No. 89-256
I N THE SUPREME COURT O F THE STATE O F MONTANA
1989
DONALD C . MARKS,
Relator,
-vs-
THE F I R S T J U D I C I A L D I S T R I C T COURT
OF THE STATE O F MONTANA, I N AND FOR
THE COUNTY O F RROADWATER, THE HONORABLE
HENRY LOBLE, P R E S I D I N G ,
Respondent.
O R I G I N A L PROCEEDING:
COUNSEL O F RECORD:
For Relator:
T e d J. Doney; D o n e y & T h o r s o n , H e l e n a , Montana
For Respondent:
H o n . M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
James Yellowtail, Asst. Atty. General, Helena
J o h n T . F l y n n , C o u n t y A t t o r n e y , T o w n s e n d , Montana
R i c h a r d F e i s t h a m e l , Water C o m m i s s i o n e r , T o w n s e n d ,
Montana
S u b m i t t e d on B r i e f s : Aug. 17, 1989
Decided: O c t o b e r 19, 1989
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Relator applies for a writ of certiorari to set aside a
contempt of court order from the First Judicial District
Court of Montana, Broadwater County. We deny the writ.
The issues are:
1. Did the District Court err in finding that defendant
was in contempt of court?
2. Did the District Court err in denying defendant's
motion for a continuance?
3. Did the District Court err in denying defendant's
motion for substitution of judge?
On October 7, 1988, Judge Loble, sitting as water court
judge in place of Judge Lessley, held a show cause hearing,
ordering Mr. Marks to show cause why he should not be held in
contempt for failing to obey the orders and directives of the
Water Commissioner. This hearing was scheduled based upon an
affidavit by Mr. Feisthamel, the Water Commissioner for
Confederate Creek, Broadwater County, Montana. In substance,
this affidavit stated that on September 23, 1988, the Water
Commissioner turned off water at Mr. Marks' diversion point,
but that Mr. Marks turned the water back on without authority
on September 25, 1988. On that same day the Water Commis-
sioner turned the water off a second time, whereupon Mr.
Marks totally removed the headgate from the diversion point
on September 26, 1988. The Water Commissioner also swore
that on September 26 he told Mr. Marks to shut off the water,
but that Mr. Marks refused. The affidavit further stated
that when told that he was being placed under arrest, Mr.
Marks told the Water Commissioner to "get lost" and then
entered his residence.
Prior to the hearing, Mr. Marks obtained counsel. On
October 3, 1988 counsel for Mr. Marks sent a letter to the
court requesting a continuance because he had a prior commit-
ment on October 7. Counsel also requested a substitution of
judge. On October 6, Mr. Marks' counsel received a letter
from the court denying these requests. On the day of the
hearing, October 7, Mr. Marks appeared before the court
without counsel. The court found him in contempt of court
for failing to obey an order of the Water Commissioner. He
was ordered to pay a $250 fine or spend two days in the
county jail. From this order Mr. Marks appeals.
I
Did the District Court err in finding that defendant was
in contempt of court?
In reviewing a contempt appeal, this Court's standard of
review is whether substantial evidence supports the judgment
of contempt. Matter of Graveley (1980), 188 Mont. 546, 555,
614 P.2d 1033, 1039. This Court has also stated:
On reviewing a contempt citation by writ of
certiorari, we are limited to the following consid-
erations: whether the lower court had jurisdiction
to issue the order and secondly, whether there is
evidence supporting the same.
State ex rel., Foss v. District Court (1985), 216 Mont. 327,
331, 701 P.2d 342, 345.
This case involves interference with the actions of a
water commissioner's distribution of water and is governed by
§ 85-5-406, MCA, which states:
Interference with actions of commissioner. Any
person opening or closing a headgate after being
set by such commissioner or who in any manner
interferes with such commissioner in the discharge
of his duties shall be deemed guilty of contempt of
court and may be proceeded against for contempt of
court as provided in contempt cases.
