![IN THE SUPREME COURT OF T]-lE STATE OF MONTANA](/img/7/526b198c923f8.jpg)
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IN THE SUPREME COURT OF T]-lE STATE OF MONTANANo.STANLEY ISAAC LEBEAU JOSHUA MICHAEL CHILCOTE, EMILY ELLENSKEELS TRAVIS STEVEN BRANCH, and DAVID RUSSELL THOMAN,Petitioners,VS.MONTANA FOURTH JUDICIAL DISTRlCT COURT,MISSOULA COUNTY, THE l-IONORABLES ED MCLEAN, ROBERT L.DESCHAMPS III, JOHN W. LARSON and KAREN S. TOWNSEND,PRESIDING,Respondents.PETITION FOR WRlT OF SUPERVISORY CONTROLAPPEARANCES:BRlAN C. SIVIITHKATIE GREENJOAN H. BURBRIDGEDeputy Public Defenders610 Woody St.Missoula, MT 59802I-ION. ED MCLEANHON. ROBERT IJ. DESCI-IAMPS IIII-ION. JOHN W. LARSONHON. I AREN S. TOWNSENDDistrict Court Judges200 West BroadwayMissoula, MT 59802ATTORNEYS FOR PETITIONERSRESPONDENTSRECEIVEDOCT O Oo{JnfJ
INTRODUCT]ONPetitioners request this Court to issue a writ of supervisory control requiringthe Fourth Judicial District ,Court to return jurisdiction in these cases to a judgefrom the Fourth Judicial District. Petitioners are indigent defendants represented bythe Officer of the State Public Defender who have filed timely motions tosubstitute a district judge pursuant to Mont. Code Ann. § 3-1-804. The districtcourt is punishing Petitioners for exercising this statutory right by referring theircases to judges from other judicial districts and requiring their personal presence inthose districts. The district court's intent is apparent in the following statementfrom Honorable Kim Christopher, Twentieth Judicial District, at a hearing in Statev. Lebeau:There apparently is a concern that there is judge shopping being engaged inin Missoula County by both the State and the defense. So it's myunderstanding in view of the fact, that when ,one of the judges in Missoula issubstituted then all of the judges refuse to accept jurisdiction.Transcript from State v. Lebeau, attached asI--F. Although Judge Christopherstated that there was a concern of "judge shopping" by both the State and defense,cases in which the State has filed motions to substitute have been assigned to otherjudges in the Fourth Judicial District rather than being referred to other judicialdistricts. This unconstitutional practice by the Fourth Judicial District is chillingthe rights of defendants to substitute the district court judge. Petitioners are beingunconstitutionally punished for exercising their statutory right to substitute thePETITION FOR WRIT OF SUPERVISORY CONTROl.Page 2 of21
district court judge. "To punish a person because he has done what the law plainlyallows him to do is a due process violation of the most basic sort." Bordenkircher v.Hayes, 434 U.S. 357,363 (1978).FACTUAL AND PROCEDURAL BACKGROUNDState v. Lebeau, DC-13-338On July 10,2013, the Statefi edan infonnation charging Lebeau withvarious offenses in the Fourth Judicial District Court. (Ex. I-A.) There are fourdistrict court judges in the Fourth Judicial District and this case was assigned todepartment three, the Honorable John W. Larson. On July 10, 2013, the districtcourt issued an order setting an arraignment hearing on August 1,2013. (Ex. I-B.)Lebeau is indigent and was appointed counsel fron1 the Office of the State PublicDefender. (See6-A (Affidavit of Brian Smith).)On July 11, 2013, Lebeau filed a motion to substitute district judge pursuantto Mont. Code Ann. § 3-1-804. (Ex I-C.) On July 17,2013, the district court filedan invitation to assume jurisdiction. (Ex. I-D.) The invitation to· assumejurisdiction states that jurisdiction was declined by departments one, two, and four[the Honorable Ed McLean, the l-Ionorable Robert L. Deschamps III, and theHonorable Karen S. Townsend] of the Fourth Judicial District. Jurisdiction wasthen accepted by the Honorable Kim Christopher, Twentieth Judicial District, "onthe condition all hearings but tria] shall be conducted in Lake or Sanders CountyPETJT10N FOR WRlT OF SUPERVISORY CONTROLPage 3 of21
