COMMONWEALTH vs. FREDERICK C. DIAMOND.

JACOBS, J. After announcing the removal of a default against a party represented by the defendant in a civil action, a Superior Court judge saw the defendant lean toward opposing counsel, and heard the word "ass" spoken. Opposing counsel rose to ask the judge whether he had heard what the defendant had said. Responding to the judge's inquiries, the defendant claimed lack of recall but then stated that he told opposing counsel that he now would "get discovery up the ying-yang." Pressed further, the defendant reluctantly admitted that he had used the word "ass." The judge stated that he considered such conduct to be contemptuous and that he would hold a summary contempt

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proceeding after he finished his motion list. [Note 2] Following a hearing conducted about fifteen minutes later, the judge rejected the defendant's request to be represented by counsel, confirmed his adjudication of contempt, and ordered the defendant to pay $500.

On appeal, the defendant acknowledges that he said "if you want discovery, you're going to get discovery up the ass." He argues, however, that these words posed no threat to the orderly administration of justice and that nothing he said or did supports the use of summary contempt powers under Mass.R. Crim.P. 43, 378 Mass. 919 (1979). [Note 3] That rule provides, in pertinent part:

"(a) AVAILABILITY OF SUMMARY PROCEEDINGS. A criminal contempt may be punished summarily when it is determined that such summary punishment is necessary to maintain order in the courtroom and:

"(1) the contemptuous conduct could be seen or heard by the presiding judge and was committed within the actual presence of the court;

"(2) the judgment of contempt is entered upon the occurrence of the contemptuous conduct; and

"(3) the punishment imposed for each contempt does not exceed three months imprisonment or a fine of five hundred dollars." [Note 4]

"Trial judges have the inherent power to deal with

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contumacious conduct in the court room in order to preserve the dignity, order, and decorum of the proceedings. [Citations omitted.] Such power is not without limitation. Unless the contempt occurs in the presence of the judge and immediate punishment is needed to prevent 'demoralization of the court's authority,' In re Oliver, 333 U.S. 257, 275 (1948), or to enforce 'lawful orders essential to prevent a breakdown of the proceedings,' . . . many of the due process safeguards available in criminal proceedings should apply to a contempt proceeding. [Citations omitted.] Summary punishment for direct contempt 'is warranted only when essential to the orderly administration of justice.' Opinion of the Justices, [ 314 Mass. 767 ,] 784 [(1943)]." Sussman v. Commonwealth, 374 Mass. 692 , 695-696 (1978). "Viewed as a whole, [rule 43] provides that '[s]ummary contempt should be used only when the contemptuous behavior constitutes a threat that immediately imperils the administration of justice. Thus, where time is not of the essence, summary contempt proceedings are inappropriate.' Commonwealth v. Corsetti, 387 Mass. [1,] 8 [(1982)] (citations omitted)." Commonwealth v. Carr, 38 Mass. App. Ct. 179 , 182 (1995).

There is no indication in this record that the defendant's statement to opposing counsel created an immediate peril to the administration of justice or that it directly and materially disrupted the court's business. Nowhere does the judge state that what he saw or heard at the time he heard the word "ass" caused him to conclude that the defendant's conduct was contemptuous. Only after opposing counsel reacted and the defendant responded to several inquiries did the judge conclude that contumacious conduct had occurred.

We readily agree with the judge that the defendant's statement was "crude, unprofessional," and "vulgar," [Note 5] but there is no indication from the record or the judge that it threatened or

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actually thrust the court into disorder or was violative of a previous warning. [Note 6] As a general matter, "to maintain order 11 must be construed narrowly to guard against arbitrary imposition of penalty without due process. Commonwealth v. Viera, 41 Mass. App. Ct. 206 , 208 (1996), and cases cited. "[I]n view of the heightened potential for abuse posed by the contempt power," Taylor v. Hayes, 418 U.S. 488, 500 (1974), application of rule 43 must be limited to those egregious cases where "the necessities of the administration of justice require such summary dealing with obstructions to it." Offutt v. United States, 348 U.S. It, 14 (1954). See In Re Gustafson, 619 F.2d 1354, 1359 (9th Cir. 1980). "The exercise of the summary power of contempt is 'a delicate one and care is needed to avoid arbitrary or oppressive conclusions.'" Sussman v. Commonwealth, 374 Mass. at 696, quoting from Bloom v. Illinois, 391 U.S. 194, 202 (1968). The need for restraint by trial judges in the use of summary contempt powers against attorneys is underscored by the fact that the right of appeal may not seem a satisfactory safeguard to a lawyer who regularly must appear before the judge who invoked those powers against him.

Faced with courtroom incivility by an attorney that does not require immediate redress to preserve order [Note 7] a judge nevertheless has several options: (1) If the judge deems the conduct contumacious, [Note 8] he may initiate or recommend a contempt proceeding under Mass.R.Crim.P. 44, 378 Mass. 920 (1979). [Note 9]

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See Commonwealth v. Viera, 41 Mass. App. Ct. at 209 ("when [the] element of urgency or immediacy is absent, the lawful procedure, assuming some plausible charge of contempt, is to go under rule 44 and proceed more deliberately, with customary procedural safeguards familiar to ordinary criminal trial"). If the judge wishes to impart the lesson to other attorneys present, he may also announce in open court that he intends to cite the offender for contempt. (2) In addition to, or in lieu of a rule 44 proceeding, "a judge may refer conduct which violates the Code of Professional Responsibility to the Board of Bar Overseers for disciplinary action." Beit v. Probate & Family Ct. Dept, 385 Mass. 854 , 861 n.13 (1982). [Note 10] (3) Also, a judge may deliver a public or private admonition, combined in the judge's discretion with a warning, cautioning that repetition would be grounds for contempt proceedings.

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See Sussman v. Commonwealth, 374 Mass. at 697, 700.

In the circumstances, the use of summary contempt proceedings was not warranted.

The judgment is reversed and the finding of summary contempt is set aside.

FLANNERY, J. (concurring). I concur in the result reached by the majority. The only reason the defendant's obnoxious conduct was not summary contempt was that it was not disruptive of the proceedings and not an insult directed at the judge.