In Re Contempt of Rossman

613 N.E.2d 241, 82 Ohio App. 3d 730, 1992 Ohio App. LEXIS 4355

• Court: Ohio Court of Appeals
• Decided: September 8, 1992
• Docket: No. 60717.
• Status: Published

Opinions

Nahra, Presiding Judge.

Alan Rossman appeals from the trial court’s decision holding him in contempt of court. For the reasons set forth below, we reverse.

Appellant was one of three attorneys representing Cheryl Lessin in her well-publicized flag-burning trial. 1 During voir dire, the following interchange took place on the record:

“MR. ROSSMAN: Is there anything about the fact that she may have burned the flag, that is a problem for you?

“THE COURT: Objection sustained. All the jurors were individually asked that question by the Court.

“MR. ROSSMAN: Judge, I—

“THE COURT: That is my ruling.

“MR. ROSSMAN: I beg to differ. They weren’t specifically asked.

“THE COURT: I asked each individual juror in light of the facts that I have given to them if any of them had any difficulty in that area and each juror said, ‘No.’ Did I misunderstand anybody’s answer in that regard?

“MR. ROSSMAN: Judge—

“THE COURT: Don’t argue with me, Mr. Rossman.

“MR. ROSSMAN: Judge, I’d like to put something on the record.

“THE COURT: Don’t argue with me. I have indicated that we’ll do that at recess. You may proceed.

“MR. ROSSMAN: Judge, I would like to ask—

“THE COURT: Don’t argue with me. That’s a direct order.

“MR. ROSSMAN: Then can I make a comment at sidebar?

“THE COURT: You are in contempt of court.”

The court fined Rossman $50 and sentenced him to one day in jail, with the jail time to be waived if the fine was paid within four days. Appellant brought this timely appeal, assigning one error as follows:

“The trial court erred in holding the appellant in contempt of court.”

Contempt committed in the presence of the court is direct contempt; contempts committed outside the presence of the court are punishable as indirect contempts. R.C. 2705.02. R.C. 2705.01 provides that “[a] court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.” “The reason for authorizing the court to summarily punish direct contempt without the necessity of notice and an opportunity to be heard is that unless such an open threat to the orderly procedure of the court is not [sic] instantly suppressed and punished, demoralization of the court’s authority may follow.” State v. Conliff (1978), 61 Ohio App.2d 185, 188, 15 O.O.3d 309, 311,. 401 N.E.2d 469, 472.

Contempts are further categorized as civil or criminal depending upon the purpose of the sanction imposed. Where the sanction is intended to coerce compliance with the court’s orders, the contempt is civil. Where the sanction is intended to punish the contemnor, the contempt is criminal. State v. Kilbane (1980), 61 Ohio St.2d 201, 204-205, 15 O.O.3d 221, 222-224, 400 N.E.2d 386, 389-390. Because this case involves conduct in the presence of the court and the sanction was punishment, this contempt is direct criminal contempt.

A person must be proven guilty beyond a reasonable doubt to be found in direct criminal contempt of court. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 251, 18 O.O.3d 446, 447, 416 N.E.2d 610, 611-612. To constitute contempt, “[t]he alleged misbehavior must require immediate punishment to preserve the Court’s authority, take place in the presence of the judge and obstruct the administration of justice by delaying, hindering or influencing a pending case. In the Matter of Lands (1946), 146 Ohio St. 589 [33 O.O. 80, 67 N.E.2d 433]; State v. Treon (App.1963), 91 Ohio L.abs. 229, 240 [188 N.E.2d 308, 315].” State v. Saltzman (Oct. 9, 1980), Cuyahoga App. Nos. 41863 and 41864, unreported, at 8. Furthermore, “[displays of ill-mannered conduct are not summarily punishable under the law of direct contempt unless they pose an imminent threat to the administration of justice.” State v. Conliff, supra, syllabus. Therefore, we must determine whether appellant’s conduct obstructed the administration of justice and required immediate punishment to preserve the authority of the court.

In Cleveland v. Heben (1991), 74 Ohio App.3d 568, 599 N.E.2d 766, this court affirmed the trial court’s decision holding an attorney in contempt. In that case, the attorney unsuccessfully attempted to convince the court that he was too sick to proceed with a trial. The court conducted a hearing but did not believe that Heben was too sick to proceed. The court instructed him not to mention his illness to the jury.

