422 P.3d 417
Or. Ct. App.2018Background
- Defendant violated a domestic abuse restraining order by sending multiple voicemails and letters to his former wife while incarcerated; some communications were intercepted by jail deputies.
- The district attorney filed a "Motion to Show Cause for Violation of Restraining Order Seeking Punitive Sanctions" listing nine incident dates and attaching an affidavit; no separate counts were alleged in a traditional accusatory instrument.
- The court issued an Order to Show Cause based on that motion, arraigned defendant on contempt allegations, and ultimately found defendant guilty on multiple counts, imposing consecutive 10-day jail terms for each (total 90 days).
- On appeal, defendant argued the motion and order to show cause did not satisfy ORS 33.065(5) and ORS 131.005(1) (i.e., no accusatory instrument) and therefore the trial court lacked subject matter jurisdiction.
- The trial court record shows defendant received the procedural protections associated with punitive contempt at the proceedings, but defendant did not object below to the form of the initiating filing.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a motion and order to show cause that fails to comply with ORS 33.065(5)/ORS 131.005(1) deprives the court of subject matter jurisdiction to impose punitive contempt | A deficient charging document is a procedural error, not jurisdictional; circuit courts retain subject matter jurisdiction over contempt matters | The deficient motion/order to show cause (not an accusatory instrument) deprived the court of subject matter jurisdiction and can be raised at any time | Held: Noncompliance with statute in initiating punitive contempt is not a jurisdictional defect; court had subject matter jurisdiction |
| Whether appellate court should reach unpreserved claim as plain error (raised first in reply brief) | The defect is reviewable as plain error only in the court's discretion; here, the state contends discretion should not be exercised | Requests plain error review if jurisdictional argument fails | Held: Although the error was apparent on the record, the court declines plain error review (issue raised first in reply brief; defendant had received punitive-contempt procedural protections) |
Key Cases Cited
- State v. Webb, 324 Or. 380, 927 P.2d 79 (discusses preservation and appellate review of charging defects)
- State v. Terry, 333 Or. 163, 37 P.3d 157 (defect in indictment is not jurisdictional)
- State v. Daniel, 222 Or. App. 362, 193 P.3d 1021 (reinforces that defective indictment does not divest court of jurisdiction)
- State v. Hauskins, 251 Or. App. 34, 281 P.3d 669 (punitive contempt is quasi-criminal and requires an accusatory instrument)
- Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (defines plain error standard and discretionary review)