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Deola v. Commission on Practice

Supreme Court of Montana

November 20, 2018

LINDA DEOLA, Petitioner,
v.
COMMISSION ON PRACTICE, Respondent.

          ORDER

         Petitioner Linda Deola petitioned this Court pursuant to M. R. App. P. 14 to assume original jurisdiction of this matter and stay further proceedings with the Commission on Practice (COP) pending the disposition of her Petition. We ordered the COP to respond and stayed further proceedings with the COP.

         The COP has responded and agrees this Court should assume jurisdiction and consider Deola's Petition. We thus consider the merits of Deola's Petition.

         In November 2016, the Office of Disciplinary Counsel (ODC) filed a formal complaint against Deola. In July 2018, Deola submitted a conditional admission under Rule 26 of the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). The COP set the matter for a private Rule 26 hearing and assigned it to the "Cheyenne" Adjudicatory Panel. Each panel member received copies of the pleadings, Deola's conditional admission, and the ODC's recommendations. The COP acknowledges that the panel members reviewed the submissions prior to the hearing. After a procedural issue was raised at the hearing, the COP continued the matter without hearing argument.

         On September 4, 2018, Deola withdrew her conditional admission. Thereafter, the COP set the matter for a formal hearing and appointed the Cheyenne Adjudicatory Panel to hear the disciplinary matter. Deola objected and moved for a new panel. The ODC opposed Deola's motion and the COP denied it.

          Deola then petitioned this Court, arguing the Cheyenne Adjudicatory Panel gained improper knowledge of this matter via her conditional admission and the materials submitted for the Rule 26 hearing. Deola asks this Court to order the COP to assign a different adjudicatory panel for her disciplinary hearing.

         Deola acknowledges the MRLDE do not address this specific circumstance, but argues that her case should be nonetheless assigned to a different adjudicatory panel to avoid the appearance of impropriety. The COP responds that it violated no rules by assigning the disciplinary matter to the same panel that was assigned to the Rule 26 hearing.

         Because the MRLDE do not address this situation, Deola relies on the Rules of the Code of Judicial Conduct. Deola argues these principles should apply in matters regarding the ODC's adjudicatory panels and, as such, an adjudicatory panel other than the Cheyenne Adjudicatory Panel should be assigned to hear her case. "A judge shall . . . avoid impropriety and the appearance of impropriety." M. C. Jud. Cond., Rule 1.2. "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned . . . ." M. C. Jud. Cond., Rule 2.12(A). Under Rule 2.12, "a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (5) [enumerating specific instances of circumstances in which a judge's impartiality might be questioned] apply." M. C. Jud. Cond. Rule 2.12, cmt. [1]; Draggin' Y Cattle Co. v. Junkermier, 2017 MT 125, ¶ 16, 387 Mont. 430, 395 P.3d 497'("Draggin' YIIF) (citing Reichertv. State, 2012 MT 111, ¶ 50, 365 Mont. 92, 278 P.3d455). Rule 2.12(A) "requires no separate showing of actual bias or prejudice. Reasonable questions regarding a judge's ability to remain impartial inherently raise questions about the party's right to a fair tribunal." Draggin' YIII, ¶ 35.

         The COP agrees that "appropriate objective review for the Legal Issue presented should be made under the Montana Code of Judicial Conduct." See State v. Dunsmore, 2015 MT 108, ¶ 12, 378 Mont. 514, 347 P.3d 1220. However, the COP argues the impartiality of the Cheyenne Adjudicatory Panel cannot reasonably be questioned here because the panel members obtained their knowledge through their official capacity and not through extrajudicial means. The COP points to State v. Strang, 2017 MT 217, ¶ 26, 388 Mont. 428, 401 P.3d 690, in which we stated that personal knowledge gained by a judge who presided over a guardianship and conservatorship matter was insufficient to disqualify that judge from hearing a criminal case involving abuse or exploitation of the subject of the earlier proceeding. The COP argues that under Strang, the Cheyenne Adjudicatory Panel need not disqualify itself because the knowledge it obtained about Deola's tendered admission was obtained as part of the disciplinary proceeding.

         The COP also distinguishes Draggin' Y III, noting that it implicated M. C. Jud. Cond., Rule 2.12(A)(2)(c) because the District Court Judge who presided over that matter had more than a de minimis interest that could be substantially affected by the proceeding. Draggin' Y III, ¶ 25. Here, the COP asserts the members of the Cheyenne Adjudicatory Panel do not.

         The COP further asserts it has adequately addressed any issue of partiality by admonishing the Cheyenne Adjudicatory Panel that, pursuant to MRLDE 26, it cannot hold the conditional admission against Deola, nor may any evidence or argument regarding the conditional admission be admitted during the hearing. The COP contends that each member of the Cheyenne Adjudicatory Panel believes he or she can remain objective in hearing Deola's case. Finally, the COP alleges that allowing a respondent to withdraw a conditional admission with the knowledge that any subsequent disciplinary hearing will be assigned to a different panel would create a loophole which would allow respondents to repeatedly tender and withdraw conditional admissions to delay disciplinary proceedings indefinitely.

         Deola further argues that M. R. Evid. 408 bars the disclosure of any details of settlement negotiations to the fact-finder, and thus requires the appointment of a new panel. The COP counters that M. R. Evid. 408 merely prohibits the panel from considering evidence relating to Deola's conditional admission, which MRLDE 26 prohibits.

         Deola has not convinced this Court that the Cheyenne Adjudicatory Panel is unable to act impartially in this matter. Under Strang, it need not disqualify itself from hearing this disciplinary matter.

         Therefore, IT IS HEREBY ORDERED that this Court HAS ORIGINAL JURISDICTION in this matter.

         Pursuant to that jurisdiction, IT IS FURTHER ORDERED that Deola's Application for ...


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