Monday, February 8, 2010
Court of Appeal Excoriates Judge Over Use of Contempt Power
By STEVEN M. ELLIS, Staff Writer
The First District Court of Appeal severely criticized a San Mateo Superior Court Judge on Friday, hinting that her use of the contempt power to repeatedly jail a suspended attorney who failed to pay $10,000 in discovery sanctions was misconduct.
Div. Two said the third five-day jail sentence Judge Susan I. Etezadi imposed on attorney Henry J. Koehler, after erring in one contempt proceeding and then relying on that ruling in the next two apparently court-initiated proceedings, was procedurally and substantively improper.
San Mateo Superior Court Judge Clifford Cretan ordered the sanctions in 2006 after Koehler, while representing a wife in a bitterly-contested divorce proceeding, refused to return confidential documents that were the property of third parties despite a court order.
When Koehler failed to pay, the third parties—Lucky Strike Farms Inc., Papazian Properties Company and Gilbert and Margaret Papazian—initiated contempt proceedings in 2008.
The matter was assigned to Etezadi after Cretan ordered counsel appointed, accepting Koehler’s representation that he received “very, very little” income from his legal practice and had been sick.
Etezadi, however, rejected Koehler’s argument that the Papazians bore the burden of showing ability to pay. Finding him in contempt on July 10, 2008, she sentenced him to five days in jail.
Show Cause Order
Seven months later, apparently acting on its own and with no initiating affidavit, the Superior Court issued an order to show cause regarding contempt. The order erroneously referred to an inapplicable section of the Family Code, and stated that “all of the elements of contempt were found true” at the July 10 proceeding, and that there was “no need for an initiating affidavit” in the new proceeding.
Koehler, again represented by appointed counsel, asserted jurisdictional, procedural and substantive arguments in opposition, but Etezadi ordered him to serve another five days in jail, which he did.
Less than two months later, again apparently acting on its own and with no initiating affidavit, the Superior Court issued another order to show cause. Following a brief hearing at which Koehler represented himself, the court again held him in contempt and ordered a third five-day jail term.
Koehler sought habeas relief, but Justice James A. Richman said that prohibition was the proper writ given that Koehler was not yet imprisoned. The justice also questioned why the Superior Court filed a response to Koehler’s petition through outside counsel, but elected to treat it as an amicus brief rather than “cause even further expense” by examining standing.
Focusing only on the third contempt proceeding, Richman said Etezadi did not begin it properly where she relied on the previous proceeding rather than an initiating affidavit reciting the facts constituting contempt, and mailed the notice of hearing to Koehler instead of serving him personally.
The justice also wrote that the proceeding was improper where Etezadi’s order and judgment failed to state evidentiary facts supporting a finding of each element of contempt, and where her statement that each day the $10,000 remained unpaid was “technically…a new contempt” demonstrated a violation of Penal Code Sec. 654’s ban on multiple punishments, which Richman said applies in civil contempt to the extent the punishment is punitive in nature.
Richman noted that Etezadi’s erroneous ruling in the first proceeding that Koehler bore the burden to demonstrate inability to pay the sanctions was “pertinent” where the later proceedings relied on it, even though only the third proceeding was at issue.
Pointing to the difference between direct contempt in the court’s presence, hybrid contempt—which happens in the court’s presence but is excused by matters outside of court—and indirect contempt, which occurs outside of court, typically when a party disobeys a judge’s order, Richman then cited Judge David Rothman’s California Judicial Conduct Handbook.
“The leading expert on California judicial conduct has observed that ‘[t]he procedures for punishing direct, hybrid, and indirect contempt are different,’ ” he wrote. “‘Significant additional due process rights are involved in an indirect contempt that do not come into play in direct and hybrid contempt. For this reason, it is mandatory that judges be familiar with the procedures governing direct contempt. To invoke the power of contempt without knowing or learning the law is misconduct’….What happened here did not measure up to that law, not by a long shot.”
Presiding Justice J. Anthony Kline and Justice Paul R. Haerle joined Richman in his opinion.
Neither counsel for the Superior Court—attorney Joseph Quinn of Meyers, Nave, Riback, Silver & Watson in Oakland—nor counsel for the Papazians could be reached for comment.
Koehler’s attorney, Barry Karl of Redwood City, said his client was pleased, and commented that it was rare to see the Court of Appeal “excoriate a judge like they did in this case.”
He added that he also thought the opinion’s reference to avoiding further expense implied that the appellate court was upset both at Etezadi and at the Superior Court for hiring outside counsel.
Koehler joined the State Bar in 1972, but the State Bar Court recommended his disbarment last August in disciplinary proceedings over his representation in a custody battle.
According to the State Bar, he was privately reproved in 1976 for failing to timely perform legal services, and suspended in 1992 for failure to perform legal services in a time-sensitive matter and improper handling of trust accounts. Koehler was also suspended in 1999 after a State Bar Court hearing judge found he improperly withdrew from representation of a client in a family law matter, but exonerated him of charges of practicing law while suspended.
The case is In re Koehler, 10 S.O.S. 706.
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