IN THE SUPREME COURT OF THE STATE OF MONTANA
NO. 83-446
STATE OF MONTANA, ex rel.
LA RUE SMITH,
THE DISTRICT COURT OF THE
EIGHTH JUDICIAL DISTRICT OF
THE STATE OF MONTANA, IN AND
FOR THE COUNTY OF CASCADE, and
THE HONORABLE JOHN M. McCARVEL,
District Judge,
Respondents.
ORDER AND OPINION
Relator filed herein a petition for a writ of certiora-
ri to annul and set aside an order of the District Court of
Cascade County and the Honorable John M. McCarvel, District
Judge, finding relator in contempt of court and fining him
$50. The petition is accompanied by an affidavit by relator,
an affidavit of Ken Dixon, an affidavit of Virginia A. Dixon,
a partial transcript of the record in the District Court, a
memorandum of authorities and a cashier's check in lieu of
bond. Relator also requested that the District Court order
finding him in contempt should be stayed pending determina-
tion of his petition for writ of certiorari.
On September 28, 1983, we entered an ord-er staying
further proceedings in the contempt matter against relator
during the pendency of this action and directed respondents
to file a written response together with appropriate documen-
tary exhibits and legal memorandum.
On October 6, 1983, relator filed a supplemental
memorandum of authorities in this cause.
On November 9, 1983, respondents filed a written re-
sponse to the petition for writ of certiorari.
On the same date, relator filed a motion to annul the
contempt order.
The matter has been submitted to this Court for
decision.
The statutory procedure for contempt committed. in the
court's presence is set forth in section 3-1-511, MCA:
"When a contempt is committed in the
immediate view and presence of the court
or judge at chambers, it may be punished
summarily, for which an order must be
made reciting the facts as occurring in
such immediate view and presence and
adjudging that the person proceeded
against is thereby guilty of a contempt
and that he be punished as therein
prescribed."
This statute has remained virtually unchanged for several
generations. Our court on numerous occasions has interpreted
its language, consistently holding the primary requirement is
that an order be issued by the court settinq forth the facts,
not the conclusions which have led to the contempt. This
requirement is necessary so that a record exists which the
convicted contemnor may submit to the Supreme Court for
review. Rankin v. District Court (1920), 58 Mont. 276, 289,
191 P. 772, 775. When the facts of the proceeding below are
before this Court, as opposed to the judge's mere conclu-
sions, we are better able to determine whether contempt did
in fact occur.
Judge McCarvel's order of contempt, dated September 20,
1983, reads in part as follows:
"That the attorney for the Defendants,
Scott Radford, commenced addressing the
Court on a motion pending before the
Court and during the course of his pre-
sentation, LaRue Smith stood up and
interrupted the attorney for the Defen-
dants. The Court then ordered attorney
LaRue Smith to be seated. LaRue Smith
refused to be seated. The Court repeated
the order on two separate occasions.
Attorney LaRue Smith defied the Court and
refused to be seated. The Court then
advised attorney LaRue Smith that he was
in contempt of the Court and fined him
$50.00. "
This recitation of the facts provides a sufficient basis for
us to affirm Judge McCarvel's decision. Mr. Smith's defiance
of the court's repeated order to sit down satisfies our
contempt statute, section 3-1-501 (1)(a), MCA, in which "dis-
orderly, contemptuous, or insolent behavior toward the judge
while holding the court tending to interrupt the due course
of a trial or other judicial proceeding," is explicitly
enumerated as an act of contempt. It should be emphasized
that Mr. Smith is not being punished for exercising his right
as an attorney to stand up, represent his client's interests
and object to testimony. This conduct in and of itself is
not contemptible. However, the further refusal to sit down
when so ordered by the court clearly can constitute contempt.
We have reviewed this Court's decision in In re Mettler
(1915), 50 Mont. 299, 146 P. 747. Mr. Mettler's contempt
conviction for refusing to sit down at trial was overturned
when the contempt order was found fatally defective for
failing to recite the complete factual basis of the contempt.
To the extent that our holding today is inconsistent with
this older opinion, In re Mettler is overruled. The orders
issued in both cases are similar and both in our estimation
provide this Court with sufficient facts to review a contempt
conviction.
In a.ddition to the statutory requirement of an order
setting forth the facts of the contempt, the contemnor must
be granted an opportunity to explain or excuse himself. Such
opportunity allows the individual to potentially purge him-
self or show no contempt was intended. Rankin v. District
Court, 58 Mont. at 291, 191 P. at 776.
In the present case the transcript reveals that Mr.
Smith was given such an opportunity. Judge McCarvel near the
end of the hearing listened to the attorney's apology and
explanation as to why he had remained on his feet. The
opportunity to be heard need not arise in a formal hearing,
separate and distinct from the proceeding in which the con-
tempt arose. All that is required is the contemnor be made
aware of his offensive conduct and allowed an opportunity to
speak on his behalf. Mr. Smith was provided such opportunity
and this Court will not reverse the District Court's decision
to proceed with its order of contempt.
IT IS ORDERED:
1. The petition for writ of certiorari and motion to
annul the contempt order is denied and this proceeding dis-
missed on the grounds that the contempt order of District
Judge John M. McCarvel satisfies the requirements of section
3-1-511, MCA.
2. This cause is remanded to the District Court of
Cascade County for collection of the fine as provided by law;
the stay order entered by this Court on September 28, 1983,
is vaca.ted and set aside.
3. The Clerk is directed to mail a true copy hereof to
counsel of record for the respective parties.
DATED this p
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day of R?kw+&, 1984.
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Chief Justice
Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
DISSENT OF MR. JUSTICE DANIEL J. SHEA
No. 8 3 - 4 4 6
STATE OF MONTANA, ex rel. LA RUE SMITH,
Relator,
VS .
THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT
OF THE STATE OF MONTANA, IN AND FOR THE COUNTY
OF CASCADE, AND THE HONORABLE JOHN M. McCARVEL,
DISTRICT JUDGE,
Respondents.
Mr. Justice Daniel J. Shea, dissenting:
I dissent. The District Court failed to comply with the
statute, and the majority have glossed over that short cut.
Section 3-1-511, MCA, clearly requires that an order must be
made reciting the facts of the contempt. Rankin and Mettler
are sound interpretations of the requirement, and the
majority further erred in overruling Mettler. After
declaring Mettler overruled, the majority notes the order in
that case provides a sufficient factual basis for review of a
contempt conviction.
The interest in judicial economy, a desirab1.e goal, must
not become so pervasj-z7e as to allow its sweep to quash the
due process right of the parties involved.
If all that were required were that the contemnor be
made aware of his offensive conduct and allowed an
opportunity to speak on his behal-f, the statute would not
have specifically called for an order. I would grant the
writ of certiorari a.nd set aside the contempt order.