# City of Cleveland v. Heben

> Ohio Court of Appeals · June 17, 1991 · 74 Ohio App. 3d 568

URL: https://www.frixlaw.com/law-library/cases/3760956

## Case

- **Full name:** CITY OF CLEVELAND, Appellee, v. HEBEN, Appellant
- **Court:** Ohio Court of Appeals
- **Decided:** June 17, 1991
- **Citations:** 74 Ohio App. 3d 568; 599 N.E.2d 766; 1991 Ohio App. LEXIS 2790
- **Precedential status:** Published
- **Opinion:** Dissent by Krupansky
- **Judges:** Sweeney, Nahra, Krupansky
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*575
Krupansky, Chief Justice,
dissenting.
I respectfully dissent from the majority opinion since while I agree defendant’s conduct may have been ill-mannered, his conduct posed no “actual or imminent” threat to the administration of justice.
A direct contempt of court, with which defendant was charged and summarily punished, is statutorily defined as follows:
“R.C. 2705.01 Summary punishment’for contempt.
“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.”
“By both statutes and judicial decision a court is empowered to summarily punish contempt personally observed by the court.”
In re McGinty
(1986), 30 Ohio App.3d 219, 225 , 30 OBR 377, 382, 507 N.E.2d 441, 447 . In
State v. Conliff
(1978), 61 Ohio App.2d 185 , 15 O.O.3d 309 , 401 N.E.2d 469 , the court clearly warned against a court’s unrestrained findings of contempt against a party unless the conduct of the party poses an actual or
imminent
threat to the administration of justice.
Id.; In re Little
(1972), 404 U.S. 553 , 92 S.Ct. 659 , 30 L.Ed.2d 708 ;
State v. Conliff, supra; State v. Milano
(Aug. 4, 1983), Cuyahoga App. No. 44610, 1983 WL 5628 , unreported.
In a criminal contempt case proof beyond a reasonable doubt is required.
Brown v. Executive 200, Inc.
(1980), 64 Ohio St.2d 250 , 18 O.O.3d 446 , 416 N.E.2d 610 ;
In re McGinty, supra; Bd. of Edn. v. Hamilton Classroom Teachers Assn.
(1982), 5 Ohio App.3d 51 , 5 OBR 146, 449 N.E.2d 26 .
A review of the record indicates the facts do not fit within the purview of R.C. 2705.01. The trial court found defendant in contempt for stating as follows: (1) “Your honor, I would like to remind you to act professionally. I am sick. * * and (2) “Your honor, you have no right to do what you are doing. I have no respect for this Court.”
These two comments of defendant were prompted by the court’s order to defendant to sit down and be quiet after he stated he was going to the bathroom since he was ill. These acts were
only
at best a display of ill manners, but can under no circumstances be found to constitute a threat to the administration of justice.
State v. Conliff, supra.
In the case
sub judice,
had defendant refused to proceed to trial and the medical evidence failed to substantiate any medical illness, then a different scenario would have been presented to obstruct the administration of justice and a contempt action may have been in order. However, under the present circumstances it is difficult to understand why the trial court would have accepted a doctor’s certificate of illness and yet would not accept the doctor’s
*576
testimony, under oath, after the trial court sent the bailiff to bring the doctor from her office to testify in the case
sub judice.
The doctor, who had never met or treated defendant previously, verified defendant’s infirmities under oath. We must assume her clinical findings were based upon her medical training and her testimony was impartial.
While we are sympathetic to the fact judges are exposed to the pressures of moving a docket and are often exposed to cutting, insolent, insulting remarks, the court stated in
Little, supra,
404 U.S. at 555 , 92 S.Ct. at 660 , 30 L.Ed.2d at 711 :
“ ‘The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. * * * [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men [or women] of fortitude, able to thrive in a hardy climate.’
Craig v. Harney,
331 U.S. 367, 376 [ 67 S.Ct. 1249, 1255 , 91 L.Ed. 1546, 1552 ] (1947). ‘Trial courts * * * must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’
Brown v. United States,
356 U.S. 148, 153 [ 78 S.Ct. 622, 626 , 2 L.Ed.2d 589, 595 ] (1958).”
This court has affirmed the finding of direct contempt in cases where the facts warrant such a finding and obstruction to the administration of justice is undeniable. In
State ex rel. Seventh Urban, Inc. v. McFaul
(1983), 5 Ohio St.3d 120 , 5 OKR 255, 449 N.E.2d 445 , this court held that an assault outside the appellate courtroom by one attorney on another before the judges entered the courtroom which delayed hearing for up to ten minutes constituted an obstruction of justice.
Likewise, in
In re McGinty, supra,
there were deliberate acts of counsel,
viz.,
(1) directly disregarding the trial court’s order to interview witnesses after defense counsel interviewed them, (2) intimidating defense counsel and his witness, (3) interfering with defendant’s right to subpoena witnesses, and (4) creating hostility in the witness against defense counsel. These acts were held an imminent threat to the administration of justice.
Certainly defendant, in the case
sub judice,
angered at the trial court’s lack of empathy to his physical illness, whether feigned or real, may have been rude to the court. Defendant’s conduct as the majority suggests may even have tended to “embarrass” the court. The court may well have taken exception to defendant’s remarks, tone of voice or gestures which only the court could discern. However, pursuant to the plain language of R.C. 2705.01 and its statutory elements, defendant’s allegedly contemptuous words under
*577
no stretch of the imagination served to “obstruct the administration of justice” in the proceedings before the trial court. R.C. 2705.01;
State v. Milano, supra.
Furthermore, the record does not indicate defendant’s guilt was proved “beyond.a reasonable doubt.”
Cleveland v. Ramsey
(1988), 56 Ohio App.3d 108 , 564 N.E.2d 1089 .
The courts of justice must never be so harsh or unyielding as to require a sick attorney to perform in the courtroom when he cannot adequately or zealously protect his client’s interests to the best of his ability. Surely, the client must not be made to suffer no matter how unsympathetic his/her/its cause may be.
Accordingly, I would reverse the trial court’s judgment in its entirety.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3760956. Public record. Not legal advice.