                                                                                              06/21/2016


                                          DA 15-0352
                                                                                          Case Number: DA 15-0352

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 152



DALE MICHAEL HANSON,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 12-916(B)
                       Honorable Robert B. Allison, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Larry Mansch, Montana Innocence Project, Missoula, Montana

                       Jeffrey T. Renz, Clinical Professor of Law, Alexander Blewett III School
                       of Law, University of Montana, Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                       Attorney General, Helena, Montana

                       Ed Corrigan, Flathead County Attorney, David Randall, Deputy County
                       Attorney, Kalispell, Montana


                                                   Submitted on Briefs: March 23, 2016
                                                              Decided: June 21, 2016

Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Dale Michael Hanson appeals from an order entered by the Eleventh Judicial

District Court, Flathead County, granting the State’s motion to dismiss his petition for

postconviction relief with prejudice as a sanction for his failure to appear at three noticed

depositions. We affirm.

¶2     A restatement of the dispositive issue on appeal is:

       Did the District Court abuse its discretion by dismissing Hanson’s petition
       for postconviction relief?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     This is a postconviction proceeding. However, the facts underlying Hanson’s

convictions are also at issue. Hanson and his neighbor, Emmy Gregg (Gregg) met and

began dating in 1990. Gregg and her son Aaron moved into Hanson’s home when Aaron

was four years old. Gregg and Aaron moved out in 1992, but the couple continued dating

until 1993. Aaron testified that while he, Hanson, and his mother lived together, they

would all three shower together, ostensibly to conserve hot water. Aaron testified that

sometimes only he and Hanson would shower together. On those occasions, Aaron

testified that Hanson would wash Aaron’s genital area and that he was asked to wash

Hanson’s in return, which he did. Also, Aaron testified that Hanson would tell Aaron to

perform oral sex on him, which Aaron did on several occasions.

¶4     After the couple broke up, Gregg became concerned about her son’s behavior.

Aaron had nightmares about Hanson, expressed anger toward him, wet his bed, locked

the door when he bathed, and hid when the phone rang or someone came to the door.



                                             2
Gregg asked Aaron several times about any improper contact with Hanson, but Aaron

denied it. Gregg contacted Detective Maxine Lamb (Lamb) of the Flathead County

Sheriff’s Department about her concerns. After speaking with Gregg, Lamb went to

Aaron’s school and interviewed him. Aaron described incidents involving Hanson that

Lamb believed constituted sexual abuse.

¶5    The State charged Hanson with sexual assault and deviate sexual conduct. On

March 9, 1995, a jury found Hanson guilty of sexual assault and deviate sexual conduct,

both felonies, in violation of §§ 45-5-502(1) and 45-5-505(1), MCA. On April 7, 1995,

Hanson filed a motion for a new trial. The District Court denied Hanson’s motion on

July 21, 1995. On July 24, 1995, the District Court sentenced Hanson to concurrent

terms of twenty years in the Montana State Prison for the offense of sexual assault and

ten years for the offense of deviate sexual conduct. Hanson appealed his convictions.

This Court affirmed in State v. Hanson, 236 Mont. 316, 940 P.2d 1166 (1997).

¶6    Acting pro se, Hanson first petitioned the District Court for postconviction relief

on June 30, 1998. The District Court denied his petition as insufficient in form. Hanson

appealed the District Court’s denial of his petition. This Court affirmed in State v.

Hanson, 1999 MT 226, 296 Mont. 82, 988 P.2d 299. Hanson petitioned for habeas

corpus in the United States District Court for the District of Montana, which was

dismissed as procedurally defaulted. Hanson appealed the dismissal. The Ninth Circuit

Court of Appeals affirmed in Hanson v. Mahoney, 338 P.3d 964 (9th Cir. 2003).

¶7    Represented by counsel, Hanson next petitioned for postconviction relief on

August 13, 2012. He asked for a “hearing for the purpose of producing newly discovered


                                           3
evidence in support of his claim for relief from [his] conviction.” Hanson’s newly

discovered evidence was that, before his trial, several potential witnesses contacted Lamb

and told her Gregg was lying. According to Hanson’s petition, Lamb told these witnesses

“to stay away from the courtroom and the case” and failed to tell Hanson’s attorney about

the witnesses. Although not newly discovered, Hanson’s petition also mentioned that a

contributor to Hanson’s pre-sentence investigation report commented he was concerned

Hanson did not commit the offenses and that it was possible the victim had been

“coached to provide false allegations.”        Additionally, the petition claimed several

voicemails left by Gregg should have been played for the jury because they indicated she

was very angry with Hanson for ending their relationship and contained threats to “get

even” with him.      Hanson accused Lamb of improper conduct and of withholding

information favorable to Hanson’s defense. Five affidavits were filed in support of

Hanson’s petition.

