In re Contempt of Christman , 2022 Ohio 1937 ( 2022 )

[Cite as In re Contempt of Christman, 2022-Ohio-1937.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE CONTEMPT OF LEIF :
CHRISTMAN
: No. 110748
[Appeal by Attorney Leif Christman in
matter styled: State of Ohio v. Keanu :
Lanzy]
:
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
AND REMANDED
RELEASED AND JOURNALIZED: June 9, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-659388-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, for appellant.
KATHLEEN ANN KEOUGH, J.:
I. Background
Appellant Leif Christman was counsel for defendant Keanu Lanzy in
this case. On July 19, 2021, the trial court held a hearing on the state’s motion for
bond revocation. At the beginning of the hearing, the court engaged in the following
colloquy with Christman:
THE COURT: Are you vaccinated? Are you vaccinated?[ 1]
MR. CHRISTMAN: No, your Honor.
THE COURT: Then why is your mask not on your face?
MR. CHRISTMAN: Well, I was trying to talk.
THE COURT: Is that some kind of loophole in the mask rule; take the
mask off when you’re speaking?
MR. CHRISTMAN: Well, I wanted you to be able to hear me better.
THE COURT: I can hear you fine. And I don’t respect you — appreciate
your disrespect of the code [sic].
(Tr. 6.)
The state then argued its position regarding why the defendant’s bond
should be revoked, and Christman argued against the bond revocation. (Tr. 6-18.)
Following argument, the trial court denied the state’s motion. The judge and
Christman then engaged in the following colloquy:
THE COURT: I do want to address Mr. Christman’s mask wearing. Mr.
Christman, you were here last week and — in the bailiff area, and my
bailiff indicated that you were not wearing your mask then. Is that
correct?
MR. CHRISTMAN: Yes, your Honor.
THE COURT: That is correct?
MR. CHRISTMAN: It is correct, your Honor.
THE COURT: Okay.
1 Referring to whether Christman had received the COVID-19 vaccination.
MR. CHRISTMAN: I apologize.
THE COURT: I’m finding you in contempt for your failure to wear a
mask today and your failure to wear a mask last week. There are people
on the floor who are immune-compromised who cannot make
antibodies. There is an Administrative Order requiring all people
entering the building to wear a mask. Court employees who have
provided proof of vaccination do not have to wear a mask. We’re in the
middle of a public health crisis that hasn’t been experienced in this
country in over a century, and I find you to be in contempt, direct
contempt. You can purge this contempt by providing this court with
proof of vaccine within 45 days or pay [a] $1,000 fine. Good luck.
(Tr. 19-20.)
After the hearing, the trial court issued a judgment entry finding
Christman “in direct contempt of court for violating the mask guidelines and policies
of the court of common pleas.” The court ruled that Christman could purge the
finding of contempt by paying a $1,000 fine or providing proof of the COVID-19
vaccination within 45 days of the order. This appeal followed.
II. Law and Analysis
In his first assignment of error, Christman contends that the trial court
erred in holding him in direct contempt. He concedes that the court correctly
described the COVID-19 pandemic as “the worst public health crisis in this country
in a century” and further, that there is a court order mandating the wearing of masks
that cover one’s nose and mouth while in the Justice Center. He contends that the
court erred in finding him in contempt of court, however, because (1) his failure to
wear a mask while addressing the court during the bond revocation hearing did not
sufficiently impede the administration of justice so as to warrant a summary citation
for direct contempt, and (2) although he admittedly did not wear a mask in the
presence of the judge’s bailiff outside the judge’s chambers the week before the bond
revocation hearing, this act could not serve as the basis for a finding of direct
contempt because it occurred outside the presence of the judge. In his second
assignment of error, Christman contends that the trial court erred in finding him in
contempt without following the procedures set forth in R.C. 2705.03. We consider
the assigned errors together because they are related.
“Contempt of court may be generally defined as disobedience of a court
order or conduct that brings the administration of justice into disrespect and
impedes a court’s ability to perform its functions.” State v. T.F., 9th Dist. Lorain No.
