Defendant appeals a judgment imposing a sanction for summary contempt that was entered more than nine months after defendant engaged in the underlying contumacious conduct. He argues that the trial court lacked authority to sanction him for a contempt that was committed in the immediate view and presence of the court after such a lengthy delay.
On May 19, 2009, defendant was tried by a jury on a charge of harassment. On May 20, the jury returned a guilty verdict. Defendant was upset by the verdict, and he told the court that the verdict was an injustice. The court told defendant to be quiet, but defendant continued to vehemently object to the verdict. The court held defendant in contempt and set a hearing on contempt sanctions for the conclusion of the underlying criminal case. However, because the court ultimately granted defendant a new trial, the underlying case was not concluded until nine months later. On February 11, 2010, defendant was acquitted after a retrial of the underlying harassment charge. The prosecutor then asked the trial court to sanction defendant for the contempt that had occurred on May 20,2009. Despite defendant’s objection to the imposition of a sanction after a months-long delay, on March 1, the trial court sanctioned defendant for the contempt that he committed in the court’s presence on May 20, 2009. The court held that “there wasn’t any objection raised when I decided to push it off to the end of the case, so I find that as waiver, and so the summary contempt still stands.” The court then imposed a sanction of two years’ bench probation and 30 days in jail. The court suspended the jail sentence on the condition that defendant successfully complete all conditions of probation, including submitting a letter from a mental health provider concerning defendant’s mental health treatment. The court also imposed and suspended fines and fees totaling $973.
ORS 33.096 provides, in part:
“A court may summarily impose a sanction upon a person who commits a contempt of court in the immediate view and presence of the court. The sanction may be imposed for the purpose of preserving order in the court or protecting the authority and dignity of the court. The provisions of ORS 33.055 [(procedure for imposition of remedial sanctions)] and 33.065 [(procedure for imposition of punitive sanctions)] do not apply to summary imposition of sanctions under this section.”
(Emphasis added.) As explained below, ORS 33.096 codifies a court’s inherent authority to impose a sanction for a contempt committed in the immediate view and presence of the court. Because ORS 33.096 provides that a court may impose such a sanction “summarily,” defendant urges that the trial court
Whether ORS 33.096 authorized the trial court to sanction defendant despite a delay of more than nine months in this case presents a question of statutory interpretation that we review for legal error. See, e.g., Barton v. Maxwell,
“The power of a court to punish for direct contempt in a summary manner is inherent in all courts, and arises from the necessity of preserving order in judicial proceedings.” City of Klamath Falls v. Bailey,
“ORS 33.096 was adopted in 1991 as a part of a comprehensive reform of several statutes that control proceedings for contempt of court. Or Laws 1991, ch 724, §§ 1-14. The preexisting statutory scheme incorporated several concepts regarding contempt of court that had their origin in the common law.”
The inherent common-law authority codified in ORS 33.096 does not offend federal constitutional due process requirements. In In re Oliver,
“charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent ‘demoralization of the court’s authority. * *
(Citing Cooke v. United States,
The issue, as framed by the parties, ultimately reduces to what temporal constraints, if any, limit the trial court’s imposition of contempt sanctions in accordance with ORS 33.096. As explained below, we conclude that (1) “summarily,” as used in ORS 33.096, refers both to the procedures employed, and to the timing of the employment of those procedures, in imposing direct contempt sanctions; (2) the limits of that timing are defined functionally by reference to the purpose of direct contempt sanctions, and are, concomitantly, circumscribed by considerations of due process (which also refer to that purpose); and (3) consistently with the function and purpose of ORS 33.096 and the dictates of due process, the limiting temporal principle is not (as defendant urges) one of immediate temporal proximity to the purportedly contumacious conduct; rather, direct contempt sanctions must be imposed at the first reasonable opportunity, usually at or before the end of trial. Given that constraint, the court’s imposition of sanctions here came too late.
As a textual matter, “summarily,” as employed in ORS 33.096, modifies the word “impose.” That, in turn, could, plausibly, be understood to refer either to the procedures the court follows in imposing contempt sanctions or to a hybrid of both those procedures and the requisite timing. Pertinent case law and statutory context, at least by necessary implication, demonstrates that the latter construction is correct.
