State v. Lucier ( 2024 )

No. 526 July 31, 2024 117
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SEBASTIEN BENOIT LUCIER,
Defendant-Appellant.
Josephine County Circuit Court
21CN02125; A177419
Pat Wolke, Judge.
Argued and submitted June 20, 2023.
James Brewer, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
118 State v. Lucier
Cite as 334 Or App 117 (2024) 119
HELLMAN, J.
Defendant appeals from the trial court’s finding of
contempt of a Family Abuse Protection Act (FAPA) order (the
restraining order) and the imposition of a punitive sanction.
He raises a single assignment of error, in which he makes
two arguments. In his first argument, he asserts that the
Josephine County Circuit Court lacked subject matter juris-
diction to enforce the restraining order because the order had
originated out of Curry County, and courts lack jurisdiction to
enforce another court’s order by way of contempt. He acknowl-
edges that ORS 107.728 expands that authority in the context
of FAPA restraining orders, but he argues that the state failed
to fulfill a jurisdictional requirement of that statute—specif-
ically, the filing of a certified copy of the restraining order.1
In his second argument, he asserts that, even if the trial
court had jurisdiction, it plainly erred in imposing a contempt
sanction given the state’s failure to comply with the statutory
requirement to file a certified copy of the restraining order.
We conclude that the state’s failure to file a certi-
fied copy of the restraining order did not deprive the trial
court of subject matter jurisdiction. And, even if the trial
court plainly erred by enforcing the restraining order in the
absence of a proper filing, we decline to exercise our discre-
tion to correct the error. We therefore affirm.
The relevant facts are procedural and undisputed.
The Curry County Circuit Court issued the restraining
order, which prohibited defendant from engaging in cer-
tain conduct. See ORS 107.700 to 107.735 (governing FAPA
restraining orders). The state later alleged that defendant
committed acts in Josephine County which, if true, would
violate that order. The state initiated punitive contempt pro-
ceedings in Josephine County as authorized by ORS 107.728,
which provides:
“A [FAPA] petition * * * may be filed only in a county in
which the petitioner or respondent resides. Any contempt
1
We recognize that ORS 107.728 was recently amended for the first time by
Oregon Laws 2024, chapter 42, section 1 (effective March 27, 2024, and operative
July 1, 2024). However, we analyze the question on appeal under the original
version of the statute, which was enacted in 2003, and all subsequent references
are to that original version of the statute.
120 State v. Lucier
proceedings for violation of a [FAPA] restraining order * * *
must be conducted by the court that issued the order, or
by the circuit court for a county in which a violation of the
restraining order occurs. If contempt proceedings are ini-
tiated in the circuit court for a county in which a viola-
tion of the restraining order occurs, the person initiating
the contempt proceedings shall file with the court a copy
of the restraining order, certified by the clerk of the court
that issued the order. Upon filing of the certified copy of
the restraining order, the court shall enforce the order as
though that court had issued the order.”
Despite the statutory language that required the state, as
the “person initiating the contempt proceedings,” to file a
certified copy of the restraining order, the state did not do
so. It did, however, offer a copy of the restraining order as
an exhibit at trial, and that exhibit was received without
objection. The trial court found defendant in contempt and
imposed a punitive sanction. This appeal followed.
We turn to defendant’s first argument in which he
claims that Josephine County Circuit Court lacked subject
matter judication to enforce another court’s restraining
order.2 We review that question for legal error. Wallace v.
State ex rel PERB, 245 Or App 16, 18, 263 P3d 1020 (2011).
“Subject matter jurisdiction relates to the type of
case over which a court has authority to exercise judicial
powers.” Menten and Deatherage, 302 Or App 425, 427, 461
P3d 1075 (2020). “Oregon courts have subject matter juris-
diction over disputes if the constitution, a statute, or the
common law tells them to do something about the specific
kind of dispute presented.” Mount Hood Community College
v. Federal Ins. Co., 199 Or App 146, 152, 111 P3d 752 (2005).
In the context of contempt, every court has the inher-
ent authority to enforce its own orders by way of its contempt
power. See, e.g., Ex parte Robinson, 86 US 505, 510, 22 L Ed
205 (1873) (“The power to punish for contempts is inherent
2
Although defendant raised this issue for the first time on appeal, he was
not required to preserve it below because it involves a challenge to subject mat-
ter jurisdiction. See Multnomah County Sheriff’s Office v. Edwards, 361 Or 761,
777, 399 P3d 969 (2017) (“[T]he ordinary rule requiring preservation of claims of
error does not apply when the claim is that a lower court lacked ‘subject-matter
jurisdiction.’ ”).
