Writs

GeeGuy reported that the Justices of the local Justice Court were subject of a writ and reprimand by District Court Judge Julie Macek. I have now read not only GeeGuy's report and opinions, but also the court documents. This all started with Judge Jensen taking offense at an attorney's suggestion that the Justice Court was not acting in a fair manner, or following legal procedures properly. At first blush, it is not unreasonable for a justice of the peace to take offense at that.

The canons (#11) governing a judge's role in the system suggest the proper response: "A judge should utilize his opportunities to criticize and correct unprofessional conduct of attorneys . . ." That presupposes that the conduct, i.e., suggesting that the court is unfair, is unprofessional. As discussed below, I doubt that is the case. Even so, the canon also suggests that the action to correct the attorney is by admonishing him, not by holding him in contempt of court. Only if such admonishment fails, should other steps be taken: "and, if adverse comment is not a sufficient corrective, should send the matter at once to the proper investigating and disciplinary authorities." Again, it is worth noting that contempt is not even mentioned, but rather referral for discipline.

If the judge were following the canons, she would also keep in mind that "A judge should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism." (Canon 14). Nonetheless, whether or not the attorney should be held in contempt really does not matter. This situation shines a light on a much bigger issue.

I am well acquainted with the legal system. Even with all of the things that keep happening in the local Justice Court, I was somehow surprised that the Justices were being held accountable by writ. A writ is generally an "extraordinary" measure. In the law, that really means "extraordinary," and is not a diluted adjective like "awesome." The basic reason is that it is an end run around procedure, which can only be used in special cases. They are only used when the system is not equipped to handle the special circumstances, of special importance. Therefore, a writ issued from one court to an inferior court is truly noteworthy.

After 27 pages of analysis, Judge Macek's order granting a writ boils down to one simple order. That is, she is ordering our Justices of the Peace quite simply to follow the law. While she makes findings that essentially make the contempt charges moot, she does not end the contempt proceedings. She really just tells the two Justices to quit breaking the law, and start following it.

The first component of this goes to the abuse of contempt proceedings. As Judge Macek pointed out in granting the Writ: "Contrary to the current and prevailing practices of the Justices of the Peace in Cascade County, Justices of the Peace have extremely limited legal authority upon which to punish a person for judicial contempt." (citing sections 3-10-501 and -10-401, Montana Code Annotated). The second part, which is the real focus of the final order, goes to following the law. The justices have bounced the case around between themselves and called in an "acting justice of the peace" without following any proper procedure. If they really want to go forward and assuage their delicate feelings with a contempt charge, they are required to call in a new judge from another county (required by the law, and Judge Macek's order).

I cannot see how a competent justice of the peace, knowing that review would be done in the District Court issuing the Writ which condemned the proceedings, would ever find any contempt. That is largely due to the nature of contempt power. More importantly, it gets back to the original, alleged contempt. The attorney simply stated his doubt about whether or not the Cascade County Justice Court actually followed the rules, or treated people fairly. The justices themselves proceeded to prove they do not. Truth should be a pretty good defense.

That is what makes this whole situation so shocking. Not one, but two Justices of the Peace, charged with upholding the law, blatantly ignored it.

As I noted above, I was shocked that it was so bad as to require a writ. What is worse is that this is not the only extraordinary writ in place. The Supreme Court of Montana has also issued a writ to the Cascade County Justice Court (at least, that is what I know about, so far). When I posted my "Qualifications vs Qualities" blog, I mentioned this in passing, as an example of how Judge Harris cannot accept being in the middle, and wants to act as a prosecutor. At that time, I said I would not belabor the point. In light of the latest writ, I feel I should explain what happened in more detail.

Criminal defendants are entitled to public defenders, when they cannot afford attorneys. The public defender's office makes a determination of who qualifies. If the state or the defendant dispute the finding, they can involve the presiding judge. The key to that is "if." Like most court matters, the judge is supposed to settle disputes, not involve himself in one side or the other. However, as explained in Rios v. Justice Court, 2006 MT 256, Judge Harris could not accept that.

In the Rios case, the defendant was determined to be eligible. He accepted that, the state accepted that. There was no dispute. No one asked the court to get involved. But Judge Harris took it upon himself to intervene, anyway. He unilaterally chose to hold a hearing on whether or not the defendant could have a public defender. This was taken as an intrusion into the rights and obligations of the public defender's office--so much so it sought help from the Supreme Court. And, the Supreme Court issued a writ, telling the Justice Court to stay out of such matters when no one asked the judge to be involved.

A judge has a simple role. Know the law, apply the law, and settle disputes. The judge should not act as an advocate, or try to intervene when no party has requested involvement. It is sad that our justices of the peace have to be told that.