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Wenger v. Commission on Judicial Performance7/13/1981
stent with his own information but that he thought it was not a proper contempt case. Petitioner attacked Aldrich's "criminal background" and said that if Olson remained in the case he could never again practice before petitioner and probably not in western El Dorado County. He added that Olson's office associates also might have difficulties in practicing in his court. Olson asked what would happen if he did withdraw; petitioner replied that there would then be no problem.
Olson left the conversation confused and upset. He consulted his associates; they advised him not to withdraw. One of them, Mark Nielsen, who had known petitioner since 1971, phoned him that evening, hoping he would reconsider. To Nielsen's dismay, petitioner reiterated what he had told Olson who, petitioner added, had been duped by the scheme of Aldrich (the "puke") to embarrass petitioner's court. Though Olson did not withdraw from the case, neither he nor his colleagues experienced adverse consequences in later appearances before petitioner.
As a deputy district attorney petitioner had assisted in successfully prosecuting Aldrich for armed robbery and arson. According to the testimony of Judge Smith, Aldrich had a community reputation as a hoodlum and describing him as a "puke" was not unfair.
Between petitioner's two conversations with Olson, Aldrich harassed petitioner. He repeatedly drove past petitioner's home. When petitioner and his wife and bailiff went to lunch in a crowded restaurant, Aldrich and a friend continually hovered by petitioner's table, causing petitioner's party to leave. Petitioner obtained a shotgun and installed lights
outside his house. A psychiatrist who examined petitioner on November 10 and 18, 1979, testified on November 20 that Aldrich's activities created a "stress reaction" that caused petitioner's outbursts to Olson and Neilsen on January 18, 1978.
At the habeas proceeding on January 20 petitioner appeared in propria persona. After hearing evidence Judge Fogerty explained from the bench his reasons for granting the writ. He began by describing the extreme caution with which the summary contempt power should be exercised. He opined that Aldrich had been jailed simply for accepting a bailiff's invitation to express an opinion. He concluded:
"There have been serious efforts made in California to improve the qualities of the lower courts, and people with professional training are put in those positions and they are supposed to use that professional position to exercise restraint that permits an efficient administration of justice. [ para. ] It is not a chamber of terror, or it is not a place people should be frightened to go; and when they are asked for an opinion, they should be able to express it. What might be loud and belligerent language to someone might simply be a heated expression of an opinion of another. All of those who have been in the cauldron of the courtroom know that the expression of opinion sometimes is loud and emphatic language. [ para. ] It is wrong to put people in jail whether it is by the process of contempt or any other ex parte proceeding, except in extraordinary circumstances."
Finally, petitioner's request to reply in open court to Judge Fogerty's statement from the bench was denied. Immediately after the hearing, petitioner was interviewed by a reporter. A local newspaper published the Fogerty statement, followed by this concededly accurate account of what petitioner said:
"'It is unfortunate that the judge has taken the position he has,' said Wenger. [']Superior court judges sit in an insulated environment buffered from direct public contact by the attorneys who represent them.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 California DUI Attorneys
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