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Kinnaman v. Mountain West Bank, N.A.

2016 MT 25

DA 15-0305

Montana

Montana Supreme Court

DA 15-0305 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 25 ESTATE OF CRAIG MICHAEL KINNAMAN and NANCY KINNAMAN, as Personal Representative of the Estate of Craig Michael Kinnaman, Plaintiff and Appellant, v. MOUNTAIN WEST BANK, N.A., and John Does 1 through 10, Defendants and Appellees. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV 12-558 Honorable James P. Reynolds, Honorable Mike Menahan, Presiding Judges COUNSEL OF RECORD: For Appellant: James M. Kommers, Kommers Law Firm, P.C., Bozeman, Montana For Appellees: Dean A. Stensland, Thomas J. Leonard, Boone Karlberg P.C., Missoula, Montana Submitted on Briefs: December 9, 2015 Decided: February 2, 2016 Filed: __________________________________________ Clerk February 2 2016 Case Number: DA 15-0305 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 The underlying case is the third lawsuit arising from a project to develop condominiums at Lakeside Village on Hauser Lake in Lewis and Clark County (the condos). The project’s developer, Cherrad, LLC (Cherrad), its lender, Mountain West Bank (the Bank), and the estate of its general contractor, Craig Kinnaman (the Estate), were all parties to the second lawsuit. In this third suit, the Estate brought eight claims against the Bank that the Bank argued were barred by the compulsory counterclaim rule or the doctrine of claim preclusion. The District Court found that the Estate’s claims were barred, and granted summary judgment to the Bank on all claims. The Estate appeals the District Court’s order granting summary judgment to the Bank. The Estate also appeals the District Court’s denial of the Estate’s motion for relief from judgment, the District Court’s order changing venue, and the District Court’s taking of judicial notice of the record in previous actions. We affirm. ISSUES ¶2 We address the following issues on appeal: 1. Did the District Court err in granting Mountain West Bank’s motion to change venue? 2. Did the District Court err in granting summary judgment in favor of Mountain West Bank on all claims? 3. Did the District Court abuse its discretion by taking judicial notice of the record in previous actions? 4. Did the District Court abuse its discretion by denying the Estate’s motion under Montana Rule of Civil Procedure 60(b)(6) to vacate the order of summary judgment? 3 FACTUAL AND PROCEDURAL BACKGROUND ¶3 This is the third of three lawsuits stemming from the development of condominiums at Lakeside Village on Hauser Lake in Lewis and Clark County. Conrad and Cheryl Hale owned several limited liability companies, including Cherrad, that were involved in developing the condos. CK Design and Construction was the sole proprietorship of Craig Kinnaman (Kinnaman), who was the general contractor on the project. Craig Kinnaman committed suicide in 2007, and his wife, Nancy Kinnaman, is the personal representative of his estate. Mountain West Bank loaned money to the Hales and their LLCs for the development of the condos and other unrelated ventures in Lakeside Village, including a bar and restaurant. Cherrad agreed to pay the Bank the first $200,000 of proceeds from the sale of each condo unit. The Hales, through Cherrad, then formed an agreement with Kinnaman whereby Kinnaman would fund the construction of the condos in exchange for $350,000 from the proceeds of the sale of each condo. Kinnaman agreed to subordinate his interest in the condos to the Bank’s interest. The parties entered into several other contracts between and among themselves regarding the development, construction, and financing of the condo units. ¶4 The unravelling of the Lakeside Village project in 2007 spawned three lawsuits. The first lawsuit (the Interpleader Action) resulted in a final judgment in district court that was not appealed. We resolved the second lawsuit (the Foreclosure Action) in 2013. See Mt. West Bank, N.A. v. Cherrad, LLC, 2013 MT 99, 369 Mont. 492, 301 P.3d 796. 