Judges and Judiciary
Jun. 19, 2002
Attorney in Contempt Wins Appeal
SAN FRANCISCO - A Kern County judge unlawfully held a Fresno attorney in contempt for trying to disqualify him from a case involving a couple who allegedly circulated a lewd cartoon of the judge, a federal appeals court ruled Monday.
In a 3-0 decision, a panel of the 9th U.S. Circuit Court of Appeals ruled that civil rights attorney Kevin G. Little's due process rights were violated when Kern County Superior Court Judge Romero J. Moench failed to give him adequate notice of contempt charges and an opportunity to be heard. Little v. Kern County Superior Court, 2002 DJDAR 6741.
Moench had become "personally embroiled" in the case and should have asked another judge to preside over the contempt hearing, Judge Stephen Reinhardt wrote. Judges John T. Noonan and Ferdinand F. Fernandez concurred.
The contempt charges stemmed from Little's representation of Terry A. Doan and Julie A. Blind-Doan in a 1997 child endangerment case. Little unsuccessfully sought to disqualify Moench twice. In his third attempt, Little contended the judge probably knew the Doans were being investigated for distributing a lewd cartoon depicting the judge, a prosecutor and the investigating officer. The cartoon has been kept under seal.
Moench said the third motion to disqualify should be heard by another judge, but the county counsel found it "frivolous" and Little withdrew it.
When Little appeared before Moench two months later for the child endangerment case, the judge, without notice, held a summary contempt hearing for Little. Moench found that Little had committed direct contempt by his last disqualification attempt. The judge declared the cartoons were "obscenities" and "offensive in the extreme."
Little said that because he had been given no notice of the charges, he could only respond that his motion had been filed in good faith.
Moench then found Little guilty of contempt, sentenced him to four days in jail and a $400 fine and denied him bail, despite provisions providing for automatic stays for attorneys.
Both the state appellate court and the state Supreme Court dismissed Little's appeals.
Little then turned to the federal courts for relief. U.S. District Judge Anthony Ishii of Fresno ruled that Little's due process rights had been violated because the factual findings in the contempt judgment were vague and there was insufficient evidence to demonstrate contempt beyond a reasonable doubt
The Kern County Superior Court then appealed Ishii's ruling. The 9th Circuit upheld Ishii, not for insufficient evidence but on the ground that Moench had failed to give Little any notice of the charges and hearing.
Little said he felt vindicated by the ruling, saying the 9th Circuit "went to the heart of the matter, which was that the trial court acted unconstitutionally."
Moench declined to comment.
Donna Domino
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