Mr. Marks c o n t e n d s t h a t t h e contempt c h a r g e i n t h i s c a s e
was criminal i n nature, triggering a requirement that the
c o u r t f i n d he a c t e d "knowingly o r p u r p o s e l y " when he v i o l a t e d
t h e o r d e r s o f t h e Water Commissioner. He c o n t e n d s t h a t t h e
e v i d e n c e i s i n s u f f i c i e n t t o prove t h a t h e c o n s c i o u s l y d i s r e -
g a r d e d any o r d e r s .
In M a t t e r of G r a v e l e y , we stated that "contempts are
n e i t h e r wholly c i v i l n o r a l t o g e t h e r c r i m i n a l , " c i t i n g United
S t a t e s v . Montgomery (D.Mont. 1 9 5 7 ) , 155 F.Supp. 633. M a t t e r
- Graveley,
of 6 1 4 P.2d at 1039. Further, the present case
involves constructive contempt since the conduct occurred
o u t s i d e t h e p r e s e n c e of the court. I n Matter of Graveley,
t h e Court s t a t e d :
I n a c o n s t r u c t i v e contempt, t h e e s s e n c e of whether
t h e c o u r t ' s o r d e r h a s been abused i s whether t h e
p a r t y a c c u s e d had knowledge of t h e o r d e r . (Cita-
t i o n omitted.)
M a t t e r o f G r a v e l e v , 614 P.2d a t 1039.
I n M a t t e r o f G r a v e l e y , two c o u n t y a t t o r n e y s were v e r b a l -
l y o r d e r e d by a d i s t r i c t c o u r t t o t r a n s p o r t two d e f e n d a n t s t o
Warm S p r i n g s H o s p i t a l f o r mental evaluation. Instead, the
a t t o r n e y s t o o k them t o Malta where t h e y had c h a r g e s pending.
On t h e i s s u e o f whether t h e a t t o r n e y s had knowledge o f t h e
court's o r a l order, t h e d i s t r i c t c o u r t found it s u f f i c i e n t
t h a t t h e a t t o r n e y s were p r e s e n t i n c o u r t when t h e o r d e r was
made. See g e n e r a l l y , M a t t e r of G r a v e l e y .
I n t h e p r e s e n t c a s e , a t t h e h e a r i n g on t h e o r d e r t o show
cause, t h e Water Commissioner t e s t i f i e d t h a t h e t u r n e d o f f
Mr. Marks' w a t e r on September 23, 1988 b e c a u s e M r . Marks was
not in compliance w i t h regulations to have w a t e r at that
time. He s t a t e d t h a t h e d i d n o t c o n t a c t M r . Marks a t t h a t
time. However, two d a y s l a t e r w h i l e moving d e b r i s o u t o f t h e
stream, M r . Feisthamel noticed t h a t M r . Marks' h e a d g a t e was
again open. The Water Commissioner then testified that on
the 26th of September, the headgate was completely removed.
Mr. Feisthamel testified that he went to Mr. Marks and told
him he was "in trouble" for opening his own headgate, and
then removing it entirely, and that he was not in compliance
with the law. Mr. Feisthamel stated that after an argument,
he informed Mr. Marks that he had authority to arrest him and
he could consider himself under arrest. He stated that Mr.
Marks told him to "get lost," and entered his residence.
This testimony by Mr. Feisthamel was sufficient to establish
that Mr. Marks had knowledge of the Water Commissioner's
directives and consciously disregarded them. The testimony
further established that Mr. Marks resisted arrest and acted
contemptuously toward the Water Commissioner.
In its order finding Mr. Marks guilty of contempt the
court reviewed the history of Mr. Marks' disputes with water
commissioners and water courts. The court stated:
Water user Marks has been a participant in many of
the controversies brought before the undersigned
judge since he assumed jurisdiction in this case
many years ago. Sometimes Marks has been repre-
sented by counsel and sometimes he has appeared pro
se.
