NO. 94-348
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
WILLIAM JOSEPH VOTH, JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Karl P. Seel, Attorney at Law,
Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Brenda Nordlund, Assistant Attorney General,
Helena, Montana
Mi.ke Salvagni, Gallatin County Attorney,
Jane Mersen, Deputy County Attorney,
Bozeman, Montana
Submitted on Briefs: January 19, 1995
Decided: March 23, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.
On November 17, 1993, William Joseph Voth, Jr., was found
guilty of, and sentenced, for contempt of court for failing to
personally appear at trial in Gallatin County Justice Court on
September 29, 1993. Voth petitioned the Eighteenth Judicial
District Court, Gallatin County, for a writ of certiorari. The
District Court denied the petition and stated that the Justice
Court properly held Voth in contempt. Voth appeals. We reverse
and remand.
We frame the issue on appeal as follows:
Did the District Court err by concluding that the Justice
Court properly held Voth in contempt of court for appearing at
trial through counsel rather than in person?
On January 9, 1993, Officers Wade and Slaughter of the
Gallatin County Sheriff's Department arrested and cited William
Voth, Jr., for driving under the influence of alcohol and/or drugs,
a misdemeanor. Following his arrest, Voth posted bond and signed
a pre-printed form which provided that he would appear in Justice
Court on either January 11 or 13 for arraignment. Voth appeared in
Justice Court on January 11, 1993. He signed a waiver of his right
"to consult an attorney before entering a plea," filled out an
application for court-appointed counsel, which was subsequently
denied, and pled not guilty.
On January :Ll, Voth also signed a pre-printed form entitled
"Order for Conditions of Bail/Notice of Hearing/Trial." The
pre-printed order consists of four sections. The first section
2
provided spaces for Voth's name, the case number, and the statutory
violation. The second section provided:
Defendant SHALL NOT
Leave Gallatin County Possess Firearms
x Leave the State of Montana x Use alcohol or drugs
Contact in ANY WAY unless directed to by the court:
The third section provided:
Defendant SHALL
& Post Bail $ 551.00 (cont.) Be released O/R
2 Obey all laws -.&- Make all court Appearances
x Notify the court of any change in address/phone#
_ Check into the Detention Center: Every Day/Week at : -m
_ Other conditions:
Keep court informed of current address
Remanded to Sheriff in Lieu of: _ Posting Bail __ Pending Release
The fourth section, labeled "Trial/Pretrial Hearing/Pretrial
Hearing," indicated that Voth requested a jury trial, set a trial
date for May 26, 1993, set a pretrial hearing date for April 23,
1993, and designated the name of the presiding Justice of the
Peace. The final line of the pre-printed order preceding Voth's
signature provided:
I have read the above and agree to abide by all
conditions. I understand if I do not abide by them or
appear for trial my bail/bond will be forfeited and a
warrant issued for my arrest.
On or about April 23, 1993, attorney Karl P. See1 filed a
notice of appearance as counsel of record on behalf of Voth. Upon
the County Attorney's motion to continue, the Justice Court issued
an order on May 6 resetting trial for June 9. The order stated:
'I [Ylou are further notified that if you do not appear, the Court
shall take appropriate action and award costs accordingly." The
order was sent to the County Attorney and to Voth's attorney. On
May 14, Voth's attorney moved to continue the June 9 trial. The
motion was granted without objection.
Trial in Justice Court was held on September 29, 1993. Voth
was not personally present; however, his attorney appeared on his
behalf. The minutes of the Justice Court indicate that, because
Voth did not personally appear, the Justice of the Peace waived the
jury trial. A bench trial took place after which the Justice Court
found Voth guilty of second offense DUI and imposed sentence.
Immediately following sentencing, the Justice Court issued a
bench warrant for Voth's arrest for contempt on the grounds that
Voth "failed to appear at time of trial as ordered." The bench
warrant further ordered that, if apprehended, Voth "be admitted to
bail in the sum of $750.00" pending arraignment. An officer of the
Sheriff's Department arrested Voth on November 6, 1993.
Voth posted $1015 in bail, and the Justice Court set a show
cause hearing for November 17. The hearing was held on that date.
Both Voth and his attorney were present. After hearing arguments
by the parties, the Justice Court found Voth guilty of contempt and
sentenced him to serve 24 hours in detention. The Justice Court
stayed the sentence pending appeal to the District Court.
Voth filed a petition for writ of certiorari requesting the
District Court to review the Justice Court's sentencing order in
the contempt proceedings. Hearing was held on the petition on
March 1, 1994. The District Court ordered the parties to submit
briefs and scheduled oral arguments for April 15, 1994. On May 16,
4
1994, following the April 15 hearing, the District Court filed an
order and memorandum denying Voth's petition for writ of
certiorari. Voth filed notice of appeal from the District Court's
order on June 10, 1994.
Did the District Court err by concluding that the Justice
Court properly held Voth in contempt of court for appearing at
trial through counsel rather than in person?
The State contends that the Justice Court ordered Voth to
personally appear at trial. When Voth did not personally appear,
the State asserts that the Justice Court properly issued a bench
warrant for his arrest pursuant to § 3-10-401, MCA, which provides
in part that a justice of the peace "may punish for contempt
persons guilty of the following acts and no o t h e r .
disobedience or resistance of a lawful order or process made or
issued by the justice . . . .'I According to the State, Voth
subsequently failed to present any reason for his non-attendance,
and the Justice Court properly held him in contempt.
