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.


Steve Potts said...

I'm not condoning what she did, but I suspect Judge Jensen felt a little like a bank robber who has been shot while running out of the bank with the money he stole. He really isn't in a position to report to the police that someone shot him, is he?

Likewise, I don't think Judge Jensen successfully could have complained about Larry Anderson to disciplinary authorities (this assumes only for sake of argument that Larry’s statements were impermissible), because to do so would have laid bare the ethical and other rule violations to which she herself had already been a party.

Whether or not Larry Anderson should have made the "intemperate" statements which became the subject of a contempt proceeding and then other proceedings in district court, he certainly had a right to be offended by what had occurred -- the ex parte submission of a proposed order by his opponent and the ex parte granting of the order by Justice Jensen.

Larry Anderson's opponent -- the lawyer representing the bank -- did not follow either Rule 7 of the Montana Uniform Rules for the Justice and City Courts or Rules 3.3 and 3.5 of the Montana Rules of Professional Conduct. Further, Judge Jensen did not apply Rule 7 of the Montana Uniform Rules for the Justice and City Courts or follow Canon 17 of the Canons of Judicial Ethics.

Rule 7 of the Montana Uniform Rules for the Justice and City Courts governs ex parte matters (these are communications to or from a court to one party but not to all parties in a lawsuit). Rule 7 provides in relevant part that "permissible ex parte matters shall be in writing. The request must provide that the opposing party has been contacted and given reasonable notice of: (a) the time and place of the ex parte conference or meeting, (b) the substance of the order sought, and (c) whether the party opposes the matter." It would have been a simple matter for the bank's attorney to contact Larry Anderson and tell him the bank waived oral argument and was submitting an order vacating the hearing. Rule 7 required the bank's attorney then to inform Judge Jensen whether Larry Anderson opposed this or not.

Alternatively, the bank's attorney could have simply submitted to Judge Jensen (with a copy to Larry Anderson) a request to have the summary judgment motion decided without a hearing (without submitting a proposed order). This would have given Anderson an opportunity to respond.

The bank's attorney did neither. He violated the rule and submitted and obtained an order before Anderson had any knowledge of what was occurring.

It seems clear that the bank's attorney failed to comply with Rule 7. The same apparently is true of Judge Jensen. If she received a request from a party that did not comply with Rule 7, she should either have denied it or given Anderson an opportunity to respond to it. She did neither.

Aside from Rule 7, which is a rule of the court, there are also other rules which governed the conduct of the attorneys and the judge. Rule 3.5 of the Montana Rules of Professional Conduct governed the bank's attorney. It states that a lawyer shall not communicate ex parte with a judge "except as permitted by law." Here, Rule 7 is the "law" and it was not followed. Likewise, Rule 3.3(d) of the Montana Rules of Professional Conduct required the bank's attorney to "inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse." Here, common sense would have required the bank's attorney to inform the Judge that he had not contacted Mr. Anderson about eliminating the hearing.

Likewise, Canon 17 of the Canons of Judicial Ethics provides as follows:

"A judge should not permit interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.

"While the conditions under which briefs of argument are to be received are largely matters of local rule or practice, he should not permit the contents of such brief presented to him to be concealed from opposing counsel. Ordinarily all communications of counsel to the judge intended or calculated to influence action should be made known to opposing counsel."

Again, the only way for Judge Jensen to follow Canon 17 was to apply Rule 7. She apparently did not do so.

The Montana State Bar Ethics Committee has put forth an opinion which addresses submission of ex parte orders. In relevant part, the Committee stated as follows:

"All litigants and lawyers should have access to tribunals on an equal basis. Generally, a lawyer should not communicate with a judge relative to a matter over which the judge is or will preside in circumstances that might have the effect or give the appearance of granting undue advantage to one party.

"Failure to give the opposing counsel an opportunity to comment upon or object to a proposed order before it is submitted to the judge is unprofessional and may be prejudicial to the administration of justice. It is the more professional practice for an attorney to provide the opposition with a copy of a proposed order in advance of delivering the proposed order to the judge and thereby give the opposing counsel an adequate opportunity to comment upon or object to the proposed order. At a minimum, if the lawyer conveys the proposed order simultaneously with its delivery to the judge, Rule 3.3(d)[1] suggests the lawyer disclose to the judge in the ex parte communication that the opposing counsel has received a copy of the proposed order but has not had an opportunity to present any comments or objections to the judge." (www.montanabar.org/ethics/ethicsopinions/030703.html)

Larry Anderson was right to be offended by what had occurred. To use the State Bar Ethics Committee's words, what occurred was "unprofessional" and likely "prejudicial to the administration of justice." He was also right to object to what had happened.

Now, perhaps Larry Anderson could have used more "temparate" language. Looking at GeeGuy's description of what Larry wrote in his statement of position, however, he was right on. Receiving an order prepared by a debt collection attorney containing language on it that "This is an attempt to collect a debt" certainly might cause a debtor's attorney to wonder who is in charge or whether the court is impartial.

