Some Surprisingly Tolerant Judges out There in Pennsylvania

From Commonwealth v. Outlaw, decided Thursday by Pennsylvania Supreme Court Justice David Wecht, writing for a unanimous court:

In June 2022, Philadelphia County Court of Common Pleas Judge Roxanne E. Covington was holding a hearing on a motion to suppress evidence in Marquis McClain's criminal case. Seated in the gallery of the courtroom was McClain's acquaintance, Basile Outlaw. After Judge Covington announced that she would be denying McClain's suppression motion, Outlaw stood up and said "the judge is a cocksucker" loud enough for Judge Covington to hear. Judge Covington responded, "What did you say?" Outlaw replied: "Never mind. I'm leaving." Outlaw then exited the courtroom.

A deputy sheriff and a court employee began searching the building for Outlaw. The trial court recessed the suppression matter to allow McClain's defense attorney to confer with his client in the wake of the court's suppression ruling. The court subsequently adjourned, but Judge Covington asked McClain's attorney to "stick around for another moment … just in case." Around this time, Outlaw came back to the courtroom on his own, at which time he was taken into custody for direct criminal contempt.

Outlaw was tried and sentenced "to fifteen to thirty days' incarceration"; he served thirty days. But the Pennsylvania Supreme Court reversed the conviction:

Specifically at issue here is Subsection 4132(3) [of the Pennsylvania Crimes Code]. A conviction under that Subsection "requires proof beyond a reasonable doubt: (1) of misconduct, (2) in the presence of the court, (3) committed with the intent to obstruct the proceedings, (4) which obstructs the administration of justice." This Court has held that, "[f]or conduct to constitute an obstruction of the administration of justice, it must significantly disrupt judicial proceedings." This means that "[r]emarks that are injudicious, or even disrespectful, will not, without more, justify a summary conviction for contempt of court." To illustrate these principles, consider Williams v. Williams, where a pro se attorney in a custody dispute reacted injudiciously to a trial judge's evidentiary ruling:

The Court: Objection is sustained.

Williams: He's such a fucking asshole.

Opposing Counsel: I heard him say that you are such a fucking asshole. I heard it as an officer of the court. And the stenographer is nodding her head. That's exactly what he said, "He is such a fucking asshole." And he said it under his breath. And as an officer of the court, I am standing here, and I am testifying that that's exactly what he said.

The trial court held Williams in contempt. On appeal, however, this Court held that Williams' remark did not obstruct the administration of justice because, although "there was a momentary break in the proceedings" due to Williams' comment, "the hearing resumed quickly," "[t]he entire incident encompassed just three and a half pages of hearing transcript," and "[s]uch a transient delay is not an obstruction of justice." Expounding upon the statutory requirement that the contemnor must "obstruct[t] the administration of justice," we explicitly stated that "[i]nappropriate and even ill-mannered conduct which does not obstruct or delay the trial falls short of the misbehavior punishable under 42 Pa.C.S. § 4132(3)."

Consistent with Williams is Behr v. Behr, where a pro se litigant brought to family court a box of documents that had the word "DEATH" scrawled on it in faint orange highlighter. The box remained under the litigant's table for the entire hearing, and only after the proceeding concluded did anyone notice it. The trial court held the litigant in contempt, but this Court reversed, concluding that the litigant's conduct did not significantly disrupt the judicial proceeding. We also rejected the trial court's suggestion that a significant disruption occurred when the presence of the box triggered an investigation and subsequent contempt hearing. We called this "circular reasoning" because, if we accepted the argument, it would mean that "any time a court reconvenes a hearing to investigate alleged misconduct, the alleged contemnor has automatically obstructed the administration of justice." …

The circumstances of this appeal are analogous to those in Williams. The insult that Outlaw directed at the court here ("the judge is a cocksucker") is offensive in a manner similar to the remark made in Williams ("He's such a fucking asshole."). Both comments fall well below the expected standard of courtroom decorum, and both contemnors made their comments in response to judicial rulings with which they disagreed. Furthermore, the delay to the proceedings in this case was limited to the judge asking Outlaw "What did you say?", followed by Outlaw responding "Never mind. I'm leaving." This is the exact sort of "transient delay" or "momentary break in the proceedings" that we held in Williams cannot serve as the basis for a conviction under Subsection 4132(3). …

