                                                                                            April 21 2015


                                          DA 14-0087

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 108



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL PATRICK DUNSMORE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC-12-358, DC-12-359
                        Honorable Robert B Allison, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Gregory Hood, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

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

                        Ed Corrigan, Flathead County Attorney, Allison E. Howard, Deputy
                        County Attorney, Kalispell, Montana



                                                    Submitted on Briefs: January 21, 2015
                                                               Decided: April 21, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Michael Dunsmore appeals from the judgment of the Eleventh Judicial District

Court, Flathead County, that sentenced him to five years in the Montana State Prison

(MSP) for failure to register as a sex offender, and a consecutive sentence of ten years in

MSP with five years suspended for felony theft.

¶2     The issue on appeal is whether the District Court Judge was disqualified from

hearing Dunsmore’s case due to personal knowledge of facts in dispute in the sentencing

proceeding. We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     Dunsmore was charged with failure to register as a sex offender and theft, both

felonies. Dunsmore entered into a plea agreement with the State that recommended a

ten-year sentence to the Department of Corrections (DOC) with all ten years suspended.

The presentence investigation (PSI) concluded Dunsmore was not fit for community

supervision, however, and accordingly recommended a net sentence of ten years in MSP

with five years suspended.

¶4     Judge Robert Allison presided over the case. Prior to becoming a district court

judge, Allison represented Dunsmore’s daughter in a youth in need of care case in which

Dunsmore was accused of incest with the daughter Allison represented. At the same time

that he was presiding over Dunsmore’s criminal charges, Judge Allison was also

presiding over a family law matter between Dunsmore and Dunsmore’s ex-wife, Jody

Radabah.




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¶5    Judge Allison conducted sentencing a little over a year after the charges were

filed. At sentencing, three witnesses testified on behalf of Dunsmore. All three indicated

that Dunsmore had made significant improvement in addressing the problems underlying

his crimes over the 13 months between the time Dunsmore was charged with the two

felonies and the time of the sentencing hearing.       Only one witness gave adverse

testimony, Dunsmore’s ex-wife, Radabah. Radabah testified that Dunsmore attempted to

make plans with their son to go hunting while the two felonies were pending and

Dunsmore was prohibited from possessing a firearm. Radabah further testified that

Dunsmore had another person pawn one of his rifles and had their son retrieve the rifle

from the pawn shop because Dunsmore was not permitted to possess a firearm. Radabah

also expressed concerns about Dunsmore’s parenting.

¶6    At the conclusion of testimony, the State recommended a net sentence of ten years

commitment to the DOC with all ten years suspended and asked that Dunsmore be

designated a level 1 sex offender as recommended in his psychosexual evaluation.

Dunsmore’s counsel emphasized the significant strides Dunsmore had made in

addressing his personal problems, and pointed out that he was holding a job and paying

child support. Counsel further pointed out that Dunsmore’s underlying sexual offense

was twenty years old, Dunsmore had not been charged with any sexual offenses since,

and Dunsmore was designated a level 1 offender (meaning he was considered the lowest

risk for re-offense). Addressing Radabah’s accusation that Dunsmore possessed guns,

counsel argued that Dunsmore could legally possess guns but that there was some




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confusion on the matter between state and federal law.1 Judge Allison did not give

Dunsmore the opportunity to make a statement on his own behalf, as required by

§ 46-18-115(3), MCA, and Montana Code of Judicial Conduct Rule 2.6.

¶7     At the conclusion of the parties’ arguments, Judge Allison explained the factors he

was taking into consideration for purposes of determining the appropriate sentence.

Judge Allison first expressed strong concern about Dunsmore possessing guns after

pleading guilty to the two felony charges in this case. Dunsmore attempted to speak up at

that point, but Judge Allison prevented him from doing so. Judge Allison explained that

he believed the gun possession showed that Dunsmore acted as though the law applied to

him only when it suited him. Judge Allison further noted that Dunsmore had been out of

prison for less than a year when he committed the two felonies at issue, and that he had

six prior felony convictions. Based on those facts, Judge Allison sentenced Dunsmore to

a net sentence of fifteen years in MSP, with five years suspended.

¶8     Between the time the District Court made its oral pronouncement of judgment and

the time it entered its written judgment and sentence, Dunsmore filed a petition for a writ

of habeas corpus in this Court. In his petition, Dunsmore made several claims, including

that his attorney was ineffective because she failed to move to have Judge Allison recuse

himself. Dunsmore revealed that, prior to sentencing, he told his attorney about Judge

Allison’s prior representation of Dunsmore’s daughter in the abuse and neglect case (he


1
  Presumably, counsel was referring to Van Der Hule v. Holder, 759 F.3d 1043 (9th Cir. 2014),
which was then pending in the Ninth Circuit after the Montana Federal District Court held that
convicted felons in Montana could not possess firearms under federal law, even though permitted
to do so under state law.

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also claimed Judge Allison was friends with Radabah’s new husband who was trying to

adopt Dunsmore’s and Radabah’s chidren), but his attorney did not move for recusal. We

dismissed the petition, holding that Dunsmore’s claims were better addressed on direct

appeal or in a postconviction relief proceeding. Order, Dunsmore v. Kirkegard, (Mont.

