                                                     No.         90-364

                           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                              1990


STATE OF MONTANA ex rel. TERESA McCANN OICONNOR,
Deputy County Attorney for Yellowstone County for
the State of Montana,
                                                            Petitioner,


THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL
DISTRICT OF THE STATE OF MONTANA, in and for
the County of Yellowstone, and the Honorable
District Judge Robert Holmstrom, Jr.,
                                                            Respondents.


APPEAL FROM:                   District Court of the Thirteenth Judicial District,
                               In and for the County of Yellowstone,
                               The Honorable Robert Holmstrom, Judge presiding.


COUNSEL OF RECORD:
                       For Appellant:
                               Teresa McCann OIConnor, Deputy County Attorney,
                               Billings, Montana


                       For Respondent:
                 t-            Marcia K. Good Sept, Thirteenth Judicial District,
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                               Billings, Montana


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                                                         Original Proceeding:              August 16, 1990
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                                                                                  Decided: September 27, 1990
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Justice Fred J. Weber delivered the Opinion of this Court.

     Teresa McCann OuConnor (Ms. OuConnor) Deputy County Attorney
for Yellowstone County, seeks a writ of certiorari for the review
of the order of the District Court of Yellowstone County dated July
16, 1990, finding her in contempt of court for her failure to obey
a direct order of the court and fining her $200.     We affirm the
finding of contempt by the District Court and refuse the issuance
of the writ of certiorari.
     The contempt with which we are here involved is a part of one
of a series of drug cases in Yellowstone County which are referred
to as IuOperation Snowball.It   Hal Turner was the confidential
informant whose information was a foundation for the Operation
Snowball cases.
     We will set forth various findings and conclusions of the
District Court in its Findings of Fact, Conclusions of Law and
Order, dated July 16, 1990.      We have carefully reviewed the
transcripts before us of the hearings before the District Court,
as well as the "intake interviewuu Mr. Turner, which demonstrate
                                 of
that the findings of fact of the District Court are based upon
substantial evidence.   By order dated February 28, 1990, the
District Court set evidentiary hearings for Tuesday, March 13,
1990, upon the defendant Is Motions to Dismiss and to Produce. That
order contained the following statement:
          3.     That Harold Hanser, County Attorney of
     Yellowstone County and Teresa McCann OtConnor, Deputy
     County Attorney of Yellowstone County appear at said time
     to show cause, if any they may have, why sanctions
     pursuant to 5 46-15-329, MCA. should not be imposed.
     (Emphasis supplied.)
~ollowingare summaries of findings and conclusions of the District
Court:    Sometime prior to 1987, a drug enforcement unit within
Yellowstone County's Sheriff's Department was created and the unit
from time to time conducted joint operations with DEA, a federal
drug enforcement agency.   Sergeant Newel1 of the Sheriff's Office
was in charge of the drug unit for more than two and one-half
years.    The drug unit used confidential informants.   In January
1989, Hal E. Turner contacted officers and on January 3, 1989,
Sergeant Newel1 conducted an intake interview which was recorded,
transcribed into 70 pages, and later signed by Mr. Turner.      The
practice of Sergeant Newel1 was to create as a part of the records
of the Drug Unit, a file on each confidential informant and to
place the entire intake statement in that file.    Sergeant Newel1
estimated 12 to 14 intake statements had been taken and that the
existence of those statements had not been disclosed to the
Yellowstone County Attorney's office when the "investigative file1'
concerning each of the cases was delivered to the County Attorney's
office.   He also testified that the decision as to whether or not
to disclose the existence of the statements was his to make.   Mr.
Turner was used by the Sheriff's Office and DEA as a confidential
informant in Operation Snowball which resulted in 41 cases being
filed in state court.      The 41 cases listed a "confidential
informant1'without disclosing Mr. Turner's identity.
     During January 1990, Ms. OIConnor was preparing for the
Standley trial and Sergeant Newel1 provided her with the 70 page
Turner statementland told her that it was considered to be an
intelligence file which they did not wish to have disclosed.       Ms.
OtConnor read the statement and advised Sergeant Newel1 that the
statement was not discoverable in connection with the Standley case
because she did not feel the statement contained exculpatory or
inculpatory information or information which would provide a basis
for impeachment.
     District Court Finding VII is a key finding:
                                VII
          On February 9, 1990, an Omnibus hearing was held in
     consolidated causes, DC 89-281 and DC 89-325, State v.
     Timothy Evenson; OtConnorappeared at the Omnibus hearing
     and participated in the completion and signing of what
     is generally referred to as the ItomnibusFormtt, printed
                                                      a
     document entitled ItActionTaken (Omnibus Hearing); among
     other things, the form reflects that the Defendant
     t*reauestsand moves for  ...   (b) discovery of the names
     of State s witnesses and their statementstt further, that
                                                ;
     the Court granted the Defendant's Motion for such
     information; at the time of the Omnibus hearincr, O tConnor
     knew of the existence of the Turner statement, had a copy
     thereof, but failed to produce it or inform the Court or
     defense counsel of its existence. (Emphasis supplied.)
The findings of fact are further summarized:      After the omnibus
hearing Ms. OtConnormet with Chief Deputy County Attorney Bradley
and gave him various information including a copy of the Turner
statement, with a note which stated in part that Sergeant Newel1
did not want the interview turned over to defense counsel on the
Snowball cases. She told him she found no problem with that, there
was no exculpatory or inculpatory information included which had
not been turned over.   Later on the same day, Mr. Bradley met with
Yellowstone County Attorney Hanser, and advised him of the Turner
statement; and they decided to advise all defense counsel in the
Snowball cases of the existence of the Turner statement and to
provide a copy to each of the district judges of Yellowstone
County. On February 23, 1990, motions to produce the statement and
to dismiss several informations were filed.    With regard to the
hearing on March 13 and 14, 1990, the findings further stated:
          Hanser testified he did not know of the existence
     of the statement until the afternoon of February 9, 1990,
     and had he been aware of it, he would have put defense
     counsel on [notice] of its existence and asked the Court