Cite as 334 Or App 117 (2024) 121
in all courts; its existence is essential to the preservation of
order in judicial proceedings, and to the enforcement of the
judgments and orders * * * of the courts, and consequently to
the due administration of justice.”); Bachman v. Bachman,
171 Or App 665, 672, 16 P3d 1185 (2000), rev den, 332 Or 305(2001) (“[A] contempt proceeding is neither civil nor crimi-
nal. Instead, it is a unique and inherent power of a court to
ensure compliance with its orders.”); ORS 33.025(1) (“The
power of a court to impose a remedial or punitive sanction
for contempt of court is an inherent judicial power.”).
But that general rule does not answer the ques-
tion presented in this case—whether one court has subject
matter jurisdiction to use its inherent contempt power to
ensure compliance with an order issued by a different court.
The parties vigorously dispute the answer to that complex
question. However, we do not need to conclusively resolve it.
The legislature has the power to define the circuit courts’
subject matter jurisdiction, and it did so by enacting ORS
107.728, which expressly permits contempt proceedings on
FAPA restraining orders to occur in both the circuit court of
the county that issued the order and the “circuit court for a
county in which a violation of the restraining order occurs.”
Thus, the legislature has vested subject matter jurisdiction
and contempt authority in two courts.
While acknowledging that the statute confers sub-
ject matter jurisdiction in two courts, defendant argues that
the statute makes subject matter jurisdiction contingent
upon strict compliance with its provisions. Specifically, he
asserts that the statute’s filing requirement (i.e., that the
party initiating the case “file with the court a certified copy
of the restraining order”) is a prerequisite to subject matter
jurisdiction when the order is enforced in a court other than
the one that issued it. Defendant asserts that the state’s
failure to strictly comply with that statutory requirement
means that the Josephine County Circuit Court never had
subject matter jurisdiction in this case.
Whether the filing requirement is a prerequisite to
subject matter jurisdiction is a question of legislative intent,
which we answer “by examining the statutory text, in con-
text, and, where appropriate, legislative history and relevant
122 State v. Lucier
canons of construction.” State v. Smith, 330 Or App 397, 400,
543 P3d 1258 (2024) (internal quotation marks omitted);
accord Scott v. Dept. of Rev., 358 Or 795, 805, 370 P3d 844
(2016) (“Statutory requirements related to court procedures
are jurisdictional if the legislature intended them to be, and
we generally look at the purpose of a statute to determine
whether the legislature intended compliance with a statu-
tory provision to be a jurisdictional requirement.” (Citations
omitted.)).
We start with the statutory text. The second sen-
tence of the statute provides that a contempt proceeding
may be brought in either of two courts: “Any contempt pro-
ceedings for violation of a [FAPA] restraining order * * *
must be conducted by the court that issued the order, or
by the circuit court for a county in which a violation of the
restraining order occurs.” ORS 107.728 (emphasis added).
That concurrent authority is given to the non-issuing court
based solely on the allegation that the restraining order was
violated within its geographic boundary. That the grant of
authority does not hinge on any other condition suggests
that the filing requirement that follows is not a prerequisite
to subject matter jurisdiction.
The next sentence of the statute contains the filing
requirement itself: “If contempt proceedings are initiated
in the circuit court for a county in which a violation of the
restraining order occurs, the person initiating the contempt
proceedings shall file with the court a copy of the restrain-
ing order, certified by the clerk of the court that issued the
order.” ORS 107.728. Initiation of contempt proceedings is
a distinct event from the filing of the certified copy of the
restraining order—for it is only “[i]f contempt proceedings
are initiated” that the filing requirement arises. The certi-
fied copy need not be filed concurrently with the initiating
document. In fact, there is no explicit deadline for filing the
certified copy at all. Had the legislature intended to make
the filing a jurisdictional requirement, it seems more likely
that the statutory text would have explicitly required that
the certified copy of the restraining order accompany the ini-
tiating document or be filed within a date certain thereafter.
Cite as 334 Or App 117 (2024) 123
However, a purely text-based statutory analysis is
complicated by the final sentence of the statute: “Upon fil-
ing of the certified copy of the restraining order, the court
shall enforce the order as though that court had issued
the order.” ORS 107.728. That sentence can fairly be read
in two ways. On the one hand, it can be read to establish
that the non-issuing court’s power to enforce another court’s
restraining order depends upon the filing of a certified copy
of that order.3 On the other hand, it can be read as a direc-
tive from the legislature, which requires a non-issuing court
to enforce an out-of-circuit order; in other words, enforce-
ment is mandatory, not discretionary. Because the text of
ORS 107.728 cuts both ways and does not provide a clear
answer, we turn next to its legislative history to assist us in
determining the legislature’s intent.
