Chapter 033

 

      33.010

 

      See annotations under ORS 33.015.

 

      33.015 to 33.155

 

NOTES OF DECISIONS

 

      Contempt proceeding instituted under these sections for husband’s failure to pay spousal support pursuant to dissolution decree is separate proceeding from dissolution and trial court’s jurisdiction to hold husband in contempt was therefore not defeated by husband’s appeal from dissolution decree. Oliver and Oliver, 81 Or App 115, 724 P2d 869 (1986), Sup Ct review denied

 

      Choice-of-evils defense could not exonerate defendants charged with contempt for violating injunction arising from demonstration to prevent abortions because defense is available only if defendants’ necessary conduct is not inconsistent with other provisions of law. Downtown Women’s Center v. Advocates for Life, Inc., 111 Or App 317, 826 P2d 637 (1992)

 

      Contempt proceedings are not subject to laws governing venue for criminal proceedings. Bachman v. Bachman, 171 Or App 665, 16 P3d 1185 (2000), Sup Ct review denied

 

      33.015

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 33.010)

 

      Punishment for civil contempt arising from disobedience of lawful judgment or decree is restricted to cases in which violation of court order is wilful and with bad intent. State ex rel Oregon State Bar v. Wright, 280 Or 713, 573 P2d 294 (1977)

 

      Provisions of Oregon Juvenile Code, including [former] ORS 419.476 and [former] ORS 419.478, which vest exclusive jurisdiction in juvenile court of persons under 18, do not vest jurisdiction in juvenile court of contempt proceedings arising out of juvenile’s refusal to testify before grand jury. State v. Tripp, 36 Or App 141, 583 P2d 591 (1978), Sup Ct review denied

 

      Where pro tem court reporter failed to produce transcripts after time extension had expired, her conduct constituted contempt of Court of Appeals by officer of court. In Matter of Wilson, 42 Or App 515, 601 P2d 133 (1979)

 

      Where court reporter did not file transcripts by their due dates and did not file requests for time extensions, she was in default in those cases, and her failure to comply with Court of Appeals’ orders to produce transcripts was contempt of that court by officer under this section. In the Matter of Virginia Hanks, 44 Or App 521, 606 P2d 1151 (1980), aff’d 290 Or 451, 623 P2d 623 (1981)

 

      Witness before grand jury who declines to answer particular questions has not refused to answer questions until there is adjudication of justification for refusal, court order to answer questions and subsequent refusal by witness. State ex rel Grand Jury v. Bernier, 64 Or App 378, 668 P2d 455 (1983)

 

      Criminal contempt proceeding for disobedience of court order or judgment is not “criminal prosecution” within meaning of Article I, section 11 and defendant is not entitled to jury trial. State ex rel Dwyer v. Dwyer, 299 Or 108, 698 P2d 957 (1985)

 

      Citation to wrong subsection of statute, when act being sanctioned is stated plainly in order, does not render order ineffective. State v. Crenshaw, 307 Or 160, 764 P2d 1372 (1988)

 

      In contempt proceeding for disobedience of court order, defendant may challenge validity of underlying order. State v. Crenshaw, 307 Or 160, 764 P2d 1372 (1988)

 

      Where keeper of records had turned over police internal investigation records pursuant to subpoena, and court after in camera inspection ordered keeper to release those records to defendant, keeper of records could not refuse to comply with order based on contention that court should have quashed the subpoena. State v. Heisler, 106 Or App 7, 806 P2d 1154 (1991)

 

      Where trial court treated contempt under this section as non-criminal but imposed criminal sanction and provided nothing for defendant to purge contempt, state was required to prove all elements of contempt beyond reasonable doubt. Wynne and Wynne, 106 Or App 210, 806 P2d 723 (1991)

 

      Defendant was entitled to assert constitutional right against self-incrimination in civil contempt hearing relating to nonpayment of support where testimony could be used in criminal action for nonsupport. State ex rel Leopold v. McCallister, 106 Or App 324, 807 P2d 325 (1991)

 

      Trial court need not make separate findings regarding willfulness and bad intent to support judgment of contempt. Couey and Couey, 312 Or 302, 821 P2d 1086 (1991)

 

      Where state proved existence of valid court order, father knew of order and did not comply, state established prima faciecase for civil contempt. State ex rel Gibbon v. West, 118 Or App 580, 848 P2d 637 (1993)

 

      Willful disobedience of court order to pay child support is established by failure to pay unless defendant proves inability to pay. State ex rel Mikkelsen v. Hill, 315 Or 452, 847 P2d 402 (1993)

 

      Where judgment contained discrete order covering same subject as unmerged property settlement promise, breach of settlement promise by one party did not excuse obligation of other party to comply with judgment. Barrett and Barrett, 126 Or App 62, 867 P2d 540 (1994), aff’d 320 Or 372, 886 P2d 1 (1994)

 

      Transfer of prisoner to out-of-state corrections facility and destruction of prisoner’s prepared legal materials in retaliation for filing suit was contempt. Smith v. Dept. of Corrections, 126 Or App 721, 870 P2d 254 (1994)

 

In general

 

      Disrespectful behavior constitutes misconduct whether addressed to judge personally or to the office of judge. State v. Baker, 126 Or App 508, 868 P2d 1368 (1994)

 

      Defendant’s representation that court believed was false did not occur “in presence of court” when court obtained knowledge of falsity of representation by personal observation outside courtroom, off record, while in recess. State v. Ferguson, 173 Or App 118, 20 P3d 242 (2001)

 

      Acting willfully does not require conscious objective or purpose to accomplish particular result. In re Chase, 339 Or 452, 121 P3d 1160 (2005)

