State ex rel. Dwyer v. Dwyer

• Decision Date: 30 April 1985
• Citation: 299 Or. 108,698 P.2d 957
• Parties: STATE ex rel. Linda DWYER, Respondent on Review, v. Donald Andrew DWYER, Petitioner on Review. TC 15-79-05972; CA A27164; SC S31012.
• Court: Oregon Supreme Court

Page 957

698 P.2d 957

299 Or. 108

STATE ex rel. Linda DWYER, Respondent on Review, v. Donald Andrew DWYER, Petitioner on Review.

TC 15-79-05972; CA A27164; SC S31012.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 8, 1984.

Decided April 30, 1985.

Stanley Cram, Eugene, argued the cause for petitioner on review. With him on the brief was Johnson, McKeever & Cram, Eugene.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief and memorandum of additional authorities were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Solicitor General, Salem.

CARSON, Justice.

The issue in this case is whether the Oregon Constitution guarantees the right to a jury trial in a "criminal" contempt proceeding brought because of defendant's failure to pay court-ordered child support.

Contempt proceedings were initiated by the state against defendant in behalf of his former wife. A show cause hearing was held before the court following the court's denial of defendant's oral request for a jury trial. The circuit court found that defendant was aware of a 1981 court order entered by stipulation requiring him to pay a reduced amount of child support, that he had made no child support payments, and that he deliberately chose to work only sporadically at odd jobs to earn enough money to just "get by." The trial court held defendant to be in contempt for his wilful failure to comply with that order for support. The trial court suspended imposition of sentence for a period of one year, during which time defendant was placed on probation, on the condition that he pay the monthly child support previously ordered by the court.

Defendant appealed, assigning as error the trial court's finding that his failure to pay the court-ordered child support was wilful and the denial of his request for a jury trial on state and federal constitutional grounds. The Court of Appeals affirmed the trial court, holding that the evidence supported the trial court's finding of wilful non-compliance with the child support order and that defendant had no right to a jury trial under Article I, section 11, of the Oregon Constitution or under the Sixth Amendment to the United States Constitution. State ex rel. Dwyer v. Dwyer, 69 Or.App. 56, 684 P.2d 15 (1984). Defendant petitioned to this court for review contending that Article I, section 11, of the Oregon Constitution guarantees the right to a jury trial in a criminal contempt proceeding.

It may be helpful to discuss briefly what is and what is not involved in this case:

A. Direct and Indirect Contempt.

Defendant's contempt was not a direct contempt of court, defined as a contempt "committed in the immediate view and presence of the court or officer," which may be punished summarily without affidavit or show cause hearing. ORS 33.030. Defendant's contempt was indirect.

B. Civil and Criminal Contempt.

Defendant was not punished for civil contempt, wherein the penalty is "imposed in order to compel compliance with an order and will end as soon as the respondent complies." State v. Thompson 294 Or. 528, 531, 659 P.2d 383 (1983). That is the situation often described as a case wherein the defendant carries the key to his own jail cell. On the other hand, criminal contempt is defined as a case wherein the penalty "is imposed as punishment for a completed contempt that can no longer be avoided by belated compliance." State v. Thompson, supra, 294 Or. at 531, 659 P.2d 383. By their nature, penalties for criminal contempt are determinate and those for civil contempt are indeterminate. The allowable punishments for criminal and civil contempts are stated in ORS 33.020(1) and (2), respectively, which provide:

"(1) Every court of justice and every judicial officer has power to punish contempt by fine or imprisonment, or both; but such fine shall not exceed $300 nor the imprisonment six months, except in the cases mentioned in subsection (2) of this section; and when the contempt is not one of those mentioned in ORS 33.010(1)(a) and (b), or in ORS 1.240(1), it must appear that the right or remedy of a party to an action, suit or proceeding was defeated or prejudiced thereby before the contempt can be punished otherwise than by a fine not exceeding $100.

"(2) In addition to the punishment provided for in subsection (1) of this section, the court or judge shall have power to constrain performance of any lawful order, judgment or decree of such court or judge, by imprisonment of the person failing or refusing to comply, until the order, judgment or decree has been complied with."

We are satisfied that defendant was convicted of "criminal" contempt because he was punished for his past failure to pay the child support ordered by the court in 1981. In these circumstances, the fact that the trial court suspended imposition of sentence and placed defendant on probation does not affect the characterization of defendant's penalty as punishment for criminal contempt.

