State v. Welch

434 P.3d 488, 295 Or. App. 410
CourtCourt of Appeals of Oregon
DecidedDecember 12, 2018
DocketA158592
StatusPublished
Cited by10 cases

This text of 434 P.3d 488 (State v. Welch) 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.

Bluebook
State v. Welch, 434 P.3d 488, 295 Or. App. 410 (Or. Ct. App. 2018).

Opinion

SHORR, J.

*412Defendant appeals from a judgment holding him in contempt of court for violating a restraining order issued under the Family Abuse Protection Act (FAPA), ORS 107.718. He assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA) and the court's resulting finding of contempt,1 arguing that the evidence was insufficient to establish that he had "willfully" violated the provision in the FAPA order prohibiting him from "knowingly be[ing] or stay[ing] within 500 feet" of the victim, S. We initially dismissed defendant's appeal as moot. State v. Welch , 289 Or. App. 118, 407 P.3d 895 (2017) ( Welch I ). The Supreme Court remanded the case to us for reconsideration in light of its opinion in State v. K. J. B. , 362 Or. 777, 416 P.3d 291 (2018). State v. Welch , 363 Or. 119, 421 P.3d 351 (2018) ( Welch II ). For the reasons that follow, after considering K. J. B. , we conclude that defendant's appeal is not moot. Then, turning to the merits of defendant's appeal, we affirm the denial of defendant's MJOA.

We begin with a summary of the procedural background in Welch I . As noted above, defendant was charged with contempt of *490court for violating a FAPA order. At his contempt hearing, defendant moved for a judgment of acquittal. The trial court denied the motion and found defendant in contempt. Rather than imposing any sanctions against defendant, the court only ordered defendant to fully comply with the FAPA order going forward.

Defendant appealed and assigned error to the trial court's denial of his MJOA. One of the state's principal arguments on appeal was that defendant's appeal was moot because the court had not imposed any punitive sanctions against defendant and defendant had failed to show any probable collateral consequences that flowed purely from the judgment of contempt. Defendant countered that there was a meaningful collateral consequence, namely that contempt proceedings are inherently stigmatizing, and that judgments of contempt are appealable as a matter of law because of that inherent social stigma.

*413We were persuaded by the state's argument. We first described how we have resolved claims of mootness in previous appeals from judgments of contempt, and specifically whether those appeals were moot due to resulting social stigma. Welch I , 289 Or. App. at 120-22, 407 P.3d 895 (citing State v. Langford , 260 Or. App. 61, 317 P.3d 905 (2013) ; State v. Hauskins , 251 Or. App. 34, 281 P.3d 669 (2012) ; State ex rel. State of Oregon v. Hawash , 230 Or. App. 427, 215 P.3d 124 (2009) ). Based on those opinions, we concluded that defendant's appeal was moot because the trial court had not imposed any sanctions or other consequences on defendant apart from reiterating the preexisting requirement that defendant must comply with the FAPA order. Id. at 122, 407 P.3d 895. We explained that

"the trial court ordered defendant to comply with the restraining order against him, which defendant had a preexisting obligation to do. The court expressly decided not to impose any sanctions or 'consequences' on defendant. Defendant has not identified how a contempt judgment that imposes no sanctions and only mandates compliance with a preexisting court order generates sufficient social stigma to save the appeal from being moot. Absent a sufficiently stigmatizing sanction, we are not aware of any collateral consequences that flow directly and solely from the judgment of contempt itself."

Id .

Defendant sought review of our decision from the Oregon Supreme Court. The Supreme Court subsequently decided K. J. B. -a case involving an appeal from an order of civil commitment that had since expired-in which it clarified how a court should address claims of mootness. The Supreme Court then remanded Welch I to us for reconsideration in light of K. J. B . Welch II , 363 Or. 119, 421 P.3d 351. Of relevance to this case, the court explained in K. J. B. that

"[t]he burden rests with the party moving for dismissal to establish that a case is moot. ***
"The moving party's burden includes the burden of establishing that any collateral consequences either do not exist or are legally insufficient.

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Cite This Page — Counsel Stack

Bluebook (online)
434 P.3d 488, 295 Or. App. 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-welch-orctapp-2018.