                                                                                                 05/02/2017


                                           OP 17-0049
                                                                                             Case Number: OP 17-0049

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2017 MT 99



SANDY VANSKYOCK,

               Petitioner,

         v.

THE TWENTIETH JUDICIAL DISTRICT COURT,
HON. JAMES A. MANLEY, DISTRICT JUDGE,

               Respondent.


APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Sanders, Cause No. DC-12-28
                       Honorable James A. Manley, Presiding Judge


COUNSEL OF RECORD:

                For Petitioner:

                       Andres N. Haladay, Assistant Attorney General, Agency Legal Services
                       Bureau, Helena, Montana

                For Respondent Lance Christopher Pavlick:

                       Lance P. Jasper, Eric R. Henkel, Reep, Bell, Laird & Jasper, P.C., Missoula,
                       Montana



                                                     Submitted on Briefs: April 26, 2017

                                                                 Decided: May 2, 2017


Filed:

                       __________________________________________
                                         Clerk
                                OPINION AND ORDER

Justice Dirk M. Sandefur delivered the Opinion and Order of the Court.

¶1    Petitioner Sandy VanSkyock petitions this Court to issue a writ of supervisory

control or other appropriate writ in Sanders County Cause No. DC-12-28, State of Montana

v. Lance Christopher Pavlik, ordering the District Court to terminate contempt proceedings

against her in that matter. Counsel for Lance Christopher Pavlik has filed a response

objecting to the petition and asking this Court to allow the contempt proceedings against

VanSkyock to continue.

                                    BACKGROUND

¶2    The rather convoluted procedural history of this matter began with Pavlik’s 2013

entry of guilty pleas to two counts of vehicular homicide while under the influence and two

counts of criminal endangerment. On March 12, 2013, the District Court sentenced Pavlik

on these convictions to a 30-year commitment to the Montana Department of Corrections

(DOC) with all but 10 years suspended, and an additional 10-year suspended sentence for

each of his criminal endangerment convictions. The court ordered that the sentences for

criminal endangerment would run concurrent to the sentences for vehicular homicide, so

that, in total, Pavlik would serve a 30-year commitment to DOC with 20 years suspended.

The court did not restrict Pavlik’s parole eligibility and recommended that DOC place him

in the WATCh program, “providing it meets with the approval of the Department of

Corrections.”



                                            2
¶3     VanSkyock was the DOC probation officer who prepared the presentence

investigation report in the case. After the court sentenced Pavlik to a DOC commitment,

VanSkyock requested by standard form that DOC override its usual preliminary placement

screening process and place Pavlik directly at the Montana State Prison (MSP). The

originally asserted grounds for the override were that: (1) Pavlik’s unsuspended 10-year

sentence rendered him ineligible by statute for placement at the Missoula Assessment

Center (MASC); (2) “the intent of [his] sentence” was that he serve the first 5 years of his

unsuspended sentence before “being screened for the WATCh Knights Program”; and

(3) “[t]here is much public sentiment about this case and it would be best for all if this

offender was transferred to MSP.”

¶4     DOC MASC/Passages Administrator Dan Maloughney approved the override

request and DOC placed Pavlik at MSP. Upon review of the override, acting DOC ACCD

Administrator Cathy Gordon: (1) concluded that VanSkyock’s initial request erroneously

stated that the court imposed a 5-year parole restriction; (2) issued a revised Override &

Referral Form stating that the sole reason for the override was that Pavlik’s unsuspended

10-year sentence rendered him ineligible by statute for placement at MASC; and

(3) directing that VanSkyock’s original override request form be destroyed and superseded

by the revised form.

¶5     Three years after sentencing, Pavlik moved the District Court to hold VanSkyock in

contempt and sanction her in her individual capacity on the asserted ground that she

contemptuously circumvented or interfered with the authority and sentencing order of the

court by requesting the DOC preliminary placement screening override based on falsified
                                             3
information, thereby effectively precluding or delaying his placement in the WATCh

program and impeding his parole eligibility. VanSkyock moved to dismiss the contempt

proceedings based on lack of jurisdiction, the statute of limitations, and because she cannot

be held in contempt for DOC’s valid placement decision. The District Court denied her

motion to dismiss, and VanSkyock now asks this Court to intervene via supervisory control

or other appropriate writ.

