97-474
No. 97-474
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
ELDON HUFFINE,
Petitioner,
v.
MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY,
Respondent.
ORIGINAL PROCEEDING: Habeas Corpus
COUNSEL OF RECORD:
For Petitioner: Eldon Huffine, Pro Se, Livingston, Montana
For Respondent: Hon. Joseph P. Mazurek, Attorney General, Helena, Montana Hon. Frank M. Davis,
District Court Judge, Dillon, Montana Thomas G. Bowe, Assistant Attorney General, Helena, Montana
Tara DePuy, Park County Attorney, Livingston, Montana
For Amicus: W. D. Hutchison, Agency Legal Services Bureau, Department of Justice, Helena, Montana
Submitted: August 26, 1997
Decided: October 10, 1997
Justice W. William Leaphart delivered the Opinion of the Court.
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On August 14, 1997, petitioner Eldon Huffine (Huffine) filed herein a pro se petition for writ of
habeas corpus, together with a writ of error, arguing that his sentence for contempt violates Montana and
constitutional law. On August 26, 1997, this Court granted Huffine's petition for writ of habeas corpus
and ordered his immediate release from confinement in the Park County jail. We issue this opinion to
address whether the District Court erred in sentencing Huffine to a term of thirty days in jail for
practicing law without a license.
Factual and Procedural Background Huffine's contempt charge arises out of events surrounding State
of Montana ex rel. Department of Health and Environmental Sciences (DHES) v. Eugene Brue, an
action filed in the Montana Sixth Judicial District Court, Park County. On January 5, 1995, the State
filed a complaint and application for an injunction in the District Court alleging that Mr. Brue was
operating an unlicensed and unshielded motor vehicle wrecking facility in Park County in violation of
Montana law and DHES regulations. Mr. Brue filed a counterclaim against approximately thirty
individuals, including several Justices of this Court, seeking not less than $1.5 million in damages for
violations of his civil rights. Mr. Brue also named the Honorable Wm. Nels Swandal, the District Court
judge who was presiding over the action, as a counterclaim defendant. Judge Swandal recused himself,
and the Honorable Frank M. Davis assumed jurisdiction.
On March 14, 1995, Huffine filed in the District Court a notice of appearance as counsel for Mr. Brue
and brief in support of the pleadings. Huffine advised the court that it should direct all further
correspondence in the matter to him, "a private citizen having been designated to act as counsel by and
for the Defendant Eugene Brue." The State filed a motion to strike the notice of appearance, arguing that
Mr. Brue "is now represented by a person who is not a licensed attorney, yet who holds himself out as
counsel for Defendant."
In its omnibus findings, opinion, and order issued April 26, 1995, the District Court found that
Huffine is not a licensed attorney and that by filing a notice of appearance as counsel for Brue, he was
practicing law without a license. The court then held that Huffine was guilty of contempt under 37-61-
210, MCA (providing that practicing law without a license is contempt of court) and ordered him to
appear before the court to show cause why sanctions should not be imposed. Huffine failed to appear,
and in an order filed May 23, 1995, the District Court sentenced Huffine to a term of thirty days in the
Park County Jail, to be suspended upon his paying a $500 fine within ten days. The District Court also
issued a bench warrant for Huffine's arrest. On August 10, 1997, Huffine was arrested and confined to
the Park County Jail.
On August 14, 1997, Huffine filed petitions for a writ of habeas corpus and a writ of error in this
Court, asserting that 1) Judge Frank M. Davis of the Montana Sixth Judicial District Court, Park County,
had been disqualified from proceeding over the matter; 2) Huffine was denied a trial by jury in violation
of his constitutional rights; and 3) the court had no jurisdiction to sentence Huffine to thirty days in jail.
In its response to this Court, the District Court states that under 3-1-519 and -520, MCA, it had authority
to sentence Huffine to imprisonment to compel his performance of its order that he cease practicing law
without a license.
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Discussion Determining whether a particular contempt proceeding is criminal or civil can be difficult,
as contempts are "neither wholly civil nor altogether criminal." Gompers v. Buck's Stove & Range Co.
