Safer v. Superior Court 15 Cal. 3d 230

*233Opinion

TOBRINER, J.

In this case we hold that a court acts in excess of its jurisdiction when it permits a district attorney to disregard the statutory confines of his authority by prosecuting under the Code of Civil Procedure a contempt stemming from a civil litigation in. which the district attorney could rest his participation neither upon standing as a party nor upon statutory authorization. To forbid the continuation of the unlawful proceedings thus instituted, we issue our writ of prohibition.

In the spring of 1974 the United Farm Workers of America (hereinafter Farm Workers) set up picket lines around the fields of several growers of strawberries in Ventura County. These growers, alleging that the picketing constituted unlawful interference with their farming operations, retained an attorney who on May 3.0, 1974, filed suit seeking injunctive relief, damages of $50,000 per day, and punitive damages of $1,000,000 against the Farm Workers and their members. On the same day on which plaintiffs (Frank McGrath Ranch Company et al.) filed this complaint, they also obtained from the Ventura Superior Court a temporary restraining order which severely limited the spacing and number of pickets.1

On the following day the Ventura County Sheriff arrested a number of union members and sympathizers who had assembled at one of the growers’ fields to picket;2 the sheriff charged these persons with the commission of misdemeanors under Penal Code section 166, subdivision 4, i.e., wilful disobedience of a lawful court order.3 Arraigned on this charge, Laura Carol Safer and each of her accused codefendants pleaded not guilty, requesting a jury trial within the time limits of Penal Code section 1382, subdivision 3. The court set trial dates accordingly.

*234On the days set for these jury trials, however, the district attorney, rather than proceeding to trial, served4 the defendants with orders to show cause in contempt proceedings prosecuted under Code of Civil Procedure section 1209.5 The district attorney then procured dismissals of the misdemeanor charges “in furtherance of justice” (Pen. Code, § 1385) on the grounds that defendants had, moments before, become subject to the contempt proceedings that he had just instituted. In this manner the district attorney sought to convert a misdemeanor proceeding, in which defendants had the protection of a jury trial and other statutory safeguards, into a contempt proceeding, in which defendants would be stripped of these protections.

Defendants demurred to these new proceedings on several grounds: that the district attorney lacked authority to institute them; that the underlying restraining order suffered from unconstitutional vagueness; and that the facts stated did not constitute a contempt. Defendants further moved for a dismissal-on the basis of Penal Code section 1387, which bars a second prosecution of a dismissed offense previously charged as a misdemeanor.6 Alternatively, defendants urged that if their demurrer and motions for dismissal did not succeed, they stood entitled *235to a jury trial on the civil charges.7 A consolidated argument on these matters took place on July 22 and 23, 1974; the court decided adversely to defendants on each of their contentions.

Throughout these contempt proceedings plaintiffs in the original civil litigation, which precipitated these events, did not appear by their retained counsel. All appearances on the behalf of Frank McGrath Ranch Company et al. were made by the District Attorney of Ventura County. The record reflects no attempt by the parties who had procured the original injunction to enforce it against defendants.

We granted an alternative writ of prohibition to consider the questions raised by these facts.

1. The district attorney lacks statutory authority to prosecute this contempt under the Code of Civil Procedure.

Neither statute nor decision empowers a district attorney to intervene in a contempt proceeding stemming from private civil litigation in order to enforce an injunctive order granted at the behest of one of the litigants. Although, as we shall explain, various statutes provide for the appearance of the district attorney in specific civil cases, none covers the circumstances of the present case; the district attorney here therefore lacks the necessary authorization to proceed in the matter before us.8

*236By the specificity of its enactments the Legislature has manifested its concern that the district attorney exercise the power of his office only in such civil litigation as that lawmaking body has, after careful consideration, found essential. An examination of the types of civil litigation in which the Legislature has countenanced the district attorney’s participation reveals both the specificity and the narrow perimeters of these authorizations.