17CA011175, 2019-Ohio-1039, ¶ 7. “The power to punish contumacious conduct —
to ensure the effective administration of justice, to secure the dignity of the court,
and to affirm the supremacy of the law — is inherent in a trial court, as well as
derived from statute.” State v. Lowe, 1st Dist. Hamilton Nos. C-170494, C-170495,
C-170498, and C-170505, 2018-Ohio-3916, ¶ 32, citing Denovchek v. Bd. of
Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988).
The determination of contempt is within the trial court’s discretion and
will not be reversed absent an abuse of that discretion. Cleveland v. Heben, 74 Ohio
App.3d 568, 573, 599 N.E.2d 766 (8th Dist.1991); State v. Kilbane, 61 Ohio St.2d
201, 400 N.E.2d 386 (1980). An abuse of discretion occurs when the trial court’s
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Contempt of court can be either “direct” or “indirect,” the difference
based generally on whether the conduct occurs in the presence of the court or
outside its presence. See, e.g., R.C. 2705.01 (Direct contempt occurs “in the
presence of or so near the court or judge as to obstruct the administration of
justice”); R.C. 2705.02 (setting forth examples of indirect contempt); In re Lands,
146 Ohio St. 589, 595, 67 N.E.2d 433 (1946) (“An indirect contempt is one
committed outside the presence of the court but which also tends to obstruct the due
and orderly administration of justice.”).
Although direct contempt typically involves misconduct that takes
place in the actual courtroom and in the actual presence of the trial judge, courts
have at times found the concept of direct contempt to include misconduct occurring
in the “constructive presence” of the court. See State ex rel. Seventh Urban, Inc. v.
McFaul, 5 Ohio St.3d 120, 449 N.E.2d 445 (1983) (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). Id. at 122-123; see also T.F., 9th Dist. Lorain No. 17CA011175, 2019-Ohio-
1039 at ¶ 10 (juror’s conduct of bringing a newspaper article about the defendant to
court and discussing the article with the other jurors was direct contempt because
although it did not occur in the actual presence of the judge, it occurred in the jury
room “near the presence of the court” and disrupted the administration of justice
because it resulted in a mistrial).
Nevertheless, as this court has stated:
Regardless of the classification of the contempt, where a judge has no
personal knowledge of the alleged act of contempt and must rely on
information provided by court personnel to establish contempt, “‘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.’” In re
Chambers, 2019-Ohio-3596, 142 N.E.3d 1243, ¶ 32 (1st Dist.
Hamilton), citing McFaul at 122; see also State v. T.F., 9th Dist. Lorain
No. 17CA011175, 2019-Ohio-1039, ¶ 15 (“Where direct criminal
contempt occurs not in the actual presence of the trial court judge but
only in the constructive presence of the court, the alleged contemnor
must be afforded due process * * *.”)
Parma v. Novak (In re Huth), 8th Dist. Cuyahoga No. 108501, 2020-Ohio-3177,
¶ 11.
The trial judge found Christman in direct contempt for (1) not wearing
a mask in the courtroom during the bond revocation hearing, and (2) not wearing a
mask while in the bailiff’s presence outside the judge’s chambers a week prior to the
hearing. Because Christman’s failure to wear a mask in the bailiff’s presence outside
the judge’s chambers did not occur in the judge’s presence and the judge therefore
had no personal knowledge of the incident, the trial court was required to utilize the
procedure set forth in R.C. 2705.03 if Christman were to be found in contempt of
court for this violation of the court’s administrative order.2 Because the trial court
did not afford Christman the due process protections of R.C. 2705.03 before
summarily finding him in contempt for actions that occurred outside the judge’s
2 R.C. 2705.03 requires a written charge, an adversary hearing upon the issues, and
an opportunity for the accused to be represented by counsel.
presence, the trial court abused its discretion in finding him in contempt for not
wearing a mask in the bailiff’s presence.
The trial court did not abuse its discretion, however, in finding
Christman in contempt for not wearing his mask during the bond revocation
hearing. R.C. 2705.01 empowers a court to summarily punish an offender. It states,
“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.”
Due process requires that two circumstances exist before a court may
find and summarily punish direct contempt: (1) “[a] contumacious act committed
in open court in the judge’s presence and immediate view that results in the judge’s
personal knowledge and makes further evidence unnecessary for a summary finding
of contempt,” and (2) “the contumacious act constitutes an imminent threat to the
administration of justice that may result in demoralization of the court’s authority
unless the court imposes a summary contempt sanction.” In re Chambers, 1st Dist.
