Former Hill County attorney disputes contempt findings, sentence

The former Hill County attorney has asked a state District Court judge to overturn a justice of the peace finding her guilty of three counts of criminal contempt, two days after that justice of the peace ordered her to again come to court to answer why she had not paid fines stemming from the findings.

Former Hill County Attorney Jessica Cole-Hodgkinson filed a request Thursday afternoon that Judge Dan Boucher overturn the findings of Hill County Justice of the Peace Audrey Barger, and asked for a stay on the sentence that she spend six days under house arrest and be barred from practicing in Hill County Justice Court for one year.

Aug. 7, Barger found Cole-Hodgkinson guilty of the three counts for failing to appear or find an attorney able to prosecute three cases that had hearings in Hill County Justice Court in July.

Barger fined Cole-Hodgkinson $500 for each count and sentenced her to one, two and three days of house arrest, respectively, on the counts to run consecutively. She also barred her from practicing in the justice court for one year unless Cole-Hodgkinson was representing herself.

Barger set a date of Sept. 1 to pay the fines, but delayed the jail time until Sept. 10 to allow Cole-Hodkginson the opportunity to request a higher court review.

Wednesday, Barger set a contempt hearing for Sept. 27 in which Cole-Hodgkinson can show why she did not pay the fines.

Cole-Hodkginson has a history of court's rebuking her performance as a public attorney dating back to when she was a deputy county attorney in Lake County. In 2014, a judge threw out charges stemming from accusations a man had seriously injured a jailer because Cole-Hodgkinson had delayed filing charges against the man for more than 10 days.

The Hill County Commission appointed Cole-Hodgkinson Hill County attorney in November 2016, taking the place of Gina Dahl, who resigned to take a position in Yellowstone County.

Cole-Hodgkinson was soon facing complaints in Hill County, including Barger holding a hearing in March 2017 to explain why she had not appeared at a trial in Barger's court.

Barger admonished Cole-Hodgkinson at that time, but did not find her guilty of contempt.

At about the same time, a victim of assault filed a $1 million lawsuit alleging Cole-Hodkginson's failing to perform her duties led to charges being dismissed against her assailant.

Boucher dismissed the lawsuit, ruling that the lawsuit lacked factual basis and the county attorney is immune from civil liability in performing her duties.

The Montana Attorney General's Office refiled the charges in that case and the defendant pleaded guilty and was sentence to seven years.

This year, Boucher ordered Cole-Hodgkinson to appear and explain why she had not submitted written judgments on seven cases. He vacated the hearing after Cole-Hodgkinson submitted the judgments and a letter stating she had resigned and requesting the hearing be vacated.

In her request for Boucher to review Barger's findings of contempt, Cole-Hodgkinson argues that Barger should not have held a summary hearing, in which external evidence is not needed; she did not prove that Cole-Hodgkinson had willfully disobeyed an order of the court or that Cole-Hodkginson caused immediate damage, as required in a finding of criminal contempt; and that Barger is violating the separation of powers by ruling on how Cole-Hodginson should have operated in her office.

Karen Alley, who was deputy county attorney at the time of the hearings and has since been appointed as Cole-Hodgkinson's replacement as county attorney, told Barger during the hearings that she could not represent the state because she had represented each of the defendants while acting as public defender, court documents say. She told Barger that she had told Cole-Hodgkinson she could not represent the state at the hearings, but Cole-Hodgkinson had not responded to her communications about the issue, the documents say.

Cole-Hodgkinson argued that to hold a summary hearing, the judge must be able to make a ruling based on the judge's own experience and knowledge. Because evidence showing Cole-Hodgkinson did not know about the conflict and about why she was absent - she said her service dog was having seizures and had to be transported to Great Falls and Missoula for treatment - the hearing should not have been a summary hearing and she should have been allowed to present evidence, she said.

Cole-Hodgkinson attached a transcript of the hearing to her petition, including her, for more than an hour, presenting arguments and reading into the court record text messages she said proved her innocence. She said she had extensive communication with her staff members, including Alley following the hearings in question.

In her petition, Cole-Hodgkinson argues that she had no knowledge of the conflict in the hearings, and she properly assigned responsibility to manage the lower court cases to Alley. Because Alley did not notify her of the conflict, she had no knowledge she needed to be at the hearings and was not willfully disobedient, which is required to be found guilty of criminal contempt, Cole-Hodgkinson argues.

She also argues that Barger's ruling criminalizes how she handled the operation of her office, which is a violation of the separation of powers.

During the Aug. 7 hearing, Barger said that it was Cole-Hodgkinson's responsibility to be aware of conflicts and to find attorneys who could represent the state on cases.

Barger also said that Alley's statements were not that Cole-Hodgkinson had not communicated with members of her staff, but that Cole-Hodgkinson had not responded to communications about Alley's conflict in those cases.

Barger said she was holding the hearing as a summary hearing because she was at the hearings, heard Alley's statements and knew that Cole-Hodgkinson had failed to appear or find an attorney who could represent the state.