We set forth illustrative statutes which specifically empower a district attorney to bring a civil action; thus he may: defend suits brought against the county and bring actions to collect fines and recognizances (Gov. Code, § 26521); test the validity of laws providing for the payment of county funds and recover any funds illegally paid out (Gov. Code, §§ 26523, 26525); represent judges appearing in their official capacities as parties defendant (Gov. Code, § 26524); sue to abate public nuisances in the name of the People (Gov. Code, § 26528); bring proceedings for the commitment and treatment of incompetent or disturbed persons (Welf. & Inst. Code, § 5114); prosecute parents for disobedience of a child support order (Welf. & Inst. Code, § 11484); bring an action for the declaration of parental relationship (Civ. Code, § 231); and enforce certain business regulation laws (Bus. & Prof. Code, § 16754). Neither these nor any other of the various narrowly framed authorizing statutes, however, empower a district attorney to intervene at will in a civil case involving private parties in an economic dispute.

Even in some of these specifically authorized matters, moreover, the district attorney enjoys neither plenary power nor unbridled discretion. Thus he may prosecute certain actions only upon the request of a designated supervisory body.9 In counties which employ a county *237counsel, the statutes provide that his very presence deprives the district attorney of the power to perform certain duties.10 We find, then, that the Legislature’s narrow enumeration of the types of civil cases in which the district attorney may participate expresses its general mandate that public officers not use their funds and powers to intervene in private litigation.

Indeed, in implementing this legislative intent, we have imposed liability upon the district attorney when he overstepped the boundaries of his official authorization and its attendant immunities; we have done so even when the authorization in question framed the asserted powers in broad and general terms. (Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 235 [11 Cal.Rptr. 97, 359 P.2d 465].) If in areas related to criminal prosecution the district attorney’s authority has been subject to limitations,11 then even stronger considerations dictate such limitations in noncriminal sectors in which he possesses only narrow and specific authorizations.

We find further indication that the district attorney’s authority does not embrace the circumstances of this case in the Legislature’s clear *238demonstration that it knows how to grant him such power when it wishes to do so. For example, Welfare and Institutions Code section 11484 provides that in cases in which the parents of a child receiving public assistance have applied for, or received, a divorce or separation “the district attorney may apply to the superior court in such action for an order directing either parent or both to show cause: . . . [w]hy the parent should not be held in contempt for his failure to comply with any order of support previously entered.” Thus the Legislature, when it desired to authorize the district attorney’s intervention in contempt proceedings stemming from private litigation to enforce an order, had no difficulty in expressing itself; its articulation of specific statutory authorization in that situation points to the absence of such authority in the instant case.

The absence of any statute empowering the district attorney to appear in private litigation such as the instant case demonstrates, moreover, legislative awareness that our legal system has long depended upon the self-interested actions of parties to pursue a dispute to its conclusion, or to decide, alternatively, that further time-consuming litigation serves no one’s best interests.12 Thus the district attorney’s intrusion into this arena of conflicting private interests serves neither the public interest nor the statutory intent.

The intervention of the district attorney in these proceedings, springing from a civil suit is, indeed, the introduction of the government itself on one side of the litigation, casting the whole issue into a different framework. The weight of government tends naturally to tilt the scales of justice in favor of the party whom the government sponsors. Moreover, in cases like this the intrusion of the district attorney exposes the disadvantaged litigant to a special danger; the district attorney undertakes to bring about nothing less than his incarceration.

The authority marshalled by the district attorney does not alter our conclusion. On the one hand he argues that the criminal nature of this contempt renders it susceptible to his reach. On the other hand he argues that his general interest in the administration of justice and his standing as an officer of the court enable him to appear in this case on plaintiffs’ behalf. Neither approach withstands scrutiny.

*239Arguing that disobedience of a court order “represents an affront to the court and the People of this state,” the district attorney concludes that he may therefore prosecute this case;13 this argument confounds means and ends. To be sure, if the district attorney should decide that the interests of the People require the vindication of a court order, he may proceed under Penal Code section 166,14 but if he does so, defendants enjoy the various rights of persons charged with crimes, not the least of which is trial by jury. As we have shown, however, the district attorney’s authority to seek this criminal sanction under the Penal Code does not mean he may do so under Code of Civil Procedure section 1209.15

As an example of the district attorney’s powers to prosecute contempt under Code of Civil Procedure section 1209 he nevertheless relies upon Bridges v. Superior Court (supra, 14 Cal.2d 464). Assuming without deciding the continued viability of Bridges’ proposition that a stranger to a civil action has standing to call a contempt to the attention of the court,16 we nevertheless note that it does not apply to the present facts.

