Harris v. Smartt, 01-464.

• Citation: 316 Mont. 130,68 P.3d 889,2003 MT 135
• Decision Date: 29 April 2003
• Docket Number: No. 01-464.,01-464.
• Court: United States State Supreme Court of Montana
• Parties: Inquiry Concerning Complaints of: Samuel L. HARRIS and Troy Nelson Dye, Complainants, v. Michael S. SMARTT, Justice of the Peace, Respondent.

68 P.3d 889

2003 MT 135

316 Mont. 130

Inquiry Concerning Complaints of: Samuel L. HARRIS and Troy Nelson Dye, Complainants, v. Michael S. SMARTT, Justice of the Peace, Respondent.

No. 01-464.

Supreme Court of Montana.

April 29, 2003.

ORDER AND OPINION

¶ 1 In Harris v. Smartt, 2002 MT 239, 311 Mont. 507, 57 P.3d 58, this Court held that Justice of the Peace Michael Smartt's (Smartt) conduct in accessing sexually explicit images on his county-owned computer and exposing his co-workers to these images was conduct violating the Canons of Judicial Ethics warranting suspension from office. Further, this Court ordered that Smartt shall pay all costs of the proceeding.

¶ 2 Pursuant to the above order, the Judicial Standards Commission (the Commission) filed a statement of costs in the amount of $52,539.02 (Transcripts $2699.70; Expenses of Commission Members $1,025.31; Room rental $165; Legal fees and investigation $48,649.01). Smartt filed an objection to the Commission's statement of costs. In his objection, Smartt raised six "general objections" and numerous "specific, line-item objections."

¶ 3 We determine that Smartt's first, second and fourth general objections are dispositive, and thus we need not address the other objections.

¶ 4 In his first general objection, Smartt contends: Rule 13(h) of the Judicial Standards Commission is unconstitutional; and, as a consequence, the Supreme Court is without authority to award the Commission's costs and attorney fees in judicial disciplinary proceedings.

¶ 5 In essence, Smartt contends that the Judicial Standards Commission is a constitutionally-mandated body under Article VII, Section 11, of the Montana Constitution and that the Commission's authority is limited by the constitutional mandate, and that the Constitution does not explicitly or impliedly grant the Commission any authority to adopt rules which assess costs and fees on a judge found to have violated the Canons of Judicial Ethics.

¶ 6 He further contends that the Supreme Court's role in matters of judicial discipline is limited by the Constitution to imposing retirement, censure, suspension or removal, Article VII, Section 11, and that the imposition of costs and fees is an unconstitutional extension of the Court's limited authority. In his fourth objection, Smartt argues that, as a matter of policy, the Court should not grant an award of costs and fees since such an award will have a chilling effect upon a judge's decision to defend against a charge of unethical conduct.

¶ 7 The Commission responds that Smartt, by failing to register timely objections to the imposition of costs and fees, has waived this issue. The Commission points out that in its Opinion and Recommendations to the Court, it "unanimously request[ed] that the Supreme Court enter its order that Justice of the Peace Smartt be assessed and pay the costs of this proceeding." Smartt did not object to this recommendation. Further, in our Opinion addressing Smartt's exceptions, we set forth, as issue number eight, "Should Smartt be assessed and ordered to pay the costs of this proceeding?" Harris v. Smartt, 2002 MT 239, ¶ 10, 311 Mont. 507, ¶ 10, 57 P.3d 58, ¶ 10. In answering that issue, this Court stated: "It is therefore ordered that Smartt shall pay all the costs of the proceedings involving these matters." Smartt, ¶ 87. Thus, the Commission argues that under the doctrine of collateral estoppel or "law of the case," Smartt is now precluded from challenging the award of costs and fees.

¶ 8 As to the merits of Smartt's constitutional and statutory challenge, the Commission posits that both the Constitution and statutory law, § 3-1-1105(2), MCA, accord the Commission rulemaking authority to implement the Commission's mandate. It is contended that Rule 13(h) is procedural in nature and is within the Commission's constitutional authority.

¶ 9 We address the issues as follows:

¶ 10 Is Smartt precluded from challenging the award of costs and fees?

