State ex rel. Hathaway v. Hart
| Decision Date | 05 November 1985 |
| Citation | 300 Or. 231,708 P.2d 1137 |
| Parties | STATE of Oregon, ex rel. Kay Marie HATHAWAY, Respondent on review, v. David Lee HART, Petitioner on review. CC D8201-66193; CA A24959; SC S31364. |
| Court | Oregon Supreme Court |
Clint A. Lonergan, argued the cause for petitioner on review. With him on the petitions were Richard L. Lonergan and Howard R. Lonergan, Portland.
Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent on review.
The issue in this case is whether, under Oregon statutes and the Oregon Constitution, the defendant is entitled to a jury trial in a criminal contempt proceeding for violation of a restraining order entered pursuant to the Abuse Prevention Act, ORS 107.700 to 107.720.
We allowed review to consider this issue in light of State ex rel. Dwyer v. Dwyer, 299 Or. 108, 698 P.2d 957 (1985). In Dwyer, we held that a defendant charged with criminal contempt for failing to pay court-ordered child support was not entitled to a jury trial. We based our holding on "the historical fact that when the constitution was adopted, punishment for contempt was not considered a 'criminal prosection' as that term was used in Article I, section 11." 299 Or. at 113, 698 P.2d 957. We limited Dwyer to criminal contempt proceedings for violations of court orders or decrees that would have been within the purview of common law or equity courts in 1859. Today, we hold that a defendant in a criminal contempt proceeding for violating a restraining order under the Abuse Prevention Act is not entitled to trial by jury.
In January 1982, a restraining order was entered in Multnomah County under the provisions of the Abuse Prevention Act restraining defendant Hart from "molesting, bothering or interfering" with Kay Marie Hathaway. In April 1982, the state initiated contempt proceedings on behalf of Ms. Hathaway. She complained that defendant had broken into her house and assaulted her, in addition to other acts of abuse. The trial court ordered defendant to show cause why he should not be held in contempt for failure to obey the restraining order.
The court held a show cause hearing after denying defendant's motions for jury trial. The trial court found the proceeding to be one for civil contempt, not criminal contempt, 1 and found defendant guilty on four counts of contempt: Counts I and IV beyond a reasonable doubt, and Counts II and III by a preponderance of the evidence. 2 The court sentenced defendant to 30 days' imprisonment on Count II, and postponed sentencing on the remaining three counts pending a presentence investigation. In December 1982, the trial court suspended sentence on Count II, and placed defendant on one-year probation for the remaining three counts, to run concurrently.
Defendant appealed to the Court of Appeals, 70 Or.App. 541, 690 P.2d 514, assigning as error the trial court's ruling that the contempt proceeding was one for civil contempt, the admission of testimony about incidents not contained in the charging instrument, and the court's ruling that defendant was not entitled to a jury trial on state and federal constitutional grounds. The Court of Appeals affirmed in part and reversed in part. The Court of Appeals held that the trial court erred in characterizing the proceeding as one for civil contempt. The court concluded that criminal contempt is a "criminal action" as defined by ORS 131.005(6), 3 and that because it is a criminal action, defendant was entitled to the procedural safeguards set forth in ORS 136.415 and 136.567. 4 The court held that with respect to Counts II and III defendant had been deprived of the protection that guilt be proved beyond a reasonable doubt. The judgments on those two counts were reversed. 5
The Court of Appeals further held that although a criminal contempt proceeding is a "criminal action" invoking statutory procedural safeguards, criminal contempt is not a "criminal prosecution" within the meaning of that term as used in Article I, section 11, of the Oregon Constitution, which provides:
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed * * *."
Therefore, the Court of Appeals held that defendant was not entitled to a jury trial. 6
The defendant argued, and the Court of Appeals correctly held, that the proceeding at issue here was for criminal and not civil contempt. As we said in State v. Thompson, 294 Or. 528, 531, 659 P.2d 383 (1983), "a penalty for contempt [is] 'civil' when it is imposed in order to compel compliance with an order and will end as soon as the respondent complies, and [is] 'criminal' when it is imposed for a completed contempt that can no longer be avoided by belated compliance." See State ex rel. Dwyer v. Dwyer, supra, 299 Or. at 111, 698 P.2d 957; In re Hanks, 290 Or. 451, 458 n. 10, 623 P.2d 623 (1981). However, labeling a contempt proceeding criminal does not answer the question whether a defendant in such a proceeding is entitled to a jury trial.
