Hanks, Matter of

• Decision Date: 04 February 1981
• Parties: In the Matter of Virginia HANKS, Court Reporter, Petitioner. CA 16007; SC 26906. . *
• Court: Oregon Supreme Court

Page 623

623 P.2d 623

290 Or. 451

In the Matter of Virginia HANKS, Court Reporter, Petitioner.

CA 16007; SC 26906.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Sept. 8, 1980.

Decided Feb. 4, 1981.

John C. Stevason, Portland, argued the cause for petitioner. With him on the petition was Spears, Lubersky, Campbell & Bledsoe, Portland.

William Gary, Asst. Atty. Gen., Salem, argued the cause for the Court of Appeals.

PETERSON, Justice.

Virginia Hanks, a pro tempore court reporter, was held in contempt by the Court of Appeals for failing to file transcripts in five cases pending in the Court of Appeals. As "punishment for contempt," the Court of Appeals imposed a five-day jail term and a $300 fine. ¹ We granted review.

THE FACTS

ORS 19.029(3), ² 19.078, ³ and 138.185 ⁴ require court reporters to file transcripts within 30 days after a notice of appeal is filed. Our Rule 2.05(l) requires that a copy of the notice of appeal be served "on the court reporter or reporters." The appendix to this opinion lists five cases in which Hanks was the court reporter, the type of case, the date of the notices of appeal, the due date of the transcripts, the date Hanks received notice of the appeals, and the time from her receipt of notice until the contempt hearing. On November 21, 1979, the Court of Appeals, issued and Hanks was thereafter properly served with an order to show cause requiring her to answer and show, by December 14, 1979, why she "should not be adjudged guilty of contempt of the Court of Appeals * * * for neglecting to file transcripts in (the five cases) and why (she) should not be punished therefor in accordance with law." Although Hanks requested and was given a one-week extension in which to file a response to the order to show cause, no response was filed.

On December 26, 1979, the Court of Appeals ordered that Hanks appear at a hearing on January 17, 1980, before a special master appointed by the Court of Appeals, to show why she should not be adjudged guilty of contempt for failing to file transcripts in the five cases, and why she should not be punished therefor in accordance with law. The order set forth the facts in each of the five cases, including the number of each case, the date notices of appeal were filed, the cases in which Hanks had requested extensions, the transcript due dates in each case, the text of appropriate statutes, and the failure to file transcripts. Copies of affidavits of court personnel and the previous order to show cause were attached. The order further provided:

"Under ORS 33.095(1), you are entitled to be represented by counsel at the hearing. Under ORS 33.095(2), if you can show that you are indigent you are entitled to have counsel appointed to represent you. If you are indigent and require counsel to be appointed, such request must be filed with special master Nepom at his offices at 800 Oregon National Building, 610 S. W. Alder Street, Portland, Oregon 97205, on or before January 10, 1980.

"Should the Court of Appeals enter a judgment of guilty on the charge of contempt, you will be subject to punishment in accordance with ORS 33.020, as construed in State ex rel. Oregon State Bar v. Lenske, 243 Or. 477, 495-97 (405 P.2d 510, 407 P.2d 250) (1966). See In re Julie Wilson, 42 Or.App. 515 (601 P.2d 133) (October 8, 1979)."

Hanks appeared at the hearing, represented by counsel, and testified on her own behalf, and was afforded the opportunity to offer other evidence. Thereafter, the special There is no dispute about the facts found by the Court of Appeals, and from our examination of the record we are satisfied that the findings of the Court of Appeals have been proved beyond any reasonable doubt. ⁶

master filed findings of fact which were adopted by the Court of Appeals. The findings of fact are set out at length in the opinion of the Court of Appeals. ⁵

In her petition for review Hanks makes these assertions: ⁷

1. The evidence was insufficient:

a. To support the finding that petitioner violated an order of the Court of Appeals or support the finding that she disobeyed such an order willfully; such findings being necessary elements to a judgment of contempt;

b. To support the finding of prejudice to a party in an action, such finding being a necessary element to the imposition of a sentence of incarceration.

2. The Court of Appeals erred by failing to apply the 'beyond a reasonable doubt' standard of proof in adjudging petitioner's guilt of contempt.

3. The Court of Appeals erred in placing the burden of proof upon petitioner.

4. The Court of Appeals erred by failing to accord petitioner a presumption of innocence.

5. The Court of Appeals erred by denying petitioner the right to confront witnesses against her.

6. The Court of Appeals was without jurisdiction as the charge of contempt was made without the required supporting affidavits.

