt power to maintain the integrity of their courts, but, at the same time, it places limitations upon the exercise of that power." We therefore consider whether DAVIS' actions constituted contempt, and whether the state court's exercise of contempt power violated due process.

At the outset, we reject DAVIS' argument that the record before the Court is insufficient to determine the issues raised. The Judgments and Orders Re Contempt entered by Judge Janavs, together with the trial transcript excerpts attached thereto, provide an entirely adequate basis on which to decide this appeal.

We reject as well, as did the district court, DAVIS' argument that the four elements required for a finding of contempt as set forth in United States v. Seale, 461 F.2d 345 (7th Cir. 1972), set the standards by which DAVIS' conduct in this case must be evaluated.¹  United States v. Seale, 461 F.2d at 366, addressed the elements required to support a contempt conviction under the substantive contempt powers of federal courts contained in 18 U.S.C. § 401(1). The Supreme Court has held that exercise of any broader contempt power than that allowed by Section 401 "would permit too great inroads on the procedural safeguards of the Bill of Rights," In Re Michael, 326 U.S. 224, 227, 66 S. Ct. 78, 79, 90 L. Ed. 30 (1945). Therefore, although Section 401 and decisions construing that statute must be seen as marking the outer limits of state contempt power, Edmunds v. Chang, 365 F. Supp. 941 (D.Hawaii, 1973), reversed on other grounds, 509 F.2d 39 (9th Cir. 1974), cert. denied, 423 U.S. 825, 96 S. Ct. 39 (1975), we must examine the record in this case in light of the California contempt statute set forth in Section 1209 of the California Code of Civil Procedure which provides in pertinent part as follows:

(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

1. Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding;

2. A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding;

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5. Disobedience of any lawful judgment, order or process of the court.

Attorneys have the duty to protect the interests of their clients and have a right to press legitimate arguments and to protest erroneous rulings. Gallagher v. Municipal Court, 31 Cal. 2d 784, 786, 192 P.2d 905 (1948). However,

[T]he latitude allowed an attorney representing a client's interests does not extend to deliberate defiance of a judge's direct and explicit orders. We have not the slightest doubt that flouting a trial judge's commands is the essence of obstructing the administration of justice.

Commonwealth of Pennsylvania, et al., v. Local Union 542, International Union of Operating Engineers, et al., 552 F.2d 498, 509 (3rd Cir. 1977), cert. denied, 434 U.S. 822, 98 S. Ct. 67, 54 L. Ed. 2d 79 (1977); accord, In re Gustafson, 650 F.2d 1017, 1020 (9th Cir. 1981).

" [C]ase law establishes that a direct order of the trial judge fixes the limits of proper advocacy: the vigor permissible in representing a client's interests has never included the flouting of a judge's rulings. Dunn v. United States, 388 F.2d 511, 513 (10th Cir. 1968); In re Osborne, 344 F.2d 611, 615 (9th Cir. 1965)." Commonwealth of Pennsylvania, 552 F.2d at 506. Failure to yield respectfully to the rulings of the court following repeated warnings, constitutes a contempt of the authority of the court. Hallinan v. Superior Court, 74 Cal. App. 420, 240 P. 788 (1925); see also Fisher v. Pace, 336 U.S. 155, 69 S. Ct. 425 (1949), reh'g denied, 336 U.S. 923, 69 S. Ct. 653.

In analyzing a challenge to the sufficiency of the evidence to support DAVIS' contempt convictions, the factual findings by the state court are entitled to a "high measure of deference." Sumner v. Mata, 449 U.S. 539 (1981). In a habeas proceeding, before rejecting a state court's factual findings, a federal court must "conclude that the state court's findings lack even 'fair support' in the record." Marshall v. Loneberger, 459 U.S. 422, 432 (1983). A review of the record before the Court persuades us that both convictions for contempt should be upheld.² 

With respect to the first citation for contempt occurring on October 1, 1986, the record shows that DAVIS, having been repeatedly admonished by the court not to address opposing counsel in front of the jury, not to interrupt opposing counsel and to state his objections without argument, nonetheless interrupted the course of the proceedings by making a statement to opposing counsel in the presence of the judge and jury. The thrust of DAVIS' misconduct was not only the specific words spoken, but the tone in which they were uttered and in his failing to obey the trial court's specific admonitions.

Similarly, with regard to the second citation for contempt occurring on October 7, 1986, the record demonstrates that DAVIS repeatedly interrupted the trial judge to the point of shouting at the court while Judge Janavs was in the process of ruling on an evidentiary objection.

The conduct exhibited by DAVIS on both occasions clearly falls within the proscriptions of California Code of Civil Procedure Section 1209(a) (1) and (5), and fully supports the Judgments and Orders Re Contempt entered by Judge Janavs.

DAVIS' arguments that his contempt convictions should be reversed because there is no evidence that his conduct either obstructed justice or that he intended to obstruct justice must also fail. We have previously held that fourteenth amendment due process demands some showing of intent for conviction of contempt, Hawk v. Cardoza, 575 F.2d 732 (9th Cir. 1978), and have adopted the following statement from the seventh circuit in this regard:

... [A]n attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially the heat of controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.

Hawk v. Cardoza, supra, at 734-35 (citing In re Dellinger, 461 F.2d 389, 400 (7th Cir. 1972).

We have also required some sort of actual damaging effect on judicial order before one may be held in criminal contempt. See Weiss v. Burr, supra, at 979-82 and Hawk v. Cardoza, supra, at 735.

However, as we stated in Hawk v. Cardoza, 575 F.2d at 735, an attorney's first amendment and due process rights, and the sixth amendment rights of his client, "must be balanced against the need for order in the trial process. The need for judicial order is not fixed but must be considered in the context of each case. The length of a trial, surrounding controversy, prior warnings from the trial judge and prior conduct of the contemnor are among factors which must be considered in assessing the validity of summary contempt citations."

In the context of this particular case, and in light of the repeated admonitions given by the trial court to DAVIS prior to the contemptuous conduct for which he was cited, we find the necessary evidence of intent and actual obstruction to support the convictions for contempt.

We therefore AFFIRM the district court's dismissal of the consolidated Petitions for Writs of Habeas Corpus.