Harber v. Shaffer

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Harber v. Shaffer
1988 OK 45
755 P.2d 640
59 OBJ 1160
Case Number: 70294
Decided: 04/26/1988
Modified: 04/27/1988
Supreme Court of Oklahoma


Carl A. Barnes, Tulsa, for petitioner.

John Jarboe, Tulsa, for respondent.


RAPP, Special Justice.*

¶1 The petitioner, Charles C. Harber, seeks application of criminal statutory sentence reduction credits to his present period of [755 P.2d 641] confinement for civil indirect contempt. We, after assuming jurisdiction, deny.

¶2 This matter comes before us because the petitioner, Harber, refused to obey an order of the trial court issued for the benefit of another party. Harber was, after refusal, subsequently cited for contempt, tried by jury and determined to be guilty of civil indirect contempt. The trial court thereafter ordered Harber to be confined for six months

¶3 This action originated as a private matter between individuals seeking civil relief. It was not a criminal action brought by public authorities for correction of an offense committed against the state.

¶4 Harber, by his refusal to obey the trial court's order issued for the benefit of a third party, the validity of which he does not here question, started the chain of events culminating in his confinement and today's decision.

¶5 It is too well known to require citation of authority that a court, upon a party's refusal to obey its order, may, in an attempt to enforce its order for the benefit of a third party, issue a citation for indirect contempt. The court, after a hearing, can order a trial of the matter.

¶6 After a party has violated the court's order, been tried and found guilty of a civil indirect contempt, the court then has the inherent power to enforce its order. This enforcement is both coercive and remedial in nature. Shillitani v. U.S., 384 U.S. 364, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966).

¶7 Under these conditions, the court order committing the violator to jail is executory - it is not punitive. Flathers. The [755 P.2d 642] order of commitment is coercive - it is not punitive. It is singularly designed and intended to force the violator's compliance with the court's order.

¶8 Under these conditions, incarceration for civil indirect contempt may continue only as long as the violator chooses continuous disobedience to the court's order or until the time period established by the court has been served. It is the violator's ability to end the imprisonment by compliance that is the distinguishing factor between civil contempt and that of a criminal contempt or crime. In the criminal contempt or criminal act, the sentence of imprisonment imposed for the "crime" must continue until the pronounced sentence is completed. A person serving a sentence for a criminal contempt or act is by statute allowed credit upon his sentence,

¶9 While "contempt" proceedings are an inherent power of the court to enforce its orders, Shillitani, this power may be limited by constitution or statute. However, in Oklahoma, neither the Constitution, Art. 2 § 25, nor the statute (the act in which it appears) specifically defines "contempt" as a crime.

¶10 Title 57 O.S. 1981 § 65 , providing credits for prisoners "convicted of a crime," is hence inapplicable in these proceedings.

¶11 We here emphasize Harber's imprisonment is for the civil offense of indirect contempt. He was not convicted of a crime, nor was he sentenced to serve a period of incarceration for a statutorily stated criminal act or offense which would or could constitute a crime. Notwithstanding the erroneous use of the word "crime" in the Judgment and Sentence, plaintiff Harber was imprisoned for Indirect Contempt of Court rather than any criminal act. The trial court sentenced him to an executory remedial sentence resulting from his failure to do an act ordered by the trial court. Harber can terminate his imprisonment at any time he chooses to obey the trial court's order.

¶12 The trial court is hereby directed to cause the Commitment for Punishment of Charles C. Harber in C-77-69 to be conformed to the Judgment and Sentence of the District Court of Tulsa County by striking the words "flat time" from said commitment. The addition of the words "flat time" are an impermissible addition of a prosecutorial nature in a civil matter not involving any crime.

¶13 Harber is not, while being confined for civil indirect contempt, entitled to credits earned during confinement under criminal statutes of this state. To hold otherwise would constitute and condone an impermissible infringement of the legislature abridging the power of the court to enforce its own orders.


¶15 HARGRAVE, V.C.J., concurs in result.

¶16 HODGES, OPALA and KAUGER, JJ., dissent.

*RAPP, Special Justice (appointed for SIMMS, J., who disqualified).


1 The record here is not clear, but it appears the trial court sentenced Harber under 21 O.S.Supp. 1984 § 566 , which states:

Unless otherwise provided for by law, punishment for direct or indirect contempt shall be by the imposition of a fine in a sum not exceeding Five Hundred Dollars ($500.00) or by imprisonment in the county jail not exceeding six (6) months, or by both, at the discretion of the court.

2 "Flat time," as used in the argot of the criminal sphere of the law, conveys a distinct and clear message to the person in charge of a prisoner's confinement that the prisoner's term of confinement is to be served as imposed by the court without the benefit of statutory time reduction allowances provided in criminal sentences for work, blood donations, etc. See 57 O.S. 1981 §§ 20 , 65 .

3 57 O.S. 1981 §§ 20 , 65 .