7. The petitioner was prosecuted for contempt in violation of ORS § 33.060.

THE EVIDENCE WAS SUFFICIENT

There is no question as to the salient facts supporting the Court of Appeals findings. Hanks was a court reporter. She knew the transcripts were due. She deliberately chose not to file them in a timely manner. She opted to give priority to her private deposition clients. ⁸

Even after Hanks was served with the order to show cause she failed to file any transcripts until the day of the hearing, January 17, 1979, when she filed the 28-page transcript in State v. Johnson.

ORS 8.310 provides, in pertinent part:

"(1) * * * Before entering upon the discharge of his official duties, each such "(2) Reporters shall be officers of the court in which they serve and of any court to which an appeal is made whenever the reporter has recorded the proceedings which are the subject of the appeal."

(official) reporter shall take and subscribe an oath faithfully to perform the duties of his office.

ORS 33.010 provides, in pertinent part:

"(1) The following acts or omissions, in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

" * * *.

"(c) Misbehavior in office, or other wilful neglect or violation of duty, by an attorney, clerk, sheriff or other person appointed or selected to perform a judicial or ministerial service.

" * * *."

There is no question that Hanks knew the transcripts were overdue. She wilfully chose to give priority to the requests of private deposition clients. Her conduct as an officer of the court was more than deficient; it reflects a total disregard of her obligations to the court and to the litigants. She unquestionably violated ORS 33.010(1)(c). ⁹

THE EVIDENCE OF PREJUDICE IS STRONG AND CONVINCING BEYOND

REASONABLE DOUBT

In State v. Johnson (see appendix) the defendant was incarcerated pending appeal. Foss v. Lewis Bros., Inc. and Besmehn v. Pacific Coast Shipping Co., (see appendix) were both civil cases. In Foss the plaintiff was appealing an order granting defendant a new trial following a verdict for plaintiff; in Besmehn, the defendant was appealing from a verdict for the plaintiff. The delay in each case was substantial. Such protracted unnecessary delays arising from Hanks' failure to perform a ministerial but nonetheless important task, of themselves, were prejudicial, for delay adds to the expense of litigation, adds to the interest on the judgment, deprives the successful plaintiff of the possible use of the money judgment, and most important, places the litigants themselves, particularly in criminal cases, in limbo uncertain as to the ultimate result in their cases. These prejudicial effects of delay continued as long as Hanks continued to intentionally delay filing the transcripts.

REASONABLE DOUBT, BURDEN OF PROOF, PRESUMPTION OF INNOCENCE

AND RIGHT TO CONFRONT WITNESSES

Hanks asserts that she was charged and found guilty of criminal contempt, that she was therefore entitled to the procedural due process applicable to criminal cases, and that she was deprived of her rights under the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

Hanks was charged and found guilty of criminal contempt. ¹⁰

Hanks asserts:

"Petitioner's right to confront and cross examine the witnesses against her was also violated. Affidavits of Marilyn Hartley, Records Clerk in the State Court Administrator's Office and David Gernant were attached to the Court of Appeals' Order to Show Cause and Order to Appear. Ms. Hartley's affidavit stated hearsay to the effect that the five transcripts in question were not filed by a certain date (not that they were required to be filed by that date or any other date). Mr. Gernant gave an account of petitioner's request for an extension of time which conflicted with petitioner's testimony at the hearing. Neither Ms. Hartley nor Mr. Gernant were produced at the hearing so that their testimony could be taken into evidence and petitioner given an opportunity to cross examine."

None of these objections were made at the hearing. There is no question as to the correctness of the statements of affiant Marilyn Hartley that the transcripts had not been filed. Hanks admitted that the transcripts had not been filed. Mr. Gernant's affidavit is not relevant to the basis upon which we affirm the finding of contempt.

Hanks asserts that the Court of Appeals failed to accord her the "constitutional right to be presumed innocent," but nothing in the record supports this assertion.

Hanks also claims that the special master improperly shifted the burden of proof to her. At the beginning of the hearing, the following occurred:

"SPECIAL MASTER: Okay. Thank you. As I understand, I had an opportunity, of course, to review the affidavits in the file and I think the burden is upon Mrs. Hanks, Mr. Walker, to proceed. So proceed in any manner you see fit.

"You understand the nature of this proceeding, that I'm here to gather evidence and the transcript will be transmitted to the Court of Appeals...