KLINE, P. J. I concur.
Justice Miller has in my view reached the right result for the wrong reason. I think it unnecessary to reach the constitutional issue,1 for on the unique facts of [868]this case I would not sustain the judgment even if persuaded the court’s questioning were constitutionally valid. Moreover, I believe the most significant issue raised by this case relates more to the proper treatment of jurors than the rights of women.
Our first responsibility is simply to ascertain whether there was sufficient evidence of the jurisdictional facts necessary to sustain the judgment and order. (In re Buckley (1973) 10 Cal.3d 237, 247 [110 Cal.Rptr. 121, 514 P.2d 1201], quoting In re Ciraolo (1969) 70 Cal.2d 389, 394 [74 Cal.Rptr. 865, 450 P.2d 241]; see also Arthur v. Superior Court (1965) 62 Cal.2d 404, 409-410 [42 Cal.Rptr. 441, 398 P.2d 777]; and In re Mason (1924) 69 Cal.App. 598, 603-605 [232 P. 157].) In making this determination we must keep in mind that the summary contempt power is the ultimate judicial weapon and must therefore be employed with great prudence and caution, lest it be improperly used to stifle freedom of thought and speech. (In re Buckley, supra, at p. 249; Smith v. Superior Court (1968) 68 Cal.2d 547, 560 [68 Cal.Rptr. 1, 440 P.2d 65]; Lyons v. Superior Court (1955) 43 Cal.2d 755, 762 [278 P.2d 681].) Because a contempt citation is of a criminal nature, “no presumptions of validity may be indulged in support of judgments in contempt, as would be the case with respect to ordinary judgments.” (Freeman v. Superior Court (1955) 44 Cal.2d 533, 536 [282 P.2d 857]; see also Raiden v. Superior Court (1949) 34 Cal.2d 83, 86 [206 P.2d 1081] and Martin v. Superior Court (1962) 199 Cal.App.2d 730, 738 [18 Cal.Rptr. 773].)
It is for me supremely relevant to the question whether petitioner’s conduct was contemptuous that it occurred while she was being examined as a prospective juror. Unlike all others who appear before the bench, prospective jurors are prospective judges. This fact has critical implications, and not just for those to be judged. As de Tocqueville astutely reminds us, our jury process “instill[s] some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.” (de Tocqueville, Democracy in America (George Lawrence, transí.; J.P. Mayer, edit.; Anchor Books 1969) p. 274.) The American jury, he observed, “should be regarded as a free school which is always open and in which each juror learns his rights, . . . and is given practical lessons in the law . . . .” (Id., at p. 275.) de Tocqueville also discerned that because it represents society “the jury, though seeming to diminish the magistrate’s rights, in reality enlarges his sway, and in no other country are judges so powerful as in those where the people have a share in their privileges.” (Id., at p. 276; see generally The Jury System in America (Simon edit. 1975).) Elevation of these salutary purposes, which are too easily lost sight of in the day-to-day work of the courts,2 and the very integrity of the justice system require the willing par[869]ticipation of our people. If the diverse views that are today commonly and properly represented on a venire in this state are unnecessarily penalized, then, as the Supreme Court pointed out in a different context, those fit for juries “will either shun the burdens of the service or perform it with disquiet and disgust” (Sinclair v. United States (1929) 279 U.S. 749, 765 [73 L.Ed. 938, 946, 49 S.Ct. 471, 63 A.L.R. 1258]),3 and trial by capable juries might become an impossibility.4
The only phase of trial in which jurors extensively interact with court and counsel is upon voir dire, which means “to speak the truth. ” Prospective jurors who conscientiously dare to speak and act upon their personal truth must not presumptively be deemed to have behaved improperly. For this reason, and because the refusal of a prospective juror to answer a question may not in all circumstances be inexcusable, this case falls within a class of contempts that should be measured by a higher standard than normally applies.
