No. 04-254
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 154
ROBERTA DREW,
Petitioner,
v.
MONTANA TENTH JUDICIAL DISTRICT COURT,
JUDITH BASIN COUNTY, THE HONORABLE
LOREN TUCKER, PRESIDING JUDGE,
Respondents.
ORIGINAL PROCEEDING: Writ of Supervisory Control
COUNSEL OF RECORD:
For Appellant:
Robert L. Stephens, Attorney at Law, Billings, Montana
For Respondents:
Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,
Assistant Attorney General, Helena, Montana
For Amicus:
Michael Donahoe, Montana Association of Criminal Defense Lawyers,
Helena, Montana
Submitted: April 15, 2004
Decided: June 21, 2004
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Roberta Drew (Drew) challenges, by way of Petition for Writ of Certiorari, the Order
of the Montana Tenth Judicial District Court, the Honorable Loren Tucker presiding, finding
her in contempt of court and imposing sanctions including the service of jail time. Drew’s
Writ is denied.
ISSUE
¶2 The only issue in this case is whether the amendment to § 3-1-518, MCA (2001),
which permits a judge to punish a contempt arising from violations of an order issued by that
judge after a hearing on the merits of the order, offend due process in contravention of our
Opinion in Kauffman v. 21st Judicial Dist. Court, 1998 MT 239, 291 Mont. 122, 966 P.2d
715.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The contempt proceedings before us arose out of the case of State of Montana v.
Donna June Enright, DC 96-3003, pending in the Montana Tenth Judicial District Court,
Judith Basin County. Drew was appointed to represent Enright on or around May 1, 2003,
for the purposes of filing an amended petition for post-conviction relief. On June 16, 2003,
the District Court ordered Drew to file and serve the amended petition for post-conviction
relief on or before July 18, 2003. On July 11, 2003, Drew moved for an extension of time,
which the court granted through August 29, 2003. Subsequently, on September 2, 2003,
Drew again moved for an extension of time to file the amended petition, and the court again
granted her motion, extending its deadline until October 3, 2003. No amended petition was
2
filed by the deadline, nor did Drew offer any explanation for failing to file the petition.
¶4 On November 26, 2003, the Honorable Loren Tucker received from Enright directly
a pro se petition for writ of mandate. Enright requested assistance from the court to proceed
with her petition for post-conviction relief in light of the failure of her attorney to take any
action on her behalf. Following receipt of this pro se petition, and having heard no
explanation from Drew for her failure to file the amended petition for post-conviction relief
on Enright’s behalf, the District Court issued its first Order to Show Cause on December 4,
2003. The court ordered Drew to appear before it in Dillon, Montana, on January 13, 2004,
either in person or by video conference, to show cause why she had not filed the amended
petition for post-conviction relief on behalf of her client. On January 13, 2004, the date
scheduled for the hearing, Drew filed a written motion to continue the hearing, representing
that she had been preoccupied with family emergencies including the death of her mother
in October 2003, and the repeated hospitalizations of her husband since August 2003.
Accordingly, Drew did not appear in court on January 13, 2004.
¶5 On January 15, 2004, the District Court entered its Second Order to Show Cause. In
this Order, the court extended its sympathy to Drew, but noted that seven and one-half
months and four continuances had passed with nothing at all tangible having been produced
by Drew on behalf of Enright. The court therefore directed Drew to appear on February 5,
2004, at the courthouse in Dillon, Montana, to show cause why she had not filed the
amended petition for post-conviction relief, to provide corroboration from credible sources
of the assertions of the family hardships she has encountered, and to provide to the court a
3
realistic written schedule including deadlines for action to be taken on Enright’s behalf. The
court also directed Drew to show cause why she should not be sanctioned for delay and
inattention to her client’s concerns and for her failure to comply with two previous court
orders, and to show cause why her conduct should not be reported to appropriate agencies.