     to examine the statement and determine what part, if any,
     should be released to the Defendant in each specific
     case; Bradley testified that he felt,          as "1, a
     prosecuting attorney could not make a determination of
     what should or should not go to defense counsel11and that
     "The best thing to do was to let defense counsel have a
     shot at itN and this is why he provided each of the five
     (5) Judges with a copy of the statement and notified
     defense counsel of its existence;      . . .     OIConnor
     testified that it was her job to decide whether or not
     defense counsel should even be made aware of the
     existence of intelligence statements; further, that she
     did not turn over the statement because Officer Newel1
     had asked her not to and she had given him an opinion
     that it did not need to be.
The court found that no evidence had been submitted that any
portion of the Turner statement should not be furnished, and
entered its Conclusions of Law which provided that the defendants
were entitled to the production of the entire unedited Turner
statement pursuant to 1 46-15-328, MCA, and to the Order of the
Court contained upon the Omnibus Form directing lldiscovery the
                                                           of
names of the Statels witnesses and their statements.I1 The court
further concluded that the fact that County Attorney Hanser and
Deputy County Attorney Hoefer were unaware of the existence of the
Turner statement constituted a showing why the sanctions provided
by 5 46-15-329, MCA, should not be imposed upon them. With regard
to Ms. OIConnor, the court concluded:
          5. The failure of Deputy County Attorney O v  Connor
     to disclose the existence of the Turner statement to the
     Court at the time of the Omnibus hearing when she had
     been issued a direct order by the Court to do so, as part
     of the action taken at the Omnibus hearing constitutes
     a contempt of the Court, as set forth in 3-1-501(1)(e),
     MCA; that as punishment for her contempt, a fine of Two
     Hundred and No/lOOths Dollars ($200.00) should be imposed
     upon Deputy County Attorney OvConnor.
As a result the court ordered that Ms. OvConnor was found in
contempt of court for her failure to obey a direct order of the
court, a fine of $200 was imposed and she was directed to pay the
fine to the Clerk of the District Court within five days from July
16, 1990.   She has not paid that fine.
     In its memorandum the District Court discussed the history of
discovery in criminal cases and pointed out that 5 46-15-322, MCA,
as adopted in 1985 stated in pertinent part:
         Disclosure by prosecution. (1) Upon arraignment in
    district court or at such later time as the court may for
    good cause permit, the prosecutor shall make available
    to the defendant for examination and reproduction the
    following material and information within his possession
    or control:
         (a) a list of the names and addresses of all persons
    whom the prosecutor intends to call as witnesses in the
    case-in-chief, tosether with their relevant written or
    recorded statements; (Emphasis supplied.)
The court further referred to the protective order provisions of
5 46-15-328, MCA, as adopted in 1985, which provide:
         Excision and protective orders. (1) Upon a motion
    of any party showing good cause, the court may at any
    time order that disclosure of the identity of any witness
    be deferred for any reasonable period of time, not to
     extend beyond 5 days prior to the date set for trial, or
     that any other disclosures required by 46-15-321through
     46-15-329 be denied, deferred, or regulated when it
     finds:
           (a) that the disclosure would result in a risk or
     harm outweighing any usefulness of the disclosure to any
     party; and
           (b) that the risk cannot be eliminated by a less
     substantial restriction of discovery rights.
           (2) Whenever the court finds, on motion of any
     party, that only a portion of a document or other
     material is discoverable under 46-15-321 through 46-15-
     329, it may authorize the party disclosing it to excise
     that portion of the material which is nondiscoverable and
     disclose the remainder.
           (3) On motion of the party seeking a protective or
     excision order or in submitting for the           court s
     determination the discoverability of any material or
     information, the court may permit him to present the
     material or information for the inspection of the judge
     alone. Counsel for all other parties are entitled to be
     present when such presentation is made.
           (4) If the court enters an order that any material
     or any portion thereof is not discoverable under 46-15-
     321 through 46-15-329, the entire text of the material
     must be sealed and preserved in the record in the event
     of an appeal.
The District Court pointed out that the test established by the
Legislature is a finding by the Court that. the disclosure would
result in a risk or harm outweighing any usefulness of the
disclosure to any party.
     With regard to the sanction of contempt, the District Court
discussed the matter of sanctions at some length in its memorandum.
A key paragraph setting forth the reasons for the conclusion that
there was intentional and purposeful conduct on the part of Ms.
OfConnor is the following:
          Notwithstanding the provisions of section 46-15-
     328, MCA, which establishes a procedure whereby the
     prosecution or the defense may apply to the Court for a
     Protective Order prohibiting the disclosure of the
     contents of a document or other material, Deputy County
      Attorney OIConnor testified that it was her function to
      decide whether or not the statement should be released
      to defense counsel. (Transcript p. 107, 11. 1-10). The
      testimony of Deputy County Attorney OVConnor, and the
      lack of any evidence that she failed to disclose the
      existence of the statement through inadvertence or
      oversight, led the Court to the conclusion that she
      purposely and intentionally disobeyed a direct Order of
      the Court to provide defense counsel with a copy of all
      statements of the witness Turner.
The District Court then referred to 1 46-15-329, MCA, adopted in
1985, which states:
           Sanctions. If at any time during the course of the
      proceeding it is brought to the attention of the court
      that a party has failed to comply with any of the
      provisions of 46-15-321 through 46-15-329 or any order
      issued pursuant to 46-15-321through 46-15-329, the court
      may impose any sanction that it finds just under the
      circumstances, including but not limited to:
           (1) ordering disclosure of the information not
      previously disclosed;
           (2) granting a continuance;
           (3) holdinq a witness, party, or counsel in
      contempt;
           (4) precluding a party from calling a witness,
      offering evidence, or raising a defense not disclosed;
      or
           (5) declaring a mistrial when necessary to prevent
      a miscarriage of justice. (Emphasis supplied.)
The court next referred to    §   3-1-501, MCA, which in relevant part
provides :
           What acts or omissions are contempts.   (1) the
      following acts or omissions in respect to a court of
      justice or proceedings therein are contempts of the
      authority of the court:
             . . .
           (e) disobedience of anv lawful judgment, order, or
      process of the court;

