Edmunds v. Won Bae Chang

OPINION OF THE COURT BY

ABE, J.

The petitioner, representing defendant Steven M. Hayashida as counsel in Criminal-Case No. 44262 in the First Circuit Court, was found in contempt by Judge Robert Won Bae Chang, the presiding judge (herein respondent), and he petitioned this court for a writ of prohibition to prevent respondent from proceeding any further on the Order and Judgment of Contempt.

The excerpt of the transcription shows the proceeding before Judge Chang as follows:

BAILIFF: The Court of the Honorable Robert Won Bae Chang is now in session.

Please be seated.

(THE FOLLOWING PROCEEDINGS COMMENCED PRIOR TO THE CALLING OF THE CASE BY THE CLERK)

THE COURT: Please be seated.

MR. EDMUNDS: Your Honor, -

THE COURT: Please be seated.

MR. EDMUNDS: May I approach the bench, your Honor?

THE COURT: Please be seated.

MR. EDMUNDS: Your Honor, I have an —

THE COURT: Please be seated, Mr. Edmunds.

MR. EDMUNDS: — issue I would like to raise.

THE COURT: The Court orders you to be seated, Mr. Edmunds.

MR. EDMUNDS: Your Honor, I'd like the record —

THE COURT: If you do not be seated right now, Mr. Edmunds, the Court will find you in contempt of Court.

MR. EDMUNDS: May I approach the bench, your Honor?

THE COURT: You are found in contempt of Court, Mr. Edmunds.

The Coui't will stand at recess.

(RECESS HAD)

It is stated in the affidavit executed by the petitioner that he was “in a low and courteous tone of voice seeking to state for the record an objection which he believed was necessary to an adequate defense of his client, and which objection he believed would be waived if not stated at said time.” He also stated in the affidavit that there was necessity to make an objection and to give the reason for the objection at the time he attempted to do so as he believed that the objection and reasons could only “be stated in the absence of the jury.” However, it would appear that it was impossible for the petitioner to do so because as stated in his sworn statement “the entire jury panel called for said case was present in the courtroom at the time.” Of course, that contradiction of the purpose of making the objection at the particular time is not material to the solution of the issue presented here.

It cannot be overly emphasized that it is essential for the maintenance of justice that the bar be courageous and free from intimidation, and that it is equally important to our judicial system that a judge be just, firm and effective in maintaining order in his court.

Here, the record shows clearly that before the case was called to order, the petitioner made several attempts to gain the floor and speak in spite of the judge’s request “Please be seated.” The insistence of the petitioner to be heard by the court before the case had been called to order by the clerk of the court interfered with the opening of the court session and delayed the consideration of the case. Though, as contended by the petitioner, he might have been attempting to make the objection and reasons therefor “in a low and courteous tone of voice” it does not mean that by doing so he did not prevent the judge from calling his court to order to consider the case.

It is very important under our judicial system that a lawyer’s presentation of his client’s case strenuously and persistently should not be deemed a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge’s performance of his duty. In re McConnell, 370 U.S. 230, 236, (1962). Also though In re McConnell “cannot be read as an immunization for all conduct undertaken by an attorney in good faith representation of his client, it does require that attorneys be given great latitude in the area of vigorous advocacy. Appellate courts must ensure that trial judges . . . are not left free to manipulate the balance between vigorous advocacy and obstructions so as to chill effective advocacy when deciding lawyer contempts.” In re Dellinger, 461 F.2d 389, 398 (7th Cir. 1972).

Burnham H. Greeley (.Padgett, Greeley, Marumoto & Steiner of counsel) for petitioner. Robert P. Jaress, Deputy Attorney General, (George Pai, Attorney General, with him on the brief) for respondent.

Under our judicial system “it is the lawyer’s duty to make his objections and other points in his client’s behalf, [and} it must follow that he is entitled to a timely opportunity to make them. From this it necessarily follows that the judge is without power to foreclose that opportunity by any order or admonition to sit down or to be quiet or not to address the court. The power to silence an attorney does not begin until reasonable opportunity for appropriate objection or other indicated advocacy has been afforded.” Cooper v. Superior Court, 55 Cal.2d 291, 298, 359 P.2d 274, 278 (1961).

Here, as stated above, the case had not been called and the action of the petitioner interfered with the opening of the court session. Thus, as it was not the proper time for the petitioner to make the objection, the cases above mentioned are inapposite.

The trial judge decided that the persistent action of the petitioner prevented him from opening the court and getting down to business before it. We cannot disagree with the trial court that the petitioner’s insistence, though made in a courteous and low tone of voice,¹ to be heard at an inopportune time disturbed and prevented the calling of the court to an orderly session and therefore was contemptuous.

Writ of prohibition is denied.

1 The fact that the statements were made in a low and courteous tone of voice is not the sole determinative factor to be considered. It is often said that deadliest poisons come in sweet packages.