No. 89-59 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

GARY G. DORAN, 

Petitioner and Appellant, 

-vsTHE CITY COURT OF WHITEFISH, MONTANA, 

and THE HONORABLE BRADLEY I?. JOHNSON, 

a Judge thereof, 

Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial ~istrict, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James D. Moore; Moore & Doran, ~alispell, Montana 

For Respondent: 

Bradley F. Johnson, whitefish city Judge, whitefish, 

Montana 

Filed: 

submitted on ~riefs: May 18, 1989 

Decided: September 7, 1989 

a 
Mr. Justice William E. Hunt, Sr., delivered the opinion of 

the Court. 

The District Court of the Eleventh Judicial District, 

Flathead County, granted a writ of certiorari and supervisory 

control to review the propriety of sanctions and contempt 

imposed upon Petitioner, Gary G. Doran, by the City Court of 

Whitefish. After the ~istrict Court affirmed the City Court 

without a hearing, Petitioner moved to alter or amend the 

judgment. ~ollowing a hearing, the District Court denied the 

motion. petitioner appeals. We reverse and remand. 

The sole issue raised on appeal is whether the District 

Court erred in upholding the city Court's imposition of 

sanctions and contempt. 

petitioner is an attorney at law, practicing in the 

~alispell area. On February 9, 1988, he agreed to defend 

Anthony Conces against a charge of driving while under the 

influence, pending in the Whitefish City Court. Conces had 

been charged with the offense on November 23, 1987, and, 

prior to obtaining petitioner's services, had represented 

himself in the matter. Apparently, during the period Conces 

represented himself, he was granted a series of continuances 

by the City Court, and therefore was not arraigned until 

January 19, 1988. On the same day he agreed to represent 

Conces, Petitioner called the City Court to verify the trial 

date and was informed that a jury trial was scheduled for 

February 24, 1988. 

On February 16, 1988, petitioner began a district court 

jury trial, State v. Beggio. sometime after the trial began, 

the Honorable ~ichael H. Keedy, judge for the Eleventh 

~udicial ~istrict Court, scheduled an emergency child custody 

hearing for Wednesday, February 24, 1988, at 9:30 a.m., a 
time that directly conflicted with the Conces trial in City 

Court. petitioner, as representative of the child, was 

required to attend the hearing. Petitioner's office received 

notice of the custody hearing on Thursday, February 18, 1988, 

while Petitioner was still involved in the ~eggio trial. 

Because of the continuing nature of the Beggio trial, 

Petitioner did not return to his office until Friday, 

February 19, 1988, and did not receive actual notice of the 

conflict with the Conces trial until after 5 p.m. on that 

day. 

On Monday, February 22, 1988, closing arguments in State 

v. ~eggio were made; the trial was completed at approximately 

12:30 p.m. That afternoon, Petitioner represented defendants 

in two separate proceedings, a felony arraignment and a 

felony sentencing. He instructed his secretary to contact 

the whitefish City Court to advise it of the conflict of 

February 24. Petitioner's secretary called the City Court 

two times during the afternoon of February 22 and was advised 

by the city Court clerk that it was unlikely that a 

continuance would be granted. 

On the morning of Tuesday, February 23, 1988, after 

attending a probation revocation hearing before the District 

Court, petitioner called the City Court. He was advised by 

the City Court clerk that the Judge was busy and that no 

continuance had been granted. He was told to call back in 15 

minutes, which he did, only to be informed that the Judge had 

left for the day without granting a continuance. Petitioner 

then called the City Judge's home phone and left a message on 

the Judge's answering machine. The City Judge disputes ever 

having received such a message, maintaining that the 

recording device on his answering machine was not operating 

on February 23. 
petitioner then prepared a written motion to continue, 

which his law partner delivered to the whitefish Police 

Department, located next to the City Court, at about 3:30 

p.m. on February 23. The motion was left with the police 

department because it appeared that no one was present at 

City Court. The motion was accompanied by a letter signed by 

~istrict Court Judge Keedy, stating that the Conces trial 

directly conflicted with a district court hearing. 

The City Judge did not receive the motion to continue 

until the following morning, February 24, 1988, the day set 

for the Conces trial. At 10 a.m. that day, a jury panel was 

assembled, and the city Court was brought into session. When 

the Conces case was called, neither the defendant nor anyone 

on his behalf appeared. Due to the absence of the defense, 

the City Court granted a continuance. The court then 

proceeded with its calendar, hearing the case of City v. 