Jan. 14, 2014) (OP 13-0844).

¶9     Dunsmore appeals the District Court’s judgment and sentence.

                               STANDARD OF REVIEW

¶10    It appears we have never determined the appropriate standard of review for the

question of whether a judge should have recused2 himself. In general, interpretation of

laws   such   as   constitutional   and   statutory   provisions,   are   matters of   law

we review de novo. Reichert v. State, 2012 MT 111, ¶ 19, 365 Mont. 92, 278 P.3d 455.

Since a judge’s disqualification decision is directed by the Montana Code of Judicial

Conduct, the decision relies on an accurate interpretation of the Code’s provisions.

Moreover, as other courts have recognized, an appellate court’s inquiry into

disqualification requires an objective examination of the circumstances surrounding a

request for recusal. See, e.g., Powell v. Anderson, 660 N.W.2d 107, 116 (Minn. 2003)

(adopting a de novo standard of review and noting that the objective inquiry required in

disqualification claims “displaces any deference that might otherwise be paid to the

challenged judge’s decision to not recuse”). For those reasons, we will review a judge’s




2
   The terms “recuse” and “disqualify” are used interchangeably throughout case law on the
issue.

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disqualification decision de novo, determining whether the lower court’s decision not to

recuse was correct under the Montana Code of Judicial Conduct.

                                      DISCUSSION

¶11    Dunsmore argues that Judge Allison should have recused himself, and that his

failure to do so violated Dunsmore’s due process rights. It is axiomatic that a fair trial in

a fair tribunal is a basic requirement of due process. Caperton v. A. T. Massey Coal Co.,

556 U.S. 868, 876, 129 S. Ct. 2252, 2259 (2009). The requirement of a fair trial in a fair

tribunal includes the requirement that any judge who is biased or partial with regard to a

particular matter or party be disqualified from hearing the case. As the U.S. Supreme

Court has recognized, however, “most matters relating to judicial disqualification [do]

not rise to a constitutional level.” FTC v. Cement Institute, 333 U.S. 683, 702, 68 S. Ct.

793, 804 (1948). Most states, by adopting the ABA’s Model Code of Judicial Conduct,

have instituted more rigorous standards for judicial disqualification than those required

by due process. Caperton, 556 U.S. at 888–89, 129 S. Ct. at 2266–67.

¶12    Montana followed this path when it adopted the ABA Model Code as the 2008

Montana Code of Judicial Conduct. Hence, disqualification questions in the Montana

state courts are governed by the Montana Code of Judicial Conduct. Reichert v. State,

2012 MT 111, ¶ 31, 365 Mont. 92, 278 P.3d 455. Since the Montana Code of Judicial

Conduct provides more protection than due process requires, most disputes over

disqualification will be resolved without resort to the Constitution.        Reichert, ¶ 31

(quoting Caperton, 556 U.S. at 890, 129 S. Ct. at 2267).




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¶13    Rule 2.12 of the Montana Code of Judicial Conduct states,

       A judge shall disqualify himself or herself in any proceeding in which the
       judge’s impartiality might reasonably be questioned, including but not
       limited to the following circumstances:
       (1)    The judge has a personal bias or prejudice concerning a party . . . or
       personal knowledge of facts that are in dispute in the proceeding.

M. C. Jud. Cond., Rule 2.12(A)(1). When the judge’s personal knowledge stems from

prior representation as an attorney, Rule 2.12(A)(1) operates in conjunction with Rule

2.12(A)(5)(a), which requires recusal when the judge “served as a lawyer in the matter in

controversy.”    See Bullman v. State, 2014 MT 78, ¶¶ 16–17, 374 Mont. 323,

321 P.3d 121 (citing Rules 2.12(A)(1) and (A)(5)(a) and holding that “the plain language

of Rule 2.12 clearly requires recusal when the judge has personal knowledge of disputed

facts stemming from his previous representation of a client in a separate and related

matter”).

¶14    Dunsmore argues that Judge Allison’s prior representation of Dunsmore’s

daughter in an abuse and neglect proceeding in which Dunsmore was accused of incest

gave Judge Allison personal knowledge of facts in dispute in Dunsmore’s case. More

particularly, Dunsmore argues that allegations of sexual impropriety with his daughter

were information regarding his character, and questions regarding his character were

facts in dispute in his sentencing hearing.      Dunsmore also argues that Radabah’s

testimony about Dunsmore’s parenting put his parenting at issue in the sentencing

hearing, and Judge Allison’s prior representation of Dunsmore’s daughter gave him

personal knowledge of facts regarding Dunsmore’s parenting.




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¶15    The State counters that Dunsmore and his attorney were aware of Judge Allison’s

representation of Dunsmore’s daughter in the abuse and neglect case but chose not to

move for recusal. The State argues that Dunsmore should be barred from raising the

issue on appeal when he had the opportunity to raise it below and made what it

characterizes as a tactical decision not to move for recusal.

