Harris v. Smartt

• Decision Date: 25 October 2002
• Docket Number: No. 01-464.,01-464.
• Citation: 2002 MT 239,57 P.3d 58,311 Mont. 507
• Parties: Inquiry Concerning Complaints of Samuel L. HARRIS and Troy Nelson Dye, Complainants, v. Michael S. SMARTT, Justice of the Peace, Respondent.
• Court: Montana Supreme Court

57 P.3d 58

2002 MT 239

311 Mont. 507

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.

Submitted March 6, 2002.

Decided October 25, 2002.

For Complainants: Gregory G. Gould, Special Counsel for the Judicial Standards Commission, Luxan and Murfitt, PLLP, Helena, Montana.

For Respondent: Channing J. Hartelius, Hartelius, Ferguson, Baker and Kazda, Great Falls, Montana.

Michael S. Smartt, Great Falls, Montana, respondent, pro se.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 The Judicial Standards Commission (the Commission) has filed a formal Opinion and Recommendation in this Court following a hearing on allegations made against Cascade County Justice of the Peace Michael S. Smartt by Cascade County Justice of the Peace Sam Harris and Troy Nelson Dye. The Commission has recommended that Smartt be removed from office. Smartt has filed exceptions to the proceedings before the Commission in which he raises 39 objections. We substantially agree with the findings of the Commission and suspend Smartt without pay through the end of his term, December 31, 2002.

¶ 2 We consolidate Smartt's objections as follows:

¶ 3 1. Did the Commission commit any prejudicial error which requires reversal or dismissal of the proceedings or the complaints?

¶ 4 2. Were the Commission proceedings conducted in violation of the confidentiality provisions of Montana law?

¶ 5 3. Did the Commission err in denying Smartt's motion to disqualify Chairman Warner?

¶ 6 4. Did the Commission err in denying Smartt's motions for continuance?

¶ 7 5. Did the Commission err in denying Smartt's motion to suppress evidence?

¶ 8 6. Did Smartt's conduct violate the Canons of Judicial Ethics?

¶ 9 7. What appropriate sanction should this Court impose?

¶ 10 8. Should Smartt be assessed and ordered to pay the costs of this proceeding?

Facts and Procedural Background

¶ 11 The Cascade County Justice Court has two Justices, denominated as Departments 1 and 2. Michael Smartt was sworn in as Justice of the Peace (JP) for Department 1 in January 1999. Samuel B. Harris took office as Justice of the Peace for Department 2 in June 1999. The court, although separated into two departments, operates on a single budget and a single filing system. Office staff work for both departments and are not separately assigned. The two JPs share supervisory responsibilities over the Justice Court office staff.

¶ 12 The Justice Court office includes a general office area where the office clerks and manager generally work. The two JPs each have separate enclosed chambers within the general office area. The entire Justice Court office area has an outer door that is locked to restrict access to the general public. All office staff, the two JPs and the custodial staff have keys to the main Justice Court offices. Justice Court office staff routinely and frequently go in and out of both JPs' chambers daily to locate files, put files in slots for upcoming trials, update calendars and ask questions.

¶ 13 For purposes of performing judicial duties, each JP was provided with a desktop computer used in chambers and a laptop computer. These were paid for by Cascade County and the State of Montana at public expense. The JPs were provided internet access on their computers, also at county expense.

¶ 14 The desktop computers used by the JPs and office clerks for word processing and calendaring were joined together on a network. The passwords on the JPs' computers were "Judge 1" and "Judge 2" respectively, and the passwords for each were known to the other JP and to some of the office staff.

¶ 15 Susan Stevenson has been employed by the Cascade County Justice Court for 22 years and has been the office manager for at least ten years. Her duties include shutting down the office at the end of each working day, including checking that computer monitors are shut off daily and shutting down the entire system at the end of the day on Fridays.

¶ 16 Staff were not required to obtain permission to enter the JPs' chambers, unless there was someone in chambers with the judge. Stevenson testified that she occasionally entered Smartt's office and opened his desk drawer to put in money from weddings, whether or not Smartt was present. Additionally, she would occasionally answer the phone when she was in Smartt's chambers and access the calendar on Smartt's computer to provide information to the caller. At times Smartt would call Stevenson and ask her to look for something on his desk. County computer support staff also entered the Jps' chambers to perform computer support.

