IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 95-498
THOMAS M. MALEE,
Applicant,
O R D E R
v.
DISTRICT COURT OF THE SECOND
JUDICIAL DISTRICT OF THE STATE
OF MONTANA, SILVER BOW COUNTY,
and the HONORABLE JAMES E. PURCELL,
Judge thereof,
On December 20, 1995, this Court issued its opinion denying
Applicant Thomas M. Malee's Application for Writ of Review. On
December 26, 1995, Malee filed a Petition for Rehearing of his
Application for Writ of Review alleging that this Court overlooked
a material fact in this matter and that the Court's decision also
violated the due process clause of the Montana and United States
Constitutions. On January 3, 1996, Respondent filed its objections
to the Petition for Rehearing arguing that Malee's Petition for
Rehearing failed to explain how this Court's decision allegedly
violated "due process." On January 10, 1996, Malee filed a
document entitled "Additional Authority" in support of his
argument.
After review of this Court's December 20, 1995 opinion and
having considered Malee's Petition for Rehearing, Respondent's
Objections to Petition for Rehearing, and Malee's Additional
Authority,
IT IS ORDERED that this Court's decision issued December 20,
1995, in the above-entitled cause is hereby withdrawn in full and
replaced in full with the following Opinion of this Court:
No. 95-498
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
THOMAS M. MALEE,
Applicant,
DISTRICT COURT for the Second Judicial
District of the State of Montana,
and the HONORABLE JAMES E. PURCELL,
Judge thereof,
Respondent
ORIGINAL PROCEEDING
COUNSEL OF RECORD:
For Applicant:
Thomas M. Malee, Attorney at Law, Pro Se,
Billings, Montana
For Respondent:
John Maynard, Attorney at Law, Helena, Montana
Submitted: December 1, 1995
Decided: January 30, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
For the third time, this Court considers Thomas M. Malee's
application for writ of review of the respondent District Court's
contempt ruling. This Court recaptioned and returned Malee's first
application for writ of review pursuant to Rule 17(c), M.R.App.P.,
because Malee did not name the district judge and the judicial
district from which the ruling was issued. Upon refiling, we
dismissed Malee's application pursuant to Rule 17(a), M.R.App.P.,
because Malee did not submit the application for writ of review in
the name of the real party in interest, i.e., himself. Although we
could dismiss Malee's latest application pursuant to Rule 17(c),
M.R.App.P., because Malee fails to name the District Judge in the
title of his application, we prefer to curtail these proceedings by
deciding the merits of Malee's application.
The District Court held Thomas M. Malee in contempt of court
for referring to opposing counsel with "an insulting and obnoxious
comment" in a brief filed with the court. In its Order finding
Malee in contempt, the court stated:
The Court feels compelled to discuss an insulting
and obnoxious comment made by Plaintiff's counsel in his
brief in which he refers to Defense counsel as being a
"horses [sic] rear-end." The Court is outraged by this
indignant and unconscionable accusation. The accusation
not only offends the dignity of the Court, but it also
offends the judicial process. The comment was
unnecessary, distasteful and clearly unprofessional.
The comment, however, is indicative of Plaintiff's
counsel's brazen conduct during the course of this
litigation. As indicated earlier, Mr. Malee has taunted,
insulted and harassed opposing counsel and this Court to
the point of exasperation. He has made a mockery of this
Court and the court system.
2
Mr. Malee's latest antic provides sufficient
justification to invoke the Court's contempt power. In
short, the nonsense must stop. Accordingly, Mr. Malee is
in contempt of Court for the lewd comment. . .
Malee's application for writ of review raises two questions:
Is a contemptuous brief a form of indirect contempt triggering the
procedures of § 3-1-512, MCA; and, is there a right of allocution
in cases of direct contempt?
1 . IS a contemptuous brief a form of indirect contempt
triggering the procedures of § 3-1-512, MCA?