¶8     The State’s response to Hanson’s petition raised the one year statute of limitations

for filing a petition for postconviction relief alleging newly discovered evidence. The

State’s response argued that the information set forth by Hanson did not constitute newly

discovered evidence and argued that, because Lamb was deceased and had been for

several years, it could not specifically respond to the allegations against her.

¶9     The District Court authorized discovery and set a deadline of May 24, 2013, to

complete discovery. The State served Hanson with a notice of deposition scheduled for

May 17, 2013, to be taken at the Flathead County Attorney’s office. On May 9, 2013,

Hanson filed combined motions, in the alternative, requesting either a protective order, to


                                              4
quash the notice of deposition, or for a telephonic deposition. As grounds, Hanson stated

that an active warrant was issued for his arrest and complained that the State refused to

stipulate to either deposing Hanson telephonically or agreeing not to arrest him if he

appeared for his deposition. Hanson accused the State of setting Hanson’s deposition for

an improper purpose to “effect the arrest and confinement of Mr. Hanson.” In response,

the State asked that Hanson’s combined motions be denied because the State wished to

obtain information known only by Hanson, was unsure whether Hanson would testify if

the case proceeded to trial, and planned to videotape the deposition. The State pointed

out that Hanson’s arrest warrant was activated in September of 2009 and denied acting

improperly by stating “the State did not contrive a civil action to compel [Hanson’s]

appearance to effect his arrest.” Hanson failed to appear for his deposition scheduled for

May 17, 2013.

¶10   On May 31, 2013, the District Court denied Hanson’s combined motions. It stated

“by engaging the matter and entering into the sometimes shark-infested waters of the

litigation process, [Hanson] positioned himself in a manner making him subject to certain

appearance requirements, including but not limited to personal attendance at a scheduled

deposition.” On June 21, 2013, Hanson filed a motion for summary judgment. The State

asked the District Court, twice, to expand the time it had to file a response to Hanson’s

motion for summary judgment so that it could first depose Hanson. The District Court

ordered the State’s response be filed “no later than fifteen days after [Hanson’s]

deposition occurs.”   The State served Hanson with a second notice of deposition

scheduled for July 25, 2013. Hanson failed to appear.


                                            5
¶11    On August 9, 2013, the State filed a motion to compel Hanson’s deposition. On

August 15, 2013, the District Court granted the State’s motion and ordered Hanson to

“personally attend a deposition scheduled by the State and properly noticed.”          The

District Court’s order cautioned, “FAILURE TO PERSONALLY ATTEND THE

DEPOSITION MAY RESULT IN SANCTIONS AGAINST [HANSON], WHICH MAY

INCLUDE AN AWARD OF COSTS OR FEES TO THE STATE, DISMISSAL WITH

PREJUDICE OF THIS CAUSE OF ACTION, AND/OR OTHER RELIEF DEEMED

JUSTIFIED BY THE COURT.”             The State served Hanson with a third notice of

deposition scheduled for October 20, 2014. Hanson failed to appear.

¶12    On October 24, 2014, the State filed a motion to dismiss Hanson’s petition with

prejudice “due to his violation of the Rules of Civil Procedure governing discovery and

his violation of this Court’s Order compelling his deposition issued August 15, 2013.”

On April 3, 2015, the District Court granted the State’s motion to dismiss Hanson’s

petition as a sanction for his failure to comply with the discovery process, namely by

failing to appear at three noticed depositions. Hanson appeals.

                              STANDARD OF REVIEW

¶13    “We review a district court’s imposition of discovery sanctions for an abuse of

discretion. We have consistently deferred to a district court’s imposition of sanctions

because ‘the trial judge is in the best position to know . . . which parties callously

disregard the rights of their opponents and other litigants seeking their day in court. The

trial judge is also in the best position to determine which sanction is the most

appropriate.’” Xin Xu v. McLaughlin Inst. for Biomedical Sci., Inc., 2005 MT 209, ¶ 17,


                                            6
328 Mont. 232, 119 P.3d 100 (quoting Smart v. Molinario, 2004 MT 21, ¶ 8, 319 Mont.

335, 83 P.3d 1284).

                                       DISCUSSION

¶14 Did the District Court abuse its discretion by dismissing Hanson’s petition for
postconviction relief?

