State v. Palmlund

• Decision Date: 29 December 1972
• Docket Number: No. 10947,10947
• Citation: 95 Idaho 150,504 P.2d 1199
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Erma PALMLUND, d/b/a People's Denture Service, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1199

504 P.2d 1199

95 Idaho 150

STATE of Idaho, Plaintiff-Appellant, v. Erma PALMLUND, d/b/a People's Denture Service, Defendant-Respondent.

No. 10947.

Supreme Court of Idaho.

Dec. 29, 1972.

W. Anthony Park, Atty. Gen., Stewart A. Morris, Asst. Atty. Gen., Boise, for plaintiff-appellant.

Merlyn W. Clark, Lewiston, for defendant-respondent.

BAKES, Justice.

The State of Idaho (hereinafter appellant) filed this appeal to contest the district court's order granting dismissal of its contempt charge against Mrs. Erma Palmlund, doing business as People's Denture Service (hereinafter respondent).

In her business, respondent engages in various practices concerning the repair and relining of dental prosthetic appliances. In October, 1968, appellant, on behalf of the Idaho Board of Dentistry, filed a complaint in the district court of the Second Judicial District against respondent to have her enjoined from performing activities which constitute the unlicensed practice of dentistry as defined in I.C. 54-901. Based on relevant affidavits and motions, the court issued a temporary restraining order against respondent and ordered her to show cause why the injunction should not issue. After the show cause hearing, the court issued a preliminary injunction which delineated specific activities which respondent was prohibited from undertaking. In January of 1969, respondent and appellant, through counsel, stipulated to the entry of a permanent injunction order which incorporated by reference the terms of the preliminary injunction. On March 1, 1971, appellant filed a petition in the same district court to punish respondent for contempt arising out of respondent's alleged violation of the injunction. Accompanying the petition were the affidavits of two investigators which detailed activities which respondent allegedly performed in violation of the injunction. The show cause hearing founded on these documents was conducted on March 26, 1971. At the close of appellant's presentation of evidence at the hearing, respondent's motion for dismissal (I.R.C.P. Rule 41(b)) was granted by the district court. From the district court's order, appellant has appealed to this court. ¹

Fundamental to the disposition of this appeal are two issues, one raised by respondent and one by appellant. Respondent contends that the district court had no jurisdiction to hear the contempt charge because appellant's initiating petition and affidavits were deficient. Appellant contends that it introduced sufficient evidence of the activities of respondent which violated the injunction to avoid the involuntary dismissal granted by the district court.

We first consider respondent's contention that the district court lacked jurisdiction to rule on appellant's petition charging respondent with contempt because of a defective initiating petition. The alleged contempt by respondent is properly characterized as an indirect contempt-i. e., a contempt committed out of the presence of the court. According to I.C. § 7-603, 'When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officer.' As to the consequence and requisite sufficiency of such affidavit, the case of Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967) is instructive. Jones involved a contempt charge against the defendant for his alleged failure to comply with a child support order. On appeal, this court concluded that the trial court lacked jurisdiction to consider the contempt charge since the initiating affidavit was deficient in that it 'did not contain any allegation to the effect that the child support order was served upon (the contemner) or his attorney, or that he had actual knowledge thereof.' Jones v. Jones, supra at 581, 428 P.2d at 500. The court thus remanded the case for further proceedings including leave to the plaintiff to amend the affidavit. In its opinion, the court in Jones enunciated these principles:

'The affidavit on which contempt proceedings are based constitutes the complaint, and its function is to apprise the alleged contemnor of the particular facts of which he is accused, so that he may meet such accusations at the hearing.

'In a contempt proceeding the court acquires no jurisdiction to proceed until a sufficient affidavit is presented. (Citations omitted). Since contempt proceedings are quasi-criminal in nature, even though designed to impose punishment for violation of an order made in a civil action, no intendments or presumptions may be indulged to aid the sufficiency of the affidavit.' (Citations omitted).

'The initiating affidavit must allege that the contemnor or his attorney was served with the order which he is charged as having violated . . . or that he had actual knowledge of it. (Citations omitted).

'. . . Where the affidavit fails to allege all essential material facts, however, such deficiencies cannot be cured by proof supplied at the hearing, (Citations omitted), or by judicial notice of the court's own records. State v. Lenske, supra (243 Or. 477, 405 P.2d 510).' Jones v. Jones, supra, at 581, 428 P.2d at 500. (Emphasis added).

Knowledge of the order is an essential constituent element of contempt according to Jones. Given this premise, the court in Jones, denominating contempt as quasicriminal in nature, adopted the criminal law rule that a criminal court acquires no subject matter jurisdiction unless the initiating accusatory document (indictment, information or complaint) is sufficiently particular to state a public offense. In order to state a public offense, the accusatory document must recite all the requisite elements of the offense. Applying the criminal law rule to the circumstances then at hand, the Jones court concluded that the district court had no jurisdiction over the matter since the initiating affidavits, the basis of the action, did not recite that the alleged contemner had knowledge of the order he was charged with infringing. Jones, supra, at 581, 428 P.2d 500.

The distinction between civil and criminal contempts has not been entirely clear. As stated by the United States Supreme Court in the landmark case of Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1910):

'Contempts are neither wholly civil nor altogether criminal. And 'it may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both.' Bessette v. W. B. Conkey Co. (,) 194 U.S. (324) 329, 24 S.Ct. 665, 48 L.Ed. (997) 1002. But in either event, and whether the proceedings be civil or criminal there must be an allegation that in contempt of court the defendant has disobeyed the order, and a prayer that he be attached and punished therefor. It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs that affirmative act required by the court's order.' 221 U.S. at 441, 31 S.Ct. at 498. (Emphasis added).

Merely because the charge in this cause can be described as quasi-criminal, Jones, supra, and Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972), or criminal, Gompers, supra, it is clear from the cases that such an appellation does not, of itself, equate a proceeding for contempt as a criminal prosecution. As the Supreme Court of the United States later said in the case of Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, at 256, 76 L.Ed. 375:

'While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not 'criminal prosecutions' within the Sixth Amendment or common understanding.'

Upon reflection, we are of the opinion that a contempt proceeding and a criminal prosecution cannot be deemed absolutely synonymous and, therefore, an en masse application of criminal rules, both substantive and procedural, to contempt proceedings is unwarranted. It is both more expeditious and more accurate to say that a contempt proceeding is sui generis, a singular type of legal action, and as such gleans its applicable rules from both the civil and the criminal law. E. g. People v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417 (1961).

While the courts since Blackmer have been wrestling with the problem of how many of the protections of the criminal law are applicable to contempt proceedings, see Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1965), Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1967), it is clear that the courts have not gone so far as to state that a criminal contempt proceeding is synonymous with a criminal prosecution. As Mr. Justice Fortas stated in the Bloom case in which he concurred in the majority's view that a criminal contempt proceeding which resulted in a two...