In re Contempt of Huth

[Cite as In re Contempt of Huth, 2020-Ohio-3177.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE CONTEMPT OF :
MICHELA HUTH
: No. 108501
[In the matter styled: :
City of Parma v. Nikki J. Novak]
:
[Appeal by Michela Huth] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 4, 2020
Criminal Appeal from the Parma Municipal Court
Case No. 19MIS005
Appearances:
Joseph I. Tripodi, for appellant.
Timothy G. Dobeck, City of Parma Director of Law, and
Michael P. Maloney, Assistant Director of Law, for
appellee.
SEAN C. GALLAGHER, J.:
Appellant Michela Huth appeals the decision of the Parma Municipal
Court that found her in direct contempt of court. Upon review, we affirm.
Background
On March 19, 2019, a pretrial was scheduled in a case pending before
Judge Timothy P. Gilligan in the Parma Municipal Court. Appellant, who had not
filed a notice of appearance, appeared at the pretrial to represent the defendant. She
provided her name and Ohio bar number to the court. When the judge inquired if
appellant had done a pretrial with the prosecutor, appellant responded “No” and
asked the court “that the case be dismissed based upon a jurat defection in the
complaint which is a jurisdictional issue.” The judge informed appellant that if she
wished to make a motion, that she “would need to file something as the attorney of
record, and file a motion to dismiss.” Despite this instruction, appellant indicated
that she could file a written motion but also wished to make an oral motion to
dismiss. The judge informed appellant that the court was not going to hear an oral
motion, and indicated that “[t]here’s going to be a pretrial first, that’s what we do
here.”
As the judge continued to reiterate the court’s procedure and instruct
appellant that a pretrial was to occur with the prosecutor, appellant interjected that
“this court doesn’t have jurisdiction over my client because the complaint is
defective[;] there should be no pretrial * * *. The court has no jurisdiction according
to the law.” The judge instructed appellant not to interrupt him or tell him how to
run his courtroom, and again stated, “it’s set for a pretrial today, if you would like to
act courteous and professional and have a pretrial with the prosecutor, than [sic] do
so.” Appellant rejected this procedure, stating “I do not Your Honor.” The judge
gave appellant another warning about interrupting him and informed appellant if
she did so again the court would hold her in contempt. While the judge again was
instructing appellant that “my rules are you will have a pretrial before anything
happens,” the judge took notice of appellant’s “smug little look on your face.”
Appellant then stated, “I have no such smug look Your Honor.” The judge proceeded
to hold appellant in contempt.
The judge commented upon appellant’s behavior while at the court,
and heard from the prosecutor. Appellant continued to indicate that she had
nothing to say to the prosecutor, that she did not believe the court had jurisdiction
over the case, that she did not believe there should be a pretrial, and that she was
“not trying to be disrespectful.” The judge noted that appellant had not filed an
appearance, did not bring a business card, and had not filed any motion, and that
“you just walk in here and take over the room.”
Appellant was taken into custody, and a contempt hearing was held
later the same day. At the contempt hearing, appellant apologized for having
interrupted the court. The judge indicated that along with interrupting the court,
appellant did not file a notice of appearance and did not have any form of
identification; she demanded a ruling without having filed a motion for the court to
review and consider; she displayed a lack of courtesy to the court and refused to
follow the court’s procedure; and she acted unprofessionally toward others in the
building. When appellant apologized for not understanding the court’s procedure,
the judge reminded her that “[c]ourtesy and dignity and professionalism is in every
court you ever walk into.”
On March 20, 2019, the trial court issued a judgment entry finding
appellant in direct contempt of court in violation of R.C. 2705.01. In its decision,
the trial court noted that appellant appeared at court without having filed a notice
of appearance or any other filings on behalf of the defendant in the matter and that
she had no business card identifying herself as an attorney. The court stated that
appellant “immediately became argumentative and disruptive” and that she
“continued being disruptive and interrupting the court” despite being cautioned by
the court. The court further indicated that appellant “refused to participate in a
pretrial as required by this court, and continued in failing to follow any form of
professional protocol, she demanded this court dismiss the underlying criminal
matter.” The court’s finding of direct contempt resulted from appellant’s “continual
interruptions and interference with the orderly administration of justice.” The trial
court imposed a $250 fine.
Appellant timely appealed the trial court’s decision.
Law and Analysis
Appellant raises two assignments of error for our review. She claims
that the trial court abused its discretion in finding appellant in direct contempt in
violation of R.C. 2705.01 because she contends (1) the finding of direct contempt
was “based upon alleged conduct which was not within the trial court’s personal
knowledge” and (2) “the record does not demonstrate beyond a reasonable doubt
that the conduct alleged posed an open threat to the orderly procedure of the court.”