¶6 On February 5, 2003, Drew appeared in court with counsel in response to the Second
Order to Show Cause. During the hearing, Drew explained in detail the family and health
issues she had been undergoing, and also described her personal bouts with depression and
anxiety. Drew represented that as a consequence of these problems, she had not been able
to accomplish the task assigned to her. During that hearing, the transcript of which is 31
pages in length, the court questioned Drew about her personal problems, her caseload, and
the work that she had done and anticipated completing on Enright’s behalf. The court
extended its sympathies to her for her problems but advised Drew candidly that she had lost
credibility with the court for her failure to previously advise the court of her personal
problems when seeking earlier continuances, and because the court was frustrated by the fact
that Drew had consistently failed to take action on behalf of her client until she was ordered
to show cause why she should not be held in contempt. Ultimately, Drew apologized to the
court for her failings, and represented to the court that based upon her review of the file and
discussions with the Appellate Defender’s Office, it was her intention to file a motion to
withdraw together with accompanying Anders brief on or before February 13, 2004. The
court then advised Drew that she would not be thrown in jail and would not be fined,
4
premised upon her representation that she would be filing these substantive pleadings by
February 13, 2004. The court said that upon receipt of these documents, it would consider
the difficulty of the situation and that fact that Drew had to travel to the show cause hearing,
as sufficient sanction.
¶7 No documents were filed by Drew by February 13, 2004. On February 19, 2004,
Judge Tucker telephoned Drew. Unable to reach her, he left a telephone message directing
Drew to act immediately to demonstrate why she ought not be severely sanctioned, including
jail time. Drew neither returned the court’s call or filed any further documents.
Accordingly, on March 4, 2004, the District Court issued a third Order to Show Cause,
requiring Drew to personally appear before the court on March 25, 2004, to show cause why
she should not be sanctioned by fine or jail or both for her failure to act on behalf of her
client, for her misrepresentation to and deception of the court, and for her failure to comply
with the court’s order to file the appropriate pleadings by February 13, 2004.
¶8 Drew appeared in person and with counsel, Kris Copenhaver-Landon, at the hearing
of March 25, 2004. Prior to the commencement of the hearing, Drew filed a Motion to
Withdraw as Counsel of Record for Enright. At the hearing, Counsel Copenhaver-Landon
represented that Drew understood the charges with which she was faced, and stated that if
the court was anticipating a criminal contempt situation, then Drew would ask for a neutral
magistrate. Otherwise, they were prepared to go forward. In response, the court indicated
it was not going to conduct a summary proceeding, but would proceed instead under § 3-1-
518, MCA, which allows a party to appear with counsel and give evidence. The court
5
pointed out that under § 3-1-518(1), MCA, the judge who issues an order that is disobeyed
may proceed with a hearing on the merits of the subject order and then punish the contempt
“unless it is shown that the judge would not be impartial in addressing the contempt.” The
court then gave Drew the opportunity to present any evidence she might have to demonstrate
that it could not be impartial. No such evidence was offered at that point. Counsel then
inquired whether the court would accept notes from various Billings physicians relative to
Drew’s medical condition. The court refused to accept the notes on the basis of their hearsay
status, and declined to grant a continuance to allow the physicians to be subpoenaed because
of the lengthy delay Drew’s client had already suffered.
¶9 Following an opening statement by her attorney, Drew was sworn and testified.
Although the court had denied the admission of a medical record of her kidney infection, the
court allowed Drew to refer to the report to document the dates and times when the illness
had afflicted her. Drew attempted to explain why her ailments and the ailments of family
members had prevented her from acting on behalf of Enright. She also advised the court that
she had just filed her motion to withdraw as counsel for Enright together with supporting
brief. The court reviewed the motion in Drew’s presence and expressed dissatisfaction with
its content and with her representations that she had performed services for her client. The
court then advised Drew that she had no credibility with the court.
¶10 At this juncture, counsel for Drew renewed her request for a neutral magistrate,
contending that based upon the court’s comments, the matter should not be heard in front of
Judge Tucker. The motion was denied. Judge Tucker explained that it was his day-to-day
6
duty to assess credibility, and that a finding that a person lacks credibility is not an indication
of impartiality or lack of neutrality. Following this exchange, counsel represented that Drew
had filed with the court the appropriate documents in response to the rule to show cause, and
therefore submitted that she had purged herself of contempt. The court asked counsel if she
had submitted everything she would like to submit on behalf of Drew and counsel answered
in the affirmative.
¶11 The court then gave a detailed explanation of the reasons it found Drew lacking in
credibility and concluded beyond a reasonable doubt that Drew’s explanations were without
justification or plausibility. Drew’s counsel then attempted to explain why Drew failed not
only to file the promised pleadings on February 13, 2004, but failed to respond to the court’s
telephone call or take any further action until March 25, 2004.
