S056467, Opinion — State v. McGee

261
Argued and submitted September 14, peremptory writ to issue October 22, 2009
STATE OF OREGON,
Plaintiff,
v.
CHARLES BO McGEE,
Defendant-Relator,
and
CITY OF GRESHAM,
Intervenor-Adverse Party.
(CC 080343630; SC 8056467)
220P3d 50
CJS, Witnesses§ 27.
En Banc
Original proceeding in mandamus.*
John Henry Hingson III, Oregon City, argued the cause
and filed the brief for defendant-relator.
* On petition for writ of mandamus from an order of the Multnomah County
Circuit Court, Youlee Y. You, Judge.

262 	State v. McGee
Heather 	A. 	Pauley, 	Senior 	Assistant 	City 	Attorney,
Gresham, argued the cause and filed the brief for intervenor-
adverse party City of Gresham.
DE MUNIZ, C. J.
Peremptory writ to issue.

Cite as 347 Or 261 	263
DE MUNIZ, C. J.
This mandamus case arises out of a contempt pro-
ceeding in which the defendant in an underlying criminal
case seeks remedial sanctions against a City of Gresham
Police Officer who, as a witness in the criminal case, failed to
comply with defendant's subpoena duces tecum. The issue
before this court is whether the trial court correctly con-
cluded that precedent from this court required that the trial
court must have first ordered a witness to comply with a sub-
poena before it may consider contempt proceedings against
that witness. We conclude that, under circumstances like
those presented here, a trial court need not order compliance
with a subpoena before issuing an order directing the witness
to appear and answer in the contempt proceeding. Because
the trial court's order was based on a faulty premise, we issue
a peremptory writ of mandamus that orders the trial court to
vacate its order denying defendant's motion for an order
requiring the witness to appear and directs the trial court to
reconsider defendant's motion. We do not decide, however,
whether the trial court must issue the order to appear.
Charles Bo McGee, the relator in this mandamus
proceeding, is the defendant in a criminal case in which the
state has charged him with driving under the influence of
intoxicants. Relator's trial was scheduled to begin on June 3,
2008. Before trial, relator filed a motion to suppress evidence.
To support the motion, relator properly served a subpoena
duces tecum on Officer Harley, one of the officers involved in
relator's arrest, requiring Harley to appear for the June 3
proceedings and directing him to bring (among other things)
"all manuals upon which you have been trained in how to
administer standardized field sobriety tests."
On June 3, the trial court considered various pretrial
motions, including relator's motion to suppress. At the pre-
trial hearing, relator called Harley as a witness and asked
him whether he had complied with the subpoena duces tecum
by bringing his field sobriety manuals to court. Harley stated
that he had not. He testified that he no longer had the man-
ual that he had received during his training held in Hawaii.
Under further examination, however, Harley admitted that

264
he had failed to bring similar manuals that he had received
in connection with three other training sessions.
Although Harley did not dispute that he had known
that the manuals had been appropriately subpoenaed, he
stated that his supervisor had told him not to comply:
"I asked my-I showed the subpoena to my supervisor
and he said to forward my, the subpoena to our legal depart-
ment, and that you [relator] could obtain those through our
legal department at the city."
Harley further testified that the Gresham Police Department
court coordinator, who had received the subpoena initially,
had not noticed the request for manuals, because the request
was on the second page of the subpoena. 1
In response to Harley's failure to comply with the
subpoena, relator requested a continuance of both the trial
and the suppression hearing until the subpoena had been
complied with. The court set the matter over until July 1,
2008. In doing so, the court also continued the subpoena
duces tecum until the July 1 hearing. See ORS 136.595(4)(a)
(2007) (authorizing court to continue subpoena to future date
if it "is continued orally in open court in the presence of the
person subpoenaed"). 2
On June 12, 2008, the City of Gresham (city) pro-
vided relator with the manuals that relator had subpoenaed.
At the July 1 hearing, the trial court found that the city had
complied with the subpoena duces tecum. The matter was
then set over for another hearing on July 24, 2008.
On July 15, 2008, relator filed a motion for an order
directing Harley to appear and show cause why he should not
1 A subpoena to a peace officer may be served by delivering it to an individual
designated by the law enforcement agency to accept service. See ORS 136.595(2)
(2007) (explaining process). (That statute has since been amended by Or Laws
2009, ch 364, § 2, effective Jan 1, 2010.) It appears that the subpoena at issue here
was served on the Gresham Police Department court coordinator, who forwarded a
copy to Harley.
2 ORS 136.595(4)(a) (2007) has since been renumbered as subsection {3){a} by
Or Laws 2009, ch 617, § 3, effective June 26, 2009. No textual change relevant to
this case accompanied the renumbering. We use the statutory citation that was in
effect at the time that the subpoena was issued.