Voth contends that the Justice Court did not order him to
personally appear at trial, but instead merely ordered him to make
an appearance. According to Voth, he did make an appearance at
trial through his attorney of record who was authorized to act on
his behalf. Because the Justice Court did not order him to
personally appear, Voth asserts that he did not violate the
provisions of § 3-10-401, MCA, and therefore, was improperly held
in contempt.
Section 46-16-120, MCA, provides:
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In all cases in which the defendant is charged with a
misdemeanor offense, the defendant may appear by counsel
only I although the court may require the personal
attendance of the defendant at any time.
This language clearly allows all persons charged with misdemeanor
offenses to appear through their attorney only unless the court
specifically requires their personal appearance.
Examination of the record on appeal reveals that no order or
other statement of the presiding Justice of the Peace exists which
required the personal attendance of Voth at trial. The pre-printed
"Order for Conditions of Bail/Notice of Hearing/Trial" which Voth
signed on January 11, 1993, ordered him to "make all court
appearances." Immediately before Voth's signature, the order
provided: "I understand if I do not abide by [the conditions
listed above1 or appear for trial my bail/bond will be forfeited
and a warrant issued for my arrest." On June 9, 1993, the Justice
Court issued an order resetting the trial date, and stated "you are
further notified that if you do not appear, the Court shall take
appropriate action and award costs according1y.l'
At the hearing in District Court, the State called the
presiding Justice of the Peace to the stand to testify regarding
the Voth case. The Justice of the Peace stated:
[BY THE DEPUTY COUNTY ATTORNEY]
Q: What did you tell Mr. Voth that morning on
January llth, 1993?
[BY THE JUSTICE OF THE PEACE]
A: At the time that he appeared, he had entered a not
guilty plea to the charge against him and I had imposed
conditions of bail. Those conditions of bail included
that he not leave the State of Montana, that he not use
alcohol or drugs, that he post bail, obey all laws, make
6
all court appearances, keep the court informed of his
current address at all times. A pre-trial hearing was
set and a jury trial date was set. And he was informed
by me that he was required to appear at the trial and at
the pre-trial hearing.
While the Justice of Peace specifically ordered Voth to
appear, he did not specifically order Voth to personally appear.
In proceedings for a misdemeanor offense, unless the court
specifically orders the defendant to appear in person, the
appearance of the defendant's attorney at trial satisfies
§ 46-16-120, MCA. We hold that the District Court erred by
concluding that the Justice Court properly held the defendant in
contempt.
Reversed and remanded to the District Court for proceedings
consistent with this opinion. ,
We concur:
*
Chief Justice
Justice James C. Nelson dissents as follows:
I respectfully dissent. AS a consequence of the hearing on
the defendant's petition for writ of certiorari, the District
Court, who was in the best position to judge the credibility of the
witnesses, found that the Justice Court required, both orally and
in writing, the attendance of the defendant at trial; that the
defendant offered no explanation for his absence from court at the
time of trial; and that, accordingly, the Justice Court acted
within its jurisdiction in holding the defendant in contempt for
failing to obey a lawful order of the court. Based on the record,
the District Judge's determination of the facts and his decision
based on those facts is entitled to be upheld.
The Justice of the Peace testified that the defendant signed
the order and agreed to appear at trial. Additionally, the Justice
of the Peace testified as follows:
(By the Prosecutor):
Q: Just one more question, Your Honor, about the normal
practice or the procedure in your justice court. Can you
tell us what the normal procedure is in a DUI case, when
a person asks for a trial in a DUI case?
…
Q: Does the court always require a personal appearance?
A: The court always requires a personal appearance in
a DUI case.
(By Defense Counsel)
Q: Now, at the time in which you arraigned Mr. Voth and
you filled out the order of conditions, I think in
response to the State's questions you said that's a
practice that you do with everyone?
A: With every DUI.
Q. So you require, regardless of what the statute says
about defendants being able to appear by counsel only,
you fill out an order that requires them to personally
appear? Is that what you're saying?
A: Yes, that's the way we have been trained.
From the foregoing testimony and the form order which the
defendant signed, acknowledging the necessity that he appear at
trial, I conclude that there is substantial evidence in the record
to support the District Court's factual determination that the
Justice Court ordered the personal appearance of the defendant at
trial, and for its legal conclusion that the Justice Court was
acting within its jurisdiction in holding the defendant in contempt
for failing to appear personally. I would, accordingly, affirm the
District Court's denial of the defendant's petition for writ of
certiorari.
Finally, I believe that it is also important to emphasize what
our opinion does not stand for. While a misdemeanor defendant may,
unless his personal appearance is ordered by the court, appear by
counsel only, at trial (§§ 46-16-120, MCA, and 46-16-122, MCA,)
that does not mean that he may also appear by counsel only, at
other proceedings where different statutes require the defendant's
actual presence in open court. See, for example, our decision in
State v. Schneiderhan (1993), 261 Mont. 161,
862 P.2d 37, wherein
we held that 55 46-12-201, MCA, and 46-17-203, MCA, require the
defendant's actual appearance in court for arraignment.
Schneiderhan,
862 P.2d at page 39-40.
Justices Karla VI. Gray and Fred J. Weber concur in the foregoing
dissent.
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\
March 23, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
I ,
Karl P. See1
Attorney at Law
1705 W. College, Ste. A
Bozeman, MT 59715
Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620
A. Michael Salvagni, County Attorney
Jane Mersen, Deputy
615 S. 16th St.
Bozeman. MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
