No. 01-768
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 148
THE STATE OF MONTANA, ex rel.,
MICHAEL S. SMARTT,
Petitioner and Appellant,
v.
JUDICIAL STANDARDS COMMISSION AND
ITS MEMBERS, HONORABLE JOHN WARNER,
Chairman; VICTOR F. VALGENTI; BARBARA
EVANS; PATTY JO HENTHORN; AND
HONORABLE ED McLEAN; and STAFF,
Respondents and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark,
Honorable Jeffrey M. Sherlock, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Channing J. Hartelius, Hartelius, Ferguson, Baker & Kazda, and
Michael S. Smartt, Great Falls, Montana
For Respondent:
Stanley T. Kaleczyc, Browning, Kaleczyc, Berry & Hoven, Helena,
Montana
Submitted on Briefs: May 2, 2002
Decided: July 2, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Michael S. Smartt (Smartt) appeals the Order of the First
Judicial District Court modifying a writ of prohibition to allow
the Judicial Standards Commission to cure ministerial defects
before commencing formal proceedings regarding alleged violations
of the Canons of Judicial Ethics. We affirm.
¶2 We consolidate the issues raised by Smartt on appeal as
follows:
¶3 1. Did the District Court err by modifying and then
dismissing its writ of prohibition?
¶4 2. Did the District Court err by granting summary judgment in
favor of the Judicial Standards Commission?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 The Judicial Standards Commission (the Commission) received a
written but unverified complaint against Justice of the Peace
Smartt on October 23, 2000. The complaint alleging judicial
misconduct was submitted by Samuel L. Harris (Harris), another
Cascade County Justice Court judge. The Commission sent a copy of
the complaint to Smartt the next day and received Smartt’s response
in mid-November 2000. The Honorable John Warner (Warner), chairman
of the Commission, was directed to pursue an informal resolution of
the Harris complaint, pursuant to Judicial Standards Commission
Rule 10. Warner learned that Smartt was also the subject of a
Montana Department of Justice investigation. On November 29, 2000,
Warner obtained an order from the First Judicial District Court
directing the Department’s Criminal Investigation Bureau (CIB) to
2
release its report on Smartt to the Commission. The CIB
investigation had been conducted at the request of the Cascade
County Sheriff and recounted statements made by Troy Nelson Dye
(Dye) before a Richland County Justice of the Peace, alleging that
Smartt had broken into Dye’s home in Sidney, Montana, and sexually
assaulted him. At the completion of the CIB investigation, the
Richland County Attorney declined to prosecute, and Dye did not
file a complaint against Smartt with the Commission. After Warner
shared the findings of the CIB report with the Commissioners, the
Commission decided to expand its investigation of Smartt’s judicial
misconduct to include the Dye allegations.
¶6 On December 30, 2000, Warner met with Smartt and his attorneys
to discuss informal disposition and informed Smartt that he could
avoid further Commission proceedings by voluntarily resigning from
his position as Justice of the Peace. After the meeting, Warner
sent Smartt transcripts of interviews with Dye from the CIB file
and Smartt submitted a response to Dye’s allegations. The
Commission then hired attorney Gregory Gould (Gould) to file a
formal complaint against Smartt with the Montana Supreme Court.
Smartt then notified Gould and the Cascade County Commissioners
that he intended to resign from his position as Justice of the
Peace effective July 1, 2001. On June 28, 2001, Smartt withdrew
his resignation. On July 3, 2001, Gould filed the Commission’s
formal complaint with the Clerk of the Supreme Court.
¶7 Smartt petitioned the First Judicial District Court for a
writ of prohibition, which was issued on July 20, 2001. The writ
3
barred the Commission from further proceedings against Smartt based
on an unverified complaint until further order of the court.
¶8 The Commission moved to vacate the writ of prohibition and for
summary judgment on various procedural and constitutional issues
raised in the affidavit accompanying Smartt’s petition. Following
oral argument, the court entered an Order on August 15, 2001, that
modified the writ, awarded attorney fees to Smartt and reserved
ruling on the motion for summary judgment. The Order allowed the
Commission to proceed on the basis of verified complaints alleging
matters within the jurisdiction of the Commission. On October 25,
2001, the court granted the Commission’s motion for summary
judgment and dismissed Smartt’s petition.
