No

No. 98-277

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 239

LISA B. KAUFFMAN, Esq.,

Relator,

v.

MONTANA TWENTY-FIRST JUDICIAL DISTRICT

COURT, RAVALLI COUNTY, THE HONORABLE

JEFFREY LANGTON, Presiding Judge,

Respondent.

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ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Relator:

Lisa B. Kauffman, Attorney at Law, Missoula, Montana

For Respondent:

The Honorable Jeffrey Langton, District Court Judge,

Hamilton, Montana

Submitted: June 16, 1998

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Decided: September 29, 1998

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶ On April 15, 1998, District Court Judge Jeffery H. Langton of the Twenty-First 

Judicial District in Ravalli County, found petitioner, Lisa B. Kauffman, Esq., in 

contempt of court. Judge Langton ordered Kauffman to serve twenty-four hours in 

the Ravalli County Jail and fined her the sum of $500.

¶ Kauffman immediately filed a petition for writ of certiorari with this Court, and on 

April 16, 1998, we stayed the execution of the contempt order and set forth a briefing 

schedule. After briefs were submitted, on May 14, 1998, this Court dismissed the 

petition on procedural grounds without prejudice. Kauffman then refiled her 

petition and, after another procedural challenge by Judge Langton, we decided to 

address the petition on the merits. 

¶ We now consider Kauffman's application for writ of certiorari and, at the request 

of Judge Langton, consider his response filed in Case No. 98-200 as his response in 

this action. We grant the petition for a writ of certiorari and reverse.

¶ The issues on appeal are:

¶ 1. Did the District Court have jurisdiction to issue the contempt order?

¶ 2. Is there substantial evidence to support the contempt order?

¶ Because our resolution of Issue One is dispositive, we decline to address Issue Two.

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FACTUAL BACKGROUND

¶ In October 1997, Lisa B. Kauffman, Esq., applied for a scholarship to attend a legal 

seminar to be held in Puerto Rico commencing on February 4, 1998. The next month, 

on November 14, 1997, Judge Langton appointed Kauffman to represent a mother in 

a proceeding to terminate the mother's parental rights. Shortly thereafter Judge 

Langton set the matter for hearing on February 9 and 10, 1998.

¶ Kauffman made contact with the father's counsel in December 1997, seeking 

information about the whereabouts of the mother. Kauffman then left for a threeweek vacation to Chicago, returning on January 6, 1998. Upon her return, she 

learned that she had been granted the scholarship for the seminar in Puerto Rico. 

Kauffman then focused on a criminal jury trial scheduled for January 12, 1998.

¶ Upon completion of the jury trial, Kauffman began to address her obligations in 

the court appointment. On January 27, 1998, Kauffman spoke with attorney Michael 

Hayes who was representing the State in the termination proceeding. He gave 

Kauffman information he had regarding the mother at that time. Also on January 

27, 1998, Kauffman called Bobbi Baker, the social worker involved, and Patricia 

Sanders, the guardian ad litem. Baker provided the information she had regarding 

the mother and, later that day, contacted Kauffman and gave her the mother's new 

telephone number.

¶ Kauffman's initial contact with her client occurred on January 29, 1998. Also on 

that date Kauffman filed a motion to continue. The motion recited that up until that 

date Kauffman had attempted, without success, to locate her client. The District 

Court denied the motion.

¶ Kauffman next contacted attorney Kirk Krutilla to substitute for her so she could 

attend the Puerto Rico conference. Krutilla obtained Kauffman's file on the matter 

on February 2, 1998. Kauffman departed for Puerto Rico on February 2, 1998, 

without notice to the court or formally seeking a substitution of counsel. The 

termination proceeding commenced as scheduled on February 9, 1998, with Krutilla 

representing the mother.

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¶ Apparently disturbed by Kauffman's actions in connection with the proceeding, on 

March 27, 1998, by certified letter, Judge Langton directed Kauffman to appear 

pursuant to a contempt citation for hearing. Judge Langton also directed other 

parties to the proceeding to file affidavits concerning Kauffman's representation of 

the mother.

