State v. Thomas Pelletier
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MAINE SUPREME JUDICIAL COURT 					 Reporter of Decisions
Decision:	2001 ME 173
Docket:	Som-01-251
Submitted
on Briefs:	October 15, 2001
Decided:	December 19, 2001

Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS,
JJ.
Majority:	SAUFLEY, C.J., and CLIFFORD, DANA, and ALEXANDER, JJ.
Dissent:	RUDMAN, and CALKINS, JJ.


							

STATE OF MAINE

v.

THOMAS PELLETIER

ALEXANDER, J.

	[¶1]  Thomas Pelletier appeals from the judgment entered in the
District Court (Skowhegan, Clapp, J.) holding him in contempt pursuant to
M.R. Civ. P. 66(b) and imposing punitive sanctions on him.{1}  Pelletier argues
that the court failed to find that his conduct actually disrupted the court
process or diminished the court's authority.  Because the record, supported
by the court's findings, establishes that Pelletier engaged in "insolent
behavior" which, if unaddressed, "diminishes the court's authority," we
affirm.

I.  CASE HISTORY

	[¶2]  On April 18, 2001, Pelletier was representing himself at his
arraignment on three charges{2} before the court.  At the conclusion of the
proceedings, Pelletier turned to leave the courtroom.  As he was exiting, the
court noticed that Pelletier was wearing an offensive T-shirt.  The court
called Pelletier back into the courtroom where the following exchange
occurred:

COURT:  Mr. Pelletier, turn around.  Turn--Turn around.  What
are you doing wearing something like that in the courtroom? 

DEFENDANT:  Well it was the only clean clothes I had, your
Honor.

COURT:  You're in contempt.  Sit over there.  Ten days in jail.

Pursuant to M.R. Civ. P. 66(b)(2),{3} the court issued a written order
describing its findings and conclusions as follows:  

The Defendant came before the bench when his name was called
and was arraigned on the charges.  When the Defendant turned
and exited the courtroom to the Clerk's Office this presiding
judge noticed that the Defendant's shirt had the words "I FUCK
LIKE A BEAST" inscribed on the back in large, bold, bright
letters easily readable from the back of the courtroom.  The
courtroom was then heavily populated by other citizens then
awaiting their appearance before the court, some accompanied
by children.  The court immediately called the Defendant back
into the courtroom to explain the reasons for this contemptuous
behavior.  He offered only that he had no other clothes to wear
to court.  The Defendant's offending shirt was a decorative "T"
shirt worn over a long sleeved shirt.

The Defendant's act of displaying this unnecessary and vulgar
attire in open court was obviously done with the purpose of
disturbing or hindering the court process, showing outward
disrespect for the court, and was disorderly conduct and
insolent in nature.  All of this was done in the actual presence of
and seen by this judge.

 
After serving five days of his sentence, Pelletier appealed.