Hamilton Nos. C-180333 and C-180334, 2019-Ohio-3596, ¶ 26, citing Chinnock and
Painter, The Law of Contempt of Court in Ohio, 34 U.Tol.L.Rev. 309, 321 (2003).
The trial judge personally observed Christman not wearing his mask
during the bond revocation hearing in contravention of the court’s administrative
order. And despite Christman’s argument otherwise, his failure to wear a mask
during the bond revocation hearing did indeed obstruct the court’s administration
of justice. The court’s administrative order was designed to protect the health and
safety of all participants in court proceedings — whether the judge, the parties,
counsel, other court personnel, or jurors ─ during what Christman acknowledges is
“the worst public health crisis in this country in a century.” (Appellant’s Brief, p. 7.)
Putting courtroom participants at risk of contracting the highly contagious airborne
COVID-19 disease by not wearing a mask as ordered is, as the state contends, the
very “definition” of obstructing the administration of justice. Interference with the
administration of justice is not limited solely to occasions where an individual’s
actions disrupt or effectively halt the court’s proceedings, as Christman seems to
argue. Although the bond revocation hearing proceeded despite Christman’s failure
to wear his mask, his conduct put the health of all the courtroom participants at risk,
thereby presenting an “imminent threat” to the court’s administration of justice, as
well as to the court’s authority. Furthermore, although some judges give a warning
before finding someone in contempt, as Christman contends, there is no
requirement that the court do so.
Christman’s conduct in not wearing his mask during the bond
revocation hearing was in direct violation of the court’s administrative order
requiring him to do so. It occurred in the judge’s presence and interfered with the
court’s administration of justice. Accordingly, the trial court did not abuse its
discretion in summarily finding Christman in direct contempt of court for that
action.
Although discretionary, the punishment for contempt should be
“reasonably commensurate with the gravity of the offense.” Kilbane, 61 Ohio St.2d
201, 400 N.E.2d 386 at paragraph one of the syllabus. Because the $1,000 fine was
based on two instances of contempt but we concluded that the court properly found
Christman in contempt for only one instance of not wearing his mask, the matter is
remanded to the trial court for consideration of the appropriate amount of fine to be
imposed for the single act.
The first assignment of error is overruled; the second assignment of
error is sustained in part and overruled in part.
Judgment affirmed in part; vacated in part; and remanded.
It is ordered that the parties share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK DANIEL CELEBREZZE, III, J., CONCURS;
SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, A.J., DISSENTING:
I respectfully dissent from the majority opinion and would reverse the
trial court’s decision finding Leif Christman in direct contempt of court for violating
the Cuyahoga County Court of Common Pleas’s administrative order that imposed
a mask mandate. I believe it was an abuse of discretion to render any finding of
direct contempt upon the record presented.
There is no question that the trial judge acted as a conscientious jurist
in enforcing the administrative order. Without undermining the judge’s legitimate
concern for the safety and health of those working and appearing in the Justice
Center during the midst of the COVID-19 pandemic, I am unable to find that
Christman’s conduct warranted a finding of direct contempt. I also believe the
contempt finding should be reversed because it was premised, at least in part, on
Christman’s prior mask-wearing conduct that occurred outside the presence of the
court. Also, I find the punishment imposed was unreasonable.
The record reflects that at the beginning of the bond revocation
hearing, the judge questioned why Christman’s client did not appear on time for the
proceeding when Christman had already checked in, informed the bailiff his client
was parking his car, and indicated they were ready. Christman had his mask pulled
down to his chin when speaking to the court. After asking Christman to sit down,
the judge asked Christman why his mask was not on his face, and Christman
responded that he wanted the court to hear him better.3 While the better practice
may have been to ask whether this was permissible in the judge’s courtroom, the
3 Though there is no direct evidence in the record regarding possible relaxed mask
usage under the administrative order, it is no surprise that appellant’s counsel noted his
observations of this practice being permitted in some courtrooms, so long as safe-
distancing measures were in place.
judge likewise never informed Christman that the administrative order would be
enforced within the judge’s courtroom.4 Initially, the judge admonished Christman
for failing to wear a mask over his mouth and nose while speaking before the court,
and it seems Christman promptly complied as the proceeding continued
uninterrupted.
