                                        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


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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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