Opinion
OP 22-0139
07-19-2022
RHONDA LINDQUIST, OFFICE OF THE STATE PUBLIC DEFENDER, Petitioner, v. MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, HON. DONALD HARRIS, Presiding, Respondent.
ORDER
Rhonda Lindquist, Office of the State Public Defender (OPD), petitions this Court for a writ of certiorari of the February 2, 2022 Order Re: Contempt and Sanctions of the Thirteenth Judicial District Court, Yellowstone County. The Order held Lindquist in contempt of court for OPD's failure to assign permanent counsel to criminal defendants in cases before Hon. Donald Harris, presiding Judge in Department 2 of that court, within three working days of that court's orders directing OPD to assign counsel. The District Court issued this Order, as well as a previous contempt order, under its Cause No. SB 2021-1.
After receiving OPD's petition, this Court granted Judge Harris and the State of Montana thirty days to file a response. We further granted leave to participate as amicus curiae to Montana Innocence Project, ACLU of Montana Foundation and the American Civil Liberties Union Foundation, Montana County Attorneys Association, and National Association for Public Defense. Judge Harris, the State of Montana via the Attorney General, and the above-named amicus each responded to OPD's petition. The State took no position on the merits of the petition, providing an informational response only. By leave of Court, OPD filed a reply brief in support of its petition. We now consider OPD's petition.
The exclusive method for review of a contempt order in civil proceedings, apart from exceptions not applicable here, is by application for writ of certiorari (also known as a writ of review). Section 3-1-523, MCA; Animal Found of Great Falls v. Mont. Eighth Judicial Dist. Court, 2011 MT 289, ¶ 16, 362 Mont. 485, 265 P.3d 659. The scope of certiorari review is limited to record review to determine whether the lower court acted in excess of its jurisdiction. Fouts v. Mont. Eighth Judicial Dist. Court, 2022 MT 9, ¶ 10, 407 Mont. 166, 502 P.3d 689 (citations omitted).
In reviewing a contempt order, "we determine whether substantial evidence supports the judgment of contempt, and whether the district court had jurisdiction to issue the order." Cross Guns v. Eighth Judicial Dist. Court, 2017 MT 144, ¶ 9, 387 Mont. 525, 396 P.3d 133 (quoting Malee v. Dist. Court for the Second Judicial Dist., 275 Mont. 72, 75,911P.2d 831, 832(1996)).
At issue is the District Court's interpretation of § 47-1-104(3), MCA, and its resulting order of contempt and sanctions. As OPD explains in its petition, the conflict between the District Court and OPD arose several months prior to the February 2022 Order at issue here. Concerned that indigent criminal defendants appearing before the court apparently were without assigned counsel for significant periods of time, the court issued an Order to Show Cause on August 17, 2021. It followed with a show-cause hearing on September 13, 2021, to determine whether OPD should be held in contempt for not assigning attorneys to defendants in certain criminal cases pending before the court in which OPD allegedly did not immediately assign counsel upon the District Court's order that it do so.
On September 15, 2021, the court issued an order finding OPD in contempt of the court's orders for failing to immediately assign a public defender in each of thirty-one cases enumerated by the court. As a sanction, the court ordered OPD to pay a fine of $500 per case-a total of $15,500-to the Yellowstone County Clerk of Court. The court further ordered OPD "to assign a public defender to cases within three (3) working days of any order issued by a Court presiding over a Department No. 2 case. Failure to obey this order shall be sanctioned through future contempt proceedings." OPD paid the fine and did not challenge the contempt order.
On November 15, 2021, the District Court again ordered OPD to show cause under its special Cause No. SB 2021-1, alleging that OPD had failed to assign counsel within three working days to seventeen Department No. 2 cases subsequent to the September 15, 2021 contempt order. OPD responded in writing, arguing that it had obeyed the court's previous orders and had assigned an attorney to each defendant appearing before Department No. 2, all defendants had an attorney assigned to them at every stage of the criminal process, and an OPD attorney had attended every appearance of every defendant.
The court held a show-cause hearing on December 20, 2021. OPD argued that § 47-1-104(3), MCA-the statute on which the court relied-requires that OPD assign counsel in a timely manner but does not impose a three-day requirement for this assignment. During the hearing, counsel for OPD maintained that OPD assigned counsel to each criminal defendant immediately and did not wait for the District Court's order to assign counsel. OPD explained to the court that prior to the arraignment of a criminal defendant, an OPD attorney has a conversation with the defendant, advises the defendant of all rights, and represents the defendant for the hearing. OPD argued that this representation constitutes an immediate assignment of counsel as required by § 47-1-104(3), MCA. OPD further maintained that although the attorney assigned to a particular defendant might change in the future, that attorney was nonetheless an immediately assigned counsel in full compliance with § 47-1-104(3), MCA.