STANDARD OF REVIEW
¶9 Our standard of review in appeals from summary judgment
rulings is de novo. Andrews v. Plum Creek Mfg., LP., 2001 MT 94, ¶
5, 305 Mont. 194, ¶ 5, 27 P.3d 426, ¶ 5. When we review a district
court’s grant of summary judgment, we apply the same evaluation,
based on Rule 56, M.R.Civ.P., as the district court. Andrews, ¶ 5
(citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264,
900 P.2d 901, 903). In Bruner, we set forth our inquiry:
The movant must demonstrate that no genuine issues of
material fact exist. Once this has been accomplished, the
burden then shifts to the non-moving party to prove, by
more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues
of fact do not exist, the court must then determine
whether the moving party is entitled to judgment as a
matter of law.
Bruner, 272 Mont. at 264-65, 900 P.2d at 903.
4
¶10 When we review a district court’s conclusions of law, the
standard of review is plenary and we must determine whether the
district court’s conclusions of law are correct as a matter of law.
State v. Anderson, 2001 MT 188, ¶ 19, 306 Mont. 246, ¶ 19, 32 P.3d
750, ¶ 19.
DISCUSSION
¶11 The Judicial Standards Commission is constitutionally mandated
to investigate complaints, subpoena witnesses and documents, and
make recommendations to the Montana Supreme Court concerning the
discipline of members of the judiciary. Article VII, Section 11 of
the Montana Constitution reads:
(1) The legislature shall create a judicial standards
commission consisting of five persons and provide for the
appointment thereto of two district judges, one attorney,
and two citizens who are neither judges nor attorneys.
(2) The commission shall investigate complaints, and make
rules implementing this section. It may subpoena
witnesses and documents.
(3) Upon recommendation of the commission, the supreme
court may:
(a) Retire any justice or judge for
disability that seriously interferes with the
performance of his duties and is or may become
permanent; or
(b) Censure, suspend, or remove any justice
or judge for willful misconduct in office,
willful and persistent failure to perform his
duties, violation of canons of judicial ethics
adopted by the supreme court of the state of
Montana, or habitual intemperance.
(4) The proceedings of the commission are confidential
except as provided by statute.
¶12 The Legislature outlined the Commission’s procedures for
initiating an investigation and conducting formal proceedings. A
5
complaint from any citizen may cause the Commission to initiate an
investigation. Section 3-1-1106(1)(a), MCA. The Commission is
directed to notify the judicial officer of the citizen’s complaint
and of the initiation of an investigation. Section 3-1-1106(1)(b),
MCA. If the Commission’s investigation indicates that additional
proceedings may be justified, “the Commission shall require the
citizen who filed the original written complaint to sign a verified
written complaint before conducting such additional proceedings.”
Section 3-1-1106(1)(a), MCA. Notice must again be given if a
verified written complaint is filed. Section 3-1-1106(1)(b), MCA.
This notice must be signed by the Commission and include the
charges made, the grounds for the charges, and a statement that the
judicial officer may file an answer. Section 3-1-1106(1)(b), MCA.
¶13 Issue 1. Did the District Court err by modifying and then
dismissing its writ of prohibition?
¶14 The writ of prohibition Smartt obtained from the First
Judicial District Court was grounded, in part, on allegations that
the Commission had committed errors that violated Smartt’s rights
to due process and confidentiality. The alleged errors included
the filing a of formal complaint against Smartt with the Montana
Supreme Court based upon an unverified complaint by Harris that was
not presented on the proper standardized form. The writ directed
the Commission to “desist and refrain from any further action and
proceedings in the matter relating to the Hon. Michael S. Smartt.”
¶15 Smartt premises his appellate argument on an assumption that
the District Court was correct as a matter of law to issue the
6
writ. The Commission concedes that the court was correct to enjoin
the Commission from instituting formal proceedings before it had
obtained a verified complaint, but erred in using the writ of
prohibition, which enjoined the commission from taking any action,
including obtaining the required verifications.
