Attorney Who Made Derogatory Comments About Judge Properly Convicted Of Criminal Contempt
The Michigan Court of Appeals has affirmed an attorney’s criminal contempt conviction for derogatory comments he made about the judge at the close of a virtual court hearing.
In the case of In re Contempt of Marshall Tauber (Docket No. 371447), defense attorney Marshall Tauber, believing he had disconnected from Zoom at the conclusion of a virtual hearing, made the following comment when Oakland County Circuit Judge Yasmine I. Poles ruled against his client: “Judge – thank you. F****** c***.” However, when Tauber made the remark, the hearing was still in session and he was on the record. The judge heard the comment, held Tauber in direct criminal contempt and fined him $7,500.
Tauber appealed, arguing he was deprived of due process and there was insufficient evidence to support the criminal contempt conviction.
The Court of Appeals affirmed the conviction in a published opinion.
Regarding Tauber’s due process argument, “the fact that the trial court conducted the hearing over Zoom instead of physically in the courtroom does not preclude a finding that misconduct or insolent behavior by an attorney constitutes contempt when it nonetheless occurs over video in the immediate view and presence of the court,” the Court of Appeals said.
As to Tauber’s evidentiary argument, the Court of Appeals noted that he was on a Zoom hearing with his client (Bennett) and “cursed” at the trial judge when he did not obtain the relief he requested. “Indeed, the audio of the proceeding continued, the trial court noted that Bennett and the jail staff heard [Tauber’s] inappropriate statement, and the statement was transcribed into the record.”
In making its ruling, the Court of Appeals emphasized that “[d]emeaning or belittling the trial court, particularly in front of a client, erodes the public’s confidence in the judicial system.”
Judge Anica Letica, Judge Michelle M. Rick and Judge Mariam S. Bazzi were on the Court of Appeals panel that issued the decision.
Contempt Hearing
At Tauber’s contempt hearing, his lawyer noted that Tauber “has been an attorney for more than 40 years, and there had never been a complaint about his behavior, his respect for the court, his diligence, or his competence.” Tauber’s lawyer also stated, “He said what he said and there is no defense for the words chosen.” It was further explained that Tauber used the words “out of frustration to, he thought, himself.”
Thereafter, the trial court and Tauber’s lawyer discussed “other phrases or terms that attorneys may use in reference to judges, and whether they were gender-based.” Tauber’s lawyer “again acknowledged that the words appellant used were ‘horrid,’ and there was no intent for anyone else to hear them, including Bennett.” Tauber’s lawyer also explained that Tauber was “technologically inept at Z[oom] from [his] car[.]” However, “[t]he trial court refused to listen to that argument, noting that Zoom proceedings had been used for four years because of the pandemic.”
The trial court then explained that direct contempt had occurred in its immediate view and presence. The trial court stated, in part:
“He can’t un-ring that the Court heard it. He can’t un-ring that that’s something that he said to the Court which is now on a public record heard by his client at the Oakland County Jail, heard by deputies at the Oakland County Jail, heard in this Court’s immediate view and presence, a willful disregard for the authority of the Court, and that’s why we’re here. … So calling a Judge a derogatory term, a gender-based slur, while she’s serving as a Judge, can have severe, detrimental effect. This action not only constitutes contempt of court, potentially, resulting in fines or imprisonment, but it also undermines the ability and integrity of the judicial system. Such disrespectful, uncivilized behavior erodes public confidence in the legal process. … It’s jarring how brazen and comfortable [Tauber] felt calling any woman, alone a Judge, a despicable and demeaning slur, and it’s surely unbecoming of any lawyer. And I simply cannot imagine any situation that would warrant such language.”
At the conclusion of the hearing, the trial court held Tauber in direct criminal contempt and fined him $7,500. The trial court further recommended that Tauber consider taking courses addressing diversity or civility.
Tauber appealed.
No Due Process Violation
On appeal, Tauber first argued the trial court deprived him of due process by failing to:
allow an adjournment to review a video recording,
address the contempt as indirect and hold a hearing,
provide notice and an opportunity to be heard, and
refer the contempt proceeding to a different judge.
“We disagree,” the Court of Appeals said, pointing out that Tauber’s claims were not preserved for appellate review.
“Although [Tauber’s] counsel did request to see the video, she did not ask for an adjournment to review the video,” the Court of Appeals observed. “Moreover, parties can order or request to see hearings through the circuit court’s website. Additionally, in the trial court, [Tauber] did not raise a due process challenge, contest that an indirect contempt proceeding was at issue, challenge the notice and opportunity to be heard, and claim that the contempt proceeding had to be held before a different judge. Thus, the plain error standard applies.”
