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8th District Issues Reminders on Due Process for Criminal Contempt

The 8th District Court of Appeals issued two decisions recently reminding trial courts about the proper use of the contempt power, and the difference between direct and indirect contempt of court.

Direct contempt occurs in court. Here, the judge has summary power to hold someone in contempt. This unique situation, in which a judge can find someone guilty of a crime and sentence them, without any opportunity to present a defense, is a product of the court’s need to control the courtroom, and promote the orderly administration of justice. The fact that the judge personally witnesses the conduct also lessens the need for an evidentiary hearing.

Indirect contempt punishes conduct outside of court which violates a court order.  With indirect contempt, the defendant is entitled by statute to a hearing, where the State must prove contempt beyond a reasonable doubt. Unlike with direct contempt, the judge has not witnessed the conduct constituting contempt firsthand. Also, the interest in the orderly administration of justice does not apply here, because the contempt does not occur in or near the court. Therefore, the judge’s contempt power must yield to due process rights.

Because the summary contempt power is justified only by the specific concerns present in cases of direct contempt, it must be strictly limited to those cases. The 8th District’s recent opinions both reverse lower courts that exercised summary power in cases of indirect contempt.

In Cleveland v. Robinson, the defendant was found in contempt of court for violating a protection order. The conduct occurred outside of a court. The court scheduled a hearing on the matter. However, at that hearing, when the alleged victim failed to appear, the court found the defendant in contempt, with no evidence having been presented.

The court of appeals reversed. It held that direct contempt did not apply here, and the defendant could only be held in indirect contempt, which requires a hearing. The court stated: “Because the court generally has no personal knowledge of the alleged contemptuous behavior, it must afford the accused procedural safeguards such as a written charge, an adversary hearing, and the opportunity for legal representation.”

In Cleveland v. Goodman, the defendant was held in contempt for his outbursts directed at the court and defense counsel after his sentencing hearing. The court was still on the record, but the defendant had been sentenced, and the hearing was effectively at an end. The judge found him in indirect contempt of court. The court of appeals reversed, holding that the court had not provided him the hearing required under the indirect contempt statute.

Could the judge have avoided the hearing requirement by holding the defendant in direct contempt? After all, this conduct occurred in the courtroom, and in front of the judge. Given that the hearing had ended, however, the defendant’s conduct posed no risk of interfering with court proceedings.

Several Ohio courts have held that even in cases of direct contempt, summary action is not always warranted. These courts, such as the courts of appeals for the Fifth[i]  and Tenth[ii] Districts, hold that the summary contempt power should be reserved for cases of contempt that actually obstruct justice, and require the court to swiftly impose punishment to maintain the order of the courtroom. While the 8th District did not need to reach this issue in Goodman, that defendant’s conduct, which did not result in obstruction of justice, was not the kind that requires summary punishment. Wider adoption of the rule followed by the Fifth and Tenth Districts would ensure that the summary contempt power is confined to the limited circumstances in which it is necessary.

Read the opinions in Robinson and Goodman.


[i] In Re Lodico, 2005-Ohio-172.

[ii] Bank One Trust Co., N.A. v. Scherer,2008-Ohio-2952.

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