There are two purposes of a contempt order -- to vindicate the
dignity of the court's authority and to persuade the contemnor to
do what the law requires. Goodover v. Lindey's, Inc. (1993), 257
Mont. 38, 41, 847 P.2d 699, 700. In reviewing contempt
proceedings, we determine whether substantial evidence supports the
judgment of contempt, and whether the district court had
jurisdiction to issue the order. Marks v. First Judicial District
Court (1989), 239 Mont. 428, 430, 781 P.2d 249, 250; State ex rel.
Foss v. District Court (1985), 216 Mont. 327, 331, 701 P.2d 342,
345; Matter of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033,
1039.
When contempt is not committed in the immediate view and
presence of the court or judge in chambers, the contempt is
indirect or constructive contempt. Section 3-1-512, MCA. Indirect
contempt is often a matter of a party not following a court's
order. In re Marriage of Prescott (1993), 259 Mont. 293, 296, 856
P.2d 229, 231; Marks, 781 P.2d at 250; Valley Unit Corp. v. City of
Bozeman (1988), 232 Mont. 52, 754 P.2d 822; Gravelev, 614 P.2d at
3
1039; see 4 WILLIAM BLACKSTONE, COMMENTARIES *283-"285. This Court has
consistently held that the procedures found in § 3-l-512, MCA, must
be followed in cases of indirect contempt. Valley Unit Core., 754
P.2d 822; Foss, 701 P.2d 342; Milanovich v. Milanovich (1982), 201
Mont. 332, 655 P.2d 963; Gravelev, 614 P.2d 1033; State ex rel.
Kidder v. District Court (1970), 155 Mont. 442, 472 P.2d 1008.
Section 3-1-512, MCA, states:
Procedure -- contempt not in presence of the court. When
the contempt is not committed in the immediate view and
presence of the court or judge at chambers, an affidavit
of the facts constituting the contempt or a statement of
the facts by the referees or arbitrators or other
judicial officer shall be presented to the court or
judge.
Additionally, constructive contempt requires the following due
process requirements:
That one charged with contempt of court be advised of the
charges against him, have 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.
Prescott, 856 P.2d at 232 (citing Marks, 781 P.2d at 252).
In the instant case, Malee submitted a brief containing a
contemptuous comment about opposing counsel to the District Judge;
no accusatory affidavit was filed nor was there a hearing on the
matter. If Malee's contempt were indirect, we must set aside the
order of contempt because the District Court did not follow the
affidavit or statement of facts procedure set forth in § 3-l-512,
MCA, and, thus, lacked jurisdiction to issue the contempt order.
Accordingly, the question for this Court is whether the comments in
Malee's brief constitute indirect or direct contempt
4
This Court has held that the filing of contemptuous pleadings
is a form of indirect contempt. Porter v. First Judicial District
Court (1950), 123 Mont. 447, 453-54, 215 P.2d 279, 283. In Kidder,
and previous cases, we construed direct contempt as contemptuous
acts occurring after the trial had commenced, either while the
trial was in progress or during recess. Kidder, 472 P.2d at 1012.
On the other hand, we held that all contemptuous acts committed
when the court is not sitting were indirect or constructive
contempt. Kidder, 472 P.2d at 1012. To the extent that these
cases, Porter, Kidder, and State ex rel. Stagg v. District Court
(1926), 76 Mont. 495, 248 P. 213, hold or suggest that pleadings
and briefs presented to the court, while it is not sitting, may
only constitute indirect contempt, they are overruled. Rather, we
hold that contemptuous pleadings and briefs presented to the court
are direct contempt in that they are "in the immediate view and
presence of the court or judge at chambers." Section 3-l-511, MCA.
This position reflects the rationale that no extrinsic
evidence, such as testimony of third parties or affidavits, need be
introduced to prove direct contempt. The Ninth Circuit
distinguishes direct from indirect contempt on the bases that:
"Indirect contempt is contumacious behavior occurring beyond the
eye or hearing of the court and for knowledge of which the court
must depend upon the testimony of third parties or the confession
of the contemnor." United States v. Marshall (9th Cir. 1971), 451
F.2d 372, 373. In a case of direct contempt, "the pertinent facts
are not disclosed by the presiding judge through the medium of
5
witnesses, but are such as are observed by the judge himself."