As stated in In re Jasper (1973) 30 Cal.App.3d 985 [106 Cal.Rptr. 754], “[o]rdinarily, a specific wrongful intent is not an essential element in contempt proceedings [citation] and a disavowal of intentional disrespect or wrongful intent is not a defense therein. [Citation.] However, an examination of other cases shows that there exists a class of contempts, where an act is of only doubtful propriety, in which intent does go to the gravamen of the offense and good faith or lack of it on the part of the contemner may determine whether a contempt occurred. [Citations.]” (Id., at p. 988; see also In re Carrow (1974) 40 Cal. App.3d 924, 933 [115 Cal.Rptr. 601] and In re Burns (1958) 161 Cal. App.2d 137, 141, 143 [326 P.2d 617].) The requirement of specific wrongful intent is indeed a strict one, but the law on contempt is strict, for it is criminal in nature; and the imposition of an essentially criminal penalty for conduct that may represent the conscientious commitment to principle warrants the closest scrutiny.
The central issue in this case, then, is did petitioner possess the specific wrongful intent to impeach or embarrass the court or interrupt its proceedings [870]or, to the contrary, did she act on principle and in good faith? This inquiry most appropriately begins with an analysis of the trial court’s order.
Code of Civil Procedure section 1211 provides that for a contempt to be treated summarily “an order must be made, reciting the facts as occurring in [the] immediate view and presence [of the court], adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.” (See also In re Hallinan (1969) 71 Cal.2d 1179, 1180 [81 Cal.Rptr. 1, 459 P.2d 255].) Compliance with this provision is a jurisdictional requirement, which can be met only if the order summarily punishing a direct contempt “recites facts with sufficient particularity to demonstrate on its face that petitioner’s conduct constituted a legal contempt.” (In re Buckley, supra, 10 Cal.3d at p. 247.)
The sole basis set forth in the order for finding petitioner’s behavior contemptuous was that her refusal to answer the question in issue “created an impasse interrupting the course of the proceeding then in progress. ”5 The only act or omission relating to the interruption of judicial proceedings statutorily defined as contempt of court and here pertinent is set forth in Code of Civil Procedure section 1209, subdivision 1, as follows: “Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.” In other words, it is not the mere interruption that constitutes contempt within the meaning of the statute, but “disorderly, contemptuous or insolent behavior” tending to do so.6 Admittedly, the list of acts or omissions which may constitute contempt of court set forth in section 1209 is not exclusive, “for the power of a court to punish by contempt an act which impugns its integrity exists independent of statute,” (In re Buckley, supra, 10 Cal.3d at p. 248, fn. 14.) But the case law definition of contempt also requires an act that “ ‘tends to impeach, embarrass or obstruct the court in the discharge of its duties.’” (Lloyd v. Superior Court (1982) 133 Cal.App.3d 896, 900 [184 Cal.Rptr. 467], quoting In re Shortridge (1893) 99 Cal. 526, 532 [34 P. 227].) Nowhere in the order appealed from is there any statement regarding petitioner’s intent or any indication that her conduct was insolent, rude or disrespectful. The order simply sets forth the conclusory declaration that the interruption caused by the refusal to answer “constituted contemptuous behavior.”
[871]Attached to and made a part of the trial court’s order is a full transcript of both the portion of the voir dire proceedings at issue and the sentencing hearing. These transcripts not only fail to support the conclusion that petitioner intended to act contumaciously or disrespectfully, but support the opposite conclusion, virtually conceded by the trial court, that she acted on principle and in good faith.
The colloquy between the court and petitioner at voir dire, which is set forth in its entirety in Justice Miller’s opinion, need not be reiterated. (Though it is relevant to note that the “interruption” this colloquy assertedly represents could not have lasted much longer than a minute and a half.) The statements of the court and petitioner at the sentencing hearing do specifically relate to petitioner’s intent. At this hearing petitioner explained her position as follows: “What I was objecting to . . . was the inference . . . that [women] would be influenced by their spouse and the men, on the other hand, . . . wouldn’t be influenced by their spouses because you had no questions of any man ... as to what their spouses did. And, I felt this line drawn between the men and women prospective jurors this morning very, very strongly. And I was hoping I wouldn’t be called ... to the jury box because I knew I would have to object. I had wanted to keep my objections to possibly a letter to you afterwards, but, unfortunately, when my name was called and I had to go forth and answer the questions, I had to decide whether I was going to participate in this or not and I elected not to and I don’t feel as a citizen I have to. ... [if] ... I did not come in here to make a statement. I’m not known for my espousal of erratical [szc] causes. All I know is it just hurt my gut. And that’s why I took the stand I did.”