Article I, section 11, of the Oregon Constitution provides, in relevant part:

"In all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury * * *."

The thrust of defendant's argument is simple. If his contempt proceeding is a "criminal prosecution" within the meaning of Article I, section 11, then he is entitled to a jury trial. Defendant relies upon Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977). In Brown, we considered the validity of a law which purported to create nonpenal sanctions and procedures for the first violation, in that case the law against driving under the influence of intoxicants. We examined several indicia that might characterize an ostensible civil penalty proceeding as a "criminal prosecution" within the meaning of the constitutional guarantees applying to such prosecutions. We concluded that the type of conduct defined as the offense was not determinative, that the type or magnitude of sanction is significant but not conclusive, that collateral consequences generally are irrelevant, and that ultimately the decisive question is whether the judgment and sanction carry the "punitive significance" of "community condemnation" in the view of the lawmakers and the community whom they represent, and are meant to be so understood by the defendant. 280 Or. at 102-07, 570 P.2d 52. We also stated that the applicable enforcement procedures, such as arrest, handcuffing and detention or bail, can be an indicator of this perceived punitive significance. Id. at 108, 570 P.2d 52. We held that a first offense of driving a motor vehicle under the influence of intoxicants retained too many "penal characteristics" not to be a "criminal prosecution" within the meaning of Article I, section 11, of the Oregon Constitution. Similarly, in City of Portland v. Tuttle, 295 Or. 524, 668 P.2d 1197 (1983), we applied the indicia of a "criminal prosecution" identified in Brown to a Portland city ordinance and concluded that the Portland City Council intended to create a crime and not a violation or infraction. 295 Or. at 531, 668 P.2d 1197.

Defendant urges this court to apply the Brown indicia to a criminal contempt proceeding brought pursuant to ORS 33.010 to 33.150 to punish a defendant for failure to obey an order for the payment of child support. It very well may be that if those indicia were applied to a criminal contempt proceeding, it would be characterized as a "criminal prosecution." Defendant's argument, however, fails to deal with the historical fact that when the constitution was adopted, punishment for contempt was not considered a "criminal prosecution" as that term was used in Article I, section 11. At that time, also, equitable orders to pay child support were known and punishable by contempt, so we need not consider the question whether there are offenses for which this method of prosecution could not be used without complying with the constitutional guarantees.

Contemporaneously with the adoption of Article I, section 11 in 1857, ¹ Oregon territorial laws provided for contempt proceedings which authorized courts of chancery to fine and imprison contemnors for violating the court's process, rules or orders. See, e.g., General Laws of Oregon, Practice-Chancery § 50, p. 195 (1851). Territorial District Courts and the Supreme Court were authorized by statute to hold an officer of the court in contempt if the officer had been directed to serve a summons but had neglected or refused to do so. General Laws of Oregon, Practice-District and Supreme Court § 5, p. 200 (1851). The latter statute provided that "the court shall adjudge [the contemnor] guilty of a contempt." General Laws of Oregon § 5, p. 200 (1851).

In 1862, the punishment of contempt was provided for in a separate section of the Civil Code, under Chapter VII, entitled "Special Proceedings." General Laws of Oregon, ch. 7, § 640-54, pp. 311-14 (Civ.Code) (Deady 1845-1864). The language in sections 640-54 of Chapter VII which provided for the punishment of contempts in 1862 has continued to be the law in Oregon, with only minor modifications, from 1862 until its present codification at ORS 33.010 to 33.150. Section 649 of the 1862 Civil Code virtually is identical to ORS 33.100 which provides:

"Upon the evidence so taken, the court or judicial officer shall determine whether the defendant is guilty of the contempt charge, and if determined to be guilty, shall sentence him to be punished as provided in ORS 33.020." (Emphasis supplied.)

At least from the time of Blackstone, the English courts denied the right to a jury trial for contempt of court. 4 Blackstone, Commentaries * 285-87; 3 Holdsworth, History of English Law 391-94 (5th ed 1942). Recognizing the weight of English precedent, courts in the United States uniformly adopted the summary disposition of criminal contempts. Goldfarb, The Contempt Power 169 (1963).

We recognize that historical...