4 We set forth most of the background facts relevant to this third lawsuit in that opinion, Cherrad, ¶¶ 5-15, and we will not repeat them here. We recount only the facts essential to this appeal. ¶5 On March 28, 2012, the Estate filed this action in Gallatin County and asserted eight claims against the Bank: (1) breach of covenant of good faith and fair dealing, (2) tortious interference with contract, (3) fraudulent inducement, (4) constructive fraud, (5) actual fraud, (6) deceit, (7) breach of contract, and (8) unjust enrichment. The thrust of the Estate’s claims was that the Bank misrepresented to Craig Kinnaman how the proceeds from the infrastructure loans to Cherrad would be used, that it fraudulently induced Kinnaman into subordinating his interest in the condo units to the Bank’s interest, and that it unjustly enriched itself on profits from the sale of several condo units. The contracts on which the Estate bases its claims against the Bank in this case are the same contracts that were at issue in the Foreclosure Action. ¶6 The Bank moved for summary judgment on all the Estate’s claims on the grounds that the claims were barred by the compulsory counterclaim rule or the doctrine of claim preclusion. The Bank asserted that all the facts upon which the Estate relies in the present action were in existence during the pendency of the Foreclosure Action, and that the Estate should have litigated any claims it had against the Bank during the Foreclosure Action. The District Court agreed with the Bank and granted summary judgment on all claims. The Estate appeals both the District Court’s order granting summary judgment and the District Court’s denial of the Estate’s motion for relief from judgment. The 5 Estate also appeals the order changing venue from Gallatin County to Lewis and Clark County, and the District Court’s taking judicial notice in this action of the records from the previous actions. We affirm the District Court. STANDARD OF REVIEW ¶7 A district court’s ruling on a motion for change of venue to a proper county is a question of law that we review for correctness. Lockhead v. Weinstein, 2001 MT 132, ¶ 5, 305 Mont. 438, 28 P.3d 1081 (citing Sprinkle v. Burton, 280 Mont. 358, 361, 935 P.2d 1094, 1096 (1996)). ¶8 We review a district court’s entry of summary judgment de novo. McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 8, 380 Mont. 204, 354 P.3d 604 (citing Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704). “Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law.” Albert, ¶ 15. “A material fact is a fact that involves the elements of the cause of action or defenses at issue to an extent that necessitates resolution of the issue by a trier of fact.” Williams v. Plum Creek Timber Co., 2011 MT 271, ¶ 14, 362 Mont. 368, 264 P.3d 1090 (internal quotation marks omitted) (citing Arnold v. Yellowstone Mountain Club, LLC, 2004 MT 284, ¶ 15, 323 Mont. 295, 100 P.3d 137). ¶9 Evidentiary rulings by a district court, including a decision to take judicial notice of facts or law, are reviewed for abuse of discretion. In re Marriage of Carter-Scanlon, 2014 MT 97, ¶ 15, 374 Mont. 434, 322 P.3d 1033; In re Marriage of Steab, 2013 MT 6 124, ¶ 11, 370 Mont. 125, 300 P.3d 1168. We also review for abuse of discretion a district court’s ruling on a motion for relief from judgment brought under Rule 60(b)(6) of the Montana Rules of Civil Procedure. Hall v. Heckerman, 2000 MT 300, ¶ 12, 302 Mont. 345, 15 P.3d 869 (citing In re Marriage of Laskey, 252 Mont. 369, 371, 829 P.2d 935, 937 (1992)). DISCUSSION ¶10 1. Did the District Court err in granting Mountain West Bank’s motion to change venue? ¶11 The Estate filed this lawsuit on March 28, 2012, in Gallatin County.1 On May 31, 2012, the Bank filed a motion for change of venue pursuant to § 25-2-201(1), MCA, and requested that the District Court transfer the matter to Lewis and Clark County. Following full briefing, the District Court granted the Bank’s motion to change venue on July 10, 2012, and transferred the matter to Lewis and Clark County. The Estate did not appeal that order. ¶12 On May 14, 2015, the Estate appealed the District Court’s order granting summary judgment to the Bank, and the District Court’s order denying the Estate’s motion under Montana Rule of Civil Procedure 60(b)(6) for an order vacating summary judgment. In its appellate brief, the Estate argued, inter alia, that the Eighteenth Judicial District Court, Gallatin County erred in granting the Bank’s motion for change of venue to the First 1 In its briefs, the Estate maintains that its complaint was filed as a counterclaim against the Bank in a probate matter in Gallatin County involving the Craig Kinnaman estate. In fact, the Estate’s complaint was filed as a separate civil action and there was never a consolidation of the civil complaint with the probate action. 