The opinion
VAN HOOMISSEN, J.,
dissenting.
I would hold that after a conviction for criminal contempt, the Double Jeopardy Clause of the Fifth Amendment bars a subsequent criminal prosecution for the same offense. The majority, in reaching the opposite result, ignores both strong precedent from the United States Supreme Court and the essentially criminal nature of a criminal contempt proceeding.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 US 784 , 89 S Ct 2056 , 23 L Ed 2d 707 (1969), applies not only to criminal prosecutions, but to proceedings which are criminal in nature. In Breed v. Jones, 421 US 519 , 95 S Ct 1779 , 44 L Ed 2d 346 (1975), the Supreme Court held that despite the originally benign conception of juvenile delinquency proceedings, double jeopardy bars a subsequent criminal prosecution for the same acts for which a person had already been tried in a juvenile court. 1 The court stated that in determining the applicability of constitutional protections, *287 courts must “eschew the ‘civil’ label of convenience which has been attached to juvenile proceedings,” 421 US at 529 , and candidly appraise the juvenile process. Evaluating the kind of risk and burden involved in a juvenile delinquency adjudication, the court found it similar enough to a criminal prosecution for double jeopardy to apply. The court placed heavy reliance on the fact that an adjudication of juvenile delinquency put the child at risk of incarceration.
The United States Supreme Court addressed the nature of criminal contempt proceedings when it was required to decide if the right to a jury applied. In holding that a defendant in a “serious” criminal contempt proceeding had a right to a jury trial, the court stated:
“Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcement of their mandates.
“* * * [C]riminal contempt is a crime in every fundamental respect * * Bloom v. Illinois, 391 US 194, 201 , 88 S Ct 1477 , 20 L Ed 2d 522 (1968).
The Supreme Court has also held that a defendant in an indirect criminal contempt proceeding in federal court has due process rights of notice and hearing. Harris v. United States, 382 US 162 , 86 S Ct 352 , 15 L Ed 2d 240 (1965).
We must thus examine the contempt proceeding involved here to determine if it partakes enough of the characteristics of a criminal proceeding so that jeopardy attaches. It is a proceeding which has both civil and criminal characteristics. It is civil in that it may be initiated and prosecuted by a private party, ORS 33.040; 33.060, and in that the court “may” award a party aggrieved by the contempt a money judgment. ORS 33.110.
On the other hand, a criminal contempt proceeding is criminal in several important regards. First, if an alleged contemnor is indigent and faces possible incarceration, he has the right to appointed counsel. ORS 33.095(2). Second, an alleged contemnor is subject to arrest and may be held in custody in lieu of bail. ORS 33.070; 33.080. In Brown v. *288 Multnomah County Dist. Ct., 280 Or 95 , 570 P2d 52 (1977), the latter was an important factor in deciding that a traffic “infraction,” as defined by the legislature, was in essence a criminal offense which required constitutional protections. 280 Or at 108 . Third, a convicted contemnor faces punishment for the contempt, which the statutes direct “shall” be • imposed. ORS 33.100, as opposed to a civil judgment, which “may” be imposed, ORS 33.110.
The Double Jeopardy Clause protects against risk, not result, Breed v. Jones, supra, 421 US at 528 . To determine the severity of the risk to which defendant was exposed, which bears on the question of whether he is entitled to double jeopardy protection, we must examine the maximum punishment defendant could have received, as well as the punishment actually imposed. In cases of non-disruptive criminal contempts, ORS 33.020(1) limits the punishment to a $100 fine, unless the right or remedy of a litigant was prejudiced by the contempt. In other criminal contempts, punishment is limited to a fine of $300 and imprisonment of six months, or both. The $500 fine imposed in the present case exceeded both limitations. 2 In State ex rel Oregon State Bar v. Lenske, 243 Or 477 , 405 P2d 510 , 407 P2d 250 (1965), cert den 384 US 943 (1966), it was held that the contempt power of a constitutionallyestablished court may be regulated by the legislature onlywithin reasonable bounds and that the $100 limitation on punishment found in the last clause of ORS 33.020(1) was unconstitutional. The court left open the power of the legislature to regulate the contempt powers of a legislatively established court and its power to limit the punishment for nondisruptive, nonprejudicial contempts to fines, as opposed to imprisonment. 3 Lenske would have been at least colorable authority for the imposition of imprisonment on the present defendant. The $500 fine actually imposed shows that the trial court believed that it had inherent *289 contempt powers beyond those given by the legislature. The fine, clearly excessive under the statute, at least withstood appellate review by this court and by the Supreme Court. 4 Defendant was thus required to endure a not unreal risk of imprisonment because of the contempt proceeding.
The very fact of the unsettled law as to the allowable potential punishment in itself contributed to the magnitude of the risk. The potential penalty need not be great. In Robinson v. Neil, 409 US 505 , 93 S Ct 876 , 35 L Ed 2d 29 (1973), the court found that jeopardy attached in a municipal court conviction, even though the defendant had received only a $50 fine on each of three counts of assault, which had a maximum punishment of 30 days imprisonment or $50 fine or both. 5 Even if defendant here was not subject to imprisonment, “the absence of potential imprisonment does not conclusively prove a punishment noncriminal.” Brown v. Multnomah County Dist. Ct., supra, 280 Or at 103 . The fine imposed was punitive in nature. It was no less coercive than are ordinary criminal convictions.
