In re Contempt of Bensing

[Cite as In re Contempt of Bensing, 2023-Ohio-1050.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE CONTEMPT OF RUSSELL S. :
BENSING
:
[Appeal by Attorney Russell S. Bensing No. 112041
in the matter styled: State of Ohio v. :
Sierra Wiley ]
:
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED
RELEASED AND JOURNALIZED: March 30, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-668006-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen L. Sobieski, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, pro se.
SEAN C. GALLAGHER, J.:
This cause came to be heard upon the accelerated calendar pursuant
to App.R. 11.1 and Loc.App.R. 11.1. Russell S. Bensing, the attorney for the defendant
in the underlying criminal action, appeals the decision of the trial court finding him
in contempt. Upon review, we reverse the trial court’s decision.
I. Procedural and Factual Background
The record reflects that when the trial court scheduled the underlying
criminal action for trial on October 11, 2022, at 9:00 a.m., it was aware that Bensing
had an oral argument scheduled in the court of appeals the same date at 10:00 a.m.
To allow for this, the trial court intended to permit Bensing to “go across the street”
to the court of appeals while the jury was being called up.1
On the morning of October 11, 2022, the trial court was expecting to
see all parties at 9:00 a.m., to discuss the status of the case and to address a pending
motion for continuance, which was filed by counsel for the codefendant, and other
issues. However, Bensing had discovered that the oral argument scheduled in the
court of appeals was being conducted via Zoom,2 which would necessitate time for
him to walk back to his office from the trial court. Faced with this predicament, at
9:06 a.m., Bensing left a message for the trial court’s bailiff to notify the court that
he would be waiting in his office, that he could be reached by phone, and that he
would prefer to appear in the trial court after the oral argument. The trial court was
not aware of the message because, as the trial court stated, “[W]e’re in the court
working * * * and we expected you to be here at 9:00.”
At 9:10 a.m., that morning, the trial court judge was on the bench, the
assistant prosecutor was present, the defendant was ready to come into the
1Bensing represents that when he originally advised the trial court of the oral
argument in the court of appeals, he believed it was to be in person.
2 Apparently, this was an oversight on the part of Bensing.
courtroom, the codefendant and counsel for the codefendant were appearing via
video,3 and the trial court was looking for Bensing, who was not present. Bensing
received a call from the trial court’s bailiff at approximately 9:51 a.m., which was
followed with an email invite to appear via Zoom in the trial court.4 Bensing
reminded the bailiff that he had an oral argument in the court of appeals at 10:00
a.m., and indicated that he would only be able to appear for a few minutes.
Shortly before 10:00 a.m., Bensing appeared on the Zoom before the
trial court. He promptly informed the trial court that he had to leave because he had
an oral argument before the court of appeals, which “takes precedence over the trial
court.” The judge stated that they “waited for [Bensing] for 45 minutes,” and the
judge began to address the pending motion for continuance. However, Bensing
indicated “with all due respect” that he had to leave. A short exchange then occurred
in which the judge stated Bensing would be held in contempt and would not be
permitted to leave, but Bensing stated that he had to leave and did not intend to be
disrespectful. Although he somewhat dismissively departed the trial court
proceeding, according to Bensing, the court of appeals was on the line with his
secretary asking where he was at that moment.
3 Consistent therewith, a copy of the Zoom invite that was sent to Bensing reflects
that counsel for the codefendant in the matter accepted an invitation to the Zoom meeting
at 8:42 a.m.
4 It appears that Bensing was under the impression that the trial court judge was
not ready to hear the matter until he received the Zoom invite.
The trial court set the matter for a show-cause hearing on October 13,
2022. At the show-cause hearing, the trial court judge discussed what had occurred
and why it perceived Bensing’s conduct as completely unacceptable. Bensing
explained that he had left a message for the trial court’s bailiff and waited in his
office for a return call, that he reiterated he had to appear on a Zoom oral argument
with the court of appeals at 10:00 a.m., and that he did not intend to be
argumentative. Although the trial court was given the impression that Bensing had
alluded the court of appeals was more important, Bensing explained that he merely
had stated the court of appeals takes precedence, which is pursuant to a local
appellate rule. Bensing stated to the trial court that he never intended to be
disrespectful. Rather, he simply was informing the trial court why he had to leave
and pointing out that he was required to appear before the court of appeals.
The trial court judge expressed that Bensing had unilaterally
attempted to change the schedule of the trial court by leaving a message and that if
he could not have been physically present at 9:00 a.m., then the court could have
given him the Zoom link beforehand. The trial court judge understandably was
displeased with how Bensing “handled the matter” before the trial court that day.
Ultimately the trial court stated that it was holding Bensing in contempt because (1)
he was not present at 9:00 a.m., and (2) he clicked off in the middle of a hearing,
and basically told the trial court what he needed to do.
The trial court made a finding of direct contempt and imposed a fine
of $250. Bensing requested a stay that was granted by the trial court. Bensing has
timely appealed to this court.
