I dissent.
I begin by expressing sympathy for this able and considerate trial judge. Undoubtedly his patience was worn thin by what he believed, perhaps correctly, were the exasperating and dilatory tactics of petitioner attorney. As any judge with trial court experience realizes, there inevitably arises that one case in a thousand when the tensions of the argument and the over-zealousness of counsel cause righteous anger to overcome normal tolerance and serenity.
If at that moment of humanly understandable rage the judge lashes out in response, the resultant contempt citation not infrequently fails to survive appellate review. That is the circumstance in the instant case. Analyzing the colloquy involved here, I would characterize it precisely as Justice Oliver Wendell Holmes, in his dissent, reacted to the newspaper articles involved in Toledo Newspaper Co. V. United States (1918) 247 U.S. 402 [62 L.Ed. 1186, 38 S.Ct. 560]; “I confess that I cannot find in all this or in the evidence in the case anything that would have affected a mind of reasonable fortitude, and still less can I find there anything that obstructed *260the administration of justice in any sense that I possibly can give to those words.”
In the span of nearly a quarter of a century between 1948 and 1972 there have been innumerable cases involving contempt citations, most of them factually distinguishable, some affirming trial court rulings, some reversing. Of all the cases which can be cited, however, I find the most relevant and persuasive to have been decided in those two years.
Justice Traynor wrote the decision for this court in Gallagher v. Municipal Court (1948) 31 Cal.2d 784 [192 P.2d 905]. In that case three jurors complained to the trial judge that a Mrs. Hill approached them in the corridor of the courthouse during the course of a trial. The judge undertook to examine into this alleged interference with jurors and placed one after another on the stand in order to obtain the facts. Attorney Leo Gallagher appeared and indicated he represented Mrs. Hill. When his attempt to cross-examine the jurors was refused because the court indicated he had no “place in here” during a mere investigation, Gallagher demanded: “You want a fair investigation, don’t you?” He repeated a second time: “But you want a fair investigation?” A third time he said: “I know that, but you want a fair investigation?” He reiterated once more: “Don’t you want a fair investigation of this?” And finally, he undertook to interrogate the court, asking whether his client was under arrest and demanding: “Will you kindly answer that question, Judge, whether she is under arrest at this time? Won’t you hear my argument?”
The trial court found that the statements had been made in a “loud, insolent, aggressive, belligerent, boisterous, harsh, offensive and contemptuous tone of voice and with a sneering and contemptuous expression on his face and a threatening demeanor toward said court and the judge thereof and in disobedience of the lawful orders of the court, and in a disorderly and insolent manner toward the judge of said court.” The court further found that the conduct “did interrupt the due course of said trial and did obstruct the administration of justice and interfere with the orderly proceedings of the court.”
Despite the foregoing fulsome finding, much more pejorative in description than that in the instant order, this court found that there was “nothing contemptuous in petitioner’s words and nothing in the record to show that his conduct tended to interrupt the due course of the examination,” and that petitioner was merely an attorney who had been “regularly and faithfully representing the interests of his client.”
*261In his opinion in Gallagher Justice Traynor pointed out: “Another consideration is the fundamental interest of the public in maintaining an independent bar. Attorneys must be given a substantial freedom of expression in representing their clients. ‘An advocate is at liberty, when addressing the Court in regular course, to combat and contest strongly any adverse views of the Judge or Judges expressed on the case during its argument, to object to and protest against any course which the Judge may take and which the advocate thinks irregular or detrimental to the interests of his client, and to caution juries against any interference by the Judge with their functions, or with the advocate when addressing them, or against any strong view adverse to his client expressed by the presiding Judge upon the facts of a case before the verdict of the jury thereon. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client’s case.’ (Oswald, Contempt of Court (3d ed.), pp. 56-57. See, People v. Rongetti, 344 111. 107, 122 [176 N.E. 292].) The public interest in an independent bar would be subverted if judges were allowed to punish attorneys summarily for contempt on purely subjective reactions to their conduct "or statements.
“An attorney has the duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling. . . . The heat of courtroom debate, particularly where liberty is concerned, often gives rise to persistence on the part of counsel.” (Id. at pp. 795-796, 797.) To the same effect is Raiden v. Superior Court (1949) 34 Cal.2d 83 [206 P.2d 1081], in which a contempt citation was annulled where the attorney asserted the trial judge’s order “defeated the ends of justice.”
Gallagher’s persistent inquiries about a fair investigation undeniably implied that the court was conducting an unfair investigation; yet he was exonerated. His comment was remarkably comparable to petitioner’s statement in the instant case that “This court obviously doesn’t want to apply the law,” a similar implication that the court was conducting an unfair trial.
In 1972 the United States Supreme Court decided In re Little, 404 U.S. 553 [30 L.Ed.2d 708, 92 S.Ct. 659]. While the precise words are not given in the text of the opinion, the Supreme Court found “Petitioner made statements that the court was biased and had prejudged the case.” The trial court’s order recited that the court felt “ ‘[T]hese remarks were very disrespectful and tended to subvert and prevent justice . . . that they reflected on the integrity of the Court and tended to subvert and prevent justice.’ ” (Id. at p. 554 [30 L.Ed.2d at p. 710].)
