From the Desk of Jeff Eberhard:
There are a few legal doctrines that everyone knows of such as Miranda warnings, the right to counsel, and double jeopardy. While everyone may know of these legal doctrines, their nuances can be confusing. Most people believed that double jeopardy acts to protect a defendant from being tried multiple times for the same crime. But does it also apply if the Defendant was first the subject of a civil action in a civil proceeding and then charged with a crime for the same action in a criminal proceeding? The Oregon Appellate Court addressed the issue in State v. Halvorson.
The Oregon Appellate Court examined whether a contempt proceeding in a civil case was enough like a criminal proceeding that the Oregon Constitution and the United States Constitution bar a subsequent criminal prosecution. The Court held that, while some of the factors indicating a criminal proceeding were present, they failed to transform a civil proceeding for litigation-misconduct sanctions into a criminal proceeding which, in turn, would trigger double jeopardy protections.
State v. Halverson, 315 Or App 113 (Oct. 13, 2021).
This case arises out of three civil proceedings related to a divorce. The defendant, John Halverson (Halverson), and his wife, G, filed for divorce after several years of marriage. During the marriage, Halverson worked for G’s family businesses owned by G and her brother, R. Halverson’s ownership interest in the companies was part of the litigation process. Halverson and G had a prenuptial agreement that Halverson decided to “amend” so that it appeared he owned the properties at issue in the civil litigation. Halverson forged G’s signature and that of a witness on the amended pre-nuptial agreement. The forgery was uncovered during litigation and Halverson was subject to a contempt proceeding for the forgery. As part of the sanctions imposed on Halverson, the court dismissed some of Halverson’s claims and imposed more than $750,000 in attorney fees and costs. So, clearly Halverson was penalized for his misconduct during the civil proceeding.
After the contempt proceedings, the State brought criminal proceedings against Halverson for forgery and identity theft. The criminal court awarded $279,852.25 to G and R for the losses they incurred due to Halverson’s forgery. Halverson appealed, arguing that the criminal proceeding was barred by the double jeopardy doctrine based upon the previous contempt proceeding related to the civil proceeding. State v. Thompson, 294 OR 528 (1983).
Whether “an ostensibly civil proceeding” is of criminal character to trigger “jeopardy” under Article I, § 12 of the Oregon Constitution depends first on whether the legislature intended to create a civil proceeding or a criminal sanction. If the legislature meant to create a civil proceeding, the court asks whether any of the four factors indicating that the civil proceeding is nonetheless criminal in nature are present. State v. Selness/Miller, 334 Or 515, 536 (2002). The four factors indicating that a civil proceeding is criminal in nature are:
(1) the use of pretrial procedures that are associated with the criminal law, such as indictment, arrest, and detention;
(2) the potential for imposition of a penalty that is historically criminal or “infamous,” or that cannot be justified fully in terms of the civil purposes that the penalty supposedly serves;
(3) the potential for a judgment or penalty that carries public stigma; and
(4) the potential for collateral consequences that, either taken by themselves or added to the direct consequences of the underlying forbidden acts, amount to criminal penalties.
In short, Did the legislature intend to create a civil remedy or criminal sanction and, if a civil remedy, whether the legislative scheme is “so punitive either in purpose or effect *** as to transform what was clearly intended as a civil remedy into a criminal penalty.” Hudson v. United States, 522 US 93, 99 (1997). A determination of whether an ostensibly civil proceeding triggers the Fifth Amendment of the United States Constitution’s double jeopardy provision is like that in Article I, § 12 of the Oregon Constitution. This includes a seven-factor inquiry:
(1) Whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operations will promote the traditional aims of punishment—retribution and deterrence; (5)whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may be rationally connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
Id. The Oregon Supreme Court has held in the past that a contempt charge, imposed on a defendant for entering a neighbor’s land after a trial court enjoined the defendant from entering the property was a criminal prosecution for the purposes for triggering double jeopardy.
I know that is a lot to take in. But it boils down to is it “fair” that a person be subject to both civil and criminal penalties. This is not an easy question, so a simple test or standard is not enough to determine the question.
The Court considered whether the contempt proceedings at issue under the standards set for in Selness and Hudson was sufficiently criminal in nature to bar a subsequent criminal proceeding. Looking at the factors listed above, the contempt proceedings did not cross the line from civil to criminal. In contempt proceedings for serious litigation misconduct, courts often dismiss claims and defenses and award attorney fees as sanctions. The trial court talked about the sanctions operating as a punishment and used a beyond-a-reasonable-doubt standard to find Halverson in contempt. These factors can be seen as criminal treatment. However, those factors were not enough to transform a civil proceeding into a criminal proceeding to trigger double jeopardy provisions.
The Big Picture:
Defendants and their attorneys should be aware that their actions in a civil proceeding may create issues in the criminal area as well. While there are times when the double jeopardy doctrine will apply and bar a criminal proceeding if the civil proceeding related to it meets the above standards, a contempt proceeding is not one of those times.