Hill v. 5th Judicial District ( 2021 )

08/31/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0352
OP 21-0352
CHAD BURTON HILL and LOUISA BISSETTE, AUG 3 1 2021
Bowen Greenwood
Petitioners, Clerk of Suprema Court
State of IVIontana
v.
ORDER
MONTANA FIFTH JUDICIAL DISTRICT
COURT, BEAVERHEAD COUNTY, The
Honorable Luke Berger, Presiding,
Respondent.
Petitioners Chad Burton Hi11 and Louisa Bissette seek a writ of supervisory control to
vacate the Fifth Judicial District Court's order in Beaverhead County Cause Nos.
DC-20-3960 and DC-20-3691 removing their joint counsel from further representation of
either and directing each to obtain separate counsel. At our invitation, both the
District Court and the State of Montana have responded.
Hill and Bissette each are charged with drug-related offenses in Beaverhead County.
Attorney Jack Morris has been representing them and filed a "Consent to Representation
with Potential Conflict." On the State's motion, the District Court held a hearing to
determine whether Morris had an actual conflict of interest that precluded joint
representation. Based on evidence presented at the hearing, the court found that an actual
conflict of interest existed, precluding Morris from being able to represent either or both. In
particular, the State had determined Hill to be more culpable than Bissette and had offered
her a plea agreement that called for her to provide information and testimony against Hill.
Because Morris had been put in the position of having to advance either Bissette's or Hill's
interests, the District Court concluded that removal was the only solution. It reasoned:
Given the record before the Court, it appears any advice given by Mr. Morris
could negatively impact one of his client's rights. If he advises Bissette to
take the deal, then it could hurt Hill. If he advises Bissette not to take the deal
and go forward with a unified defense it could hurt Bissette.
The court found that the outside advice each had received from other attorneys did not
mitigate the conflict under the circumstances presented. Rather, "given the State's
representations, it appears from the record the [conflict] is not hypothetical, but a reality."
The court directed the defendants to seek and obtain separate counsel.
Bissette and Hill argue that the District Court is in error because each knowingly and
voluntarily agreed to waive any conflict and proceed with dual representation. They
maintain that they "have invested significant time and monetary resources to retain" their
current counsel and "believe that his continued representation is in their individual and
mutual best interests." They contend that the District Court is depriving them of their
fundamental right to be defended by their chosen counsel. This, they argue, implicates the
fairness of the pending criminal proceedings and presents an emergent or urgent
circumstance justifying this Court's supervisory intervention.
Supervisory control is an extraordinary remedy that is sometimes justified when
urgency or emergency factors exist making the normal appeal process inadequate, when the
case involves purely legal questions, and when the other court is proceeding under a mistake
of law and is causing a gross injustice, constitutional issues of state-wide importance are
involved, or, in a criminal case, the other court has granted or denied a motion to substitute a
judge. M. R. App. P. 14(3). We determine on a case-by-case basis whether supervisory
control is appropriate. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5,
361 Mont. 279, 259 P.3d 754 (citations omitted).
Having reviewed the petition and the responses, we conclude that Hill and Bissette
have not established the criteria for an extraordinary writ. The District Court made findings
based on the evidentiary record before it and drew its conclusions from its consideration of
that evidence. We review for abuse of discretion a trial court's ruling on a motion to
disqualify counsel. Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 MT 15, ¶ 13,
363 Mont. 366, 272 P.3d 635. The petition does not raise an issue that is purely one of law
but involves a matter of discretion; it therefore fails to satisfy the standards for supervisory
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control. It is the Court's general practice to refrain from exercising supervisory control when
the petitioner has an adequate remedy of appeal. E.g., Westphal v. Mont. Eleventh Judicial
Dist. Court, No. OP 21-0387, 2021 Mont. LEXIS 663 (Aug. 17, 2021) (citing cases).
Bissette and Hill acknowledge that they retain the right to seek review of the District Court's
disqualification order on appeal, should they be convicted of the charged offenses. We are
not persuaded that the District Court's order is a mistake of law that will cause a gross
injustice.
IT IS THEREFORE ORDERED that the petition for writ of supervisory control is
DENIED and DISMISSED.
IT IS FURTHER ORDERED that the stay of proceedings imposed by this Court's
July 27, 2021 Order is lifted.
The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioners, all counsel of record in the Fifth Judicial District Court, Beaverhead County,
Cause Nos. DC-20-3960 and DC-20-3691, and to the Honorable Luke Berger, presiding
Judge.
DATED this 31 day of August, 2021.
Chief Justice
(9471ustices
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