¶16 The function of a writ of prohibition is to halt proceedings
that are “without or in excess of the jurisdiction” of the entity
exercising judicial functions. Section 27-27-101, MCA. The
statutory definition reads:
The writ of prohibition is the counterpart of the writ of
mandate. It arrests the proceedings of any tribunal,
corporation, board, or person exercising judicial
functions when such proceedings are without or in excess
of the jurisdiction of such tribunal, corporation, board,
or person.
Section 27-27-101, MCA. We have defined the term “jurisdiction”
to mean “the power to hear and determine a particular case.” State
ex rel. Yuhas v. Board of Medical Examiners (1959), 135 Mont. 381,
383, 339 P.2d 981, 982. This Court examined the application of
the writ of prohibition in State ex rel. Lee v. Montana Livestock
Sanitary Bd. (1959), 135 Mont. 202, 339 P.2d 487, where we stated:
[T]he writ of prohibition would not restrain a
ministerial, executive or administrative function, no
matter how illegal the act thereunder may be so long as
the tribunal sought to be restrained has jurisdiction of
the subject matter in controversy. A mistaken exercise
of such tribunal’s acknowledged powers will not justify
the issuance of the writ. The writ of prohibition will
not be issued as of course, nor because it may be the
most convenient remedy.
Lee, 135 Mont. at 209, 339 P.2d at 491 (citing State ex rel. White
v. Board of State Land Com’rs (Wash. 1901), 63 P. 532, 533).
7
¶17 Smartt relies on State ex rel. Shea v. Judicial Standards
Commission (1982), 198 Mont. 15, 643 P.2d 210, where this Court
issued a writ of prohibition to enjoin the Commission from acting
in excess of its authority by investigating charges leveled in an
unverified complaint. In Shea, the Commission was “arrested” by
writ of prohibition from pursuing disciplinary proceedings against
a justice of this Court for unpaid parking tickets amassed by his
wife and the use of “intemperate” language in a dissenting opinion.
Because the charges against Justice Shea did not amount to
constitutionally proscribed “misconduct in office,” this Court
concluded that the Commission was operating outside of its
jurisdiction. This Court did not issue the writ of prohibition
solely because the Commission proceeded against Justice Shea
without the statutorily required verified complaint, but, rather,
primarily because the Commission exceeded its jurisdiction in
investigating a charge that did not amount to “misconduct in
office.” Even if the complaint in Shea had been verified, the
Commission still lacked subject matter jurisdiction over the
substance of the complaint. In the present case, on the other
hand, when the procedural requirement of a verified complaint was
satisfied, there was no question but that the Commission had
jurisdiction over the subject matter of the complaint.
¶18 Following the Shea decision, the 1983 Legislature amended § 3-
3-1106, MCA, and clarified the procedural requirement that the
Commission obtain a verified, written complaint when further
proceedings against a judicial officer appear to be justified after
8
the Commission conducts an initial investigation. Sec. 1, Ch. 334,
L. 1983. Section 3-3-1106, MCA, reads, in pertinent part:
(1) (a) The commission, upon the filing of a written
complaint by any citizen of the state, may initiate an
investigation of any judicial officer in the state to
determine if there are grounds for conducting additional
proceedings before the commission. If the commission’s
investigation indicates that additional proceedings
before the commission may be justified, the commission
shall require the citizen who filed the original written
complaint to sign a verified written complaint before
conducting such additional proceedings.
(b) The commission shall give the judicial officer
written notice of the citizen’s complaint and of the
initiation of an investigation. Notice must also be given
if a verified written complaint is filed and must include
the charges made, the grounds for the charges, and a
statement that the judicial officer may file an answer.
The notice must be signed by the commission.
¶19 The record before us indicates that the District Court issued
the writ of prohibition solely upon the basis of Smartt’s
allegations of procedural errors committed by the Commission.
