¶1concurring in part and dissenting in part:
¶2I concur in the majority opinion except for the denial of Ms. Elliott’s request for an award of attorney fees under Idaho Code § 7-610. That statute provides that in contempt proceedings “the court in its discretion, may award attorney’s fees to the prevailing party.” Ms. Elliott is the prevailing party in this case. Regardless of the competing interpretations of the district court’s order, I would award attorney fees because it summarily adjudicated Ms. Elliott in contempt under circumstances in which summary contempt proceedings were clearly inappropriate.
¶3On Friday, July 22, 2005, the district court held an in-chambers meeting with the deputy prosecuting attorney and Ms. Elliott to discuss the prosecution’s request for information about a possible defense expert witness. After argument from both counsel, the court stated:
So, what I am going to do is I am going to order that the Defense will either provide access to their expert to allow the State to interview the expert with regard [to] his opinion and the basis of those opinions prior to trial or in the alternative the Defense shall provide to the State a summary of testimony which it anticipates it will elicit from its expert witness and the basis of the witness’s opinions.
¶4Ms. Elliott then expressed her concerns that during an interview of the expert, the State’s inquiry may delve into information that is not subject to disclosure under Idaho Criminal Rule 16.
¶5On Tuesday, July 26,2005, at 9:00 a.m., the district court met in open court with the deputy prosecuting attorney and with defense counsel, Ms. Elliott and Mr. Roark. The court recited the procedural history of the case, including defense counsel’s unsuccessful attempt to have this Court intervene and block the discovery order. It then took up a motion by the State to exclude the testimony of the Defense expert. When given an opportunity to respond to that motion, *558Ms. Elliott stated that the Defense would follow the court’s written order that had been entered on Monday. The court twice asked Ms. Elliott whether she had provided the information to the State, and both times she answered that she had not. The court then declared a recess and upon returning announced, “I find the defense counsel in criminal contempt of the court.”
¶6The district court treated Ms. Elliott’s conduct as direct contempt and summarily adjudicated her in contempt. Because the alleged contempt was clearly indirect contempt, the court was clearly wrong in summarily adjudicating her in contempt. The court also adjudicated her in “criminal contempt” without affording her the constitutional rights to which she was entitled before a criminal contempt sanction could be imposed for indirect contempt. See, Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 860-61, 55 P.3d 304, 314-15 (2002), for a list of those rights.
¶7Idaho Criminal Rule 42 governs summary contempt proceedings in connection with a criminal case. Subsection (b)(1) of that Rule provides:
(1) A summary proceeding may be used only if the contempt was committed in the presence of the court. A contempt is committed in the presence of the court if:
a. The conduct occurs in open court in the immediate presence of the judge;
b. The judge has personal knowledge, based upon personally observing and/or hearing the conduct, of the facts establishing all elements of the contempt; and
c. The conduct disturbs the court’s business.
¶8Summary contempt proceedings could not be used in this ease because the allegedly contemptuous conduct did not occur “in open court in the immediate presence of the judge” and the judge did not have “personal knowledge, based upon personally observing and/or hearing the conduct, of the facts establishing all elements of the contempt.” Ms. Elliott was allegedly required to give the summary to the deputy prosecuting attorney no later than Monday, July 25, 2005, at 10:00 a.m. Her failure to do so did not occur in open court. Judge Wetherell did not have personal knowledge of the facts establishing all elements of the contempt. He was not with Ms. Elliott continuously from 11:10 a.m. on July 22, 2005, (when the hearing ended during which he had orally ordered the discovery) until 9:00 a.m. on July 26, 2005, (when the hearing commenced during which he found Ms. Elliott in contempt). Without being physically present with Ms. Elliott during that entire time, he would not have personal knowledge of whether or not she had complied with his oral order.
¶9Personal knowledge must be “based upon personally observing and/or hearing the conduct” constituting the contempt. I.C.R. 42(b)(1). The allegedly contemptuous conduct was Ms. Elliott’s failure to give the deputy prosecuting attorney the required discovery by 10:00 a.m. on July 25, 2005. Information gained from others, including an admission by the alleged contemnor, does not constitute personal knowledge of the judge. As the United States Supreme Court stated in In re Oliver, 333 U.S. 257, 274-75, 68 S.Ct. 499, 508, 92 L.Ed. 682, 695 (1948) (emphasis added):
There [in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925),] it was pointed out that for a court to exercise the extraordinary but narrowly limited power to punish for contempt without adequate notice and opportunity to be heard, the court-disturbing misconduct must not only occur in the court’s immediate presence, but that the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct. This Court said that knowledge acquired from the testimony of others, or even from the confession of the accused, would not justify conviction without a trial in which there was an opportunity for defense.
¶10In Cooke, 267 U.S. at 535, 45 S.Ct. at 394, 69 L.Ed. at 773, the Court quoted from Ex parte Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 702, 33 L.Ed. 150, 153 (1889), as Mows:
[I]n cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished.
¶11*559Ms. Elliott’s admission in open court that she did not provide the information to the State did not give Judge Wetherell personal knowledge of the facts constituting the contempt. In re Oliver, 333 U.S. 257, 274-75, 68 S.Ct. 499, 508, 92 L.Ed. 682, 695 (1948); Cooke v. United States, 267 U.S. 517, 535, 45 S.Ct. 390, 69 L.Ed. 767, 773 (1925); Ex parte Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 702, 33 L.Ed. 150, 153 (1889). Since he clearly lacked the authority to summarily adjudicate Ms. Elliott in contempt, I would award attorney fees to her.
¶12. Idaho Criminal Rule 16(g) provides:
Except as to scientific or medical reports, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or defendant’s attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant or state or defense witnesses, or prospective state or defense witnesses to the defendant, defendant’s agents or attorneys.
¶13concurring:
¶14The 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.
¶15On 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.”
¶16These 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)).
¶17In 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.