Submitted June 3, 2016
County Circuit Court 15CN00623; Mari Garric Trevino, Judge.
Henry Blackburn fled the brief pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
Gutman, and Susan G. Howe, Assistant Attorney General, fled
the brief for respondent.
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
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.
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.
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."
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).
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
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 ...