While Smartt concedes that the investigation of complaints against
judicial officers is within the jurisdiction of the Commission, he
claims that the Commission “abused its jurisdiction” by committing
the procedural errors enumerated in the affidavit attached to his
petition. Once the ex parte writ was issued, Smartt contends the
Commission lost subject matter jurisdiction and had no authority to
undertake any further action in the matter. Smartt, however, cites
no authority for the proposition that procedural errors can be a
basis for loss of jurisdiction.
¶20 Unlike the Commission’s investigation of charges against
Justice Shea that bore no relation to his conduct in office, the
Harris complaint alleges that Smartt created a hostile work
9
environment by exposing county employees to sexually explicit
material and used county equipment and services to view pornography
on the Internet. Although the Commission acknowledges error in
failing to obtain a verified complaint before initiating formal
proceedings against Smartt, the Commission’s original jurisdiction
to investigate the Harris complaint is not disputed.
¶21 On August 15, 2001, the District Court ordered the writ to
continue in force only until verified complaints were received from
complainants. We agree with the court’s observation that Article
VII, Section 11 of the Montana Constitution grants the Commission
jurisdiction to investigate misconduct on behalf of the judiciary,
and a procedural error such as the failure to verify a complaint
should not be allowed to subvert this constitutional mandate.
Harris had verified his complaint by the time the court held its
hearing on the writ of prohibition. We conclude that the court did
not err when it modified the writ and allowed the Commission to
proceed with its investigation on Harris’ verified complaint.
¶22 Smartt next claims the Commission overstepped its authority by
obtaining a copy of the CIB investigative report and further
investigating allegations leveled by Troy Nelson Dye when Dye had
not filed any sort of complaint with the Commission. The formal
complaint prepared by the Commission alleged that Smartt used his
judicial position to solicit or encourage sexual favors from Dye;
Smartt unlawfully entered Dye’s residence in Sidney, Montana; and
Smartt sexually assaulted Dye.
¶23 By constitutional and statutory grant of rule-making
authority, the Commission promulgated the Rules of the Judicial
Standards Commission. See Art. VII, Sec. 11(2), Mont. Const.; § 3-
1-1105(2), MCA. The Commission’s Rule 10(b) states:
A complaint shall not be a prerequisite to action by the
Commission. The Commission may act on its own motion in
10
those cases where the Commission considers it
appropriate.
Smartt urges us to declare this rule an unconstitutional extension
of the Commission’s jurisdiction on the grounds that Article VII,
Section 11(2) of the Montana Constitution states only that “[t]he
commission shall investigate complaints.”
¶24 First, in addition to investigating complaints, the
Constitution grants the Commission express authority to “subpoena
witnesses and documents.” Art. VII, Sec. 11, Mont. Const. We note
that the Commission was in the process of investigating the
complaint submitted by Harris when Chairman Warner learned that the
Montana Department of Justice had undertaken an investigation of
alleged wrong-doing by Smartt.
¶25 To determine whether the Commission’s constitutional mandate
to “investigate complaints” grants jurisdiction to investigate
alleged judicial misconduct in the absence of a written complaint,
as contemplated by Rule 10(b), we note that the term “complaint”
has both common and legal meanings. A complaint can be “something
that is the cause or subject of protest or outcry” as well as “a
formal allegation against a party,” according to Webster’s New
Collegiate Dictionary (1979). In the legal context, a complaint is
the “initial pleading that starts a civil action.” Black’s Law
Dictionary (7th Edition, 1999). While a complaint in this
instance is lodged with the Commission and not a court of law, the
use of the term in Article VII, Section 11 of the Montana
11
Constitution does not dictate any particular degree of legal
formality.
¶26 The Legislature clarified that “a written complaint by any
citizen of the state” may initiate an investigation of judicial
misconduct by the Commission. Section 3-3-1106(1)(a), MCA. Only
when the initial investigation indicates that additional
proceedings before the Commission are warranted must the
complaining citizen sign a verified complaint. Section 3-3-
1106(1)(a), MCA.