State ex rel. Rankin v. District Court (1920), 58 Mont. 276, 291,
191 P. 772, 775. Contemptuous pleadings or briefs are before the
court and the court personally observes the elements of the
offense. Thus, there is no need for extrinsic evidence to prove
the elements of what is before the court. We agree with the
Seventh Circuit in its determination that "although the
contemptuous matter was in a pleading and not in open court, no
authority appears to limit the judge's sanctioning authority to
what he hears or sees in person, rather than through a pleading.
Contemptuous tactics and arguments can be as easily made on paper
as in open court." Kunik v. Racine County, Wis. (7th Cir. 1991),
946 F.2d 1574, 1583.
In so holding, we honor a 109 year old precedent of this Court
in condemning attorneys who, in their briefs, malign the dignity of
the bench or the legal profession. In 1887, this Court denounced
such behavior:
The brief of the appellant contains language attempting
to cast reproach upon the proceedings of the court below,
and seeking to make it the object of contemptuous wit and
ridicule. Argument is the principal purpose of the
brief, and this kind of wit and ridicule is not argument.
The use of slang phrases and ridiculous language .
should have no place in a brief. NO character of persons
can have a deeper interest in preserving the dignity of
the bench, or maintaining the courtesies of our honorable
profession, than the members of the bar, and they should
act accordingly. . . The language of the brief in this
case is reprehensible, as being in violation of the
conduct and courtesy due from the bar to the bench, and
will not be tolerated.
Brownell v. McCormick (1887), 7 Mont. 12, 18, 14 P. 651, 653.
6
In the instant case, we hold that since Malee's brief was
filed with the court and personally observed by the judge, it
constitutes direct contempt. The court had no need of testimony
from third parties, an affidavit of the facts, nor a confession of
the contemnor, to gain knowledge of the offense. However, even
though we have found Malee's brief to be direct contempt, a
question remains as to whether Malee was deprived of the right of
allocution, that is, an opportunity to explain or excuse himself.
2. Is there a right of allocution in cases of direct
contempt?
Direct contempt may be summarily punished seemingly without
any due process. Under § 3-l-511, MCA, there is no mention of an
accused contemnor's opportunity to explain or excuse himself, in
other words, no right of allocution. Section 3-1-511, MCA,
provides:
Procedure -- contempt committed in the presence of the
court. When a contempt is committed in the immediate
view and presence of the court or judge at chambers, it
may be punished summarily, for which an order must be
made reciting the facts as occurring in such immediate
view and presence and adjudging that the person proceeded
against is thereby guilty of a contempt and that he be
punished as therein prescribed.
Many of our decisions on contempt strongly suggest that if a case
involves indirect, constructive contempt "rather than direct
contempt, some due process is required." Marks, 781 P.2d at 252
(emphasis added); see also Prescott, 856 P.2d at 232; Lilienthal v.
District Court (1982), 200 Mont. 236, 242, 650 P.2d 779, 782.
These holdings in combination with § 3-l-511, MCA, authorizing
summary punishment for direct contempt, make an argument that,
7
although some due process is required for indirect contempt, no due
process is required for direct contempt.
However, we have held that in cases of direct contempt, "the
contemnor must be granted an opportunity to explain or excuse
himself. Such opportunity allows the individual to potentially
purge himself or show no contempt was intended." State ex rel.
Smith v. District Court (1984), 210 Mont. 344, 347, 677 P.2d 589,
591 (citing Rankin, 191 P. at 776). In Smith, the direct contempt
consisted of Smith's refusal to sit down after the court ordered
him to do so. Smith, 677 P.2d at 591. This Court held that Smith
had been given an opportunity to explain or excuse himself:
Judge McCarvel near the end of the hearing listened to
the attorney's apology and explanation as to why he had
remained on his feet. The opportunity to be heard need
not arise in a formal hearing, separate and distinct from
the proceeding in which the contempt arose. All that is
required is the contemnor be made aware of his offensive
conduct and allowed an opportunity to speak on his
behalf. Mr. Smith was provided such opportunity and this
Court will not reverse the District Court's decision to
proceed with its order of contempt.
