Metropolitan News-Enterprise


Wednesday, September 14, 2011


Page 1


CJP Admonishes Judge for Abuse of Contempt Power


By SHERRI M. OKAMOTO, Staff Writer


The Commission on Judicial Performance yesterday publicly admonished El Dorado Superior Court Assistant Presiding Judge James R. Wagoner for abusing his contempt power by haling a citizen into his courtroom for allegedly disruptive conduct in the courthouse lobby and ordering her arrest.

Wagoner and his attorney, James A. Murphy of San Francisco, appeared before the commission on Aug. 31 to contest the charges, which arose from an incident which took place at the Main Street Courthouse in Placerville last July. The alleged contemnor,

Penny Arnold, was reportedly using her cell phone to record images of people who were involved in confidential dependency court proceedings on the first floor of the building.

Murphy said yesterday the factual recitation in the CJP’s decision was “not quite accurate and could be considered, I don’t want to say misleading, but it doesn’t have all of the requisite facts.”

He said Arnold “had a history of creating situations in the El Dorado court house and courtrooms,” and that a week before the incident which landed Wagoner in trouble,

“lawyers were complaining to the court executive officer about her conduct.”

On the day at issue, Murphy claimed, the court executive officer had contacted Wagoner, who was the supervising judge of the courthouse, and asked him to intercede in the situation with Arnold, who was in fact surreptitiously recording conversations between lawyers and their clients.

These facts, which Murphy posited “put an additional wrinkle in things,” were not mentioned in the CJP decision, which stated the judge had simply gone to the lobby with two bailiffs after hearing reports of Arnold’s activities, confronted her, and ordered her to immediately report to his courtroom for a hearing.

When Arnold did not comply, Wagoner directed the bailiffs to arrest her for contempt. She was later transported to jail pursuant to a jail remand order issued by the judge and remained incarcerated for approximately three hours before she was able to post bail.

Wagoner also issued an order to show cause re contempt, stating that Arnold was cited for contempt for willfully disobeying a court order in contravention of Code of Civil Procedure Sec. 1209(a)(5).

He subsequently found her guilty of direct contempt of court and sentenced her to five days in jail, giving her credit for one day served and staying the other four days for one year on the condition that she “obey all laws and all lawful orders and directives of this court.”

The commission determined that Wagoner’s actions constituted abuse of his contempt power and violated Arnold’s due process rights. Since her alleged conduct “did not occur in the judge’s courtroom and did not involve a proceeding pending in his court, the judge was without jurisdiction over her and could not lawfully order her to attend a hearing in his courtroom,” the CJP said.

Additionally, the panel noted such “security issues are properly handled by sheriffs deputies,” and suggested that Wagoner’s intervention “gave the appearance of having assumed a law enforcement role contrary to canon 2A of the Code of Judicial Ethics.”

The commission said that is was not persuaded by Wagoner’s argument that the court’s statutory or inherent powers to preserve order could be used to order a citizen to attend a hearing concerning conduct occurring outside the courtroom and that had no connection to a pending proceeding, or that reports of disruptive conduct by Arnold on prior occasions gave the judge the authority to act as he did.

Wagoner further “failed to comply with the proper contempt procedures by remanding Ms. Arnold to jail without a hearing” and by “failing to issue an order that recited the evidentiary facts supporting the contempt finding.”

He also “wrongly adjudicated the matter as one of direct contempt and wrongly found Ms. Arnold guilty of that charge” since her conduct did not occur in the judge’s courtroom or chambers, and imposed conditions on Arnold’s contempt that were not authorized by law.

The commission concluded that Wagoner’s conduct “constituted, at a minimum, improper action,” which was “aggravated by the fact that he used the contempt power to incarcerate someone over whom he had no jurisdiction” and that he had received an advisory letter in 2009 for abusing his authority with regard to individuals who were not before him.

This prior instance involved a missive he sent to a married couple who had submitted information to the grand jury, ordering them to “cease and desist” contact with the jurors, in which he improperly threatened to enforce the order with sanctions such as contempt.

All 10 of the participating members of the commission, chaired by Court of Appeal Presiding Justice Judith D. McConnell of the Fourth District’s Div. One, voted in favor of imposing a public admonishment.

Murphy suggested that the decision indicates that commission’s belief that “judges do not punish people for contempt,” because “even if you have the best interests at stake… if you get it wrong, you’re going to get disciplined.”

He posited that “any judge who reads this is going to have to ask himself, if you had it to do over again, what would you do?” Based on the outcome of the case, Murphy said, a judge presented with the same situation as Wagoner would “likely just stay in his chambers” and “say, ‘send someone else’ ” to deal with the problem.

The attorney queried:

“What kind of message is that?”


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