¶12 The court stated for the record its dissatisfaction with the motion to withdraw, finding
it was not the Anders brief which Drew represented she would file and concluding that the
short petition contained no analysis. The court then found that Drew had failed to comply
with the court order and that her explanations for failure to do so were not persuasive. The
court further found that Drew’s efforts to explain her conduct over the preceding ten months
constituted a willful deception and misrepresentation to the court, and that Drew had failed
to abide by the minimum requirements of professional responsibility required for action on
behalf of her client. The court concluded that the evidence supporting these findings was
beyond a reasonable doubt and that Drew should therefore be sanctioned.
7
¶13 Counsel for Drew then stated that because there was no necessity for immediate
action to restore the dignity of the court, she would again ask to have the matter brought
before a different court. The court declined to grant the request. After indicating that it
would enter its order in due course, the court recessed the proceedings.
¶14 On April 1, 2004, the District Court entered the Decision and Order which gave rise
to these proceedings. In its Order, the District Court concluded that Drew failed to provide
any credible or plausible explanation for her failure to comply with its Orders. Addressing
Drew’s Motion to Withdraw as Counsel of Record, the court noted that the motion consisted
of only three pages, and only one sentence to the effect that she could not find any non-
frivolous issues which might support Enright’s Petition for Post-Conviction Relief. The
court also concluded that Drew’s explanations for her failure to act were “barely plausible,
not credible, and totally unpersuasive.” The court concluded that the evidence demonstrated
beyond a reasonable doubt that Drew had willfully neglected and violated her duty to
represent her client, and had violated an order of the court which was within her power to
fulfill. The court further concluded that Drew’s conduct constituted misrepresentation to and
deception of the court and that her client had suffered for her failures. The court therefore
entered an Order removing Drew from her representation of Enright, and ordering Drew to
report to the Judith Basin County Jail for a period of thirty (30) days, commencing April 16,
2004. The court suspended all but seven (7) days of the jail sentence on the condition that
Drew reimburse the entity or agency which had compensated her for her expenses involved
in representing Enright, and that she file with the court and the affected agency a request for
8
relief from the obligation of reimbursement in the event she believed it would be impossible
for her to make reimbursement. The court also fined Drew $500.00, which would be
suspended upon the complete reimbursement.
¶15 On April 15, 2004, the day before she was to report to jail, Drew filed the Petition for
Writ of Certiorari and Motion for Emergency Stay Order which commenced these
proceedings. On April 20, 2004, we issued an Order staying execution of the District Court
Judgment and Sentence in the contempt proceedings until further Order of the Court, and
granting leave to the District Court of the Tenth Judicial District, the Office of the Attorney
General, and the Montana Association of Criminal Defense Lawyers, to file briefs directed
to the merits of Drew’s Petitions. All three parties have now filed their briefs and this matter
is therefore ripe for determination.
DISCUSSION
¶16 Drew asserts that she was denied her right to full process, including the right to
allocution, the right to a hearing before a neutral magistrate, and the right to present
testimony through witnesses by way of defense or explanation. She therefore maintains her
incarceration and other punishment is unlawful.
¶17 As noted in ¶ 8 above, the court asserted that it was proceeding under § 3-1-518,
MCA (2001), which provides:
Hearing on contempt not committed in immediate view and presence of
court or judge at chambers. (1) When a person arrested for a contempt not
committed in the immediate view and presence of the court or judge at
chambers has been brought up or appeared, the court or judge shall proceed
to investigate the charge, shall schedule and hold a hearing on any answer that
9
the person arrested may make to the charge, and may examine witnesses for
or against the person, for which an adjournment may be had from time to time,
if necessary. The judge investigating the charge and scheduling and presiding
over the hearing may not be the judge against whom the contempt was
allegedly committed, except that if the contempt arose from the violation
of an order of the court issued after a hearing on the merits of the subject
of the order, the judge who issued the order may punish the contempt or
compel compliance with the order unless it is shown that the judge would
not be impartial in addressing the contempt. (Emphasis added).
(2) the charged person must be given a reasonable opportunity to obtain
counsel and prepare a defense or explanation prior to the hearing. The
charged person may testify and call witnesses at the hearing.