                                          DISCUSSION

¶6     Supervisory control is an extraordinary remedy justified when urgency or

emergency factors make the normal appeal process inadequate, the case involves purely

legal questions, and the other court is proceeding under a mistake of law causing a gross

injustice. M. R. App. P. 14(3). We conclude those prerequisites are present in this case.

¶7     Pavlik’s motion for contempt asserted that VanSkyock “deserves to be held in

contempt until such time as this wrong is fully righted” and thus “respectfully request[ed]

. . . holding [VanSkyock] in contempt and imposing an appropriate sanction for said

contempt” pursuant to “§ 3-1-501, et seq., [MCA]”. Pavlik accordingly requested a

contempt hearing pursuant to § 3-1-518, MCA.

¶8     By its express terms, § 3-1-518(1), MCA, applies to alleged contempts “not

committed in the immediate view and presence of the court or judge.” Thus, the alleged

contempt is an “indirect contempt” rather than a “direct contempt.” See Kaufman v.

Montana Twenty-First Jud. Dist. Ct., 1998 MT 239, ¶¶ 19 and 25, 291 Mont. 122, 966 P.2d

715.   The distinction between direct and indirect contempts “is critical” to the

determination of the proper contempt procedure. Kaufman, ¶ 19.
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¶9     Also critical to the determination of the proper contempt procedure is the distinction

between criminal and civil contempts. A contempt proceeding is criminal if the purpose

of the proceeding is to impose a penalty “to punish the contemnor for a specific act” thereby

“vindicat[ing] the authority of the court.” Section 3-1-501(3), MCA; Kaufman, ¶ 17. On

a criminal contempt, “the contemnor cannot end the incarceration or avoid the fine by

complying with [the subject] court order.” Section 3-1-501(3), MCA; see also Kaufman,

¶ 17. In contrast, a contempt proceeding is civil if the purpose of the proceeding is to

impose a contingent jail or monetary sanction “to force the contemnor’s compliance with

a court order.” Section 3-1-501(3), MCA; Kaufman, ¶ 17. In contrast to a criminal

contempt, a civil “contemnor can end the incarceration or avoid the fine by complying with

[the subject] court order.” Section 3-1-501(3), MCA; Kaufman, ¶ 17.

¶10    The distinction between a criminal and civil contempt has critical procedural due

process implications.     Except for direct contempts committed under circumstances

requiring “immediate corrective steps . . . to restore order, maintain [the] dignity and

authority of the court, and to prevent delay,”1 criminal contempt proceedings require the

full procedural due process protections of “proof beyond a reasonable doubt,” a “hearing

before a neutral judge,” advance notice “of the charges” against the alleged contemnor,

“the right to be represented by counsel,” and “a reasonable opportunity” to oppose the

charges “by defense or explanation” and the opportunity to “testify and call other



1
 The summary contempt procedure specified by § 3-1-511, MCA (criminal punishment of direct
contempts necessary “to restore order, maintain the dignity or authority of the court, or prevent
delay”), complies with minimum due process standards. See Kaufman, ¶¶ 31-32.
                                               5
witnesses.” Kaufman, ¶¶ 31, 33. In response to Kaufman, the Montana Legislature

repealed the prior Title 3, MCA, criminal sanction for indirect contempt and effectively

provided that Title 3 indirect contempts are now punishable only by formal prosecution by

the State of Montana under the general rules of criminal procedure specified by Title 46,

MCA. Section 3-1-501(4), MCA; 2001 Mont. Laws 2458, 2460 (inter alia repealing former

§ 3-1-519, MCA).

¶11    Here, it is unclear from Pavlik’s Motion For Order Of Contempt whether he asks

the District Court to hold VanSkyock in indirect civil contempt or indirect criminal

contempt. Without need to pass on the correctness of the District Court’s interpretation of

the motion as a motion for civil contempt, Pavlik’s contempt motion is fatally defective as

a matter of law in either event.2 If viewed as a motion for criminal contempt, indirect

criminal contempts defined by Title 3, Chapter 1, MCA, are prosecutable only by the State

by separate criminal proceeding commenced and prosecuted pursuant to Title 46, MCA.