To this and related explanations, the trial judge’s response included the following comments: “. . . I think you’re honest about that and—that does give me some feelings for this too. If you were a person who just thumbed their nose at authority, just flat because it’s authority, then I would see it a different way. But I don’t see it in that way with you. I think you’re a woman of high principles and an attorney of high principles and that you’ve done this feeling that, in your own mind, justifiably, that you were going to make a stand and you did make the stand. ...”
At no time during this hearing was it ever suggested by the trial judge that he considered petitioner’s admittedly principled conduct to be insolent or disrespectful. The only explanation provided for finding her in contempt is the following statement of the trial judge: “The refusal to answer questions upon request of the Court, of course, is a contemptuous matter under [Code of Civil Procedure section] 1211. [The intended citation is to § 1209, not § 1211.] You raise no grounds—no reason why you should not answer those quesions—any constitutional reasons that would tend to incriminate you or any such privilege you may have. Consequently, the Court had no alternative but to feel that you [872]were directly opposed to answer that question by your own will. You just did not want to answer the question. You weren’t going to. And that’s contemptuous of the Court’s power. So, that was the reason for it.” When petitioner thereupon restated that she refused to answer because she felt the pattern of questioning was “insulting to all women,” the court responded: “I understand your position, as a matter of fact, I agree with your position, and have all along.”
In short, not only is there no finding by the court or evidence in the record that petitioner acted in an insolent manner or possessed the specific intent to embarrass the court or interrupt its proceedings, but the trial court specifically acknowledged that petitioner acted on the basis of an articulated principle and did so respectfully and in good faith. On this record I cannot conclude that petitioner’s conduct was wilfiil “in the sense that it is inexcusable,” which is an essential element in this class of contempts. (In re Burns, supra, 161 Cal. App.2d at p. 141.) The excuse for the failure to respond, as petitioner repeatedly stated at the sentencing hearing, was that her conscience did not permit her to participate in a pattern of questioning she believed “insulting”; a belief the trial court allowed was genuine. The validity of this excuse is not in any way affected by the fact that petitioner is an attorney. Prospective jurors serve only in their capacity as citizens. To enlarge or diminish the rights and duties of a prospective juror according to his or her professional status would be fundamentally inimical to the concept of the jury and have numerous adverse and even dangerous consequences.
The reported cases provide little guidance on the question whether the exercise of conscience provides an acceptable excuse for the refusal of a prospective juror to answer a question upon voir dire.7 There being no reported case precisely on point, those most analogous to the one before us are cases in which a prospective juror was cited for contempt for refusal to serve.
As will be seen, the dispositions of these cases also turn upon the motive and intent of the potential contemner. In In re Jenison (1963) 265 Minn. 96, 97 [120 N.W.2d 515, 516], the defendant refused to serve on the jury on the ground that it was in contravention of a statement in the New Testament, “Judge not, so you will not be judged.” The defendant’s conviction of contempt was affirmed by the Minnesota Supreme Court, which found it did not offend the state or federal constitutions, and that refusal to serve as a juror was inconsistent [873]with the peace and safety of the state. (Ibid.) This ruling was vacated by the United States Supreme Court, which remanded the case for further consideration. (In re Jenison (1963) 375 U.S. 14 [11 L.Ed.2d 39, 84 S.Ct. 63].) Upon remand the Minnesota high court held there was an inadequate showing that the state’s interest required the overriding of the defendant’s right of free exercise of her religious belief. In reversing the contempt conviction the court specifically noted that, as in the present case, the contemner demonstrated her sincerity by her willingness to go to jail rather than compromise her conscientious belief.8 (In re Jenison, supra, 267 Minn. 136, 137 [125 N.W.2d 588, 590].)
One of the most celebrated refusal to serve cases is United States v. Hillyard (E.D.Wash. 1943) 52 F.Supp. 612, which is noteworthy among other reasons because rendered by a trial rather than an appellate court. The defendant in that case, a member of Jehovah’s Witnesses, refused to serve for religious reasons. Though the trial judge had no doubt about the defendant’s sincerity, the judge felt the defendant’s refusal “constituted such a challenge to the authority of the court as to require more formal inquiry and consideration” and had him cited to show cause why he should not be punished for contempt. Concluding that the decided cases provided little or no assistance, the trial judge looked instead to “the history of the times” in which the First Amendment was drafted; specifically the writings of James Madison and Thomas Jefferson. (United States v. Hillyard, supra, at p. 615.) On this basis the judge felt constrained to dismiss the contempt action. The judge stated that, “[w]hile I cannot understand defendant’s reasoning and cannot accept his conclusion, I must admit that his refusal to serve does not amount to a breaking out ‘into overt acts against peace and good order. ’ I have no fear that the prestige of this court will be diminished by this result. Fortunately, in this country the dignity of a court does not depend on its use of its power. Oftentimes a free government can best demonstrate its strength by frugality in its use. Power need not always beget force. Only those who need rely on power must always use it.” (United States v. Hillyard, supra, at p. 615.)