¶18 Drew and amicus Montana Association of Criminal Defense Lawyers (MACDL)
argue that we should be guided here by our decision in Kauffman v. 21st Judicial Dist.
Court, 1998 MT 239, 291 Mont. 122, 966 P.2d 715. In Kauffman, this Court granted
Kauffman’s petition for writ of certiorari and reversed the district court’s finding of
contempt. In so doing, we addressed the various contempt statutes found in Title III,
Chapter 1, section 5. Significantly, however, at the time Kauffman was decided, there was
in existence a much abbreviated version of § 3-1-518, MCA, which bore little resemblance
to the 2001 version under which Judge Tucker proceeded in this matter. Section 3-1-518,
MCA (1999) provided as follows:
Hearing. When the person arrested has been brought up or appeared, the
court or judge must proceed to investigate the charge, must hear any answer
which the person arrested may make to the same, and may examine witnesses
for or against him, for which an adjournment may be had from time to time,
if necessary.
¶19 In Kauffman, we said that while a district court may subject a contemnor to summary
contempt proceedings in those circumstances in which the individual’s misconduct occurred
10
directly before the court and threatened the court’s immediate ability to conduct its
proceedings, full due process should be accorded in those cases in which it is not necessary
for a court to take instant or immediate action. Kauffman, ¶¶ 24 and 27. We noted that
in Lilienthal v. District Court, Etc. (1982), 200 Mont. 236, 650 P.2d 779, we concluded that
due process required:
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 behalf, either by way of defense or explanation.
(Citations omitted).
Lilienthal, 200 Mont. at 242, 650 P.2d at 782. We also cited our Opinion in Malee v. Dist.
Court, Silver Bow County (1996), 275 Mont. 72, 911 P.2d 831, in which we set forth the
same list of due process requirements that were laid out in Lilienthal.
¶20 Concluding that Kauffman’s conduct may well have satisfied the elements of § 3-1-
501, MCA, we stated that contempt proceedings issued pursuant to that statute must provide
for more due process protection for the contemnor than would be provided in a summary
contempt proceeding. We concluded:
In cases in which it is not necessary for a court to take instant action, however,
a contemnor is entitled to full due process. This includes a hearing before a
neutral judge, during which the contemnor is advised of the charges against
him or her, has a reasonable opportunity to meet them by way of defense or
explanation, has the right to be represented by counsel, has a chance to testify
and call other witnesses on his behalf, and, in instances in which criminal
punishment is a consequence, a finding of guilt beyond a reasonable doubt.
Kauffman, ¶ 33. In reversing the judgment of the district court, we concluded that because
Kauffman’s conduct did not necessitate immediate action, a summary contempt proceeding
11
by the same judge was not necessary and violated her due process rights. We therefore
remanded for a hearing in front of a different judge. Kauffman, ¶ 35.
¶21 Drew argues that the safeguards announced in Kauffman were denied to her. She
contends her punishment is unlawful because she was denied her right to full due process,
including the right to allocution, the right to a hearing before a neutral magistrate, and the
right to present testimony through witnesses by way of defense or explanation. She also
claims there was an insufficient showing upon which the court could have found her guilty
of contempt beyond a reasonable doubt.
¶22 Amicus MACDL acknowledges that when Kauffman was decided, the Montana
statutes relating to contempt, found in Title III, did not cover the issue presently before the
Court. Citing the amendments to § 3-1-518, MCA, made by the 2001 Legislature, MACDL
maintains that the changes made to the statute do not change the rule of Kauffman that an
alleged contemnor is still entitled to a neutral judge. In the alternative, MACDL argues that
if we determine that the changes the 2001 Legislature made to § 3-1-518, MCA, have
somehow overruled Kauffman, we should announce a new rule to the effect that any judge
who makes a finding about the credibility of a contemnor prior to a contempt hearing, must
be disqualified as a matter of due process.
¶23 In its response to the constitutional challenge, the Attorney General maintains that
§ 3-1-518, MCA (2001), is neither overbroad nor void for vagueness. It also maintains that
indirect contempt may be punished with either civil or criminal sanctions, and that the
authority for these sanctions is found in §§ 3-1-511 and 3-1-520, MCA. Finally, it argues
12
that the power to inflict punishment for contempt is an inherent power, with its roots in
common law, citing State v. District Court (1916), 52 Mont. 46, 155 P. 278. The Attorney
General maintains that Drew has failed to sustain her burden of proving that the statute is
unconstitutional beyond a reasonable doubt.