II.  DISCUSSION

	[¶3]  According to M.R. Civ. P. 66, contemptuous conduct includes but
is not limited to "disorderly conduct, insolent behavior, or a breach of
peace, noise or other disturbance or action which actually obstructs or
hinders the administration of justice or which diminishes the court's
authority."  M.R. Civ. P. 66(a)(2)(A)(i).{4}  Most of our recent precedent has
addressed disruptive acts.  Thus, we have said that a judgment of contempt
must be supported by evidence that "the contumacious conduct 'actually
obstructed the administration of justice.'"  State v. Holland, 1997 ME 42,
¶ 4, 691 A.2d 196, 198 (quoting In re Bernard, 408 A.2d 1279, 1282 (Me.
1979)).  We have said that we will uphold a summary conviction of contempt
"when it can 'clearly be shown' that [the] defendant engaged in a wilful and
actual obstruction of the administration of justice that presented an
overriding need for immediate punishment."  Id. (citing State v. Campbell,
497 A.2d 467, 472 (Me. 1985)).
	[¶4] Pelletier focuses on those precedents addressing contempt in the
context of an obstruction of the administration of justice.  In such a context,
some courtroom disruption or disruption of the administration of justice
must be found.  However, no finding of a specific disruption is needed where
a contempt involves insolent behavior that diminishes the court's authority.
	[¶5]  Here, the court found that Pelletier's display "was obviously done
with the purpose of disturbing or hindering the court process, showing
outward disrespect for the court, and was disorderly conduct and insolent in
nature."  Mr. Pelletier's purpose, recognized by the trial court, was to taunt,
to test, to insult, and to demean the court and its authority.  Had the court
not responded upon perceiving Mr. Pelletier's vulgar display, respect for its
authority and dignity would have been diminished, implying to all present,
and others who would have learned of Mr. Pelletier's acts, that this was
acceptable decorum in a Maine court of law. 
	[¶6] Pelletier argues that because there was no finding that his vulgar
display caused others to create a disturbance in the courtroom, his acts
cannot be contemptuous.  But the fact that the many spectators, adults and
children, sat in appalled or bemused silence, does not make Mr. Pelletier's
acts any less contemptuous.  It is his acts, not those of the audience, that the
trial court was required to judge. 
	[¶7] The trial court based its finding on M.R. Civ. P. 66.  Under that
rule, "'[c]ontempt' includes but is not limited to: . . . insolent behavior . . .
which diminishes the court's authority." M.R. Civ. P. 66(a)(2)(A)(i).  Nothing
in this portion of the contempt definition requires a court to find some
audience reaction or other disturbance as a prerequisite to finding a
contempt had occurred.
	[¶8] The respect and authority of any court is diminished if a
contrived breach of decorum, intended to test and taunt the court's
authority, is tolerated without response.  The definition of contempt in M.R.
Civ. P. 66(a)(2)(A)(i) and its companion definition in M.R. Crim. P.
42(a)(2)(A)(i) encompasses just what occurred in this case.
	[¶9] One important finding is that Mr. Pelletier wore his T-shirt over a
long sleeved shirt.  This is important when considered in the context of the
court's question to Mr. Pelletier, "What are you doing wearing something
like that in the courtroom?" and Mr.  Pelletier's response, "Well it was the
only clean clothes I had, your Honor."  In that exchange, Mr. Pelletier was
given an opportunity to explain his actions and gave an obviously false
response indicating further disrespect.  The trial court had no need for
further inquiry or further findings before making its contempt
determination.  With the response it received, the trial court acted well
within its discretion not to engage in further colloquy with Mr. Pelletier in
open court with many citizens present.
	[¶10] The trial court accorded Mr. Pelletier all of the process he was
due pursuant to M.R. Civ. P. 66.   The contemptuous acts occurred in the
court's presence.  The trial court offered Mr. Pelletier the opportunity to
explain his acts and appropriately ceased further inquiry after Mr. Pelletier's
disrespectful response.  The trial court's order specified the conduct
constituting the contempt, certified that the contempt occurred in the
presence of the court, and contained the sanction imposed.  M.R. Civ. P.
66(b)(2) requires no more.
	[¶11] The confusion reflected in the briefs, focusing on the
obstruction of the administration of justice alternative of the contempt
definition, rather than the diminishment of the court's authority alternative
of the contempt definition, may be attributable to some imprecision in the
trial court's findings.  In making findings of contempt, trial courts must
specify what conduct constituted the contempt and state, with reference to
the alternatives in the contempt definition, what elements of the contempt
definition are reflected in a defendant's acts and any reaction it creates.
	[¶12]  The importance of the court's written order cannot be
overstated.  Much of the basis for contempt may be based on visual
observation.  A transcript may not provide an accurate account of the
contemptuous conduct, and may not adequately reflect the atmosphere of
the courtroom in the wake of any insult, sign of disrespect or disturbance. 
The court order can provide a proper description of the behavior that
demanded punishment, and its overall effect on the proceedings before the
court.  Furthermore, "[t]he requirement of a specific recital of the conduct
that constitutes [summary] contempt avoids compelling the appellate court
to infer from a transcript the basis of the contempt."  State v. DeLong, 456
A.2d 877, 882 (Me. 1983).  We have stressed that "[b]ecause there are no
fact-finding procedures designed to reveal the truth, the findings of the
court must be taken as true, undisputed, and complete."  Holland, 1997 ME
42, ¶ 5, 691 A.2d at 198.  Thus, the court's written order is a vital part of
the record we review on appeal.  See Alexander v. Sharpe, 245 A.2d 279,
288 (Me. 1968) ("[O]nly the filing of the certificate can establish a record of
what facts the Justice found to be contemptuous."); see also DeLong, 456
A.2d at 882 ("[T]he purpose of the rule [requiring a written order from the
court] is to provide a basis for appellate review.").{5}
	[¶13] Here, the trial court order could have been more precise in
addressing the impact of Pelletier's insolent and vulgar display in relation to
the definition of contempt.  However, on this record there is no real dispute
regarding the nature and impact of Mr. Pelletier's contempt.  The trial court
acted appropriately to address a serious breach of decorum and to assure
that respect for the authority and dignity of the court was not diminished.  
	The entry is:
			Judgment affirmed.
                                    
