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State v. Blackburn

Court of Appeals of Oregon

February 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN HENRY BLACKBURN, Defendant-Appellant.

          Submitted June 3, 2016

         Tillamook County Circuit Court 15CN00623; Mari Garric Trevino, Judge.

          John Henry Blackburn fled the brief pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor Gutman, and Susan G. Howe, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals from a judgment of punitive contempt, which ordered him to serve 10 days' incarceration. The trial court summarily held defendant in contempt when defendant, who was appearing by telephone at a hearing, repeatedly failed to adhere to the court's directive to stop interrupting the court. Defendant argues that the trial court lacked the authority to hold him in contempt summarily because his conduct did not occur "in the immediate presence and view of the court" for purposes of the summary contempt statute. He also argues that the trial court erred in concluding that his disruptive conduct was willful because it lacked evidence from which it could have concluded that defendant had heard the court's orders to stop interrupting. Finally, defendant argues that the trial court should have taken into account the fact that the telephone equipment impaired his ability to understand the trial court as a mitigating factor. Held: The summary contempt statute embraces contemptuous conduct by telephone that occurs during a court proceeding while court is in session, at least where the disruptive effects are apparent in the courtroom. The record indicates that defendant responded directly to statements by the court and, under those circumstances, the trial court could conclude that defendant was aware that he should have stopped interrupting, and therefore that his conduct was willful. Finally, a poorly functioning telephone did not mitigate the fact that defendant willfully kept interrupting the court after it told him to stop and warned him of the risk of being held in contempt.

         Affrmed.

          LAGESEN, J.

         Defendant appeals from a judgment of punitive contempt, which ordered him to serve 10 days' incarceration in a local jail once he completed his prison sentence on a criminal matter. See ORS 33.125 (authorizing appeals under ORS 138.220 from contempt judgment). The trial court summarily held defendant in contempt when defendant, who was appearing by phone at a hearing in a marital dissolution proceeding, repeatedly failed to adhere to the court's directive to stop interrupting the court. On appeal, defendant contends that the trial court erred in three respects. For the reasons that follow, we conclude otherwise.

         Defendant's first argument challenges the trial court's authority to sanction him summarily for contempt under ORS 33.096. ORS 33.096 authorizes a trial court to impose contempt sanctions summarily when the contemptuous conduct occurs in open court:

"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 and 33.065 do not apply to summary imposition of sanctions under this section."

         But where the contemptuous act occurs outside the court, ORS 33.065 prescribes procedures the court must follow before holding someone in punitive contempt. State v. Ferguson. 173 Or.App. 118, 123-24, 20 P.3d 242 (2001).

         Defendant notes that ORS 33.096 requires the commission of contemptuous conduct to occur "in the immediate view and presence of the court" for summary procedures to apply. He then contends that, because he appeared by telephone, his conduct did not occur in the court's "immediate view and presence."

         The question, then, is whether a party who engages in contemptuous conduct while appearing at a court hearing telephonically does so in the court's "immediate view and presence" so as to permit the trial court to employ the summary contempt procedures of ORS 33.096. The answer to that question is yes. As the Supreme Court explained in construing a predecessor statute to ORS 33.096, the point of the statute is to permit the court to hold a person in contempt summarily "for some act committed in the immediate presence of the court while in session." State v. Driscoll, 151 Or 363, 368, 50 P.2d 581 (1935). Where a person appearing at a court hearing by telephone engages in contemptuous conduct, that conduct occurs while court is in session. The ...


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