We first consider defendant's statutory claims to a jury trial and other procedural rights before reaching his Article I, section 11, constitutional claim. "[T]o the extent that statutory law disposes of a case a court has no occasion to reach a constitutional issue." Thompson, 294 Or. at 531, 659 P.2d 383; see, e.g., State v. Spada, 286 Or. 305, 594 P.2d 815 (1979); State v. Smyth, 286 Or. 293, 593 P.2d 1166 (1979). Defendant asserts that persons charged with criminal contempt are entitled to the procedural protections that ORS 136.001 to 136.695 grant to defendants in criminal actions, including the right to a jury, ORS 136.001, 7 because criminal contempt is a "criminal action," ORS 131.005(6). ORS 131.005(6) defines a "criminal action" as "an action at law by means of which a person is accused and tried for the commission of an offense." (Emphasis added.)
The Abuse Prevention Act was not designed by the legislature to be enforced by normal criminal procedures as actions at law. Rather, the legislature intended the Act "to strengthen legal protection for persons threatened with assault by a present or former spouse or a cohabitant." Nearing v. Weaver, 295 Or. 702, 704, 670 P.2d 137 (1983). Under the Act, the court issues ex parte restraining orders "upon a showing that there is an immediate and present danger of abuse to the petitioner." ORS 107.718(1). The court order, which can last one year, may require that either or both parties "be restrained from molesting, interfering with or menacing the other" party. ORS 107.718(1)(c). The order also may provide for temporary child custody and may require the respondent to move from petitioner's residence. ORS 107.718(1)(a) and (b). 8
Finally, the Act, by using the language of ORS 33.020, authorizes a court to punish contempt of its order by a fine not to exceed $300 or imprisonment not to exceed six months. In other words, the essence of the Abuse Prevention Act is to prevent acts of family violence through restraining orders and, if the court orders are disobeyed, to provide legal sanctions for the violations of the orders because ordinary criminal actions at law were found to be inadequate to achieve this desired legislative result. 9
The sanctions for contempt were to provide legal teeth for enforcement of court orders against violators and not to replace normal criminal prosecutions. Criminal charges for assaulting a family member and other such domestic acts of violence can still be prosecuted by information or indictment, and those cases proceed with standard due process protections, including the right to a jury trial. Of course, a defendant is protected from being punished twice for the same conduct if a court imposes contempt sanctions and the defendant is subsequently prosecuted in a criminal law action. See State v. Thompson, supra.
The defendant asserts that because ORS 131.005(6) refers to a person being tried for the commission of an offense, he is entitled to a jury trial under ORS 161.505, which defines an "offense" as "conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state." He then claims that ORS 33.020, providing for six months' imprisonment or a $300 fine, must fall within the definition of an offense. The weakness of that argument is that ORS 161.505 is not the only statute defining an offense. Although ORS 161.505 gives one definition of an offense, not all offenses in our statutes provide for an imprisonment sanction or entitle a defendant to a jury trial. Under ORS 161.565, an offense may be a violation if it is so designated in the statute defining the offense or if the offense is punishable only by a fine, forfeiture, suspension or other civil penalty. An offense is an infraction under ORS 153.270 if it is so designated in the statute defining the offense and "if the offense is punishable only by fine, forfeiture, suspension * * * or other civil penalty." ORS 153.240 specifically provides that the trial of any infraction shall be by the court without a jury. The Abuse Prevention Act's inclusion of an imprisonment sanction does not entitle the defendant to a jury trial under ORS 131.005(6). Had the legislature chosen to provide a jury trial for contempt proceedings under this Act, it could have done so.
The court's authority to punish for criminal contempt arises from a different source than its authority to punish for an ordinary crime. The latter authority is found only in legislative enactment. The former is not only statutory, see ORS 1.020, 10 but also "is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice." Ex Parte...
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