No. OP 09-0610

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 439

______________

THE OFFICE OF THE STATE PUBLIC DEFENDER, )

)

 Petitioner, ) 

) O P I N I O N

v. ) and

) O R D E R

MIKE McMEEKIN, MISSOULA COUNTY SHERIFF; )

GERALD GREGO; MISSOULA COUNTY UNDERSHERIFF; )

MISSOULA COUNTY DETENTION FACILITY CAPTAIN )

SUSAN HINTZ; MISSOULA COUNTY DETENTION )

FACILITY JUVENILE UNIT MANAGER GARY EVANS, )

)

Respondents. )

_____________

¶1 The Office of the State Public Defender (OPD) asks us to issue a writ of mandamus

requiring the Respondents to vacate a Missoula County Detention Facility (MCDF) policy

that addresses visitation at MCDF during H1N1 flu season. OPD claims the policy is

currently preventing OPD attorneys from consulting in private with their clients regarding

their cases. The Missoula County Attorney Office’s has filed a response to the petition for

writ of mandamus on behalf of the Respondents. It argues that OPD has not established the

necessary prerequisites for issuance of the writ and, therefore, no writ should issue.

¶2 A writ of mandamus may issue to compel the performance of an act that the law

specially enjoins as a duty resulting froman office, trust, orstation. It must issue in all cases

in which there is no plain, speedy, and adequate remedy in the ordinary course of law.

Section 27-2-102, MCA. 

¶3 It is undisputed that pretrial detainees have a constitutional right of access to the

courts. Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 1495 (1977). Further, the Ninth

Circuit Court of Appeals has held that a prisoner’s right of access to the courts includes

December 23 2009
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contact visitation with his counsel, which may not be arbitrarily abridged. See Ching v.

Lewis, 895 F.2d 608, 610 (9

th

 Cir. 1989). 

¶4 The MCDF H1N1 policy suspends contact visits for the duration of flu season.

Attorneys are allowed to visit their clientsin non-contact visiting rooms, with more than one

attorney-client pair in a visiting room at a time only if no one objects. Respondents have

attached to their brief a copy ofthe document setting forth the policy. That document states

that the audio portion ofthe video monitoring system in the non-contact visiting rooms used

by attorneys and their clients has been turned off, and also acknowledges that exceptions 

may be made to the policy. 

¶5 OPD states this policy is depriving its clients of their fundamental right to the

assistance of counsel. The petition issupported by an affidavit ofEdmund Sheehy,Regional

Deputy Public Defender in Region 2. The Sheehy affidavit confirms that the MCDF policy

prohibits contact visits in the jail between attorneys and their clients; that conversations may

be overheard by others present in the non-contact visitation area; and that some OPD clients

in the jail have refused to participate in non-contact visits with their attorneys because of

privacy concerns. MCDF points out that OPD has a plain, speedy and adequate remedy in

that it may apply to the Fourth Judicial District Court to approve contact visits in specific

cases. In one instance the District Court entered an order requiring a client to be transported

to his attorney’s office for a 3-hour contact visit and MCDF complied with the order. At the

same time, the representative from the OPD who met with the Judges of the Fourth Judicial

District about the contact visitation policy in November wastold to take the issue upwith the

County Commissioners.

¶6 It is clear that jail staff members and inmates come and go fromthe facility on a daily

basis. The MDCF takes reasonable precautions to reduce the risk that disease will spread

from these interactions, and those same precautions can be implemented to allow contact

visits with attorneys. The MDCF has not presented any evidence from medical or public

health professionalsthat justifies application ofthis policy to attorneysrepresenting pretrial

detainees and the concomitant interference with attorney-client communications.
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¶7 We conclude OPD has established that MCDF has adopted a policy that precludes

pretrial detainees from exercising their right of access to the courts through contact visits

with counsel. MCDF detainees lack a plain, speedy and adequate remedy to protect that

right. Therefore, we conclude OPD is entitled to a writ of mandamus. 

THEREFORE,

¶8 IT IS ORDERED that MCDF shall immediately allow attorneysrepresenting pretrial

detainees at MCDF to conduct private, confidential contact visits with their clients. MCDF

may impose reasonable public health-related precautions such as masking and hand

sanitizing to reduce the risk of infection.

The Clerk is directed to provide copies of this Order to all counsel of record.

DATED this 23rd day of December, 2009.

/S/ MIKE McGRATH

We concur:

/S/ PATRICIA O. COTTER

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

/S/ BRIAN MORRIS