December 23 2009
No. OP 09-0610
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 439
______________
THE OFFICE OF THE STATE PUBLIC DEFENDER, )
)
Petitioner, )
) OPINION
v. ) and
) ORDER
MIKE McMEEKIN, MISSOULA COUNTY SHERIFF; )
GERALD GREGO; MISSOULA COUNTY UNDERSHERIFF; )
MISSOULA COUNTY DETENTION FACILITY CAPTAIN )
SUSAN HINTZ; MISSOULA COUNTY DETENTION )
FACILITY JUVENILE UNIT MANAGER GARY EVANS, )
)
Respondents. )
_____________
¶1 The Office of the State Public Defender (OPD) asks us to issue a writ of mandamus
requiring the Respondents to vacate a Missoula County Detention Facility (MCDF) policy
that addresses visitation at MCDF during H1N1 flu season. OPD claims the policy is
currently preventing OPD attorneys from consulting in private with their clients regarding
their cases. The Missoula County Attorney Office’s has filed a response to the petition for
writ of mandamus on behalf of the Respondents. It argues that OPD has not established the
necessary prerequisites for issuance of the writ and, therefore, no writ should issue.
¶2 A writ of mandamus may issue to compel the performance of an act that the law
specially enjoins as a duty resulting from an office, trust, or station. It must issue in all cases
in which there is no plain, speedy, and adequate remedy in the ordinary course of law.
Section 27-2-102, MCA.
¶3 It is undisputed that pretrial detainees have a constitutional right of access to the
courts. Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 1495 (1977). Further, the Ninth
Circuit Court of Appeals has held that a prisoner’s right of access to the courts includes
contact visitation with his counsel, which may not be arbitrarily abridged. See Ching v.
Lewis, 895 F.2d 608, 610 (9th Cir. 1989).
¶4 The MCDF H1N1 policy suspends contact visits for the duration of flu season.
Attorneys are allowed to visit their clients in non-contact visiting rooms, with more than one
attorney-client pair in a visiting room at a time only if no one objects. Respondents have
attached to their brief a copy of the document setting forth the policy. That document states
that the audio portion of the video monitoring system in the non-contact visiting rooms used
by attorneys and their clients has been turned off, and also acknowledges that exceptions
may be made to the policy.
¶5 OPD states this policy is depriving its clients of their fundamental right to the
assistance of counsel. The petition is supported by an affidavit of Edmund Sheehy, Regional
Deputy Public Defender in Region 2. The Sheehy affidavit confirms that the MCDF policy
prohibits contact visits in the jail between attorneys and their clients; that conversations may
be overheard by others present in the non-contact visitation area; and that some OPD clients
in the jail have refused to participate in non-contact visits with their attorneys because of
privacy concerns. MCDF points out that OPD has a plain, speedy and adequate remedy in
that it may apply to the Fourth Judicial District Court to approve contact visits in specific
cases. In one instance the District Court entered an order requiring a client to be transported
to his attorney’s office for a 3-hour contact visit and MCDF complied with the order. At the
same time, the representative from the OPD who met with the Judges of the Fourth Judicial
District about the contact visitation policy in November was told to take the issue up with the
County Commissioners.
¶6 It is clear that jail staff members and inmates come and go from the facility on a daily
basis. The MDCF takes reasonable precautions to reduce the risk that disease will spread
from these interactions, and those same precautions can be implemented to allow contact
visits with attorneys. The MDCF has not presented any evidence from medical or public
health professionals that justifies application of this policy to attorneys representing pretrial
detainees and the concomitant interference with attorney-client communications.
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¶7 We conclude OPD has established that MCDF has adopted a policy that precludes
pretrial detainees from exercising their right of access to the courts through contact visits
with counsel. MCDF detainees lack a plain, speedy and adequate remedy to protect that
right. Therefore, we conclude OPD is entitled to a writ of mandamus.
THEREFORE,
¶8 IT IS ORDERED that MCDF shall immediately allow attorneys representing pretrial
detainees at MCDF to conduct private, confidential contact visits with their clients. MCDF
may impose reasonable public health-related precautions such as masking and hand
sanitizing to reduce the risk of infection.
The Clerk is directed to provide copies of this Order to all counsel of record.
DATED this 23rd day of December, 2009.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
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