on Law & Motion." ld. On July 17, 2013, Judge Christopher issued an order forarraignment setting an arraignment on July 25, 2013 'inthe Lake CountyCourtroom with all parties personally present." (Ex. I-E.)Lebeau did not appear at the hearing on July 25, 2013 and a warrant wasissued for his arrest. During that hearing, the State requested that it be allowed toappear at future hearings via Vision Net. Judge Christopher denied the request,stating that it would not allow Vision Net appearances because of the issue of"judge shopping" and stated:It has been my practice always when asked to assume a case to go to thejurisdiction for which I'm being requested to assume jurisdiction. However,because of the actions being engaged in, as I understand it by both parties, inan attempt to help the parties understand the difficulty they're putting thejudicial officers in, it's my intention instead to require both parties to appearhere.Ex. 1-F. Judge Christopher stated that she had "asked the Missoula judges howthey wished me to handle this, and their preference was for me to require thepersonal appearance of both the State and the defendant here in Lake County.'} Id.On July 31, 2013, Lebeau filed a motion requesting that the district court seta hearing and further requesting that the hearing take place in the Fourth JudicialDistrict Court. (Ex. I-G;.) On August 9, 2013, the State filed a motion requestingthat the district court set a hearing as Lebeau had been arrested on the warrant andrequesting an order to have Lebeau transported to the Lake County Courthousefrom the Missoula Detention Facility. (Ex. I-H.)PETITION FOR WRIT OF SUPERVISORY CONTROLPage 4 of21
State v Chilcote, DC-13-435Chilcote timely filed a motion to substitute the district court judge. (Ex. 2A.) On September 17 2013, the other three Fourth Judicial district judges declinedto accept jurisdiction. (Ex. 2-B.) Jurisdiction over the case was assumed by theHonorable Loren Tucker, Montana Fifth Judicial District. ld. The order forarraignment issued by Judge Tucker states that Judge Larson is authorized toconduct matters that do not address the merits of the cases pursuant to Mont. CodeAnn. § 3-1-804(10). (Ex. 2-C.) Chilcote is indigent and was appointed counselfrom the Office of the State Public Defender. (See Ex. 6-A (Affidavit of BrianSmith).)State v. Skeels, DC-13-389Skeels timely filed a motion to substitute the district court judge. (Ex. 3-A.)OnAugust 21, 2013, the other three Fourth Judicial District judges declined toaccept jurisdiction. (Ex. 3-B.) On August 23, 2013, the Honorable Kurt Krueger,Second Judicial District, accepted jurisdiction of the case. (Ex. 3-B.) An Order for.Arraignment was issued on September 24,2013 requiring Skeels to appear in Butteon October 17, 2013 for arraignment. (Ex.3-C.) Skeels is indigent and wasappointed counsel from the Office of the State Public Defender. (See Ex. 6-B(Affidavit of Joan Burbridge).)PETITION FOR WRIT OF SUI:lERVISORY CONTROLPage 5 of21
State v. Branch, DC-13-3S7Branch timely filed a motion to substitute the district court judge. (Ex. 4-A.)On August 14, 2013, the other three Fourth Judicial district judges declined toaccept jurisdiction. (Ex.4 B.)Jurisdiction was assumed by the Honorable BradleyG. Newman, Second Judicial District.Id. The matter was set for arraignment onSeptember 13, 2013. (Ex. 4-C.) Branch is indigent and was appointed counsel fromthe Office of the State Public Defender. (See Ex. 6-A (Affidavit of Brian Smith).)Defense counsel requested that he and his client be allowed by appear by telephonefor the hearing. Id. Judge Newman required Branch's personal appearance. Id.Branch and defense counsel travelled to Butte for the arraignment at which thedefendant pled guilty. I d. The Missoula County Attorney did not travel to Butte forthe hearing and a representative from the Silver Bow County Attorney's officestood in for the State at the hearing. Id.State v. Thomll:n, DC-13-417Thoman was initially charged in the Third Judicial District, Powell County.(Ex. 5-A.) Thoman requested a change of venue and the case was dismissed andthen filed in the Fourth Judicial District, Missoula County.Id. Thoman timely fileda motion to substitute the district court judge. (Ex. 5-B.) On September 27, 2013,the other three Fourth Judicia.l district judges declined to accept jurisdiction. (Ex.5-C.) Jurisdiction was assumed by the l-Ionorable Ray Dayton, Third JudicialPETITION FOR WRIT OF SUPERVISORY CONTROLPage 6 of21
