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OP 08-0018

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 79

_______________

OFFICE OF THE STATE PUBLIC DEFENDER

and JEFFREY BRYAN COMPTON, 

Petitioners, O R D E R 

v. and

WHITEFISH CITY COURT, O P I N I O N 

BRADLEY F. JOHNSON, City Judge, 

Respondent. 

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¶1 The Office of the State Public Defender (OSPD) and Jeffrey Bryan Compton 

(Compton) petitioned this Court for a writ of supervisory control. We issued an order 

granting the Whitefish City Court, Whitefish City Attorney and/or Attorney General 

twenty days to respond to the petition. City Judge Bradley F. Johnson (Judge Johnson) 

filed a pro se response, and Clifton W. Hayden has filed a response on behalf of the City 

of Whitefish.

¶2 The petition requests that we order Judge Johnson to appoint the OSPD to 

represent Compton and prohibit the Whitefish City Court from requiring Compton to 

provide financial information to the City Court in support of the appointment of counsel, 

and to rule that once the OSPD determined Compton eligible for OSPD representation, 

the Court has no authority to interfere with the OSPD’s representation of Compton. 

March 5 2008
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Finally, Petitioners argue that Compton’s financial information is confidential under 

§ 47-1-111, MCA, which bars OSPD from disclosing Compton’s financial information.

¶3 Compton was arrested and charged with first offense DUI, eluding a police officer 

and expired vehicle registration on December 5, 2007, and was incarcerated in the 

Flathead County Detention Center. At his initial appearance before Judge Johnson, 

Compton was advised of his rights, including his right to counsel, and bail was set. 

Compton then advised Judge Johnson that he would hire his own counsel. Several days 

later, at Compton’s arraignment before the City Court, Judge Johnson again reviewed 

Compton’s rights with him. Compton continued to unequivocally assert that he would 

provide his own counsel and rejected the Judge’s offer of forms used by OSPD to request 

appointment of counsel. Compton was initially unable to post bail, but ultimately posted 

bond with his mother’s assistance and was released. 

¶4 The affidavit of managing attorney for the Kalispell OSPD office, Nick 

Aemisegger, Jr. (Aemisegger), is filed with the petition and indicates that on or about 

December 19, 2007, Compton advised an OSPD attorney that he wanted an attorney 

appointed for him. On December 21, the office secured a handwritten document from 

Compton which requests appointment of counsel. The document Compton provided is 

whimsical in nature, closing with “Yours, Butter True,” including a P.S. stating 

“Whitefish is a railroad town history” and asking for “a lawyer that is not over-run with 

multi million cases.” The document appears to have Compton’s signature at the top of 

the page. OSPD offers that “Butter True” is apparently Compton’s nickname.
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¶5 At a subsequent omnibus hearing, Aemisegger appeared in City Court and 

requested permission to file a notice of appearance on behalf of Compton, who was not 

present. Aemisegger responded to questions from Judge Johnson indicating he was not 

retained as private counsel or appearing on a pro bono basis. No written request of any 

kind for appointment of counsel was presented, and Judge Johnson refused to enter 

OSPD’s appearance due to the absence of documents demonstrating an attorney/client 

relationship.

¶6 Thereafter, the handwritten document described above signed by Compton as 

“Butter True” was faxed by OSPD to Judge Johnson. When OSPD public defender Brent 

Getty appeared in City Court on other matters, he asked Judge Johnson about the status of 

Compton’s conditional appointment of counsel. Judge Johnson indicated he would make 

a conditional appointment when Compton requested counsel, either in person or by an 

appropriate written request. 

¶7 OSPD counsel John O. Putikka (Putikka) then faxed and mailed a letter to Judge 

Johnson on January 4, 2008, advising that his office had not received a conditional 

appointment from the City Court to represent Compton. Putikka stated the OSPD could 

not release the Application for Court Appointed Counsel which Compton had completed 

to Judge Johnson, but that Compton financially qualified for court-appointed 

representation. 

