Board of Governors of the Registered Dentists v. Cryan , 1981 Okla. LEXIS 230 ( 1981 )

SIMMS, Justice,

dissenting.

I must respectfully dissent.

There are times in the law when you must look beyond the surface. Things are not always what they appear to be.

The portion of statute at issue here¹ does not concern contempt; either civil or criminal, direct or indirect. Its self-description is thus wholly inaccurate as it is actually a criminal statute. It provides a minimum punishment, imprisonment and/or fine, for a prohibited action. Statutes which do that define a public offense, and are by definition criminal, not civil.

Title 21, O.S. 1971, § 3, provides:

“A crime or public offense is an act or omission forbidden by law, and to which is annexed, upon conviction, either of the following punishments:

1. Death;

2. Imprisonment;

3. Fine;

4. Removal from office; or,

5. Disqualification to hold and enjoy any office of honor, trust, or profit, under this State.”

Legislatures do occasionally set a maximum limit on punishment which may be imposed by a court on a contemnor. (It is of passing interest to note that even that legislative intrusion into the judicial power to punish for contempt has been the subject of much litigation.) The difference between a statutory maximum punishment and a statutory minimum punishment however, is, or should be, obvious.

The majority’s confusion stems from its acceptance of the statute being what it says it is. It is not.

It is indeed unusual for a legislature to disguise a criminal statute as something else. It is also unconstitutional. So was the judicial process and procedure to which this appellant was subjected. It is the substance of things, not mere form, to which courts must look. See generally, Chicago, R. I. & P. Ry. Co. v. Territory, 25 Okl. 238, 105 P. 677 (1909).

The fact that this appellant has been denied due process of law under both the state and federal constitutions, in this “non-prosecution” for this “non-crime” for which there is no defense and for which he must suffer mandatory penal sanctions is so basic it requires no authority. I dissent.

1 . Title 59, O.S. 1971, § 328.49, provides:

“In addition to any other penalties provided herein, any person found guilty of contempt of court by reason of the violation of any order or judgment of injunction prohibiting the unlicensed practice of dentistry now in effect or hereafter entered pursuant to any provision of this act, shall be punished by imprisonment in the county jail for a minimum time of not less than thirty (30) days or a maximum of not more than one (1) year and by a fine of not less than Five Hundred Dollars ($500.00)..