Cite as 347 Or 261 (2009) 	265
be held in contempt of court. 3 Relator asserted that Harley's
failure to comply with the subpoena duces tecum constituted
contempt of court as defined by ORS 33.015(2)(b). That stat-
ute provides, in part:
"'Contempt of court' means the following acts, done
willfully:
"* * * * *
"(b) 	Disobedience of, resistance to or obstruction of the
court's* **process* * *."
Relator, contending that the subpoena duces tecum was a
form of "process" under the statute, sought remedial sanc-
tions of $10,000, plus an award of attorney fees.
The city responded that the court should not issue an
order directing Harley to appear, arguing that Harley could
not be found in contempt and sanctioned, because the trial
court had not ordered Harley to comply with the subpoena.
The city based that argument on its reading of State v.
Burleson, 342 Or 697, 160 P3d 624 (2007), in which this court
stated:
"The statutory definition of contempt generally estab-
lishes that there must be a violation of a court order, rather
than limited compliance with the terms of a subpoena, for
there to be a basis for a contempt sanction."
Id. at 707 (emphasis in original). The city also contended that
the officer's failure to comply was not willful because that
failure 	(it 	asserted) 	resulted 	from 	the 	mistake 	by the
Gresham Police Department court coordinator.
Relator countered that the city's reliance on Burleson
was misplaced, because Burleson applied only to grand jury
3 Although relator styled his motion as seeking an order to "show cause" why
Harley should not be held in contempt, we note that the words "show cause" are not
found in the contempt statutes. A party seeking remedial contempt sanctions must
file with the trial court ';a motion requesting that defendant fcontemnor] be
ordered to appear[.]" ORS 33.055(2). On the filing of such a motion, the trial court
"may issue an order directing the defendant [contemnor] to appear," ORS
33.055(5)(a), and no sanctions may be imposed against the alleged contemnorwith-
out first giving the contemnor the "opportunity for a hearing tried to the court,"
ORS 33.055(6). For purposes of this opinion, we will occasionally use the term
"show cause" as a legal shorthand to refer to the order described in ORS
33.055(5)(a) requiring the contemnor to appear.