7 Judicial District Court, Lewis and Clark County, because venue in the present action is proper in Gallatin County, where the Estate’s probate was filed. The Bank responded that “[i]t is unclear how venue of the probate proceeding could inform the venue analysis here,” and that the District Court did not err in transferring this matter to Lewis and Clark County. We conclude the Bank’s argument is correct. ¶13 Section 25-2-201, MCA, provides, “[t]he court or judge must, on motion, change the place of trial in the following cases: (1) when the county designated in the complaint is not the proper county.” The Bank made such a motion, and the District Court was required to change the venue from Gallatin County if Gallatin County was not the proper place of trial. “[T]he proper place of trial for all civil actions is the county in which the defendants or any of them reside at the commencement of the action.” Section 25-2-118(1), MCA. This is the “principal rule” of venue. Tit. 25, ch. 2, Mont. Code Ann., Annotations, Official Comments at 128 (2012). The Bank is the only defendant in this action, and it is undisputed that the Bank is authorized to do business in Montana and that its principal place of business in Montana is Lewis and Clark County. Additionally, “[t]he proper place of trial for actions upon contracts is either: (a) the county in which the defendants, or any of them, reside at the commencement of the action; or (b) the county in which the contract was to be performed.” Section 25-2-121(1), MCA. The contracts at issue in this case were all to be performed in Lewis and Clark County, making Lewis and Clark County the proper venue for trial of the Estate’s contract claims. Even if venue may have been proper in Gallatin County on one of the Estate’s non-contract claims, the 8 Bank would still be entitled to a change of venue to Lewis and Clark County. Section 25-2-116, MCA (“In an action involving two or more claims for which this part designates more than one as a proper place of trial, a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action.”). Thus, Lewis and Clark County is the proper venue for this action, and the District Court did not err in granting the Bank’s motion to change venue from Gallatin County. ¶14 2. Did the District Court err in granting summary judgment in favor of Mountain West Bank on all claims? ¶15 The Estate raised eight claims against the Bank in its complaint in the present action. The Bank moved for summary judgment on various grounds and argued, inter alia, that it was entitled to judgment as a matter of law because the Estate’s claims were barred as having been compulsory counterclaims in the Foreclosure Action or were barred by the doctrine of claim preclusion. The District Court granted the Bank’s motion for summary judgment on the grounds that most of the Estate’s claims were barred as having been compulsory counterclaims in the Foreclosure Action, and the remaining claims having to do with the sale of condo units 3, 5, and 6 were barred by the doctrine of claim preclusion. We conclude that the District Court did not err in entering summary judgment in favor of the Bank, but we reach this conclusion based solely on the application of the doctrine of claim preclusion. As we have said before, “[w]e will affirm a district court decision if the right result was reached, though for the wrong reason, and we do so here.” Hinebauch v. McRae, 2011 MT 270, ¶ 25, 362 Mont. 358, 264 P.3d 9 1098 (citing Wells Fargo Bank v. Talmage, 2007 MT 45, ¶ 23, 336 Mont. 125, 152 P.3d 1275). ¶16 In Touris v. Flathead County, 2011 MT 165, 361 Mont. 172, 258 P.3d 1, we set forth the policy behind and the elements of claim preclusion: The doctrine of res judicata, or claim preclusion, bars re-litigation of a claim that a party has already had the opportunity to litigate. Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281, 130 P.3d 1267. Central to res judicata is the concept of finality; litigation must, at some point, come to an end. State v. Southwick, 2007 MT 257, ¶ 15, 339 Mont. 281, 169 P.3d 698; Orlando v. Prewett, 236 Mont. 478, 481, 771 P.2d 111, 113 (1989). In addition, res judicata promotes judicial efficiency, deterring plaintiffs from splitting a single cause of action into more than one lawsuit. Baltrusch, ¶ 15. Touris, ¶ 12. A matter is barred by the doctrine of claim preclusion if four elements are met: “(1) [t]he parties or their privies are the same; (2) [t]he subject matter of the present and past actions is the same; (3) [t]he issues are the same and relate to the same subject matter; and (4) [t]he capacities of the parties are the