From Commonwealth v. Outlaw, handed down on Thursday by Pennsylvania Supreme Court Justice David Wecht, who wrote for a unanimous bench:
In June 2022, during a hearing before Philadelphia County Court of Common Pleas Judge Roxanne E. Covington on a motion to suppress evidence in Marquis McClain’s case, Basile Outlaw—an associate of McClain—was present in the courtroom gallery. After Judge Covington announced her decision to deny the suppression request, Outlaw rose and loudly denounced the judge as a “jerk,” a remark that reached the judge. The judge asked, “What did you say?” Outlaw replied: “Never mind. I’m leaving.” Outlaw then departed from the room.
A deputy sheriff and a court employee began a search of the building for Outlaw. The suppression matter was temporarily adjourned to give McClain’s defense counsel an opportunity to consult with his client in light of the ruling. The court eventually recessed, yet Judge Covington invited McClain’s attorney to remain for a little longer “just in case.” Shortly thereafter, Outlaw returned to the courtroom on his own, and he was taken into custody for direct criminal contempt.
Outlaw faced trial and received a sentence of “fifteen to thirty days’ imprisonment”; he served thirty days. The conviction, however, was subsequently reversed by the Pennsylvania Supreme Court:
At the heart of the case is Subsection 4132(3) of the Pennsylvania Crimes Code. A conviction under that provision requires proof beyond a reasonable doubt of (1) misconduct, (2) in the presence of the court, (3) committed with the intent to obstruct the proceedings, (4) which in turn obstructs the administration of justice. The Court has held that for conduct to amount to obstructing the administration of justice, it must significantly disrupt judicial proceedings. This means that remarks that are ill-advised or even disrespectful will not, on their own, justify a summary contempt conviction under 42 Pa.C.S. § 4132(3). To illustrate these ideas, see Williams v. Williams, where a self-represented attorney involved in a custody dispute reacted poorly to a trial judge’s ruling on an evidentiary matter:
The Court: Objection sustained.
Williams: He’s such a damn fool.
Opposing Counsel: I heard him say that you are such a damn fool. I heard it in my role as a court officer. The stenographer nods in agreement. That’s precisely what he said, that “he is such a damn fool.” He uttered it under his breath. And as a court officer, I testify that that is exactly what he said.
The trial court found Williams in contempt. On appeal, the Court held that Williams’ remark did not obstruct the administration of justice because, although there was a brief interruption in the proceedings due to Williams’ comment, the hearing resumed quickly, and the incident occupied only a small portion of the transcript; such a temporary delay does not amount to an obstruction of justice. In clarifying the statutory obligation that the contemnor must “obstruct the administration of justice,” this Court expressly stated that “improper and even ill-mannered conduct that does not impede or delay the trial falls short of the misbehavior punishable under 42 Pa.C.S. § 4132(3).”
Behr v. Behr follows this same line of reasoning, where a pro se party brought a box of papers to family court with the word “DEATH” scribbled on it in pale orange highlighter. The box remained under the party’s table throughout the hearing and was only noticed after the proceedings concluded. The trial court found the litigant in contempt, but the Court reversed, concluding that the conduct did not meaningfully disrupt the judicial process. The Court also rejected the trial court’s notion that the box’s presence triggered an investigation and a contempt hearing, describing that argument as “circular reasoning,” because accepting it would imply that whenever a court reconvenes a hearing to investigate alleged misconduct, the alleged contemnor automatically obstructed the administration of justice. …
The facts here resemble those in Williams. The insult aimed at the court by Outlaw in this case—“the judge is a cock—the judge”—occurs in a way that mirrors Williams’ disrespectful remark in its crude nature. Both remarks fall well short of the expected standard of courtroom decorum, and both contemnors directed their comments at rulings with which they disagreed. Moreover, the only disruption to the proceedings was the judge asking Outlaw, “What did you say?” followed by Outlaw’s reply, “Never mind. I’m leaving.” This precisely constitutes the kind of transient delay or momentary interruption that we held in Williams cannot sustain a conviction under Subsection 4132(3). …
At common law, judges enjoyed broad power to impose contempt for insulting remarks that undermined the court’s authority before the public. This sweeping authority persisted well into the twentieth century. In Appeal of Levine (Pa. 1953), for instance, we affirmed the contempt conviction of a District Attorney who, in response to a scheduling misunderstanding, told a trial judge: “that’s the way with this court, always messing things up; everything is set for one day.” In upholding the contempt conviction, the Court described the inherent contempt powers of trial courts in very expansive terms, stating that, generally speaking, one is guilty of contempt when one’s behavior tends to bring the court’s authority and the administration of the law into disrespect.
Appeal of Levine is often viewed as the apex of Pennsylvania’s judicial contempt power. The Court in Appeal of Levine itself acknowledged that the power to punish all disrespectful conduct in the court’s presence is inherently arbitrary and susceptible to misuse. After Appeal of Levine, the General Assembly codified and curtailed these powers through 42 Pa.C.S. § 4132. Our subsequent decisions interpreting that codification—such as Williams, Behr, and Campolongo—moved away from Levine’s expansive stance and stressed that “improper and even ill-mannered conduct that does not obstruct or delay the trial falls short of the misbehavior punishable under 42 Pa.C.S. § 4132(3).” They also underscored that trial judges must be sturdy and capable of withstanding affronts to their sensibilities without mischaracterizing such offenses as obstruction of the administration of justice.
The OAG’s argument does not align with these modern precedents. If accepted, nearly any disrespectful remark or profane language could become contempt simply because it might undermine the public’s faith in the court’s authority. Indeed, the OAG maintains that “spewing” vulgar language during court sessions constitutes obstruction to the administration of justice (even absent any delay) because such language could erode the public’s trust in the court’s judgments and standards of decorum. This Court’s precedent, however, requires a substantial disruption of the judicial process to constitute obstruction of justice under the Judicial Code. …
Justice Sallie Updike Mundy filed a concurrence, joined by Justices Kevin Dougherty and Kevin Brobson:
[W]e were not asked to revisit our rulings in cases like Williams, and absent such a request, this Court must continue to follow those decisions…. I write separately to emphasize my agreement with Chief Justice Emeritus Saylor’s dissent in Williams:
Although not every heated remark crosses the line between vigorous advocacy and contempt, I view the vulgar and insulting language at issue as properly punishable, on a direct contempt basis, without delay. The remarks in Williams were not only ill-advised and disrespectful—the insults aimed at the Court struck at the tribunal’s authority and dignity, and thus alone sufficed to interfere with the proper administration of justice.
Like my respected former colleague, I would, on principle, have deemed Williams’ conduct punishable under Section 4132(3).
Indeed, I find the repeated use of the word “significant” throughout the majority’s treatment of Williams and related cases, when describing disruptions that qualify as “obstruction of the administration of justice,” to be vague and amenable to inconsistent readings. Merriam‑Webster defines “significant” as, among other meanings, something that has meaning, is noticeable or capable of influencing outcomes. It is clear that the trial court here regarded Outlaw’s outburst as something noticeable. While I appreciate the duty of judges to be steadfast in challenging circumstances, I consider calling a judge a derogatory epithet a direct affront to the court’s authority and dignity, which historically has been enough to sustain a finding of contempt….
Keisha Nicole Hudson and Aaron Joshua Marcus (Defender Association of Philadelphia) served as counsel for Outlaw.