Although there is no direct mention of the filing
requirement or subject matter jurisdiction, the legisla-
tive history does provide insight as to the purpose of ORS
107.728. The purpose of the statute is important to the ques-
tion at hand because, as the Supreme Court has explained,
“[W]e generally look at the purpose of a statute to determine
whether the legislature intended compliance with a statu-
tory provision to be a jurisdictional requirement.” Scott, 358
Or at 805. We weigh the degree to which making a statutory
requirement a jurisdictional prerequisite serves that under-
lying purpose. See Hood River County v. Dabney, 246 Or 14,
22, 423 P2d 954 (1967) (concluding that statutory require-
ments were not jurisdictional requirements unless they
were necessary for due process because such a construction
aligned with the legislature’s balancing of two opposing
3
Of course, even if this reading is the correct one, and the legislature
intended that the trial court’s authority to enforce a FAPA restraining order
depends upon the filing of a copy of that order, that does not necessarily mean
that it is a matter of subject matter jurisdiction. Our cases recognize that there
are two “classes” of statutory requirements:
“The first class limits subject matter jurisdiction and affects the jurisdiction
of a particular court to preside over a * * * proceeding. The second class con-
sists of limits on a court’s ability to take particular actions once it properly
acquires subject matter jurisdiction. Those limits are not ‘jurisdictional,’ but
are simply statutory limits on the court’s authority.”
Magar v. City of Portland, 179 Or App 104, 108, 39 P3d 234 (2002) (emphasis
added; footnote omitted).
124 State v. Lucier
interests: the interest of taxpayers in receiving notice, and
the interests of counties and purchasers in marketable title).
ORS 107.728 began as House Bill (HB) 2101 (2003).
Proponents explained that the bill was in response to
Bachman, 171 Or App 665. Testimony, House Judiciary
Committee, HB 2101, Mar 5, 2003, Ex F (statement of
Jonathan H. Fussner). In that case, the victim obtained
a FAPA order in Multnomah County and then moved to
Washington County. Bachman, 171 Or App at 668. The
defendant followed her there and violated the order by
attempting to enter her residence. Id. He was prosecuted
for contempt of court in Multnomah County. Id. at 668-69.
In the trial court, the defendant filed a motion to dismiss
for improper venue, which the court denied. Id. at 669. On
appeal, we held that venue was a rather inapposite concept
in a contempt proceeding: “[I]t is not relevant in this case
where the order was violated, but that it was violated. The
court that issued the order—the Multnomah County Circuit
Court—retained the inherent power to enforce its order by
imposing sanctions.” Id. at 674.
Although Bachman did not address whether one
court could enforce by contempt another court’s order, the
proponents of HB 2101 were concerned that Bachman cre-
ated doubt in that area. Thus, the bill was intended to clar-
ify that FAPA orders could be enforced in the county where
the order was violated. As a Department of Justice attorney
summarized,
“I think that the intent of this bill is largely to give more
flexibility to the system so that in situations * * * where it
might not be absolutely clear where you would bring them,
the court system and the prosecutors will have the oppor-
tunity to choose the one that makes the most sense.”
Tape Recording, House Judiciary Committee, HB 2101, Mar
5, 2003, Tape 67, Side A (statement of Jonathan H. Fussner).
That “flexibility” would make enforcement of FAPA orders
easier on victims of abuse because they could seek enforce-
ment in their local court rather than returning to a dis-
tant county where the FAPA order may have been initially
issued. Id. In one exhibit submitted to the legislature, a
Cite as 334 Or App 117 (2024) 125
Coos County resident pointed out that 18 USC section 22654made restraining orders enforceable nationwide. Testimony,
House Judiciary Committee, HB 2101, Mar 5, 2003, Ex G
(statement of Laura Bruce). The Coos County resident thus
explained, “[w]hile the FAPA restraining orders can be
enforced in any of 49 other U.S. states, it makes no sense
that the same protection is not afforded county to county in
Oregon.” Id.Again, “we generally look at the purpose of a statute
to determine whether the legislature intended compliance
with a statutory provision to be a jurisdictional require-
ment.” Scott, 358 Or at 805. To that end, we observe that the
underlying purpose of the bill is clear: to make it easier for
persons protected by restraining orders to seek enforcement
of the orders close to home, rather than requiring them to
return to the issuing court. We can see no way in which that
purpose is furthered by treating the requirement to file a
certified copy of the order as a jurisdictional requirement.
