In Re Marriage of Helmich , 1997 Colo. App. LEXIS 67 ( 1997 )

Judge CRISWELL

concurring in part and dissenting in part.

I agree with Part II of the majority’s opinion in which it concludes that a punitive sentence imposed under C.R.C.P. 107 must be subject to a “good time” credit under §§ 17-26-109 and 17-26-115, C.R.S. (1986 Repl.Vol. 8A). However, because I am convinced that the result of Part I of the majority’s opinion is to thwart the will of the General Assembly, as that will is evidenced by § 18-1-1002, C.R.S. (1992 Cum.Supp.), I respectfully dissent from that part of the opinion.

As the majority notes, defendant relies upon § 18-1-1002, which provides that in any “criminal contempt proceeding,” the district attorney for the district within which the alleged contempt occurred, as well as the district attorney for the district within which the contempt proceeding is to be heard, “shall” be given notice of the proceedings, and each district attorney “shall be allowed to appear and argue for the imposition of contempt sanctions.”

I agree with the majority that this statute was enacted to protect the interests of the People, as represented by the district attorney, not the interests of private parties who have violated the terms of a court order and who, therefore, might be subject to criminal prosecution. However, recognition of this legislative purpose leads me to conclude that, whether it may properly be classified as a “jurisdictional” restriction, § 18-1-1002 withdraws from the trial courts of this state the authority to impose punitive sanctions for contemptuous conduct in the absence of notice to the described district attorneys. The courts’ authority to impose remedial sanctions under C.R.C.P. 107 remains unaffected.

Section 18-1-1002 was added to the Criminal Code, effective July 1, 1994. See Colo. Sess. Laws 1994, ch. 287 at 1717. As the majority notes, its enactment was in obvious response to People v. Allen, 868 P.2d 379 (Colo.1994). That decision considered the circumstances under which the punishment meted out to a party for violation of orders entered by a court in civil proceedings may bar that party’s later criminal prosecution, based on the same incident, under double jeopardy concepts.

In that ease, the supreme court, relying upon Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), held that punitive sanctions levied against a person in civil proceedings will bar a later prosecution only if the finding of contempt must be based upon proof of all of the elements of the crime for which the person is later prosecuted. See, e.g., United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (civil order restraining assault incorporated all elements of criminal assault).

It is generally true that proof of the willful violation of a court order, while sufficient to allow punitive sanctions to be imposed upon the violator under a court’s contempt power, will not support a criminal prosecution. See § 18-1-104(1), C.R.S. (1996 Repl.Vol. 9B) (no conduct constitutes a “crime” unless described as an offense in some statute); Benninghoven v. Dees, 849 P.2d 906 (Colo.App.1993) (violation of court order is not a “crime”).

Hence, the term “criminal contempt” has been used to describe the act or acts that would justify the imposition of punitive sanctions by a court in civil proceedings. Indeed, the terms “criminal contempt” and “punitive contempt” are often used interchangeably. See People v. Mulberry, 919 P.2d 835 (Colo.App.1995); compare In re Marriage of Zebedee, 778 P.2d 694 (Colo.App.1988) (defining punitive contempt) with McVay v. Johnson, 727 P.2d 416 (Colo.App.1986) (defining criminal contempt).

However, a recent amendment to the Criminal Code, § 18-6-803.5, C.R.S. (1996 Cum.Supp.), has made the violation of a wide variety of court orders a class 2 misdemean- or. Thus, a party who “contacts, harasses, injures, intimidates, molests, threatens, or touches any person,” or who “enters or remains on premises,” in violation of a court order, may be the subject of criminal prosecution.

Further, because the only elements of such a crime consist of the knowing violation of the order, the proof required to convict of such a crime would appear to be the same as that required to prove that the party acted contemptuously. See Marriage of Zebedee, supra. Arguably, therefore, if a party violated one of the orders described in § 18-6-803.5 and punitive sanctions for contempt were imposed upon that party under C.R.C.P. 107, such adjudication would bar the People from prosecuting that party under § 18-6-803.5.