District. Jd. Judge Dayton issued an order stating that Judge Larson is authorized toconduct all routine matters that do not address the merits of the case (Ex. 5-D)Thoman is indigent and was appointed counsel from the Office of the State PublicDefender. (See Ex. 6-B (Affidavit of Joan Burbridge).)SUMMARY OF ARGlTMENTIn each of these cases the district court has violated the Petitioners' right todue process by punishing them for exercising t:peir right to substitute the districtcourt judge. The district court's actions are vindictive, especially in light of the factthat the State is not being similarly punished for substituting the district courtjudge. Punishing the Petitioners for exercising their statutory right isunconstitutional. Referring Petitioners' cases to out of district judges and thenrequiring Petitioners to make personal appearances in those other judicial districtscreates a burden for the Petitioners and is intended to chill their statutory rights.ARGUMENT AND AUTHORITIES1.SUPERVISORY CONl'ROL IS THE APPROPRIATEMECHANISM rro REMEDY THE VIOLATION OFPETITIONERS'D'UE PROCESS RIGHTSoThis Court has supervisory control over all other Montana Courts. MontConst. art. VII, § 2(2). rrhe Court exercises that authority in part through writs ofsupervisory control. With respect to writs of supervisory control, Rule 14(3) of theRules of Appellate Procedures provides that:PETITION FOR WRIT OF SUPERVISORY CONTROLPage 7 of21
Supervisory control is an extraordinary remedy and is sometimes justifiedwhen urgency or emergency factors exist making the normal appeal processjnadequate, when the case involves purely legal questions, and when one ormore of the following circumstances exists:(a) The other court is proceeding under a mistake of law and is causinga gross injustice;(b) Constitutional issues of state-wide importance are involved;(c) The other court has granted a denied a motion for substitution of ajudge in a criminal case.This Court has consistently recognized that denials of the statutory right tosubstitution are appropriate for supe:rvisory control. E.g" Torgerson v. NinthJudicial District Court, OP 10-0143, 5, 2010 Mont. LEXIS 265 ("Inasmuch asthe District Court has here denied a motion for substitution of judge, Torgerson hasraised an appropriate matter by petition for supervisory control under Rule14(3)(c)."); J.B. v. Tenth Judicial District Court, OP -08-0351, 5, 2008 Mont.LEXIS 490 ("In Dusek v. Eight Jud. Dist. Ct., 2008 MT 303, '17, 318 Mont. 166,79 P.3d 292, we recognized that an appeal is an inadequate remedy for denial of thestatutory right of substitution and thus supervisory control is appropriate when § 31-804 is not being properly applied.") This understanding is consistent with Rule14(3)(c)'s affinnative listing of such motions.The Court granted a petition for writ of supervisory control in In Re D.H.and l.R, 2012 MT 106, 24,365 Mont. 82,278 P.3d 1010. The Court held that thedistrict court had improperly determined that D.H. and J.H. '8 motion to substitutedistrict court judge were untimely and reversed the districtcourt sdenial of thePETITION FOR WRIT OF SUPERVISORY CONTROLPage 8 of21
