Summary
finding that an attorney's physical assault on the opposing party, where both were in the courtroom on court business, which occurred in the presence of court personnel before the judges entered the courtroom, constituted direct contempt in the constructive presence of the court
Summary of this case from State v. Lanzy (In re Christman)Opinion
No. 82-704
Decided June 8, 1983.
Contempt — Courts — "Direct contempt," construed — Striking someone in courtroom on court business in presence of bailiff, marshal, constable or court reporter — Constructive presence of the court — R.C. 2705.01 — Procedure to be followed — Mandamus — Assessment of costs no abuse of discretion, when.
O.Jur 3d Contempt §§ 4, 5.
Striking someone who is in a courtroom on court business, the act occurring in the presence of the court's bailiff, marshal, constable or court reporter, is a direct contempt in the constructive presence of the court and may be punished as such.
APPEAL from the Court of Appeals for Cuyahoga County.
On March 27, 1980, relator-appellant, Seventh Urban, Inc., instituted an action in mandamus in the Court of Appeals for Cuyahoga County against respondent-appellee, Gerald T. McFaul, Sheriff of Cuyahoga County, to compel the sheriff to properly execute a writ of possession for property. Relator alleged that a writ of possession issued by the Court of Common Pleas of Cuyahoga County ordered University Circle Property Development, Inc. (U.C.P.D.), removed from the property. Although the sheriff's return indicated complete eviction of U.C.P.D., relator maintained U.C.P.D. was not evicted, but continued to occupy and use the property.
The court of appeals appointed a commissioner to take testimony and receive exhibits in the mandamus action, as the parties had failed to stipulate the facts in the case. The commissioner was to report the evidence to the court of appeals without recommendation.
The commissioner labored from October 1980, through September 1981. The delay was occasioned, among other reasons, by the serious illness of relator's attorney and president, Milton Schulman, also an appellant herein, and three ancillary hearings before the court on contempt charges.
By letter dated September 14, 1981, it was indicated to the court by Schulman that title to the subject property had been transferred to the state of Ohio on September 8, 1981. On September 16, 1981, respondent filed a motion to dismiss the mandamus complaint on grounds of mootness. On April 12, 1982, the court of appeals took judicial notice of the fact that the building involved had been razed, found that the issue of possession by relator was moot, dismissed the complaint, and assessed costs of the mandamus action against the relator.
Further, on April 12, 1982, the court of appeals found Schulman guilty of contempt, imposed a jail sentence and a fine and assessed only the costs of his hearing in contempt against him. The jail sentence was suspended.
Although the confrontation which culminated in the judgment finding Schulman in contempt began in 1978, and must be considered in mitigation of his actions, the material facts upon the issue of his contempt began when relator served upon Winston R. Willis, as manager of Scrumpy Dump Cinema, Inc. and president of U.C.P.D., subpoenas duces tecum requesting the production of certain documents in his possession or control at a May 15, 1981, hearing. The record indicates that although Willis was present at the May 15 hearing, he did not produce the documents set forth in the subpoenas duces tecum.
As a result of relator's May 18, 1981 motion to cite Willis and others in contempt of court for failure to comply with the subpoenas duces tecum, the court of appeals conducted a contempt hearing which commenced on June 16, 1981. The hearing was continued to 10:00 a.m. on August 3, 1981.
On August 3, at approximately 9:40 a.m., court reporters John Mehler and Cynthia L. Tolar arrived at the court of appeals' courtroom. Pernell Jones, bailiff for the court of appeals, was also present in the courtroom, as was assistant prosecutor Patrick Carroll. John Meros and Milton Schulman, who is an attorney at law, entered the courtroom very shortly after 9:40 a.m. Schulman sat down in the first seat on the left side of the counsel table, Meros sitting directly behind him. Willis then came into the courtroom, and sat down in the first seat opposite Schulman.
Before the judges entered the courtroom, at approximately 9:50 a.m., Willis said something to Schulman. As a result of the statements, Schulman arose, went over to Willis, and struck Willis. Meros quickly separated the two. After Willis and Schulman returned to their seats, the two apparently exchanged remarks. Schulman arose again, grabbed Willis and a short wrestling match ensued. Meros intervened a second time, isolating Schulman from Willis.
Because of the incident, the court of appeals' judges did not enter the courtroom until approximately 10:10 a.m. Willis then informed the court of the incident, and orally moved that Schulman be cited for contempt. Willis additionally filed a written motion to show cause why Schulman should not be found in contempt by the court. A full evidentiary hearing was held by the court on August 17, 1981, upon the written charges of contempt filed against Schulman.
"Q How long after that did any of the judges of the court of appeals make an appearance in the room?