¶24 The Tenth Judicial District Court also filed a response to Drew’s Petition. In it, the
District Court defends its action under § 3-1-518, MCA (2001), contending it complied in
all respects with the amended provisions of the statute and with the requirements of due
process. The District Court asks us to defer to the policy implemented by the Legislature
when it amended § 3-1-518, MCA, and to find that Drew was accorded full due process
under the statute. In that regard, it points out that Drew was advised of the charges in the
Order to Show Cause of March 4, 2004 and given until March 25 to prepare for the hearing,
and that Drew has not complained she had insufficient time. Moreover, Drew was
represented by counsel, and was sworn as a witness at the hearing and provided an
opportunity to call other witnesses, all as required under the provisions of § 3-1-518(1) and
(2), MCA.
¶25 As noted above, in both Lilienthal and Malee, we held that due process required
notice of the charges against the contemnor, a reasonable opportunity to meet them by way
of a defense or explanation, the right to be represented by counsel, and the right to testify
and call other witnesses on one’s behalf. In reaching this conclusion in 1982 and again in
1996, we relied upon the United States Supreme Court case of In re Oliver (1948), 333 U.S.
257, 275, 68 S. Ct. 499, 508-09, 92 L. Ed. 682, 695. The additional due process component
13
of the right to have a neutral judge did not enter our contempt of court due process
jurisprudence until Kauffman was decided in 1998. Notably, then, after we decided
Kauffman, HB 208, amending § 3-1-518, MCA was presented to and adopted by the
Legislature. In the amended version, the Legislature provided that a judge investigating a
contempt charge and presiding over a hearing of a person whose contempt was not
committed in the immediate view and presence of the court, may not be the judge against
whom the contempt was allegedly committed. However, the Legislature added the following
caveat:
except that if the contempt arose from the violation of an order of the court
issued after a hearing on the merits of the subject of the order, the judge who
issued the order may punish the contempt or compel compliance with the
order unless it is shown that the judge would not be impartial in addressing the
contempt.
Section 3-1-518(1), MCA (2001).
¶26 It is this provision that Judge Tucker maintains was followed to the letter, and which
supports the action he took in this matter. No one--not even Drew--disputes that Drew
violated an order of the District Court issued after a hearing on the merits of the subject of
the order. As indicated above, the District Court entered a Second Order to Show Cause on
January 15, 2004, ordering Drew to appear in court on February 5, 2004, to show cause why
she had not filed the amended petition for post-conviction relief on Enright’s behalf. Drew
appeared as directed on February 5, with counsel. At the conclusion of that hearing the court
indicated it would not jail Drew or fine her, provided she filed with the court a motion to
withdraw with a supporting brief analogous to an Anders brief. The February 13 deadline
was chosen by Drew as reasonable and imposed by the Court. Nonetheless, Drew failed to
14
file the documents as represented, and failed to follow up with the court even after the court
telephoned her to inquire about her failures. Using the statute’s language, it is clear that
Drew’s contempt, which was addressed in the subsequent hearing of March 25, 2004, “arose
from the violation of an order of the court issued after a hearing on the merits of the subject
of the order.” Section 3-1-518(1), MCA (2001). Thus, the situation described in the
amended statute, which allows the judge who issues the order to punish the contempt, was
squarely met here.
¶27 The only proviso against allowing a judge who issued an order to punish the contempt
arising from violation of the order is where “it is shown that the judge would not be impartial
in addressing the contempt.” Section 3-1-518(1), MCA (2001). Drew and MACDL argue
that because the District Court stated on the record that Drew had no credibility with the
court, this was sufficient to establish that Judge Tucker could not be impartial in addressing
the contempt. Judge Tucker disagrees, pointing out that if we accept Drew’s argument, the
amended provisions of the statute could virtually never be implemented. We tend to agree
with Judge Tucker.
