Merritt Disgraces Herself; Times Shows Timidity; PD’s Office Files Sham Brief

Friday, August 20, 2010

Page 6

EDITORIAL

Merritt Disgraces Herself; Times Shows Timidity; PD’s Office Files Sham Brief

Div. Five of this district’s Court of Appeal yesterday made the right decision—the only conceivable decision—in directing Los Angeles Superior Court Judge Hilleri Merritt to vacate her order restraining the Los Angeles Times from publishing photographs of a defendant which were taken in her courtroom with her consent.

Under decisions of the United States Supreme Court, such a prior restraint would have to be supported by “exceptional circumstances” such as the need in wartime to block “the publication of the sailing dates of transports or the number and location of troops.”

No such circumstance existed.

On Aug. 4, Merritt said that a Times photographer could take photos during an arraignment and preliminary hearing-setting, granting his application pursuant to California Rules of Court, rule 1.150. She then learned that another judicial officer had previously decided against extended coverage. Merritt not only barred further photographing, but ordered that the shots already taken by the Times photographer not be published.

That was a blunder, and so obviously a blunder that no judge should have made it.

What happened after that was a failure on three fronts to respond appropriately.

erritt failed to rescind the order the following day, notwithstanding that at a hearing that morning, lawyers for the Times presented to her authorities showing—and showing conclusively—that what she did was unlawful.

To restrain publication, there must be a “clear and present danger.” Merritt’s mere supposition, expressed at the Aug. 5 hearing, that the defendant might be prejudiced by a photo of him in jail garb and in the security enclosure in the courtroom plainly, inescapably, did not meet the test, laid down by the nation’s highest court.

Merritt could hardly contend to the contrary. On Aug. 6, this same judge, in another case, gave consent to the same Times photographer to take photos of an alleged mass murderer in jail attire in the lock-up area of her courtroom.

That same day, a Friday, the Times filed its petition for a writ of mandate.

Responding with commendable alacrity, Div. Five issued an alternative writ the following Monday, that is, on Aug. 9, and commanded that the order restraining publication be vacated, or that cause be shown the next day why a peremptory writ should not be granted.

The alternative writ cited four cases, two from the United States Supreme Court, two from the California Court of Appeal. Anyone with even a smidgen of legal training, after perusing those cases, should have appreciated the impermissibility of the Aug. 4 order. Yet, Merritt did not budge.

Judges do generally step back from writ proceedings and let the real party in interest defend an order, if it sees fit. By not rescinding her order, Merritt paved the way for the Office of Public Defender, which favored the order, to file a return to the Times’ petition. Such detachment is appropriate—in most circumstances. Here, however, Merritt was surely cognizant by that time of the erroneousness of her order and, moreover, of the magnitude of her error. She was doing something that had been held impermissible by the nation’s highest court even when national security was at stake (in the Pentagon Papers case): barring publication by a newspaper of material in its possession.

The circumstances demanded immediate recantation by Merritt of her order.

By failing to lift that hasty, ill-conceived order of Aug. 4 even after cases were drawn to her attention by Times attorneys and by the Court of Appeal which mandated an about-face, Merritt knowingly (assuming, as we do, ability on her part to comprehend the meaning of judicial opinions) defied the law.

Canon 1 of the Code of Judicial Ethics specifies that a “judicial decision or administrative act later determined to be incorrect legally is not itself a violation of this Code.” If it were otherwise, every reversal would justify a Commission on Judicial Performance investigation. As the California Supreme Court explains in its 1999 decision in Oberholzer v. Commission on Judicial Performance, “a judge must be free not only to make the correct ruling for the proper reasons, but also to make an incorrect ruling, believing it to be correct.” On the other hand, it holds that “abuse of authority” or “intentional disregard of the law” does warrant commission action.

Merritt may have simply made a good-faith, though foolish, call on Aug. 4—but once she was made aware that she had abused her authority by issuing an order she was bereft of authority to make, her action in keeping that order in place constituted an intentional disregard of the law.

Too, she violated Canon 2 (A judge shall respect and comply with the law”) and Canon 3 (“A judge shall be faithful to the law”).

Merritt should be publicly admonished.

he Times cares enough about vindicating rights under the First Amendment and Art. I, §2 of the California Constitution as to have pursued the matter in the Court of Appeal. For that, it is to be commended.

However, its timidity in failing to publish any of the shots taken by its photographer is regrettable.

Such publication would not have constituted a contempt.

Code of Civil Procedure §1209, the civil punitive contempt statute, renders punishable a “lawful” order of the court.

The misdemeanor contempt statute, Penal Code §166, is to the same effect.

The California Supreme Court said in a 1996 case that “[a]n order of contempt cannot stand if the underlying order is invalid.”

The court noted:

“Some other jurisdictions require persons affected by injunctive orders to challenge the injunctive order directly, and in the meantime, to obey the order. Disobedience of the order is punished as contempt whether the order is valid or not.”

Merritt’s order was patently invalid. Under California law, violation of it could not be have been punished as a contempt. The Los Angeles Times lent the order dignity by complying with it, when it should have been regarded, with distain, as a piece of rubbish.

he Office of Public Defender was represented at an Aug. 10 hearing before Div. Five, pleading for more time to develop opposition to the petition. Its deputy suggested that maybe the photographer knew of the prior decision against extended coverage and maybe authority in support of the order could be amassed.

However, what it brought to the Court of Appeal on the due-date for its brief, Aug. 16, was a bucket of red herrings.

It relies almost entirely on the Court of Appeal’s 1993 decision in Marin Independent Journal v. Municipal Court. In that case, a photographer took three shots in a courtroom without having obtained the judge’s consent, pursuant to what was then California Rules of Court, rule 980, and is now rule 1.150. The court seized the film. (A mere order not to print those three shots should have sufficed.) Owing to the illegality of the photographing, the prior restraint was upheld.

Deputy Public Defender Albert J. Menaster strained, in his brief, to find a basis upon which to characterize the Times photographer’s picture-taking to have been unlawful. He argued:

1.) The request under Rule 1.150 was not filed five days in advance, as required. (That would have been a basis for denying the request, but it was, in fact, granted.)

2.) The judge, in signing the form, failed to check a box, and failed to inform the parties she had signed that order. (How a slip-up by the judge to check a box, or of her clerk in not notifying the parties, could render the photographer’s conduct illegal is not clear.)

3.) On Aug. 4 Deputy Public Defender Rosette Isip told the photographer, as he was setting up, that a prior order was in effect prohibiting the taking of any photographs of the defendant. (That was answered by Justice Sandy Kreigler at the hearing on Aug. 10. He inquired of Menaster: “Are you saying that the photographer should abide by the order of a deputy public defender and not that of a Superior Court judge?” In any event, the earlier order, made by a commissioner, was intended to apply only to the arraignment of the defendant before him on a charge of murdering a different victim; it was not intended to be a continuing order. The Aug. 4 minutes of the proceeding before Merritt did refer to a “standing order”—but that was amended the next day to read “prior” order.)

4.) There’s no showing that the photographer actually looked at the order Merritt signed, and probably didn’t because if he had, he would have seen that it was defective—presumably because some box was not checked. (This is silliness.)

In three places in the transcript of the Aug. 4 proceeding before Merritt, the judge says she signed an order allowing photographs. Yet, the brief argues that the photographs were taken “in violation of a court order.”

Menaster’s farcical brief is an affront to the Court of Appeal and an embarrassment to the Office of Public Defender. It should not have been filed.