Pertinent to the foregoing is the penalty provision set forth in
§   3-1-519, MCA, which states:
             Penalty.   Upon the answer and evidence taken, the
     court or judge must determine whether the person
     proceeded against is guilty of the contempt charged. If
     it be adjudged that he is guilty of the contempt, a fine
     may be imposed on him not exceeding $500 or he may be
     imprisoned not exceeding 5 days, or both.
Also pertinent is 5 3-1-523, MCA, which states in pertinent part:
          Judgment and orders i n contempt c a s e s f i n a l . The
     judgment and orders of the court or judge made in cases
     of contempt are final and conclusive.          There is no
     appeal, but the action of a district court or judge can
     be reviewed on a writ of certiorari by the supreme court
     .. .
The District Court concluded that the facts in the present case are
similar to those in Matter of Graveley (1980), 188 Mont. 546, 614
P.2d 1033. The District Court pointed out that not only did Deputy
County Attorney OvConnor directly violate an order of the court,
but her failure to disclose the existence of the statement deprived
the defendants of the opportunity to exercise their statutory right
to obtain all witness statements unless the State could make a
showing that ~vdisclosure
                        would result in a risk of harm outweighing
any usefulness of the disclosure to any party."
     This Court has been furnished with transcripts of the hearings
on the motions before the District Court and has received the
benefit of extensive briefs on the part of Ms. OvConnor, the
District Court, and the Attorney General's Office.        The Court has
concluded there is no necessity for the issuance of a writ of
certiorari, which is described in our statutes as a writ of review
(5 27-25-101, MCA.)       The Court has concluded no hearing is
required.
                                   I

