State ex rel. Oregon State Bar v. Lenske

• Decision Date: 09 September 1965
• Citation: 243 Or. 477,405 P.2d 510
• Parties: The STATE of Oregon ex rel. The OREGON STATE BAR, Plaintiff, v. Reuben G. LENSKE, Defendant.
• Court: Oregon Supreme Court

Page 510

405 P.2d 510

243 Or. 477

The STATE of Oregon ex rel. The OREGON STATE BAR, Plaintiff, v. Reuben G. LENSKE, Defendant.

Supreme Court of Oregon, In Banc.

Submitted July 29, 1965, Upon Findings of Referee.

Decided Sept. 9, 1965.

Lamar Tooze, Jr., Richard F. Deich, and Robert L. Myers, Portland, for relator.

Reuben G. Lenske, Portland, in pro. per., for respondent.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.

HOLMAN, Justice.

Defendant is a member of the Oregon State Bar and was convicted in the District Court of the United States for the District of Oregon of '* * * wilfully and knowingly attempting to evade and defeat a large part of income tax due and owing by defendant * * *.' The records of this court show that the Oregon State Bar filed with it a certified copy of the judgment of conviction; that, pursuant to Rule I of the rules of this court for admission of attorneys, this court summarily suspended defendant from the practice of law in Oregon; and that the Oregon State Bar was notified by letter of the order of suspension and a copy of the letter was mailed to the defendant.

Thereafter, the Oregon State Bar, as relator, instigated an original contempt proceeding in this court against defendant claiming he had violated the court's order of suspension by continuing to practice law and holding himself out to the public and members of the bar as eligible to practice law. As a basis for this claim and its application for an order to show cause why he should not be punished for contempt, the relator filed with the court affidavits of different individuals setting forth certain alleged actions of the defendant which relator contends constitute the practice of law. Subsequent to the issuance of the order to show cause and after appearance by defendant, this court appointed a referee for the purpose of holding a hearing and taking testimony for this court and making findings.

The referee held a hearing and certified to the court the transcript of the testimony and his findings. The defendant has raised numerous objections to the findings and to the property of the proceeding, among which is the contention that the affidavits filed by the relator are insufficient upon which to base a proceeding of contempt. The affidavits allege neither the entry of the order of suspension by this court nor knowledge by the defendant concerning issuance and entry of such order.

Contempts are of two kinds, direct (ORS 33.030) which is in the presence of the court, and indirect (ORS 33.040) which is out of the presence of the court. This proceeding is an attempt to assert an indirect contempt.

Contempts may be civil or criminal. In a civil contempt the contemnor violates a decree or order of the court made for the benefit of an adverse party litigant. In a criminal contempt a court's process is violated or disobeyed and disrespect of the court is manifested. State ex rel. Hammer v. Downing, 40 Or. 309, 322, 58 P. 863 (1901); State ex rel. Baker Lodge No. 47, etc. v. Sieber, 49 Or. 1, 8, 88 P. 313 (1907). The present proceeding is one of criminal contempt.

The averments of an affidavit are essential to invoking the jurisdiction of the court. In State ex rel. Jones v. Conn, 37 Or. 596, 598-599, 62 P. 289, 290 (1900), this court, in holding insufficient an affidavit reciting information and belief rather than facts, stated as follows:

'Our statute relating to the punishment of contempts provides that, when not committed in the immediate view and presence of the court, 'before any proceedings can be taken therein the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer.' Hill's Ann.Laws Or. § 653 [ORS 33.040]. This affidavit is essential to the jursdiction of the court in all proceedings for constructive contempts (State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L.R.A. 584); and it must state facts which, if established, will constitute the offense. If it is insufficient in this respect, there is nothing to set the power of the court in motion, and it is without jurisdiction to proceed: [citations]. Now, a proceeding for contempt for violating an injunction is in its nature criminal [citations] and therefore the statute must be strictly pursued (4 Enc.Pl. & Prac. 770). * * * The statute * * * contemplates that the facts constituting the contempt shall be stated in a positive manner by some one conversant therewith. Indeed, a proper regard for the liberty of the citizen forbids any proceeding by which he may be deprived of his liberty without the information furnished by such an affidavit, and so the courts hold.'

State ex rel. Baker Lodge No. 47, etc. v. Sieber, supra, 49 Or. at page 4, 88 P. at page 314, reiterates the same rule:

'* * * As a violation of an injunction is a criminal contempt, the proceedings to punish a party accused thereof must be strictly pursued (4 Enc.Pl. & Pr. 770), and, in all cases of constructive contempt, the initiatory affidavit must state facts sufficient to constitute a prima facie case (Id. § 780) [4 Enc.Pl. & Pr. § 780].'

An affidavit must allege the defendant was served with the order or that he had knowledge of it. State ex rel. Hammer v. Downing, supra; Trullinger v. Howe, 58 Or. 73, 113 P. 4 (1911); State ex rel. Stillwell v. Stillwell, 80 Or. 610, 157 P. 970 (1916); State ex rel. Baker Lodge No. 47, etc. v. Sieber, supra, 49 Or. at page 9, 88 P. 313. In the case of Trullinger v. Howe, supra, 58 Or. at page 79, 113 P. at page 6, the court stated as follows:

'Before a party can be brought into contempt for not complying with an order or decree of court, service thereof must be made upon him, and a demand duly made that he comply therewith, unless it appear that he has personal knowledge or notice of such order or decree, and this must be shown by the affidavit upon which the proceedings are based. State ex rel. [Hammer] v. Downing, 40 Or. 314, 325, 58 Pac. 863, 66 Pac. 917, and cases there cited.'

Mr. Justice Harris, in a specially concurring opinion in State ex rel. Stillwell v. Stillwell, supra, 80 Or. at page 616, 157 P. at page 971, said:

'The affidavit must show either that a copy of the order has been served, or that the party has actual knowledge of the making of the order. * * *'

While the above cases are ones of civil contempt, with the exception of State ex rel. Baker Lodge No. 47, etc. v. Sieber, surely knowledge of the order prohibiting the thing claimed to have been done is equally, if not more, important in cases of criminal contempt.

Relative to the necessity of alleging the court's order in the...