Bailey corroborates that hybrid content of “summarily.” There, this court reviewed a municipal court’s application of former ORS 33.030, which, before the enactment of ORS 33.096, codified the inherent common-law judicial authority to summarily sanction a direct contempt.
The requirement for timely punishment is also contextually dictated by the statute’s express description of its purpose. “The sanction may be imposed for the purpose of preserving order in the court or protecting the authority and dignity of the court.” ORS 33.096. Generally speaking, a sanction imposed months or years later would not logically serve that purpose. That is, if the court’s order and dignity were preserved and protected despite a delayed sanction, “immediate punishment” would not have been “essential to prevent demoralization of the court’s authority.” See Oliver,
That is not to say, however, that, regardless of the circumstances, a court can never impose a direct contempt sanction unless it does so immediately after the purportedly contumacious conduct. Because the inherent power to summarily punish a direct contempt is subject to constitutional limits, the pronouncements of the United States Supreme Court on that issue are instructive. In Sacher v. United States,
“[w]e think ‘summary,’ as used in [Rule 42(a) of the Federal Rules of Criminal Procedure] does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission offindings, and all that goes with a conventional court trial.” 3
However, that understanding does not authorize temporally open-ended sentencing for direct contempt. As the Court explained,
“if [the trial judge] believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power [to summarily punish contempt occurring in the presence of the court].”
Id. at 11 (emphasis added).
Thereafter, in Taylor v. Hayes,
The Court reiterated the necessity to afford contemnors due process in Codispoti v. Pennsylvania,
“[w]hen the trial judge, however, postpones until after the trial the final conviction and punishment of the [alleged contemnor] for several or many acts of contempt committed during the trial, there is no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process.”
As the foregoing cases make clear, because the justification for the summary imposition of a direct contempt sanction depends on the need to “preserv[e] order in the court or protect[ ] the authority and dignity of the court,” the court’s inherent power is, necessarily, both functionally and constitutionally, subject to a temporal constraint. Consequently, although some delay is circumstantially permissible — e.g., when the court believes that the exigencies of a trial require it
Here, the record discloses no reason why the exigencies of the underlying criminal case required a nearly 10-month delay. It may have been convenient for the court to sanction defendant for the contempt and to sentence him on the underlying harassment charge at the same time. However, in view of the temporal limitations on a court’s inherent power — as codified in ORS 33.096 — to resort to summary contempt proceedings, that is not a sufficient reason for such a long delay. In the absence of some overriding
Reversed.
Notes
Defendant raises an unpreserved assignment of error to the trial court’s failure, in view of its delay in imposing a sanction, to follow the procedures set out in ORS 33.065 for the imposition of punitive sanctions. Even if the error were plain, we would not exercise our discretion to correct it. Suffice it to say that a key factor guiding our discretion is “whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.” Ailes v. Portland Meadows, Inc.,
We noted this issue hut did not address it in State v. Ramsey,
“In defendant’s first assignment of error, he argues that the trial court erred by proceeding under the summary contempt statute, ORS 33.096, when the trial judge cited defendant for contempt on July 26,1996, hut failed to sentence him until August 2,1996. However, defendant fails to identify, and we cannot find, where that issue is even arguably preserved in the record. We will not consider it. ORAP 5.45(2).”
The version of Federal Rule of Criminal Procedure 42(a) at issue in Sacher provided:
“Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”
The provisions of the federal rule vary in some respects from the text of ORS 33.096; accordingly, we do not rely on it as a source of statutory construction, hut, rather, set it out as useful context in considering the temporal due process limits that the United States Supreme Court has applied to a court’s authority to summarily punish a direct contempt.
For example, a contempt situation might be so disruptive that it would be impractical for the court to impose the sanction at the time of the contempt because of the need to deal with more immediate security issues.
As noted, the trial court concluded that it was authorized to sentence defendant when it did because defendant had waived any right to a timely imposition of sanction. The state does not defend the trial court’s decision on that ground on appeal.