concurring.
I concur in the result announced in Mr. Justice Nichols’ opinion.
As I view this case, Bernard’s summary conviction of criminal contempt under Rule 42(a), M.R.Crim.P.,1 cannot be upheld, but only because of deficiencies in the certificate required by the rule. I feel it is inappropriate and unnecessary on the facts in the record before us to base the opinion on any violation of due process.
Why do I feel the certificate is deficient?
The presiding justice did describe the conduct of Bernard while in the courtroom. However, the balance of the factual summary dictated into the record makes it quite apparent to me that if nothing else had occurred beyond the courtroom episode, the contempt proceeding would not have ensued. Therefore, the interchange in chambers between Bernard and the justice necessarily constitutes the conduct which must underlie the charge of criminal contempt.
The factual certification of the justice is devoid of any specific description of what Bernard either did or said while confronting the justice in chambers. We only know that in the subjective opinion of the justice, Bernard’s manner then was “belligerent and contemptuous.”2 The justice’s description of his condition as one of “shock and surprise” cannot be said to be descriptive of Bernard’s conduct since it only reflects the state of mind of the justice. What Bernard specifically may have said or done to cause “shock and surprise” is not to be found anywhere in the statement. I also note that the statement does not suggest that there was any serious disruption of any particular judicial proceeding resulting from the confrontation in chambers between Bernard and the justice.
I read Rule 42(a) as mandating a factual description of what a particular justice “saw or heard.” Mere conclusory statements cannot comply with the language of the rule which requires the order of contempt to “recite the facts.”
In summary, I would sustain the appeal, limiting the rationale for that result to an insufficient certificate.
. (a) Summary Disposition. A criminal contempt may be punished summarily if the justice certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the justice and entered of record.
. In a 42(b), M.R.Crim.P., plenary proceeding the Deputy District Attorney who witnessed the chambers confrontation could have been an available witness.