Under her first assignment of error, appellant argues that the trial
court judge lacked personal knowledge of some of the alleged conduct, which
involved interactions with the court bailiff and the prosecutor outside the presence
of the judge. She claims that this conduct would involve indirect contempt, which
requires due process protections that were not afforded to appellant.
The record reflects that appellant was found in direct contempt of
court. The Supreme Court of Ohio has set forth the distinction between direct
contempt and indirect contempt as follows:
Direct contempt occurs “in the presence of or so near the court or
judge as to obstruct the administration of justice.” R.C. 2705.01. It
may be punished summarily. Id.; Codispoti v. Pennsylvania (1974),
418 U.S. 506, 514, 94 S.Ct. 2687, 2692, 41 L.Ed.2d 912, 920; State v.
Kilbane (1980), 61 Ohio St.2d 201, 204, 15 O.O.3d 221, 223, 400
N.E.2d 386, 389, fn. 4. Indirect contempt occurs outside the court’s
presence, In re Gonzalez (1990), 70 Ohio App.3d 752, 755, 591 N.E.2d
1371, 1373, and the alleged contemnor is entitled to a hearing before
he may be convicted and punished, R.C. 2705.03.
Burt v. Dodge, 65 Ohio St.3d 34, 35, 599 N.E.2d 693 (1992), fn. 1.
Moreover, “[i]n 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.” State ex rel. Seventh Urban,
Inc. v. McFaul, 5 Ohio St.3d 120, 122-123, 449 N.E.2d 445 (1983), citing In re Estate
of Wright, 165 Ohio St. 15, 26, 133 N.E.2d 350 (1956). Thus, direct contempt can
involve conduct occurring in the actual presence of the judge or in the constructive
presence of the court. McFaul at 122-123 (finding conduct that threatened the
orderly procedure of the court that occurred in the presence of the court reporters
and bailiff before the judges entered the courtroom constituted a direct contempt in
the constructive presence of the court); see also State v. T.F., 9th Dist. Lorain No.
17CA011175, 2019-Ohio-1039, ¶ 12. 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, 1st Dist. Hamilton Nos. C-
180333 and C-180334, 2019-Ohio-3596, ¶ 32, citing McFaul at 122; see also T.F. at
¶ 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 * * *.”)
Here, the trial court commented upon appellant’s disrespect for the
court, the assistant prosecutor, and the bailiff while appearing at the courthouse on
the underlying matter. The court explained that this behavior along with her failure
to present any form of professional identification led to the court’s concern over
whether appellant was actually an attorney. Notwithstanding these other
interactions, the transcript reflects that the finding of direct contempt resulted from
appellant’s conduct that occurred in the actual presence of the judge.
The trial court indicated in its decision that when appellant appeared
before the judge she “immediately became argumentative and disruptive” and that
despite being cautioned, she continued being disruptive and interrupting the court,
she refused to participate in a pretrial as required by the court, she failed to follow
any form of professional protocol, and she demanded that the court dismiss the
underlying matter. The transcript reflects that the trial court judge warned
appellant about interrupting him and informed her that if she did so again the court
would hold her in contempt. The trial court’s finding of direct contempt was
premised “[u]pon the contemnor[’s] continual interruptions and interference with
the orderly administration of justice.”
We find no abuse of discretion in the trial court’s classification of the
contempt as direct contempt. Our review reflects that the conduct that led to the
finding of contempt occurred in the actual presence of the judge and interfered with
the orderly procedure of the court. Therefore, appellant could be summarily
punished pursuant to R.C. 2705.01 and the trial court was not required to follow the
procedure outlined in R.C. 2705.03. Appellant’s first assignment of error is
overruled.
Under her second assignment of error, appellant claims that her
conduct did not warrant a finding of direct contempt. She asserts that she was not
interrupting the judge, and that at the point she was held in contempt she was
responding to the judge’s comment about the “smug little look on your face.” She
also claims that even if her conduct was improper, it did not impose an immediate
threat to the administration of justice.
A determination of direct contempt is a matter within the sound
discretion of the trial judge. 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), paragraph one of the syllabus. An abuse of discretion “implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
The record reflects that although the matter was set for a pretrial,
appellant appeared and demanded that the case be dismissed without having filed
any notice of appearance or motion to dismiss with the court. We recognize that
appellant was seeking to present a jurisdictional challenge to the court in the
underlying matter and believed that a pretrial was unnecessary. However, despite
being informed that the court would not consider an oral motion to dismiss,
instructed that she would need to have a pretrial with the prosecutor, and warned
regarding her behavior, appellant continued to disregard the court’s procedure and
to challenge the authority of the court. Appellant’s conduct was disruptive of the
proceedings and could be punished summarily. Upon our review, we find the trial
court acted within its discretion in finding appellant’s conduct constituted an
interference with the orderly administration of justice and in holding appellant in
direct contempt of court.
Appellant’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
municipal 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.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, A.J., and
LARRY A. JONES, SR., J., CONCUR