Mandatory Cross-Examination at Montana Protection-Order Hearings and Appellate Remand on Inadequate Records: Commentary on Hennon v. Weber, 2025 MT 260

Introduction

In Hennon v. Weber, 2025 MT 260, the Supreme Court of Montana squarely addressed two recurrent problems in civil protection order proceedings: (1) whether a respondent must be afforded a meaningful opportunity to cross-examine the petitioner at the statutory hearing under § 40-15-202(1), MCA; and (2) the proper role of district courts when reviewing appeals from justice courts of record, particularly where the record is incomplete or unintelligible. The Court vacated an order of protection issued by the Judith Basin Justice Court and the District Court’s affirmance, holding that the Justice Court violated procedural due process by cutting off cross-examination on core issues and that the District Court abused its discretion by affirming on an inadequate record instead of remanding.

The case arose from a sworn petition filed by Skye Angel Anne Hennon seeking a temporary order of protection against Matthew Weber on behalf of herself, her minor child N.G., and an adult third party, Brian Gonzalez. After a hearing, the Justice Court continued the order for one year. On appeal, the District Court affirmed as to Hennon and N.G. and dismissed as to Gonzalez, but expressly acknowledged the appellate record was “less than clear,” with portions of the audio “unintelligible.” The Supreme Court reversed and remanded for a new evidentiary hearing consistent with due process.

Summary of the Opinion

Issue 1 – Cross-examination at § 40-15-202(1) hearings: The Court held that procedural due process requires a respondent in a protection order hearing to have a meaningful opportunity to cross-examine the petitioner on the core factual issues. By telling the petitioner she could decline to answer a plainly relevant question and then excusing her, the Justice Court foreclosed the only method by which Weber could test credibility and the factual basis of the allegations. This was an abuse of discretion and violated due process. The error was not harmless because credibility was outcome-determinative.
Issue 2 – District Court appellate obligations: Because Judith Basin Justice Court is a court of record, the District Court properly functioned as an appellate court confined to the record and was not required to hold a new evidentiary hearing or permit additional briefing. However, having found the record unclear and partly unintelligible, the District Court abused its discretion by affirming instead of remanding for clarification or a new hearing under § 3-10-115(3), MCA.
Disposition: The Supreme Court vacated the Justice Court’s order of protection and the District Court’s affirmance and remanded for a new evidentiary hearing consistent with § 40-15-202(1), MCA, and procedural due process.

Analysis

Precedents Cited and Their Role

Mont. Power Co. v. Pub. Serv. Comm’n, 206 Mont. 359, 368, 671 P.2d 604, 609 (1983), quoting Mathews v. Eldridge, 424 U.S. 319 (1976), and Armstrong v. Manzo, 380 U.S. 545 (1965): The Court invoked the canonical due process principle that parties are entitled to notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” This framework undergirds the conclusion that meaningful participation at a protection order hearing includes the ability to cross-examine an adverse witness.
State v. Pingree, 2015 MT 187, ¶ 16, 380 Mont. 1, 352 P.3d 473; State v. Mizenko, 2006 MT 11, ¶ 13, 330 Mont. 299, 127 P.3d 458: The Court relied on these Montana cases to emphasize that cross-examination is fundamental to the adversary process and is integral to ensuring a meaningful hearing in protection order proceedings. Although the Sixth Amendment confrontation right applies in criminal cases, Pingree and Mizenko are cited for the broader due process foothold of cross-examination in quasi-adjudicatory settings where credibility is pivotal.
Edelen v. Bonamarte, 2007 MT 138, ¶ 6, 337 Mont. 407, 162 P.3d 84; Bock v. Smith, 2005 MT 40, ¶ 29, 326 Mont. 123, 107 P.3d 488; Boushie v. Windsor, 2014 MT 153, ¶ 8, 375 Mont. 301, 328 P.3d 631: These cases anchor the abuse-of-discretion review applied to orders of protection and articulate that reversal is warranted when a court acts arbitrarily or exceeds the bounds of reason, resulting in substantial injustice—standards the Court found satisfied here.
Fritzler v. Bighorn, 2024 MT 27, ¶ 7, 415 Mont. 165, 543 P.3d 571: Clarifies that on appeal from a justice court of record, a district court functions as an appellate court and emphasizes the need for a record that permits meaningful review.
Keller v. Trull, 2007 MT 167, ¶ 12, 338 Mont. 546, 167 P.3d 916: Reversal was warranted where a protection order was made permanent without taking or reviewing the evidence required at a hearing. Keller supports the remedy of vacatur and remand when the evidentiary foundation for a protection order is inadequate.
Stanley v. Lemire, 2006 MT 304, ¶ 25, 334 Mont. 489, 148 P.3d 643; State v. Seaman, 2005 MT 307, ¶ 10, 329 Mont. 429, 124 P.3d 1137: These cases confirm that appeals from justice courts of record are confined to the record and questions of law—a principle the Court reaffirmed while emphasizing the corollary duty to remand when the record is not fit for review.
State v. Ilk, 2018 MT 186, ¶ 15, 392 Mont. 201, 422 P.3d 1219: Establishes de novo review for constitutional questions, relevant to the Court’s due process analysis.