¶27 The transcripts of the 1972 Constitutional Convention offer
some guidance on the process required to bring matters of judicial
wrong-doing before the Commission, as envisioned by the Convention
delegates. In discussing the public policy concerns supporting
the mandate of the Judicial Standards Commission, one delegate
observed,
[W]e’ve never had a commission of this type to which a
practicing lawyer could go. The only way that you can
get rid of a judge was through impeachment or wait until
the next election and try to get somebody to run against
him. This is a procedure where a letter can be written
or a charge filed with this commission and ask them to
look into it, investigate it, and, if the facts were
found to be true then to take such action as [they] might
deem appropriate.
Comments of Delegate Aronow, Constitutional Convention Transcript
at 1126 (February 29, 1972). Delegate Aronow further explained
that the intent of Article VII, Section 11 was to create “a
committee of five, to investigate and look into any complaints that
are made or any information that comes to the attention of the
commission that a judge, either because of old age, other
12
disability, is not attending to his duties properly and provide for
his retirement or removal from office.” Comments of Delegate
Aronow, Constitutional Convention Transcript at 1123 (February 29,
1972).
¶28 Delegate Berg noted that the Commission offered judicial
officers accused of wrong-doing a forum where they could defend
themselves:
We are particularly interested in seeing to it that
District judges and Supreme Court justices have some
protection, not only of themselves in the case of
senility or alcoholism, but frequently charges are made
against judges which, of course, they are almost
powerless to answer. If there is a commission before
whom those charges can be filed, the judge has an
opportunity to defend himself.
Comments of Delegate Berg, Constitutional Convention Transcript at
1125 (February 29, 1972).
¶29 Taken together, these excerpts depict a Commission conceived
to investigate the truth of “a charge filed” or “a letter written”
or “any information that comes to [its] attention” in order to make
recommendations to the Montana Supreme Court regarding the
discipline or removal of judicial officers. While the Commission’s
own Rule 10(a) directs that all complaints to the Commission must
be in writing and verified by the complainant, Rule 10(b) states
that the filing of a verified complaint is not a prerequisite to
the Commission initiating an investigation of alleged judicial
misconduct based upon information otherwise received.
¶30 The Constitution authorizes the Commission to investigate
judicial wrong-doing. We see nothing in Rule 10(b) that prevents
the Commission from carrying out its constitutional duty to
13
investigate complaints from Montana citizens, and nothing in the
Montana Constitution that bars the Commission from acting on its
own motion to investigate willful misconduct in office, persistent
failure to perform judicial duties and violations of the canons of
judicial ethics. We conclude that the Commission did not exceed
its jurisdiction in obtaining a copy of the CIB file on Smartt by
court order and undertaking its own investigation of the Dye
allegations.
¶31 Smartt also contends that the Commission’s initial notice to
him of the Harris complaint was defective because it was signed by
the Commission’s executive secretary and not the Commission members
themselves. Section 3-1-1106(1)(b), MCA, directs the Commission to
sign the notice to a judicial officer that a verified complaint has
been received. Since the letter signed by the executive secretary
gave Smartt notice of the receipt of an unverified complaint, we
conclude this initial notice did not violate the statutory
requirements.
¶32 At the direction of the Commission to seek informal
disposition of the complaints against Smartt, Chairman Warner met
with Smartt and his attorneys on December 30, 2000. Three days
before the meeting, Warner advised Smartt by letter that the
Commission’s investigation had expanded to include the Dye
allegations. Smartt claims he was denied an adequate opportunity
to prepare for the meeting because the Commission failed to provide
him with a copy of the CIB report. Smartt also contends that
Warner lacked authorization under the Commission’s rules to seek
14
informal disposition of the Dye matter. Finally, Smartt claims
that Warner did not explicitly recommend at the December 30 meeting
that Smartt resign from his position as Justice of the Peace, but
was on a “fishing expedition” regarding the Dye allegations.