(1911), 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797, 806. Still, the classification of contempt is
crucial, particularly where the contemnor is sentenced to confinement, because the classification
determines the procedures that the district court must follow. See Crozer-Chester Medical Center v.
Moran (Penn. 1989), 560 A.2d 133, 136 (citing Dobbs, Handbook on the Law of Remedies 2.9 (1973)).
Therefore, to determine whether the District Court properly sanctioned Huffine for his contempt, this
Court must first determine whether the contempt was criminal or civil. There is "nothing inherent in a
contemptuous act or refusal to act which classifies that act as civil or criminal." Crozer, 560 A.2d at 136
(citing In re Martorano (1975), 346 A.2d 22, 27). Rather, it is the character and purpose of the
punishment which the court chooses to impose that serves to distinguish between civil and criminal
contempt. Hicks ex rel. Feiock v. Feiock (1988), 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721;
Gompers, 221 U.S. at 441. If the sanction is "singularly designed and intended to force the violator's
compliance with the court's order," the contempt is properly classified as civil. Harber v. Shaffer (Okla.
1988), 755 P.2d 640, 641; Gompers, 221 U.S. at 441. However, if the court's purpose is to punish the
contemnor for a specific act done and to vindicate the authority of the court, the contempt is criminal.
Gompers, 221 U.S. at 441.
Because a court's intent in imposing a particular sanction may be unclear, it is necessary to look to
the form of the sanction to determine the purpose for which it was imposed. Gompers, 221 U.S. at 441.
A sentence of confinement for a definite period is traditionally thought of as criminal; however, it is
civil if the contemnor may secure his or her release by complying with conditions that are specified by
the court. Hicks, 485 U.S. at 632. It is this ability to end the imprisonment that is the distinguishing
factor and why it is often said that in a civil contempt, one carries the keys to the jailhouse in his own
pocket. Gompers, 221 U.S. at 442; Crozer, 560 A.2d at 137. On the other hand, when "a jail sentence is
imposed and the contemnor is given no opportunity in the sentencing order for immediate release by
[performing] an act which is within his power to accomplish," the contempt is criminal. Hendershot v.
Hendershot (W.Va. 1980), 263 S.E.2d 90, 93.
In this case, the District Court found Huffine in contempt for purporting to act on behalf of and as
counsel for Mr. Brue. We agree that Huffine's practicing law without a license is contempt under 37-61-
210, MCA. See also 3-1-501(f), MCA (stating that "assuming to be an officer, attorney, or counsel of a
court and acting as such without authority" is contempt). Upon being adjudged guilty of contempt, a
person may be fined "not exceeding $500 or he many be imprisoned not exceeding 5 days, or both."
Section 3-1-519, MCA ("Punishment"). Alternatively, under 3-1-520, MCA, the contemnor may be
sentenced to imprisonment to compel performance of an act which is within his power to perform.
The District Court states that it imposed this sentence "pursuant to 3-1-519 and -520, MCA, with
emphasis on the 'imprisonment to compel performance provision.' " We determine, however, that the
two statutes provide exclusive sanctions for contempt and may not be imposed together. If, as the
District Court purports, it was seeking to compel Huffine's performance of an act, it must proceed under
3-1-520, MCA ("Imprisonment to compel performance"). Thus, we only address the legality of and
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proper procedure for imposing a sentence under 3-1-520, MCA. Because the District Court did not
purport to impose a sentence of confinement for a definite period not exceeding five days under 3-1-519,
MCA, we need not address that statute.
The District Court sentenced Huffine to thirty days in jail or a fine of $500 to be paid within ten days
of sentencing. The form of this sanction, confinement for a definite period or payment of a set fine,
conflicts with the purpose the District Court sought to accomplish, compliance with its order. Section 3-
1-520, MCA, states: "When the contempt consists in the omission to perform an act which is yet in the
power of the person to perform, he may be imprisoned until he shall have performed it. In that case, the
act must be specified in the warrant of commitment." This statute envisions a sentence of imprisonment
"singularly designed and intended to force the violator's compliance with the court's order." Harber, 755
P.2d at 641. Under 3-1-520, MCA, performance of the act specified by the district court in the warrant
of commitment is the contemnor's key to the jailhouse.