¶8 Judge Johnson responded with a faxed memorandum (Appendix 4 to the Petition) 

stating that he would not exercise the authority under § 47-1-111(1), MCA, to appoint 

counsel without credible evidence documenting Compton’s financial status. On January 
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7, 2008, Aemisegger responded with a letter via fax citing Rios v. Harris, 2006 MT 256, 

334 Mont. 111, 148 P.3d 602, in support of OSPD’s position to the contrary. 

¶9 According to Aemisegger’s affidavit, OSPD made efforts to locate Compton, 

including contacting his mother, who advised OSPD that Compton was homeless and that 

she did not know his whereabouts. The affidavit further indicates OSPD received a 

phone call from Compton on January 7, 2008, in which he informed Aemisegger he was 

staying at the Poverello Homeless Shelter in Missoula and that he had no transportation 

to attend the omnibus hearing the following day, but that he had confirmed his request 

that OSPD represent him. At the January 8, 2008, omnibus hearing, Aemisegger and 

Putikka attempted to enter an appearance on Compton’s behalf. Judge Johnson verbally

responded to Aemisegger’s January 7, 2008, fax and distinguished the Rios case from 

Compton’s because in Rios, the judge had made an appointment of counsel, whereas in 

Compton’s matter, Judge Johnson had not yet made an appointment.

¶10 Both Hayden and Judge Johnson indicate that, during the hearing, Putikka shoved 

a MCA volume over the bench in front of Judge Johnson and demanded Judge Johnson 

show him the law which the judge was relying upon in denying the appointment of 

counsel. Judge Johnson began reading § 47-1-111(1)(a), MCA, following which a 

discussion ensued about how an appointment of counsel is to be initiated, who controls 

the appointment, formation of the attorney-client relationship and the client’s right to 

confidentiality of the information contained in the request for appointment of counsel. 

Possible solutions were discussed, including a waiver of confidentiality for the limited 

purpose of appointment of counsel. Judge Johnson then suggested that OSPD draft and 
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submit a simple document stating that Compton wished court-appointed counsel and that 

Compton sign the document in his own name. Citing difficulty in contacting Compton 

because he was homeless, OSPD rejected this and the other proposed solutions. OSPD 

then filed this petition for supervisory control.

LEGAL ARGUMENTS

¶11 Citing Rios, ¶ 10, OSPD argues that Judge Johnson exceeded his legal authority 

and is proceeding under a mistake of law. OSPD argues that Judge Johnson has initiated 

a review process based on his own doubts about the defendant’s eligibility and in doing 

so has violated Rios.

¶12 Judge Johnson distinguishes Rios because the court there had made an 

appointment of counsel, then demanded the financial information, whereas no appropriate 

request for appointment and no appointment of counsel has been made in Compton’s 

case. The Judge further argues that if the power to appoint is simply a pro forma matter 

with no discretion, the proper remedy is a petition for mandamus from a local district 

court.

¶13 Assistant City Attorney Clayton W. Hayden (Hayden) argues the normal appeal 

process affords Compton an adequate remedy because, in the absence of a guilty plea or a 

plea with reserved issues, the remedy for any error of law in a city court is trial de novo, 

citing § 46-17-311, MCA. Hayden contends that Compton explicitly rejected appointed 

counsel twice when he was personally present in City Court, and then, after Compton was 

released on bond, OSPD produced only a handwritten document that is neither 

acknowledged nor witnessed, but signed “Butter True,” which Hayden concludes is not a 
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credible request for counsel. While Aemisegger and Putikka verbally stated that 

Compton wishes court-appointed counsel, in the absence of an appropriate oral or written 

request by Compton, Hayden argues the Judge was correct in denying the OSPD’s 

appearance on behalf of Compton. Because Judge Johnson offered Compton the 

opportunity to request appointed counsel twice and Compton expressly refused, Judge 

Johnson was thereafter left with statements from OSPD counsel and a questionable 

written request. 

¶14 Finally, Hayden contends no confidentiality issue exists because applicants 

frequently fill out such appointment requests and have the City Court transmit them to 

OSPD. If the requests were confidential, the City Court could have no part in 

transmitting them to OSPD. Further, even assuming for the sake of argument that the 

“Butter True” document is genuine, Compton had already disclosed his net worth to City 

Court, and any confidentiality was thereby waived. Hayden further reasons the standard 

application form contains an acknowledgment that, in then event of conviction, the signer 

understands the financial information provided therein may be used to determine ability 

to pay fines, fees or costs, thus demonstrating that the information is subject to further 

use. 

