IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 43131
STATE OF IDAHO, )
)
Boise, January 2016 Term
Plaintiff-Respondent, )
)
2016 Opinion No. 11
v. )
)
Filed: February 25, 2016
JASON MCCLURE, )
)
Stephen W. Kenyon, Clerk
Defendant-Appellant. )
_______________________________________ )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Elmore County. Hon. Lynn G. Norton, District Judge.
The judgment of the district court is affirmed.
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Jason
Pintler argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
Russell J. Spencer argued.
_____________________
J. JONES, Chief Justice
Defendant Jason McClure was convicted of criminal contempt after he failed to make
restitution payments required under his 1999 conviction for burglary. The contempt charge was
based on a “Motion and Affidavit in Support of Contempt Proceedings” signed and sworn to
before a deputy court clerk, rather than a notary public. McClure moved to dismiss the contempt
charge against him, challenging the validity of the arrest warrant on various grounds. Each was
rejected. Ultimately McClure conditionally pled guilty to the contempt allegation, preserving his
right to challenge the denial of his motion to dismiss. He timely appealed and the Idaho Court of
Appeals vacated the district court’s judgment of criminal contempt, holding that the document
did not impart subject matter jurisdiction over the contempt proceeding because it was not
notarized. The State filed a petition for review, which this Court granted.
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I.
FACTUAL AND PROCEDURAL HISTORY
In 1999, McClure pled guilty to two counts of burglary. The district court sentenced
McClure to a unified term of ten years, with two years determinate, and retained jurisdiction. The
district court also ordered McClure to pay $18,600.06 in restitution to the victims for damaged
property and unrecovered stolen property. McClure made payments on an irregular basis until
2010. In 2010, McClure’s parole officer noted that McClure was not in compliance with his
probation in that he was behind on restitution payments. The record discloses no restitution
payments made after December 2009.
In 2012, an Elmore County deputy district court clerk filed a “Motion and Affidavit in
Support of Contempt Proceedings” in McClure’s criminal case, declaring that McClure had
violated the district court’s 1999 judgment by failing to pay restitution. The document was
signed by the deputy clerk in the presence of another deputy clerk, who indicated that the
document was “[s]ubscribed and sworn to before me,” but the document was not notarized. A
warrant was issued for McClure’s arrest based on the document.
In 2013, McClure was arrested for contempt. McClure moved to dismiss the contempt
charge but the district court denied the motion. McClure’s motion did not raise the issue of
notarization of the contempt affidavit. McClure conditionally pled guilty to the contempt charge
on October 21, 2013, preserving his right to challenge the denial of his motion to dismiss, and he
was sentenced to five days in jail with credit for time served. McClure timely appealed.
II.
ISSUE PRESENTED ON APPEAL
The only issue raised on appeal is whether the “Motion and Affidavit in Support of
Contempt Proceedings” failed to impart subject matter jurisdiction because it was not notarized.
III.
STANDARD OF REVIEW
“In cases that come before this Court on a petition for review of a Court of Appeals
decision, this Court gives serious consideration to the views of the Court of Appeals, but directly
reviews the decision of the lower court.” State v. Schall, 157 Idaho 488, 491, 337 P.3d 647, 650
(2014). Whether a charging document conforms to the requirements of the law, including
whether it confers subject matter jurisdiction, is a question of law over which appellate courts
exercise free review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004).
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IV.
ANALYSIS
McClure challenges, for the first time on appeal, the sufficiency of the document that
alleged he was in contempt of the restitution order. Specifically, he contends that the contempt
proceeding was not properly commenced because the document was not notarized and was
therefore not an “affidavit” under Idaho law.1 If the proceeding was not properly commenced,
the district court lacked subject matter jurisdiction and its judgment of contempt is void.
Idaho Criminal Rule 42 governs criminal contempt. Where, as here, the alleged contempt
was committed outside the presence of the court, Rule 42(c) applies. Per Rule 42(c)(2), such
nonsummary contempt proceedings may only be commenced by motion and affidavit. “The
affidavit on which contempt proceedings are based constitutes the complaint.” Jones v. Jones, 91
Idaho 578, 581, 428 P.2d 497, 500 (1967). “In a contempt proceeding the court acquires no
jurisdiction to proceed until a sufficient affidavit is presented.” Id. Rule 42 does not define
“affidavit.”2
The question before the Court is whether the “Motion and Affidavit in Support of
Contempt Proceedings” imparted subject matter jurisdiction despite its lack of notarization.
McClure argues that notarization is a necessary component of an “affidavit” such that a
document lacking notarization cannot properly be considered an affidavit. McClure relies on
Fields v. State for the proposition that a document that is not notarized is not an affidavit. 155
Idaho 532, 537, 314 P.3d 587, 592 (2013). The State argues that notarization is not required and
that an affidavit is a “voluntary declaration of facts written down and sworn to by the declarant
before an officer authorized to administer oaths.” BLACK’S LAW DICTIONARY 66 (9th ed. 2009).