¶ Judge Langton held a contempt hearing and determined that Kauffman's version 

of the events conflicted with that of other witnesses who provided testimony. 

Specifically, Judge Langton found that Kauffman's testimony that she had advised 

the mother about the substitution of counsel on January 29, 1998, and that she had 

already contacted Krutilla about taking over the case, conflicted with Krutilla's 

billing statement and testimony at the hearing. Judge Langton further noted that 

Kauffman's testimony conflicted with documents which she filed regarding the dates 

when she received a contact number for her client, when she first spoke with her 

client, and when she filed her motion to continue. Judge Langton also noted that a 

significant time elapsed between the date she affirmatively knew of her scheduling 

conflict and the date she filed her motion to continue.

¶ Judge Langton found that Kauffman's actions were in direct violation of his order 

in which he appointed her to represent the mother in the termination proceedings. 

Judge Langton further found that Kauffman failed to display reasonable diligence 

and promptness in her representation of her client in violation of Rules 1.3 and 3.2 of 

the Rules of Professional Conduct, and made misleading statements to the District 

Court in violation of Rule 3.3. Finally, Judge Langton found that Kauffman engaged 

in conduct prejudicial to the administration of justice in violation of Rule 8.4(c) and 

(d). As a result of these infractions, Judge Langton determined that Kauffman was in 

direct contempt of court as provided by § 3-1-501, MCA.

DISCUSSION

¶ Our established standard for review of contempt orders, pursuant to a writ of 

certiorari, is first to determine whether the court which found contempt acted within 

its jurisdiction and, second, to determine whether there is evidence to support the 

finding of contempt. See Matter of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 

1033, 1038-39.

¶ Kauffman first argues that Judge Langton did not have jurisdiction to issue the 

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contempt order. Kauffman correctly points out that if the court's purpose is to 

punish the contemnor for a specific act done and to vindicate the authority of the 

court, the contempt is criminal. See Gompers v. Buck's Stove & Range Co. (1911), 221 

U.S. 418, 441, 31 S. Ct. 492, 498, 55 L. Ed. 797, 806. This is in contrast to a sanction 

which attempts to force the violator's compliance with a court order, which is civil 

contempt. It is the ability to end the imprisonment that is the distinguishing factor 

and why it is often said that in a civil contempt case one carries the keys to the 

jailhouse in his own pocket. See Gompers, 221 U.S. at 442, 31 S. Ct. at 498, 55 L. Ed. 

at 806. Kauffman maintains that since her conduct can only be characterized as 

criminal contempt, Judge Langton was without jurisdiction to sanction her to jail 

without being prosecuted under Montana's criminal contempt statute, § 45-7-309, 

MCA. 

¶ Judge Langton responds that he was within his jurisdiction to issue the order 

without proceeding under the criminal contempt statute. He points out that summary 

punishment of direct contempt is a traditional and essential power of the court and is 

provided for by statute. Sections 3-1-511 and -519, MCA. Judge Langton provided 

Kauffman an opportunity for allocution which is required in direct contempt 

proceedings. See Malee v. District Court (1996), 275 Mont. 72, 911 P.2d 831. 

¶ Kauffman raises another jurisdictional argument. She contends that Judge 

Langton was without jurisdiction to preside over charges which can only be 

described as indirect contempt. Direct contempt is an open insult committed in the 

presence of the court, whereas an indirect contempt is an act done not in the presence 

of the court, but at a distance that tends to belittle or degrade the court. See Malee, 

275 Mont. at 75-76, 911 P.2d at 832-33. The distinction is critical to a determination 

of the proper procedures which the court must follow.

¶ Kauffman argues that her conduct, which Judge Langton deemed to be 

contemptuous, was indirect or constructive. She argues that because she never 

appeared before Judge Langton until her order to show cause hearing, the matter is 

an indirect or constructive contempt. Kauffman further argues that for indirect 

contempt, the proper procedures which must be followed are spelled out in § 3-1-512, 

MCA, and that Judge Langton acted without authority when he required her to 

appear before him by certified letter. Therefore, she urges that the matter be 

dismissed for lack of jurisdiction.