- In 1983 Marks sought the removal of water
commissioner Hensley and objected to paying his
charges. In 1984 he contested Hensley's reap-
pointment and proposed another person for commis-
sioner. In 1985 he again contested the
reappointment of Hensley. In 1986 he filed a
complaint against Hensley. In 1987 a hearing was
held concerning Marks' failure to pay water comrnis-
sioner fees. . . In 1988 Marks has been in an
almost constant and defiant dispute with water
commissioner Feisthamel.
On June 7, 1988, Marks, through his counsel, recog-
nized that the undersigned was presiding judge in
this case by filing a Section 85-5-301, MCA com-
plaint before him and at the same time proc.uring an
order setting the complaint down for hearing. The
hearing was held on June 10, 1988, and Marks ap-
peared and participated therein with counsel Doney.
In addition, Marks, acting - -
pro se, filed a state-
ment which contended that the water commissioner
owed him $632.32 for moving a beaver dam. The
Court subsequently and after hearing found in its
order of July 15, 1988, that Marks' purpose in
filing this statement was "to harass and embarrass
an officer of this Court, i.e., the water commis-
sioner, Richard Feisthamel." Marks was directed to
pay water commissioner fees in the amount of
$149.68, and if he failed to do so the commissioner
was directed not to deliver any water to Marks.
These extensive findings show Mr. Marks' continuing refusal
to abide by the water commissioners' directives, and demon-
strates Mr. Marks' prior knowledge of the procedures involved
with water commissioners and water courts. In view of this
history we conclude that there is no basis in fact for Mr.
Marks' contention that the court failed to find he acted
"knowingly and purposely."
We conclude that there was substantial evidence from
which the lower court could find that Mr. Marks had knowledge
of the Water Commissioner's orders and directives. We affirm
the District Court's determination that Mr. Marks was in
contempt of court.
I1
Did the District Court err in denying defendant's motion
for a continuance?
On September 27, 1988, the court issued an order to Mr.
Marks to appear on October 7, 1988, to show cause why he
sho.uld not be held in contempt of court. On October 3,
counsel for Mr. Marks sent a letter notifying the court that
his schedule would prevent him from appearing at the hearing,
and requesting a continuance. The day before the hearing Mr.
Marks' co,unsel received notice from the court denying this
request. Mr. Marks appeared at the hearing without counsel,
and did not present any evidence on his own behalf.
Mr. Marks contends that the present charge is criminal
in nature, and that he had a constitutional right to counsel
which he was denied. As previously stated, a contempt pro-
ceeding may be quasi-criminal in nature. Additionally, since
the present case involves constructive, rather than direct
contempt, some due process is required. This was explained
in Lilienthal v. District Court, Etc. (1982), 200 Mont. 236,
242, 650 P.2d 779, 782, as follows:
Unless the act constituting contempt occurs in
open court where immediate punishment is necessary
to prevent demoralization of the court's authority,
due process requires:
". . . that one charged with contempt of court
be advised of the charges against him, have a
reasonable opportunity to meet them by way of
defense or explanation, have the right to be
represented by counsel, and have a chance to
testify and call other witnesses in his be-
half, either by way of defense or explana-
tion." In Re Green (1962), 359 [369] U.S. 689
691-92, 82 S.Ct. 1114, 1116, 8 L.Ed.2d 198,
200. (Citation omitted.)
The right to counsel however, has generally been held to
mean that one charged with contempt of court is entitled to a
"reasonable opportunity to employ counsel in contempt pro-
ceedings." See, Annot. 52 ALR 3d 1002, 1005, 5 2(a).
In arguing that he was denied counsel, Mr. Marks relies
on Lilienthal. In that case the defendant received notice on
Thursday, April 2, to show cause at 10:OO a.m. Monday, April
6. Mr. Lilienthal appeared at the hearing without counsel
and informed the court that he had been unable to reach his
attorney on the previous Friday. The court held the hearing,
nevertheless. On appeal, this Court determined that Mr.
Lilienthal only had one working day on which to obtain coun-
sel, which was not reasonable opportunity.