While the sentencing order appears to provide Huffine with a key, payment of a $500 fine, this is not
the type of key envisioned by the Supreme Court. See Hicks, 485 U.S. at 632. Payment of a fine is not
the act which the court seeks to compel the contemnor to perform. Rather, it is an alternative sanction,
one which could also be classified as criminal if the contemnor is given no opportunity to perform an act
to avoid paying the fine. Hicks, 485 U.S. at 632. In this case, neither the order nor the bench warrant
mention any affirmative act that Huffine could perform to cure the contempt and secure his release from
jail or excuse him from paying the $500 fine. The U.S. Supreme Court has held:
If the sentence is limited to imprisonment for a definite period, the defendant is
furnished no key, and he cannot shorten the term by promising not to repeat the
offense. Such imprisonment operates, not as a remedy coercive in its nature, but
solely as punishment for the completed act of disobedience.
Gompers, 441 U.S. at 442-43. See also Hicks, 485 U.S. at 632 (holding that any sentence of
confinement that is for a determinate period of time is criminal); King v. King (Ala. 1955), 83 So.2d 241
(holding that when a sentence is for a definite period of time, the decree is a punishment for what has
been done). Thus, while the District Court purports to have imposed this sentence to compel
performance of an act, we determine that, in reality, the sentence of thirty days of confinement was to
punish for past acts and, therefore, that Huffine's contempt proceeding is properly characterized as
criminal.
In Montana, criminal contempt of court is proscribed at 45-7-309, MCA. Prosecution for criminal
contempt must be carried out pursuant to the procedures set forth in Title 46, MCA, to ensure that
criminal penalties are not imposed on someone who has not been afforded the proper protections. In this
case, the District Court erred by imposing a punitive, criminal sentence on Huffine where no charges
had been brought under 45-7-309, MCA, and where Huffine was not afforded the due process that he is
guaranteed by the state and federal constitutions.
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The power to sentence a contemnor to confinement, thus depriving him of his liberty, is one that
must be exercised with the utmost of caution. First, in order to properly characterize the contempt
proceeding as criminal or civil, the district court must determine the purpose (to compel performance or
to punish) it seeks to further by imposition of the sanction. Then, if the court's design is to impose a
coercive sentence of confinement, it may proceed under the civil provision of 3-1-520, MCA, by clearly
stating in the sentencing order, an act (1) within the power of the contemnor to perform and (2)
performance of which will secure his release. Only where criminal contempt charges are brought under
45-7-309, MCA, and appropriate procedures followed, may a contemnor be sentenced to confinement
for a definite period. Parenthetically, we recognize that the plain language of 3-1-519, MCA, purports to
allow a civil penalty of confinement for a definite term of up to five days. However, since the sentence
in this case was imposed pursuant to 3-1-520, MCA, and not 3-1-519, MCA, we do not address the
validity of 3-1-519 at this time.
The contempt that is the subject of this opinion is based solely on Huffine's filing of a notice of
appearance as counsel for Mr. Brue on March 14, 1995. Because Huffine has served seventeen days in
the Park County Jail, we hold that the contempt charge for his filing of this particular document has been
purged. However, Huffine has continued to file petitions in this Court on behalf of Mr. Brue in the
matter of State of Montana ex rel. DHES v. Brue. In an Order issued September 30, 1997, we denied
Huffine's petition for extraordinary relief, holding that he is not a real party in interest to the action.
Order of the Montana Supreme Court, No. 97-540 (September 30, 1997). We also noted that by filing
documents on behalf of Brue, Huffine again engaged in the unlawful practice of law. Although we did
not hold him in contempt, we ordered that if he attempts to file any more documents or motions with this
Court on behalf of Brue, he will be held in contempt.
< /S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.
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