                                NO.    95-498
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1995


THOMAS M. MALEE,
          Applicant,
     v.                                                DEC 2D 19%
DISTRICT COURT for the Second Judicial
District of the State of Montana,
          Respondent.



                   ORIGINAL   PROCEEDING


COUNSEL OF RECORD:
          For Applicant:
                   Thomas M. Malee, Attorney at Law, Pro Se,
                   Billings, Montana
          For Respondent:
                   John Maynard, Attorney at Law, Helena, Montana


                                       Submitted:     December 1, 1995
                                           Decided:   December 20, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

        Thomas M. Malee applies to this Court, for the third time, for
writ of review of the defendant District Court's contempt ruling.
This Court recaptioned and returned Malee's first application for
writ of review pursuant to Rule 17(c), M.R.App.P., because Malee
did not name the District Judge and the Judicial District from
which     the ruling was      issued.       We dismissed Malee's   second
application pursuant to Rule 17(a),         M.R.App.P., because Malee did
not submit the application for writ of review in the name of the
real party in interest, i.e., himself.          Although we could dismiss
Malee's third application pursuant to Rule 17(c), M.R.App.P.,
because Malee fails to name the District Judge in the title of his
application, we prefer to curtail these proceedings by deciding the
merits of Malee's application.
         The District Court held Malee in contempt of court for
referring    to   opposing   counsel    with "an insulting and obnoxious
commentl' in a brief filed with the court.          In its Order finding
Malee in contempt, the court stated:
             The Court feels compelled to discuss an insulting
        and obnoxious comment made by Plaintiff's counsel in his
        brief in which he refers to Defense counsel as being a
        "horses [sic] rear-end." The Court is outraged by this
        indignant and unconscionable accusation. The accusation
        not only offends the dignity of the Court, but it also
        offends   the judicial    process.    The   comment was
        unnecessary, distasteful and clearly unprofessional.
             The comment, however, is indicative of Plaintiff's
        counsel's brazen conduct during the course of this
        litigation. As indicated earlier, Mr. Malee has taunted,
        insulted and harassed opposing counsel and this Court to
        the point of exasperation. He has made a mockery of this
        Court and the court system.

                                        2
             Mr.   Malee's  latest antic provides     sufficient
        justification to invoke the Court's contempt power. 1n
        short, the nonsense must stop. Accordingly, Mr. Malee is
        in contempt of Court for the lewd comment . . .
        Malee raises the issue of whether a contemptuous brief is a
form of indirect contempt triggering the procedures of 5 3-l-512,

MCA.
        There are two purposes of a contempt order -- to vindicate the
dignity of the court's authority and to persuade the contemnor to
do what the law requires.      Goodover      v. Lindey's, Inc. (1993), 257
Mont. 38, 41,        847   P.2d 699,       700.     In    reviewing     contempt
proceedings, we determine whether substantial evidence supports the
judgment of       contempt,   and   whether       the    district     court   had
jurisdiction to issue the order.            Marks v. First Judicial Dist.
Court (1989), 239 Mont. 428, 430, 7'81 P.2d 249, 250; State ex rel.
Foss v. District Court (1985), 216 Mont. 327, 331, 701 P.2d 342,
345; Matter of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033,
1039.
        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.       Indirect
contempt is often a matter of a party not following a court's
order.     In re Marriage of Prescott (1993), 259 Mont. 293, 296, 856
P.2d 229, 231; Marks, 781 P.2d 250; Valley Unit Corp. v. City of
Bozeman (1988),    232 Mont. 52, 754 P.2d 822; Gravelev, 614 P.2d at
1039; see 4 WILLIAM BLACKSTONE, COMMENTARIES *283-*285.         This Court has
consistently held that the procedures found in § 3-1-512, MCA, must
be followed in cases of indirect contempt. Valley Unit Core.,                 754
                                       3
P.2d 822; -I 701 P.2d 342; Milanovich v. Milanovich (1982), 201
          FOSS
Mont. 332,       655 P.2d 963; Gravelev, 614   P.2d 1033; State ex rel.
Kidder v.       District Court (1970), 155 Mont. 442, 472 P.2d 1008.
Section 3-1-512, MCA, states:
        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 statement of
        the facts by the referees or arbitrators or other
        judicial officer shall be presented to the court or
        judge.
        Additionally, 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.
Prescott,       856 P.2d at 232 (citing Marks, 781 P.2d at 252). In
other     words,    there must be a hearing to provide the accused
contemnor an opportunity to explain or to excuse himself.       State ex
rel. Smith v. District Court (1984), 210 Mont. 344, 347, 677 P.2d
589,    591.
        In the instant case,     Malee submitted a brief containing a
contemptuous comment about opposing counsel to the District Judge;
no accusatory affidavit was filed nor was there a hearing on the
matter.        If Malee's contempt were indirect, we must set aside the
order of contempt because the District Court did not follow the
affidavit or statement of facts procedure set forth in § 3-1-512,
MCA,    and thus,    lacked jurisdiction to issue the contempt order.