In the present case Mr. Marks had over a week to obtain
counsel. He received notice of the charge on September 29,
1988, and the hearing was not held until October 7, 1988.
Five days was held to be adequate opportunity to obtain
counsel for contempt proceedings in Ungar v. Sarafite (19641,
376 U.S. 575, 590, 84 S.Ct. 841, 850, 11 L.Ed.2d 921, 931.
See also Nilva v. United States (1957), 352 U.S. 385, 395, 77
S.Ct. 431, 437, 1 L.Ed.2d 415, 423 (four days notice suffi-
cient). We conclude that Mr. Marks had reasonable opportu-
nity to secure counsel.
We also conclude that the court properly denied the
continuance. The District Court has broad discretion in
whether to grant a continuance. In re Marriage of Robbins
(1985), 219 Mont. 130, 711 P.2d 1347, (affirming trial
court's denial of a continuance in a proceeding involving
contempt charges); Sloan v. State (Mont. 19891, 768 P.2d
1365, 46 St.Rep. 214, (court has broad discretion to grant
continuance in criminal proceedings). In its order denying
the continuance the court stated its reasons for denial. Mr.
Marks requested that the hearing be continued until November
4th or 18th, approximately a month after the scheduled hear-
ing. The court's letter of October 5, denying the continu-
ance explained that "[glrantinq the motion for continuance
would have left Marks in sole possession and use of - the
all
waters of the creek for over a month at a time when very
little remained on the 1988 irrigation season." We affirm
the court's denial of the motion to continue.
I11
Did the District Court err in denying defendant's motion
for substitution of judge?
On October 3, 1988, Mr. Marks filed a motion for
sustitution of judge. This request was not granted. The
show cause hearing was held and judgment was entered against
Mr. Marks. The court however, granted a stay of judgment to
allow Mr. Marks' counsel an opportunity to brief the issue of
whether the substitution should have been allowed. After
considering Mr. Marks' contentions, the court denied the
motion. In its order the court found that Mr. Marks' motion
was not timely, that he was not legally entitled to a substi-
tution of judge, and further noted that where diversion of
water is involved, justice co.uld be flouted if one were
allowed to delay proceedings by motions of this type.
Mr. Marks contends that the motion should have been
granted pursuant to S 3-1-804(l), MCA, which provides for
substitution of district judges. This statute, however, does
not apply to water judges. See Final Order on Rules for
Disqualification and Substitution of Judges (Mont. 1988) , 45
St.Rep. 1685, 1688. Rather, the disqualification of a water
judge is governed by S 3-7-402, MCA, which requires a showing
of cause.
Mr. Marks argues, however, that the District Court was
not sitting as water judge. He urges that the transfer of
jurisdiction from Judge Lessley to Judge Loble was not effec-
tive because the requirements of S 3-7-213, MCA, were not
met. That statute provides:
Designation of alternate judge. The water judge
may designate a district judge, retired district
judge, or another water judge to preside in his
absence on his behalf as water judge for the imme-
diate enforcement of an existing decree or the
immediate granting of extraordinary relief as may
be provided for by law upon an allegation of irrep-
arable harm.
Mr. Marks contends that unless the water judge was absent and
there was a need to grant immediate relief, no valid transfer
of jurisdiction was made.
This Court has previously rejected this construction of
5 3-7-213, MCA, in Granite Ditch Co. v. Anderson (1983), 204
Mont. 10, 16, 662 P.2d 1312, 1316. In that case we stated:
The provisions of section 3-7-213, MCA, governing
designation of an alternate judge, must be inter-
preted in conjunction with the provisions of sec-
tion 3-7-501. When the two sections are integrated
we find that the intent of the legislature was to
provide that a district judge, sitting as a water
judge, could not serve beyond the boundaries of his
division absent the showing required by section
3-7-213, MCA.
We conclude that Judge Loble was properly sitting as
water judge, and properly denied Mr. Marks' request. We
further note that the court's rationale was eminently reason-
able given the circumstances. We affirm the District Court's
denial of the motion for substitution of judge.
-
Chief Justice
/