Lloyd v. Superior Court (1982) 133 Cal.App.3d
896 , 184 Cal.Rptr. 467
[Crim. No. 13836. Court of Appeals of California,
Fourth Appellate District, Division One. July 15, 1982.]
MICHAEL B. LLOYD, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent.
(Opinion by Brown (Gerald), P. J., with Cologne and Staniforth, JJ., concurring.)
Swarner, Finn & Barnett and Dennis M. Finn for Petitioner. [133 Cal.App.3d
Daniel B. Hunter, Paul E. Bell, Thompson & Colegate, James D. Ward and
Sharon J. Waters as Amici Curiae on behalf of Petitioner.
Donald L. Clark, County Counsel, Lloyd M. Harmon, Jr., Chief Deputy County
Counsel, and Nathan C. Northup, Deputy County Counsel, for Respondent.
BROWN (Gerald), P. J.
Michael B. Lloyd, an attorney, defended one of a trio of defendants in a death
penalty case which was transferred from Riverside County to San Diego County.
During the trial, counsel for another of the defendants was cited for contempt.
On December 4, 1981, after a hearing, counsel was found in contempt and sentenced
to five days in jail with a $500 fine. Lloyd was not present at the hearing.
On December 10, 1981, the following letter signed by Michael B. Lloyd appeared
in the Riverside [CA] Morning Press-Enterprise:
"Editor, the Press-Enterprise: ... On December 1, 1981, the San Diego
Superior Court terminated the Fourth and Fourteenth Amendments to the United States
Constitution. On that black Friday the Founding Fathers cried. On that day the
prejudice that the Constitution battles against stole the treasure of the land.
The wealth that was taken, so notoriously, so casually, is known to us all as
'due process of law.'
"On that infamous day, an attorney stood before the bench in San Diego
Superior Court, charged with the crime of contempt of court--it probably would
be better described to the layperson as a violation of an order by a judge. This
attorney stood before a judge and asked to have the opportunity to put on a defense
to this crime. He was denied.
"The judge then sentenced this man to five days in jail and a $500 fine,
stating that 'it's difficult to conceive of any action by an attorney that is
more contemptuous.' I cannot think of any action by the government more contemptuous
than denying due process of law. This sort of prejudice isn't just a closed mind
by a particular judge; it's an open wound on the body of all of us. [133 Cal.App.3d
"To be sure, my opinion of the actions of this attorney are not reflected
in this letter, and should not be taken as justification or recrimination. The
real issue can be succinctly phrased in that well-used aphorism: 'To be tolerant
of prejudice is to be part of it.' None of us can afford to be tolerant of the
actions of any governmental employee who abuses the legal system.
"Of course each person must decide for himself how to react to the actions
of the judiciary in San Diego and how to change it. Some might decide that living
in such a country without due process of law is intolerable. Some may change it,
some may leave.
"For those of you who would leave San Diego for Riverside: you need no
key to the city; all doors are open to you, all hands are outstretched in welcoming
greeting, all hearts the happier that you have come to our community. For you
see, us Riversiders, with all our smog, all our cowboy boots, and all our small
town ways, keep the bounty of due process of law closest to our hearts."
An order to show cause re contempt was issued to Lloyd. When the matter was
heard, stipulations were entered in the record as follows: the letter did not
name the judge or the lawyer in contempt; Lloyd did not identify himself as an
attorney for one of the codefendants; the first contempt matter was not pending
in superior court at the time the letter appeared; the Riverside paper has no
direct circulation or sales in San Diego County; there were no disturbances or
physical interference in the courts as a result of the letter; the only reaction
in the courts was the issuance of the order to show cause and responses to it.
The superior court, sua sponte, judicially noticed the proceedings giving rise
to the first contempt citation and the hearing on December 4. It concluded Lloyd's
letter was false and malicious, showed disrespect to the judiciary and was an
act of offensive personality against the court. Lloyd was fined $500.
 Lloyd petitioned this court for a writ of habeas corpus fn. 1 and for a
stay of the fine.
 A court has the inherent power to make sure judicial proceedings are conducted
in a manner consistent with the orderly administration [133 Cal.App.3d 900] of
justice and to punish those who show disrespect or disrupt the proceedings (Raskin
v. Superior Court (1934) 138 Cal.App. 668, 669-670 [33 P.2d 35]). The Legislature
has codified this principle by granting power to every court to provide for the
orderly conduct of proceedings (Code Civ. Proc., § 128) and by setting out
various acts and omissions which constitute contempt (Code Civ. Proc., §§
1209-1222; Pen. Code, § 166; Bridges v. Superior Court (1939) 14 Cal.2d 464,
474 [94 P.2d 983]). Case law defines contempt as "an act ... committed in
or out of [the court's] presence--[that] tends to impeach, embarrass or obstruct
the court in the discharge of its duties." (In re Shortridge (1893) 99 Cal.
526, 532 [34 P. 227].)