First, Bridges’ assertion concerning the irrelevance of the party bringing the alleged contempt to the attention of the court predicated itself upon the condition that the accused not be prejudiced by the intrusion of this new party into the proceeding; here the defendants did suffer prejudice, not only from the presence of the district attorney as a prosecutor, carrying with him the dignity and authority of the People, *240but also from his ability to use the court and police in his service of process.17 Thus Bridges does not deal with the special considerations that arise when the question is whether a public officer possesses the authority to do what private parties may.

Secondly, Bridges holds only that anyone may present to the court an affidavit alleging the contemptuous acts; the court says nothing of the situation we here confront: the district attorney’s active prosecution, as a litigant, of the contempt. Other statutes (and cases construing them) specifically empowering “any person’s” active participation in various types of suits therefore prove only that the Legislature knew how to authorize such participation;18 its failure to do so here serves merely to emphasize the absence of authorization.

Nor does the district attorney’s general interest in the administration of justice or his standing as an officer of the court authorize his participation in this case. The Legislature intended no such penumbra of vague and extended powers to attend that office. As we have already shown, if and when the Legislature wished to empower the district attorney to participate in a contempt proceeding arising from private litigation it did not rely on “inherent” power, but passed specific legislation.19 (Welf. & Inst. Code, § 11484.) Thus the district attorney’s status as an officer of the court and his professed general interest in the administration of justice do not suffice as substitutes for legislative authorization.20

*241That the district attorney might have prosecuted these acts as violations of the Penal Code does not empower him to do so under the Code of Civil Procedure; as we have shown above, he can find no statutory authority to do so; this absence of authority has deep roots in principle. While it is true that the penalty for contempt under Code of Civil Procedure section 1209 may be less than that under the Penal Code, the defendant facing a Penal Code prosecution has the right to trial by jury, a protection which the alleged contemner prosecuted under the Code of Civil Procedure does not enjoy. This right, always significant,21 assumes special importance in the context of contempt proceedings.

“Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge’s temperament. Even where the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court.” (Bloom v. Illinois, supra, 391 U.S. at p. 202 [20 L.Ed.2d at pp. 528-529].) The judge, of course, will have uppermost in his mind the need for preserving the dignity and authority of the court; the jury may add to these considerations a sense of the needs of the community as a whole. Thus the attempted transformation of contempt proceedings brought under the Penal Code into a prosecution under the Code of Civil Procedure achieves a possible reduction of punishment only at the cost of a cherished protection, We hold that the district attorney does not have the power to force the defendants to make such an exchange.22

*242Neither the Legislature nor our courts, then, have authorized the district attorney’s participation in this case; we must therefore consider the effect of this unauthorized prosecution upon the jurisdiction of the court countenancing it.

2. Because the superior court acted in excess of its jurisdiction in permitting the district attorney to prosecute these proceedings, a writ of prohibition must issue.

We have long recognized that the lack of jurisdiction, in the broad sense of this word, establishes grounds for our issuance of a writ of prohibition. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 [109 P.2d 942, 132 A.L.R. 715].) In Abelleira we explained: “ ‘[I]t seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction’ . , . 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 declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.'” (17 Cal.2d at pp. 290-291.)

In the present case the Superior Court of Ventura County, in permitting the District Attorney of Ventura County to prosecute this case under the Code of Civil Procedure, contrary to the statutorily authorized procedures for such proceedings and in excess of his authority, failed regularly to conduct the proceedings. In so doing, it exceeded its jurisdiction. (Menveg v. Municipal Court (1964) 226 Cal.App.2d 569 [38 Cal.Rptr. 232].)

This case presents a disturbing instance of intervention by a public authority in an acrimonious labor dispute. By imposing the weight of his office and the advantages of the public purse on the side of management, the district attorney at one stroke relieves one of the civil litigants of the necessity of financing his half of the battle, deprives defendants of the right to jury trial which they enjoyed in the previous criminal prosecution, and simultaneously suggests that public order necessitates management success in this private civil dispute. From such acts, even when *243well-intentioned, spring some of the bitterest chapters in the social history of our nation. The Legislature of this state has wisely refrained from empowering the public officer in question to play this role.

Let a peremptory writ of prohibition issue as prayed.

Wright, C. }., Mosk, J., Sullivan, J., and Richardson, J., concurred.