Acknowledging that OPD had an attorney appear to represent each defendant at each arraignment, the court concluded that this attorney was not "assigned counsel" because the appearing attorney was rarely "the continuing counsel on that case[.]" The attorney instead was "stand-in" counsel until OPD assigned counsel after the District Court ordered it to do so.
OPD disagreed, asserting:
[I]n each of the 17-cases [sic] that Your Honor has appended to the order, there was an immediate assignment by the Office of Public Defender. In each case the Office of Public Defender met, consulted, advised, appeared and defended its client. In no case is there any evidence that the defendant's rights were prejudiced by anything that the Office of Public Defender did or did not do.
In its February 2, 2022 Order Re: Contempt and Sanctions, the District Court disagreed, ruling that OPD had disobeyed its September 15,2021 order by failing to assign public defenders to Department No. 2 cases within three working days after the court issued an order to assign counsel. The court "reject[ed] OPD's argument that it assigns counsel before being ordered to do so." It found that OPD's "on-duty counsel," who appear at arraignments to represent each defendant, are not "assigned counsel" within the meaning of § 47-1-104(3), MCA. Rather, a defendant has an "assigned counsel" only after the District Court enters an order directing OPD to represent that defendant and OPD then assigns an attorney to continually represent that same defendant as the case proceeds. The court concluded that the attorney who appears at arraignment cannot be considered "assigned counsel" because OPD "has no authority to assign counsel to represent a defendant unless ordered to do so by the Court." The court noted, moreover, that § 46-8-103(1), MCA, provides, "When counsel has been assigned, the assignment is effective until final judgment... unless relieved by order of the court that assigned counsel or that has jurisdiction over the case." Specific to the seventeen cases at issue, the court determined that only three of those cases ultimately were assigned the same attorney as had represented the defendant at the arraignment or initial appearance. Thus, the court concluded, "the appearance of OPD's on-duty counsel for the limited purpose of representing a defendant at arraignment or an initial appearance does not constitute the assignment of counsel to represent the defendant throughout the case as required by Mont. Code Arm. § 47-1-104(3) and Mont. Code Ann. § 46-8-103(1)." (Emphasis added.)
OPD timely petitioned this Court on March 18, 2022. M. R. App. P. 4(5)(a)(i); Jones v. Mont. Nineteenth Judicial Dist. Court, 2001 MT 276, ¶ 22, 307 Mont. 305, 37 P.3d 682 (holding that petitions for writs of certiorari to review contempt proceedings must be filed within 60 days of the date the contempt order is filed if the State is a party to the contempt proceeding). OPD now asserts that the District Court misinterpreted § 47-1-104(3), MCA, when it concluded that "assignment" means continuous representation by a particular attorney and that it further erred by imposing a three-working-day requirement for assignment that goes beyond the statute's requirements.
Although amici bring forth other issues in their filings, we ordinarily do not consider issues raised by amicus that are not raised by the parties. Reichert v. State, 2012 MT 111, ¶ 25, 365 Mont. 92, 278 P.3d 455.
In relevant part, § 47-1-104(3), MCA, provides: "When a court orders the assignment of a public defender, the appropriate office shall immediately assign a public defender qualified to provide the required services." As a threshold issue, the District Court asserts that OPD cannot challenge the court's ruling that "immediate" assignment of counsel within the meaning of § 47-1-104(3), MCA, is three working days because the court so ruled in the September 15,2021 contempt order that OPD did not challenge. The court thus asserts that the present petition is an impermissible collateral attack upon a presumptively valid order.
OPD maintains that the present petition is not a collateral attack on the September 15, 2021 contempt order, which involved "completely different criminal cases, with different case histories, different defendants, and different procedural paths." OPD argues that the District Court's "law of the case" argument demonstrates that the court intends to serially hold OPD in contempt regardless of the proof of compliance OPD offers.
Our examination of the two contempt orders has led us to conclude that the rulings are distinguishable from each other and OPD makes no collateral attack upon the former. In the September 15, 2021 contempt order, the court determined that OPD had failed to assign representation to specific defendants; as noted, OPD did not challenge this determination. The ruling in the February 2, 2022 Order Re: Contempt and Sanctions that OPD challenges here is a different ruling. There, distinct from its earlier ruling, the District Court defined "assigned" counsel to mean continuous representation by a particular attorney. It found OPD in contempt for failing to assign permanent counsel within three working days and it is with this ruling that OPD takes issue. OPD did not, and does not, dispute the earlier ruling that defendants are entitled to immediate assignment; OPD disputes the latter ruling that defines "assigned" counsel in a very specific way.
OPD argues that by defining "assigned" counsel to mean continuous representation by a particular attorney, the District Court effectively ordered OPD to employ a "vertical" staffing model. OPD explains:
A "vertical" staffing model describes one attorney handling an entire case; a horizontal staffing model occurs where, "during various stages of the proceedings leading up to his conviction, petitioner was represented by different attorneys from the public defender's office." Greenfield v. Gunn, 556 F.2d 935, 938 (9th Cir. 1977). A vertical model may well be more desirable .... Horizontal staffing models, however, are both legal and often necessary. As the Ninth Circuit has explained, "[t]his type of horizontal representation may at times be an inevitable result of workload and budget constraints imposed on a public defender's office." Id.