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¶ Judge Langton states that the contempt in this particular case was direct. Section 3-

1-511, MCA. According to Judge Langton, the direct contempt included oral 

statements made to the court, and written documents filed with the court, both of 

which the Judge personally observed. He argues his authority for the direct contempt 

is found in § 3-1-501(c), (d), and (e), MCA. He states that as District Judge he may 

summarily punish for direct contempt and, in this case, he was within his jurisdiction 

to do so.

¶ Finally, Kauffman argues that should we address the merits of the contempt order, 

there was insufficient evidence to support it. Kauffman maintains that under § 3-1-

501, MCA, Judge Langton apparently proceeded under subsection (c) or (e). She 

argues that there was a one-sentence minute entry which appointed her to represent 

her client in this case, and there were no orders compelling her personal appearance 

at any hearings. She further asserts that she secured alternative counsel for her 

appointed client in the event that her motion to continue was denied. She also points 

out that under § 37-61-403, MCA, an attorney in an action may be changed at any 

time by filing a substitution with the client's consent in the minutes with the clerk. 

She notes that her client had no objection to the substitution. 

¶ Judge Langton responds that Kauffman's affidavit filed on February 9, 1998, is 

irreconcilable in several regards to other statements made by Kauffman, including 

information she provided in her statement of fees, letters to the District Court, and 

her motion for continuance. He argues that this is further exacerbated by her oral 

testimony given at the contempt hearing. Judge Langton points out that her affidavit 

represents that she had diligently tried to locate the client; however, at the hearing it 

was established, through the witnesses and her own testimony, that she did not 

attempt to locate her client until two weeks before the scheduled hearing. In 

summary, Judge Langton argues that this was clearly direct contempt and that he 

sentenced her within his jurisdiction and authority as allowed by the statutes.

¶ We conclude that Kauffman's conduct may have satisfied the elements of § 3-1-501, 

MCA, and, therefore, that it is within Judge Langton's jurisdiction, pursuant to § 3-1-

519, MCA, to issue the contempt order in question. However, as we more fully 

explain below, certain contempt proceedings pursuant to § 3-1-501, MCA, must 

provide for more due process protection for the contemnor than is provided in a 

summary contempt proceeding. 

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Summary contempt proceedings must only be used in instances in which the 

contemptuous conduct requires immediate action in order to vindicate the authority 

of the court. 

¶ As we stated above, the distinction between direct and constructive contempt is 

critical when determining the due process afforded to the contemnor. Actually, the 

alleged conduct in question in this proceeding is probably best described as a mixture 

of both direct and indirect. However, Judge Langton was certainly justified, based on 

our case law, to characterize the alleged conduct in this instance as direct contempt. 

Direct contempt includes acts or statements made in open court or within the 

purview of the presiding judge. See Malee, 275 Mont. at 76, 911 P.2d at 834. We have 

previously expanded the definition of direct contempt to include the filing of 

pleadings placed before the court. See Malee, 275 Mont. at 76, 911 P.2d at 834. In the 

case before him, Judge Langton based his contempt order on written documents 

placed with the court, as well as oral testimony at the contempt hearing.

¶ Regardless of how we classify the conduct at issue, this Court has always been 

vigilant to insure that due process is properly accorded to the person charged. We 

have held that in constructive or indirect contempt proceedings, the following due 

process requirements must be followed:

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 76, 911 P.2d at 833 (citing In re Oliver (1948), 333 U.S. 257, 275, 68 

S. Ct. 499, 508, 92 L. Ed. 682, 695). Additionally, we have held that a court must follow 

the affidavit or statement of facts procedure set forth in § 3-1-512, MCA. 

¶ In cases of direct contempt, on the other hand, we have not afforded full due 

process. We have held that although a contemnor is not entitled to the full due 

process of notice of charges, opportunity to be heard, and an opportunity to present 

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his or her case in front of an unbiased tribunal, he or she is entitled to a right of 

allocution or an opportunity to be heard. See Malee, 275 Mont. at 76, 911 P.2d at 833. 