Legal Reasoning

The Court’s reasoning proceeds along two related tracks: due process at the trial level and proper appellate function at the district court level.

First, the Court interprets § 40-15-202(1), MCA—which requires a hearing to determine whether “good cause” exists to continue, amend, or make a temporary protection order permanent—through the lens of procedural due process. While the statute sets the hearing requirement, due process supplies the qualitative content of that hearing. The Court held that the respondent’s “meaningful opportunity to be heard” necessarily includes the opportunity to cross-examine the petitioner on the central allegations. Cross-examination, the Court stressed, is not a mere formality; it is the primary vehicle for testing credibility, exposing inconsistencies, and probing the factual foundations of contested claims. Where, as here, the petition was largely supported by the petitioner’s testimony about communications and alleged intimidation, credibility was outcome-determinative.

The critical error occurred when the Justice Court told the petitioner she could choose whether to answer a plainly relevant question from the respondent—“Have I ever hurt you or harmed or threatened you before? And if so, how?”—and then terminated cross-examination when she declined. That invitation to refuse, followed by excusal of the witness, deprived the respondent of the core element of the hearing’s adversarial testing function. Because the petitioner’s testimony was the sole evidentiary basis for the order and it went untested, the error could not be deemed harmless.

Second, the Court turned to the District Court’s role on appeal from a justice court of record. The District Court properly recognized it was confined to the existing record and not obligated to convene a new evidentiary hearing or accept additional briefing. However, it simultaneously acknowledged that the record was “less than clear” and the hearing audio “unintelligible” in parts. Under §§ 3-10-115(3) and 25-33-101, MCA, an appellate court must ensure a record adequate for meaningful review. When such a record does not exist, the proper course is to vacate and remand for further proceedings—a step supported by Keller and Fritzler. By affirming despite the deficient record, the District Court abused its discretion.

Impact and Forward-Looking Significance

Hennon v. Weber delivers two concrete directives likely to shape practice across Montana:

Cross-examination is a due-process imperative at § 40-15-202(1) hearings. Trial courts must afford respondents a meaningful right to cross-examine petitioners on the core factual issues of threat, harm, fear, and the content/context of communications. While courts retain discretion to manage the manner and scope of cross-examination to prevent harassment or intimidation, they cannot permit petitioners to refuse to answer relevant questions about the essential elements of their claims.
Appellate remand is required when the record is inadequate. District courts reviewing justice courts of record cannot rely on deference to the trier of fact to overcome a deficient or unintelligible record. If the record does not allow meaningful appellate review, the case must be remanded for further proceedings or reconstruction of the record.

The decision also implicitly guides procedural management in protection order cases:

Protective accommodations are permissible but not at the expense of due process. Courts may employ reasonable measures—time limits, limiting repetitive or harassing questioning, judicially mediated questioning (e.g., having the judge pose questions submitted by a self-represented respondent), remote testimony, or sequestration—but they must still allow probing into the central issues.
Record quality matters. As justice courts of record, trial courts must ensure clear audio and complete documentation. Identifying the court as a court of record in official documents (as § 3-10-101(5), MCA, requires) is not a mere formality; it signals the appellate posture and the premium placed on a reliable record.
Credibility-driven cases demand especially careful process. Where the case turns on competing narratives and the petitioner’s testimony is the principal evidence, truncating cross-examination will almost always be reversible.

