State v. Thompson

• Decision Date: 12 May 1982
• Docket Number: No. 25352,25352
• Citation: 644 P.2d 608,57 Or.App. 281
• Parties: STATE of Oregon, Appellant, v. Frank J. THOMPSON, Respondent. ; CA A20277.
• Court: Oregon Court of Appeals

Page 608

644 P.2d 608

57 Or.App. 281

STATE of Oregon, Appellant, v. Frank J. THOMPSON, Respondent.

No. 25352; CA A20277.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Aug. 10, 1981.

Taken In Banc April 7, 1982.

Decided May 12, 1982.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

James K. Gardner, Hillsboro, argued the cause and filed the brief for respondent.

THORNTON, Judge.

Defendant was charged with criminal trespass in the second degree. ORS 164.245. While that charge was pending, he was convicted of contempt and fined for the same conduct which had resulted in the criminal charge. On defendant's motion, the trial court dismissed the criminal charge on double jeopardy ¹ grounds. The state appeals. We reverse.

Defendant and his neighbor have been engaged in a prolonged property dispute. Defendant obtained a decree granting him an easement over his neighbor's property. The decree was reversed on appeal, Thompson v. Scott, 270 Or. 542, 528 P.2d 509 (1974), and the trial court thereafter permanently enjoined defendant from entering the property. See Thompson v. Columbia County Comm'rs, 29 Or.App. 813, 564 P.2d 1376, rev. den. 280 Or. 171 (1977). After defendant violated that injunction by grading a portion of a road on his neighbor's property, he was indicted for criminal trespass. Before the criminal charge was tried, defendant's neighbor initiated contempt proceedings, and defendant was found guilty of contempt and fined $500. That conviction was affirmed on appeal. Thompson v. Scott, 51 Or.App. 367, 625 P.2d 688, rev. den. 291 Or. 151 (1981). The trial court thereupon allowed defendant's motion to dismiss this criminal charge.

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. Oregon State Bar v. Lenske, 243 Or. 477, 480, 405 P.2d 510, 407 P.2d 250 (1965), cert. den. 384 U.S. 943, 86 S.Ct. 1460, 16 L.Ed.2d 541 (1966).

The state relies on ORS 33.130:

"Persons proceeded against for contempt are also liable to indictment for the same misconduct, if it is an indictable offense, but the court before which a conviction is had on the indictment, in passing sentence, shall take into consideration the punishment before inflicted."

Although our contempt statutes, ORS 33.010 et seq., do not distinguish between civil and criminal contempt, the Supreme Court has drawn a distinction in terms of the purpose of the contempt proceeding:

" * * * In a nutshell, criminal contempt is contempt which is punished, usually by fine and/or imprisonment. Civil contempt is contempt in which the court's sanction is intended to compel compliance with the court's order, such as jailing a recalcitrant witness until the witness answers questions which the court has ordered to be answered." In the Matter of Virginia Hanks, 290 Or. 451, 458 n.10, 623 P.2d 623 (1981) (Emphasis in original.)

The United States Supreme Court explained in Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), that it is the ability of the contemnor to purge himself of his sentence by agreeing to perform some act which renders an action a civil contempt proceeding and which justifies the absence of the incidents of a criminal proceeding, such as indictment and jury trial, which are not constitutionally required in a civil contempt proceeding.

The general rule followed in this country seems to be that one committing an act which he is enjoined from committing and which is a violation of a penal law may be punished for contempt for violating the injunction, and he may be punished also for a violation of the criminal law. 22 C.J.S. Criminal Law § 293 (1961). The same rule is stated in 21 Am.Jur.2d, Criminal Law § 249 (1981). See also Words and Phrases, Double Jeopardy, p. 551 ff. For example, in O'Malley v. United States, 128 F.2d 676, 684 (8th Cir. 1942), rev. on other grounds 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943), it was stated that punishments for contempt of court and on conviction under an indictment for the same acts do not result in "double jeopardy." Similarly, in United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963), it was held that the double jeopardy provision did not prevent the criminal prosecution of the defendant, who hurled the witness chair at the Assistant U. S. Attorney prosecuting the case and was summarily held in contempt of court for the assault on the attorney. While we recognize that there are some cases to the contrary, we are not persuaded that these are the better reasoned authorities.