¶ 17 On Friday, October 13, 2000, Stevenson mentioned to Harris that she was having difficulty with the automated backup system on the network. She indicated that staff members often leave programs open on their computers, which cause the backup program to fail. She also told Harris that a staff person in the computer support department had told her that Judge Smartt's computer must have been in one of the programs on a previous occasion when the backup program failed. She requested Harris's help in shutting down Smartt's computer so she would not delete any open documents. Smartt had left earlier in the afternoon.

¶ 18 Stevenson and Harris entered Smartt's chambers and went around his desk to check his computer terminal. The terminal screen was darkened in the "energy save" mode. Stevenson touched the mouse to reactivate the screen and clicked on the toolbar. At that point, three pornographic pictures came up on the screen. Two of the pictures showed individual men masturbating and the third picture showed two men engaged in oral sex. Stevenson said, "Oh my God," and ran from the office. Harris testified that it was clear from the box surrounding the pictures that they came from an internet website. Harris printed the screen to record what he and Stevenson had seen, and then he hit the power button on the computer and shut it off.

¶ 19 Harris returned to Smartt's chambers on the following Sunday and accessed the short term history file in the Internet Explorer program on Smartt's computer. He found and recorded twenty days of website activity, including approximately 105 websites that appeared to be "quite obviously pornographic."

¶ 20 Throughout the next few days, Harris returned to Smartt's chambers and monitored any new internet activity. At some point during this time, Harris took digital photographs of the temporary internet files on Smartt's computer which recorded website access beginning in August 2000.

¶ 21 Subsequently, Harris filed a sexual harassment complaint against Smartt with Cascade County and a complaint with the Judicial Standards Commission. Additionally, Harris made a report to the FBI because the names of some of the websites accessed on Smartt's computer indicated that they were meant to portray child pornography. The FBI obtained a search warrant and seized Smartt's desktop computer and his laptop computer. The FBI found that the two computers contained in excess of 18,000 pornographic images or files. The images found did not contain child pornography, although an FBI agent stated that they "pushed the limit."

¶ 22 Smartt admits using the county internet service and his county computer to access sexually explicit material on the internet. He testified that his access of this material was related to a joke birthday card he was planning for his wife's upcoming 50th birthday. He told the FBI investigator that he had about thirty to forty pornographic picture files on his desktop computer.

¶ 23 Upon receiving Harris's complaint, the Judicial Standards Commission sent a copy of the complaint to Smartt. The Commission received Smartt's response in November 2000 and directed the Honorable John Warner, chairman of the Commission, to pursue an informal resolution of the complaint. Sometime in late November, Warner became aware of a Montana Department of Justice Criminal Investigation Bureau (CIB) investigation of Smartt. He thought the investigation may be related to the Harris complaint and applied to the First Judicial District Court for release of the CIB file. The court ordered release of the file and the Commission received the file on December 4, 2000.

¶ 24 Upon review of the file, Warner discovered that the investigation did not concern the Harris complaint, but rather concerned a factual allegation of criminal conduct made by Troy Dye against Smartt. Dye testified that he met Smartt on the street in Sydney, Montana, sometime in early May 2000. Smartt introduced himself to Dye and said he was a Cascade County JP or judge and that he was in town for a conference. Dye responded that "maybe I shouldn't be talking to [you] because I had some trouble with the law." Smartt then invited Dye to come back to his motel room and have a drink and discuss Dye's legal problems. Smartt told Dye that he "wasn't a cop, he couldn't arrest me."

¶ 25 Smartt and Dye went to Smartt's room and had two or three drinks each. They discussed general things and also talked about outstanding warrants on Dye. Smartt testified that he told Dye, "You know you're going to be arrested if you attract attention so why don't you just keep your nose clean and behave." Smartt also testified that Dye told him he was fixing up a house in Sydney. Because Smartt is also interested in building, he and Dye walked from the motel to Dye's house. Dye testified at the hearing that he and Smartt smoked marijuana while at Dye's house, but Smartt testified that they only went there to see the house and did not stay long. He emphatically denied smoking marijuana with Dye.

¶ 26 When they left Dye's house, they walked to the Ranger Bar to have dinner. Dye testified that while eating, Smartt asked him if he would "like to go to his room and take a shower with him." The statement shocked Dye and he got...