Anonymous said...

And under Shuff, they must now all turn each other in for ethics violations or face sanctions themselves. How the heck is anyone supposed to get anything done.

rebcon said...

I appreciate the thoughtful analysis and commentary, but I do not agree with all of it, just as I would respectfully suggest that Judge Macek erred in two particulars.

I do think that there was a legitimate question as to which was the appropriate legal procedure to follow, based on 3-10-402, M.C.A. But I do not want to get hung up on that, because I believe that the better practice is what Judge Macek has identified: that when a case is referred to another justice of the peace (or attorney appointed to act pro tempore), that the person accused of contempt be made aware of the allegedly contemptuous conduct, whether it's a civil or criminal contempt, the potential penalties, and the identity of who the proceedings are assigned to.

I do take issue with those who argue that Attorney Anderson's statements were not potentially contemptuous. Quite simply, what he did was question the integrity of the court.

I would respectfully suggest that Judge Macek erred in concluding that this conduct was not potentially contemptuous under the statute defining contempt, 3-1-501, M.C.A. The Montana Supreme Court has made it quite clear that an attorney who files statements in court documents attacking the integrity of the court is violating 3-1-501(c), by committing misbehavior in office or other willful neglect or violation of duty by an attorney. State v. Niewoehner, 116 Mont. 437,155 P.2d 205 (1944). We have all heard the phrase that an attorney is an officer of the court. What does this mean? It means that an attorney is a part of the legal system, a person specially allowed by qualification to represent the interests of others in the courts. This position comes with responsibility. As our state Supreme Court has said:

"If the persons thus immediately connected with the court do not observe proper respect toward it, or make statements derogatory to its character, the public regard and confidence would be much more affected than by similar behavior on the part of ordinary citizens not connected with the court or familiar with its proceedings. The court should have greater control of these persons than would be necessary with respect to ordinary citizens. It was for the purpose of giving to the court a means of protection against such attacks on its character - attacks, as it were, from within - that [3-1-501(c)]was enacted.


No character of persons can have a deeper interest in preserving the dignity of the bench, or maintaining the courtesies of our honorable profession, than the members of the bar, and they should act accordingly....The language of the brief in this case is represhensible, as being in violation of the conduct and courtesy due from the bar to the bench, and will not be tolerated."

Clearly, attorney Anderson's conduct was sufficient to trigger an inquiry as to whether it qualified as contempt in violation of subsection (c) of the contempt statute.

Had Judge Macek properly identified the way in which the conduct was a possible contempt, I am sure that she would have then ruled correctly that the justice court has no ability to punish the conduct under 3-10-401. Not all contempts are punishable in justice court.

But that does not mean that the justice court is powerless to act in the face of attacks on its integrity. I am sure that Judge Macek did not intend for her ruling to give permission to the attorneys of this city to file abusive, rude, disrespectful briefs in justice court. It is a universally recognized proposition in American courts, and the Montana Supreme Court has expressly said, that courts have the inherent power to act to protect their own dignity. Thus, the justice court has authority to correct the contemptuous conduct, even if it cannot punish for it. It can do this by determining if the attorney has violated the contempt statute, and then ordering the attorney to retract the offending language. If the attorney does not then retract the offensive language, he would be in direct violation of an order of the court and has committed a second contempt, which is now actually punishable by civil and criminal sanctions under the authority of the justice court.

Thus in my opinion, the better procedure would have been for the JP to transfer the case, as she did, but also to spell out the conduct complained of, and explain that it was a potential violation of subsection 3 of the contempt statute, that it was a civil contempt, that there would be no punishment, but that if it was found to be contemptuous, then the attorney would be ordered to retract, and would face an additional contempt charge and posible civil or criminal penalties if he refused to comply. This procedure accords with the Montana Supreme Court's recommendation of providing the opportunity for allocution, as set forth in the Malee case, and with the judicial officer's ethical obligations, while protecting the dignity of the court and holding attorneys to the higher standard which they ought to be following as officers of the court.

So now you can also see why I think Judge Macek erred in ordering JP Jensen to transfer the case in the writ of mandate. The assigned judge will have to hold a hearing to determine if the conduct is contempt. If it is, then the court's remedy is to order attorney Anderson to retract. Attorney Anderson has already retracted the statement and apologized to the justice court. Therefore, the need of the justice court to maintain its own dignity has been satisfied, and the issue is moot.

As an afterthought, I would note that there are very rare occasions on which a sitting judge is not merely wrong, but actually corrupt. Attorneys do have remedies when they believe this to be the case. Attorney Anderson was not availing himself of those remedies here when he made what may legitimately be interpreted as statements impugning the integrity of the court.

a-fire-fly said...

Rebcon, I agree that the courts should have a right to protect their dignity. But it should not be necessary to do it from the bench if the dignity and integrity of the court is not in question to begin with.