*262The high court found that the petitioner, acting in pro. per. as his own counsel, was entitled to latitude in conducting his defense and in vigorously espousing his cause. The court cited Craig v. Harney (1947) 331 U.S. 367, 376 [91 L.Ed. 1546, 1552, 67 S.Ct. 1249], that the “law of contempt is not made for the protection of judges who may be sensitive .... Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” The court also recalled the words of caution in Brown v. United States (1958) 356 U.S. 148, 153 [2 L.Ed.2d 589, 596, 78 S.Ct. 622, 72 A.L.R.2d 818], that trial courts “must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.”
The allegations of Little that his trial court was biased and had prejudged the case are far more damning of the judge and the judicial process than the remark of this petitioner that the court did not want to apply the law.
The majority make the heroic declaration that petitioner’s statement about the court not wanting to apply the law “was contemptuous on its face” (ante, pp. 250 and 254-255). I must respectfully disagree. There are, on occasions, perfectly valid reasons for a court to decline “to apply the law.” The judge may believe “the law” has in effect been overruled, that it is anachronistic and no longer relevant or enforceable, that it violates contemporary constitutional principles, that it is oppressive or discriminatory in application. I do not suggest this petitioner had such reservations in mind. Nevertheless I do not believe we can, ipse dixit, declare petitioner’s bare words to be opprobrious, demeaning or contemptuous per se. In short, there are many tolerable interpretations of those precise words.
Since the words are not actionable per se, the fundamental question here is whether the petitioner was, by virtue of that utterance and in the context in which it was said, guilty of disrupting or obstructing the judicial process. I do not believe he was.
First, the colloquy occurred outside the presence of the jury. Thus it could have no influence upon the trier of fact, and did not affect the course of justice in the fact-finding process.
Second, the demand of petitioner to pursue discovery through the person of the prosecutor, though perhaps overly dramatic, was not wholly untenable in the light of this court’s decision in In re Ferguson (1971) 5 Cal.3d 525 [96 Cal.Rptr. 594, 487 P.2d 1234]. He was entitled to argue the point earnestly.
Third, nothing in the record before us reflects any unusual tone of voice, or boisterous or menacing conduct by the petitioner. In this respect the *263order of the trial court is less supportable than that which we reversed in Gallagher.
Fourth, while the trial court stated in the contempt order that the statement “tended to interrupt the due course of the trial then in progress” the court fails to describe how a mere one-sentence statement, in the context of a discussion, albeit heated, over a point of law, and as distinguished from conduct, could in fact interrupt the proceedings. The entire episode was concluded in a matter of seconds, and it did not in actuality interrupt, disturb, delay, or in any manner affect the trial or its result.
Finally, I find it impossible to interpret petitioner’s apology, rendered after overnight contemplation, as confirming or aggravating the purported contempt. I fail to discern anything in the words of counsel other than a modest effort to express contrition for having offended the- court. For the trial judge to perceive in the attempted apology an exacerbation of the original offense suggests, as of that time, an Unfortunate departure from judicial objectivity.
The apology issue was referred to in the most celebrated contempt case in California history, involving Stephen J. Field, found in the very first volume of California Reports (People v. Turner (1850) 1 Cal 152). Justice Bennett, one of the original three justices of the Supreme Court, wrote (at p. 153): “The power thus vested in a court is necessarily of an arbitrary nature, and should be used with great prudence and caution. A judge should bear in mind that he is engaged, not so much in vindicating his own character, as in promoting the respect due to the administration of the laws; and this consideration should induce him to receive as satisfactory any reasonable apology for an offender’s conduct.” (See Mosk, Direct Contempt (1956) 31 State Bar J. 510, 523.)
There is no doubt that a trial court must deal with both obstruction and disruption of a trial by therapeutic use of the contempt power. Where nothing more than disrespect or discourtesy is involved, however, the dangers of abuse of the contempt power generally outweigh the benefits of using that weapon. The readiness of some judges to find contempt in conduct susceptible of various interpretations, and the capacity of others to provoke an unseemly response by their own imperious behavior on the bench, suggest the dangers of abuse. It must be emphasized that mere personal insult or irritating conduct should not be confused with legally contemptuous behavior. The nature of the trial as constructive human effort to reach a just result must be preserved and enhanced, and no person, whatever his role, should create by his conduct an atmosphere that makes *264this impossible. But personal discourtesy, even insult, is on a relatively trivial plane in the whole scheme of things, and a certain amount should be tolerated when it falls short of actually interfering with the proceedings of the trial. (Note, Contempt of Court (1971) 56 Cornell L.Rev. 183, 208.)
Some opinions speak of contempt in terms of lessening the dignity of the court. (See, e.g., People v. Gholson (1952) 412 HI. 294 [106 N.E.2d 333, 335].) On that subject Professor Max Radin said: “Judicial dignity is an important element of our system and serves a real legal function.” But, he added, “It is, however, not a legal duty to be well mannered and it may even be said that it would be unconstitutional to make it one. . . . [T]here is no reason why the dignity of the court should take such dimensions or assume such a character that it demands awe or veneration.” (Radin, Freedom of Speech and Contempt of Court (1942) 36 Ill.L.Rev. 599, 610.)
I would issue the writ.
Tobriner, J., concurred.
Petitioner’s application for a rehearing was denied November 28, 1973. Tobriner, J., and Mosk, J., were of the opinion that the application should be granted.