The cases relied upon by the majority either predate Breed v. Jones, supra, or are not directly on point. In State v. Eckley, 34 Or App 563 , 579 P2d 291 (1978), the court noted that the function of a probation revocation hearing is not to punish anew for an offense but “to determine whether to impose or execute a sentence for the offense of which defendant has already been convicted * * 34 Or App at 567 . A mental commitment proceeding, State ex rel Vandenberg v. Vandenberg, 48 Or App 609 , 617 P2d 675 (1980), rev den 290 Or 449 (1981), although it involves a deprivation of liberty, addresses the status of a person alleged to be in need of involuntary commitment, not the sanction required for any one particular act. In State v. Jacobs, 55 Or App 406 , 637 P2d 1377 (1981), the extraction of consent to an administrative cease and desist order by the Corporation Commissioner involved no penal sanction.
On the other hand, the recent cases from other jurisdictions which have addressed the exact question *290 involved here have uniformly held that double jeopardy applies to direct criminal contempt proceedings. United States v. United States Gypsum Company, 404 F Supp 619 (DDC 1975); People v. Gray, 69 Ill 2d 44, 12 Ill Dec 886, 370 NE2d 797 (1977), cert den 435 US 1013 (1978); People v. Colombo, 31 NY2d 947 , 293 NE2d 247 (1972); People v. Lombardo, 50 Cal App 3rd 849, 123 Cal Rptr 755 (1975); Simanonok v. Randle, 388 So2d 45 (Fla App 1980).
The majority’s reliance upon ORS 33.130 is also misplaced. It is the constitutionality of this statute which is at issue. Although under my view the statute is unconstitutional as applied, in the present situation, it would retain some constitutional applications. In cases of direct contempt when the contemnor is summarily punished, he is not forced to “run the gamut” of prosecution, and jeopardy would not attach. See, e.g., United States v. Mirra, 220 F Supp 361 (SD NY 1963). In a civil contempt case, the contemnor has the ability to purge himself of the contempt, so it is not the state which puts him in jeopardy.
I conclude that double jeopardy has application to a direct, criminal contempt proceeding. Once jeopardy has attached, a subsequent prosecution for the “same offense” is barred. The Supreme Court has stated:
“The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 [ 52 S Ct 180 , 76 L Ed 306 ] (1932):
“ ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....’
“This test emphasizes the elements of the two crimes. ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes....’ Iannelli v. United States, 420 U.S. 770 , 785 n. 17 [ 95 S Ct 1284 , 43 L Ed 2d 616 ] (1975).” Brown v. Ohio, 432 US 161, 166 , 97 S Ct 2221 , 53 L Ed 2d 187 (1977).
Defendant was found in contempt for violating a decree in which he was “permanently enjoined and *291 restrained from * * * passing across or taking any equipment of any kind across” his neighbor’s property. A person commits the crime of criminal trespass if he “enters or remains unlawfully in or upon premises,” ORS 164.245(1), which premises are not open to the public without license or privilege. ORS 164.205(3)(a). Technically the contempt includes an element not present in the crime (knowledge of the court order), and the crime includes an element not present in the contempt (absence of license or privilege), but when the judicial gloss that the contempt of violation of a court order must be “willful and with bad intent,” see State ex rel Oregon State Bar v. Wright, 280 Or 713 , 573 P2d 294 (1977), is considered, the two violations appear congruent enough to constitute the same offense. This distinguishes the situation where the conduct constituting the violation of the court order also constitues a criminal offense which goes beyond the conduct enjoined by the order. For example, when a wife in a divorce proceeding is enjoined from having any contact with her husband and then physically assaults him, she may be prosecuted both for the contempt and for the crime of assault, because the two are different offenses under the Blockburger test. See People v. Gray, supra, 69 Ill 2d at 53 (Ryan, J., dissenting). Such a court order protects against some perfectly legal as well as criminal conduct. Here, however, I cannot envision any conduct which would violate the court’s decree without also violating the criminal trespass statute. Defendant is being tried twice for essentially the same offense.
Because jeopardy attached to the contempt proceeding, and because the crime of criminal trespass constitutes the “same offense” as contempt of the court order, double jeopardy barred the criminal prosecution.
Joseph, CJ, Richardson and Buttler, JJ, join in this dissent.
Juveniles are entitled to double jeopardy protection. State ex rel Juv. Dept. v. Knox, 20 Or App 455 , 532 P2d 245 (1975).
In his unsuccessful appeal to this court from his contempt conviction, defendant did not argue the excessiveness of his sentence.
Cases subsequent to State ex rel Oregon State Bar v. Lenske, supra, have assumed, without deciding, that a showing of prejudice is required for the imposition of imprisonment. See, e.g., In the Matter of Virginia Hanks, 290 Or 451 , 623 P2d 623 (1981); State ex rel Spencer v. Howe, 281 Or 599 , 576 P2d 4 (1978).
But see n 2, supra
See Robinson v. Henderson, 268 F Supp 349 (ED Tenn 1967).