RUDMAN, J., with whom CALKINS, J., joins, dissenting.

	[¶14]  I respectfully dissent.  
	[¶15]  According to Civil Rule 66, contemptuous conduct includes but
is not limited to "disorderly conduct, insolent behavior, or a breach of
peace, noise or other disturbance or action which actually obstructs or
hinders the administration of justice or which diminishes the court's
authority."  M.R. Civ. P. 66(a)(2)(A)(i).  We have made it clear that a
judgment of contempt must be supported by evidence that "the
contumacious conduct 'actually obstructed the administration of justice.'" 
State v. Holland, 1997 ME 42, ¶ 4, 691 A.2d 196, 198 (quoting In re
Bernard, 408 A.2d 1279, 1282 (Me. 1979)).  In the past, we have upheld a
summary conviction of contempt "if it can 'clearly be shown' that [the]
defendant engaged in a wilful and actual obstruction of the administration of
justice that presented an overriding need for immediate punishment."  Id.
(citing State v. Campbell, 497 A.2d 467, 472 (Me. 1985)).  This logic
compels a similar result when we review a conviction of contempt based on
an act asserted to have diminished the court's authority.
	[¶16]  It goes without argument that a judge's power to summarily
punish contemptuous behavior is instrumental in maintaining civility and
decorum in a courtroom.  This authority, however, carries with it the
potential for abuse.  The United States Supreme Court has warned that
although the summary contempt power is "indispensable" in protecting
"the dignity of the court . . . , its exercise is a delicate one, and care is
needed to avoid arbitrary or oppressive conclusions."  Cooke v. United
States, 267 U.S. 517, 539 (1925).  We have described the summary
contempt proceeding as an "anomalous situation [with] the function of
judge, jury and prosecutor combined in a single individual."  In re Bernard,
408 A.2d 1279, 1282 (Me. 1979).  Moreover, we recognized that because of
the unique nature of these proceedings, they should be "strictly guarded by
the courts."  Id. 
	[¶17]  A court's use of its summary powers is limited to situations
which require immediate action to control and maintain the order and
dignity of the court.  Id.  Thus, conduct that warrants the use of this power
will often arise unexpectedly and without warning.  Upon the exercise of
this power, our rules require the court to issue a written order which fully
explains the circumstances that necessitate its use.  M.R. Civ. P. 66(b)(2). 
The written order must: "(A) specif[y] the conduct constituting the
contempt; (B) certif[y] that the conduct constituting contempt occurred in
the presence of the court and was seen or heard by the court; (C) contain[]
the sanction imposed."  Id.     
	[¶18]  The importance of the court's written order cannot be
overstated.  The trial transcript may not provide an accurate account of the
contemptuous conduct, and may not adequately reflect the atmosphere of
the courtroom in the wake of the disturbance.  The court, however, is in an
excellent position to provide a proper description of the obnoxious behavior
which demanded punishment, and the overall effect of that behavior on the
proceedings before the court.  Furthermore, "[t]he requirement of a specific
recital of the conduct that constitutes [summary] contempt avoids
compelling the appellate court to infer from a transcript the basis of the
contempt."  State v. DeLong, 456 A.2d 877, 882 (Me. 1983).  We have also
stressed that "[b]ecause there are no fact-finding procedures designed to
reveal the truth, the findings of the court must be taken as true, undisputed,
and complete."{6}  Holland, 1997 ME 42, ¶ 5, 691 A.2d 196, 198 (emphasis
added).  It is for these reasons that the court's written order constitutes the
record we review on appeal.  See  Alexander v. Sharpe, 245 A.2d 279, 288
(Me. 1968) ("[O]nly the filing of the certificate can establish a record of what
facts the Justice found to be contemptuous."); see also DeLong, 456 A.2d at
882 ("[T]he purpose of the rule [requiring a written order from the court] is
to provide a basis for appellate review.").{7}
	[¶19]  Pelletier, the Attorney General, and the Amicus all direct their
attention to the requirement that the conduct must obstruct or hinder the
administration of justice.  Our analysis would be the same were the conduct
alleged to have diminished the court's authority.  The question is not
whether we conclude that Pelletier's shirt was vulgar and disrespectful;
clearly it was.  Nor is the question whether we conclude that such attire has
