Tuesday, June 18, 2002
Delay in Lawyer’s Contempt Sentencing Requires New Notice—Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
A delayed contempt sentence cannot be imposed without affording the citee notice and opportunity to be heard, the Ninth U.S. Circuit Courts of Appeals ruled yesterday in a case involving a Fresno lawyer.
Kern Superior Court Judge Romero Moench—who ruled that Kevin G. Little had falsely and frivolously challenged the judge’s impartiality in a controversial child endangerment case—violated the lawyer’s due process rights by jailing him months after the alleged contempt occurred, Judge Stephen Reinhardt wrote for the panel.
The judge also exhibited personal bias against Little and should have referred the contempt proceeding to another judge, Reinhardt said.
The contempt case grew out of Glover’s representation of Terry Adam Doan and Julie Ann Blind-Doan, who have had a series of run-ins with the police in their home city of Taft, where Moench was the lone Superior Court judge at the time. The Doans pled no contest to misdemeanor child endangerment in April 1997 and were charged with probation violations nearly two years later.
Little brought three motions to disqualify Moench. The first two were assigned to other judges pursuant to Code of Civil Procedure Sec. 170.3 and denied, the second with findings that it was not brought in good faith and raised issues already ruled upon in connection with the first motion.
In making his third motion, Little attached a sexually explicit drawing of the judge and other Taft officials reportedly posted in Taft by Little’s client. The moving papers alleged that Moench had been aware of the drawing and of an investigation of it launched by Taft officials, and thus was biased against the Doans.
Moench again stayed proceedings so that the motion could be heard by another judge. But after the Kern County Counsel’s Office filed a memorandum arguing that there was no support for the claim that Moench had prior knowledge of the drawing, the motion was withdrawn.
The judge proceeded to complete the probation revocation proceedings, and, then, summarily found Little in contempt based upon his filing of the third motion eight months earlier.
The attorney was handcuffed in front of a packed courthouse. Little was briefly jailed until another judge ordered his release, allowing a delay so Little could appeal.
A stay was mandatory under Penal Code Sec. 1209, Reinhardt noted yesterday. The contempt order was upheld in summary orders by the Fifth District Court of Appeal and Supreme Court.
But Reinhardt said the judge violated clearly established U.S. Supreme Court precedent when he “sprung” the contempt without conducting a noticed hearing. In addition, the judge clearly had become “personally embroiled” in the matter and should have sent it to another jurist, Reinhardt said.
Senior Judge John T. Noonan concurred. Judge Ferdinand F. Fernandez concurred in the result, but said the finding of personal bias on the part of the trial judge was questionable.
The case is Little v. Kern County Superior Court, 01-16238.
Copyright 2002, Metropolitan News Company