same to the subject matter and issues between them.” Touris, ¶ 13 (citing Wiser v. Mont. Bd. of Dentistry, 2011 MT 56, ¶ 9, 360 Mont. 1, 251 P.3d 675). However, res judicata only applies if a final judgment on the merits was entered in the earlier action. Touris, ¶ 13 (citing Baltrusch, ¶ 15; Wiser, ¶ 9). ¶17 In this case, the first, second, and fourth elements are clearly satisfied. Both parties to the present action were parties to the Foreclosure Action. See Cherrad, ¶¶ 5-15. The subject matter of the present and past actions, the developing, building, and financing of Lakeside Village, is the same. See Cherrad, ¶¶ 5-24. And the capacities of 10 the parties are the same to the subject matter and issues between them. See Cherrad, ¶¶ 5-24. The only elements conceivably in dispute, then, are whether the issues in the two actions are the same, and whether the Foreclosure Action was a final judgment on the merits of all claims in dispute in the present action. ¶18 In analyzing the third element of claim preclusion, whether the issues in the two actions are the same, we have in the past looked to the Restatement (Second) of Judgments: “[w]hen a valid and final judgment rendered in an action extinguishes the plaintiff’s claim [. . .], the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Brilz v. Metro. Gen. Ins. Co., 2012 MT 184, ¶ 23, 366 Mont. 78, 285 P.3d 494 (quoting Restatement (Second) of Judgments § 24). We went on to say that [t]he concept of “transaction” here “connotes a natural grouping or common nucleus of operative facts.” Restatement (Second) of Judgments § 24 cmt. b. Thus, where one act causes a number of harms to, or invades a number of different interests of, the same person, there is still only one transaction. Restatement (Second) of Judgments § 24 cmt. c. The rationale and premise underlying this approach is that modern procedural systems afford parties ample means for fully developing the entire transaction in one action—e.g., by permitting the presentation of all material relevant to the transaction without artificial confinement to any single substantive theory or kind of relief and without regard to historical forms of action or distinctions between law and equity; by allowing allegations to be made in general form and reading them indulgently; by allowing allegations to be mutually inconsistent subject to the pleader’s duty to be truthful; by permitting considerable freedom of amendment and tolerating changes of direction in the course of litigation; and by enabling parties to resort to compulsory processes besides private investigations to ascertain the facts surrounding the transaction. Restatement (Second) of Judgments § 24 11 cmt. a. “The law of res judicata now reflects the expectation that parties who are given the capacity to present their ‘entire controversies’ shall in fact do so.” Restatement (Second) of Judgments § 24 cmt. a. Brilz, ¶ 24. ¶19 The Estate had an opportunity in the Foreclosure Action to present the “entire controversy,” and it should have done so. In the Foreclosure Action, the Bank sought to foreclose on the loans it had made to Cherrad, and alleged that it was adversely affected by the $3.3 million construction lien the Estate had filed against the property that secured the loans the Bank was seeking to foreclose. Cherrad, ¶ 16. The Bank also requested a declaration that its secured interests in the property were superior to the Estate’s construction lien. Cherrad, ¶ 16. The Estate filed an answer, a counterclaim against the Bank for lien superiority, and a crossclaim against Cherrad for breach of contract and unjust enrichment, claiming Cherrad wrongfully diverted funds from the proceeds of the sale of one of the condo units. Cherrad, ¶ 17. The District Court granted summary judgment against the Estate in favor of the Bank and Cherrad, and declared the Estate’s construction lien invalid. Cherrad, ¶ 18. However, the District Court also ordered Cherrad to compensate the Estate for work Kinnaman had performed on the condos. Cherrad, ¶ 22. The District Court awarded the Estate $76,278 of the $3.3 million the Estate claimed it was owed. Cherrad, ¶ 22. We affirmed the District Court. Cherrad, ¶ 42. ¶20 Now in the present action, the Estate is suing the Bank over the same contracts that were the subject of the Estate’s counterclaim for lien superiority and its crossclaim 12 for breach of contract in the Foreclosure Action, and is seeking to recover, this time from the Bank, the same $3.3 million that it claimed