¶33 On November 21, 2000, the Commission directed Warner to meet
with Smartt in accordance with the Commission’s Rule 10(g), which
states:
After receipt of a complaint or of information indicating
that a judge may have been guilty of conduct which might
warrant discipline, or that a judge may be disabled, the
Commission, before voting to hold a formal hearing, may
delegate to one or more of its members the authority and
responsibility to personally and confidentially confer
with the judge subject to the inquiry, and to make
informal recommendations to the judge concerning the
subject matter of the inquiry and a satisfactory
disposition thereof. If the judge agrees to the
Commission’s suggested disposition, the matter may be
disposed of on the basis of the agreement reached. If
such agreed disposition is made on the basis that it be
made public, the Commission shall file a report of such
disposition in the office of the Clerk of the Supreme
Court and it shall become a matter of public record.
Smartt is correct that the Commission’s formal delegation of
authority to Warner to seek informal disposition of the complaint
against Smartt occurred before the Commission learned of the Dye
allegations. Prior to the December 30 meeting, Warner informed the
Commission of the contents of the CIB file, and proceeded in accord
with the Commission’s directive. Because the purpose of the
meeting was to attempt to resolve serious complaints against a
judicial officer in a confidential manner before initiating formal,
public proceedings, Smartt’s claim of insufficient notice lacks
merit. The meeting was not a criminal proceeding and the
Commission had not established a time limit for an informal
15
resolution. Immediately following the meeting, Warner mailed a
copy of the CIB file to Smartt. Smartt formally responded to the
Dye allegations on January 28, 2001, and formal proceedings were
initiated thereafter. We conclude that Warner acted with the
Commission’s authorization in pursuing informal disposition of the
complaints against Smartt.
¶34 Finally, Smartt objects to the fact that Dye’s formal,
verified complaint was not submitted on the standardized form set
forth in the Commission’s rules, was drafted by Gould, the attorney
hired by the Commission to prepare the formal complaint against
Smartt, and did not identify which specific sections of the Canons
of Judicial Ethics Smartt allegedly violated. As stated
previously, the form of a complaint from a Montana citizen alleging
judicial misconduct is not critical to the Commission’s fulfilling
its constitutional mandate. And, Smartt has identified no policy,
statute or rule of the Commission that was abrogated by Gould in
providing assistance in drafting Dye’s complaint.
¶35 By Order on October 25, 2001, the District Court dismissed
Smartt’s petition for a writ of prohibition. We reiterate that
Article VII, Section 11 of the Montana Constitution requires that
the Commission investigate complaints and make recommendations to
this Court concerning allegations made against any justice or judge
for “willful misconduct in office, willful and persistent failure
to perform his duties, violation of canons of judicial ethics . . .
or habitual intemperance.” We hold that the Commission acted
within its jurisdiction throughout its investigation of Smartt.
16
The District Court was correct as a matter of law to dismiss the
writ of prohibition.
¶36 Issue 2. Did the District Court err by granting summary
judgment in favor of the Commission?
¶37 The District Court granted the Commission’s motion for summary
judgment on four issues raised by Smartt in his affidavit
supporting his petition for the writ of prohibition. On appeal,
Smartt does not dispute the factual basis for the court’s judgment.
Instead, he contends that he raised only one issue in his
petition, which was whether the Commission should be barred from
further action due to lack of subject matter jurisdiction in the
absence of verified complaints, and maintains that the Commission’s
“motion for summary judgment was a cleverly contrived and
skillfully executed attempt to raise nonexisting issues.”
¶38 At a loss to conceive how the District Court could commit
reversible error by dismissing ancillary issues that both parties
agree are immaterial or irrelevant to the case, we affirm the
court’s Order.
CONCLUSION
¶39 A writ of prohibition is an extraordinary remedy available to
enjoin a judicial entity from the inappropriate exercise of
jurisdiction when no other plain, speedy and adequate legal remedy
exists. The District Court was correct as a matter of law to
dismiss the writ because at no time during its investigation did
the Commission act without or in excess of its jurisdiction.
¶40 Affirmed.
17
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
18
State Ex Rel. Smartt v. Judicial Standards Commission
Court: Montana Supreme Court
Date filed: 2002-07-02
Citations: 2002 MT 148, 310 Mont. 295
Copy CitationsCombined Opinion