Man should not have been jailed on civil contempt, US judge rules

A trial court should not have jailed a civil defendant for almost six years on a contempt charge related to missing money, a federal judge concluded, but the county and sheriff still can't be held liable for violating state laws that limit a person's time in county jail to one year.

After detailing several "troubling aspects" in the case brought by former jail inmate Zulmai Nazarzai, U.S. District Judge Andrew J. Guilford suggested the California Legislature amend the penal code to clarify the distinction between a one-year jail limit and state Code of Civil Procedure Section 1219(a), which says contempt for an omitted act means "he or she may be imprisoned until he or she has performed it."

Guilford also suggested the Legislature "provide procedural safeguards to prevent circumstances like those present here from happening again."

"Whenever the Government reaches its strong arm down to put someone in jail, important issues are always raised. Especially when it's done without a jury for a failure to pay money. For nearly six years. In a case where a public defender would have been helpful from the start, but was not originally provided," according to a nine-page order.

Issued Dec. 31, the order rejected unspecified damages requested by Nazarzai's attorneys, L. Thomas Murphy and Afshin Eftekhari. It caps an unusual legal saga that began in 2010 and sparked various state trial court rulings and appellate reviews, as well as a federal bench trial that included a sheriff's deputy pleading the 5th Amendment.

The county's defense attorney, Scott A. Martin of Koeller Nebeker Carlson and Haluck LLP, submitted a proposed judgment on Monday. Murphy and Eftekhari have seven days to file objections before Guilford considers final approval. They were not available for comment on Tuesday.

Martin said he'll also submit a request to tax costs, which he said "won't be a significant amount" because while his case involved a lot of documents, it included only three depositions. Still, "whether Mr. Nazarzai ever pays any of it, who knows," Martin said, referencing an unpaid superior court judgment against Nazarzai, his company Statewide Financial Group Inc., and associates over a loan modification scheme that, wth interest, is more than $8 million.

That 2012 judgment stems from the state attorney general's lawsuit that also landed Nazarzai in jail. It was entered by now-retired Orange County Superior Court Judge Andrew P. Banks, who two years earlier convicted Nazarzai of civil contempt over $360,540 that Nazarzai failed to give to a receiver. Nazarzai said the money disappeared from his now-former fiance's car after a crash. Banks proclaimed his explanation a "whooper," but, following six years of litigation, the 4th District Court of Appeal ordered him to consider Nazarzai's ability to pay and the coercive and punitive effects of continued incarceration. Banks ordered Nazarzai released in November 2016, with the $360,540 still missing.

Murphy and Eftekhari sought damages from Orange County, Deputy Ben Garcia and now-retired Sheriff Sandra Hutchens for constitutional rights claims related to his jailing in violation of 19.2, and religious discrimination related to his Muslim beliefs. Guilford said he found witnesses who diminished the claim of religious discrimination to be "very credible."

Guilford agreed Nazarzai's story about the missing money was as Banks said a "whopper," but he questioned whether Nazarzai was betrayed by his fiance, who "might now be enjoying that money with her new husband." His order sympathized with Nazarzai's circumstances and referenced post-trial supplemental briefing that said Nazarzai's equivalent crime is a theft charge that carries a maximum three years in jail. Still, given current laws and government powers, "a civil defendant that committed a financial crime ends up in jail without the protections normally given to criminals. Besides urging the Legislature to consider the issue, Guilford essentially said his hands were tied. Nazarzai v. County of Orange et al., 17CV-1884 (C.D. Cal., filed Oc. 26, 2017).

"Significantly, those executing a court order valid on its face are entitled to immunity," he wrote.