In addition, of course, a party’s violation of a criminal statute may well constitute contempt of court in other contexts. And, whether the imposition of punitive sanctions for such a violation will prevent a later prosecution may well depend upon the particular factual circumstances presented. See United States v. Dixon, supra.

It seems clear to me, then, that § 18-1-1002 requires the court to consider the views of those district attorneys who might possess the authority to prosecute the person cited for contempt before taking any action that might bar such prosecution. It was intended that notice to the district attorneys be a condition precedent to the imposition of any punitive sanction under a contempt citation. In this sense, the statute requires that those officials be treated as indispensable to any criminal contempt proceeding.

Traditionally, of course, the absence of an “indispensable party” under C.R.C.P. 19 has been said to rob the court of any “jurisdiction” to proceed to adjudicate the rights of the parties before it. See Civil Service Commission v. District Court, 185 Colo. 179, 522 P.2d 1231 (1974). Hence, the question of indispensability can be raised for the first time on appeal. Potts v. Gordon, 34 Colo.App. 128, 525 P.2d 500 (1974).

More importantly, in testing whether a party is “indispensable,” the question is whether the absent party’s interests will be injuriously affected by the court’s adjudication. Brody v. Bock, 897 P.2d 769 (Colo.1995). It is irrelevant whether that party’s absence will prejudice the interests of any party who is already before the court. Hence, whether the father here has, or has not, been prejudiced by the lack of notice to the People is beside the point.

I freely concede that there are distinctions between an indispensable party under C.R.C.P. 19 and the status of district attorneys under § 18-1-1002. However, the underlying purpose of both enactments is the same. That purpose is to assure that those parties who may be bound by a court’s determination be given notice of the proceedings and be allowed to be heard before such a determination is made. At least with respect to the rights of private parties, due process demands nothing less. Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973).

Under the majority opinion, however, if no notice is given to the People, as the statute demands, no party to the proceeding will be allowed to complain of the lack of notice. As a result, the People may be barred from prosecuting an individual for some criminal activity simply because of the actions of a private litigant. In my view, such a result frustrates the underlying purpose of the notice statute.

Further, there is no reason why § 18-1-1002 should not receive the same treatment from the courts as similar statutes have received.

Section 13-51-115, C.R.S. (1987 Repl.Vol. 6A) requires that the Attorney General be given notice of any proceeding in which a request is made to declare a statute, an ordinance, or a franchise unconstitutional. See also C.R.C.P. 57(j). To carry out this statute’s mandate, the supreme court has consistently allowed any present defendant in an action to raise the issue of the lack of notice to the Attorney General. In addition, it has held that, absent such notice, no claim of facial invalidity can be resolved. See Hide-A-Way Massage Parlor, Inc. v. Board of County Commissioners, 198 Colo. 175, 597 P.2d 564 (1979) (trial court’s determination that statute is facially unconstitutional cannot be affirmed because of absence of notice to Attorney General); Lakewood Pawnbrokers, Inc. v. City of Lakewood, 182 Colo. 315, 512 P.2d 1241 (1973) (because of absence of notice to Attorney General, judgment vacated and cause remanded for rehearing); Meier v. Schooley, 147 Colo. 244, 246, 363 P.2d 653, 654 (1961) (because neither City nor Attorney General were provided with notice of action, “determination of the [constitutional] questions argued by counsel cannot be had in this proceeding” (emphasis supplied)).

Here, the trial court imposed punitive sanctions upon defendant without providing notice to the appropriate district attorneys. Whether those officials have any interest in prosecuting this defendant for some crime, I do not know. I do conclude, however, that the General Assembly has given those officials the right to be heard in this proceeding and that plaintiff and the trial court have violated that right by failing to notify them of this action.

Under these circumstances, I would vacate the trial court’s order of contempt and remand the cause to it with directions to give the appropriate district attorneys notice of these proceedings. Should those officials decline to participate, the court could re-enter the present judgment without further hearing. See Lakewood Pawnbrokers, Inc. v. City of Lakewood, supra.