4 Art. 2 § 25, Oklahoma Constitution, guarantees a jury trial in such matters.

5 Direct contempt is sui generis. Sullivan v. State, 419 P.2d 559 (Okl.Cr. 1966).

6 See also Ex Parte Robinson, 19 Wall 513, 514, 19 L. Ed. 205 (S.Ct. 1873), stating. "The power to punish for contempt is inherent in all courts and existence is essential to the preservation of order in judicial proceedings."

7 Brown v. State, 209 P.2d 715, 720 (Okla. Crim. App. 1949). See Ricketts, Indirect contempt in Oklahoma, 27 Okla.L.R. 213.

8 This period must be definite. See Ricketts, supra, note 68.

9 See Rickets, supra, note 67.

10 See supra, footnote 3.

11 But see 21 O.S. 1981 § 26 . This section states:

A criminal act is not the less punishable as a crime because it is also declared to be punishable as a contempt.

OPALA, Justice, with whom HODGES and KAUGER, Justices, join, dissenting.

¶1 The court withholds today from a person imprisoned for indirect "civil" contempt of court the benefits provided in 57 O.S. 1981 § 65 .

¶2 Just as Oklahoma repealed common law crimes

¶3 Statutory law makes no distinction between civil and criminal contempt. That divisional scheme comes from judicial resurrection of common-law gloss.

¶4 Although in Oklahoma contempt of court is classified as sui generis,


1 The terms of 57 O.S. 1981 § 65 are:

"Any person in this state convicted of a crime, who is serving time as a prisoner in the county jail of any county in the State of Oklahoma as a, result of said conviction of crime, shall be entitled to receive five (5) days credit for every four (4) days' time in said county jail provided said prisoner shall have obeyed the rules and regulations promulgated by the sheriff in charge of said county jail in a satisfactory manner. Each prisoner shall also, in addition thereto, be entitled to a deduction of three (3) days for each pint of his blood he donates during his first thirty (30) days of confinement in the county jail, and to five (5) days for each pint of his blood he donates during any sixty-day period thereafter to the American Red Cross or to a hospital approved for such purpose by the sheriff. And the sheriff of said county is hereby authorized to order said credit to be given to said prisoner on the records of the court out of which said conviction is had."

2 The terms of 57 O.S. 1981 § 20 are:

"Every county, city or town convict in this state, whether required to work upon the public highways of such county, city or town, in accordance with the laws of this state, or merely confined in the county, city or town prison, shall receive credit upon his or her fine and costs of One Dollar ($1.00) for each day so confined in prison, or worked upon the public highways, rock pile, or rock crusher, or public work; provided that those prisoners or convicts doing and performing the most efficient work and making the best prisoners, shall be entitled to an additional credit of one (1) day for every five (5) days of work, the guard or custodian of such prison to determine at the end of each five (5) days of such imprisonment whether or not such prisoner is entitled to such credit, and to make a record of such decision and notify the prisoner of the same."

3 21 O.S. 1981 § 2 .

4 See Fulreader v. State, Okl., 408 P.2d 775, 779 [1965]; Best v. Evans, Okl., 297 P.2d 379, 381 [1956] and Seay v. Howell, Okl., 311 P.2d 207, 209 [1957].

5 The terms of Art. 2, § 25 , Okl. Const., are:

"The legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence of hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the State shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given." [Emphasis supplied.]

6 Contempts of court in Oklahoma are governed by constitutional and statutory provisions, and not by common law. Best v. Evans, supra note 4; Seay v. Howell, supra note 4; Smith v. State ex rel. Raburn, Okl.Cr., 536 P.2d 976, 979 [1975] and Deskins v. State, 62 Okl.Cr. 314, 71 P.2d 502, 503 [1937].

7 Ratzlaff v. State, 102 Okl. 263, 229 P. 278, 279 [1924]; In re Integration of State Bar of Oklahoma, 185 Okl. 505, 95 P.2d 113, 115 [1939]; Best v. Evans, supra note 4 at 381; Seay v. Howell, supra note 4 at 209; Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E.2d 644, 646 [1943]; State v. Superior Court, 78 Ariz. 74, 275 P.2d 887, 889-890 [1954]; People v. Little, 89 Misc.2d 742, 392 N.Y.S.2d 831 [1977].

8 Goldfarb, The Contempt Power, pp. 45-61 [1971].

9 The terms of 21 O.S.Supp. 1984 § 566 , effective November 1, 1984, provide:

"Unless otherwise provided for by law, punishment for direct or indirect contempt shall be by the imposition of a fine in a sum not exceeding Five Hundred Dollars ($500.00) or by imprisonment in the county jail not exceeding six (6) months, or by both, at the discretion of the court."[Emphasis supplied.]

10 Fulreader v. State, supra note 4 at 777.

11 "It would be absurd to distinguish criminal [from] . . . civil incarceration; from the perspective of the person incarcerated, the jail is just as bleak no matter which label is used. * * *" Walker v. McLain, 768 F.2d 1181, 1183 [10th Cir. 1985].