Complex Concepts Simplified

Procedural due process: The Constitution requires fair procedures when the government affects an individual’s protected interests. In hearings like protection order proceedings, due process includes notice and a chance to be heard in a meaningful way.
Meaningful opportunity to be heard: Not just a chance to speak, but a genuine opportunity to test and respond to the other side’s evidence, including through cross-examination of key witnesses where credibility is central.
Cross-examination: The principal method of challenging a witness’s account, exploring inconsistencies, and probing bias or motive. In civil protection order hearings, it is grounded in due process, not the Sixth Amendment.
Abuse of discretion: A standard of appellate review. A court abuses its discretion when it acts arbitrarily, fails to exercise conscientious judgment, or reaches a decision that exceeds the bounds of reason and results in substantial injustice.
De novo review of constitutional issues: Appellate courts independently decide constitutional questions without deferring to the lower court’s conclusions.
Justice court of record: A justice court that maintains an official record of proceedings. Appeals from such courts are based on the record, not by retrying the case from scratch.
Harmless error: An error that did not affect the outcome. Here, the error was not harmless because the outcome hinged on untested testimony.
Vacate and remand: The appellate court sets aside (vacates) the lower court’s decision and sends the case back (remands) for further proceedings, often with specific instructions.
Good cause hearing under § 40-15-202(1), MCA: The required hearing, held promptly after issuance of a temporary protection order, at which the court decides whether to continue, amend, or make permanent the order based on evidence.

Practice Pointers

For trial judges:
- Advise self-represented parties on the hearing structure and allow fair, relevant cross-examination on core issues. If safety or decorum is a concern, manage the manner of questioning (e.g., judge-mediated questions) rather than foreclosing answers.
- Ensure the audio/video record is clear and complete; confirm the court’s status as a court of record in written orders.
- Rule clearly on exhibits and articulate the evidentiary basis for the order. If exhibits are excluded as hearsay, explain the ruling for the record.
- Observe the statutory timelines for hearings after issuance of a temporary order; while waiver may occur, timely hearings reduce appellate risk.
For counsel and self-represented litigants:
- Preserve objections to limits on cross-examination and proffer the questions you seek to ask so the record reflects the substance.
- If the record is unintelligible or incomplete on appeal, move to remand under § 3-10-115(3), MCA, for further proceedings rather than asking for affirmance based on deference.
- When safety concerns exist, request accommodations that maintain due process (e.g., remote testimony, judicially mediated questioning).
For district courts acting as appellate courts:
- When the record is inadequate for review—particularly where audio is unintelligible—remand for a new hearing or other corrective proceedings. Do not affirm on a deficient record.
- Clearly identify whether the justice court is a court of record and apply the proper review model.

Unaddressed or Peripheral Issues

Timeliness of hearing: The hearing occurred after twenty days from the issuance of the temporary order, but the appellant did not raise the issue. Practitioners should continue to treat the twenty-day timeframe under § 40-15-202(1), MCA, as mandatory absent good cause or waiver.
Evidentiary rulings on exhibits: The Justice Court excluded mailed text messages as hearsay, but the Supreme Court did not reach whether that exclusion was correct. On remand, courts should make clear, principled evidentiary rulings and consider applicable exceptions or alternative foundations, mindful that credibility often drives outcomes.
Scope of protective accommodations: The decision confirms the necessity of cross-examination but leaves to trial court discretion the selection of reasonable protective measures to ensure safety and decorum without undermining due process.
Adult third-party protection: The District Court dismissed the order as to the adult, Brian Gonzalez, indicating adults must ordinarily file their own petitions. Although not central to the Supreme Court’s holding, counsel should plan filings accordingly.

Conclusion

Hennon v. Weber establishes an important and clarifying rule for Montana protection order proceedings: a respondent’s right to a “meaningful opportunity to be heard” at a § 40-15-202(1) hearing includes a meaningful opportunity to cross-examine the petitioner on the critical factual issues. Courts cannot short-circuit that process by allowing petitioners to decline to answer relevant questions and then terminating cross-examination, particularly in credibility-driven cases. The decision also reinforces the appellate responsibility of district courts reviewing justice courts of record: if the record is inadequate for meaningful review, the case must be remanded for further proceedings rather than affirmed.

By vacating the order of protection and remanding for a new evidentiary hearing with clear procedural guardrails, the Supreme Court underscores the dual imperatives of fairness and reliability in a high-stakes area of civil adjudication that must protect safety while honoring constitutional process. Going forward, Montana trial and appellate courts—and the litigants who appear before them—have a more definite roadmap for balancing those imperatives.