CLARK, J.

I dissent.

Until today the purpose for enforcing a court order by contempt under Code of Civil Procedure section 1209 was to maintain the dignity and authority of the court—not to vindicate a private right.1 Thus, the proceeding was considered criminal in nature—not civil. However, the majority, avoiding established precedent, mischaracterizes this case as one of intervention by the district attorney in a private civil proceeding for the purpose of benefiting one of the litigants. In doing so, the majority effectively repudiates almost every case of this court and of the Courts of Appeal applying section 1209.

Purpose of Contempt Proceeding

Essential to the majority’s opinion is its premise that the purpose of a section 1209 proceeding is to benefit a private party. Briefly stated, the majority’s argument progresses in the following manner: (1) the basis of the instant proceeding is to vindicate private rights; (2) it is therefore a civil action; (3) statutes exist specifically authorizing the district attorney to intervene in enumerated civil actions; (4) the inclusion of these specific statutory powers to the district attorney excludes all others; (5) thus, the district attorney has no authority to bring this action.

The majority’s vital premise—that the purpose of enforcing an order by contempt is to benefit private litigants—is false. Under our Code of Civil Procedure, contempt of court is a specific criminal offense. (Hotaling v. Superior Court (1923) 191 Cal. 501, 504 [217 P. 73, 29 A.L.R. 127]; Ex parte Gould (1893) 99 Cal. 360, 362 [33 P. 1112]; Ex parte Hollis (1881) 59 Cal. 405, 408; Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146, 149 [314 P.2d 164]; Lapique v. Superior Court (1924) 68 Cal.App. 407, 411 [229 P. 1010]; Perkins on Criminal Law (2d ed. 1969) *244p. 533.) The primary purpose of the contempt proceeding is to punish for disobedience of a court order. (Foust v. Foust (1956) 47 Cal.2d 121, 124 [302 P.2d 11]; Ransom v. Superior Court (1968) 262 Cal.App.2d 271, 276 [68 Cal.Rptr. 507]; Little v. Superior Court (1968) 260 Cal.App.2d 311, 316 [67 Cal.Rptr. 77].)

“ ‘ “Although the alleged misconduct of the defendants occurred in the progress of a civil action, the proceeding to punish them for such misconduct is no part of the process in the civil action (Killpatrick v. Superior Court, supra, 153 Cal.App.2d 146, 149; quoting Ex parte Gould, supra, 99 Cal. 360, 362; italics added.) Nor is it of consequence that the contempt proceeding is brought in the name of the civil litigants. (Bridges v. Superior Court (1939) 14 Cal.2d 464, 477 [94 P.2d 983]; Ex parte Ah Men (1888) 77 Cal. 198, 200 [19 P. 380].) “[A] contempt proceeding is not a civil action but is of a criminal nature even though its purpose is to impose punishment for violation of an order made in a civil action . . . .” (Bailey v. Superior Court (1956) 142 Cal.App.2d 47, 53 [297 P.2d 795]; see also, City of Culver City v. Superior Court (1952) 38 Cal.2d 535, 541 [241 P.2d 258].)

While the contempt proceeding may have the ancillary effect of vindicating or enforcing private rights, this is not its purpose. Thus, in H. J. Heinz Co. v. Superior Court (1954) 42 Cal.2d 164, 175 [266 P.2d 5], the court explains: “In 39 California Law Review, at page 560, the author states that ‘California has no provision for compensatory contempt proceedings. Civil damages may be collected in an ordinary civil action for an act otherwise a contempt.’ The enforcement of an order of contempt in this state is not for the vindication of a private right but is for the maintenance of the dignity and authority of the court, and to preserve the peace and dignity of the people of the State of California.” (See also, e.g., American Fire etc. Service v. Williams (1959) 171 Cal.App.2d 397, 402 [340 P.2d 644]; Bailey v. Superior Court, supra, 142 Cal.App.2d 47, 54.)

The majority cites no authority supporting its departure from the well-defined purpose of contempt. Instead, the majority now interprets the purpose of contempt as benefiting private litigants—from which it derives the conclusion that the present proceeding is civil. The majority then attempts to support its conclusion by relying exclusively on civil statutes.2 This cannot go uncriticized.