¶15    The Montana Rules of Civil Procedure provide for a party’s failure to make

discovery and sanctions. “The court where the action is pending may, on motion, order

sanctions if: a party . . . fails, after being served with proper notice, to appear for that

person’s deposition.” M. R. Civ. P. 37(d)(1)(A)(i). “Sanctions may include any of the

orders listed in Rule 37(b)(2)(A)(i)-(vi).” M. R. Civ. P. 37(d)(3). The listed sanctions

include “dismissing the action or proceeding in whole or in part.”          M. R. Civ. P.

37(b)(2)(A)(v).

¶16    “[S]ince 1981, it has been this Court’s position that dilatory abuse of discovery

must no longer be dealt with leniently and that transgressors of discovery abuses should

be punished rather than encouraged repeatedly to cooperate.” Smith v. Butte-Silver Bow

County, 276 Mont. 329, 332, 916 P.2d 91, 92-93 (1996) (citing Owen v. F. A. Buttrey

Co., 192 Mont. 274, 277, 627 P.2d 1233, 1235 (1981) (“[J]udicial indulgence in abuses

of the discovery process has been increasingly replaced by a tougher, less tolerant attitude

toward parties who frustrate, rather than facilitate, discovery.”)).

¶17    We use three criteria to review whether a sanction is an abuse of discretion.

Rephrased, the criteria are: 1) whether the consequences imposed by the sanctions relate

to the extent and nature of the actual discovery abuse; 2) whether the extent of the



                                              7
prejudice the discovery abuse caused the opposing party was considerable; and 3)

whether the court expressly warned the abusing party of the consequences. Xu, ¶ 26

(citing Butte-Silver Bow, 276 Mont. at 339-40, 916 P.2d at 97).

¶18   First, the consequences must relate to the extent of the abuse. Hanson’s petition

was dismissed with prejudice. This is a harsh, dispositive penalty. Hanson failed to

appear at three separately scheduled and properly noticed depositions. He did not appear

because he did not want to be arrested on an outstanding warrant issued in 2009 for

failure to keep his sex offender registration current, a separate felony. Before the first

deposition, Hanson filed combined motions to either avoid the personal appearance

requirement or assure that he would not be arrested if he attended his deposition. The

District Court denied his motions and reminded Hanson that he filed this lawsuit by

petitioning for postconviction relief and subjected himself to certain appearance

requirements, including personally appearing at a deposition. After Hanson failed to

attend his second deposition, the District Court ordered his appearance. Allowing a

litigant to ignore a court order to appear for a deposition because of an outstanding

warrant cannot be tolerated. We conclude the severity of the sanction related to the

extent and nature of the discovery abuse.

¶19   Second, the extent of the prejudice to the opposing party must be evaluated. The

District Court’s order dismissing Hanson’s petition noted:

      Throughout this proceeding the [State] has maintained and the Court has
      agreed that it needed to depose [Hanson] to ascertain when he knew or
      found out about certain evidentiary matters upon which he bases his
      petition for post-conviction relief. [The State] in its response to [Hanson’s]
      petition for post-conviction relief asserts that the petition is barred by the


                                            8
       running of the statute of limitations set forth in Section 46-21-102(2),
       MCA . . . .

Section 46-21-102(2), MCA, requires a petition for postconviction relief based on newly

discovered evidence be filed within one year of the date on which the petitioner

discovers, or reasonably should have discovered, its existence. Hanson’s memorandum

in support of his petition states that “Hanson discovered the fact of suppression of

witnesses and the details of their testimony in late August 2011.” The State argued that

Hanson either discovered, or should have discovered this evidence earlier and therefore,

hoped to establish facts supporting its position through deposing Hanson. Hanson’s

refusal to be deposed prevented the State from formulating a defense and this case from

progressing past the discovery phase. The State expended considerable time, money, and

effort in its attempt to depose Hanson by scheduling and serving notice on three separate

occasions. Further, as a result of Hanson’s failure to appear, the State filed motions to

compel Hanson’s deposition and to expand its briefing deadlines in order to respond to

Hanson’s motion for summary judgment. The State was considerably prejudiced by

Hanson’s failure to attend his depositions.

¶20    Third, in its order compelling his attendance, Hanson was expressly warned that

his failure to attend the third deposition could result in the District Court dismissing his

petition with prejudice.




                                              9
                                     CONCLUSION

¶21    We conclude that each of the criteria outlined in Butte-Silver Bow, and relied on in

Xu, were met in this case. The District Court did not abuse its discretion by dismissing

Hanson’s petition for postconviction relief.

¶22    Affirmed.

                                                    /S/ LAURIE McKINNON


We Concur:


/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




                                               10