266 	State v. McGee
subpoenas, not to subpoenas in criminal cases. Relator also
asserted that the mistake by the court coordinator was not
relevant to whether Harley acted willfully in failing to com-
ply with the subpoena.
At a hearing on July 24, the trial court denied the
motion for an order to show cause, stating
"Well, 	l['ve] 	read 	Burleson 	and 	I've 	read 	the 	reply,
[relator's] reply, and my conclusion is that State v. Burleson
governs this case[,] and so I'm denying the motion * * *."
Relator petitioned this court for a writ of mandamus,
asserting that the trial court should have granted his motion
and issued an order directing Harley to appear to show cause
why he should not be held in contempt of court. This court
granted the city's motion to intervene as an adverse party in
the case. 4 We issued an alternative writ of mandamus; how-
ever, the trial court declined to change its ruling.
We begin our analysis by providing a brief overview
of the procedures applicable to subpoenas and of the statu-
tory contempt procedure. 5 Oregon statutes set forth the pro-
cedure by which criminal defendants may subpoena wit-
nesses. ORS 136.567 provides, in part:
"(1) 	A defendant in a criminal action is entitled, at the
expense of the state or city, to have subpoenas issued for not
to exceed 10 witnesses within the state. A defendant is enti-
tled, at the expense of the defendant, to have subpoenas
issued for any number of additional witnesses without an
order of the court. * * *
4 Harley has not filed any separate appearance in this court and the state has
waived its appearance.
The very word "subpoena" describes the seriousness of the subpoena process:
the Latin words subpoena mean "under penalty." Black's Law Dictionary 1563 (9th
ed 2009). The origins of the writ often are attributed to ,John ofWaltham, the chan-
cery clerk in the late fourteenth century:
"Waltham created the new chancery writ by adding to the language of an older
writ, 'quibusdam certis de causis' (appear for certain reasons), the new words
'et hoc subpoena centum librorum nullatenus omittas' (and then under penalty
of a hundred pounds for failure to appear). With this subpoena ad testifican·
dum, the chancellor summoned the prospective witness to appear and testify
subpoena, or under penalty."
Rhonda Wasserman, The Subpoena Power: Pennoyer's Last Vestige, 74 Minn L Rev
37, 44 (1989) (footnotes omitted); see John Henry Wigmore, 8Evidence in Trials at
Common Law§ 2190, 65 n 19 (John T. McNaughton rev 1961) (similarly noting).

Cite as 34 7 Or 261 (2009) 	267
"(2) 	Any subpoena that a defendant in a criminal
action is entitled to have issued shall be issued:
"(a) 	Upon application of the defendant, by the clerk of
the court in which the criminal action is pending for trial,
and in blank, under the seal of the court and subscribed by
the clerk; or
"(b) 	By an attorney ofrecord of the defendant, and sub-
scribed by the attorney."
The required form for a subpoena issued by a crimi-
nal defendant's attorney states that the witness is "hereby
commanded to appear" before the trial court "in the name of
the state of Oregon." See ORS 136.575(6) (so stating). A sub-
poena additionally may require the production of books,
papers, or other documents-thus becoming what is known
as a subpoena duces tecum-by adding appropriate text
directing the witness that he or she is "'required * * * to
bring'" those documents. ORS 136.580(1). 6
Here, based on Harley's failure to comply with the
subpoena, relator sought contempt sanctions-specifically, a
"remedial sanction" of $10,000, plus attorney fees. By stat-
ute, "remedial sanctions" include sanctions intended "to com-
pensate for injury, damage or costs resulting from a past or
continuing contempt of court." ORS 33.015(4).7 A party
aggrieved by an alleged contempt may initiate contempt pro-
ceedings for remedial sanctions by filing a motion. ORS
33.055(2)(a). 8 The motion must be accompanied by "support-
ing documentation or affidavits sufficient to give defendant
6 ORS 136.580(1) provides:
"If books, papers or documents are required, a direction to the following
effect shall be added to the form provided in ORS 136.575: 'And you are
required, also, to bring with you the following: (describing intelligibly the
books, papers or documents required).' "
7 A "remedial sanction" is distinct from a "punitive sanction," as ORS 33.015
defines those terms:
"(3) 'Punitive sanction' means a sanction imposed to punish a past con-
tempt of court.
"(4) 'Remedial sanction' means a sanction imposed to terminate a contin-
uing contempt of court or to compensate for injury, damage or costs resulting
from a past or continuing contempt of court."
8 ORS 33.055 provides, in part:
"(1) Except as otherwise provided in ORS 161.685, proceedings to impose
remedial sanctions for contempt shall be conducted as provided in this section.