Shortly thereafter, during suppression proceedings, Heben said that he was too ill to proceed, and that he was going to the bathroom. The court ordered him back. Heben then admonished the judge to act professionally and. told the judge in front of the jury that Heben had no respect for the judge.

The court held Heben in contempt because it believed that Heben’s actions were intended to delay the proceedings and to impede the administration of justice. His conviction was affirmed. Compare State v. Conliff, supra (contempt based on a defendant’s single sarcastic comment to the judge after trial was reversed because it did not obstruct justice).

In In re McGinty (1986), 30 Ohio App.3d 219, 30 OBR 377, 507 N.E.2d 441, this court affirmed a finding of direct contempt arising out of the following conduct by an assistant county prosecutor:

“(1) intruding into defense counsel’s private conversation with his witness inside a conference room adjacent to the courtroom, (2) accusing defense counsel of having the witness arrested, thereby attempting to create hostility in the witness against defense counsel, (c) interfering with the defendant’s right to subpoena witnesses, and (4) intimidating defense counsel so as to interfere with the defendant’s right to effective assistance of counsel.” Paragraph one of the syllabus.

This court found that McGinty’s acts “were more than a display of ill-mannered conduct; they constituted a threat to the administration of justice. State v. Conliff(1978), 61 Ohio App.2d 185, 15 O.O.3d 309, 401 N.E.2d 469. Appellant’s direct disregard of the court’s order to interview the witness after defense counsel’s interview, appellant’s intimidation of both defense counsel and the witness, and appellant’s attempt to create hostility in the witness against defense counsel posed an ‘imminent threat to the administration of justice.’ Id. at the syllabus.” McGinty, 30 Ohio App.3d at 223, 30 OBR at 380-381, 507 N.E.2d at 445.

See, also, State v. Wilson (1972), 30 Ohio St.2d 312, 59 O.O.2d 379, 285 N.E.2d 38, certiorari denied (1972), 409 U.S. 1047, 93 S.Ct. 522, 34 L.Ed.2d 499 (contempt affirmed where attorney’s unnecessary repetition of objections and requests, and disregard of the court’s repeated orders to be seated interrupted the business of the court).

In State v. Saltzman, supra, this court reversed contempt findings for two attorneys. In that case, the trial judge told attorney Saltzman three times during her voir dire that she had exhausted the subject and to move on. Later, he stated that a whole day of trial time had been wasted. After a sidebar conference, the judge instructed Saltzman’s co-counsel, Richard Hubbard, to proceed instead of Saltzman. Hubbard asked to state an objection to voir dire out of the hearing of the jury, which the judge would not allow. The judge also refused to allow Hubbard to state the basis of his motion for a mistrial on the record, and refused to allow Saltzman to take part in the trial. When Hubbard again attempted to make an objection, the court held him in contempt. Saltzman was told to proceed, was not allowed to make a phone call, and was found in contempt when she refused to proceed.

This court reversed. It found that the attorneys did not show disrespect and did not obstruct the administration of justice, but were only protecting the interests of their clients. It stated that Saltzman’s voir dire was extensive, but not improper. It stated that it could not test the validity of the court’s rulings, because the attorneys were not allowed to put their objections on the record. Because Saltzman’s and Hubbard’s actions were not disrespectful or disruptive, the court found the contempt findings were unwarranted.

The facts of this case are more similar to the facts of Saltzman where contempt was reversed, than to Heben, McGinty, or Wilson where contempts were affirmed. In this case, the court objected to a question posed by Rossman to an individual juror, which was the same question which had been posed by the judge to the jurors as a group. Rossman subsequently explained that the question posed to the group was not sufficient for him to determine individual biases and to exercise his preemptory challenges.

Although the judge characterized Rossman’s statements as argument, the record reflects that Rossman’s conduct was neither disrespectful nor disruptive, and that his intention was to protect his client’s interests by making objections on the record. His statements consisted of courteous requests to preserve objections or have a sidebar conference. The record does not reflect that he impugned the judge or the judicial process, that he made a scene, as in Heben and Wilson, or that he intended to delay the proceedings. The record creates reasonable doubt that appellant’s conduct obstructed the administration of justice. Appellant’s assignment of error is sustained.

Judgment reversed.

James D. Sweeney, J., concurs. Krupansky, J., dissents.

1 . Reporter's Note: An appeal to the Supreme Court of Ohio is pending in No. 92-847, State v. Lessin.