Cyrus Zal v. Cecil Steppe, Warden Attorney General of the State of California

968 F.2d 924

Opinions

FARRIS, Circuit Judge:

Cyrus Zal, an attorney, appeals the district court’s denial of his habeas corpus petition, which challenged his state court contempt citations for violating the trial court’s evidentiary orders. Zal argues that the citations are void because the orders violated his First Amendment rights, his clients’ Sixth and Fourteenth Amendment rights, and the Fifth and Fourteenth Amendment rights of the unborn. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 (1988) and 2253 (1988). We affirm.

FACTS

Zal represented seven abortion protestors who were charged with criminal trespass. During in limine proceedings, the trial court excluded the defenses of: (1) necessity; (2) defense of others; (3) compliance with international law, treaties, or declarations; and (4) mistake of fact. The judge also ordered him not to use the following words, which were linked to the excluded defenses:

kill bloodletting

killer killing

baby killer(s) killing centers

murder(er) fetus

deathscort abortuary

holocaust rights of the unborn

abortion rescuer

death mill Hitler

unborn slaughter

Nazi(ism) ehildslaughter

manslaughter destroy

slay(ing) extermination

destruction martyrdom

sacrifice homicide

execution fratricide

genocide parricide

sororicide aborticide

infanticide butcher(y)

feticide carnage

monster bloodbath

massacre mass destruction

decimation assassin

Cain thug

cutthroat eradication

gorilla monstrosity

Although the record does not contain the trial court’s orders, which apparently were made orally, Zal has provided a list and counsel for California has not disputed any word on the list, either in their brief or at oral argument. We assume that the list is accurate.

Despite the court’s evidentiary orders and repeated warnings, Zal asked witnesses the following questions:

Is that the place where they empty the contents of a woman’s uterus?

Are you familiar with those facilities where two persons go in and only one person comes out alive?

Can’t we ask anything about this baby-killing, Your Honor?

What time do the first victims arrive?

How do you feel about making a living off the blood of babies?

Are your paychecks bloodstained?

Is the unborn baby a life you have sworn to protect?

Did you feel any obligation to protect the children who would be killed that day?

Officer, were you an unborn baby at some time in your life?

Wasn’t the safety corridor the place where babies were taken to be killed?

How long have you been in the baby-killing business?

Does the oath you have taken to tell the truth mean anything to someone who is in the baby killing business?

What’s done with the bodies of the babies killed by your employer?

Where do the bodies go?

Are you concerned that you may some day be charged with murder for your role in the abortion holocaust?

Did you know what babies they were referring to?

Do you know the time, date and place where a life was going to be taken?

What do you do when your oath to protect life conflicts with your duties?

Do you think perhaps the dog knew the duty to protect life better than the police officers?

Do you think you will always protect the baby-killers?

Are those convictions worth the lives of unborn babies?

Now, is it from your own personal knowledge that you know two babies were saved from abortions that day?

Isn’t that a poster of an unborn child sucking its thumb?

Zal occasionally was given a single contempt citation for several questions. In sum, Zal was held in contempt twenty times.

It is not disputed that Zal knowingly and intentionally flouted the trial court’s orders excluding certain defenses. At oral argument, Zal candidly admitted that he violated the orders in service of a “higher law.” Zal’s intent was to reach the jury on the precluded defenses and prompt it to use its powers of nullification. The prohibited words were taken from Zal’s attempts to accomplish the same mischief in previous cases.

STANDARD OF REVIEW

We review the district court’s denial of Zal’s habeas petition de novo. See Mikes v. Borg, 947 F.2d 353, 356 (9th Cir.1991). “We give deference to the state court’s findings of the underlying facts, but reserve the right to give different legal weight to such facts.” Reiger v. Christensen, 789 F.2d 1425, 1428 (9th Cir.1986).

DISCUSSION

1. Jurisdiction

We recognize two possible jurisdictional questions. First, since filing his petition, Zal has served his full sentence and no longer is in state custody.

Generally, a petition for habeas corpus becomes moot should a prisoner be released from custody before the court has addressed the merits of the petition. However, the courts recognize an exception in those cases where the prisoner can show that he will suffer some collateral legal consequences if the challenged conviction is allowed to stand.

Robbins v. Christianson, 904 F.2d 492, 494 (9th Cir.1990) (citations omitted). Zal risks being disciplined by the California State Bar if his contempt citations are allowed to stand. His petition is not moot.