[A]t common law, judges had broad authority to impose contempt for insulting remarks that undermine the court's authority with the public. This sweeping authority continued to be enforced well into the twentieth century. In Appeal of Levine (Pa. 1953), for example, we affirmed the contempt conviction of a District Attorney who responded to a scheduling misunderstanding by saying to a trial judge: "that's the way with this court, always mixing things up; everything is set on one day." Upholding the contempt conviction, this Court described the inherent contempt powers possessed by trial courts in extremely broad terms, saying that: "[g]enerally speaking, one is guilty of contempt when his conduct tends to bring the authority and administration of the law into disrespect."

Appeal of Levine represents perhaps the zenith of judicial contempt authority in the Commonwealth of Pennsylvania. The Appeal of Levine Court itself admitted that the judicial power to punish all disrespectful conduct committed in the court's presence is "arbitrary in [ ] nature and liable to abuse." Following Appeal of Levine, the judicial contempt powers were codified and limited by the General Assembly's enactment of 42 Pa.C.S. § 4132. Our decisions interpreting that statutory codification, including Williams, Behr, and Campolongo, retreated from Appeal of Levine's maximalist approach and stressed that "[i]nappropriate and even ill-mannered conduct which does not obstruct or delay the trial falls short of the misbehavior punishable under 42 Pa.C.S. § 4132(3)." These decisions also emphasized that "trial judges are supposed to be persons of fortitude who are able to thrive in a hardy environment, and they must be on guard against confusing offenses to their sensibilities with obstruction of the administration of justice."

The OAG's [Office of the Attorney General's] argument cannot be squared with these contemporary precedents. Under the OAG's proposed approach, virtually all disrespectful remarks or profane language would be contemptuous, so long as the comment can be said to risk undermining the court's authority in the minds of the public. Indeed, the OAG maintains that "spewing" vulgar language of any kind while court is in session constitutes an obstruction to the administration of justice (even if it does not delay the proceedings) because such language "weakens the public's faithful adherence to a court's judgments and rules of decorum." The OAG's view of the law is not compatible with this Court's precedent, which holds that there can be no obstruction of the administration of justice within the meaning of the Judicial Code absent a significant disruption to the judicial proceeding. …

Justice Sallie Updike Mundy concurred, joined by Justices Kevin Dougherty and Kevin Brobson:

[W]e have not been asked to reconsider our holdings in [cases such as Williams], and absent such a request, this Court must adhere to these decisions…. I write separately to emphasize my agreement with Chief Justice Emeritus Saylor's dissent in Williams:

While not every intemperate remark will cross the line which separates zealous advocacy from contemptuous conduct, in my view the vulgar and insulting language at issue was appropriately punishable summarily as direct contempt. [Williams'] remarks were not only injudicious and disrespectful-the epithets directed at the Court were an affront to the authority and dignity of the tribunal and thus alone sufficient to constitute interference with the due and orderly administration of justice.

Like my esteemed former colleague, on a clean slate, I too would have found Williams' conduct punishable under Section 4132(3).

In fact, I find the use of the word "significant" throughout the majority in Williams, amongst other cases, when discussing disruptions that constitute "obstruction of the administration of justice" to be nebulous and subject to disparate interpretations. Merriam-Webster defines "significant" as, inter alia, "having meaning[,]" "large enough to be noticed or to have an effect[,]" and "having or likely to have influence or effect." Clearly, the trial court found the interruption caused by Outlaw's vulgar outburst to be "large enough to be noticed[.]"While I understand "that trial judges are supposed to be persons of fortitude who are able to thrive in a hardy environment," I find the act of calling a judge a "cocksucker" to be an "affront to the authority and dignity of the tribunal[,]"which was historically adequate to support a finding of contempt….

Keisha Nicole Hudson and Aaron Joshua Marcus (Defender Association of Philadelphia) represent Outlaw.