State v. Moen , 86 Or. App. 87 ( 1987 )

WARREN, J.

Defendant appeals from a judgment finding him guilty of contempt of court for failure to obey a duly served subpoena.¹ Defendant’s only contention on appeal is that the trial court’s authority to punish him for contempt is, under the facts, limited to a fine not exceeding $100. We agree and reverse.

On March 16,1986, defendant was served a subpoena to appear before a grand jury on March 20. On March 19,1986, the state obtained a warrant authorizing the search of defendant’s person. On March 20, defendant failed to appear before the grand jury. On that day, an order was issued requiring him to appear and to show cause why he should not be found in contempt of court. A bench warrant was also issued that day for his arrest. He was arrested four days later, and on March 27 he was found to be in contempt of court. Pursuant to ORS 33.020(1), the court imposed a $300 fine and sentenced defendant to 60 days in jail.

ORS 33.020(1) provides:

“Every court of justice and every judicial officer has power to punish contempt by fíne or imprisonment, or both; but such fine shall not exceed $300 nor the imprisonment six months, except in the cases mentioned in subsection (2) of this section; and when the contempt is not one of those mentioned in ORS 33.010(1)(a) and (b), or in ORS 1.240(1), it must appear that the right or remedy of a party to an action, suit or proceeding was defeated or prejudiced thereby before the contempt can be punished otherwise than by a fine not exceeding $100.” (Emphasis supplied.)

The statute limits the punishment for nondisruptive contempt to a $100 fine, unless the court finds an actual prejudicial effect, “specifically focused on the concrete situation in the particular proceeding.” State ex rel Spencer v. Howe, 281 Or 599, 606, 576 P2d 4 (1978). The state contends that the prejudice in this case is twofold: defendant’s failure to appear (1) caused the expenditure of time and resources in the search for defendant to execute the search warrant, and (2) deprived the state of defendant’s testimony.

The state explains that, as part of its investigation of a double murder, it obtained the search warrant in order to have an expert examine an apparent bite mark on defendant’s hand. Defendant could not be located, and the state feared that, with the passage of time, the mark would lose its distinctive character. Because the state was aware that defendant had been subpoenaed to appear before the grand jury on March 20, it intended to execute the warrant when he appeared. The state contends that defendant’s failure to appear caused it to expend additional law enforcement resources searching for him. We conclude that that kind of prejudice to the state does not constitute the kind of prejudice required to enhance the punishment under ORS 33.020(1). The purported prejudice is unrelated to the grand jury proceeding with respect to which defendant has been held in contempt; it arises from the state’s not knowing defendant’s whereabouts so that it could serve the search warrant on him. The prejudice contemplated by ORS 33.020(1) must be directly related to the proceeding for which the defendant has been held in contempt. See State ex rel Spencer v. Howe, supra, 281 Or at 606.

The state’s second claimed prejudice is that it was deprived of defendant’s testimony. This argument was not asserted at the trial court, and for that reason the record is devoid of any specific facts to support it. Consequently, we cannot say that the loss of defendant’s testimony actually prejudiced the state. To hold otherwise would be to hold that every nonappearance prejudices a party’s “right” to the testimony and is ipso facto contempt punishable by imprisonment. See State ex rel Spencer v. Howe, supra, 281 Or at 605. The statute requires a finding of actual prejudice.

The state contends that, even if defendant’s actions caused prejudice, the statutory requirement that prejudice be shown in order to punish contempt by imprisonment and a fine in excess of $100 is an unconstitutional infringement on inherent judicial power to regulate the courts. In State ex rel Oregon State Bar v. Lenske, 243 Or 477, 495-96, 407 P2d 250 (1966), the court held that ORS 33.020(1) is an unconstitutional restriction on a constitutionally created court. The court noted that “the legislature cannot take away a power which it does not give.” 243 Or at 493. Only the Oregon Supreme Court is created by the constitution. It has never been held that the legislature cannot restrict a statutorily created court’s contempt power. See State v. Edwards, 252 Or 325, 329, 449 P2d 448 (1969); State v. Thompson, 57 Or App 281, 288, 644 P2d 608 (Van Hoomissen, J., dissenting), rev’d 294 Or 528, 659 P2d 383 (1983).

The court in Lenske went on to state that “it may follow that the legislature has the authority to limit the court’s power to punish for contempt where the court is a creature of the legislature and not constitutionally established.” 243 Or at 493. We conclude that it does follow. In the absence of a statutory restriction, statutorily created courts have the same powers as a constitutional court to punish for contempt but, because they are created by the legislature, the legislature may limit the courts’ powers.² What the dissent says in praise of the role of the circuit court should, of course, be extended to all the courts in the judicial system. It has nothing to do, however, with the constitutional issue with which we are dealing. We conclude that ORS 33.020(1) is constitutional as applied to the circuit court.

Reversed and remanded for resentencing.

1 ORS 30.010 provides, in part:

“(1) The following acts or omissions, in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

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“(j) Disobedience of a subpena duly served, or refusing to be sworn or answer as a witness.”

2 This conclusion is consistent with federal case law which has held that Congress may regulate the contempt power of the statutorily created federal courts. In United States v. Fidanian, 465 F2d 755 (5th Cir) cert den 409 US 1044 (1972), the court noted that, although the federal court’s power to punish for contempt is an inherent power, it can be limited by Congress and that 18 USC § 401 has been found so to limit it. See also United States v. Miller, 588 F2d 1256, 1263 (9th Cir 1978).