 Lloyd's alleged contempt arises from the publication of a letter to the
editor and, thus, is asserted as an indirect or constructive contempt committed
outside the presence of the court. He argues his act is protected by the principles
of free speech. County counsel says the only difference between direct and indirect
contempt is the punishment (Code Civ. Proc., § 1211 et seq.). However, "[u]nlike
a newspaper, a courtroom is not a proper forum for free-wheeling exchange of ideas.
An attorney's freedom of speech in this setting must be tempered to insure that
courts of law accomplish that for which they were created--dispensing justice
in a reasonable, efficient and fair manner." (In re Buckley (1973) 10 Cal.3d
237, 254, fn. 22 [110 Cal.Rptr. 121, 514 P.2d 1201, 68 A.L.R.3d 248], italics
ours.) Although there may be times when acts or omission are contemptuous whether
in or out of the court, the situation described here is not one of them. Petitioner
is an attorney but he was not a party, witness or counsel in the matter he was
discussing; in signing the letter he did not identify himself as an attorney,
which suggests he was writing in his private capacity as a concerned citizen;
the matter about which Lloyd wrote was no longer pending in the superior court
at the time the letter was written; the letter did not name the attorney or the
judge involved in the proceedings Lloyd was criticizing. If his action was contemptuous,
it should not be judged by the same standards as direct contempt.
In considering the question of newspaper articles critical of the judiciary,
case law has recognized the delicate balance between freedom of speech and the
administration of justice. In Bridges v. California (1941) 314 U.S. 252 [86 L.Ed.
192, 62 S.Ct. 190, 159 A.L.R. 1346], the contempt convictions were based on comments
about pending litigation which appeared in the press. Recognizing the court's
power to find people in contempt, the court pronounced the general rule that freedom
[133 Cal.App.3d 901] of speech cannot be curtailed unless it creates a clear and
extreme and present danger which is imminent (Pennekamp v. Florida (1946) 328
U.S. 331 [90 L.Ed. 1295, 66 S.Ct. 1029];Craig v. Harney (1947) 331 U.S. 367 [91
L.Ed. 1546, 67 S.Ct. 1249]; People v. American Automobile Ins. Co. (1955) 132
Cal.App.2d 317 [282 P.2d 559]). Here the court proceedings had been concluded
when the letter was printed. There was no threat of tainting these contempt hearings
or introducing unfairness into the proceedings. As to the immediacy of the danger,
this question has no meaning because the hearings had concluded. fn. 2 In fact,
there is a stipulation that publication of the letter did not cause any disturbances
or physical interference in the operation of the courts. As to the letter itself,
it is not an attempt to obstruct justice. It is the expression of an opinion;
to some it is intemperate, in poor taste and suggests immaturity of the author;
but, it is not dangerous.
County counsel argues Lloyd's statements regarding a lack of due process were
false and, thus, his letter was clearly an attack on the integrity of the court.
However, the amount of truth contained in the published material is not a factor
in determining whether there is a clear and present danger. (SeePennekamp v. Florida,
supra, 328 U.S. 331.) County counsel suggests Lloyd had an opportunity to calculate
and to choose his words, thereby making his act more blameworthy. Again, these
are not factors to be considered in finding a person in contempt.
County counsel says Lloyd, as an attorney and officer of the court, may be
held to a higher standard of conduct than a layperson. However, the cases cited
by counsel deal with disciplinary proceedings under the State Bar Act, not with
contempt. (Bus. & Prof. Code, §§ 6067, 6078;Ramirez v. State Bar
(1980) 28 Cal.3d 402 [169 Cal.Rptr. 206, 619 P.2d 399]; Hogan v. State Bar (1951)
36 Cal.2d 807 [228 P.2d 554].)
County counsel argues a knowingly false statement or a statement made in reckless
disregard of the truth should be punished and suggests petitioner made such statements
because he was not present at the contempt hearing. Even if Lloyd ought to be
punished, it should not be by contempt because his statements do not fall within
the United States [133 Cal.App.3d 902] Supreme Court guidelines for contempt set
out in Bridges and its progeny. The county's reference to knowingly false statements
may refer to cases involving criticism in the press of public figures in the context
of civil libel actions. To prevail in these cases it is necessary to show actual
malice or a high degree of recklessness in making false statements. (See New York
Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d
1412];Garrison v. Louisiana (1964) 379 U.S. 64 [13 L.Ed. 2d 125, 85 S.Ct. 209].)
But this is not a libel action.
A court may punish an attorney for contempt even though the attorney might
also be subject to disciplinary proceedings. However, there is no authority for
county's suggestion here that Lloyd should be found in contempt because he was
from out of town and not a member of any local bar association.
There is no factual basis to support the finding of contempt. The order is
Cologne, J., and Staniforth, J., concurred.
FN 1. A writ of habeas corpus is not appropriate when the petitioner is
not illegally confined. We have considered the petition as a writ of review (Grant
v. Superior Court (1963) 214 Cal.App.2d 15 [29 Cal.Rptr. 125]).
FN 2. County counsel suggests, because the trial in which both counsel
were appearing was one of high visibility where venue had been changed, Lloyd
hoped to inflame and dispose the public to the belief San Diego judges are prejudiced
and abuse the legal system. Even assuming all this is true, there is no showing
it had any affect on the trial in progress.