motions to substitute. 19 .In Re D.H. and J.H. involved denials of substitutionmade by Judge Larson.Supervisory control is also appropriate in the instant cases because there areno issues at fact in dispute here. The only matetjal facts here are matters ofindisputable j dicial record.Rule 14( 5)(b)(iii) requires petitioners to make their arguments forsupervisory control "in summary fashion. ' Upon filing of a petition, the Court"may order more extensive briefing." Mont. R. App. P. 14(7)(b). Pursuant to Mont.R. App. P. 14(7)( c), the Court "may order a stay of further proceedings in the othercourt, pending the supreme court's disposition of the petition."II.THE DISTRICT COURT IS VIOLATING PETITIONERS'RIGHT TO DUE PROCESS BY PUNISHING TIIEM FOREXERCISING STATUTORY RIGHT TO SUBSTITlTTE1Vlont. Code Ann. § 3-1-804( 1) gives each adverse party the right to onesubstitution of a district court judge. The petitioners have exercised this right byfiling a timely motion for substitution of district court judge. In response,- thedistrict court has engaged in a concerted effort to punish petitioners for exercisingthis statutory right as demonstrated by the July 25, 2013 transcript in the Lebeaucase. Ex. I-F.PETITION FOR WRIT OF SUPERVISORY CONTROLPage 9 of21
To punish a person because he has done what the law plainly allows him todo is a due process violation of the most basic sort [citation omitted] and foran agent of the State to pursue a course of action whose objective is topenalize a person's reliance on his legal rights is patently unconstitutional.Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).A series of United States Supreme Court cases beginning with NorthCarolina v. Pearce, 395 U.S. 711 (1969) and culminating in Bordenkircher v.Hayes recognize this basic principle that a person may not be penalized forexercising a statutory or constitutional right. United States v. Goodwin, 457 U.S.368, 372 (1982). "For while an individual may be penalized for violating the law,. he just as certainly may not be punished for exercising a protected statutory orconstitutional right." ld.The BordenkircherlGoodwin line of cases deal with the issue of vindictiveprosecution. "The principle of prosecutorial vindictiveness originates from the ideathat it is unconstitutional for the State or its agent to penalize a person forexercising his or her legal rights." State v. Roundstone, 2011 MT 227, 37, 362Mont. 74, 261 P.3d 1009. To establish that a prosecution was vindictive, adefendant must show either (1) actual vindictiveness or (2) a rebuttablepresumption of vindictiveness where there is a reasonable likelihood ofvindictiveness. ld. at '138. The evidence required to prove actual vindictiveness hasbeen described as objective proof that the prosecutor's charging decision waslTIotivated by a desire to punish a defendant for doing something that the lawPETITION FOR WR1T OF SUPERVISORY CONTROLPage 10 of21
plainly allowed him to do.Id. at 39. In State v. Knowles, the Court reversed afterfinding a reasonable likelihood of vindictiveness when a prosecutor soughtincreased charges after a defendant exercised his right to a jury trial. 2010 MT 186, 35,357 Mont. 272, 239 P.3d 129.A judge punishing a defendant for exercising his statutory right to substitutea judge is analogous to a prosecutor punishing a defendant for exercising hisconstitutional right to a jury trial. The transcript from the July 25, 2013 hearing inLebeau establishes actual vindictiveness. The district court's decision to assignPetitioners) cases to out of district judges and then request that those out of districtjudges make defendants personally appear is motivated by a desire to punish thePetitioners for doing something that the law plainly al1o\vs them to do.The vindictive nature of this action is further supported by the fact that all ofthe known cases that have been assigned out of district have been cases where adefendant has substituted a judge. (See6-A, 6-B and 6-C (Affidavits of BrianSmith, Joan Burbridge and Katie Green).) Although the State has also filed motionsto substitute, as far as Petitioners are aware, none of those cases have been referredto an out of district judge.ld. In Chilcote, the three non-substituted Fourth Judicialdistrict judges all declined jurisdiction on September 17. (Ex. 2-B.) However, onthe same date, the Honorable Karen S. Townsend assumed jurisdiction in State v.Graham, DC-13-424, after the State had filed a motion to substitute. (See6-APETITION FOR WlUT OF SUPERVISORY CONTROl)11 of21