Second, “relief under [28 U.S.C, § 2254(a) (1988) ] can be granted only for a violation of the United States Constitution, a federal statute, or a treaty.” Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir.1985). The California Supreme Court has held:

In this state it is clearly the law that the violation of an order in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt. ... “Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory decision, or rules developed by the courts ... are in excess of jurisdiction.”

In re Berry, 68 Cal.2d 137, 65 Cal.Rptr. 273, 280, 436 P.2d 273, 280 (1968) (in bank) (quoting Abelleira v. Dist. Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 948 (1941)). Zal argues that the contempt citations are void because the trial court’s evi-dentiary orders violated, inter alia, his First Amendment rights. We have noted that “attorneys ... do not lose their constitutional rights at the courthouse door.” Levine v. United States Dist. Court for Cent. Dist. of California, 764 F.2d 590, 595 (9th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986). Zal’s petition presents a federal claim.

Section 2254(a) also requires that Zal be “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In Walker v. City of Birmingham, 388 U.S. 307, 320-21, 87 S.Ct. 1824, 1831-32, 18 L.Ed.2d 1210 (1967), the Supreme Court upheld Alabama's procedural rule that a party cannot collaterally challenge the constitutionality of a court order after violating that order. In In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 725 (9th Cir.1989), we noted that “the collateral bar rule permits a judicial order to be enforced through criminal contempt even though the underlying decision may be incorrect and even unconstitutional.” But, although a state may adopt the collateral bar rule, it need not do so as a matter of federal law. Since California has explicitly elected not to do so, see Berry, 436 P.2d at 281 (“a person, under California law, may disobey the order and raise his jurisdictional contentions when he is sought to be punished”), we can address the merits of Zal’s First Amendment claim.

In so holding, we recognize that this case differs markedly from Bishop v. Kelso, 914 F.2d 1468 (11th Cir.1990), and similar cases. The Bishop court, on habeas review, applied the sufficiency of the evidence standard set forth in Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979), rather than the more demanding standard prescribed by state law. See Bishop, 914 F.2d at 1472-73. The court held that “[o]nly in a case where the failure to meet a higher state burden of proof raises independent constitutional concerns ... would a federal court on collateral review examine the evidence to determine whether the state had met its self-imposed burden.” Id. at 1473. This case does not involve a state substantive standard that is more demanding than the corresponding federal standard. Zal argues that the trial court’s evidentiary orders violated the First, Fifth,- Sixth, and Fourteenth Amendments of the United States Constitution. There is but one substantive standard — that prescribed by federal law. Unlike Walker, these claims are not foreclosed by a state “procedural requirement.” 388 U.S. at 319, 87 S.Ct. at 1831 (emphasis added).

2. Zal’s First Amendment claims

Zal argues that the contempt citations are void because the trial court’s evi-dentiary orders violated his First Amendment rights. We reject Zal’s argument for the reasons set forth in Sacher v. United States, 343 U.S. 1, 8-9, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952) (emphasis added):

Our criminal processes are adversary in nature and rely upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries. The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.

Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court’s considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel’s right to resist it or to insult the judge — his' right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case.

In Gentile v. State Bar of Nevada, - U.S. -, 111 S.Ct. 2720, 2743, 115 L.Ed.2d 888 (1991), the Court similarly noted that “[i]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.” The trial court’s evidentiary orders did not infringe Zal’s right to preserve his or his clients’ right to appeal. In fact, he could have followed the procedure for an interlocutory appeal following the pretrial ruling. We therefore hold that the orders did not violate the First Amendment.

Zal argues that the “clear and present danger” standard should guide our analysis because the trial court’s evidentia-ry orders are “prior restraints.” This argument is contrary to Gentile, 111 S.Ct. at 2744, which held that “lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 [96 S.Ct. 2791, 49 L.Ed.2d 683] (1976).” Although In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 (1972) (per curiam), applies a test similar to the clear and present danger test to an attorney’s in-court conduct, the attorney in Little was punished for violating a general contempt statute that proscribed “[disorderly, contemptuous, or insolent behavior ... tending to interrupt [the court’s] proceedings, or to impair the respect due to its authority.” Id. at 555 n.*, 92 S.Ct. at 660 n.* (quoting N.C.Gen.Stat. § 5-1(1) (1969)). See also Eaton v. City of Tulsa, 415 U.S. 697, 697, 94 S.Ct. 1228, 1229, 39 L.Ed.2d 693 (1974) (“direct contempt,” in violation of Tulsa ordinance). In Matter of Contempt of Greenberg, 849 F.2d 1251, 1255 (9th Cir.1988) (construing Fed.R.Crim.P. 42(a)), we similarly concluded that “summary criminal contempt procedure should be used only in exceptional circumstances where there is an immediate threat to the judicial process.” Zal intentionally violated a specific court order; Little and Greenberg are inapposite.

