This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Doug Olson, petitioner,


Koochiching County,



Cindy Daniels,


Filed September 1, 1998

Reversed and order vacated

Harten, Judge

Koochiching County District Court

File No. F5-97-650

David J. Malban, Attorney at Law, 425 Providence Building, 332 West Superior Street, Duluth, MN 55802 (for appellant)

Steven A. Nelson, Attorney at Law, 210 Fourth Avenue, International Falls, MN 56649 (for respondent Olson)

David C. Johnson, County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, MN 56649 (for respondent County)

Hubert H. Humphrey, III, Attorney General, Mark B. Levinger, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent County)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Thoreen, Judge.*



Appellant Cindy Daniels appeals from a denial of her motion to vacate a contempt order. The district court found Daniels in contempt of court for violating the terms of an order for protection. We reverse the district court's denial of Daniels' motion and vacate the contempt order.


On November 20, 1997, respondent Doug Olson petitioned the district court for an order for protection against Daniels. The district court issued an ex parte order for protection, and it was served on Daniels. In November and December 1997, Olson filed three affidavits and petitions for order to show cause for contempt, claiming that Daniels had violated the order for protection. On January 6, 1998, the resulting orders to show cause for contempt were served on Daniels. They directed her to appear in district court on January 16, 1998, for a contempt hearing. Daniels did not appear at the hearing, but submitted a letter to the court explaining her position and view of the facts.

The district court considered Daniels' written submission as probative evidence. Based on admissions in the letter that Daniels had telephoned Olson numerous times since service of the order for protection, the district court found her in contempt of court. The contempt order sentenced Daniels to 90 days in jail, with 60 days stayed on condition that she seek a psychiatric evaluation and a chemical assessment at her own expense and follow the recommendations given, and that she obey the existing order for protection. Daniels was located by deputies and taken to jail, where she served her 30-day sentence.

While she was incarcerated, Daniels obtained an attorney. Daniels' attorney moved the district court to vacate the contempt order and release Daniels from custody. He argued that the court does not have jurisdiction to find a person in contempt unless that person appears in court, and Daniels did not "appear" at the contempt hearing. He also argued that the order should be vacated because Daniels was not represented by counsel and was not advised of her right to counsel. The district court denied the motion. It construed Daniels' letter as an "appearance" and found that Daniels knew that she had a right to counsel, because she stated in her letter that she chose not to retain counsel. This appeal followed.


A district court's decision to invoke its contempt powers should not be overturned absent an abuse of discretion. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).

The law of contempt of court is organized around two classifications. The first classification is based on the conduct of the contemnor. Direct contempts occur in the presence of the court and may be punished summarily. Minn. Stat. § 588.01, subd. 2 (1996); Minn. Stat. § 588.03 (1996). Constructive contempts are those committed outside the presence of the court and include disobedience of a court order. Minn. Stat. § 588.01, subd. 3 (1996). Constructive contempt may not be punished summarily. State v. Tatum, 556 N.W.2d 541, 545 (Minn. 1996). Daniels' alleged contempt is based on action outside the presence of the court and thus must be analyzed under the law that governs constructive contempt.

Constructive contempt is based on the purpose of the contempt order, which can be either punitive or remedial. Id. at 544. "Criminal" contempt orders are punitive because they punish the contemnor for past behavior. Id. "Civil" contempt orders are remedial, because they impose a sanction that will be dissolved upon compliance. Id. In a civil contempt situation, a confined person can "effect his release by compliance or, in some cases, by his agreement to comply as directed to the best of his ability." In re Marriage of Nelson, 408 N.W.2d 618, 621 (Minn. App. 1987) (quoting Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968)). "A civil contempt order cannot impose a fixed sentence, but must allow the contemnor to obtain release by compliance." Mahady v. Mahady, 448 N.W.2d 888, 890 (Minn. App. 1989).

Daniels was given a fixed sentence with no opportunity to effectuate her release by complying or agreeing to comply with the order for protection. See Hopp, 279 Minn. at 175, 156 N.W.2d at 217 (in civil contempt, confined person should be able to effect release by compliance or agreement to comply). Therefore, the district court's order amounted to an order for constructive criminal contempt.

Before being found in constructive criminal contempt of court, the person charged with contempt is entitled to a jury trial and prosecution by a state attorney. Knajdek v. West, 278 Minn. 282, 284, 153 N.W.2d 846, 847 (1967); Nelson, 408 N.W.2d at 621 (Minn. App. 1987). Daniels received neither a jury trial nor prosecution by a state attorney. Nor did Daniels waive her right to a jury trial. A jury trial may be waived by a defendant

personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.

Minn. R. Crim. P. 26.01, subd. 1(2)(a). Courts should construe this rule strictly. State v. Neuman, 392 N.W.2d 706, 709 (Minn. App. 1986). Daniels was not advised of her right to a jury trial and she did not waive that right. Finally, Daniels was not advised of other rights afforded criminal defendants, such as the right to an attorney at public expense if qualified.

Respondents assert that Daniels admitted to violating the order for protection in her letter to the court, and therefore a jury trial was unnecessary. Even if the letter were regarded as an admission of guilt, it is not sufficient to waive a jury trial. See Minn. R. Crim. P. 15.02 (before accepting a guilty plea, court must question the defendant on whether he knows that he has a right to a trial by jury); State v. Nordstrom, 331 N.W.2d 901, 904 n.6 (Minn. 1983) (because a guilty plea is a relinquishment of three important rights, including the right to a jury trial, a waiver of such rights will not be presumed from a silent record).

The district court improperly issued a criminal contempt order in violation of Daniels' rights as a criminal defendant. The district court erred in denying Daniels' motion to vacate the contempt order.

Reversed and contempt order vacated.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.