Pursuant to § 3-1-511, MCA, direct contempt may be summarily punished; however, 

according to our reasoning in Malee, in all summary contempt proceedings "the 

contemnor must be granted an opportunity to explain or excuse himself. Such 

opportunity allows the individual to potentially purge himself or show no contempt 

was intended." Malee, 275 Mont. at 78, 911 P.2d at 834 (citing State ex rel. Smith v. 

District Court (1984), 210 Mont. 344, 347, 677 P.2d 589, 591). Therefore, we held that 

in summary contempt proceedings the contemnor does not have a right to a "fullblown" trial of his or her contempt charges, but does have a right to notice and at 

least a brief opportunity to defend or explain his or her actions. Malee, 275 Mont. at 

78-80, 911 P.2d at 835. This we have described as a right of allocution. See Malee, 275 

Mont. at 78-79, 911 P.2d at 835. 

¶ Because this Court has expanded the definition of direct contempt from being only 

that misconduct which occurs in open court, to language found in pleadings, we have 

created a category of direct contempt that does not necessarily require urgent and 

immediate action in order to preserve and restore order, dignity, and the authority of 

the court. See Malee, 275 Mont. 72, 911 P.2d 831. Urgency considerations generally 

do not exist in this species of direct contempt. The need to sacrifice due process 

concerns for the practical need to maintain an orderly court is not present. 

Therefore, although we affirm this expansion of our definition of direct contempt, we 

believe it is necessary to clarify the situations in which direct contempt may give rise 

to summary contempt proceedings, and the situations in which direct contempt must 

be addressed by proceedings that respect the full due process rights of the accused. 

¶ In Pounders v. Watson (1997), 117 S. Ct. 2359, 2361, 138 L. Ed. 2d 976, 982, the 

United States Supreme Court addressed the summary contempt exception to the 

normal due process requirements of a hearing, counsel, and the opportunity to call 

witnesses. It pointed out that summary contempt "includes only charges of 

misconduct, in open court, in the presence of the judge, which disturbs the court's 

business, where all of the elements of the misconduct are under the eye of the court, 

are actually observed by the court, and where immediate punishment is essential to 

prevent 'demoralization of the court's authority' before the public." Pounders, 117 

S. Ct. at 2361, 138 L. Ed. 2d at 982 (quoting In re Oliver (1948), 333 U.S. 257, 275, 68 

S. Ct. 499, 509, 92 L. Ed. 682, 695) (emphasis added). The Supreme Court has 

stressed the importance of confining summary contempt orders to only that 

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misconduct which requires immediate action to protect the judicial institution itself. 

See Harris v. United States (1965), 382 U.S. 162, 167, 86 S. Ct. 352, 356, 15 L. Ed. 2d 

240, 243-44. This usually occurs in proceedings in the courtroom during which the 

"affront to the court's dignity is more widely observed, justifying summary 

vindication." Pounders, 117 S. Ct. at 2362, 138 L. Ed. 2d at 982. A limitation of 

summary contempt proceedings to instances in which the misconduct threatens the 

court's immediate ability to conduct its proceedings is in line with the policy 

consideration that contempt power is subject to abuse, and "only 'the least possible 

power adequate to the end proposed' should be used in contempt cases." Young v. 

United States ex rel. Vuitton et Fils S.A. (1987), 481 U.S. 787, 801, 107 S. Ct. 2124, 

2134, 95 L. Ed. 2d 740, 754. 

¶ The importance of the due process limitation on the authority of a court to issue a 

summary contempt order was aptly recognized by Justice Frankfurter in his 

dissenting opinion in Sacher v. United States (1952), 343 U.S. 1, 72 S. Ct. 451, 96 L. 

Ed. 717:

Summary punishment of contempt is concededly an exception to the requirements of Due 

Process. Necessity dictates the departure. Necessity must bound its limits. In this case the 

course of events to the very end of the trial shows that summary measures were not 

necessary to enable the trial to go on. Departure from established judicial practice, which 

makes it unfitting for a judge who is personally involved to sit in his own case, was 

therefore unwarranted. . . . 