                                      4
Accordingly,   the question for this Court is whether the comments in
Malee's brief constitute indirect or direct contempt.
       This Court has held that the filing of contemptuous pleadings
is a form of indirect contempt.         Porter v. First Judicial Dist.
Court (1950), 123 Mont. 447, 453-54, 215 P.2d 279, 283. In Kidder,
and previous     cases, we    construed     constructive     contempt as
contemptuous acts occurring after the trial had commenced, either
while the trial was in progress or during recess. Kidder, 472 P.2d
at 1012.   To the extent that these cases, Porter, Kidder, and State
ex rel. Stagg v. District Court (1926), 76 Mont. 495, 248 P. 213,
hold or suggest that pleadings and briefs presented to the court
may only constitute indirect contempt, they are overruled.           Rather,
we hold that contemptuous pleadings and briefs presented to the
court are direct contempt in that they are "in the immediate view
and presence of the court or judge at chambers."         Section 3-l-511,
MCA.
       This position reflects      the rationale    that no        extrinsic
evidence, such as testimony of third parties or affidavits, need be
introduced to     prove   direct    contempt.      The     Ninth     Circuit
distinguishes direct from indirect contempt on the bases that:
"Indirect contempt is contumacious behavior occurring beyond the
eye or hearing of the court and for knowledge of which the court
must depend upon the testimony of third parties or the confession
of the contemnor."    United States v. Marshall (9th Cir. 1971), 451
F.2d 372, 373.    In a case of direct contempt, "the pertinent facts
are not disclosed by the presiding judge through the medium of

                                    5
witnesses,    but are such as are observed by the judge himself."
State ex rel. Rankin v. District Court (1920), 58 Mont. 276, 291,
191 P. 772, 775.       Contemptuous pleadings or briefs are before the
court and the court personally observes             the elements of the
offense.     Thus,   there is no need for extrinsic evidence to prove
the elements of what is before the court.             We agree with the
Seventh      Circuit   in   its   determination     that   "although   the
contemptuous matter was in a pleading and not in open court, no
authority appears to limit the judge's sanctioning authority to
what he hears or sees in person, rather than through a pleading.
Contemptuous tactics and arguments can be as easily made on paper
as in open court."       Kunik v. Racine County, Wis. (7th Cir. 1991),
946 F.2d 1574, 1583
     In so holding, we honor a 108 year old precedent of this Court
in condemning attorneys who, in their briefs, malign the dignity of
the bench or the legal profession.       In 1881,   this Court denounced
such behavior:
     The brief of the appellant contains language attempting
     to cast reproach upon the proceedings of the court below,
     and seeking to make it the object of contemptuous wit and
     ridicule.    Argument is the principal purpose of the
     brief, and this kind of wit and ridicule is not argument.
     The use of slang phrases and ridiculous language, . . .,
     should have no place in a brief. No character of persons
     can have a deeper interest in preserving the dignity of
     the bench, or maintaining the courtesies of our honorable
     profession, than the members of the bar, and they should
     act accordingly. . . . The language of the brief in this
     case is reprehensible, as being in violation of the
     conduct and courtesy due from the bar to the bench, and
     will not be tolerated.
Brownell v. McCormick (1887), 7 Mont. 12, 18, 14 P. 651, 653.


                                     6
     In the instant case,   we hold that since Malee's brief was
filed with the court and personally observed by the judge, it
constitutes direct contempt.   The court had no need of testimony
from third parties, an affidavit of the facts, nor a confession of
the contemnor,   to gain knowledge of the offense.    The   District
Court had jurisdiction to issue the order and, after our review of
the record, we hold that substantial evidence supports the judgment
of contempt.




 ? concur.
                                       December 20, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Thomas M. Make
Attorney at Law ‘~
1109 N. 22nd St., Ste. 103A
Billings, MT 59101

John Maynard
Attorney at Law
P.O. Box 1697
Helena, MT 59624

Hon. James Purcell
District Judge
Butte-Silver Bow County Courthouse
Butte, MT 59701


                                                     cn -“ITH
                                                     C” i),“,.

                                                     CLERK: OF THE SUPREME COURT
                                                     STATE OF MONTANA

                                                     BY: A. x&f/u
                                                     Deputy       u