¶16    The State’s argument has merit. We adopted the ABA Model Code of Judicial

Conduct in 2008 in part because it would allow us to consider a well-developed body of

case law from other jurisdictions. Order, In the Matter of the 2008 Montana Code of

Judicial Conduct, (Dec. 12, 2008) (Mont. AF 08-0203). The language of Rule 2.12 is

silent on the issue of when a claim for disqualification must be raised. However, a

number of jurisdictions interpret the provision in the Model Code of Judicial Conduct at

issue here3 as requiring a party to bring a motion to recuse within a reasonable time after

the party acquires knowledge of a potential basis for recusal. For example, the majority

of federal appellate courts, including the First, Second, Third, Fourth, Fifth, Eighth,

Ninth, Tenth, Eleventh, and Federal Circuits have found that timeliness is a requirement

when recusal is sought under the federal analogue of Montana’s Rule 2.12, which is

codified in statute at 28 U.S.C. § 455. See Kolon Indus. v. E.I. du Pont de Nemours &

Co., 846 F. Supp. 2d 515, 522 (E.D. Va. 2012) (collecting cases). State courts have

similarly held that a recusal must be sought within a reasonable time of learning of facts

that would form the basis of a motion to disqualify.            See, e.g., State v. Jacobson,


3
  Montana Code of Judicial Conduct Rule 2.12(A) is a verbatim adoption of ABA Model Code
of Judicial Conduct, Rule 2.11(A).

                                              8
747 N.W.2d 481, 483 (N.D. 2008) (“[W]hen a party has knowledge of information

relevant to disqualification and waits until the final decision of the judge to object to the

judge’s involvement in the case, the objection is untimely and results in a waiver.”);

Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009) (“The failure to seek recusal in a

timely manner may result in the waiver of any complaint concerning the judge’s

impartiality.”); Tierney v. Four H Land Co. Ltd. P’ship, 798 N.W.2d 586, 592 (Neb.

2011) (“A party is said to have waived his or her right to obtain a judge’s disqualification

when the alleged basis for the disqualification has been known to the party for some time,

but the objection is raised well after the judge has participated in the proceedings.”).

¶17    Courts have long recognized the timeliness requirement in the particular context of

sentencing. “A defendant cannot take his chances with a judge and then, if he thinks that

the sentence is too severe, secure a disqualification and a hearing before another judge.”

Taylor v. United States, 179 F.2d 640, 642 (9th Cir. 1950); accord United States v.

Branco, 798 F.2d 1302, 1304 (9th Cir. 1986) (defendant could not wait “to file his

motion to disqualify until after sentencing had been completed”); see also In re United

Shoe Machinery Corp., 276 F.2d 77, 79 (1st Cir. 1960) (“One of the reasons for requiring

promptness in filing [recusal motions] is that a party knowing of a ground for requesting

disqualification, cannot be permitted to wait and decide whether he likes the treatment

that he receives.”). Moreover, there are persuasive reasons for adopting a timeliness

requirement. The timeliness requirement prevents the concealment of an ethical issue in

order to create a strategic advantage and prevents the waste of judicial resources and

prejudice to the non-movants. See In re Owens Corning, 305 B.R. 175, 194, 2004 U.S.


                                              9
Dist. LEXIS 6795 (D. Del. 2004) (discussing purpose of the timeliness rule and listing

cases).

¶18       We find this reasoning persuasive and, hence, adopt the timeliness requirement. A

claim for disqualification of a judge that can be waived by the parties under Rule 2.12(C)

is considered waived if a party does not raise the issue within a reasonable amount of

time after the party acquires knowledge of a potential basis for disqualification. The

Montana Code of Judicial Conduct, however, does not allow the parties to waive

disqualification for bias or prejudice, and thus the timeliness requirement does not apply

when a disqualification claim is based on bias or prejudice. See M. C. Jud. Cond. 2.12(C)

(explaining that disqualification may be waived by the parties unless disqualification is

for bias or prejudice).

¶19       We note that Dunsmore argues Judge Allison’s failure to offer Dunsmore the

opportunity to speak at sentencing, combined with the fact that the sentence imposed was

greater than both the plea agreement and PSI recommended, “could be construed as

evidence of bias.” We do not interpret this—nor does it appear to be intended—as a

claim of actual bias or prejudice. Therefore, Dunsmore’s disqualification claim does not

fall within the bias or prejudice exception to the timeliness requirement. Dunsmore

argues only that Judge Allison was required to recuse himself because of his knowledge

of facts in controversy acquired from prior representation of a client in a separate but

related matter. Such a claim is subject to the timeliness requirement. Dunsmore’s

counsel made an apparent tactical decision not to seek Judge Allison’s disqualification.

Thus, Dunsmore waived his claim for disqualification of Judge Allison.


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                                    CONCLUSION

¶20    A claim for disqualification of a judge must be brought within a reasonable time

after the moving party learns the facts forming the basis for a claim that the judge should

be disqualified.   Dunsmore’s counsel knew of the factual basis for Dunsmore’s

disqualification claim before sentencing, but did not raise disqualification.        Thus,

Dunsmore’s claim was waived, and we cannot grant him relief on the basis that Judge

Allison should have been disqualified. Affirmed.



                                                 /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER




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