II. Law and Analysis
Under his sole assignment of error, Bensing claims the trial court
erred in holding him in direct contempt of court. Direct contempt involves
misbehavior that occurs “‘in the presence of or so near the court or judge as to
obstruct the administration of justice’” and may be punished summarily. State v.
Kilbane, 61 Ohio St.2d 201, 204, 400 N.E.2d 386 (1980), quoting R.C. 2705.01;
accord Burt v. Dodge, 65 Ohio St.3d 34, 35, 599 N.E.2d 693 (1992), fn. 1.5
The determination of contempt is reviewed for an abuse of discretion.
N. Royalton v. Awadallah (In re Leary), 8th Dist. Cuyahoga No. 96424, 2011-Ohio-
6626, ¶ 18; see also Kilbane at syllabus. 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).
In this matter, Bensing presented extenuating circumstances to
demonstrate that he did not simply disregard the trial court proceeding or intend to
obstruct the administration of justice. The record reflects that Bensing made an
5 We note that part of an attorney’s conduct in arriving late to a court proceeding
may be in the nature of an indirect contempt, which would entitle the contemnor to a
hearing to offer evidence on his extenuating or exculpatory circumstances. See Weiland
v. Indus. Comm. of Ohio, 166 Ohio St. 62, 66, 139 N.E.2d 36 (1956). Nevertheless,
Bensing was afforded a hearing in this matter, and the finding of direct contempt
pertained to conduct that occurred before the court.
effort to accommodate the competing demands of the trial court and the court of
appeals. After discovering the appellate oral argument was being conducted by
Zoom, he left a message to notify the trial court of his intentions to remain at his
office and he let the trial court know he could be reached by phone and could appear
afterwards. Upon appearing on the trial court’s Zoom, he promptly informed the
trial court that he had to leave for the oral argument, which was about to begin.
Pursuant to Loc.App.R. 21(F), the oral argument scheduled before the Eighth
District Court of Appeals took precedence over the trial court proceedings.
We recognize that Bensing was solely responsible for the events and
inconvenience that played out that morning. Rather than going to the trial court
and appearing in person at 9:00 a.m., as expected, he chose to remain in his office
and to leave a voicemail for the bailiff at 9:06 a.m. Bensing did not receive a return
call until 9:51 a.m., because the trial court judge and bailiff were in the courtroom
and would not have received Bensing’s message at the time it was left. Bensing, an
experienced litigator, knows better. He should not have created a situation where
the trial court judge’s hearing schedule was needlessly disrupted. Nor should he
have inconvenienced the other parties who were present and ready to proceed with
addressing a pending motion for continuance.6 Bensing acknowledges that he may
have exercised poor judgment in not appearing before the trial court at 9:00 a.m.
6 Ultimately, the criminal case was continued for trial to a later date.
However, as the Supreme Court of Ohio has cautioned, “‘[t]rial courts
* * * must be on guard against confusing offenses to their sensibilities with
obstruction to the administration of justice.’” Disciplinary Counsel v. Bachman,
163 Ohio St.3d 195, 2020-Ohio-6732, 168 N.E.3d 1178, ¶ 24, quoting Brown v.
United States, 356 U.S. 148, 153, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). While Bensing
certainly could have handled the matter better, the record reflects that Bensing was
not reckless or indifferent to the trial court’s authority, he did not intend to
disrespect the trial court, and his conduct did not pose any imminent threat to the
administration of justice. See In re Leary, 8th Dist. Cuyahoga No. 96424, 2011-
Ohio-6626, at ¶ 23-26 (finding trial court abused its discretion in finding attorney
in contempt for appearing late when the attorney left a message for the bailiff
indicating he was scheduled for another trial); In re Gonzalez, 8th Dist. Cuyahoga
No. 81831, 2003-Ohio-1960, ¶ 52 (although attorney’s conduct was improper, it did
not warrant a finding of contempt when it did not pose an imminent threat to the
administration of justice). Although Bensing’s conduct was contemptuous to the
trial court’s sensibilities, it did not constitute punishable, criminal contempt. See In
re LoDico, 5th Dist. Stark No. 2003-CA-00446, 2005-Ohio-172, ¶ 101-102 (finding
attorney’s conduct, though unwise and insulting to the judge, did not warrant a
finding of direct, criminal contempt).
We are cognizant that being a sole practitioner is at times difficult,
but situational awareness about the nature of the appellate oral argument in advance
of the trial court proceeding would have avoided this incident. Even though the
conduct does not rise to the level of direct contempt, a trial court judge deserves
better. Although the trial court’s reprimand was warranted, under the
circumstances presented, we are compelled to find an abuse of discretion occurred
in finding Bensing in direct contempt of court. The sole assignment of error is
sustained.
Judgment of contempt reversed.
It is ordered that appellant recover from appellee the 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.
_
SEAN C. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MARY EILEEN KILBANE, J., CONCUR