¶28 A straightforward analysis of a contempt proceeding illustrates the point. A person
who appears before a court for violating a direct order of the court issued in a previous
proceeding is--by definition--already in trouble. A court that is on the verge of finding that
person in contempt has likely already rejected the person’s explanations; in other words, it
has found those excuses not credible. Were the excuses credible, presumably no finding of
contempt would issue. If we conclude, as Drew urges us to do, that a judge who has
15
determined that the charged party lacks credibility is unable to be impartial in addressing the
contempt, then virtually no judge who is understandably offended by a direct violation of his
or her orders would be allowed to address the contempt, and the provisions of § 3-1-518,
MCA, as amended, would be rendered meaningless.
¶29 Drew maintains that the amended statute, which allows the sitting judge to punish a
contempt arising out of the failure to follow the court’s orders, is unconstitutional. We must
therefore determine whether the right to a neutral magistrate in all non-immediate contempt
proceedings is constitutional in dimension, as Drew maintains, or whether the Legislature
may appropriately permit a judge whose order issued after a hearing on the merits of the
subject of the order is violated, to preside over the ensuing contempt proceedings, unless it
is shown that he or she could not be impartial in addressing the contempt.
¶30 As noted above, until we decided Kauffman, the panoply of due process rights to
which an alleged contemnor was entitled in Montana did not include the absolute right to
appear before a neutral magistrate in every instance of non-immediate contempt proceedings.
See Lilienthal, 200 Mont. 236, 650 P.2d 779 and Malee, 275 Mont. 72, 911 P.2d 831. Nor
has Drew cited any case for the proposition that the entitlement to a neutral magistrate in all
such proceedings is constitutional in dimension, which is her burden in a constitutional
challenge. We conclude therefore that, provided § 3-1-518, MCA (2001) accords due
process to the charged party, its provisions should be upheld.
¶31 Our decision in Kauffman does not preclude a finding that the revised statute is an
appropriate exercise of legislative authority. When we superimposed the requirement of a
16
neutral magistrate over those cases in which it is not necessary for a court to take instant
action, in Kauffman we did so without the benefit of the specific provisions of § 3-1-518(1),
MCA (2001) that are at issue here. The revised statute now specifically recognizes that a
right to a neutral magistrate exists in most cases. The sole exception is that case where, as
here, the charged person has violated a court order issued after a hearing on the merits of the
subject of the order. Because the exception to the rule at issue here did not exist and was
therefore not in the contemplation of the Court when Kauffman was written, we will not
apply our holding in Kauffman to the present situation.
¶32 Turning to the due process concerns, we note that the revised statute assures that the
charged party shall be entitled to a hearing and to examine witnesses. The statute also takes
into account the issue of partiality, by allowing the charged person to demonstrate that the
sitting judge could not be impartial in meting out a contempt punishment. If such a showing
is made, then the neutral magistrate requirement will be imposed. Thus, the revised statute
contains its own due process safeguards.
¶33 It is important to bear in mind that the type of contempt punishable by the sitting
judge under the statute is narrow in scope. It is only where an order of the court issued after
a hearing on the merits is violated that the judge may act. Direct violation of such an order
is, by definition, self-evident; in fact, Drew’s violation of the order is not in dispute. There
is thus less subjectivity involved in the finding of contempt under such circumstances than
would exist in a more fluid open court setting. Moreover, as the legislative history of the
amendment to the statute makes clear, the goal of the amendment was to ensure that justices
17
of the peace and city court judges, as well as district judges, would retain the power to
punish disobedience of their own orders. The Montana Magistrates Association, in
supporting the amendment, said that, if its members were precluded from hearing contempt
proceedings stemming from their own orders, the necessity of calling in a second judge
“would bring the lower court proceedings to a halt.” The legislative history--and the statute
as revised--further makes it clear that, in all other types of non-immediate contempt
proceedings, Kauffman’s call for a neutral magistrate would be the law.
¶34 Assuming, therefore, that the statute provides sufficient due process protections, we
turn to the question of whether Drew has demonstrated that Judge Tucker could not be
impartial in addressing her contempt, a finding that, if made, would compel the appointment
of a neutral magistrate under the statute. Drew and MACDL argue that his finding that Drew
lacked credibility rendered him unable to be impartial. We reject this argument for the
reasons set forth above in ¶ 8. Drew did not present any other grounds in support of her
request for a neutral magistrate. We therefore conclude that she has failed to demonstrate
that Judge Tucker could not be impartial in meting out a contempt punishment.
