City of Klamath Falls v. Bailey

602 P.2d 1107, 43 Or. App. 331, 1979 Ore. App. LEXIS 3411

• Court: Court of Appeals of Oregon
• Decided: November 26, 1979
• Docket: 78-22c, CA 12474
• Status: Published

Opinions

BUTTLER, J.

Defendant was found in direct contempt of court uring a trial on a traffic citation in the City of Qamath Falls municipal court. He was summarily rdered incarcerated in the Klamath County jail until :00 p.m. of the day in question, and at that time he /as returned to court where the trial judge read to him he findings and contempt order on which the sum-rary contempt was based, and imposed a $150 fine ¹ in ddition to the time theretofore served in the county ail.

Defendant appealed to the circuit court where, on lotion of the city, the contempt order was reviewed olely on the findings and order of the municipal court ldge: in other words, whether the findings supported le contempt order. The circuit court found that they id and affirmed; defendant appeals. The only ques-ion we consider is whether the defendant, on appeal to re circuit court, was entitled to a trial on contested ndings contained in the contempt order. We hold that e was, and reverse.

The municipal court judge apparently proceeded iirsuant to ORS 33.030, which provides:

"When a contempt is committed in the immediate view and presence of the court or officer, it may be punished summarily, for which an order must be made reciting the facts as occurring in such immediate view and presence, determining that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.”

The order entered by the municipal judge complied with the statute in that it recited the facts which he stated occurred in his immediate view and presence, determined that defendant was thereby guilty of a contempt, and prescribed the punishment.

The power of a court to punish for direct contempt in a summary maimer is inherent in all courts, and arises from the necessity of preserving order in judicial proceedings. See Rust v. Pratt, 157 Or 505, 72 P2d 533 (1937); appeal dismissed 303 US 621, 58 S Ct 648, 82 L Ed 1084 (1938). The court may punish for such contempts summarily, without notice or trial, if timely done, and without other proof than its actual knowledge of what occurred. Ex parte Terry, 128 US 289, 313, 9 S Ct 77, 32 L Ed 405 (1888); cf. Taylor v. Gladden, 232 Or 599, 377 P2d 14 (1962).

The requirement that the trial judge in such cases make an order reciting the facts upon which he relies in ordering the contempt and imposing the punishment is intended to permit meaningful review on appeal. In most instances, the reviewing court may determine from the transcript of proceedings in the trial court whether the facts found by the trial judge are supported by the record, and whether the facts so found constitute a contempt as a matter of law. In this instance, no such meaningful review was available because the municipal court is not a court of record, and unless the contemnor is entitled to a trial on the contested issues of fact, there can be no meaningful review other than whether the facts found are sufficient to constitute a contempt and justify the punishment imposed.

As a general proposition, an appeal from a convic-on in a municipal court of any city is taken and srfected in the manner provided by law for taking ppeals from justice courts. ORS 221.350. On appeal om a justice court to the circuit court, in both crimial (ORS 157.060) and civil (ORS 53.090) cases, the ise is tried anew in the circuit court. Procedures in !)th types of cases recognize the need, arising from the ck of a transcript of proceedings in the justice or unicipal court, to try factual issues anew on appeal the circuit court. Regardless of whether the sum-ary contempt proceeding be considered civil or crimi-d, or whether those statutes control appeals in such proceedings, we think the same concept applies here íere the contemnor disputes the findings made by e municipal court judge.

Although the Oregon cases in which there is an peal from an order of summary contempt involve peals from a court of record, at least one case sup-rts the proposition that the contemnor is entitled to spute the trial judge’s findings on appeal. In State of Oregon v. Yates, 208 Or 491, 302 P2d 719 (1956), the fendant was an attorney who was held in summary atempt by the trial judge during the course of a trial íerein the defendant objected "to the Court’s irasc-e tone.” The transcript of the trial court proceedings licated what was said by both the judge and the fendant which gave rise to the contempt order, but it 1 not indicate the court’s tone of voice, or indicate } manner in which the defendant had objected, that whether respectfully or disrespectfully. The record the Supreme Court was supplemented by affidavits m both the judge, the defendant, ten jurors and Ler witnesses who were in the courtroom at the time 3 alleged contempt occurred. The Supreme Court isidered them and reversed the summary contempt iviction.

Another case in which the findings of the trial ge, who held the defendant in summary contempt, re in dispute on appeal is United States v. Marshall, 451 F2d 372 (CCA 9th Circuit, 1971). There were seven defendants in the principal criminal proceeding out of which the summary contempt orders arose, six of whom were held to have been in contempt. A majority of the court vacated the adjudications of contempt and remanded the proceedings to the district court to conduct pleadings pursuant to notice and hearing under rule 42, Federal Rules Criminal Procedure. One judge concurred in part and dissented in part. There were two orders with respect to the six defendants, each relating to incidents found to be contemptuous of the court. With respect to the order concerning which there was a factual dispute, he concurred in the remand; with respect to the other order, about which the record was clear as to what occurred in support of the trial court findings, he dissented.

While neither the Yates nor Marshall cases is in point, each of them demonstrates that where the con-temnor disputes the finding of the trial judge on appeal, even an appeal from a court of record, a procedure will be devised to permit that dispute to be resolved. If that be the rule with respect to appeals from a court of record, a fortiari, it should be the rule in an appeal from a municipal court, where no record is made.

Accordingly, the order of the circuit court affirming the contempt order of the municipal court is reversed, and the case is remanded for further proceedings consistent with this opinion.

1 There is no statute relating to contempts of a municipal court, owever, such courts are equated in many respects to justice courts, with spect to which OKS 52.040 and 52.050 provide:

(ORS 52.040):

"ORS 33.010 to 33.110 and 33.130 to 33.150, defining contempts, and the proceeding for punishing a party guilty of a contempt, shall apply to justices’ courts, except as otherwise specially provided in ORS 52.050.”

(ORS 52.050):

"The punishment for a contempt in a justice’s court shall be by fine or imprisonment, or both, but such fine shall in no case exceed $25, nor the imprisonment 10 days.”

these statutes apply to municipal courts, the fine imposed exceeded the itutory maximum. But see State ex rel Oregon State Bar v. Lenske, 243 Or 477, 405 P2d 510, 407 P2d 250 (1965), cert den 384 US 943 (1966).