OPD argues that in attempting to dictate the staffing model OPD may employ, "the District Court arrogated to itself the power to direct how OPD assigns attorneys," in violation of § 47-1-104(3), MCA, which requires OPD's director to "establish protocols to ensure that the offices make appropriate assignments [of counsel] in a timely manner." OPD contends that although the court initially appoints OPD to represent a particular defendant, it is the responsibility of OPD's director to establish protocols and make appropriate attorney assignments. OPD further argues that neither § 47-1-104(3), MCA, nor any other statute defines "immediately" or "timely" to mean three working days. It contends that by doing so, the District Court exceeded its authority under § 1-2-101, MCA, which provides, in part, "In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted."
OPD argues further that it would be impossible for it to comply with the District Court's requirement that it assign permanent counsel to every defendant within three working days of each court order to assign counsel. OPD explains that in selecting permanent counsel for each defendant, it must manage conflicts and satisfy its ethical obligations. OPD offers by example that in a case involving three co-defendants, it can represent only one defendant under M. R. Pro. Cond. 1.7(a). Even if OPD's conflict division can represent another of the defendants, OPD still must find an outside contract attorney to defend the third. The contract attorney that OPD approaches then also must perform the attorney's own conflict check prior to accepting the assignment. OPD further notes that the difficulty of this situation is compounded by its own staffing shortages and a low rate of pay for contract attorneys that makes it difficult to attract qualified contract counsel.
In response, Judge Harris argues that the statute's requirement for an "immediate" assignment of counsel is plain, clear, and unambiguous. He asserts that this Court has defined immediate as "Present; at once; without delay; not deferred by any interval of time.... A reasonable time in view of particular facts and circumstances of case under consideration . .In re Adoption of 246 Mont. 52, 56, 803 P.2d 214, 216 (1990) (quoting Immediate, Black's Law Dictionary 6th ed. (1990)).
Judge Harris's ruling, however-mandating a categorical three-working-day deadline for appointment of counsel-does not take into account what is reasonable in view of the particular facts and circumstances of each case. Rather, it creates a hard-and-fast rule applicable to all cases regardless of their facts and circumstances. This approach is unsupported by statute. As OPD points out, the Legislature could have codified a determinate number of days for appointment of counsel but it chose not to do so, instead directing OPD to "immediately assign a public defender qualified to provide the required services" and to "establish protocols to ensure that the offices make appropriate assignments in a timely manner." The District Court's creation of a three-working-day deadline for assignment of counsel inserts language into § 47-1-104(3), MCA, that the Legislature did not.
Judge Harris asserts that failure to assign counsel within three working days prejudices a defendant's right to effective assistance of counsel. He offers specific ways in which a defendant may be prejudiced if counsel is not immediately assigned:
(1) to substitute a judge within ten calendar days of arraignment; (2) to a prompt bond hearing; (3) to conduct a prompt investigation and preserve evidence; (4) to file pretrial motions; (5) to meaningfully prepare for and participate in an omnibus hearing, typically conducted within 60 days of arraignment; (6) to a speedy trial, typically set within 120 days of arraignment; (7) to engage in early plea negotiations; and (8) to promptly engage in treatment and other rehabilitation programs.
Undisputedly, § 47-1-104(3), MCA, obligates OPD to immediately assign counsel. We disagree with Judge Harris, however, that "assigned" counsel means OPD has designated a particular attorney to continuously represent a particular defendant. So long as the representation is undertaken by "a public defender qualified to provide the required services," and so long as a defendant is represented by qualified counsel at all times, the statutory requirement to assign counsel is fulfilled. OPD acknowledges that "vertical" staffing is preferable to "horizontal" staffing, but it is correct that neither statute nor case law precludes it from utilizing the latter method. In any given case, if one or more of Judge Harris's examples occurs, the presence of a public defender does not preclude a defendant from raising claims of prejudice at any appropriate point in the proceedings. And a defendant Still may argue, if applicable to the facts and circumstances in a particular case, that OPD failed to immediately assign counsel within the meaning of the statute.
The District Court misinterpreted § 47-1-104(3), MCA, when it ruled that OPD must assign counsel within three working days and that an attorney is considered "assigned" only if that attorney provides continuous representation after the District Court orders OPD to assign counsel. We conclude that the court therefore exceeded its jurisdiction in holding OPD in contempt of court in this instance.
IT IS THEREFORE ORDERED that the petition for a writ of review is ACCEPTED.
IT IS FURTHER ORDERED that the February 20, 2022 Order Re: Contempt and Sanctions is VACATED.
The Clerk is directed to provide copies of this Order to all counsel of record and to the Hon. Donald Harris, presiding District Judge.