¶35 In conclusion, we clarify that our decision in Kauffman remains sound. In fact, its
mandate has now been incorporated into the statute. We further conclude, however, that due
process is not offended by allowing a district judge to preside over a contempt hearing under
the exception noted in § 3-1-518, MCA,--that is, where the contempt arose from the violation
of an order of the court issued after a hearing on the merits of the subject of the order. In
these situations, the district judge who conducted the hearing and issued the order should
18
retain the authority to punish violation of that order by contempt proceedings, as long as the
other due process protections set forth in the statute and enunciated by this Court and the
United States Supreme Court, are met and honored, and unless it is shown that the judge
could not be impartial in addressing the contempt.
19
CONCLUSION
¶36 For the foregoing reasons, Drew’s Petition for Writ of Certiorari is denied. We
therefore lift the stay previously entered in this cause.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
20
Justice W. William Leaphart dissenting.
¶37 I dissent.
¶38 The present version of § 3-1-518, MCA, provides that a judge investigating a
contempt charge and presiding over a hearing of a person whose contempt was not
committed in the immediate view and presence of the court, may not be the judge against
whom the contempt was allegedly committed unless the contempt arose from the violation
of an order of the court, in which case the judge who issued the order may punish the
contempt or compel compliance with the order “unless it is shown that the judge would not
be impartial in addressing the contempt.” Drew contends that when the judge declared that
she had no credibility, the caveat was satisfied–that is, there was a showing that the judge
would not be impartial in addressing the question of Drew’s alleged contempt. The Court,
however, agrees with Judge Tucker’s assertion that, if the Court were to adopt Drew’s
position, the provisions of the statute could never be implemented–that the judge issuing the
initial order could never punish for the contempt.
¶39 I disagree with the Court’s conclusion that a judge who has predetermined that an
alleged contemnor has no credibility can be impartial in addressing the issue of contempt.
The Court reasons that, in reality, a judge on the verge of finding a person in contempt has
already found the person not credible. The premise for this analysis is false. A judge on the
verge of finding a person in contempt has not necessarily predetermined that the person lacks
credibility. More likely than not, the judge has found that the tendered excuse is insufficient
to excuse the conduct in question. The insufficiency of the excuse is entirely different from
21
the credibility of the accused person. If the accused’s excuse is “I forgot,” the judge may
well believe that he or she in truth forgot but conclude that forgetfulness is not a valid
excuse. It is not uncommon for an accused to argue that he or she interpreted the judge’s
order differently than did the judge. Again, although the judge may believe the
interpretation was in good faith, the judge could conclude that the interpretation was not a
reasonable one. None of these common scenarios involve a predetermination that the
person, himself or herself, lacks credibility. The Court concludes that, if it were to hold that
a judge who has determined that the charged person lacks credibility is unable to be
impartial, “then virtually no judge who is understandably offended by a direct violation of
his or her orders would be allowed to address the contempt, and the provisions of § 3-1-518,
MCA, as amended, would be rendered meaningless.” As the above examples illustrate, this
is a gross exaggeration. A judge who finds that a tendered excuse is incredible may still be
in a position to be impartial. On the other hand, a judge who finds that the person is
incredible will not.
¶40 The Court’s conclusion that a judge who has predetermined that the accused lacks
credibility can still be impartial is, itself, incredible. Suppose that a juror on voir dire
examination admits that he is familiar with the plaintiff and knows that the plaintiff is not
a credible person. Would a court be justified in denying a challenge for cause on the basis
the juror could, despite his prejudging the plaintiff’s credibility, be impartial? Obviously
not. By law, a juror is subject to challenge for cause for “the existence of a state of mind in
the juror evincing enmity against or bias in favor of either party.” Section 25-7-223(7),
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MCA. I would hold a trial judge to the same standard of impartiality. If the judge has
already determined that the party in question lacks credibility, then that judge has evinced
a state of mind against that party and is not in a position to sit as an impartial jurist on the
question of contempt.
¶41 Where, as here, an accused contemnor has shown that the judge has pre-judged her
credibility, she has demonstrated that that judge has evinced an enmity towards her and
cannot be impartial in meting out a contempt punishment. In such cases, due process
requires that the neutral magistrate requirement be imposed.
/S/ W. WILLIAM LEAPHART
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