Non-Lawyer May Not Sue Judge Who Denied Him Ability To Represent Criminal Client

The Montana Supreme Court dismissed a lawsuit against a judge and county on immunity grounds

Rodney Owen Skurdal sued Yellowstone County Justice of the Peace Jeanne Walker, after Judge Walker denied Skurdal’s attempt to represent Ronald Trow in a criminal case. Skurdal is not an attorney. The Thirteenth District Court for Yellowstone County dismissed Skurdal’s case, holding Judge Walker was immune from suit. Skurdal now appeals the dismissal to this Court. We affirm.

The putative client had a criminal matter

Skurdal is not a licensed attorney in the state of Montana or in any other state. When Skurdal began acting as Trow’s attorney at the initial appearance, Judge Walker ordered Skurdal to vacate the defendant’s table and then ordered the hearing to proceed without Skurdal. Trow entered a plea of not guilty on all counts. A public defender was appointed  to represent Trow. Since then, Trow failed to appear during his Omnibus hearing, his bond was forfeited, and a warrant for his arrest was issued. The criminal case is still pending as of this date.

This suit

After Trow’s initial appearance, Skurdal filed his suit in the Thirteenth Judicial District Court for Yellowstone County against Judge Walker. Against Skurdal’s wishes, Yellowstone County was added as a defendant as the financially liable party for any claim against the Justice Court.

Skurdal alleged Judge Walker violated his and Trow’s rights when she did not allow Skurdal to represent Trow during the initial appearance. Additionally, Skurdal made allegations Trow’s rights were violated throughout the prosecution of his case, and he advanced other arguments which could be characterized as “Sovereign Citizen” arguments. These arguments alleged Judge Walker lacked jurisdiction over Trow because Judge Walker did not maintain a bond, Walker was practicing admiralty law and not common law, and other similar allegations. Skurdal attempted to overcome Judge Walker’s judicial immunity by claiming she had no jurisdiction over Trow.

Contentions on appeal

To overcome Judge Walker’s immunity, Skurdal claims Judge Walker did not have jurisdiction over Trow. First, Skurdal alleges Montana judges did not take out bonds, or insurance, and have not filed this bond with the appropriate office. Skurdal argues judges are required to do so under Title 2, chapter 9, MCA, Liability Exposure and Insurance Coverage. Specifically, § 2-9-602(1), MCA, requires “[a]ll state officers and employees shall be bonded.” Skurdal argues Judge Walker was not “lawful[ly]” discharging her duties because she is not bonded and insured. He argues the lack of a bond makes all judges “impostors” impersonating public officials.

Skurdal looks to the incorrect statute. Judge Walker is a justice of the peace in the Yellowstone County Justice Court. Justice courts are county entities, not state entities, and their insurance requirement is governed by §§ 2-9-701 through –704, MCA. Under § 2-9-701(2), MCA, “a blanket bond may cover all officers and employees or any group of or combination of county officers and employees.” Skurdal fails to show Yellowstone County does not have an insurance policy to cover all its officers and employees.

Sixth Amendment

…the Montana Constitution does not grant the right to be represented by a lay person in a criminal trial. “In Montana, a non-lawyer may not represent others.” Guill v. Guill, 2014 MT 316, ¶ 19, 377 Mont. 216, 339 P.3d 81 (citing Traders State Bank v. Mann, 258 Mont. 226, 234, 852 P.2d 604, 609 (1993), overruled on other grounds, Turner v. Mtn. Eng’g & Constr., Inc., 276 Mont. 55, 915 P.2d 799 (1996)).

Skurdal points to § 25-31-601(2), MCA, to argue “any person . . . may act as an attorney for a party.” However, this section is part of the statutes governing civil procedure, not criminal procedure. These do not apply to criminal proceedings. Criminal proceedings are governed by Title 46 of the Montana Code Annotated. Section 46-1-103, MCA. Title 46, MCA, does not contain this “any person” exception.

This Court held the same in Sparks v. Johnson, where a criminal defendant argued § 25-31-601, MCA, allows for representation by non-licensed attorneys. Sparks v. Johnson, 252 Mont. 39, 42, 826 P.2d 928, 929 (1992). However, we concluded this section “is limited, by its plain language and placement in the Montana codes, to civil litigation in justices’ courts.” Sparks, 252 Mont. at 42, 826 P.2d at 929. Thus, Skurdal did not have the statutorily granted ability to represent Trow during his initial appearance.

Futility

Because Judge Walker and Yellowstone County are immune from Judge Walker’s judicial acts, any amendment to the complaint would be futile. The District Court had all the relevant information when it ruled on the merits of the immunity. The jurisdiction of a justice court is dependent only on (1) the location of the offense and (2) whether the crime is a misdemeanor or a felony. A judge enjoys absolute judicial immunity when (1) the act is a function normally performed by a judge, and (2) the judge does not act in the “clear absence of all jurisdiction.” Hartsoe, ¶ 9. Skurdal could not overcome any of these elements through further amendments.

(Mike Frisch)