                                          No. 03-479

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2004 MT 1
               ___________________________________

DANA CHARLES CHRISTIAN,                                    )
                                                           )
               Petitioner,                                 )
                                                           )         OPINION
        v.                                                 )
                                                           )               &
SIXTH JUDICIAL DISTRICT COURT,                             )
HONORABLE E. WAYNE PHILLIPS,                               )           ORDER
District Judge Presiding,                                  )
                                                           )
               Respondent.                                 )
               ___________________________________

¶1      Before this Court is Dana Charles Christian’s Petition for Writ of Certiorari filed
September 22, 2003, wherein Christian requests that we reverse the June 18, 2003 Order of
the District Court for the Sixth Judicial District, Park County, finding Christian in contempt
of court. On September 30, 2003, we ordered the Honorable E. Wayne Phillips, District
Judge, to prepare, file and serve his response to Christian’s petition. Judge Phillips filed his
response with this Court on October 23, 2003, and Christian filed a reply on November 4,
2003.
¶2      The facts leading up to the contempt charge are as follows:
¶3      On July 12, 2001, Christian was charged with witness tampering and filing false
public documents, both felonies. Christian’s case was initially set for trial in April 2002 in
the District Court for the Sixth Judicial District, Park County. The parties agreed to stay the
action, however, if Christian referred himself to the Commission on Practice. In early
February 2003, Christian’s counsel of record, Penelope Strong, advised Christian that she
needed to withdraw as his counsel because she had been appointed Chief Public Defender
for Yellowstone County.
¶4      On February 19, 2003, Christian filed a “Motion to Set Trial” in the District Court.
The caption of the motion listed Strong’s name as counsel of record. However, the signature
block read “Dana C. Christian” and the document was signed by Christian. In its response
to the motion filed that same day, the State commented that it “object[ed] to defendant, who
is represented by counsel, preparing and signing motions on behalf of his attorney without
his attorney’s verification that she consents to such procedure.” The State did not object to
setting a trial date. The following day, the District Court issued an order wherein it denied
Christian’s motion noting that “despite having counsel of record, the Defendant himself
signed this motion pro se, a violation of Rule 11, M.R.Civ.P.”
¶5     On February 25, 2003, Strong moved the District Court to withdraw as counsel of
record in this case. The motion was supported by an affidavit wherein Strong stated that the
basis for her withdrawal was her appointment as Chief Public Defender for Yellowstone
County and her intention to close her private practice by April 1, 2003. She noted in her
affidavit that she had informed Christian on February 7, 2003, of her intent to withdraw and
that she had offered Christian her assistance in the transition. She also noted that she had
advised Christian in writing that she did not consent to him using her name and professional
address on the Motion to Set Trial.
¶6     On March 11, 2003, the District Court granted Strong’s motion to withdraw and
identified as a contemptuous act Christian’s filing the Motion to Set Trial utilizing Strong’s
name in the caption heading and Christian’s signature. The court stated:
       The contemptuous act that the Court finds deceitful, insolent and as such a
       fraud upon this Court is the fact that [Christian] presented the motion as one
       drafted by his attorney. [Christian], while represented by counsel, submitted
       in effect a pro se motion but under the guise of being submitted by his
       counsel. The motion was presented as coming from defense counsel in that
       it contained counsel’s heading at the top of the pleading.
The District Court determined that this was a direct contempt in the presence of the court
pursuant to § 3-1-511, MCA, which provides in pertinent part as follows:
              Procedure -- contempt committed in presence of court. When a
       contempt is committed in the immediate view and presence of the court or
       judge at chambers and the contemptuous conduct requires immediate action
       in order to restore order, maintain the dignity or authority of the court, or
       prevent delay, it may be punished summarily. An order must be made reciting
       the facts that occurred in the judge’s immediate view and presence and
       adjudging that the person proceeded against is guilty of a contempt and that
       the person must be punished as prescribed in the order. An order may not be
       issued unless the person proceeded against has been informed of the contempt
       and given an opportunity to defend or explain the person’s conduct.


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Hence, the court set a hearing to allow Christian an opportunity to explain his actions.
Thereafter, the court sanctioned Christian with a fine of $150 and 1,000 hours of community
service.
¶7     On September 22, 2003, Christian filed his Petition for Writ of Certiorari with this
Court contending that the District Court erred in finding that he committed direct contempt,
as opposed to indirect contempt, and that the higher due process standard provided by the
indirect contempt statute should have been afforded him. Christian also contended that the
court erred in requiring him to perform 1,000 hours of community service.
¶8     There is no appeal as such from an order of contempt in a civil proceeding. Rather,
the exclusive method of review of contempt orders in civil proceedings (with certain
exceptions not relevant to this case) is by way of a writ of certiorari or writ of review.
Section 3-1-523, MCA; Jones v. Montana Nineteenth Jud. Dist. Ct., 2001 MT 276, ¶ 15, 307
Mont. 305, ¶ 15, 37 P.3d 682, ¶ 15 (citation omitted). Furthermore, review is generally
limited to questions regarding proper jurisdiction and whether the evidence is sufficient to
support the finding of contempt. Jones, ¶ 15.
¶9     In his petition, Christian argued that the District Court did not find anything
contemptuous about his motion to set trial at the time it was filed. Instead, he claims that
it was only later, after reviewing Strong’s affidavit, that the District Court accused petitioner
of committing a contemptuous act. Consequently, Christian alleges that his conduct was at
most an indirect contempt under § 3-1-512, MCA, and as such, his right to procedural due
process was circumvented because no charging affidavit by a judicial officer was ever filed
against him.
¶10    When contempt is not committed in the immediate view and presence of the court or
judge in chambers, the contempt is indirect or constructive contempt. Section 3-1-512,
MCA. We have consistently held that in cases of indirect contempt, the procedures found
in § 3-1-512, MCA, must be followed. Malee v. District Court (1996), 275 Mont. 72, 75,
911 P.2d 831, 833 (citations omitted). Section 3-1-512, MCA, provides:
             Procedure -- contempt not in presence of the court. When the
       contempt is not committed in the immediate view and presence of the court or
       judge at chambers, an affidavit of the facts constituting the contempt or a