It was not until the conclusion of the bond-revocation proceeding, in
a short exchange of words, that the trial judge found Christman to be in direct
contempt of court. The judge stated that he wished to address Christman’s mask
wearing and began by stating the bailiff had informed him that Christman was not
wearing his mask while in the bailiff area the previous week. Christman apologized;
however, the judge was inclined to summarily find him in direct contempt for “your
failure to wear a mask today and your failure to wear a mask last week.” But for the
earlier incident that occurred outside the courtroom, it is certainly plausible that the
judge would have given Christman no more than a warning and not have found
Christman in contempt.
Case law reflects a warning is commonly given before contemptuous
conduct is found to occur.5 As this court has previously recognized, “judges typically
give a warning before finding someone in contempt.” Cleveland v. Bright, 2020-
4 Christman acknowledges there was an administrative order that mandated the
wearing of masks in the Justice Center. The administrative order was issued by the
common pleas court’s administrative judge; it was not a judicial order issued by the trial
judge.
5 Whether a warning has been provided is certainly a factor that may be considered
in determining whether counsel’s behavior rises to the level of direct contempt.
Ohio-5180, 162 N.E.3d 153, ¶ 55 (8th Dist.), citing In re Contempt of Huth, 8th Dist.
Cuyahoga No. 108501, 2020-Ohio-3177, ¶ 3 (trial court warned attorney she would
be held in contempt if she continued to interrupt); In re Contempt of English, 8th
Dist. Cuyahoga No. 90417, 2008-Ohio-3671, ¶ 6 (trial court warned attorney before
holding him in contempt); In re Contempt of Veneziano, 8th Dist. Cuyahoga No.
78634, 2001 Ohio App. LEXIS 5197, 3-4 (Nov. 21, 2001) (juvenile court warned
attorney she would be held in contempt if she continued to interrupt and instructed
the attorney six times to stop raising her voice); State v. Lowe, 1st Dist. Hamilton
Nos. C-170494, C-170495, C-170498, and C-170505, 2018-Ohio-3916, ¶ 35 (trial
court gave contemnor multiple warnings before finding him in contempt); see also
State v. Wilson, 30 Ohio St.2d 312, 313-314, 285 N.E.2d 38 (1972) (attorney
disregarded trial court’s repeated order); State v. Mick, 6th Dist. Erie No. E-16-074,
2017-Ohio-8922, ¶ 7, 16 (attorney repeatedly disobeyed direct orders from the trial
court); In re Contempt of Kafantaris, 7th Dist. Columbiana No. 07-CO-28, 2009-
Ohio-4814, ¶ 2 (trial court warned defense counsel that failure to heed the court’s
warnings would result in contempt).
Additionally, the trial judge imposed a punitive sanction by ordering
Christman could purge the contempt by paying a $1,000 fine or by providing “proof
of vaccine within 45 days.” See State v. Kilbane, 61 Ohio St.2d 201, 207, 400 N.E.2d
386 (1980) (allowing for a “conditional criminal contempt sanction”). I believe that
the $1,000 fine was excessive and that requiring “proof of vaccine” to purge the
contempt was unreasonable. In my view, the trial court’s order effectively required
Christman to obtain a vaccine to purge the contempt.
Christman is not an individual who stormed into a courtroom
defiantly deriding the mask mandate. He did not even berate the policies or
restrictions regarding COVID in a political manifesto about government overreach
or injustice. Christman was just a lawyer trying to make his best argument on behalf
of a client who was under threat to have his bond revoked. He pulled his mask down
because he wanted the court to clearly hear his argument. The record reflects that
Christman was respectful of the court’s authority, he apologized to the court, and
the court proceeded with the due and orderly administration of justice. Yet, the trial
judge rendered a finding of direct contempt. The judge referenced the public health
crisis and immunocompromised persons, essentially equating Christman’s
transgression of the rule as an all-out attack on community safety.
Upon my review, I believe that the trial court abused its discretion in
finding Christman in direct contempt and that the punishment imposed was
unreasonable. I would reverse the decision of the trial court.
For these reasons, I respectfully dissent.