Judge Noonan similarly misinterprets applicable case law. The Court in Sacher did not hold that a party must “make impossible an orderly and speedy discharge of the case,” infra at 935 (quoting Sacher, 343 U.S. at 4, 72 S.Ct. at 452), in order to be held in contempt. Gentile reaffirms Sacher’s holding: “if the ruling is adverse, it is not counsel’s right to resist it or to insult the judge — his right is only respectfully to preserve his point for appeal.” Sacher, 343 U.S. at 9, 72 S.Ct. at 455. See Gentile, 111 S.Ct. at 2743. Contrary to Judge Noo-nan’s suggestion, see infra at 935, this holding is not altered by Berry and its progeny; these cases provide only that a contempt citation is void if the underlying order is unconstitutional. See Berry, 436 P.2d at 280.

Judge Noonan also emphasizes that various questions asked by Zal did not specifically violate the trial court’s evidentiary orders. See infra at 935. Zal did not raise this argument in his briefs or at oral argument because it nevertheless is clear that he intentionally violated the trial court’s orders excluding certain defenses. The only question before us is who controls the trial. Under our current system, the trial judge is charged with preserving the decorum that permits a reasoned resolution of issues. Zealous counsel cannot flout that authority behind the shield of the First Amendment. We hold nothing more.

3. Zal’s other claims

Zal argues that the contempt citations are void because the trial court’s evidentia-ry orders violated: (1) his clients’ Sixth Amendment rights to a trial by jury and effective assistance of counsel; (2) his clients’ Fourteenth Amendment right to due process of law; and (3) the Fifth and Fourteenth Amendment rights of the unborn. We address the argument without deciding whether a fetus has Fifth and Fourteenth Amendment rights. Although there is a “general prohibition on a litigant raising another person’s legal rights,” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), Zal is entitled to raise these claims under Berry. See 436 P.2d at 280 (“violation of an [unconstitutional] order ... cannot produce a valid judgment of contempt”). Zal has alleged “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, 468 U.S. at 751. Zal also can be expected to present the issues “with the necessary adversary zeal.” Secretary of State of Maryland v. Joseph H. Munson Co., Inc. 467 U.S. 947, 956, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984).

The trial court’s evidentiary orders sought to ensure that the excluded defenses — (1) necessity, (2) defense of others, (3) compliance with international law, treaties, or declarations, and (4) mistake of fact— would not be presented to the jury through a back door. It follows that the evidentia-ry orders did not violate Zal’s clients’ Sixth and Fourteenth Amendment rights unless the court erred, as a matter of federal law, in excluding those defenses. Zal essentially is arguing that the orders prevented the jury from fully appreciating why his clients acted unlawfully; there can be no constitutional violation if Zal had no right to present the excluded defenses. Zal had no constitutional right to present evidence merely “to bring out the reason for his clients’ actions.” Infra at 934.

Zal’s argument fails. In order to invoke the necessity defense, a party must show that: “(1) they were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted; and (4) they had no legal alternatives to violating the law.” United States v. Schoon, 955 F.2d 1238, 1239-40 (9th Cir.1991) (citation omitted). Zal’s clients were not seeking to avert a legally recognized harm. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). They also had legal alternatives to violating the law. There is no necessity defense in these circumstances. The Third Circuit similarly concluded in Northeast Women’s Center v. McMonagle, 868 F.2d 1342, 1350-52 (3rd Cir.), cert. denied, 493 U.S. 901, 110 S.Ct. 261, 107 L.Ed.2d 210 (1989), that the justification defense was unavailable to abortion protestors under both federal and state law. ' That court rightfully stated:

We emphasize in particular the numerous legal alternatives that Defendants had available to pursue their goal of persuading women not to have abortions. For example, they could continue to march, go door-to-door to proselytize their views, distribute literature, personally or through the mails, and contact residents by telephone, short of harassment.

Id. at 1352. Zal cites no federal case law that creates a constitutional right to present any of the excluded defenses. We understand Zal’s argument, but the trial court’s evidentiary orders were not constitutionally infirm.

AFFIRMED.