IN THE SUPREME COURT OF THE STATE OF MONTANA 

NO. 83-446 

STATE OF MONTANA, ex rel. 

LA RUE SMITH, 

THE DISTRICT COURT OF THE 

EIGHTH JUDICIAL DISTRICT OF 

THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF CASCADE, and 

THE HONORABLE JOHN M. McCARVEL, 

District Judge, 

Respondents. 

ORDER AND OPINION 

Relator filed herein a petition for a writ of certiorari to annul and set aside an order of the District Court of 

Cascade County and the Honorable John M. McCarvel, District 

Judge, finding relator in contempt of court and fining him 

$50. The petition is accompanied by an affidavit by relator, 

an affidavit of Ken Dixon, an affidavit of Virginia A. Dixon, 

a partial transcript of the record in the District Court, a 

memorandum of authorities and a cashier's check in lieu of 

bond. Relator also requested that the District Court order 

finding him in contempt should be stayed pending determination of his petition for writ of certiorari. 

On September 28, 1983, we entered an ord-er staying 

further proceedings in the contempt matter against relator 

during the pendency of this action and directed respondents 

to file a written response together with appropriate documentary exhibits and legal memorandum. 

On October 6, 1983, relator filed a supplemental 

memorandum of authorities in this cause. 
On November 9, 1983, respondents filed a written response to the petition for writ of certiorari. 

On the same date, relator filed a motion to annul the 

contempt order. 

The matter has been submitted to this Court for 

decision. 

The statutory procedure for contempt committed. in the 

court's presence is set forth in section 3-1-511, MCA: 

"When a contempt is committed in the 

immediate view and presence of the court 

or judge at chambers, it may be punished 

summarily, for which an order must be 

made reciting the facts as occurring in 

such immediate view and presence and 

adjudging that the person proceeded 

against is thereby guilty of a contempt 

and that he be punished as therein 

prescribed." 

This statute has remained virtually unchanged for several 

generations. Our court on numerous occasions has interpreted 

its language, consistently holding the primary requirement is 

that an order be issued by the court settinq forth the facts, 

not the conclusions which have led to the contempt. This 

requirement is necessary so that a record exists which the 

convicted contemnor may submit to the Supreme Court for 

review. Rankin v. District Court (1920), 58 Mont. 276, 289, 

191 P. 772, 775. When the facts of the proceeding below are 

before this Court, as opposed to the judge's mere conclusions, we are better able to determine whether contempt did 

in fact occur. 

Judge McCarvel's order of contempt, dated September 20, 

1983, reads in part as follows: 

"That the attorney for the Defendants, 

Scott Radford, commenced addressing the 

Court on a motion pending before the 

Court and during the course of his presentation, LaRue Smith stood up and 

interrupted the attorney for the Defendants. The Court then ordered attorney 

LaRue Smith to be seated. LaRue Smith 
refused to be seated. The Court repeated 

the order on two separate occasions. 

Attorney LaRue Smith defied the Court and 

refused to be seated. The Court then 

advised attorney LaRue Smith that he was 

in contempt of the Court and fined him 

$50.00. " 

This recitation of the facts provides a sufficient basis for 

us to affirm Judge McCarvel's decision. Mr. Smith's defiance 

of the court's repeated order to sit down satisfies our 

contempt statute, section 3-1-501 (1) (a) , MCA, in which "disorderly, contemptuous, or insolent behavior toward the judge 

while holding the court tending to interrupt the due course 

of a trial or other judicial proceeding," is explicitly 

enumerated as an act of contempt. It should be emphasized 

that Mr. Smith is not being punished for exercising his right 

as an attorney to stand up, represent his client's interests 

and object to testimony. This conduct in and of itself is 

not contemptible. However, the further refusal to sit down 

when so ordered by the court clearly can constitute contempt. 

We have reviewed this Court's decision in In re Mettler 

(1915), 50 Mont. 299, 146 P. 747. Mr. Mettler's contempt 

conviction for refusing to sit down at trial was overturned 

when the contempt order was found fatally defective for 

failing to recite the complete factual basis of the contempt. 

To the extent that our holding today is inconsistent with 

this older opinion, In re Mettler is overruled. The orders 

issued in both cases are similar and both in our estimation 

provide this Court with sufficient facts to review a contempt 

conviction. 

In a.ddition to the statutory requirement of an order 

setting forth the facts of the contempt, the contemnor must 

be granted an opportunity to explain or excuse himself. Such 

opportunity allows the individual to potentially purge him- 
self or show no contempt was intended. Rankin v. District 

Court, 58 Mont. at 291, 191 P. at 776. 

In the present case the transcript reveals that Mr. 

Smith was given such an opportunity. Judge McCarvel near the 

end of the hearing listened to the attorney's apology and 

explanation as to why he had remained on his feet. The 

opportunity to be heard need not arise in a formal hearing, 

separate and distinct from the proceeding in which the contempt arose. All that is required is the contemnor be made 

aware of his offensive conduct and allowed an opportunity to 

speak on his behalf. Mr. Smith was provided such opportunity 

and this Court will not reverse the District Court's decision 

to proceed with its order of contempt. 

IT IS ORDERED: 

1. The petition for writ of certiorari and motion to 

annul the contempt order is denied and this proceeding dismissed on the grounds that the contempt order of District 

Judge John M. McCarvel satisfies the requirements of section 

3-1-511, MCA. 

2. This cause is remanded to the District Court of 

Cascade County for collection of the fine as provided by law; 

the stay order entered by this Court on September 28, 1983, 

is vaca.ted and set aside. 

3. The Clerk is directed to mail a true copy hereof to 

counsel of record for the respective parties. 

&~PC/; 

DATED this p/ day of R?kw+&, 1984. 

?& 4$@- 4 

Chief Justice 
Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

No. 83-446 

STATE OF MONTANA, ex rel. LA RUE SMITH, 

Relator, 

VS . THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT 

OF THE STATE OF MONTANA, IN AND FOR THE COUNTY 

OF CASCADE, AND THE HONORABLE JOHN M. McCARVEL, 

DISTRICT JUDGE, 

Respondents. 
Mr. Justice Daniel J. Shea, dissenting: 

I dissent. The District Court failed to comply with the 

statute, and the majority have glossed over that short cut. 

Section 3-1-511, MCA, clearly requires that an order must be 

made reciting the facts of the contempt. Rankin and Mettler 

are sound interpretations of the requirement, and the 

majority further erred in overruling Mettler. After 

declaring Mettler overruled, the majority notes the order in 

that case provides a sufficient factual basis for review of a 

contempt conviction. 

The interest in judicial economy, a desirab1.e goal, must 

not become so pervasj-z7e as to allow its sweep to quash the 

due process right of the parties involved. 

If all that were required were that the contemnor be 

made aware of his offensive conduct and allowed an 

opportunity to speak on his behal-f, the statute would not 

have specifically called for an order. I would grant the 

writ of certiorari a.nd set aside the contempt order.