While Tauber asserted that he was deprived of due process, “he failed to demonstrate plain error affecting his substantial rights” and he “is not entitled to appellate relief from his criminal contempt conviction,” the Court of Appeals said, relying on MCL 600.1701. That statute governs a court’s authority to address neglect or misconduct, including contempt.
In addition, MCL 600.1711 addresses the types of contempt and punishment, the Court of Appeals explained. That statute says: “(1) When any contempt is committed in the immediate view and presence of the court, the court may punish it summarily by fine, or imprisonment, or both. (2) When any contempt is committed other than in the immediate view and presence of the court, the court may punish it by fine or imprisonment, or both, after proof of the facts charged has been made by affidavit or other method and opportunity has been given to defend.”
The Court of Appeals, citing In re Scott, 342 Mich 614 (1955), explained that “’[w]here the contempt is committed directly under the eye or within the view of the court, it may proceed upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form[.]’ … If essential elements of the offense are not within the personal observations of the judge but are contingent upon statements made by others, due process requires the accused receive notice and a fair hearing.”
Here, Tauber’s conduct during the Zoom hearing “satisfied the ‘immediate view and presence’ requirement of MCL 600.1711(1)’s plain language,” the Court of Appeals wrote. “The trial court conducted a hearing addressing Bennett’s emergency motion … and allowed [Tauber] and Bennett to attend over Zoom. Although [Tauber] was able to establish that Bennett’s additional charges were not committed while he was released on bond, the trial court nonetheless denied the motion, concluding that its amendment to the bond terms did not constitute an abuse of discretion. The trial court then ordered all cases scheduled for resolution the following week. After the court clerk announced the date, the transcript reflects that [Tauber] stated, ‘f****** c***.’ The contempt occurred ‘in the immediate view and presence of the court.’ … That is, it was before the eye, view, or ‘face’ of the court.”
Further, Tauber “contend[ed] that he was deprived of due process of law,” the Court of Appeals noted. “Indeed, [Tauber] was given nearly a week to obtain counsel and prepare for a hearing. More importantly, [he] sent the trial court an e-mail apologizing for his statement and attributing it to his schedule and the hot weather. [Tauber] cannot claim a lack of notice when the assertion is belied by the documents that were filed in the case. That is, the order to show cause issued by the trial court did not identify the ‘obscene language’ that was stated. Nonetheless, [he] sent the trial court an apology e-mail and apparently did not attempt to attribute it as a reference to someone or something else.”
Moreover, Tauber claimed that contempt did not occur “in the immediate presence and view of the court” because his screen “went black before he made the statement, leading him to conclude that the hearing had disconnected,” the Court of Appeals said. “But [Tauber] did not file the video recording of the hearing, only a transcript. [He] had the duty to file the full, complete record on appeal, and this Court will not consider record evidence for which there is no evidentiary support.”
Based on the foregoing, Tauber “failed to demonstrate plain error affecting his substantial rights arising from the trial court’s determination that his conduct constituted criminal contempt, the timing of that conclusion and the punishment, and the due process afforded him to prepare and present a defense.”
Sufficient Evidence
Next, the Court of Appeals rejected Tauber’s argument that there was insufficient evidence to support his criminal contempt conviction.
Tauber “seems to indicate that his actions were not ‘willful’ because he spoke out of frustration and did not intend for anyone to hear his statement,” the Court of Appeals explained. “But, the term ‘willful’ for purposes of criminal contempt does not require such an intention. Rather, the willful disregard consists of a statement that tends to impair the court’s authority or impedes its functioning.”
Tauber “did not make his comment in the judge’s chambers during a heated exchange and then immediately apologize,” the Court of Appeals observed. “Instead, [he] was on a Zoom hearing with Bennett, his client, and when he did not obtain the relief requested he cursed at the trial judge. Disagreement with a court’s ruling may be addressed through reconsideration motions or the appeal process.”
Tauber’s assertion “that his statement did not occur in the immediate presence and view of the court because of technical difficulties is without merit,” the Court of Appeals said. “First, [Tauber] failed to produce the video recording to reflect that such technical difficulties occurred. Moreover, even if [he] was unable to view the trial court, the trial court found that the contempt occurred in its immediate view and presence. Indeed, the audio of the proceeding continued, the trial court noted that Bennett and the jail staff heard [Tauber’s] inappropriate statement, and the statement was transcribed into the record.”
Accordingly, “[v]iewing the evidence in the light most favorable to the trial court’s factual findings, there was sufficient evidence to support [Tauber’s] criminal contempt,” the Court of Appeals held.
