No. 526 July 31, 2024 117

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SEBASTIEN BENOIT LUCIER,

Defendant-Appellant.

Josephine County Circuit Court

21CN02125; A177419

Pat Wolke, Judge.

Argued and submitted June 20, 2023.

James Brewer, Deputy Public Defender, argued the cause 

for appellant. Also on the briefs was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Christopher A. Perdue, Assistant Attorney General, 

argued the cause for respondent. Also on the brief were Ellen 

F. Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

HELLMAN, J.

Affirmed.
118 State v. Lucier
Cite as 334 Or App 117 (2024) 119

HELLMAN, J.

Defendant appeals from the trial court’s finding of 

contempt of a Family Abuse Protection Act (FAPA) order (the 

restraining order) and the imposition of a punitive sanction. 

He raises a single assignment of error, in which he makes 

two arguments. In his first argument, he asserts that the 

Josephine County Circuit Court lacked subject matter jurisdiction to enforce the restraining order because the order had 

originated out of Curry County, and courts lack jurisdiction to 

enforce another court’s order by way of contempt. He acknowledges that ORS 107.728 expands that authority in the context 

of FAPA restraining orders, but he argues that the state failed 

to fulfill a jurisdictional requirement of that statute—specifically, the filing of a certified copy of the restraining order.1

In his second argument, he asserts that, even if the trial 

court had jurisdiction, it plainly erred in imposing a contempt 

sanction given the state’s failure to comply with the statutory 

requirement to file a certified copy of the restraining order.

We conclude that the state’s failure to file a certified copy of the restraining order did not deprive the trial 

court of subject matter jurisdiction. And, even if the trial 

court plainly erred by enforcing the restraining order in the 

absence of a proper filing, we decline to exercise our discretion to correct the error. We therefore affirm.

The relevant facts are procedural and undisputed. 

The Curry County Circuit Court issued the restraining 

order, which prohibited defendant from engaging in certain conduct. See ORS 107.700 to 107.735 (governing FAPA 

restraining orders). The state later alleged that defendant 

committed acts in Josephine County which, if true, would 

violate that order. The state initiated punitive contempt proceedings in Josephine County as authorized by ORS 107.728, 

which provides:

“A [FAPA] petition * * * may be filed only in a county in 

which the petitioner or respondent resides. Any contempt 

1 We recognize that ORS 107.728 was recently amended for the first time by 

Oregon Laws 2024, chapter 42, section 1 (effective March 27, 2024, and operative 

July 1, 2024). However, we analyze the question on appeal under the original 

version of the statute, which was enacted in 2003, and all subsequent references 

are to that original version of the statute.
120 State v. Lucier

proceedings for violation of a [FAPA] restraining order *** 

must be conducted by the court that issued the order, or 

by the circuit court for a county in which a violation of the 

restraining order occurs. If contempt proceedings are initiated in the circuit court for a county in which a violation of the restraining order occurs, the person initiating 

the contempt proceedings shall file with the court a copy 

of the restraining order, certified by the clerk of the court 

that issued the order. Upon filing of the certified copy of 

the restraining order, the court shall enforce the order as 

though that court had issued the order.”

Despite the statutory language that required the state, as 

the “person initiating the contempt proceedings,” to file a 

certified copy of the restraining order, the state did not do 

so. It did, however, offer a copy of the restraining order as 

an exhibit at trial, and that exhibit was received without 

objection. The trial court found defendant in contempt and 

imposed a punitive sanction. This appeal followed.

We turn to defendant’s first argument in which he 

claims that Josephine County Circuit Court lacked subject 

matter judication to enforce another court’s restraining 

order.2

 We review that question for legal error. Wallace v. 

State ex rel PERB, 245 Or App 16, 18, 263 P3d 1020 (2011).

“Subject matter jurisdiction relates to the type of 

case over which a court has authority to exercise judicial 

powers.” Menten and Deatherage, 302 Or App 425, 427, 461 

P3d 1075 (2020). “Oregon courts have subject matter jurisdiction over disputes if the constitution, a statute, or the 

common law tells them to do something about the specific 

kind of dispute presented.” Mount Hood Community College 

v. Federal Ins. Co., 199 Or App 146, 152, 111 P3d 752 (2005).