      The Attorney General contends this is a constructive criminal
contempt proceeding, that due process standards were not followed
because Ms. OIConnor was not advised that she was charged with
contempt, and that there was a failure to prove the appropriate
mental state required for a criminal contempt. Ms. OIConnor makes
a similar argument.
     The District Court held that a contempt had been committed
under the provisions of S         3-1-501(e),   MCA.      That is not by
definition a criminal contempt proceeding.        It is true that under
1 3-1-519, MCA, the court has the power upon a judgment of contempt
to impose a fine not exceeding $500 or to imprison a person not
exceeding 5 days, or both.        We point out that 5 45-7-309, MCA,
provides that a person commits the offense of criminal contempt
when he knowingly engages in various defined conduct. The District
Court did not proceed under 1 45-7-309, MCA.
     We do not find it necessary to determine whether or not the
present order of contempt could be classified under any theory as
a   criminal   contempt.     We   conclude that        regardless   of   the
classification of the contempt, due process standards were met in
the present case. As previously quoted, the order of February 28,
1990, advised Ms. OIConnor that she was to appear to show cause,
if any she may have, why sanctions pursuant to 5 46-15-329, MCA,
should not be imposed.     As quoted, S 46-15-329, MCA, provides for
the sanction of contempt where there has been a failure to comply
with disclosure required by the preceding statutes.           That notice
is adequate for due process purposes to advise Ms. OIConnor of the
charges against her and to give her a reasonable opportunity to
meet the charges by way of defense or explanation.    In addition,
the transcript demonstrates that County Attorney Hanser and Deputy
County Attorney Hoefer, testified at length and explained their
thinking with regard to full disclosure.       Ms. OIConnor also
testified at length and explained her thinking in some detail.
Her explanation contradicted the testimony on the part of both Mr.
Hanser and Mr. Bradley.   They concluded that the Turner statement
should be furnished. Ms. OIConnordisagreed with that conclusion.
     With regard to a proof of mental state, while the statute in
question here does not require an action which may be classed as
a "knowingl1 act, again it is clear from the transcripts and the
arguments that Ms. O1Connor ably and consistently and at length
presented her views on the subject of disclosure of the statements.
She clearly understood her obligations to disclose witness identity
and statements, and reached her conclusions not to disclose, which
she still holds.   We conclude there is substantial evidence which
demonstrates knowing conduct on the part of Ms. OIConnor.        We
further conclude there is substantial evidence in the record to
support the conclusions reached by the District Court regardless
of whether the burden was upon the State or upon Ms. OIConnor.
     We therefore conclude that Ms. OIConnor received due process.
                                I1
     Ms. OIConnor contends that the District Judge has stated the
issue as whether a deputy county attorney who violates a direct
court order and the Montana Criminal Discovery statutes is guilty
of contempt. She points out the answer may be yes if the violation
was wilful, and then argues that there was nothing which can be
classed as wilful violation on her part.   She argues that because
the 70 page statement did not even contain the name or any
discussion of the defendant Evenson, with whom we are concerned in
the present case, it cannot be classed as a relevant written
statement.   In addition she argues that if there was a violation
of the omnibus order, there was not substantial evidence to
demonstrate it was wilful.      She last argues on due process
standards which have previously been considered.
     In Marks v. First Judicial District Court (1989), 781 P.2d
249, 251, 46 St.Rep.    1804, 1805, this Court stated that in
reviewing a contempt appeal, this Court's standard of review is
whether substantial evidence supports the judgment of contempt.
In Matter of Gravelev, where a $200 contempt was levied against the
County Attorney and Sheriff, this Court stated that in civil
contempt proceedings, the type, character and extent of punishment
rests in the court's discretion as measured by the showing made and
that in light of the findings made and the evidence supporting the
findings, the district court was justified in assessing a sum of
$200 against each of the petitioners.
     In a directly comparable manner, we conclude that in the
present case, the findings made by the District Court were
supported in all instances by substantial evidence, and that the
District Court was justified in assessing $200 as the fine under
5 3-1-519, MCA and   3-1-501, MCA.
     In view of the extended argument on the part of Ms. OIConnor
that she cannot be held responsible for her conduct because she did
not wilfully violate the statute requiring disclosure by her of the
statements to defense counsel and consideration by the District
Court, we refer to a portion of the transcript of her own
testimony.   In response to cross-examination by counsel, Ms.
OtConnor, when asked if the 70 page document was a witness
statement, answered by stating that her position was that the 70
page document was not an investigative statement.   In response to
questioning from the judge Ms. OIConnorpointed out that she would
not concede that the 70 page statement was a witness statement
within the meaning of the discoverable witness statutes.      Upon
further extended examination by the judge, she stated that under
5 46-15-322, MCA, which requires a prosecutor to make available to
the defendant all persons to be called as witnesses with their
relevant written statements, her position was that it is up to the
prosecutor to make the determination as to which statements are
relevant and which are not.   The court then attempted to have Ms.
OIConnor indicate whether or not she thought the court had the
power to make the ultimate determination on this issue, and Ms.
O1Connor chose not to take that position.    She also pointed out
that her view was that it depended on whether the witness statement
was "investigative or intelligence in nature."    She also pointed
out that it was the State (the prosecution and sheriffls office)
which had the obligation to determine whether the statement met
that standard.