¶ 11 The Commission contends that since Smartt failed to object to the Commission's recommendation or to the Court's order, he is precluded from challenging the award of costs and fees. Smartt raises an issue as to whether the Commission or this Court has authority to impose costs and fees in light of the Constitution's limited grant of authority. In effect, Smartt argues that neither the Commission nor the Court has jurisdiction to impose fees and costs. A jurisdictional challenge cannot be waived; it can be raised at any time. It is well settled that the issue of a court's subject matter jurisdiction may be presented at any time. A party can never waive or consent to subject matter jurisdiction where there is no basis for the court to exercise jurisdiction. Balyeat Law, PC v. Pettit, 1998 MT 252, ¶ 15, 291 Mont. 196, ¶ 15, 967 P.2d 398, ¶ 15. Thus, despite Smartt's failure to object to the Commission's recommendation and failure to challenge this Court's imposition of costs through a petition for rehearing, we hold that he may still raise a jurisdictional challenge to the Commission's authority to recommend and the Court's authority to impose costs and attorney fees.

¶ 12 Does Rule 13(h) exceed the Commission's authority under Art. VII, Sec. 11(2)?

¶ 13 Unlike the Commission on Practice, which addresses lawyer discipline and is an arm of the Supreme Court, the Judicial Standards Commission is a constitutionally-recognized body. Article VII, Section 11, of the Montana Constitution, provides as follows:

Removal and discipline. (1) The legislature shall create a judicial standards commission consisting of five persons and provide for the appointment thereto of two district judges, one attorney, and two citizens who are neither judges nor attorneys.

(2) The commission shall investigate complaints, and make rules implementing this section. It may subpoena witnesses and documents.

(3) Upon recommendation of the commission, the supreme court may:

(a) Retire any justice or judge for disability that seriously interferes with the performance of his duties and is or may become permanent; or

(b) Censure, suspend, or remove any justice or judge for willful misconduct in office, willful and persistent failure to perform his duties, violation of canons of judicial ethics adopted by the supreme court of the state of Montana, or habitual intemperance.

(4) The proceedings of the commission are confidential except as provided by statute.

¶ 14 Pursuant to the above mandate, the legislature created a Judicial Standards Commission and provided that the Commission shall adopt rules for the conduct of its affairs. Section 3-1-1105(2), MCA. The Commission, in turn, adopted Rule 13(h) which provides, in part, as follows:

Should the commission find charges in a formal complaint to be true, and a recommendation for discipline as provided in Rule 9(c) be accepted and imposed by the supreme court, the responding judge may be assessed and required to pay all costs of the proceedings before the commission, including reasonable attorneys fees of the prosecuting attorney.

¶ 15 The question presented is whether this rule is necessary to the implementation of Art. VII, Sec. 11, Mont. Const., or appropriate for the conduct of the Commission's affairs or whether it exceeds that grant of authority and imposes sanctions beyond those contemplated by the Constitution.

¶ 16 As Smartt contends, the constitutional provision is very explicit as to what powers the Supreme Court has in disciplining a member of the judiciary. The Court may, upon recommendation of the Commission, retire, censure, suspend or remove any justice or judge. Is it within the power of the Court, in addition to the above, to require the judge or justice to pay the costs and attorney fees of the Commission? We think not. The Constitution is very explicit as to what sanctions the Court can impose upon recommendation of the Commission. This list of sanctions is exclusive. In State v. Henry (1995), 271 Mont. 491, 498, 898 P.2d 1195, 1199, we addressed the question of whether the District Court erred in ordering Henry to pay $10,550 as the costs of legal fees incurred by the Town of Darby in prosecuting his case. The legal fees were imposed as part of Henry's suspended sentence pursuant to § 46-18-201(1)(b), MCA (1993). That statute provided that during the period of suspension, the judge could impose any of the conditions listed in subsection (1)(a). Subsection (1)(a) allowed for the imposition of certain monetary obligations such as restitution and costs of court-appointed counsel. However, the statute did not authorize the imposition of the prosecution's legal fees.

As a general rule, the express mention of a certain power or authority within a statute implies the exclusion of non-expressed powers. [Citation omitted.] Because the legislature expressly authorized the imposition of the costs of court-appointed defense counsel as a "reasonable condition" and did not provide for corresponding authority regarding prosecution legal fees, we conclude that the legislature did not intend to authorize the imposition of prosecution legal fees as a condition of a suspended sentence.

Henry, 271 Mont. at 498, 898 P.2d at 1199.

¶ 17 In like manner, the framers of the Constitution specified what the Commission can recommend and what sanctions the Supreme Court can impose; retirement, censure, suspension or removal from office. Expressio unius est exclusio alterius. The express mention of the above sanctions implies the exclusion of non-expressed sanctions. We conclude that the imposition of costs and attorney fees exceeds the power granted to either the Commission or this Court by the Montana Constitution.

¶ 18 The Commission contends that the principal limitation on its rule-making authority is that the rules adopted must be procedural as opposed to substantive in nature. The Commission contends that Rule 13(h) comes within its constitutional authority to adopt rules to "...