In the context of contempt, every court has the inherent authority to enforce its own orders by way of its contempt 

power. See, e.g., Ex parte Robinson, 86 US 505, 510, 22 L Ed 

205 (1873) (“The power to punish for contempts is inherent 

2 Although defendant raised this issue for the first time on appeal, he was 

not required to preserve it below because it involves a challenge to subject matter jurisdiction. See Multnomah County Sheriff’s Office v. Edwards, 361 Or 761, 

777, 399 P3d 969 (2017) (“[T]he ordinary rule requiring preservation of claims of 

error does not apply when the claim is that a lower court lacked ‘subject-matter 

jurisdiction.’”).
Cite as 334 Or App 117 (2024) 121

in all courts; its existence is essential to the preservation of 

order in judicial proceedings, and to the enforcement of the 

judgments and orders * ** of the courts, and consequently to 

the due administration of justice.”); Bachman v. Bachman, 

171 Or App 665, 672, 16 P3d 1185 (2000), rev den, 332 Or 305 

(2001) (“[A] contempt proceeding is neither civil nor criminal. Instead, it is a unique and inherent power of a court to 

ensure compliance with its orders.”); ORS 33.025(1) (“The 

power of a court to impose a remedial or punitive sanction 

for contempt of court is an inherent judicial power.”).

But that general rule does not answer the question presented in this case—whether one court has subject 

matter jurisdiction to use its inherent contempt power to 

ensure compliance with an order issued by a different court. 

The parties vigorously dispute the answer to that complex 

question. However, we do not need to conclusively resolve it. 

The legislature has the power to define the circuit courts’ 

subject matter jurisdiction, and it did so by enacting ORS 

107.728, which expressly permits contempt proceedings on 

FAPA restraining orders to occur in both the circuit court of 

the county that issued the order and the “circuit court for a 

county in which a violation of the restraining order occurs.” 

Thus, the legislature has vested subject matter jurisdiction 

and contempt authority in two courts.

While acknowledging that the statute confers subject matter jurisdiction in two courts, defendant argues that 

the statute makes subject matter jurisdiction contingent 

upon strict compliance with its provisions. Specifically, he 

asserts that the statute’s filing requirement (i.e., that the 

party initiating the case “file with the court a certified copy 

of the restraining order”) is a prerequisite to subject matter 

jurisdiction when the order is enforced in a court other than 

the one that issued it. Defendant asserts that the state’s 

failure to strictly comply with that statutory requirement 

means that the Josephine County Circuit Court never had 

subject matter jurisdiction in this case.

Whether the filing requirement is a prerequisite to 

subject matter jurisdiction is a question of legislative intent, 

which we answer “by examining the statutory text, in context, and, where appropriate, legislative history and relevant 
122 State v. Lucier

canons of construction.” State v. Smith, 330 Or App 397, 400, 

543 P3d 1258 (2024) (internal quotation marks omitted); 

accord Scott v. Dept. of Rev., 358 Or 795, 805, 370 P3d 844 

(2016) (“Statutory requirements related to court procedures 

are jurisdictional if the legislature intended them to be, and 

we generally look at the purpose of a statute to determine 

whether the legislature intended compliance with a statutory provision to be a jurisdictional requirement.” (Citations 

omitted.)).

We start with the statutory text. The second sentence of the statute provides that a contempt proceeding 

may be brought in either of two courts: “Any contempt proceedings for violation of a [FAPA] restraining order * ** 

must be conducted by the court that issued the order, or

by the circuit court for a county in which a violation of the 

restraining order occurs.” ORS 107.728 (emphasis added). 

That concurrent authority is given to the non-issuing court 

based solely on the allegation that the restraining order was 

violated within its geographic boundary. That the grant of 

authority does not hinge on any other condition suggests 

that the filing requirement that follows is not a prerequisite 

to subject matter jurisdiction.

The next sentence of the statute contains the filing 

requirement itself: “If contempt proceedings are initiated 

in the circuit court for a county in which a violation of the 

restraining order occurs, the person initiating the contempt 

proceedings shall file with the court a copy of the restraining order, certified by the clerk of the court that issued the 

order.” ORS 107.728. Initiation of contempt proceedings is 

a distinct event from the filing of the certified copy of the 

restraining order—for it is only “[i]f contempt proceedings 

are initiated” that the filing requirement arises. The certified copy need not be filed concurrently with the initiating 

document. In fact, there is no explicit deadline for filing the 

certified copy at all. Had the legislature intended to make 

the filing a jurisdictional requirement, it seems more likely 

that the statutory text would have explicitly required that 

the certified copy of the restraining order accompany the initiating document or be filed within a date certain thereafter.
Cite as 334 Or App 117 (2024) 123

However, a purely text-based statutory analysis is 

complicated by the final sentence of the statute: “Upon filing of the certified copy of the restraining order, the court 

shall enforce the order as though that court had issued 

the order.” ORS 107.728. That sentence can fairly be read 

in two ways. On the one hand, it can be read to establish 

that the non-issuing court’s power to enforce another court’s 

restraining order depends upon the filing of a certified copy 

of that order.3

 On the other hand, it can be read as a directive from the legislature, which requires a non-issuing court 

to enforce an out-of-circuit order; in other words, enforcement is mandatory, not discretionary. Because the text of 

ORS 107.728 cuts both ways and does not provide a clear 

answer, we turn next to its legislative history to assist us in 

determining the legislature’s intent.

