Salvesen, In re, 40340

• Decision Date: 20 May 1970
• Docket Number: No. 40340,40340
• Court: Washington Supreme Court
• Parties: In the Matter of Contempt Proceedings of Thelma SALVESEN, Appellant.

Page 41

78 Wn.2d 41

469 P.2d 898

In the Matter of Contempt Proceedings of Thelma SALVESEN, Appellant.

No. 40340.

Supreme Court of Washington, En Banc.

May 20, 1970.

Heavey & Picton, Edward Heavey, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Seattle, for respondent.

WEAVER, Associate Justice.

Appellant Thelma Salvesen makes one assignment of error: ¹

The trial court erred in finding that the appellant had committed contempt In the immediate view and presence of the court. (Italics ours.)

It is not argued that Miss Salvesen's conduct was not within the ambit of contempt of court; it is urged that the contempt was not committed 'in the immediate view and presence of the court or officer' (RCW 7.20.030); hence, the court, not having followed the proper procedure, did not have jurisdiction to enter the order of contempt from which this appeal is prosecuted.

The legislature has established two categories of contempt proceedings in this jurisdiction: ²

(1) Criminal contempt proceedings are prosecuted by this state, pursuant to RCW 9.23.010, which lists eight particular acts that are punished as misdemeanors. Criminal contempt is directed against the power and dignity of the court. The purpose of the statute is punitive. The accused is entitled to a jury trial.

(2) Civil contempt is defined in 12 sections of RCW 7.20.010. We are concerned with only one section:

Disobedience of a subpoena duly served, or Refusing to be sworn or answer as a witness. RCW 7.20.010(10). (Italics ours.)

Although the proceedings under RCW 7.20 may be both coercive and punitive because incarceration can result, the main thrust of the chapter is to coerce rather than punish.

In Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), the court said:

While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial if the court conditions release upon the contemnor's willingness to testify.

Our civil contempt statute provides:

When a contempt is committed in the immediate view and presence of the court or officer, it may be punished summarily, for which an order must be made reciting the facts as occurring in such immediate view and presence, determining that the person proceeded against is thereby guilty of contempt, and that he be punished as therein prescribed. RCW 7.20.030.

It is not the fact of punishment, but rather its character and purpose, that distinguishes civil from criminal contempt. The former does not result in a criminal record. The primary purpose of the instant proceeding was not to punish Miss Salvesen but to coerce her to testify before the grand jury and thus aid it in its investigation.

With this sketch of the applicable law, more fully discussed in Keller v. Keller, 52 Wash.2d 84, 323 P.2d 231, we turn to the facts; they are simple and undisputed.

Pursuant to a subpoena to appear and testify before a grand jury of King County on April 5, 1966, Thelma Salvesen refused to enter the grand jury room unless accompanied by her counsel. ³

The next morning at 9:00 a.m., she again refused to enter the grand jury room. At 11:30 a.m., her counsel appeared before William J. Wilkins, presiding judge of the superior court, and presented extensive legal argument in support of Miss Salvesen's position. No relief was granted, and she was ordered to report at 1:30 p.m.

At 1:30 p.m., she again refused to enter the room while the grand jury was in secret session. Judge Wilkins was called. He presided over an Open session of the grand jury. Miss Salvesen, her counsel, and all jurors were present.

The presiding judge was meticulous in his explanation and instructions to Miss Salvesen. We need not repeat them, except to point out that she was informed she had the right to refuse to answer any question she felt might incriminate her and that she might ask leave to consult further with her counsel. Miss Salvesen stated she understood the instructions.

Once, Miss Salvesen told the court, 'I do not wish to testify.' On two occasions she stated that she refused to testify. The following is the final confrontation of this session of court:

The Court: * * * I am instructing you--Miss Salvesen: (Interposing) You are instructing me to testify? The Court: Yes. Miss Salvesen: I refuse to testify.

The judge left the room and the grand jury convened in Secret session. The statement of facts contains a stenographic report of Miss Salvesen's four refusals to be sworn and testify before the grand jury. The presiding judge was recalled and the grand jury was again convened in Open session.

Miss Salvesen told the court she Had refused to be sworn and testify before the grand jury. Upon inquiry, she told the court that her refusal was 'still my position'; 'it remains my position, sir'; and should the judge retire from the grand jury room, it would make no difference in her refusal to be sworn and testify. She said, 'it would remain my position.'

Stating that he had no alternative, the court found Miss Salvesen guilty of contempt of court committed in his presence in violation of the civil contempt statutes of this state. The order entered complies with RCW 7.20.030, Supra. The judge sentenced her to 30 days in the county jail and fined her $100, stating, however, that:

She may at any time (purge herself of contempt) if she desires to come in and be sworn and respond to the subpoena and then proceed to answer questions, the answers to which would not be apt to incriminate her.

Miss Salvesen spent two days in jail. April 8, 1966, she was released upon her personal recognizance. April 9, she was excused by the grand jury from testifying before it; her testimony was no longer deemed necessary. April 11, the court entered an order remitting the $100 fine and cancelling the sentence of imprisonment.

The question before us is a narrow one as defined by the assignment of error. It is not disputed that Miss Salvesen's refusal to testify was contemptuous under the statute. The sole question is whether her contemptuous conduct occurred in the presence of the court. Did it occur when she refused to be sworn and testify in secret session of the grand jury when the judge could not be present by reason of the statute, or did it occur when, in open court, she told the court (1) that she had refused to be sworn and testify before the grand jury contrary to the court's previous instruction; (2) that refusal to testify was still her position and (3) that her refusal to testify would remain her position.

The statement made to the court in the course of the hearing that if she again went before the grand jury she would again refuse to be sworn and testify amounts to a reiteration of her blanket refusal to answer any questions asked by the grand jury.

She stood before a judge having jurisdiction and said: 'I have not done what you ordered me to do; it is my present decision that I will not do what you ordered me to do, and under any change of circumstances, I will Not comply with the court's mandate.'

Thus, it is apparent that Miss Salvesen stated, in the presence of the court, without condition or qualification, that she refused to answer any questions.

Had she stood mute before the court, an entirely different situation would be presented. It is the act of defiance, however, in refusing to be sworn and answer any question that might be asked of her, in the presence of the court, that forms the basis for the order of contempt.

If this is not contempt In the presence of a court of this jurisdiction, our judicial system has suffered a setback. See Smaldone v. People, 158 Col. 7, 405 P.2d 208 (1965).

Appella...