IN THE SUPREME COURT OF THE STATEOF MONTANA NO. 83-446

STATEOF MONTANA, ex rel. LA RUE SMITH,

THEDISTRICTCOURT OF THE EIGHTH JUDICIAL DISTRICTOF THE STATEOF MONTANA, INAND FOR THE COUNTYOF CASCADE,and THEHONORABLE JOHNM. McCARVEL, DistrictJudge, Respondents.

ORDERAND OPINION

Relator filed herein apetition 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. Thepetition is accompaniedby an affidavitby relator,

an affidavit of Ken Dixon,an affidavitofVirginia 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 hispetition forwrit 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 awritten response togetherwith appropriate documentary exhibits and legalmemorandum. On October 6, 1983, relator filed a supplemental memorandum of authorities in this cause.On November 9, 1983, respondents filed a written response to thepetition 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, itmay 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 courton numerous occasionshas interpreted its language,consistently holding the primary requirement is that an orderbe issuedby 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. JudgeMcCarvel's order of contempt,dated September 20, 1983, reads inpart 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 Smithrefused to be seated. The Court repeated the order on two separate occasions. Attorney LaRue Smithdefied 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 thatMr. Smith is not being punished for exercising his right

as an attorney to stand up, representhis 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 orderedby the court clearly can constitute contempt. We have reviewed this Court's decision in In reMettler (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 reMettler 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 excusehimself. Such opportunity allows the individual to potentially purge him-self or show no contempt was intended. Rankin v. District Court, 58Mont. at 291, 191 P. at 776. In the present case the transcript reveals that Mr. Smithwas given such an opportunity. JudgeMcCarvel 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. Smithwas provided such opportunity and this Courtwill not reverse the DistrictCourt's decision to proceed with its order of contempt. IT ISORDERED: 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 asprovided by law; the stay order entered by this Court on September 28, 1983, isvaca.tedand setaside. 3. The Clerk is directed tomail a true copy hereof to counsel

### of record for the respectiveparties. &~PC/; DATED this 

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

# ?& 4$@- 4 Chief JusticeMr. Justice Daniel J. Sheadissents and will file awritten dissent later.DISSENT OF MR. JUSTICE DANIEL J. SHEA

No. 83-446 STATEOF 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. JusticeDanielJ. Shea,dissenting:

Idissent. The DistrictCourt failed 

### to complywith 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 caseprovides a sufficient factual basis for reviewof a contempt conviction. The interest in judicial economy, a desirab1.egoal,must not become so pervasj-z7eas to allow its sweep to quash the dueprocess 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.ndset aside the contempt order.