A dash of decorum

With one of the bitterest election cycles in recent memory now (mostly) in the rearview mirror, this might be a good time to recall that much of what passes for acceptable, or at least tolerable, speech in the political arena has no place in the judicial arena. Within the court system, "whatever right to 'free speech' an attorney has is extremely circumscribed." Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071 (1991).

That lesson was recently illustrated in the appellate decision Moore v. Superior Court of Orange County, 2020 DJDAR 12235 (Cal. Ct. App., Nov. 16, 2020). There, husband's attorney was convicted on four counts of civil contempt for behavior that was "rude and unprofessional." At a mandatory settlement conference before a temporary judge, he had persistently yelled at and interrupted other participants; accused opposing counsel of lying, without support; refused to engage in settlement discussions; and kept the settlement officer from going to the supervising judge by arguing that a settlement conference is a confidential proceeding. The Court of Appeal agreed with the trial court that this behavior was contemptuous, because "such conduct has no place in any courtroom."

We appellate attorneys have fewer occasions to vocalize, but we still have ample opportunities to get into trouble through our writings. In fact, because written submissions are deemed the product of deliberation, they can be more blameworthy than "contemptuous statements ... blurted out inadvertently in the heat of a courtroom battle." In re Koven, 134 Cal. App. 4th 262, 275 (2005).

The problem could arise with something as simple as noticing an appeal, which can be accomplished on a spartan Judicial Council form. In Martinez v. O'Hara, 32 Cal. App. 5th 853 (2019), appellant's attorney could not resist the creative urge. He drafted his own notice, stating that he was appealing from "the lower court's disgraceful order," gratuitously adding that "[t]he ruling's succubustic adoption of the defense position, and resulting validation of the defendant's pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners."

Now, it's probably not a good idea to initiate an appeal with a notice that requires the court to consult a dictionary to interpret your insults. In this case, that's just what the court of appeal did, and it found that a "succubus" is "1: a demon assuming female form to have sexual intercourse with men in their sleep -- compare incubus 2: demon, fiend 3: strumpet, whore." This accusation, the court found, amounted to bias, prejudice, and/or harassment based upon gender. The court did not delve into the dictionary definitions of "pseudohermaphroditic" or "reverse peristalsis" but did question the wisdom of using such terms to notice an appeal.

Appellant's subsequent briefs in Martinez lacked the creative wording of the notice of appeal, but his attorney did find in them opportunities to vent his spleen. The briefs featured accusations that the judicial officer "made intentional mistakes at the knowing expense of legal accuracy," displayed "mindless antipathy toward [plaintiff]," and "intentionally decided to let her master for this motion be not the law, but an adversarial agenda to rule against one party regardless of it." The court had no difficulty finding that both the notice of appeal and the briefing constituted conduct reportable to the State Bar.

In contrast, in what might have been a gentler time, a court of appeal at the beginning of the 20th century regarded as "highly disrespectful" briefing that characterized a trial court judgment as an "opera bouffe" and "a most covetous and wholly unwarranted usurpation of power." First Nat. Bank of Auburn v. Superior Court of Lassen County, 12 Cal. App. 335 (1909). However, the offending attorney's "frank disavowal of any intention to be disrespectful" and expressions of "sincere respect for the trial judge" convinced the court to "treat the offense as venial."

The need for restraint does not end when a case has been decided on appeal. In Koven, 134 Cal. App. 4th at 267, the attorney for the losing appellant could not resist expressing her displeasure with the court of appeal in two petitions for rehearing. Space does not permit quotation of all the disparaging remarks she directed at the justices, but they included that "this court purposely concocted a flimsy excuse not to rule on the merits of this issue," "the court conspired with [defendants]," "the fix was in," and "the cards were not only stacked against [my client], but the Jokers were wild!" The attorney later apologized to the court, but it nevertheless found her guilty on two counts of criminal contempt.

Unguarded remarks fare no better even if they are filed in a different court system. For example, one attorney was so displeased with the reversal he had received in a California appellate court that he sued the court and the justices in federal court. In a brief filed with the 9th U.S. Circuit Court of Appeals in the later case, he accused the California justices of acting "unlawfully" and "illegally," and of becoming "parties to the theft" of property; he charged that "money is king, and some judges feel they are there to see that it doesn't lose." Ramirez v. State Bar, 28 Cal. 3d 402 (1980). The State Bar Disciplinary Board recommended that the attorney be suspended, and the California Supreme Court upheld the order, although three justices did dissent, in part on First Amendment grounds.

Although the First Amendment is not a reliable shield for an attorney who unwisely chooses to hurl disparaging remarks in a judicial setting, the due process clause continues to offer some protection. In the recent Moore decision, the attorney who had been so obstreperous in a mandatory settlement conference was convicted on four counts of contempt. The court of appeal found little in the way of justification for the attorneys' behavior on any of the counts. The court nevertheless held that due process concerns compelled it to reduce the conviction to a single count, because only a single count had been charged against him. This was a favorable result for the attorney, but a better result can be achieved by remembering that the courthouse is not the place to emulate the political battlefield by engaging in unbridled speech. 