State v. McGee
[contemnor] notice of the specific acts alleged to constitute
contempt." ORS 33.055(4). Once the motion has been filed,
"{t]he court may issue an order directing the defendant [con-
temnor] to appear." ORS 33.055(5)(a). Remedial sanctions
may be imposed only after the alleged contemnor has had an
opportunity to be heard (unless the alleged contemnor waives
the hearing). ORS 33.055(6).
Two statutes establish that a trial court may hold a
witness in contempt for disobeying a subpoena. First, the
statutory definition of contempt includes disobedience of a
subpoena in a criminal case. As we noted earlier, ORS
33.015(2)(b) 	defines 	contempt 	to 	include 	the 	willful
"[d]isobedience of* **the court's* * *process." In criminal
cases, a subpoena is one form of process. See ORS 136.555
("The process by which the attendance of a witness before a
court or magistrate is required is a subpoena."). 9
Second, the statutory definition of "contempt of
court," ORS 33.015(2), is not limited to disobedience to proc-
ess or court orders; it applies to a number of other willful acts,
including:
"(e) Violation of a statutory provision that specifically
subjects the person to the contempt power of the court."
In this case, ORS 136.600 makes ORCP 55 G applicable to
criminal proceedings. 10 ORCP 55 G states, in part:
----------··········--~---
"(2) The following persons may initiate the proceeding or, with leave of the
court, participate in the proceeding, by filing a motion requesting that defen-
dant be ordered to appear:
"(a) A party aggrieved by an alleged contempt of court.
"(b) A district attorney.
"(c) A city attorney.
"(d) The Attorney General.
"(e) Any other person specifically authorized by statute to seek imposition
of sanctions for contempt."
9 The term "process" is not defined by the contempt statutes. Generally, it
"means a warrant, writ, order, mandate, or other formal writing, issued by some
court, body, or official having authority to issue process. * * *Any writ is process,
as the two terms are interchangeable." 62B Am Jur 2d Process§ 1 (2005) (footnote
omitted). See also Black's Law Dictionary 1325 (9th ed 2009) ("process" is "[a} sum-
mons or writ, esp. to appear or respond in court").
10 ORS 136.600 provides, in part: "The provisions of*** ORCP * * * 55 E and
G apply in criminal actions, examinations and proceedings."

Cite as 347 Or
Id.
"Disobedience to a subpoena or a refus al to be sworn or
answer as a witness may be punished as contempt by a
court before whom the action is pending or by the judge or
justice issuing the subpoena."
As noted earlier, the trial court, relying on Burleson,
concluded that a court order was necessary before it could
consider contempt sanctions. We turn to a discussion of that
case.
In Burleson, a witness before the grand jury had
failed to comply with a prosecutor's subpoena duces tecum.
The trial court denied both the state's motion to compel and
the state's motion to hold the witness in contempt. The state
then sought mandamus. This court concluded that, in the
grand jury context, a trial court must first order a witness to
comply with a subpoena before imposing contempt sanctions.
Id. at 707-08 (listing required steps). The reasons for so con-
cluding, however, were specific to subpoenas to appear before
a grand jury. This court first explained that, "[a]lthough the
grand jury is related to the judicial branch, it is not a court,
and* * *that observation has important implications for this
case." Id. at 704. Further, a grand jury is the final arbiter of
whether to press for the production of evidence; if a grand
jury chooses not to press a witness for an answer to a ques-
tion-perhaps because the grand jury was satisfied with the
witness's reasons for not answering, or because it concluded
that it already had enough information to make its deci-
sion-the district attorney could not ask a trial court, pur-
portedly on behalf of the grand jury, to require the witness to
answer. Id. at 705-06. The court went on to explain that the
statutory definition of contempt found in ORS 33.015(2) was
largely inapplicable in the grand jury context:
"Most of the foregoing instances of contempt [set out in ORS
33.015(2)] require a violation of a court order or other form
of judicial authority. However, a grand jury subpoena or
other form of grand jury request issued in the name of the
district attorney is not a court order, nor does it represent
some other form of judicial authority for purposes of ORS
33.015(2)."