"A Well, we were due to begin at 10:00 o'clock. I have been in the court of appeals twice, and both times we started at 10:00. This time they did not come in at 10:00. They came in sometime after 10:00. I would say between five and ten minutes after 10:00, because after the incident, there was quite a bit of walking around, and mingling around. I was out in the hall myself for approximately ten minutes."
The court of appeals determined that Schulman was guilty of direct criminal contempt beyond a reasonable doubt. The court of appeals found: (1) Schulman's conduct required punishment to preserve the court's authority, (2) the action took place in a constituent part of the court, i.e., the courtroom, (3) the attack in court upon a party waiting for the judges to assemble to continue the proceedings in a pending case was a classic illustration of an obstruction of justice, and (4) any threats Willis allegedly made to Schulman did not warrant an assault.
The cause is now before this court upon an appeal as of right.
Messrs. Schulman Schulman and Mr. Howard A. Schulman, for appellants.
Mr. John T. Corrigan, prosecuting attorney, Mr. Patrick Carroll and Mr. Patrick J. Murphy, for appellee.
Three propositions of law have been presented in this appeal.
I
The first issue presented is whether Milton Schulman was guilty of direct criminal contempt. Appellant Schulman argues that his actions did not obstruct the administration of justice.
R.C. 2705.01 reads:
"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."
Where judges have no personal knowledge of the alleged act of contempt because of its commission beyond the court's actual physical presence, the procedure outlined in R.C. 2705.03, requiring a written charge, an adversary hearing upon the issues, and an opportunity for the accused to be represented by counsel, should be strictly adhered to. State v. Local Union 5760, United Steelworkers (1961), 172 Ohio St. 75, 82 [15 O.O.2d 133]. Here, such a procedure was followed.
This court held in paragraph one of the syllabus in State v. Kilbane (1980), 61 Ohio St.2d 201 [15 O.O.3d 221], that "[c]ourts, in their sound discretion, have the power to determine the kind and character of conduct which constitutes direct contempt of court. * * *" In order to constitute direct contempt, an act need not be in the immediate presence of the court, if it tends to obstruct justice or interfere with the actions of the court in the courtroom itself. In re Estate of Wright (1956), 165 Ohio St. 15, 26 [59 O.O. 37].
The conduct of Schulman in striking Willis in the court of appeals' courtroom, approximately ten minutes before the judges entered the courtroom, in the presence of the court reporters and bailiff of the court of appeals, is an open threat to the orderly procedure of the court. If such actions are not punished, an assaulted person will feel he is not being accorded equal justice under the law, and demoralization of the court's authority may follow. A person ordered to appear before a court is entitled to the protection of the court when the person enters the courtroom pursuant to a court order.
Consequently, Schulman's assault of Willis obstructed the administration of justice. Striking someone who is in a courtroom on court business, the act occurring in the presence of the court's bailiff, marshal, constable or court reporter, is a direct contempt in the constructive presence of the court and may be punished as such.
The first proposition of law is without merit.
II
Appellant Schulman additionally maintains that the evidence does not support a finding that he intended to obstruct the administration of justice by his actions, and thus he could not be found guilty of criminal contempt.
A person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts. State v. Johnson (1978), 56 Ohio St.2d 35, 39 [10 O.O.3d 78].
The natural, reasonable and probable consequences of Schulman's voluntary act of striking Willis was the obstruction of the administration of justice.
The second proposition of law is overruled.
III
Appellant Seventh Urban argues that the court of appeals abused its discretion when it assessed costs of the mandamus action against relator without any consideration of the merits of relator's claims or the fairness of the assessment of costs. Appellant maintains that it was entitled to the relief it sought, the action becoming moot solely through the delay of respondent and Willis.
Until a trial court renders a judgment in an action, the merits of any claim are pure conjecture. The court of appeals in this case did not determine whether a writ of mandamus should be issued. Rather, the complaint was dismissed as moot.
An abuse of discretion implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91; Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 219-220 [24 O.O.3d 322]. The court of appeals did not abuse its discretion in assessing the costs of the mandamus action against relator. Even assuming that relator had prevailed on the merits of the cause, the court in that instance is clothed with judicial discretion in the assessment of costs. State, ex rel. Hiett, v. Court (1921), 102 Ohio St. 40, paragraph one of the syllabus. In this case, the court had no opportunity to determine the merits of the action, and it therefore did not exhibit an unreasonable, arbitrary or unconscionable attitude in assessing costs of the mandamus action against relator.
Appellant's proposition is not well-taken.
For the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
W. BROWN, J., concurs in judgment only.
WEBER, J., of the Second Appellate District, sitting for LOCHER, J.