State v. Thompson

Court of Appeals of Oregon

State v. Thompson

644 P.2d 608, 57 Or. App. 281, 1982 Ore. App. LEXIS 2890

CourtCourt of Appeals of Oregon

DecidedMay 12, 1982

Docket25352, CA A20277

StatusPublished

Cited by7 cases

This text of 644 P.2d 608 (State v. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Thompson, 644 P.2d 608, 57 Or. App. 281, 1982 Ore. App. LEXIS 2890 (Or. Ct. App. 1982).

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[283]*283THORNTON, J.

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 jeopardy¹ 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 P2d 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 P2d 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 P2d 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 P2d 510, 407 P2d 250 (1965), cert den 384 US 943 (1966).

The state relies on ORS 33.130:

[284]*284“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 P2d 623 (1981) (Emphasis in original.)

The United States Supreme Court explained in Shillitani v. United States, 384 US 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 CJS, 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 F2d 676, 684 (8th Cir 1942), rev on other grounds 317 US 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 (SD NY 1963), it was held that the double jeopardy provision did not prevent the criminal prosecution of the defendant, who hurled the [285]*285witness 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 P2d 737, 76 P2d 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: “[Jjeopardy has application to proceedings which subject the guilty to an imposition of a penalty.” State v. Morrow, supra, 158 Or at 416. In State v. Bowling, 1 Or App 103, 459 P2d 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 P2d 291 (1978) (probation revocation hearing); State ex rel Vandenberg v. Vandenberg, 48 Or App 609, 617 P2d 675 (1980) rev den 290 Or 449, dismissed for want of a substantial federal question, sub nom Vandenborg v. Oregon, 454 US 805, (1981) (mental commitment proceeding).

[286]*286Similarly, in State v. Jacobs, 55 Or App 406, 637 P2d 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.

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[283]*283THORNTON, J.

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 jeopardy¹ 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 P2d 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 P2d 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 P2d 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 P2d 510, 407 P2d 250 (1965), cert den 384 US 943 (1966).

The state relies on ORS 33.130:

[284]*284“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 P2d 623 (1981) (Emphasis in original.)

The United States Supreme Court explained in Shillitani v. United States, 384 US 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 CJS, 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 F2d 676, 684 (8th Cir 1942), rev on other grounds 317 US 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 (SD NY 1963), it was held that the double jeopardy provision did not prevent the criminal prosecution of the defendant, who hurled the [285]*285witness 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 P2d 737, 76 P2d 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: “[Jjeopardy has application to proceedings which subject the guilty to an imposition of a penalty.” State v. Morrow, supra, 158 Or at 416. In State v. Bowling, 1 Or App 103, 459 P2d 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 P2d 291 (1978) (probation revocation hearing); State ex rel Vandenberg v. Vandenberg, 48 Or App 609, 617 P2d 675 (1980) rev den 290 Or 449, dismissed for want of a substantial federal question, sub nom Vandenborg v. Oregon, 454 US 805, (1981) (mental commitment proceeding).

[286]*286Similarly, in State v. Jacobs, 55 Or App 406, 637 P2d 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.

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.

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644 P.2d 608, 57 Or. App. 281, 1982 Ore. App. LEXIS 2890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thompson-orctapp-1982.

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