no place in a court of law and potentially could have obstructed or hindered
the administration of justice or diminished the court's authority.  Instead,
the real issue is whether Pelletier's actions actually effected those results. 
To determine this, we look to the trial court's order and should not
speculate.  In the present case, there is nothing in the court's written order
to support a finding that such a disturbance did occur or that the court's
authority was diminished.  Had the court noticed any actual disruption in the
courtroom resulting from Pelletier's shirt, or that the court's authority was
diminished, it should have clearly noted it in its written order.  Instead, the
court simply determined that Pelletier's conduct "was obviously done with
the purpose of disturbing or hindering the court process and showing
outward disrespect for the court and was disorderly conduct and insolent in
nature."  State v. Pelletier, No. CR-01-737 (Me. Dist. Ct. 12, Sko., Apr. 18,
1982) (Clapp, J.).  Because the court's findings failed to describe how
Pelletier's conduct actually caused a disruption in the courtroom or
diminished the court's authority, there is no basis for us to affirm the
judgment.
	[¶20]  The purpose of M.R. Civ. P. 66(a) "is to present to a reviewing
court a full and clear statement of the facts out of which the contempt arose
so that that court may determine whether the action of the committing
court was within its jurisdiction and whether its action was just or
arbitrary."  Alexander v. Sharpe, 245 A.2d at 288.  A conviction of contempt
should not rest on presumptions or inferences, nor on facts which did not
occur in the presence of the court.  State v. Alexander, 257 A.2d 778, 781
(Me. 1969).  The Court presumes that Pelletier's purpose "was to taunt, to
test, to insult, and to demean the court and its authority."  Ante, ¶ 5
(Court's opinion).  Our prior jurisprudence has specifically and repeatedly
stated that it is improper for a reviewing court to engage in presumptions
and inferences.  The Court suggests that Pelletier's response to the trial
court's inquiry was "an obviously false response indicating further
disrespect."  Ante, ¶ 9 (Court's opinion).  The trial court, however, made no
such finding or conclusion.  The law simply requires a trial court to
explicitly include within its findings of fact the effect which an allegedly
contemptuous act has on the court and its proceedings.  This requirement is
not onerous.  See In re Steinberger, 387 A.2d 1121, 1123 (Me. 1978)
(affirming a summary conviction of contempt when the trial court found that
offensive speech and tone of voice "were insulting to the Court and
represented a challenge to the integrity of the Court"); State v. Alexander,
257 A.2d at 780 (affirming a summary conviction of contempt when the trial
court wrote, "I found [the offensive language and conduct] contemptuous of
the Court, degrading to the administration of justice and disrupting to the
orderly procedure of the Court"). 
	[¶21]  The Court suggests confusion on the part of the parties.  The
Court is being generous.  The parties' sole argument presented to us
questioned the existence of courtroom disruption or disruption in the
administration of justice.  Neither Pelletier, the Attorney General, nor the
Amicus argued that Pelletier's actions diminished the authority of the court. 
The Court today makes that argument sua sponte.  The Court bases its
decision on presumptions and assumptions.
	[¶22]  Our prior jurisprudence has made it clear that our role is
limited to a review of the trial court's written order.  Contrary to the Court's
assertions, its holding today actually weakens the trial court's authority.  The
Court's willingness to overlook our previous requirement that the trial court
issue sufficient findings is an invitation for extensive appellate review of
summary contempt proceedings.  The Court's eagerness to review the entire
record and to make its own findings rather than requiring the trial court to
issue sufficient findings on its own will result in future summary contempt
cases coming to this Court for what is essentially de novo review. 
	[¶23]  It would not have been difficult for the trial court to have said
either that Pelletier's actions disrupted the court's proceedings, or that his
actions actually diminished the court's authority.  The trial court did
neither.  Its order is deficient on its face.{8}
	[¶24]  I therefore would vacate the judgment of the District Court.
                 
