# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 22-0135

JOHN and HEATHER STENSON, individually and on behalfofminor child, R.L.S., 

# FILED APR 19 2022
Bowen Greenwood Clerk of Supreme Court State n1Mnntana 

### Petitioners,

v. ORDER MONTANA SECOND JUDICIAL DISTRICT COURT, HON. RAY J. DAYTON, Presiding

Respondent.
Through counsel, PetitionersJohn and Heather Stenson, individually andonbehalfof minor child R.L.S., seek a writ of supervisory control over the Second Judicial District Court, Butte-Silver BowCounty, and Honorable Ray J. Dayton, to direct the District Court to enter a protective order to prevent the deposition ofR.L.S. in the underlying Cause No. DV 20-252. Stensons are the parents of 17-year-old R.L.S., who was a student at Butte Central Catholic High School. One ofhis teachers, Brad Kadrmas, lived with his wife Amy and their son D.K. in an apartment in the school building. Stensons allege that the Kadrmases invited R.L.S.tothe apartment multipletimes, whereAmyprovided him alcohol, cigarettes, and marijuana. Stensons filed a negligence action against the Kadrmases and Butte Central Catholic High School, Butte Central Schools, Roman Catholic Diocese of Helena, and Roman Catholic Bishop of Helena (collectively "Religious Entities"). They claim that R.L.S. suffered severe emotional distress arising frorn Amy's alleged conduct and that after public exposure ofthe activity he was branded a "narc", leading to ostracism, isolation and additional mental health and substance abuse issues. The Religious Entities noticed the deposition of R.L.S., and Stensons sought a protective order to preclude it. After considering the parties' arguments, the District Court 04/19/2022

Case Number: OP 22-0135denied Stensons' request, concluding that they had not met their burden to show that

"good cause exists to prevent the harm or prejudice that will result from taking the deposition of R.L.S." Stensons now seek this Court's intervention, arguing that the District Court ignored the physical risks identified by Dr. Roy Lubit, who conducted a forensic psychiatric evaluation of R.L.S. and whose opinions they allege were uncontroverted. At our invitation, the ReligiousEntitieshaveresponded and urgethe Court to deny supervisory control. Amy Kadrmas also has filed aresponse adoptingandjoiningin the arguments the Religious Entities advance. Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors existmakingthe nonnal appeal process inadequate,whenthe

case involves purely legal questions, and, applicable to the Stensons' arguments, when the other court is proceeding under a mistake of law and is causing a gross injustice. M. R. App. P. 14(3). In that regard,supervisorycontrol is appropriatewhen the district court is proceeding based on a mistake of law which, if uncorrected, would cause significant injustice for which an appeal is an inadequate remedy. Truman v. Mont. Eleventh Judicial Dist. Court, 2003 MT 91, ¶ 13, 315 Mont. 165, 68 P.3d 654 (citing Park v. Sixth Judicial Dist. Court, 1998 MT 164, ¶ 13, 289 Mont. 367, 961 P.2d 1267). Whether to assume supervisory control is a"case-by-case decision thatdepends onthepresence ofextraordinary circumstances and a particular need to prevent an injustice from occurring." Truman, ¶ 13 (citingPark, ¶ 13). Pretrial discovery disputes typically are not appropriate for exercise of supervisory control. USAA Cas. Inc. Co. v Eighth JudicialDist. Court, No. OP 19-0139, 396 Mont. 547, 449 P.3d 793 (Apr. 23, 2019). Stensons acknowledge our strict standards for discretionary intervention but argue that extraordinary circumstances exist here that render an appeal inadequate to remedy the District Court's alleged error. They claim that R.L.S. already has provided extensive information through two forensic interviews with law enforcement, that there is no new information to be gained, and that the Religious Entities' "purported need to 'assess the psychological damages.

. . claimed in this case' can and will be done" when R.L.S. meets 2withDr.MichaelBiitzfor an IndependentMedical Examination onJune 10,2022. Stensons

maintain thattheDistrict Court abused its discretion in denying aprotective orderbecauseit provided no analysis and made no findings offactin the faceoftheuncontroverted affidavit fromDr.Lubit. They concludethatthisCourt's exercise ofsupervisory control isnecessary to "prevent additional emotional and psychological harm to ajuvenile." Religious Entities respond that the facts the Stensons allege arehighly contested and depend on the testimony of R.L.S., whose truthfulness they dispute. Without R.L.S.'s testimony at trial, they argue, Stensons have no adrnissible evidence oftheir claims that the Kadrmases provided him with any illicit substances or that Religious Entitiesbreached any duties. They contend that R.L.S. also is the sole source of key information related to causation and damages and that Stensons did notput forth any credible evidencethatR.L.S. will suffer harm ifthe deposition proceeds. Religious Entities maintain that they should be afforded the opportunity to question R.L.S. under oath about his allegations before trial. They dispute Stensons' characterizations of Dr. Lubitz's report and conclude that the District Court's ruling is not based purely on a question oflaw appropriate for supervisory control. Religious Entities argue that the trial court did not in any event abuse its discretion in refusing the protective order Stensons requested. Noting a trial court's "inherent power to control discovery by denying a motion for protective order and allowing a deposition to proceed," we recently declined to exercise supervisory control over a district court's refusal to stop the deposition o.f a party who claimed itwould causehim severeanxiety that could leadtohis suicide. Henderson v. Third Jud. District Court, No. OP 22-0069 (Feb. 15, 2022). We observed that the trial court's decision was based on the evidentiary record before it and drew conclusions from its consideration ofthat evidence in ruling to denythemotion forprotective order. In thesame vein,theDistrict Court herehad evidencethat R.L.S. had told his counselor, Mr.Valentino, that R.L.S. was willing to speak to the lawyers and would testify so long as the people involved were not present. Both parties presented the trial court, and again this Court, with substantial background and docurnentationto supporttheirpositions. Thematerialswehave 3

### reviewed in conjunction with Stensons' petition convince us, as in Henderson, that the

petition for writ does not raise an issue that is purely one of law but involves a matter of discretion based on determination of facts. It therefore fails to satisfy the standards for supervisory control. IT IS THEREFORE ORDERED that the petition for writ ofsupervisory control is DENIED and DISMISSED. The Clerk is directed to provide notice ofthis Order to all counsel of record in the Second Judicial District Court'sButte-SilverBowCounty Cause No. DV 20-252 and tothe Honorable Ray J. Dayton, presiding District Court Judge. DATED this I ci day ofApril, 2022.

ChiefJustice



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### Justices