Sections 3-1-511 and -519, MCA. Judge Langton provided Kauffman an opportunity for allocution which is required in direct contempt proceedings. See Malee v. District Court (1996), 275 Mont. 72, 911 P.2d 831. ¶ 19 Kauffman raises another jurisdictional argument.
¶9 In reviewing contempt proceedings, "we determine whether substantial evidence supports the judgment of contempt, and whether the district court had jurisdiction to issue the order." Malee v. District Court for the Second Judicial Dist. , 275 Mont. 72, 75, 911 P.2d 831, 832 (1996) (citing Marks v. First Judicial Dist. Ct. , 239 Mont. 428, 430, 781 P.2d 249, 250 (1989) ; State ex rel. Foss v. Dist. Ct. , 216 Mont. 327, 331, 701 P.2d 342, 345 (1985) ; Matter of Graveley , 188 Mont. 546, 555, 614 P.2d 1033, 1039 (1980) ).DISCUSSION
We have consistently held that in cases of indirect contempt, the procedures found in § 3-1-512, MCA, must be followed. Malee v. District Court (1996), 275 Mont. 72, 75, 911 P.2d 831, 833 (citations omitted). Section 3-1-512, MCA, provides:
In contrast to a direct contempt, a contempt "not committed in the immediate view and presence of the court or judge in chambers" is an indirect or constructive contempt. Kauffman v. Mont. Twenty-First Jud. Dist. Ct, 1998 MT 239, ¶1f 19 and 25, 291 Mont. 122, 966 P.2d 715; Malee v. Mont. Second Jud. Dist. Ct., 275 Mont. 72, 75, 911 P.2d 831, 832 (1996). See also §§ 3-1-512 through -520, MCA. Whether direct or indirect, "[a] contempt may be either civil or criminal" depending on the nature of the resulting sanction imposed.
Lilienthal, 200 Mont. at 242, 650 P.2d at 782. We also cited our Opinion in Malee v. Dist. Court, Silver Bow County (1996), 275 Mont. 72, 911 P.2d 831, in which we set forth the same list of due process requirements that were laid out in Lilienthal. ¶ 20 Concluding that Kauffman's conduct may well have satisfied the elements of § 3-1-501, MCA, we stated that contempt proceedings issued pursuant to that statute must provide for more due process protection for the contemnor than would be provided in a summary contempt proceeding.
Relying primarily on the fact that reading the offensive submission gives the court knowledge of the facts constituting the contempt, a number of jurisdictions have held that filing contemptuous materials occurs in the presence of the court and constitutes direct contempt. See, e.g., Owens v. Dancy, 36 F.2d 882, 885 (10th Cir. 1929) (holding that the filing of a verified pleading containing inappropriate material constituted contemptuous conduct in the presence of the court); People ex rel. Kunce v. Hogan, 67 Ill.2d 55, 7 Ill.Dec. 63, 364 N.E.2d 50, 52 (1977) (holding that the filing of contemptuous documents can constitute direct contempt); State ex rel. Hess v. Guste, 603 So.2d 196, 197 (La.Ct.App. 1992) (recognizing that contemptuous documents filed with the court were defined by statute as direct contempt); Malee v. District Ct., 275 Mont. 72,911 P.2d 831, 833 (1996) (overruling prior decisions to the contrary and holding that "contemptuous pleadings and briefs presented to the court are direct contempt in that they are in the immediate view and presence of the court or judge at chambers" (internal quotation marks omitted)). ¶ 38 In contrast, other jurisdictions have concluded that filing offensive material does not satisfy the requirements of direct contempt.
Cross Guns v. Eighth Jud. Dist. Ct., 2017 MT 144, ¶ 9, 387 Mont. 525, 396 P.3d 133 (quoting Malee v. Dist. Ct. for the Second Judicial Dist., 275 Mont. 72, 75, 911 P.2d 831, 832 (1996)).
Cross Gunsv. Eighth Judicial Dist. Court, 2017 MT 144, ¶ 9, 387 Mont. 525, 396 P.3d 133 (quoting Maleev. Dist. Court for the Second Judicial Dist., 275 Mont. 72, 75,911P.2d 831, 832(1996)).
This contempt did not occur in the immediate view and presence of the court or judge. See Malee v. Dist. Ct. for the Second Judicial Dist., 275 Mont. 72, 75, 911 P.2d 831, 832 (1996) ("Indirect contempt is often a matter of a party not following a court's order.") (citations omitted). Thus, this is indirect, civil contempt.