Of course, that is not to say that the requirement
to file a certified copy of the restraining order does not
serve important functions. Indeed, the certified copy of the
restraining order provides notice to both the defendant and
the enforcing court as to the exact order being enforced and
the precise terms the defendant is alleged to have violated.
It also helps to ensure that the trial court is enforcing the
most up-to-date and controlling order. Nonetheless, those
4
18 USC § 2265(a) provides:
“(a) Full Faith and Credit.—Any protection order issued that is consis-
tent with subsection (b) of this section by the court of one State, Indian tribe,
or territory (the issuing State, Indian tribe, or territory) shall be accorded
full faith and credit by the court of another State, Indian tribe, or territory
(the enforcing State, Indian tribe, or territory) and enforced by the court and
law enforcement personnel of the other State, Indian tribal government or
Territory as if it were the order of the enforcing State or tribe.”
(Footnote omitted.) That federal directive is implemented by ORS 24.190.
Although not directly relevant to our analysis here, we note that it remains
on open question whether the statutory prerequisites to enforcement found in
ORS 24.190 are necessary to establish subject matter jurisdiction. See State v.
Merritt, 318 Or App 7, 14-15, 506 P3d 465 (2022) (“[C]oncluding that the require-
ments of ORS 24.190 ordinarily must be satisfied for an Oregon court to enforce
a foreign restraining order,” and explaining, “we do not determine—because we
need not do so in this case—whether the requirements are one of subject matter
jurisdiction or, instead, are requirements that may be waived by the party sub-
ject to the enforcement action.”).
126 State v. Lucier
functions go more to the question of whether the case can
go forward and what should be the appropriate disposition,
rather than whether the court has jurisdiction to hear the
case in the first instance. See Scott, 358 Or at 801 (recog-
nizing that the mere fact that “compliance with a statutory
requirement is obligatory (i.e., legally required) says little
about whether” the requirement is a jurisdictional one).
Considering the text and legislative history of ORS
107.728, we conclude that the legislature did not intend the
requirement to file a certified copy of the restraining order
to be jurisdictional. The plain text of the statute appears
to grant subject matter jurisdiction based only upon the
geographical location of the alleged violation, and the filing
requirement arises only after the contempt proceeding has
been initiated and has no specified deadline. The purpose
of the statute is to make enforcement of FAPA orders more
accessible to those protected by the orders, and making a
filing requirement a jurisdictional requirement does not fur-
ther that purpose. Therefore, we conclude that the state’s
failure to file a certified copy of the restraining order did
not deprive the Josephine County Circuit Court of subject
matter jurisdiction in this case.
We turn to defendant’s second argument, in which
he asserts that the trial court erred when it enforced the
restraining order without a proper filing of a certified copy of
the Curry County order. Defendant acknowledges that this
claim is unpreserved, so our review is for plain error. See
ORAP 5.45(1), (4)(b), (7). Plain error review is a two-step pro-
cess. We must first determine that the error is plain, which
means that it is “an error of law, obvious and not reasonably
in dispute, and apparent on the record without requiring
the court to choose among competing inferences.” State v.
Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). If those
three elements are met, we must then determine whether to
exercise our discretion to correct the error. Ailes v. Portland
Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991).
We do not need to conclusively decide whether the
court plainly erred. Even assuming it did, we decline to
exercise our discretion to correct the error. When we deter-
mine whether to correct plain error, we consider factors
Cite as 334 Or App 117 (2024) 127
“such as the competing interests of the parties, the nature
of the case, the gravity of the error, and the ends of justice in
the particular case.” Vanornum, 354 Or at 630. Here, those
factors weigh against correcting the error.
First, based on the nature of the case, the gravity of
the error was minimal because, although the state failed to
properly file a copy of the Curry County restraining order,
a copy was admitted as evidence at trial and without objec-
tion. Defendant did not object to the state’s failure to prop-
erly file a copy of the order and voiced no concerns about a
lack of notice or the validity of the order itself. Second, the
competing interests of the parties and the ends of justice
weigh against correction. On this record, there is no basis to
believe that the error affected the evidence produced, defen-
dant’s litigation strategy, or any of the factual findings made
by the trial court. Finally, had the issue been preserved
below, it is likely that the error could have been easily rem-
edied or avoided altogether. In short, on this record, we find
no indication that defendant was meaningfully prejudiced
by the state’s failure to comply with the filing requirement.
Affirmed.