Although there is no direct mention of the filing 

requirement or subject matter jurisdiction, the legislative history does provide insight as to the purpose of ORS 

107.728. The purpose of the statute is important to the question at hand because, as the Supreme Court has explained, 

“[W]e generally look at the purpose of a statute to determine 

whether the legislature intended compliance with a statutory provision to be a jurisdictional requirement.” Scott, 358 

Or at 805. We weigh the degree to which making a statutory 

requirement a jurisdictional prerequisite serves that underlying purpose. See Hood River County v. Dabney, 246 Or 14, 

22, 423 P2d 954 (1967) (concluding that statutory requirements were not jurisdictional requirements unless they 

were necessary for due process because such a construction 

aligned with the legislature’s balancing of two opposing 

3 Of course, even if this reading is the correct one, and the legislature 

intended that the trial court’s authority to enforce a FAPA restraining order 

depends upon the filing of a copy of that order, that does not necessarily mean 

that it is a matter of subject matter jurisdiction. Our cases recognize that there 

are two “classes” of statutory requirements:

“The first class limits subject matter jurisdiction and affects the jurisdiction 

of a particular court to preside over a *** proceeding. The second class consists of limits on a court’s ability to take particular actions once it properly 

acquires subject matter jurisdiction. Those limits are not ‘jurisdictional,’ but 

are simply statutory limits on the court’s authority.”

Magar v. City of Portland, 179 Or App 104, 108, 39 P3d 234 (2002) (emphasis 

added; footnote omitted).
124 State v. Lucier

interests: the interest of taxpayers in receiving notice, and 

the interests of counties and purchasers in marketable title).

ORS 107.728 began as House Bill (HB) 2101 (2003). 

Proponents explained that the bill was in response to 

Bachman, 171 Or App 665. Testimony, House Judiciary 

Committee, HB 2101, Mar 5, 2003, Ex F (statement of 

Jonathan H. Fussner). In that case, the victim obtained 

a FAPA order in Multnomah County and then moved to 

Washington County. Bachman, 171 Or App at 668. The 

defendant followed her there and violated the order by 

attempting to enter her residence. Id. He was prosecuted 

for contempt of court in Multnomah County. Id. at 668-69. 

In the trial court, the defendant filed a motion to dismiss 

for improper venue, which the court denied. Id. at 669. On 

appeal, we held that venue was a rather inapposite concept 

in a contempt proceeding: “[I]t is not relevant in this case 

where the order was violated, but that it was violated. The 

court that issued the order—the Multnomah County Circuit 

Court—retained the inherent power to enforce its order by 

imposing sanctions.” Id. at 674.

Although Bachman did not address whether one 

court could enforce by contempt another court’s order, the 

proponents of HB 2101 were concerned that Bachman created doubt in that area. Thus, the bill was intended to clarify that FAPA orders could be enforced in the county where 

the order was violated. As a Department of Justice attorney 

summarized,

“I think that the intent of this bill is largely to give more 

flexibility to the system so that in situations * ** where it 

might not be absolutely clear where you would bring them, 

the court system and the prosecutors will have the opportunity to choose the one that makes the most sense.”

Tape Recording, House Judiciary Committee, HB 2101, Mar 

5, 2003, Tape 67, Side A (statement of Jonathan H. Fussner). 

That “flexibility” would make enforcement of FAPA orders 

easier on victims of abuse because they could seek enforcement in their local court rather than returning to a distant county where the FAPA order may have been initially 

issued. Id. In one exhibit submitted to the legislature, a 
Cite as 334 Or App 117 (2024) 125

Coos County resident pointed out that 18 USC section 22654

made restraining orders enforceable nationwide. Testimony, 

House Judiciary Committee, HB 2101, Mar 5, 2003, Ex G 

(statement of Laura Bruce). The Coos County resident thus 

explained, “[w]hile the FAPA restraining orders can be 

enforced in any of 49 other U.S. states, it makes no sense 

that the same protection is not afforded county to county in 

Oregon.” Id.

Again, “we generally look at the purpose of a statute 

to determine whether the legislature intended compliance 

with a statutory provision to be a jurisdictional requirement.” Scott, 358 Or at 805. To that end, we observe that the 

underlying purpose of the bill is clear: to make it easier for 

persons protected by restraining orders to seek enforcement 

of the orders close to home, rather than requiring them to 

return to the issuing court. We can see no way in which that 

purpose is furthered by treating the requirement to file a 

certified copy of the order as a jurisdictional requirement.