(Affidavit of Brian Smith, Ex. 1).) The district court is singling out indigentdefendants represented by the Office of the State Pub ic Defender to punish forexercising their right to substitute.This practice violates Petitioners' due process rights. As stated in theattached Affidavits by Petitioners' counsel, the district court's actions are chillingindividual defendant's rights. When discussing their right to substitute a districtcourt judge, attorneys must now warn defendants that if they choose to exercisethat right, they and their witnesses may need to travel to another jurisdictionmultiple times for hearings. These defendants are represented by the Office of theState Public Defender and are indigent. Requiring them to travel is a financialhardship on them and chills their statutory rights.In Chilcote, Judge Tucker stated that Judge Larson was authorized toconduct all matters not addressing the merits of the case in Missoula. While thismight limit travel some, it does not eliminate the need to travel for motion hearingsand other substantive matters. Setting substantive hearings outside of Missoulacreates other problems. Defendant may wish to call witnesses at hearings and beunable to do so when the hearing is in Polson or Butte or Dillon.It is patently unconstihltional for the district court to pursue a course ofaction whose objective is to penalize a defendant's reliance on his legal rights.PETITION FOR WRlT OF SUPERV1S0RY CONTROLPage 12 of21
Petitioners have done nothing more than what the law clearly allows them to doand cannot constitutionally be penalized for substituting the district court judge.CONCLUSIONPursuant to Rule] 4(7)( c), Petitioners request this Court to immediatelyorder a stay of further proceedings in the district court pending the Court'sdisposition of this petition for supervisory control. With respect to the merits,Petitioners request this Court to grant a writ of supervisory control directing thedistrict court to vacate the Invitation to Assume Jurisdiction in each of these casesand to return the case to the Fourth Judicial District.1,.",-DATED this LJ -day of October, 2013.OFFICE OF THE STATE PUBLIC DEFENDERRegion 2, Missoula Office"r"M\ '1'1--- :.-, . ,I'JiB y. \\, ,.' V,1----) \ -." /./". \I I'\ .JPETIT]ON FOR WRIT OF SUPERVISORY CONTROLPage 13 0[2)
CERTIFICATE OF SERVICEI hereby certify that I caused a true and accurate copy of the foregoingPetition for Writ of Supervisory Control to be mailed to:HONORABLE ED MCLEANHONORABLE ROBERT DESCHAMPS, IIIHONORABLE JOHN W. LARSONHONORABLE KAREN S. TOWNSENDDistrict Court Judges200 West BroadwayMissoula, MT 59802FRED R. VANVALKENBURGMissoula County Attorney200 West BroadwayMissoula, MT 59802TIM FOXMontana Attorney GeneralMARK MATTIOLIAssistant Attorney GeneralP.O. Box 201401Helena, Montana 59620 ON FOR WRIT OF SUPERVISORY CONTROI Page 14 of21
CERTIFICATE OF COMPLIANCEPursuant to Rule 11 and Rule 14 of the Montana Rules of AppellateProcedure, I certify that this Petition for Writ of Supervisory Control is printedwith a proportionately spaced Times New Roman text typeface of 14 points; isdouble spaced except for footnotes and for quoted and indented material; and theword count calculated by Microsoft Word for Windows is not more than 4,000, notaveraging more than 280 words per page, excluding certificate of service andcertificate of compliance.J0 k BURBIffDGE)"' ' /"//PETITION FOR WRIT OF SUPERV:ISORY CONTROLPage 15 of2]
APPEND]X FOR PETITIONER LEBEAUInfonnation . Ex. J-AOrder . Ex. I-BMotion to Substitute Judge . Ex. 1-CInvitation to Assume Jurisdiction .
missoula county, the l-ionorables ed mclean, robert l. deschamps iii, john w. larson and karen s. townsend, presiding, respondents. petition for wrlt of supervisory control appearances: brlan c. siviith katie green joan h. burbridge deputy public defenders 610 woody st. missoula, mt 59802 attorneys for petitioners i-ion. ed mclean hon. robert ij.