If the contempt power is inappropriate to punish a prospective juror who for reasons of conscience will not serve, it is at least equally inappropriate to punish a prospective juror who for the same reason refuses to answer a particular question.9
[874]The use of this drastic remedy in the unique circumstances of the present case was in part unwarranted because other alternatives were available. The most obvious alternative for the trial judge was to accept petitioner’s suggestion and put the question in issue to the male prospective jurors, as counsel were sure to do in any case. Acknowledging the validity of petitioner’s objection need not have embarrassed the court or undermined its dignity; indeed, it may well have been less embarrassing and more dignified than the course taken. But there were other alternatives also available. If the trial judge believed preservation of judicial dignity precluded concession he could simply have excused petitioner from service in the case. A third alternative was to pass the question objected to and leave its further pursuit to counsel, who probably learned more about petitioner from her refusal to answer than they would from a response.
By ignoring the foregoing and other alternatives and instead holding petitioner in contempt of court, the trial judge might have created a serious problem in the trial of the case then before him. The severe punishment10 imposed upon petitioner for acting upon the widely shared belief that women should be treated no differently than men may well have offended other members of the venire.11 Such antipathies could, during trial, have induced some members of the jury to ignore evidentiary and other rulings by the court, thereby impairing the right of the litigants to a fair trial. While the record before us sheds no light on this matter, and the possibility that the court’s action adversely infected the venire is admittedly speculative, the possibility exists nonetheless and provides additional reason for prudence in the use of the contempt power against a prospective juror.12
I am mindful that in the removed atmosphere of the appellate courts it is too easy to minimize the exigencies that regularly confront the trial courts. It is not my purpose to do so here; nor certainly to suggest that under no circumstances [875]may a recalcitrant member of a venire properly be held in contempt of court. My decision is strictly and very narrowly limited to the uncommon situation in which a prospective juror, acting upon moral principle, is conscientiously and in good faith unwilling to fully participate in voir dire for an articulated reason rationally related to the asserted principle and does so in a respectful manner. Acts such as these, which when committed by a prospective juror are not in all instances manifestly improper, are within that special class of contempts in which wrongful intent is essential to the offense and good faith may excuse what might otherwise properly be considered contemptuous conduct. {In re Jasper, supra, 30 Cal.App.3d at p. 988.) The latitude granted prospective jurors by this rule is warranted by the nature of their role; it does not deprive the courts of any power essential to our function. It is well to remember, in this connection, that as reiterated by the United States Supreme Court in In re Little (1972) 404 U.S. 553,555 [30 L.Ed.2d 708,711, 92 S.Ct. 659], “ ‘[T]he law of contempt is not made for the protection of judges who may be sensitive .... Judges are supposed to be men [and women] of fortitude, able to thrive in a hardy climate.’ Craig v. Harney, 331 U.S. 367, 376 (1947). ‘Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’ Brown v. United States, 356 U.S. 148, 153 (1958).”
Because petitioner was a prospective juror and the record demonstrates she acted during voir dire on the basis of a moral principle asserted respectfully and in good faith, I concur in the judgment setting aside the judgment of contempt.
“A court will not decide a constitutional question unless such construction is absolutely necessary." (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [195 P.2d 1], quoting Estate of Johnson (1903) 139 Cal. 532, 534 [73 P. 424]; see also People v. Williams (1976) 16 Cal.3d 663, 667 [128 Cal.Rptr. 888, 547 P.2d 1000], and 13 Cal.Jur.3d, Constitutional Law, § 57, pp. 106-108, and cases there cited.)
On matters one ex-juror believed too regularly overlooked by trial judges, and the remedial role of the jury with respect thereto, see Chesterton, The Twelve Men, in Tremendous Trifles (12th ed. 1930) pages 55-59.