                                13
     As previously mentioned, in their testimony, both County
Attorney Hanser and Chief Deputy County Attorney Bradley concluded
that under the statute and also under the open file policy of the
County Attorney's office, the statement in question should be
disclosed to defense counsel and to the court with a request that
the court determine whether or not some portions of the statement
should not be disclosed under the provisions of 5 46-15-328, MCA.
Ms. 08Connor's position is set forth clearly in the following
quotation from the transcript of her testimony:

          Q    If I remember Mr.       Bradley's testimony
     correctly, it was his opinion that at the time those
     persons were charged, whatever interview given by Hal
     Turner which may have been part of an intelligence file
     at that time became part of the investigative file. Do
     you disagree with that?
          A    Yes, I disaqree with that.
          Q    On what bases?
         A    I don't think that a statement which--that a
    document which belongs to an intelligence file somehow
    magically becomes part of an investigative file, unless
    its substance so dictates.

          Q    Then we set to the question of who decides what
     the substance is.
          A    In this particular instance with reqard to the
     Standley case, sir, I did.

         Q    Do you believe that is properly within your
    purview to make that decision?
          A    Yes.

          Q    As to whether information contained in an
     interview is inculpatory or exculpatory or grounds for
     impeachment?
         A    I think that I am responsible to make such
    decisions with an understanding that if I make them
     incorrectly      sanctions will be         made   against     the
     government.      (Emphasis supplied.)
As best this Court can determine, this appears to be the key point
of Ms. OtConnor's argument.      She contends she cannot be held in
contempt because she had a good faith belief there was no reason
to disclose the Turner statement.          As mentioned, both the County
Attorney and Chief Deputy County Attorney disagreed with her.             It
is clear that she still disagrees with both of them.             It is also
clear from her testimony and her arguments that she does not
concede that the District Judge was correct when he concluded that
the statute required of the prosecution that the information be
furnished to defense counsel and submitted to the court for
determination as to whether disclosure was required.               We have
reviewed   the   70   page   Turner    statement and    agree with       the
conclusions of the District Court and the County Attorney and Chief
Deputy County Attorney that disclosure was necessary.
     The District Court expressed its concern as to the procedure
in 12 to 14 other criminal cases where intake interviews of
confidential informants were not disclosed to the county attorney,
to the defense counsel or to the court.         In a similar manner, the
court expressed its concern that even though the omnibus order
required disclosure of the confidential informant and the witness
statement, even though the open file policy of the Yellowstone
County Attorney's office required such disclosure, and even though
the statutes required disclosure, Ms. O'Connor still contended that
she was not required to disclose the existence of the Turner
statement to defense counsel or to the court.
                                      15
            The       ultimate   responsibility       for the   determination   of
nondisclosure to the defendant rested in the District Court and not
in Ms. OtConnor. The District Court concluded that Ms. OtConnorts
failure to make the Turner statement available constituted contempt
of court and assessed the $200 fine. We affirm that conclusion and
the action of the District Court.
        We conclude there is no necessity for the issuance of a writ
of certiorari or writ of review.              This matter is remanded to the
District Court for such further proceedings as it may require.


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We Concur:              H




    I   w         I                  I   I'

            Chief Justice




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              Justices


Justice John C. Sheehy did not participate.
