dissenting.
I dissent from the majority’s opinion that a summary sanction for contempt is available only if the contempt takes place in court, during a judicial proceeding. In its attempt to show how the rationale of a 1935 decision is still pertinent, the majority overlooks 59 years of legislative and judicial guidance, and essentially emasculates the most recently enacted summary contempt statute. ORS 33.096 provides:
“A court may summarily impose a sanction upon a person who commits a contempt of court in the immediate view and presence of the court. The sanction may be imposed for the purpose of preserving order in the court or protecting the authority and dignity of the court.” (Emphasis supplied.)
Here, despite repeated exhortations, defendant harassed the judge and his staff while the judge was conducting court business. I would conclude that the summary sanction was authorized and appropriate in order to protect the authority and dignity of the court.
The majority’s quandary as to whether and when a judge constitutes a “court,” for purposes of summary sanctions for contempt, is squarely addressed by the statutes that deal with the authority of judicial officers. Under ORS 1.240(1), a judicial officer has the power to
“preserve and enforce order in the immediate presence of the judicial officer, and the proceedings before the judicial officer, when the judicial officer is performing a duty imposed by a statute.”
To effectuate those powers,
“a judicial officer may punish for contempt, in the cases and manner provided by statute.” (Emphasis supplied.) ORS 1.250.
Clearly, the latter statute is a reference to ORS chapter 33, the only chapter that comprehensively addresses contempt. ORS 1.230 provides that
*515“[a] judge may exercise, out of court, all of the powers expressly conferred upon a judge as distinguished from a court, and not otherwise.”
The upshot of those provisions is that a judge, like a court, has the power to punish for contempt pursuant to the provisions of ORS chapter 33, in order to preserve and enforce order in the immediate presence of the judge, for conduct committed in the presence of the judge while the judge is conducting court business. As provided in ORS 1.230, the conduct need not take place in the courtroom. If the conduct threatens the authority and dignity of the court, then, pursuant to ORS 33.096, the sanction may be imposed summarily.1
The majority’s reliance on State v. Driscoll, 151 Or 363, 50 P2d 581 (1935), is misplaced, because the analysis in that old decision is plainly erroneous when examined in today’s sunlight. Back then, the court held that, although a person may be held in contempt for committing acts not in the immediate view and presence of the judge, summary sanctions for direct contempt were available only for acts committed before the court while in session. The court thus concluded that contempt is not committed in the immediate view and presence of the court if the court is not in session. That is clearly contrary to our statutes, which, as relevant, have not changed significantly since the Supreme Court made its decision in Driscoll. In short, Driscoll was just plain wrong then and it is just as wrong now. As I have explained, ORS 1.230, ORS 1.240 and ORS 1.250, when considered together, clearly contemplate that a judge has the authority to punish contemptuous acts occurring outside the courtroom, so long as those acts take place in the immediate view and presence of the judge. The judge’s authority to punish for that contempt is clearly set forth in ORS chapter 33, and includes the power to impose summary sanctions.
I believe this trial judge did exactly what he should have done under the law and the facts. We should be affirming, not reversing.
Accordingly, I dissent.
Leeson, J., joins in this dissent.
Although the statutes are clear on their face and do not require resort to legislative history, the legislative history cited by the majority supports that view.