Ross, in which the defendant was found guilty and assessed a 

portion of the jury costs. 

Later that day, the City Judge wrote a letter to 

petitioner, advising him: 

[Ylou have a duty and obligation to this Court 

which has no less dignity than that accorded 

District Court. This Court will not allow you to 

simply dictate and announce your course of dealing 

on matters currently pending and then escape the 

obvious and foreseeable consequences of your 

actions. 

The Judge imposed financial sanctions against petitioner in 

the amount of $132, the cost of summoning the jury, to be 

paid by March 10, 1988. 

When petitioner failed to pay the sanctions, the city 

Court directed him to appear on March 21, 1988, to show cause 

why he should not be held in contempt. On March 18, 1988, 

Petitioner moved the court to reset the hearing due to 
conflicts with previously scheduled District Court hearings. 

On March 24, 1988, petitioner forwarded a letter to the City 

Judge, stating that he felt that imposition of sanctions was 

unreasonable. He enclosed an affidavit detailing the 

circumstances leading to the February 24, 1988, sanctions. 

In response, the court set a final due date of April 8, 1988, 

for settlement of the sanctions. When Petitioner again 

failed to pay the sanctions, the court set another show cause 

hearing for April 20, 1988. petitioner appeared on that 

date, refused to pay the sanctions, was found in contempt and 

fined $25. At that time, he served the City Judge with a 

writ of certiorari and supervisory control issued by the 

District Court. 

On September 12, 1988, the District Court issued a 

memorandum and order upholding the City Court's contempt 

citation. petitioner moved the Court to alter or amend the 

judgment. After a hearing, the ~istrict Court denied the 

motion. From this order, petitioner appeals. 

Although a contempt of court citation is not an 

appealable order, a higher court may review the citation by 

way of a writ of certiorari. section 3-1-523, MCA. On 

review, the higher court determines whether the tribunal 

issuing the contempt order acted within its jurisdiction, and 

whether substantial evidence supports the finding of 

contempt. In re the Contempt of Graveley (1980), 188 Mont. 

546, 555, 614 P.2d 1033, 1039. 

By statute, a city court may punish an individual for 

contempt when that individual disobeys or resists the 

"execution of a lawful order or process made or issued by the 

judge." Section 3-11-303, MCA (emphasis added). We must 

therefore determine whether the imposition of sanctions by 

the City Court for Petitioner's failure to appear on the day 

of trial after repeatedly requesting a continuance 
constituted a lawful order. If the order was not lawful, the 

City Court exceeded its jurisdiction when it cited Petitioner 

for contempt. 

A city court, like any other court, has the power to 

"provide for the orderly conduct of proceedings before it or 

its officers." Section 3-1-11 (3) , MCA. This power, 

however, may not be exercised arbitrarily. 

While we commend the City Court for its efforts to 

provide for the orderly conduct of proceedings before it, we 

nevertheless hold that, in this case, the court acted 

arbitrarily when it imposed sanctions against Petitioner. 

Petitioner had no choice but to attend the district court 

hearing. It was impossible for him to be in two places at 

one time. Furthermore, petitioner excercised due diligence 

in attempting to alert the City Court of the conflict. In 

addition to making several phone calls to the City Court, 

petitioner delivered to the Whitefish police Department a 

letter signed by District Court Judge Keedy, stating that the 

conflict existed. The City Court had this letter in its 

possession on the morning of the day set for trial. 

In addition, the City Court acted arbitrarily in 

imposing jury costs as a sanction against petitioner. The 

record shows that the jury mustered for the Conces trial was 

used in another trial heard in City Court that very same day. 

In the other trial, City v. Ross, the defendant was found 

guilty and assessed jury costs. Thus, the sanction of jury 

costs against Petitioner amounted to double recovery. 

Because the City Court acted arbitrarily, the imposition 

of sanctions did not constitute a lawful order. Therefore, 

the City Court exceeded its jurisdiction when it cited 

petitioner for contempt for failing to pay the sanctions. 
Reversed and remanded for entry of an order dismissing 

the contempt citation and sanctions imposed against 

petitioner. /