The conduct condemned in Sinclair was the strict and systematic surveillance of jurors by a corps of private detectives procured by the defendant in a criminal case and by others acting at his direction. Such surveillance was held a criminal contempt on the part of its instigators, as it “tended to obstruct the honest and fair administration of justice” (Sinclair v. United States, supra, 279 U.S. at p. 764 [73 L.Ed. at p. 946]).
Such an unfortunate eventuality is not entirely speculative. An empirical study of prospective jurors in an area of New Jersey “clearly shows that the majority of the citizens selected for jury service did not wish to serve for a variety of reasons.” (Richert, Juror’s Attitudes Toward Jury Service (1977) 2 The Justice System J. 233, 243.) As the author of the study concluded, this finding “undermines ... the possibility of the jury serving as a major agent of socialization since as a result of their opposition many citizens will not serve as jurors, and those who end up as veniremen may harbor resentment. It is difficult to see how under such circumstances juries may develop participatory attitudes, or feelings of sympathy toward judicial institutions. ” (Id., at p. 244.)
This bare statement is far less informative than the order of the trial court in In re Buckley, supra, 10 Cal.3d at page 245, footnote 10, which also found that the contemnor had interrupted court proceedings but failed to specifically find that the petitioner’s statement was made “in a loud, boisterous, insolent or rude manner.” (Id., at p. 246.) The Supreme Court remedied this defect by an examination of the record, as we are similarly required to undertake here.
See also Code of Civil Procedure section 1209, subd. 2, which also defines as contempt of court “A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding.”
Most of the few reported cases in which a prospective juror has been held in contempt of court involve concealment or wilful misstatement of facts upon voir dire and are not here germane. (See, e.g., Clark v. United States (1933) 289 U.S. 1 [77 L.Ed. 993, 53 S.Ct. 465]; United States v. Henson (D.D.C. 1959) 179 F.Supp. 474; United States v. Lampkin (S.D.Fla. 1946) 66 F.Supp. 821; In re Bassett (1939) 172 Mise. 613 [15 N.Y.S.2d 737]; People v. Hadesman (1921) 223 Ill.App. 219; and Murphy v. Wright (1914) 167 Iowa 75 [148 N.W. 985].)
The court conceded the difficulty of ascertaining in particular cases whether a prospective juror was acting sincerely. “Where a juror is a member of a faith which includes as a part of its dogma a prohibition against jury duty, the problem is relatively simple. It becomes more difficult when a personal religious conviction, unrelated to any sectarian creed, is claimed. Suffice it to say that trial courts will have to determine in each instance, with whatever evidence is at hand, whether or not the assertion of a belief which is protected by the First Amendment is in fact a spurious claim.” (In re Jenison (1963) 267 Minn. 136 at p. 137 [125 N.W.2d at pp. 589-590, 2 A.L.R.3d 1389].)
It is useful to emphasize that because petitioner here was not offended by the substance of the [874]question, and was willing to answer if the same question were put to all members of the venire, this case does not present any issue relating to the right to privacy. On the right to privacy of prospective jurors on voir dire see United States v. Barnes (2d Cir. 1979) 604 F.2d 121 and Lehman v. City and County of San Francisco (1978) 80 Cal.App.3d 309 [145 Cal.Rptr.493]; see also Comment, The Right to Privacy of Prospective Jurors During Voir Dire (1982) 70 Cal.L.Rev. 708, and Comment, Voir Dire Limitations as a Means of Protecting Jurors’ Safely and Privacy: United States v. Barnes (1980) 93 Harv.L.Rev. 782.
After holding petitioner in contempt, and in the presence of the entire venire, the trial court ordered the bailiff to immediately place petitioner in custody.
For empirical evidence of adverse juror reaction to sexually discriminatory questions of women on voir dire, see Breeder, Voir Dire Examinations: An Empirical Study (1965) 38 So.Cal.L.Rev. 503, 527.
The nature of the interaction between members of the venire and the court during voir dire can be critical because “[h]ow jurors perceive their judge’s perception of them affects their morale and will.” (Kerig, Perceptions From a Jury Box (1979) 54 State Bar J. 306, 313. See also Voir Dire Examinations: An Empirical Study, supra, at p. 505.)