See § 3-1-501(4), MCA (the “procedures provided by Title 46 apply to criminal contempt

prosecutions, except those under 3-1-511”).       Thus, Pavlik’s motion fails to state a

cognizable claim for criminal contempt as a matter of law.

¶12    Pavlik’s motion is similarly defective as a motion for indirect civil contempt.

When a district court commits a criminal defendant to DOC for placement pursuant to

§ 46-18-201(3)(a)(iv)(A), MCA, the sentencing court has no authority to direct or control

where or in what program DOC ultimately places the defendant for the term of sentence.


2
 While we choose to resolve this matter on substantive grounds, Pavlik’s contempt motion was
also procedurally defective in violation of the affidavit requirement of § 3-1-512, MCA.
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State v. Bekemans, 2013 MT 11, ¶ 49, 368 Mont. 235, 293 P.3d 843. The sentencing court

may recommend a particular placement for DOC consideration but the recommendation is

not binding on DOC. Bekemans, ¶ 49. Thus, as a threshold matter of law, the DOC

placement “override” at issue was not an override, disregard, or circumvention of the

District Court’s sentencing order or authority, it was an internal exercise of DOC placement

authority and discretion, however well-grounded.3           Assuming arguendo the truth of

the factual allegations against VanSkyock, her conduct was not a contempt, as defined by

§ 3-1-501(1)(c), (d), or (i), MCA, of the District Court’s sentencing order or authority as a

threshold matter of law.

¶13    In any event, a cognizable claim for civil contempt must seek to compel

performance of “an act that is in the power of the contemnor to perform.” Section 3-1-520,

MCA. Pavlik’s motion does not seek a contempt citation and sanction against DOC as an

entity or against VanSkyock as a DOC officer, administrator, or authorized agent in

ultimate placement authority. Rather, it merely seeks a contempt citation and sanction

against VanSkyock in her individual capacity as the line-level probation and parole officer

who initially requested that the authorized DOC official(s) “override” the usual preliminary

DOC commitment screening process and place Pavlik directly at the Montana State Prison.

Pavlik’s motion and briefing, the District Court’s order, and Pavlik’s response on

supervisory control are all devoid of any legal showing or indication that a line-level


3
  Whether and what remedy independent of the underlying criminal case may be available for
redress or review of internal DOC placement decisions within the scope of its statutory discretion
under § 46-18-201(3)(a)(iv)(A), MCA, is beyond the limited scope of our review on supervisory
control here.
                                              7
probation officer, as distinct from DOC as an agency or its authorized placement officer(s),

has the authority to initially determine, or subsequently alter, a placement within the

context of a court-ordered DOC commitment for placement in an appropriate correctional

facility or program under § 46-18-201(3)(a)(iv)(A), MCA.            Beyond asserting that

VanSkyock should “be held in contempt until such time as this wrong is fully righted,”

Pavlik’s motion and brief fail to state or seek performance of any specific act that would

remedy the alleged wrong and be in VanSkyock’s power to perform. Thus, as a matter of

law, Pavlik’s motion fails to state a cognizable claim for civil contempt.

¶14    We conclude that the District Court erred as a matter of law in failing to grant

VanSkyock’s motion to dismiss the contempt proceeding on the foregoing grounds

asserted in her motion to dismiss. The normal appeal process is inadequate, and the District

Court is proceeding under a mistake of law causing a gross injustice. Therefore, in the

exercise of our power of supervisory control, we hereby reverse the District Court’s order

denying VanSkyock’s motion to dismiss, and remand for denial of Pavlik’s contempt

motion.

¶15    The Clerk is directed to provide a copy of this Order to all counsel of record; to the

Hon. James A. Manley, Twentieth Judicial District Court, Lake County; and to Lyn

Fricker, Clerk of District Court, Lake County.

       Dated this 2nd day of May, 2017.



                                                  /S/ DIRK M. SANDEFUR



                                             8
We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




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