270 	State v. McGee
Id. at 707 (emphasis added). In a later footnote, this court
reiterated the distinction between grand jury subpoenas and
"regular" subpoenas, with specific reference to the contempt
authorization in ORCP 55 G:
"ORCP 55 G, 	operating in 	conjunction with ORS
136.600, also does not apply to this proceeding. That rule
applies, by its terms, to instances in which a judge or justice
issued the subpoena, or when an action is pending before
a court. It does not purport to address grand jury pro-
ceedings."
Id. at 709 n 3 (emphasis added).
The reasoning of Burleson thus does not apply more
broadly to subpoenas in ongoing criminal cases. Although the
grand jury subpoena in Burleson did not represent "some
***form of judicial authority for purposes of ORS 33.015(2)
[defining contempt]," id. at 707, we have already explained
that a subpoena in a criminal case is one form of"the court's
* * * process" referred to in ORS 33.015(2)(b). And, although
the grand jury subpoena in Burleson was not subject to ORS
136.600 or ORCP 55 G, id. at 709 n 3, we have explained that
ORS 136.600 and ORCP 55 G do apply to subpoenas issued in
criminal cases; thus, disobedience of such subpoenas falls
within ORS 33.015(2)(e), the definition of contempt that
incorporates other statutory provisions. The trial court's reli-
ance on Burleson thus was misplaced.
From the foregoing analysis, we conclude that the
trial court erred when it held, as a matter oflaw, that it could
not issue the order directing Harley to appear and show
cause without first having issued an order requiring Harley
to comply with the subpoena. Both ORS 33.015(2)(b) and
ORCP 55 G provided the trial court with authority to issue
the order directing Harley to appear and answer the con-
tempt proceeding, based on Harley's failure to comply with
the subpoena.
The final question before us involves the appropriate
disposition that this court should make on mandamus. Rela-
tor contends that we should order the trial court to issue an
order directing Harley to appear and show cause in the con-
tempt proceeding. For reasons that we shall explain, how-
ever, we decline to do so.

Cite as 34 7 Or 261 	271
A party commits contempt of court if the party com-
mits one of the acts identified in ORS 33.015(2)(a) - (e), and
does so willfully. ORS 33.015(2). A party who seeks remedial
sanctions for that contempt must file a motion accompanied
by documentation or affidavits that provide sufficient notice
to the alleged contemnor of the acts purporting to constitute
the contempt. ORS 33.055(2), (4). Here, it is undisputed that
relator complied with the statutory requirement, i.e., he filed
the required motion and affidavit that wouldjustify the trial
court in issuing an order directing Harley to appear and show
cause why he should not be held in contempt for failing to
comply with the subpoena.
That said, the trial court is not required to issue an
order to appear and show cause, because there may be rea-
sons that, although the motion and affidavit are in proper
form, 	they do 	not satisfy legal requirements. See 	ORS
33.055(5)(a) (trial court "may" issue order to show cause). In
this case, for instance, the trial court concluded (albeit incor-
rectly) that an order compelling compliance with the sub-
poena duces tecum was a necessary prerequisite to the issu-
ance of an order directing the witness to appear and show
cause. Although that conclusion was wrong, we do not believe
it is appropriate for us to decide, in the first instance,
whether other arguments asserted by Harley and the city do
or 	do 	not 	constitute legally 	cognizable justifications 	or
defenses to the issuance of an order to appear and show cause
or to the determination of contempt or sanctions. We con-
clude that we should do no more than vacate the order of the
trial court denying relator's motion for an order to appear
and show cause, leaving it for the trial court on remand to
reconsider the matter under the appropriate legal standard,
and, having done so, to determine whether an order to appear
and show cause should issue.
Put differently, we today hold only that the trial
court has the authority to grant the motion for an order
directing Harley to appear and show cause based on his
acknowledged failure to comply with the subpoena. We
express no opinion as to whether the trial court here should
issue the order or whether, if it does, the trial court ulti-
mately should hold Harley in contempt.
Peremptory writ to issue.