JUDGE Pro Tempore Elyze M. Iriarte of Guam has denied the motion of Saipan attorney Michael White for a new trial and affirmed the contempt sanctions against him for using profanity during a small claims proceeding.
Judge Iriarte dismissed the motion for a new trial for lack of jurisdiction and alternatively ruled that even if jurisdiction exists, the Small Claims Court did not err in holding White in contempt.
In her order, Judge Iriarte noted that Superior Court Associate Judge Wesley Bogdan, during a post-judgment hearing on June 3, 2019, sanctioned White for “his knowing and willful use of profanity made in open court…and for thereafter twice denying having made any such statement.”
Judge Bogdan found White guilty of contempt of court and imposed a $200 sanction.
Prior to issuing the contempt order, the Small Claims Court issued an order to show cause as to why White should not be adjudged guilty of and punished for contempt of court.
On July 1, 2019, White filed a written response to the show cause order. Although a hearing was scheduled for Aug. 5, 2019, White rested on his written filings.
On Aug. 16, 2019, the Small Claims Court issued the contempt order, which found White guilty of contempt of court and imposed a $200 sanction — $100 for White’s response to the Small Claims Court, and $100 for twice denying he made the statement.
The contempt order stated that although White has an “accomplished legal reputation,” at times his demeanor “rises to an unacceptable level” and that such “disruptive episodes are unpredictable.”
The contempt order stated that White had been cautioned before, both verbally and in writing, that his “behavior in the courtroom at times appears out of control and is contemptuous and should stop.”
The contempt order mentioned two such examples in which the court warned White about his behavior that approached contempt.
According to the order: “At a June 3, 2019 hearing, Counsel was unsatisfied with a decision of this court and at first made various disparaging arguments about how the court’s decision was absolutely wrong. Counsel then used a disrespectful and belligerent tone to challenge this court’s final ruling. Following the concluding announcement of this court’s decision, Counsel made a disrespectful and profane remark about the decision to the open gallery, which was heard by the…Judge and the court’s staff. Counsel’s behavior and words interfered with the work and duties of this court to maintain order and effective control of its proceedings that this Judge was left with no other option than to inform counsel that an order to show cause as to why he should not be found in contempt of court would be issued….
“As Counsel himself admits, his rejoinder was…intended to once again challenge the court’s authority and impugn its dignity. Counsel’s comment was directed at the gallery, meant to degrade the spectators’ view of the court and was loud enough for the Judge and court staff to hear. The heated discussions between the court and Counsel as a result of his disrespectful comment directly affected the court’s proceedings by delaying them that day and casting an aggressive and hostile tone within the courtroom. As the remaining parties and counsels on the docket that afternoon appeared before the court after this incident, repeated apologies had to be given and assurances made that their legal proceedings would not be prejudiced by what they had just witnessed.”
White filed an appeal, saying that the court did not hear what he said and even if he did say the disrespectful word, it was not contemptuous.
In a hearing held on Feb. 12, 2021, White’s secretary/office manager and daughter, Rebecca White, testified that she prepared a transcript of the June 3, 2019 hearing based on a compact disc provided by the Commonwealth’s Clerk of Court’s Office.
The prepared transcript shows the following exchange:
JUDGE BOGDAN: I don’t have the information in front of me, do I?
MR. WHITE: Does the Court have the judgment? Where’s the mistake?
JUDGE BOGDAN: I’m sorry?
MR. WHITE: Where’s the mistake?
JUDGE BOGDAN: I couldn’t hear you, Mr. White. What?
MR. WHITE: Where’s the mistake, your honor?
JUDGE BOGDAN: Where is the mistake? I don’t know. I haven’t got the information in front of me, do I?
MR. WHITE: Thank you, your honor.
JUDGE BOGDAN: You’re welcome. All right, do you have any other questions?
MR. WHITE: I don’t believe this. Ssh…
DEFENDANT: No, thank you. Thanks so much.
JUDGE BOGDAN: Thank you. I’m sorry, you don’t need what?
MR. WHITE: I’m sorry, your honor.
JUDGE BOGDAN: I’m sorry, you don’t need what?
MR. WHITE: I don’t need anything.
JUDGE BOGDAN: I think I heard something that you didn’t need any more of?
MR. WHITE: No, your honor.
JUDGE BOGDAN: Okay.
The second witness, Eva Calvo, testified that she served as a court staffer during the June 3, 2019 hearing.
Calvo did not recall White turning around to talk to another attorney in the gallery.
She also did not recall respondent saying the word “s**t” and stated that the remarks did not disrupt the remainder of the proceedings that afternoon.
The third witness, attorney Michael Evangelista, testified that he was seated in the gallery.
He said he could not tell what White uttered and to whom he addressed his remarks.
But he stated that he did not hear White say “s**t,” and that the comments did not delay the remainder of the afternoon docket or disrupt the proceedings.
White testified in the form of a narrative.
He listed his qualifications and outlined his 51 years of practicing law in the Northern Mariana Islands.
He noted that throughout his career, he has never been held in contempt of court.
He then provided a diagram of the courtroom as configured on June 3, 2019, and provided measurements to showcase the distance between the presiding judge and where he made the comments while facing the gallery.
White also indicated the distance between himself and the various witnesses who were present in the courtroom.
He said there was no one in the gallery except for Evangelista. He noted that a loud fan was in the courtroom and the only microphone in the room was on the judge’s table. He said the microphone was only for recording purposes and not a microphone for amplification.
White said when he reacted to the small claims court’s ruling, he did so because the judge made a ruling that was inconsistent with well-established laws and rules.
White said he did not make the remarks out loud and did not speak to the judge.
He said when he reacted, he turned away from the bench and spoke to Evangelista in a low voice. He said he told Evangelista, “I don’t believe this.”
During the hearing before Judge Iriarte, White stated, “I should not have done what I did. I’m sorry that I did and I apologized to Judge Bogdan, but I did not say what Judge Bogdan thinks I said.”
When Judge Iriarte asked questions about the apology, White stated that the apology was a general apology — not for a specific incident, and not done immediately but at some later date.
When asked about being cautioned by the Small Claims Court in previous hearings, White stated that he “wouldn’t say those were cautions, but [he] will not argue with what Judge Bogdan characterizes it was.”
When asked if his behavior was disrespectful and belligerent during the June 3, 2019 hearing, White stated that “the court can read the transcript…. I don’t believe I was disrespectful.”
When asked about other court staff who heard the comment, White stated that “Mr. [Anthony] Aguon was present…[but] was [seated] further away from Ms. Calvo, who didn’t hear me say a bad word.”
He also said that the impact of the comment did not degrade the spectators’ view of the court.
White said his actions in question were well within the bounds of acceptable argument and representation for his client.
In her 16-page order, Judge Iriarte stated that she listened to the audio recording of the June 3, 2019 hearing.
The recording, she noted, appears to have picked up White’s voice in the background uttering “I don’t need this s**t.”
Based on the court’s review of the recorded proceedings, the judge said the audio recording confirms what the Small Claims Court heard during the hearing.
