Wednesday, March 30, 2005
Court of Appeal Lifts Order That Man Have No Contact With Wife
Opinion Comes on Heels of Other Opinions Critical of Orange Superior Court Judge Pamela Iles
By a MetNews Staff Writer
The Court of Appeal in Santa Ana has relieved a wife-beater from an order that he have no contact with his spouse as a condition of probation.
Orange Superior Court Judge Pamela Iles last Jan. 13 imposed the condition on Ernest Flagg, 74, who had pled guilty in 2002 to misdemeanor charges of inflicting corporal injury to a spouse, elder abuse, and dissuading a witness from testifying. The condition was imposed after a petition was filed to declare Flagg in violation of his probation based on non-cooperation with his probation officer.
In addition imposing the new condition of probation, Iles issued a protective order barring Flagg from having any contact with his wife, Maxine Flagg, 86, “directly, indirectly, or through a third party except by an Attorney of Record.”
Iles later modified the protective order to permit Flagg to make two 10-minute phone calls to his wife each week, and later further modified the order to allow one half-hour monitored visit per week.
Statutory Provisions Examined
The Fourth District’s Div. Three, in granting writ relief to Flagg in an unpublished “By the Court” opinion filed Monday, noted that under Penal Code Sec.136.2, a stay-away order may be issued for “good cause.” Under Penal Code Sec. 1203.097(a)(2), such an order may be made as a condition of probation, “if appropriate,” the opinion said.
Pointing out that there were no new instances of violence since the 2002 incident, the appeals court said:
“Neither the transcripts of the proceedings conducted in open court or the proceedings detailed in the docket, (which spans a period of two and a half years) disclose any facts or circumstances to support a good cause belief by the court that harm, intimidation or dissuasion of the victim was either occurring, or reasonably likely to occur to justify issuing the protective order in this case.”
The jurist added:
“Without facts to support a finding of harm or future violence, we also find the requirement that Flagg have no contact with his wife is not ‘appropriate’….”
The opinion said the Office of District Attorney agreed with Flagg that the order was improper, under the circumstances.
The Court of Appeal entertained the writ petition after relief was denied by the Appellate Division of the Orange Superior Court. However, that court did side with Flagg to the extent of directing Iles to vacate her order striking Flagg’s statement of disqualification.
The members of Div. Three hearing the case were Presiding Justice David Sills, Justice Kathleen O’Leary, and Justice Eileen Moore.
Iles’s conduct in domestic violence proceedings has drawn criticism from that division in other recent cases.
Peremptory Challenges Stricken
The court on Sept. 30 granted a writ petition ordering Iles to accept a peremptory challenge which she had denied as untimely in a domestic violence case. The decision in that case, Hemmingway v. Superior Court, was published; decisions in five other cases filed that day which disapproved Iles’s rejection of challenges as untimely were not published.
At the time Iles conducted the initial arraignment of defendants, she purported to assign the case to herself for all purposes, later finding untimely motions pursuant to Code of Civil Procedure Sec. 170.6 to disqualify her from presiding at trial. Writing for the panel, O’Leary said a magistrate lacks the power to make an all-purpose assignment.
She commented that the right to disqualify a judge is a significant one and that judges “must refrain from any tactic or maneuver that has the practical effect of diminishing” it.
O’Leary went on to say:
“This record suggests that, despite the best of intentions, a judicial officer can become so embroiled in the cause of domestic violence and can develop such a sense of ownership that an appearance of impropriety is created.”
Due Process Denial
On Feb. 24, in a published opinion by Acting Presiding Justice William Rylaarsdam, a petition for writ of habeas corpus was granted to a wife-beater based on Iles’s violation of his due process rights. When he came into court seeking modification of his terms of probation, Iles referred him to the court administrator, who spoke with the man and advised Iles that he “was unwilling to pay a donation of $1,000.00 to the victim witness assistance fund.”
Without making inquiry of the probationer, Iles ordered him taken into custody immediately and held without bail pending a probation revocation hearing, which she set a month off.
Rylaarsdam said in In re Wagner that it appeared that “Judge Iles’s precipitous order remanding petitioner to custody, without affording him an opportunity to respond to the charges made by the judicial assistant, was motivated by anger.”
He noted that she filed a return in the writ proceeding, represented by private counsel. The jurist wrote that this “contradicts her function as a dispassionate fact finder” and said:
“The circumstances here lead us to conclude that in the interest of justice, and if petitioner so requests, further proceedings herein be heard before a trial judge other than Judge Iles.”
Iles, 60, was appointed to the South Orange Municipal Court in 1983 by then-Gov. Jerry Brown, and became a Superior Court judge in 1998 when the Orange County trial courts merged.
Copyright 2005, Metropolitan News Company