Attorneys for State:

G. Steven Rowe, Attorney General
Charles K. Leadbetter, State Solitictor
6 State House Station
Augusta, ME 04333-0006

David W. Crook, District Attorney
Evert N. Fowle, Asst. Dist. Atty.
95 State Street
Augusta, ME 04330

Attorney for defendant:

J. Mitchell Flick, Esq.
79 Main Street
Winthrop, ME 04364

FOOTNOTES******************************** {1} . Pelletier was committed to the Somerset County Jail for ten days. He challenges the contempt finding but not the sentence. {2} . The underlying charges were: Count 1: Operating Under the Influence, 29-A M.R.S.A. § 2411(1)(B) & (5)(B) (1996); Count 2: Unlawful Possession of Scheduled Drug, 17-A M.R.S.A. § 1107(1) & (2)(B) (1983); and Count 3: Civil Possession of Marijuana, 22 M.R.S.A. § 2383 (1992). {3} . M.R. Civ. P. 66(b)(2) states: (2) Procedure. A contempt may be punished summarily if the court certifies that the court saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. Before imposition of sanctions the court shall allow the alleged contemnor an opportunity to be heard in defense and mitigation. If the court finds that the alleged contemnor committed the contempt, the court shall issue a written order that directly or by incorporation of the record: (A) specifies the conduct constituting the contempt; (B) certifies that the conduct constituting contempt occurred in the presence of the court and was seen or heard by the court; (C) contains the sanction imposed. {4} . This definition is based on the common law definition of contempt as "an act which is calculated to embarrass, hinder or obstruct a court in the administration of justice, or which is calculated to lessen its authority or dignity." In re Bernard, 408 A.2d 1279, 1281 n.2 (Me. 1979). See June 1, 2000, Advisory Committee's Notes to amendments to M.R. Civ. P. 66(a)(2)(A). {5} . The affidavits filed by the Amicus are not part of the record subject to our review. {6} . Although State v. Holland is directly concerned with summary contempt under M.R. Crim. P. 42(a), the court's analysis can equally be applied to summary contempt under M.R. Civ. P. 66(b). {7} . The affidavits filed by the Amicus are not part of the record subject to our review. {8} . Although not raised by Pelletier, the Attorney General, or the Amicus, and not commented upon by the Court, I note that the trial court failed to follow the dictates of either M.R. Civ. P. 66 or M.R. Crim. P. 42 in a number of respects. Specifically, the trial court failed to "allow the alleged contemnor an opportunity to be heard in defense and mitigation" as required by both rules, and failed to "orally inform the alleged contemnor of the accusation of contempt and its basis" as required by M.R. Crim. P. 42.