concurring:
The district judge’s written order unambiguously required Ms. Elliott to do one of two things: either make her witness available for an interview by the prosecuting attorney or provide a summary of the substance of her witness’s testimony. Although subsequent events show that it was not the district judge’s intention to limit the potential consequence of disobedience to his order, his written order defined the consequences of noneomplianee. The order unambiguously stated:
Failure to provide such an adequate summary or to allow the interview of the witness will result in the court continuing the trial after the expert renders his opinion to allow the state at least two days time to prepare for cross-examination and financial sanctions to reimburse the state for any costs incurred in delaying the trial.
On the day that she was found to be in contempt, Ms. Elliott’s statements to the district court reflected her willingness to accept those consequences. She stated: “Your Honor, I read the court’s [order] to be threefold. That there would be an interview, or a summation, or there would be a leeway of two days granted if the witness was called and that the defense would pay the costs of that.”
These facts are similar to those addressed in Lastufka v. State, 662 P.2d 991 (Alaska App.1983). In that case, Lastufka was informed by the state’s attorney that he faced a potential fine of $100 if found in contempt. He then admitted the contempt and was sentenced to serve 120 hours in jail. He successfully appealed. Reversing the judgment, the appellate court stated: “We conclude that under these facts the court did not give Lastufka sufficient notice to impose a jail sentence under its inherent power to punish contempt.” Id. at 992. We have similarly stated that an alleged criminal contemnor “entitled to certain procedural due process protections before the court can impose sanctions. He [or she] is entitled to ... notice of the sanctions which might be imposed against him [or her]____” Ross v. Coleman Co., Inc., 114 Idaho 817, 838, 761 P.2d 1169, 1190 (1988) (citing Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972)).
In my view, Ms. Elliott elected not to comply with the district court’s order. Although it is evident that it was not the district court judge’s intention to do so, his written order affirmatively misled Ms. Elliott and deprived her of the right to notice of the sanctions which might be imposed for disobedience to that order. For that reason, she may not be punished in any fashion other than that prescribed in the order which she is alleged to have violated. The order defined a sanction that would be imposed only if Ms. Elliott called the expert witness. As the condition precedent to the prescribed punishment did not occur, she may not be punished. Accordingly, I concur in the decision of the Court.