Of course, that is not to say that the requirement 

to file a certified copy of the restraining order does not 

serve important functions. Indeed, the certified copy of the 

restraining order provides notice to both the defendant and 

the enforcing court as to the exact order being enforced and 

the precise terms the defendant is alleged to have violated. 

It also helps to ensure that the trial court is enforcing the 

most up-to-date and controlling order. Nonetheless, those 

4 18 USC § 2265(a) provides:

“(a) Full Faith and Credit.—Any protection order issued that is consistent with subsection (b) of this section by the court of one State, Indian tribe, 

or territory (the issuing State, Indian tribe, or territory) shall be accorded 

full faith and credit by the court of another State, Indian tribe, or territory 

(the enforcing State, Indian tribe, or territory) and enforced by the court and 

law enforcement personnel of the other State, Indian tribal government or 

Territory as if it were the order of the enforcing State or tribe.”

(Footnote omitted.)That federal directive is implemented by ORS 24.190.

Although not directly relevant to our analysis here, we note that it remains 

on open question whether the statutory prerequisites to enforcement found in 

ORS 24.190 are necessary to establish subject matter jurisdiction. See State v. 

Merritt, 318 Or App 7, 14-15, 506 P3d 465 (2022) (“[C]oncluding that the requirements of ORS 24.190 ordinarily must be satisfied for an Oregon court to enforce 

a foreign restraining order,” and explaining, “we do not determine—because we 

need not do so in this case—whether the requirements are one of subject matter 

jurisdiction or, instead, are requirements that may be waived by the party subject to the enforcement action.”).
126 State v. Lucier

functions go more to the question of whether the case can 

go forward and what should be the appropriate disposition, 

rather than whether the court has jurisdiction to hear the 

case in the first instance. See Scott, 358 Or at 801 (recognizing that the mere fact that “compliance with a statutory 

requirement is obligatory (i.e., legally required) says little 

about whether” the requirement is a jurisdictional one).

Considering the text and legislative history of ORS 

107.728, we conclude that the legislature did not intend the 

requirement to file a certified copy of the restraining order 

to be jurisdictional. The plain text of the statute appears 

to grant subject matter jurisdiction based only upon the 

geographical location of the alleged violation, and the filing 

requirement arises only after the contempt proceeding has 

been initiated and has no specified deadline. The purpose 

of the statute is to make enforcement of FAPA orders more 

accessible to those protected by the orders, and making a 

filing requirement a jurisdictional requirement does not further that purpose. Therefore, we conclude that the state’s 

failure to file a certified copy of the restraining order did 

not deprive the Josephine County Circuit Court of subject 

matter jurisdiction in this case.

We turn to defendant’s second argument, in which 

he asserts that the trial court erred when it enforced the 

restraining order without a proper filing of a certified copy of 

the Curry County order. Defendant acknowledges that this 

claim is unpreserved, so our review is for plain error. See

ORAP 5.45(1), (4)(b), (7). Plain error review is a two-step process. We must first determine that the error is plain, which 

means that it is “an error of law, obvious and not reasonably 

in dispute, and apparent on the record without requiring 

the court to choose among competing inferences.” State v. 

Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). If those 

three elements are met, we must then determine whether to 

exercise our discretion to correct the error. Ailes v. Portland 

Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991).

We do not need to conclusively decide whether the 

court plainly erred. Even assuming it did, we decline to 

exercise our discretion to correct the error. When we determine whether to correct plain error, we consider factors 
Cite as 334 Or App 117 (2024) 127

“such as the competing interests of the parties, the nature 

of the case, the gravity of the error, and the ends of justice in 

the particular case.” Vanornum, 354 Or at 630. Here, those 

factors weigh against correcting the error.

First, based on the nature of the case, the gravity of 

the error was minimal because, although the state failed to 

properly file a copy of the Curry County restraining order, 

a copy was admitted as evidence at trial and without objection. Defendant did not object to the state’s failure to properly file a copy of the order and voiced no concerns about a 

lack of notice or the validity of the order itself. Second, the 

competing interests of the parties and the ends of justice 

weigh against correction. On this record, there is no basis to 

believe that the error affected the evidence produced, defendant’s litigation strategy, or any of the factual findings made 

by the trial court. Finally, had the issue been preserved 

below, it is likely that the error could have been easily remedied or avoided altogether. In short, on this record, we find 

no indication that defendant was meaningfully prejudiced 

by the state’s failure to comply with the filing requirement.

Affirmed.