“May It Please All of You C—suckers”
Perhaps because I wasn’t so good at trial, I did a fair amount of appellate work during my career. Pennsylvania’s Commonwealth, Superior and Supreme Courts are places where attorneys argue before panels of judges about the wisdom of trial court rulings. Rarely do litigants attend and there is no testimony. When your case is called for argument, you seek the attention of the judges to begin with the words “May it please the Court.” You then look for a nod approving your request.
Trial courts are a lot more saucy. They begin with the centuries old “Oyez oyez, oyez, All manner of persons who have business before this court, let them come and they shall be heard. God save the Commonwealth and this Honorable Court.” Once everyone is seated, the games begin and anger and frustration can get the better of many on both sides of the bench.
Foul language is the order of the day throughout of modern world. You can blame unregulated cable television for that. But courtrooms are supposed to be places of measured inquiry. Here judges and jurors are paid to listen and to decide what Quakers used to call “weighty matters.” Offensive language and conduct are inherently disruptive to that listening and deliberative process. There are times, and lots of them, where foul language is part of the testimony and that is important. But verbal attacks on judges, jurors and litigants have no place. If we thought differently, we could have saved millions of tons of marble and bronze and built courtrooms in packing houses or basements.
Ironically, the Pennsylvania Supreme Court doesn’t get it. Last week they overturned a conviction in the aptly named Commonwealth v. Outlaw. Mr. Outlaw was a spectator sitting in a Philadelphia courtroom in 2022 when a trial judge ruled on a criminal motion in a way Mr. Outlaw disapproved. His response was to blurt out that Judge Roxanne Covington was a “c—ksucker.” He then exited the courtroom.
The judge heard this epithet and sent sheriffs to return Mr. Outlaw. He was arrested for direct criminal contempt. A hearing was held at which the defendant acknowledged his statement. The judge held him in contempt and sentenced him to 15-30 days incarceration. He served his full 30 and then appealed. The Superior Court found no error and affirmed. 2023 Pa. Super. 255. Then it was off to the Pennsylvania Supreme Court.
What is astonishing is that most of our Supreme Court justices started out in common pleas courtrooms. Justice Wecht in Pittsburgh. Justices Dougherty and McCaffrey in Philadelphia, where Mr. Outlaw sometimes presides. That often means a courtroom packed with litigants, witnesses and bystanders, all of whom are “reading the room” trying to figure out how the judge operates and how he will rule. An unruly visitor can disrupt the entire process. If you are conducting a meeting and the guy delivering lunch says “Here’s your sandwich a—hole!” you don’t just look around and say “So where were we before lunch was delivered.”
But it seems that’s what judges should do. Five justices voted to reverse the conviction stating that under 42 Pa.C.S. 4132 a judge needs to measure the degree of disruption before a conviction can stand. They cite a 2000 case in which a lawyer handling his own custody trial decided to inform his co-counsel and the courtroom that the presiding judge was a “f—king a—hole.” Williams v. Williams. The Superior Court found that this remark did not “obstruct” the judicial process because the hearing soon resumed. 721 A.2d at 1074. Some of the five Outlaw justices also signed a concurring opinion opening with the statement that Outlaw conduct was “abhorrent” but not disruptive.
Allow me to weigh in. 2-4 weeks incarceration for one egregious and sexualized insult seems a bit extreme. But I don’t think judges need to spend time measuring whether a sexualized epithet is slowing down proceedings to act. And just what was Judge Covington supposed to do when she is confronted with that kind of remark? The Rules of Judicial Conduct constrain her from doing what some of us might want to do. In Williams, if the defendant addressed the court as Judge A—hole throughout the trial, are we looking only to whether the insult brought about delay. Realize as well, if you read the dozens of appellate decisions rendered every month, there are scores of pro se litigants who would celebrate the chance to inform commissioned judges of their incompetence and their perceived sexual proclivities. They might even bring friends like Mr. Outlaw to join in. “Judge, you are known for fellatio and for being an a—hole, but I don’t mean to embarrass the proceedings. Let’s move on.”
A ruling like this contributes nothing to the administration of justice. To repeat the phrase, it “embarrasses” it. Every courtroom lawyer has experienced judges who run a little too hot. But direct criminal contempt findings are pretty rare. In this case, the judge wisely deferred an instant hearing. I might differ with her sentence but men and women who have attained graduate degrees, run for office, and been commissioned to administer our laws, deserve to have an ordered and dignified courtroom. The Supremes and their loosely worded tandem decisions in Outlaw have effectively said abhorrent behavior is acceptable if it doesn’t slow things down. Under this standard, a person could urinate in a courtroom, and a judge is called upon to evaluate whether it “obstructed justice.” Under this reasoning defendants can argue they facilitated court business by foregoing a restroom visit.