By a MetNews Staff Writer
A lawyer who was found in contempt by Div. Three of the Fourth District Court of Appeal for remarks he made in a petition for rehearing which the justices found earlier this month to be impermissibly insulting to them is asking the California Supreme Court to countermand the adjudication.
Claremont attorney Paul M. Mahoney said in Friday’s “petition for extraordinary relief,” which takes the form of a declaration by him under penalty of perjury:
“I believe that my statements are not the type that warrant contempt. They were in a writing and are protected by the free speech provisions of the United States Constitution.
“The words themselves, were not contemptuous. A lawyer should have the right of free speech and the comments that were made were legitimate comments by a lawyer.”
The Orange County-based appeals panel, in an unpublished March 2 opinion by Acting Presiding Justice William W. Bedsworth, affirmed a judgment adverse to Mahony’s client, Salsbury Engineering, Inc. That outfit had done work as a subcontractor on a public works project and sued the prime contractor, Contracting Services, Inc., for penalties under Civil Code §8814, a “prompt payment” statute.
“Today, we decide a subcontractor is not entitled to prompt payment penalties under section 8814 when the trier of fact decides it has not completed the work.”
In seeking a rehearing in a March 17 petition, Mahoney wrote:
“When counsel for Plaintiff started law school in the fall of 1965 (he has now practiced law over 52 years) he had an idealistic view that the law would be applied fairly and that clients would be treated fairly. In other words, he did not believe that a case such as this one, which is essentially a construction project with numerous twists, would turn into a $1 million dollar plus windfall for one side, not on the facts but based on the rulings of a judge or judges. Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by ignored by the actions of people like Tom Girardi.”
Thomas V. Girardi is an attorney on involuntary inactive bar status, accused in numerous civil actions and in a State Bar accusation of bilking multiple clients out of millions of dollars.
In the petition for rehearing, Mahoney said that Consolidated had contracts with The Irvine Company, “who we all know wields a lot of legal and political clout in Orange County.”
Reaction to Petition
Div. Three on April 1 ordered Mahoney to show cause re contempt, declaring that he had “indulged in an unprofessional rant that impugned the integrity of the court.”
In his response, an April 21 declaration, Mahoney said:
“My statement that said that society has been going down the tubes for a long time did not refer to this Court….
“There was no insinuation that Consolidated’s and/or the trial court’s clout had anything to do with this case. I mentioned the obvious things that go on in Orange County which has a lot to do with The Irvine Company, plain and simple.”
Unpersuaded by the April 21 declaration or by Mahoney’s explanations at a hearing on May 4, the appeals panel on June 10 found the lawyer in contempt. The “By the Court” opinion merely lists the names of the three members of the division who participated, yet bears the mark of Bedsworth’s distinctive (and widely praised) writing style.
Penal Statute Cited
Although the opinion appeared clearly to be an adjudication that Mahoney had breached the punitive civil contempt statute—Code of Civil Procedure §1209—it set forth, in what was quickly to be discerned as an error:
“Contempt of court is a criminal violation under Penal Code section 166. It is punishable by a fine of up to $1,000 per count and/or six months in jail….We find Attorney Mahoney in direct contempt under subdivision (a)(1) for his implication that the court below was influenced by the political influence of the Irvine Company (1 count) and for his aspersion that the court was indistinguishable from or inclined to ignore the unethical conduct attributed to Attorney Thomas Girardi (1 count) and order him to pay a fine of $ 1,000, each for a total of $2,000, payable in the clerk’s office of this court within 60 days after this decision becomes final for all purposes.”
Writing on behalf of the Office of Los Angeles County Public Defender, Deputy Public Defender Mark G. Harvis pointed out in a June 14 letter to the appeals court:
“Plainly, the law does not allow courts to prosecute violations of Penal Code section 166. It is within the purview of the Executive Branch (the prosecutor) to charge persons with crimes.”
The opinion was modified on June 16 to set forth its reliance on §1209.
Supreme Court Opinions
In his petition to the California Supreme Court, Mahoney quoted the 1947 opinion of the U.S. Supreme Court in Craig v. Harney as saying:
“[T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”
He also quoted the nation’s high court as setting forth in its 1958 decision in Brown v. United States:
“Trial courts...must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.”
The lawyer argued:
“Under United States Supreme Court precedent, my comments do not warrant contempt.”
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