No. 03-479

 IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 1

___________________________________

DANA CHARLES CHRISTIAN, )

)

Petitioner, )

) O P I N I O N

v. )

) &

SIXTH JUDICIAL DISTRICT COURT, )

HONORABLE E. WAYNE PHILLIPS, ) O R D E R

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
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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
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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;

. . . .
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(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
6

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