DISCUSSION

¶15 Supervisory control is an extraordinary remedy this Court exercises only in 

extraordinary circumstances when appeal is an inadequate remedy, a court is proceeding 

under a mistake of law, which if not corrected, will result in a significant injustice. 

M. R. App.14; Inter-Fluve v. Montana Eighteenth Judicial District Court, 2005 MT 103, 
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¶ 17, 327 Mont. 14, ¶ 17, 112 P.3d 258, ¶ 17. The threshold petitioners must first meet is 

demonstrating that the City Court is proceeding under a mistake of law.

¶16 The conditional appointment process was designed to provide counsel to 

potentially qualified defendants at or prior to their initial appearance before the court. 

Rios, ¶ 6. Once the appointment is made, it is the responsibility of OSPD to verify 

whether the defendant meets the criteria for eligibility. Rios, ¶ 7. In Rios, we recognized 

that OSPD has a duty to make an initial determination of eligibility for court-appointed 

counsel, and that § 47-1-111(1)(d), MCA, does not impose a gatekeeper role on the 

courts. Rios, ¶ 11. Following the initial order to assign counsel, a court’s involvement is 

limited “to those circumstances in which either of the parties request review regarding a 

defendant’s eligibility for public defender services.” Rios, ¶ 10.

¶17 However, although we acknowledge these principles from Rios, this case is 

factually and posturally different from Rios because the dispute here arises at the very 

beginning of the process—prior to the initial court order for appointment of counsel. The 

statute assumes that a court’s initial order for appointment of counsel will follow an 

appropriate request by a defendant for such appointment. Here, the question is whether 

an appropriate request was actually made.

¶18 Given Compton’s two emphatic refusals of appointed counsel made in personal 

appearances before Judge Johnson, it was not unreasonable for Judge Johnson to request 

submission of an appropriate written request from Compton before ordering appointment

of counsel to verify Compton’s change in position. Compton had clearly refused 

appointed counsel, and his “Butter True” request lacked credibility and was 
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inappropriate. Further, the reasons offered by OSPD for its inability to obtain a formal 

signed request from Compton and to submit such a request to the court are incredulous. 

If OSPD cannot manage the task of obtaining an appropriately signed request from 

Compton, its ability to represent him for the remainder of the proceeding should be 

seriously questioned.

¶19 Further, OSPD’s argument that the information on Compton’s application for 

counsel is confidential and cannot be disclosed is unavailing. Although OSPD argues 

that the information “was confidential under Mont. Code Ann. § 47-1-111,” that statute

provides no such confidentiality. Though § 47-1-111(2)(c), MCA, provides that 

information disclosed in the application “is not admissible in a civil or criminal action” 

except in circumstances not relevant here, the issue in this case does not involve the 

evidentiary admission of the information in litigation. Rather, the appointment of counsel 

is at issue here and, for that purpose, the information may be appropriately considered by 

a court. It is necessarily so—in Rios we acknowledged that the court may play a role in 

resolving problems in the appointment process and, to do so, the information would need 

to be reviewed. Rios, ¶ 11. Any regulation to the contrary is beyond the scope of the 

statute and invalid. 

¶20 In the future, we expect OSPD to be more resourceful in promptly resolving 

conflicts concerning representation and working with appointing courts in a respectful 

manner. Under no circumstances is it necessary or appropriate to toss a statute book over 

the bench toward a judge. Therefore, 
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¶21 IT IS HEREBY ORDERED that the petition for a writ of supervisory control is 

DENIED. If Compton still desires appointment of counsel, he may submit an appropriate 

request verifying his change of mind, and his eligibility for appointed counsel may be 

determined in accordance with statute.

¶22 The Clerk is directed to mail a true copy hereof to all counsel of record and to 

Honorable Bradley F. Johnson, City Court Judge. 

DATED this 5

th day of March, 2008. 

/S/ KARLA M. GRAY

/S/ JIM RICE

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ BRIAN MORRIS