A visiting Lassen County Superior Court Judge found Lassen County District Attorney Stacey Montgomery guilty of contempt of court during a Friday, Aug. 30 hearing. Judge Candace Beason determined Montgomery willfully disobeyed a protective order issued Feb. 7 by Lassen County Superior Court Judge Mark Nareau in the Juan Ruiz Esqueda case and imposed a $250 fine.
Beason said she accepted Montgomery’s earlier apology to the court and said she believes Montgomery had a “momentary lapse” or rather “lost sight momentarily” of her role as a prosecutor. Beason said she ruled with lenience because of her experience with Montgomery’s prior conduct and her knowledge of a lack of serious prior marks on her professional history. Instead of the maximum $1,000 fine and up to five days in jail, Beason fined Montgomery only $250.
According to the minute order in the court file, “evidence has been presented beyond a reasonable doubt (that) there was a valid court order filed, that citee had knowledge of said order, that citee had the ability to comply with said order, that citee willfully violated said order and that citee is guilty of contempt … as charged.”
Beason ordered Montgomery to pay the $250 fine within 60 days, but the fine is stayed if the defense files a writ.
Before the proceeding began, and before Montgomery herself arrived at the courtroom, more than 60 concerned and passionate Lassen County residents — in addition to family, friends and supporters — were there to champion and encourage Montgomery. More public members arrived as the hearing continued for more than two hours.
Montgomery’s defense attorney, Eric Early, was one of two former 2018 Republican candidates for California’s Attorney General’s seat, and in May, she endorsed him in the June 5 primary election.
While Early, at the beginning of the trial, said Montgomery would choose to exercise her constitutional right to remain silent, the DA eventually chose to speak out.
Montgomery described the circumstances surrounding the case as “upsetting” and said she admitted she “got passionate” during the course of events.
Montgomery said she did not authorize or administrate the release of the video of her speaking at the Uptown vigil that led to the protective order. She said she learned of the video’s posting from a deputy a few days later, and she ordered the video’s immediate removal.
Montgomery said she called Chris Montgomery, her husband, campaign manager and local radio personality who posted the video, to have it removed immediately. She said she saw her husband recording the video but didn’t believe it would be posted publicly. During her testimony, Montgomery also said she wasn’t sure if the video had been posted on the Lassen County DA’s Facebook page. However, in Early’s Memorandum of Points and Authorities, — court documents submitted before the Aug. 30 trial —knowledge of that fact contradicted her testimony.
What protective order?
Nareau issued the protective order Feb. 7 after Chris Montgomery posted the video of the district attorney speaking at a December 2017 protest and vigil in Uptown Susanville following the Kate Steinle verdict on the Lassen County District Attorney’s Facebook page and other social media sites.
According to a transcript of Montgomery’s video included in the court file, the district attorney said, “And both Colby (Trumbull) and Kate were victims of people who have been, who had returned to this country on numerous occasions and been deported on numerous occasions and had multiple violent crimes that they had been convicted of.”
Nareau ordered the immediate removal of the video and also ordered “that no party, attorney, judicial employee, law enforcement agency or officer associated with this case, nor agent, employee, independent contractor, business associate or representative of such persons or agencies associated with this case, nor any witness having appeared herein shall release or authorize the release of any extra-judicial statement relating to this case for dissemination by any means of public communication.”
Meeting the president at the White House
Despite Nareau’s protective order, Montgomery again shared details of the Esqueda case at the California Sanctuary State Roundtable with President Trump at the White House on May 16. Montgomery’s comments allegedly included information from Esqueda’s rap sheet, — information that may not be admissible in court, but the defense argued that information is available as part of the public record.
Montgomery acknowledged she saw the press behind her during the White House meeting, but according to a sworn declaration she made in the case, Montgomery wrote she, “had no knowledge as to whether, or to what extent, this discussion was going to be covered by the media.”