 

      Accidental disobedience of court order is not done “willfully.” State v. Montgomery, 216 Or App 221, 172 P3d 279 (2007)

 

      For purpose of determining whether person is in contempt of court, subpoena is form of process. State v. McGee, 347 Or 261, 220 P3d 50 (2009)

 

      Where defendant, who believed in good faith that estranged husband had dismissed restraining order against defendant, was found with husband in violation of restraining order, defendant did not “willfully” disobey restraining order. State v. Nicholson, 282 Or App 51, 383 P3d 977 (2016)

 

      33.045

 

NOTES OF DECISIONS

 

      Where party was in compliance with court order at time of hearing, but pattern of past violations made future violations likely, contempt was of continuing type. Kelley and Kelley, 128 Or App 123, 874 P2d 1364 (1994)

 

      Where conduct is both disobedience of court judgment and violation of condition of probation, both contempt sanction and probation sanction may be applied to conduct. State v. Walton, 215 Or App 628, 170 P3d 1122 (2007), Sup Ct review denied

 

      Instrumentality of state is subject to inherent authority of court to impose monetary sanction for contempt, regardless of whether legislature has waived sovereign immunity of instrumentality. Oregonians for Sound Economic Policy v. SAIF, 218 Or App 31, 178 P3d 286 (2008), modified 219 Or App 310, 182 P3d 895 (2008)

 

      “Continuing contempt” includes only contempt continuing from date of contempt order forward. Oregonians for Sound Economic Policy v. SAIF, 218 Or App 31, 178 P3d 286 (2008), modified 219 Or App 310, 182 P3d 895 (2008)

 

      33.055

 

NOTES OF DECISIONS

 

      Attorney is not liable for arrest made upon defective warrant unless, in filing motion for warrant, attorney acts in bad faith, intentionally misrepresents facts to judge or otherwise acts with malice. Hiber v. Creditors Collection Service, 154 Or App 408, 961 P2d 898 (1998), Sup Ct review denied

 

      Court’s inherent power to enforce orders through contempt proceeding on own motion does not allow court acting upon motion and affidavit to disregard requirement for predicate finding that contemnor cannot be served personally. Hiber v. Creditors Collection Service, 154 Or App 408, 961 P2d 898 (1998), Sup Ct review denied

 

      Person is party “aggrieved” by contempt if person asserts facts showing contempt affects substantial interest of person or if person has personal stake in underlying judicial proceeding beyond abstract interest in proper application of law. Oregon Education Association v. Oregon Taxpayers United PAC, 227 Or App 37, 204 P3d 855 (2009)

 

      33.065

 

NOTES OF DECISIONS

 

      Private party may not seek imposition of punitive sanctions. Dahlem and Dahlem, 117 Or App 343, 844 P2d 208 (1992)

 

      33.096

 

NOTES OF DECISIONS

 

      “Immediate view and presence of court” means court authority to summarily punish contempt is limited to misconduct that occurs in court’s immediate presence when court is in session during judicial proceeding. State v. Baker, 126 Or App 508, 868 P2d 1368 (1994); Barton v. Maxwell, 325 Or 72, 933 P2d 966 (1997)

 

      Fine for summary contempt does not require finding of ability to pay. State v. Ramsey, 156 Or App 529, 967 P2d 525 (1998), Sup Ct review denied

 

      Defendant’s representation that court believed was false did not occur “in presence of court” when court obtained knowledge of falsity of representation by personal observation outside courtroom, off record, while in recess. State v. Ferguson, 173 Or App 118, 20 P3d 242 (2001)

 

      In absence of some overriding reason for delay, trial court is required to impose any sanction at first reasonable opportunity, usually at or before end of trial. State v. Spainhower, 251 Or App 25, 283 P3d 361 (2012)

 

      33.105

 

NOTES OF DECISIONS

 

      Legislative limitation on summary contempt sanctions does not impermissibly constrain summary ability of court to preserve and maintain order in judicial proceedings. Frost v. Lotspeich, 175 Or App 163, 30 P3d 1185 (2001)

 

      33.115

 

NOTES OF DECISIONS

 

      Judge to whom contempt “is referred” is not judge initially assigned to case but judge to whom contempt matter is assigned on basis of disqualification of initial judge. Phelps and Nelson, 122 Or App 410, 857 P2d 900 (1993), Sup Ct review denied

 

 

      33.350 to 33.400

 

      See annotations under ORS 36.400 to 36.425.

 

      33.410

 

ATTY. GEN. OPINIONS: Entering new, judicially changed name of nominee on general election ballot, (1972) Vol 36, p 45; changing name in public records, (1977) Vol 38, p 945

 

      33.420

 

ATTY. GEN. OPINIONS: Entering new, judicially changed name of nominee on general election ballot, (1972) Vol 36, p 45; changing name in public records, (1977) Vol 38, p 945

 

      33.430

 

ATTY. GEN. OPINIONS: Changing names in public records, (1977) Vol 38, p 945

 

      33.710

 

ATTY. GEN. OPINIONS: Effect upon election’s validity of school election board clerks serving without compensation, (1975) Vol 37, p 679

 

      33.720

 

NOTES OF DECISIONS

 

      If a campaign expenditure authorized by the board of directors of a district was illegal, the board members may be liable to repay the amount spent but the illegal expenditure is not ground for invalidating the results of the election. Eustace v. Speckhart, 14 Or App 485, 514 P2d 65 (1973)

 

ATTY. GEN. OPINIONS: Effect upon election’s validity of school election board clerks serving without compensation, (1975) Vol 37, p 679