Opinion
No. C6-02-710.
Filed December 24, 2002.
Appeal from the District Court, Hennepin County, File No. 02031913.
Mahmoud Soltan, (pro se appellant)
Considered and decided by Minge, Presiding Judge, Willis, Judge, and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
This appeal is from a conviction for misdemeanor criminal contempt. Although we conclude that a summary conviction for direct criminal contempt does not violate due process and there is sufficient evidence to support a conviction, because the district court failed to make the statutorily required findings of fact, we remand.
FACTS
Appellant Mahmoud Soltan was summarily convicted of direct criminal contempt on April 22, 2002, in the Hennepin County District Court. Soltan was observing the district court proceedings, apparently accompanied by his wife.
The record on appeal consists of the transcript of the court's exchanges with these observers. The judge first inquired of the woman, whom Soltan asserts was his wife, if she was feeling okay. After the woman reassured him, the judge turned his attention to Soltan, who responded, "I have nothing to say to you."
Soltan and the judge exchanged good-byes and the judge added, "Have a good day." According to the transcript, Soltan then said, "Happy Hanukah." The judge responded by summarily finding Soltan in contempt and sentencing him to 30 days in jail.
The warrant of commitment, which was completed on the same day, committed Soltan to the Hennepin County Adult Corrections Facility for 30 days for a misdemeanor contempt of court. This appeal followed. The sentence has been served.
DECISION
This court reviews direct contempt orders for arbitrariness, capriciousness, and oppressiveness. State v. Tatum, 556 N.W.2d 541, 547 (Minn. 1996). A contempt order will be reversed only if there was an abuse of discretion. In re Contempt of Armentrout, 480 N.W.2d 685, 688 (Minn.App. 1992). On review, we can only view the facts in the light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
I.
Soltan contends the district court's summary finding of contempt violated his right to due process because it deprived him of notice and an opportunity to be heard before being found guilty. But, as has long been held,
[d]irect contempts that occur in the court's presence may be immediately adjudged and sanctioned summarily.
Int'l Union, UMWA v. Bagwell, 512 U.S. 821, 827 n. 2, 114 S.Ct. 2552, 2557 n. 2 (1994) (citing Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77 (1888)). Where contumacious conduct occurs in open court, it may be presumed that the court observed it and therefore need not afford the defendant the protections of due process before imposing sanctions because the authority of the court is at stake. Cooke v. United States, 267 U.S. 517, 536-37, 45 S.Ct. 390, 394-95 (1925). The record establishes that Soltan's remark occurred in open court, in the presence of the judge, and was therefore a direct criminal contempt that could be summarily adjudicated. Therefore, there is no merit to Soltan's claim that he was entitled to notice and an opportunity to be heard.
II.
Soltan also argues that criminal contempt requires a violation of a court order and that since he did not violate a court order he could not be guilty of criminal contempt. The statute defines misdemeanor criminal contempt, in part, as
disorderly, contemptuous, or insolent behavior, committed during the sitting of the court * * * and directly tending to interrupt its proceedings, or to impair the respect due to its authority.
Minn. Stat. § 588.20, subd. 2(1) (2000). This type of criminal contempt would not require violation of a court order; nor would other types of conduct prohibited by the contempt statute. See Id., subd. 2(3) (breach of the peace interrupting court proceedings), (6) (refusal to be sworn as a witness or to answer questions), (7) (publication of a false report of court proceedings).
This court has stated that criminal contempt "occurs only where a party violates a court order." State v. Legarde, 479 N.W.2d 434, 435 (Minn.App. 1992) (citation omitted). But Legarde involved a charge of violating the provisions of a document (a supervised release agreement) that the defendant argued was not a "court order." Id. Taken in context, the statement in Legarde means only that if a defendant is to be found in contempt for violating the provisions of a document, that document must be a court order.
III.
Soltan also argues that the evidence is insufficient to establish beyond a reasonable doubt that his words were contumacious. In cases of direct criminal contempt punished summarily
an order shall be made reciting the facts as occurring in the immediate view and presence of the court or officer, and adjudging the person proceeded against to be guilty of a contempt, * * * * .
Minn. Stat. § 588.03 (2000). In this case, we are unable to review this claim without the benefit of written factual findings that place Soltan's exchange with the district court in context. The district court issued no findings or order following the summary finding of contempt. The warrant of commitment contains no recitation of the facts constituting the contempt. This court has reversed a constructive criminal contempt for failure to make adequate findings. In re Welfare of A.W., 399 N.W.2d 223 (Minn.App. 1987).
Whether Soltan's "Happy Hanukah" remark was "insolent," and whether it tended to "impair the respect due to [the court's] authority" may depend in part on Soltan's demeanor and tone of voice when he made the remark. The district court had an opportunity to observe Soltan's demeanor and assess his tone of voice. Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn. 1989).
There are facts of which this court could take judicial notice that may complete the context of Soltan's remarks and support the finding of contempt. As an appellate court, we are reluctant to take judicial notice of adjudicative facts, particularly in a criminal case. Cf. Minn.R.Evid. 201(a) (allowing courts to take judicial notice of adjudicative facts in civil cases); State ex rel Russell v. Ives, 60 Minn. 478, 479, 62 N.W. 831 (1895) (stating that in cases of direct criminal contempt the trial judge takes judicial notice of the contempt).
We remand for a written order, with findings of fact, required by Minn. Stat. § 588.03.