Montgomery said she thought the meeting was for her and other leaders to personally advise the President of the United States on immigration issues, but when Beason asked Montgomery what sort of advice she provided the president, she failed to provide an answer.
Wrangling in court
Beason called the Aug. 30 trial a “quazi-criminal proceeding,” one that required the court to do two things.
The first was for the court to show cause that Nareau’s protective order was valid and lawful. The second was for the court to show cause that Montgomery willfully violated the protective order when she had the opportunity to do so.
Beason found that Nareau, in making the determination to issue the protective order, did so to mirror the current rules of professional conduct for California attorneys, placing emphasis on rules 5-110 and 5-120. Rule 5-120, called Trial Publicity, says in Section A, “A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
The State Bar of California’s website gives insight into the interpretation of Rule 5-120 and says whether an extrajudicial statement violates Rule 5-120 depends on many factors, including whether the extrajudicial statement violates a lawful ‘gag’ order, or protective order, statute, rule of court or special rule of confidentiality as well as the timing of the statement.
Early postulated that Nareau’s order was an unconstitutional and unlawful act of prior restraint in violation of Montgomery’s protected First Amendment rights, declaring it a governmental action that prohibited Montgomery’s speech or other expression before the speech would have happened.
In defense of the case, Early cited Hurvitz vs. Hoefflin, a civil case in 2000 that centered around three Hollywood plastic surgeons, celebrity patients, allegations of fondling and mocking of unconscious patients and countersuits of libel and defamation.
In Hurvitz vs. Hoefflin, the court held that a pretrial order that barred disclosure of any information that would identity patients treated by the surgeon was an impermissible prior restraint in violation of the First Amendment and State Constitution.
The appeals court in this case also ruled that the physician-patient privilege could not be invoked to maintain confidentiality without limits.
The appeals court based its decision in part on the fact that the information at issue had already been published in a large, national newspaper, namely the Washington Post. Dr. Hurvitz appealed the gag order as an unconstitutional prior restraint on free speech.
In Hurvitz, it was found that allowing the gag order to protect the privacy of third party patients would make it virtually impossible to conduct discovery because of the broad nature of the confidentiality requirements in the gag order.
The appeals court in Hurvitz determined that the considerations identified by the trial court — the physician-patient privilege, the patient’s rights of privacy and dignity and the possibility of juror prejudice — were not sufficient to justify a prior restraint on speech in this case. This is the case that Early was attempting to draw similarities from, however, the example was not justifiable to Beason.
Beason countered Early’s argument, saying that as a prosecutor, Montgomery, unlike other citizens, is required to abide by and take into consideration ethics rules to which she was sworn as an attorney. She also noted the difference in Montgomery’s case as quazi-criminal as opposed to Hurvitz, which was a civil case.
Beason also told Early that Montgomery could have but did not take the opportunity to file or state an objection, nor file a writ to the gag order at the time of its issuance.
Early then told Beason Montgomery never anticipated the video of the Uptown vigil would be made public, even though her statements were made in public. Early also said Montgomery couldn’t recall if the video was posted on the Lassen County District Attorney’s official or personal Facebook account — which it was.
Early argued Nareau’s gag order failed to show a burden of proof that Montgomery’s statements would hinder Esqueda from having a fair trial, by speaking about Esqueda’s undocumented status or alleged prior convictions.
Beason said even if Esqueda were here illegally, he would still be entitled to his constitutional right to due process.
Early accused Beason of broadening the scope of the protective order, calling it “outrageous.”
The subject of Montgomery’s history practicing law also came into focus, to which, Early said Montgomery’s ethics “are beyond reproach.”
Beason also discussed Montgomery’s license status and administrative history — information available on the State Bar of California’s website. Beason noted minor incidents, — things such as late dues and a break in Montgomery’s continuing education. She also noted her knowledge of Montgomery’s conduct during trial, calling her prior behavior professional.
Early told the judge the minor incidents on Montgomery’s record were things many other lawyers would be able, yet reluctant, to admit.
Managing editor Sam Williams contributed to this story.