Contempt Outside the Physical Presence of the Judge
In Nye v. United States (1941), 313 U.S. 33, 47, 61 S. Ct. 810, 815, 85 L. Ed. 1172, 1180, the court in said: "The inaccuracy of that historic observation in Toledo that the Act 'conferred no power not already granted and imposed no limitations not already existing' has been plainly demonstrated."
The court said further:
"That the previously undefined power of the courts was substantially curtailed by that Act was early recognized by lower federal courts and that view persisted to the time when Toledo Newspaper Co. v. United States, was decided."
Nye decreed that under the federal statute, summary contempt encompasses only contempts committed in the physical presence of the court or so near as to represent an immediate threat to the orderly conduct of its business, ruling that the test is "physical proximity not relevancy."
Federal and state case law, heeding statute while yet to varying degrees maintaining the inherent nature of the power of contempt, has significantly narrowed the concept of direct contempt, but has also created several legal fictions that permit it to include acts committed outside the physical presence of the judge.
These legal fictions embody contumacious acts (a) committed in any "constitute part of the court" (Ex parte Savin 1889, 131 U.S. 267, 276-278, 9 S. Ct. 699, 701-702, 33 L. Ed. 150, 153-154; Nye v. United States 1941, 313 U.S. 33, 48, 61 S. Ct. 810, 815-816, 85 L. Ed. 1172, 1180; Beach v. Beach 1946, 79 Ohio App. 397, 403, 35 Ohio Op. 172, 175, 74 N.E.2d 130, 134:
"The court is present wherever any of its constituent parts is engaged in the prosecution of the business of the court according to law"; 42 A.L.R.2d 970), and (b) committed in the "constructive presence of the judge" (State v. Union, (1961), 172 Ohio St. 75, 15 Ohio Op. 2d 133, 173 N.E.2d 331 paragraph two of the syllabus "A court is constructively present wherever any of its court officers are engaged in the execution of the business of the court according to law";
State v. McFaul 1983, 5 Ohio St. 3d 120, 5 Ohio B. Rep. 255, 449 N.E.2d 445, syllabus striking someone in courtroom in presence of court officers but not the judge is within "constructive presence of court";
Federal Land Bank v. Walton 1995, 99 Ohio App. 3d 729, 734, 651 N.E.2d 1048, 1051 filing of slanderous pleading with clerk of courts is within "constructive presence of trial judge"). English law is similar. Miller, Contempt of Court, supra, at 99.
Ohio and federal contempt law may differ as to definition and penalty standards, because while such standards are controlled by case law (despite statute) in Ohio, they are controlled by statute in the federal courts. Section 401, Title 18, U.S.Code provides:
"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as:
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."
The Federal Rules of Criminal Procedure provide for summary sanction only where "the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court." Fed.Crim.R. 42(a).
English contempt law also is controlled by statute. Contempt of Court Act 1981, Section 14(1).