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Guns v. Pinski

Supreme Court of Montana

June 13, 2017

ROBERTA CROSS GUNS, ESQ., Petitioner,
v.
EIGHTH JUDICIAL DISTRICT COURT, JUDGE GREG PINSKI, PRESIDING JUDGE, Respondent.

         APPEAL FROM District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. SB-16-1399 Honorable Gregory G. Pinski, Presiding Judge.

          For Petitioner: Roberta Miller Cross Guns, Self-represented; Great Falls, Montana

          For Respondent: The Honorable Gregory G. Pinski, Self-represented; Great Falls, Montana

          OPINON AND ORDER

          Laurie McKinnon Justice.

         ¶1 Representing herself, Petitioner Roberta Cross Guns seeks a writ of review concerning an order of contempt entered April 14, 2017, in the Eighth Judicial District Court, Cascade County, the Honorable Gregory G. Pinski presiding. Cross Guns also requested a stay of the order, which imposed a $500 fine and $1, 124.76 in costs. On May 12, 2017, this Court stayed that portion of the order requiring payment of the $500 fine.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 The instant contempt proceeding arises from Cross Guns' failure to appear at a termination of parental rights hearing before Judge Pinski. Cross Guns is a contract attorney with the Office of the Public Defender and has, for the last two years, been assigned as Birth Father's counsel in a youth in need of care proceeding. On January 20, 2017, the Cascade County District Court issued an order setting a termination hearing for March 1, 2017. In mid-February, however, Cross Guns requested continuances in three separate matters in the Ninth Judicial District Court, Glacier County, which that court also set for March 1, 2017. Cross Guns apparently did not recognize her scheduling conflict until February 22, 2017, less than a week before she was to appear in the separate judicial districts for the multiple hearings. Cross Guns attempted to secure substitute counsel for the hearing in Cascade County, but ultimately was unsuccessful.

         ¶3 On February 28, 2017, the day before the termination hearing in Cascade County, Cross Guns filed an unopposed motion and proposed order to vacate the hearing. She e-mailed a copy to the County Attorney and hand-delivered a copy to Judge Pinski's chambers. Cross Guns subsequently testified that she attempted to make ex parte contact with Judge Pinski to discuss her pending motion to continue; however, Judge Pinski was unavailable and Cross Guns was advised by Judge Pinski's Judicial Assistant that her motion for continuance had been denied.

         ¶4 Judge Pinski convened the March 1, 2017, termination hearing. As a courtesy to Cross Guns, Judge Pinski sua sponte offered Cross Guns the opportunity to appear by video conferencing or by calling his personal cell phone, because the court's telephone system was not functioning due to audio-visual upgrades. Despite Judge Pinski's efforts, Cross Guns was unable to arrange an appearance by video conference in Glacier County and she also did not respond to the court's phone calls. Cross Guns never appeared for the hearing. Judge Pinski correctly determined he could not proceed in her absence and was forced to continue the termination hearing until April 12, 2017. Present for the March 1, 2017 hearing were the Deputy County Attorney, several witnesses subpoenaed by the State, an Indian Child Welfare Act (ICWA) expert, other attorneys, the Guardian ad Litem, court staff (court reporter, court clerk, and bailiff), and Judge Pinski-all of whom waited while the court attempted to reach Cross Guns. Further, the State had provided notice to the Tribe and personally served Cross Guns' client. It is worth emphasizing that the hearing had been scheduled for five weeks and that Cross Guns had filed her motion for continuance one day prior to the hearing.

         ¶5 Following Cross Guns' failure to appear, Judge Pinski issued an order on March 6, 2017, "under § 3-1-511, MCA" directing Cross Guns to appear on April 12, 2017, and show cause why she should not be held in contempt in violation of § 3-1-501, MCA, for disobedience of a lawful order of the court; willful neglect and violation of her duties as an attorney; and for the court to consider whether she should be responsible for attorney fees of counsel, costs of the proceedings, and/or otherwise sanctioned.

         ¶6 On April 12, 2017, the District Court conducted the termination hearing with Cross Guns present, followed by the contempt hearing. Cross Guns was represented by counsel for the contempt portion of the hearing. Cross Guns indicated that she had unsuccessfully attempted to find substitute counsel and was unable to appear by video conference from Glacier County. Cross Guns related that she did not answer the court's phone calls because the Ninth Judicial District Court requires cellular phones to be silent. She also represented that at the time the March 1, 2017 termination hearing was initially scheduled, she believed her client would relinquish his parental rights and indicated she wanted the hearing to proceed because her client was not going to appear and the matter needed to be concluded. Cross Guns represented that she sought to avoid disobeying the court's order and inconvenience to the court and others involved in the proceeding. She represented that she found the scheduling order confusing because it was signed by the Honorable Thomas M. McKittrick, while Judge Pinski was the presiding judge over the termination proceeding.[1]Finally, Cross Guns represented that during February of 2017 she was emotionally distraught due to a medical emergency involving her daughter, which ultimately required Cross Guns to travel to Hawaii to assist her daughter. Cross Guns attributed her failure to calendar the hearing to all of these reasons. Cross Guns has filed transcripts from the hearing, which this Court has reviewed.

         ¶7 Cross Guns asserts in the instant Petition for Writ of Review that Judge Pinski lacked jurisdiction to issue the order of contempt. More specifically, Cross Guns maintains that pursuant to § 3-1-501(3), MCA, the contempt hearing was criminal in nature, even though there was no arrest. Cross Guns argues she was not afforded due process as required by § 3-1-518, MCA, and that Judge Pinski violated her "due process rights by refusing to recuse himself and allow a neutral judge to hear the matter[.]" Cross Guns has filed an affidavit in support of her petition.

         STANDARD OF REVIEW

         ¶8 Pursuant to § 3-1-523(1), MCA, this Court may review the judgment and orders of a district court in cases of contempt on a writ of certiorari. Section 27-25-101, MCA, provides that a "writ of certiorari may be denominated the writ of review." A writ of review may be granted by "the supreme court . . . in proceedings for contempt in the district court" or "when a [district court] has exceeded [its] jurisdiction . . . and there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy." Section 27-25-102, MCA. Montana Rule of Appellate Procedure 14 provides that a writ of review or certiorari is an extraordinary writ which "shall be commenced and conducted in ...


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