The State points out that a deputy clerk of the court is “an officer authorized to administer oaths”
under Idaho Code. See I.C. §§ 9-1401, 31-2001, 31-2008, 31-2011.3 Accordingly, the State
1
Idaho Code section 9-1406(1) allows a written but unsworn declaration to be treated as an affidavit under certain
circumstances. Section 9-1406(1) took effect on July 1, 2013. Accordingly, it has no bearing on the document in this
case, which was filed on June 27, 2012. McClure concedes that if this statute had been in effect when the document
was filed it would have clearly conferred subject matter jurisdiction upon the court.
2
The Idaho Notary Public Act does define “affidavit”: “As used in this chapter: … (5) ‘Affidavit’ means a
declaration in writing, under oath, and sworn to or affirmed by the declarant before a person authorized to
administer oaths.” I.C. § 51-102. However, because this chapter is not otherwise implicated in this case, the Court
will not apply that definition of “affidavit” here.
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Per Idaho Code section 9-1401, “[e]very … clerk of any court … has power to administer oaths or affirmations.”
Per Idaho Code section 31-2011, “[e]very county officer may administer and certify oaths.” Per Idaho Code section
31-2001(2), county officers include “[a] clerk of the district court.” Per Idaho Code section 31-2008, “[w]henever
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reasons, because the document was signed by two deputy clerks, one of whom indicated that the
document was “[s]ubscribed and sworn to before me,” the document complies with the Black’s
Law definition of “affidavit” and was adequate to impart subject matter jurisdiction.
The State also relies on Fields, noting that it cites with approval the same definition of
“affidavit” the State urges here. In Fields, the defendant offered a signed but non-notarized
declaration as evidence in a proceeding for post-conviction relief. 155 Idaho at 534, 314 P.3d at
589. The Court held the declaration inadmissible because it was neither an affidavit, given its
lack of notarization, nor were there “any other indicia of authenticity.” Id. at 537, 314 P.3d at
592. Contrasting Fields, the State argues that the motion and affidavit in this case, drafted and
signed by a disinterested deputy clerk of the court, countersigned by a second disinterested
deputy, and based on information contained in McClure’s criminal case file, bear ample indicia
of authenticity.
Fields does not definitively decide what constitutes an affidavit. Fields is ambiguous at
best in its consideration of the sufficiency of an affidavit.
The declaration plainly is not an affidavit because it lacks notarization. Kelly v.
State, 149 Idaho 517, 523, 236 P.3d 1277, 1283 (2010) (“This document was not
signed or notarized and, therefore, does not constitute an affidavit under the
law.”); BLACK’S LAW DICTIONARY 66 (9th ed. 2009) (“[An] affidavit [is] ... [a]
voluntary declaration of facts written down and sworn to by the declarant before
an officer authorized to administer oaths.”). Nor does the declaration possess any
other indicia of authenticity.
Fields, 155 Idaho at 537, 314 P.3d at 592. The Fields Court did not examine whether a document
lacking notarization could nonetheless suffice as an affidavit under appropriate circumstances,
although its quotation of Black’s Law at least suggests that an affidavit could be valid if “sworn
to . . . before an officer authorized to administer oaths,” regardless of whether it was notarized.
The State also quotes State v. Badger for the proposition that “the word ‘affidavit’ is
broad enough to include the recording of sworn testimony. We find no express requirement of a
‘written’ affidavit and our holding does no violence to the purpose or spirit of our constitution
but merely recognizes modern advances in technology.” 96 Idaho 168, 170, 525 P.2d 363, 365
(1974). Badger addressed whether an informant’s testimony, given under oath and recorded
electronically, was an “affidavit” sufficient under Idaho Constitution, article 1, section 17 to
the official name of any principal officer is used in any law conferring power, or imposing duties or liabilities, it
includes his deputies.”
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support a search warrant even though no written affidavit was ever filed. Id. at 169, 525 P.2d at
364. Even though the facts in the present case differ from those in Badger, the State nonetheless
urges the Court to consider the purpose and spirit of the laws and rules addressing the sufficiency
of an affidavit.
Here, the document at issue qualifies as an affidavit. A deputy clerk signed it in the
presence of a second deputy clerk, whose signature indicated that the document was
“[s]ubscribed and sworn to before” the clerk. Because deputy clerks of the court are authorized
to administer oaths and affirmations, and because this construction of “affidavit” does no
violence to the purpose or spirit of the applicable laws and rules, we hold that the “Motion and
Affidavit in Support of Contempt Proceedings” here was a valid and effective affidavit. As such,
it imparted subject matter jurisdiction over McClure’s contempt charge.
V.
CONCLUSION
We affirm the district court’s judgment of conviction.
Justices EISMANN, BURDICK, W. JONES and HORTON CONCUR.
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