The opinion
NEWMAN, J.,
dissenting.
Article I, section 11, of the Oregon Constitution provides:
“In all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury in the county in which the offense shall have been committed * * *.”
If defendant’s contempt proceeding is a “criminal prosecution” within the meaning of the constitutional guarantee, he is entitled to a jury trial.
The penalty for contempt is characterized as civil “when it is imposed in order to compel compliance with an order and will end as soon as respondent complies.” State v. Thompson, 294 Or 528, 531 , 659 P2d 383 (1983). The penalty for contempt is characterized as criminal “when it is imposed *61 as punishment for a completed contempt that can no longer be avoided by belated compliance.” 294 Or at 531 . I would conclude that defendant was charged with criminal contempt, because he was placed on probation for one year for his past failure to pay the court ordered child support.
In Brown v. Multnomah County Dist. Ct., 280 Or 95 , 570 P2d 52 (1977), the court listed a number of factors to be used to determine whether the imposition of a sanction is a “criminal prosecution” within the meaning of Article I, section 11. The type of offense, the prescribed penalty and its punitive significance are all relevant to the inquiry. The court has since said that the prescribed penalty is generally regarded as the single most important criterion. City of Portland v. Tuttle, 295 Or 524, 531 , 618 P2d 1197 (1983).
In Tuttle, the court held that a city code provision that requires proof of a culpable mental state in order to establish a violation and that carries a penalty of up to $500 or six months in jail is a “crime” and triggers a defendant’s right to a jury trial under Article I, section 11. Under ORS 33.020(1) contempt is punishable by up to six months imprisonment or a $300 fine or both. Also, proof of a culpable mental state is required. State v. O'Malley, 248 Or 601 , 435 P2d 812 (1968). The Tuttle and the Brown factors support defendant’s argument that he is entitled to a jury trial.
The Oregon Supreme Court has never directly addressed the issue whether Article I, section 11, guarantees a jury trial in a criminal contempt proceeding. Moreover, although it is not dispositive, I cannot discover any clear legislative intent to make criminal contempt a crime within the meaning of the state constitution. To the contrary, ORS 33.100 provides that the “court or judicial officer shall determine whether the defendant is guilty of a contempt charge * * *,” which suggests that the legislature intended that contempt proceedings be tried exclusively by judges and not juries. Furthermore, dictum in State ex rel v. Seiber, 49 Or 1, 11 , 88 P 313 (1907), states the “firmly settled” rule that a defendant in a criminal contempt proceeding is not entitled to a jury trial. See also State ex rel Oregon State Bar v. Lenske, 284 Or 23, 26 , 584 P2d 759 (1978); State v. Tripp, 36 Or App 141, 144-45 , 583 P2d 591 (1978). Finally, although the *62 contempt proceeding in this case also would be characterized as a “criminal” contempt under federal law, defendant apparently would not be entitled to a jury trial under the federal constitution. See Muniz v. Hoffman, 422 US 454, 476 , 95 S Ct 2178 , 45 L Ed 2d 319, 334-35 (1975). Nonetheless, Article I, section 11, states that “in all criminal prosecutions” the accused is entitled to a jury trial. That unqualified language, together with the holding in City of Portland v. Tuttle, supra, the definition of “criminal contempt” in State v. Thompson, supra, and the analysis in Brown v. Multnomah County Dist. Ct., supra, lead me to conclude that Article I, section 11, of the Oregon Constitution guarantees the right to a jury trial in a criminal contempt proceeding.
Therefore, I dissent.