Davenport v. Lincoln County

01/26/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0019
DA 20-0019
KRISTINE DAVENPORT,
Plaintiff and Appellant, JAN 2 6 2021
Bovven Greenwooa
Clerk of Supreme Court
v. State of Montana
ORDER
COUNTY OF LINCOLN,a political subdivision of
the State of Montana; SHERIFF OF COUNTY OF
LINCOLN, State of Montana, and ROBY BOWE,
Defendants and Appellees.
This matter comes before the Court on the motions of Appellant Kristine Davenport
(Davenport)to have the five-justice panel which decided Davenport v. Cty. ofLincoln, No.
DA 20-0019, 2020 MT 314N, 2020 Mont. LEXIS 2599 recuse themselves from
consideration of her Petition for Rehearing and for leave to file an overlength Petition for
Rehearing.
Davenport contends recusal of the five-justice panel is required because the panel's
"impartiality might be reasonably questioned" after having previously ruled against her
and having the same panel which denied her appeal consider her Petition for Rehearing
would violate her due process rights. These contentions are without merit.
First, Davenport asserts the panel is biased against her due to the decision in
Davenport v. Cty. ofLincoln, No. DA 20-0019, 2020 MT 314N,2020 Mont. LEXIS 2599.
While bias or prejudice against a party would warrant disqualification pursuant to M. C.
Jud. Cond. 2.12(A)(1), previously ruling unfavorably to a party on her appeal does not
establish bias or prejudice towards a litigant. Davenport has failed to demonstrate any
personal bias or prejudice of any justice on the panel which warrants recusal. Second,
pursuant to the Montana Rules of Appellate Procedure, this Court will consider a petition
for rehearing only if the opinion "overlooked some fact material to the decision," if the
opinion missed a question provided by a party or counsel that would have decided the case,
or if our decision "conflicts with a statute or controlling decision not addressed" by the
Court. M. R. App. P. 20(1)(a). Davenport does not have a due process right to choose
which justices ofthis Court can or cannot hear her Petition for Rehearing.
We turn now to Davenport's motion for leave to file an overlength petition for
rehearing. On December 28, 2020, Davenport filed a 19-page Petition for Rehearing in
this matter. Though an accurate word count is difficult to ascertain because Davenport
inserted numerous improper hyphens between words, an action that serves to circumvent a
word processing program's word-count function, Davenport's petition appeared to contain
around 6,000 words. Because M. R. App. P. 20(3) provides that the text of a petition for
rehearing shall not exceed 2,500 words if proportionately spaced or 10 pages if prepared
in monospaced typeface or typewritten, we rejected her Petition and returned it for
revisions to comply with M.R. App.P. 20(3)on December 31,2020. On January 11,2021,
Davenport filed Appellant's Motion for Leave to File an Overlength Petition for Rehearing
and Declaration. In her Motion, Davenport both asserts that her December 28, 2020
Petition for,Rehearing was not overlength and that an overlength petition is warranted due
to the complex nature of the case. Neither assertion is persuasive.
Davenport attached a proposed Petition for Rehearing to the Appellant's Motion for
Leave to File an Overlength Petition for Rehearing and Declaration. Davenport's proposed
Petition is identical to the previously rejected version and is oncb again well over the 2,500-
word limit of M. R. App. P. 20(3). By way of example, a single footnote on a single page
of Davenport's proposed Petition—note 16—contains 503 words as currently written, and
513 words when the improper hyphenation is removed. The Appellant's Motion for Leave
to File an Overlength Petition for Rehearing and Declaration repeatedly claim the proposed
Petition contains only 2,409 words. This claim is obviously false. It is Davenport's
responsibility to ensure an accurate word count and this Court will not accept the proposed
Petition for Rehearing as currently written. This matter is also not so complex as to require
an overlength brief. Davenport was given reasonable opportunity to comply with M. R.
App. P. 20(3) and our December 31, 2020 Order. Rather than do so, she has recycled
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arguments previously made and used inappropriate hyphenation to obfuscate her petition's
deficiency. The time to file a petition in conformance with M. R. App. P. 20 has long
passed.
THEREFORE,
IT IS ORDERED that Davenport's Request to Recuse is DENIED;
IT IS FURTHER ORDERED that Davenport's Motion for Leave to File an
Overlength Petition for Rehearing is DENIED and DISMISSED.
The Clerk is directed to give notice of this Order to Appellant and to all counsel of
record.
Dated this e-4 day of January, 2021.
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Justices
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