Smith, 677 P.2d at 591. Although Smith has not been relied on
until now, we believe that I
Smith establishes the correct rule. n
holding that an opportunity to be heard, or right of allocution,
should be afforded the accused contemnor in a summary contempt
proceeding, we concur with the recommendations of United States
Supreme Court and the American Bar Association Standards for
Criminal Justice.
The United States Supreme Court has noted "reasonable notice
of a charge and an opportunity to be heard in defense before
punishment [for contempt] is imposed are 'basic in our system of
8
jurisprudence."' Groppi v. Leslie (1971), 404 U.S. 496, 502, 92
S.Ct. 582, 30 L.Ed.2d 632 (contempt of legislature)(citing In re
Oliver (1948), 333 U.S. 257); -
see also Taylor v. Hayes (1974), 418
-
U.S. 488, 497-98, 94 S.Ct. 2697, 41 L.Ed.2d 897 (contempt by an
attorney in a criminal trial). The United States Supreme Court
endorses the American Bar Association's recommendations that:
Although there is authority that in-court contempts can
be punished without notice of charges or an opportunity
to be heard, Ex Parte Terry, 128 U.S. 289 (1888), such a
procedure has little to commend it, is inconsistent with
the basic notions of fairness, and is likely to bring
disrespect upon the court. Accordingly, notice and at
least a brief opportunity to be heard should be afforded
as a matter of course. Nothing in this standard,
however, implies that a plenary trial of contempt charges
is required. [Now found in American Bar Association
Standards for Criminal Justice (1986 Supp.) 6-4.4.1
Taylor, 418 U.S. at 499 n.8. We adopt this recommendation.
In the instant case, the District Court erred in not affording
Malee an opportunity for allocution prior to imposing a penalty.
The argument for a right of allocution is particularly strong
where, as here, the contempt is contained in a brief and the
contemnor, prior to receiving the court's written order, has no
notice that the court views the brief to be contemptuous. Before
being sentenced for contempt, the contemnor should be afforded the
opportunity to explain or to excuse his written filing. In a
similar case, where the Supreme Court of Wisconsin held that the
contemnor had been wrongfully denied an opportunity for allocution
in a summary contempt proceeding, the court vacated the contempt
penalty and remanded the case to accord the contemnor his right of
allocution. Currie v. Schwalbach (Wis. 1987), 407 N.W.2d 862, 875.
9
On remand, the original judge had continuing jurisdiction and the
authority, after the contemnor's allocution, to vacate the original
finding of contempt, to impose a different sanction, or to again
impose the sanction of contempt. Currie, 407 N.W.2d at 875. We
adopt the Wisconsin approach in Currie. Thus, we vacate the
contempt sentence and remand to give Malee an opportunity for
allocution after which the District Court may either vacate the
contempt, uphold the contempt and impose a different sentence, or
reinstate the same sentence. We make it clear that "the district
court need not hold a full-blown trial," rather, Malee "should be
allowed a reasonable opportunity to defend or explain his actions
or present arguments in mitigation." United States v. Lumumba (2d
Cir. 1984), 741 F.2d 12, 17, cert. denied, 479 U.S. 855 (1986).
The sentence is vacated and the matter is remanded for further
proceedings consistent with this opinion.
January 30, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following ,named:
Thomas M. Malee
Attorney at Law
1109 N. 22nd St., Ste.’ 103A
Billings, MT 59101
John Maynard
Attorney at Law
P.O. Box 1697
Helena, MT 59624
Hon. James Purcell
District Judge
Butte-Silver Bow County Courthouse
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: &
Deputy u