                                               3
       statement of the facts by the referees or arbitrators or other judicial officer
       shall be presented to the court or judge.

Furthermore, we have determined that constructive contempt requires the following due
process requirements:
               That one charged with contempt of court be advised of the charges
       against him, have 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.

Malee, 275 Mont. at 75-76, 911 P.2d at 833 (quoting In re Marriage of Prescott (1993), 259
Mont. 293, 297, 856 P.2d 229, 232).
¶11    However, in Malee, we specifically overruled prior case law and held that the
contemptuous pleadings and briefs presented to the court in that case were direct contempt
as they were in the immediate view and presence of the court or judge at chambers. Malee,
275 Mont. at 76, 911 P.2d at 833. And, although we did not specifically require it, we
indicated in Malee that it is advisable to provide the alleged contemnor an opportunity to be
heard. Malee, 275 Mont. at 78-79, 911 P.2d at 834. Here, the District Court did conduct
a hearing for just such purpose.
¶12    In the instant case, the offending document was within the immediate view and
presence of the court, thus under Malee, it constituted direct contempt. Furthermore,
contrary to Christian’s assertion that the contempt was only brought to the court’s attention
several days later in an affidavit filed by Strong, in actuality, the State’s response to the
motion to set trial was filed the same day as Christian’s motion. In its response, the State
objected to Christian’s conduct thereby bringing that conduct to the attention of the court.
Even if the State had not done so, the document was contemptuous on its face. Section 3-1-
501, MCA, states the following regarding contemptuous acts such as that committed here:
              (1) The following acts or omissions in respect to a court of justice or
       proceedings in a court of justice are contempts of the authority of the court:
              ....
              (d) deceit or abuse of the process or proceedings of the court by a party
       to an action or special proceeding;
              ....


                                              4
              (f) assuming to be an officer, attorney, or counsel of a court and acting
       as that individual without authority; . . . [Emphasis added.]
¶13    Christian also maintains that because the District Court granted the Motion to Set
Trial, the court determined that the motion was valid, thus it could not be contemptuous.
However, in his response to Christian’s petition, Judge Phillips pointed out that the motion
was initially denied because of Christian’s conduct and that it was only later that the trial
was set because the State did not object to doing so.
¶14    Christian further argues that his sentence to 1,000 hours of community service was
excessive. The District Court stated in its June 17, 2003 Order on Contempt that it had
considered requiring Christian to provide pro bono services, however, Christian’s status with
the Commission on Practice
       makes it unseemly to require indigent clients to accept this individual as their
       counsel. Therefore, community service, a means to restore to the community
       some sense of trust of the legal profession which was betrayed in this matter,
       is deemed appropriate.

Furthermore, in his response to Christian’s Petition for Writ of Certiorari before this Court,
Judge Phillips stated the following regarding the sentence he imposed and the reasons for
imposing it:
       Prior to the contempt hearing, this Court considered at some length the
       possible ranges of an appropriate sentence. The Court approached the hearing
       with an open mind as to such a range with an eye toward Mr. Christian’s
       demeanor and response. As noted above, that demeanor and response was at
       once arrogant and self-righteous. In behavior, body language, and approach
       to the hearing, Mr. Christian exuded a mental state that all but shouted that his
       ends justified his means. Though there was a degree of apology, it appeared
       to the District Court to be pro forma, unpersuasive, and couched in terms
       indicating the action was justified at any rate.
               The District Court was left with the distinct impression that Mr.
       Christian would at any time undertake actions that he thought justified; the
       Rules be damned. Given that, this District Court was reluctant to require pro
       bono service, which had been its primary conceptualization prior to the
       hearing. Rather, because of the nature of Mr. Christian’s attitude and
       response, this District Court felt that only some significant and continual
       reminder of his thinking errors would register. Therefore, the substantive part
       of the District Court’s sanction was 1,000 hours of community service. The
       District Court was fully cognizant of the extent and length of this requirement
       but felt it appropriate under the circumstances. While jail time was a very

                                              5
       appropriate punishment, the District Court did not believe it had the authority
       to impose the amount of jail time necessary to truly dissuade Mr. Christian
       from similar, future behaviors.

We find no error in the District Court’s determination or sentence. Therefore,
¶15    IT IS ORDERED that Christian’s Petition for Writ of Certiorari is DENIED.
¶16    IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by
mail to Christian, to counsel of record, and to the District Court.
¶17    DATED this 6th day of January, 2004.

                                                  /S/ JAMES C. NELSON


We Concur:


/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER




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