This, then, was not a situation in which, even though a judge was personally involved as 

the target of the contemptuous conduct, peremptory action against contemnor was 

necessary to maintain order and to salvage the proceedings. Where such action is 

necessary for the decorous continuance of a pending trial, disposition by another judge of 

a charge of contempt is impracticable. Interruption for a hearing before a separate judge 

would disrupt the trial and thus achieve the illicit purpose of a contemnor.

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Sacher, 343 U.S. at 36-37, 39, 72 S. Ct. at 468, 469-470, 96 L. Ed. at 737 (Frankfurter, J. , 

dissenting). We recognized these limits to a court's summary contempt power in Lilenthal 

v. District Court (1982), 200 Mont. 236, 650 P.2d 779, in which we held:

Unless the act constituting contempt occurs in open court where immediate punishment is 

necessary to prevent demoralization of the court's authority, due process requires: 

". . . that one charged with contempt of court be advised of the charges against him, have a 

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." In Re Green (1962), 359 [369] U.S. 689, 

691-92, 82 S.Ct. 1114, 1116, 8 L.Ed.2d 198, 200; Re Oliver (1948), 333 U.S. 257, 275, 68 

S.Ct. 499, 508, 92 L.Ed. 682, 695.

Lilenthal, 200 Mont. at 242, 650 P.2d at 782 (emphasis added). 

¶ With these considerations in mind, we conclude that regardless of the type of 

contempt committed, direct or indirect, a court's primary consideration before 

subjecting a contemnor to summary contempt proceedings, must be whether 

immediate corrective steps are necessary to restore order, maintain dignity and 

authority of the court, and to prevent delay. Otherwise, a contemnor is entitled to the 

full due process hearing traditionally associated with indirect contempt, a finding, in 

instances in which criminal punishment is a consequence, that the evidence 

establishes the contemnor's guilt beyond a reasonable doubt, and a hearing in front 

of an unbiased court other than that in which the misconduct occurred. See In re 

Murchison (1955), 349 U.S. 133, 136-39, 755 S. Ct. 623, 625-27, 99 L. Ed. 942, 946-48; 

State ex rel. Tague v. District Court et al. (1935), 100 Mont. 383, 388, 47 P.2d 649, 651.

¶ Accordingly, we conclude that a district court may subject a contemnor to 

summary contempt proceedings in those circumstances in which the misconduct 

threatens the court's immediate ability to conduct its proceedings and instant action 

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is necessary. We further recognize that the trial judge must and does have the 

inherent authority and power to address and summarily punish such conduct. 

Certainly our decision in this case should not be viewed to diminish this traditional 

authority. Pursuant to our decision in Malee, the contemnor in a summary contempt 

proceeding maintains his or her right of allocution. 

¶ In cases in which it is not necessary for a court to take instant action, however, a 

contemnor is entitled to full due process. This includes a hearing before a neutral 

judge, during which the contemnor is advised of the charges against him or her, has 

a reasonable opportunity to meet them by way of defense or explanation, has the 

right to be represented by counsel, has a chance to testify and call other witnesses on 

his behalf, and, in instances in which criminal punishment is a consequence, a finding 

of guilt beyond a reasonable doubt.

¶ The facts of this case bring the immediacy requirement of summary contempt into 

clear focus. Here the underlying hearing at which Kauffman failed to appear had 

already transpired with substitute counsel. Likewise, the District Court did not 

determine that Kauffman had filed the alleged misleading documents until after the 

hearing. That being the case, there was no urgency or immediacy to the question of 

whether Kauffman's conduct was contemptuous. The matter could be handled, as it 

was, in a subsequent and separate hearing involving the issue of contempt. 

¶ We conclude that because Kauffman's conduct in this case allegedly constitutes 

contempt that did not necessitate immediate action, a summary contempt proceeding 

by the same judge was not necessary and violated Kauffman's due process rights. We 

remand this case for a hearing in front of a different judge in a manner consistent 

with this opinion.

¶ The judgment of the District Court is reversed.

/S/ JIM REGNIER 

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We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

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