Turning to the case at bar, the contempt proceeding involved here was purely civil. It arose out of a civil proceeding equitable in nature. The injunction which defendant was found to have violated was likewise purely civil in nature. The contempt proceeding was instituted by Scott's affidavit and was tried by Scott's attorney, not the district attorney. Obviously, defendant was not entitled to a jury trial. To hold as argued by the dissent that this contempt proceeding constituted double jeopardy as a bar to a subsequent criminal prosecution is, in our view, to obliterate entirely the distinction between the civil and criminal law and turn the entire process upside down. The purpose of the contempt power of the court is to enforce court orders or to punish violations of court orders. Its aim is to preserve the integrity of the court system itself. That is quite a different purpose than the criminal statutes.

Although there appears to be no Oregon appellate decision directly in point, prior decisions dealing with related issues are instructive. In State v. Morrow, 158 Or. 412, 75 P.2d 737, 76 P.2d 971 (1938), our Supreme Court held that a filiation proceeding in which defendant was charged with being the father of a child did not place defendant in jeopardy, and hence was not a bar to a subsequent prosecution for rape. The court declared: "(J)eopardy has application to proceedings which subject the guilty to an imposition of a penalty." State v. Morrow, supra, 158 Or. at 416, 75 P.2d 737. In State v. Bowling, 1 Or.App. 103, 459 P.2d 454 (1969), we held that an individual is not placed in double jeopardy when punished by the prison disciplinary board and then by a court for an escape or attempted escape from official detention. Accord State v. Eckley, 34 Or.App. 563, 579 P.2d 291 (1978) (probation revocation hearing); State ex rel. Vandenberg v. Vandenberg, 48 Or.App. 609, 617 P.2d 675 (1980) rev. den. 290 Or. 449, dismissed for want of a substantial federal question, --- U.S. ----, 102 S.Ct. 77, 70 L.Ed.2d 74 (1981) (mental commitment proceeding).

Similarly, in State v. Jacobs, 55 Or.App. 406, 637 P.2d 1377 (1981), this court held that a district attorney was not barred from prosecuting a defendant for selling unregistered securities because the State Corporation Commission obtained the defendant's consent to an administrative cease and desist order by promising to discontinue his investigation of the whole matter. We said:

" * * * Because the Commissioner's enforcement power is wholly civil, the cease and desist order * * * did not preclude the district attorney from prosecuting him for violating the securities law." 55 Or.App. at 409-10, 637 P.2d 1377.

In summary, on the basis of ORS 33.130, as well as principle and authority, we believe the proper rule is that punishment for an indirect contempt (disobedience of a restraining order) does not bar prosecution for a criminal violation involving the same facts.

Reversed and remanded for trial.

VAN HOOMISSEN, Judge, dissenting.

I would hold that after a conviction for criminal contempt, the Double Jeopardy Clause of the Fifth Amendment bars a subsequent criminal prosecution for the same offense. The majority, in reaching the opposite result, ignores both strong precedent from the United States Supreme Court and the essentially criminal nature of a criminal contempt proceeding.

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), applies not only to criminal prosecutions, but to proceedings which are criminal in nature. In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court held that despite the originally benign conception of juvenile delinquency proceedings, double jeopardy bars a subsequent criminal prosecution for the same acts for which a person had already been tried in a juvenile court. ¹ The court stated that in determining the applicability of constitutional protections, courts must "eschew the 'civil' label of convenience which has been attached to juvenile proceedings," 421 U.S. at 529, 95 S.Ct. at 1785, and candidly appraise the juvenile process. Evaluating the kind of risk and burden involved in a juvenile delinquency adjudication, the court found it similar enough to a criminal prosecution for double jeopardy to apply. The court placed heavy reliance on the fact that an adjudication of juvenile delinquency put the child at risk of incarceration.

The United States Supreme Court addressed the nature of criminal contempt proceedings when it was required to decide if the right to a jury applied. In holding that a defendant in a "serious" criminal contempt proceeding had a right to a jury trial, the court stated:

"Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of...