*245Strong public policy dictates allowing the district attorney to prosecute actions for contempt. The contempt power stands as an essential pillar of our legal system. As often recognized by this court, the power “ ‘is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence.’ ” (In re Buckley (1973) 10 Cal.3d 237, 247-248 [110 Cal.Rptr. 121, 514 P.2d 1201]; quoting In re Shortridge (1893) 99 Cal. 526, 532 [34 P. 227].) Respect for the courts is as essential to our society as is respect for the law itself.

Once judicial resolution is reached, disregard of the judgment by a dissatisfied litigant cannot be condoned. The delicate balance of our individual freedoms cannot survive limitless demands of individual interests. “Liberty can only be exercised in a system of law which safeguards order.” (Cox v. Louisiana (1965) 379 U.S. 559, 574 [13 L.Ed.2d 487, 498, 85 S.Ct. 476].)

Rather than limiting prosecution of contempt to the private party and imposing its burden on the individual litigant—the resulting effect of the majority’s holding—a public official should be permitted to go forward. First, because the purpose of the prosecution is to secure an important public interest, its economic burden should be borne by the public. (Cf. Dept. of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716, 719 [36 Cal.Rptr. 488, 388 P.2d 720, 20 A.L.R.3d 353]; Department of Mental Hygiene v. Hawley (1963) 59 Cal.2d 247, 255-256 [28 Cal.Rptr. 718, 379 P.2d 22].) Second, the duty of enforcement must not be left solely to the whim or desire of private litigants. The burden of prosecution usually outweighing any incidental benefit to the private litigant, economic realism dictates he will not pursue the important public policy of protecting the court’s dignity. In this case, the grower no doubt was more concerned with harvesting his crop than with vindicating the authority of the California courts. In response to such concerns and based on the important functions being fulfilled, this court has allowed persons not parties to the original action to prosecute actions for contempt. (See, e.g., Bridges v. Superior Court, supra, 14 Cal.2d 464, 477; McFarland v. Superior Court (1924) 194 Cal. 407, 423 [228 P. 1033].) The proceeding being criminal in nature for the maintenance and dignity of the court, and no reason existing to carve an exception from his normal prosecutor*246ial responsibilities, the district attorney, subject to the court’s regulation, is the appropriate public official to prosecute these contempts.

Prosecutor’s Discretion to Seek Lesser Penalties

Additional to its result, the majority “holds” that the district attorney lacks power to force the defendants into reduced punishment at the cost of a “cherished protection.” (Ante, p. 241.) The majority, while recognizing that disobedience of a court order violates both Code of Civil Procedure section 1209 and Penal Code section 166,3 forces the district attorney to proceed under the Penal Code, disallowing him discretion—even in the interests of justice—to seek the lesser penalty provided by the Code of Civil Procedure.

I cannot agree that when the district attorney has the alternative of charging two separate offenses for the same act, one providing a trial by jury but a potentially greater penalty, he must charge the offense affording the right to jury.4 The majority’s requirement would frustrate legislative intent providing for two separate methods of statutory enforcement. In false advertising cases, for example, the prosecutor is given the choice of prosecuting under either Business and Professions Code section 17534 (a misdemeanor carrying a possible jail sentence of six months) or section 17536 (providing only for civil penalties (fine)). Under section 17534 a defendant is entitled to a jury trial; however, under section 17536 no such right exists. (People v. Witzerman (1972) 29 Cal.App.3d 169, 176 [105 Cal.Rptr. 284].) Surprisingly, the majority would have the defendant mandatorily charged with the criminal offense and its attendant peril of loss of liberty instead of a simple fine.

*247The district attorney has and should continue to possess the power to charge a lesser offense when facts warrant such discretion. “It is the general rule that the duty to charge persons with crimes rests with the distript attorney and courts do, and should continue to, exercise restraint in interfering with the free exercise of discretion . . . .” (Williams v. Superior Court (1973) 30 Cal.App.3d 8, 12 [106 Cal.Rptr. 89]; see also Taliaferro v. Locke (1960) 182 Cal.App.2d 752, 757 [6 Cal.Rptr. 813].) Here the district attorney decided in his discretion that it would be more appropriate to seek the lesser penalties under the Code of Civil Procedure rather than to pursue the potentially greater penalties under the Penal Code.

There being no apparent abuse of discretion, no writ should issue.

McComb, J., concurred.