was its due in the Foreclosure Action. The present action clearly arose from the same “series of connected transactions” that gave rise to the Foreclosure Action. Brilz, ¶ 23 (quoting Restatement (Second) of Judgments § 24). Thus, the issues in the two actions are the same, and the third element of claim preclusion is satisfied. ¶21 The final question in applying the doctrine of claim preclusion here is whether the Foreclosure Action was a final judgment on the merits of all claims in dispute in the present action. As we have said before, [t]his includes claims that were or could have been litigated in the first action. Wiser v. Mont. Bd. of Dentistry, 2011 MT 56, ¶ 17, 360 Mont. 1, 251 P.3d 675; Somont Oil Co. v. A & G Drilling, Inc., 2008 MT 447, ¶ 11, 348 Mont. 12, 199 P.3d 241. Hence, as a result of the doctrine’s application, a party may be precluded from litigating a matter that has never been litigated and that may involve valid rights to relief. The rationale here is to force parties to raise such matters in their first suit in the interest of judicial economy and avoiding the expense and vexation of multiple lawsuits. Brilz, ¶ 21 (emphasis in original). ¶22 The facts that form the basis of the Estate’s complaint in the present action—e.g., the negotiations about and substance of the contracts among the various parties, the procedures followed in the sale of the condo units and distribution of the resulting proceeds, the amounts of money each party spent or was owed during the development, financing, construction, and sale of the condo units—were all in existence at the time of the Foreclosure Action. Although the Estate chose in the Foreclosure Action to proceed 13 against Cherrad and not the Bank, the Bank was a party to that action, and the Estate’s current claims against the Bank could have been litigated in the Foreclosure Action. Because a final judgment on the merits was entered in the Foreclosure Action, the Estate is now barred from reopening issues that were or should have been determined in the prior suit. Baltrusch, ¶ 15. ¶23 Since all four elements of claim preclusion are present and a final judgment on the merits was entered in the Foreclosure Action, the Estate’s claims in this action are barred by the doctrine of claim preclusion. The District Court did not err in granting summary judgment to the Bank on all claims. ¶24 3. Did the District Court abuse its discretion by taking judicial notice of the record in previous actions? ¶25 In its order granting the Bank’s motion for summary judgment, the District Court took judicial notice of our opinion in the Foreclosure Action and the District Court records of the Interpleader Action and the Foreclosure Action. The Estate argues on appeal that the District Court improperly used Rule 202 of the Montana Rules of Evidence to adopt facts from the record of the Foreclosure Action. The Bank responds that the District Court did not adopt facts from a previous record, but simply took judicial notice of the existence of those facts, and that taking judicial notice of the record in the present action or in previous actions is not an abuse of the District Court’s discretion under Rule 202. 14 ¶26 The Montana Rules of Evidence allow a District Court to take judicial notice of facts, M. R. Evid. 201, or judicial notice of law, M. R. Evid. 202. Under Rule 202, the District Court may take judicial notice of the “[r]ecords of any court of this state.” M. R. Evid. 202(b)(6). We have held that this rule “includes prior proceedings in other cases, Farmers Plaint Aid v. Fedder, 2000 MT 87, ¶¶ 26-27, 299 Mont. 206, 999 P.2d 315, and prior proceedings in the same case, State v. Loh, 275 Mont. 460, 477-78, 914 P.2d 592, 603 (1996).” State v. Homer, 2014 MT 57, ¶ 8, 374 Mont. 157, 321 P.3d 77. In this case, the District Court noted in its order granting the Bank’s motion for summary judgment that the “factual and procedural backgrounds are based on the record in this case, as well as court records the Court is entitled to take judicial notice of under Rule 202.” The District Court then listed the opinions and records of which it was taking judicial notice, including our opinion in the Foreclosure Action, and the District Court records of the Interpleader Action and the Foreclosure Action. Rule 202 allows a District Court to take judicial notice of the prior proceedings in this case and in other cases, and the District Court did not abuse its discretion in so doing. ¶27 Further, in order to properly consider the Bank’s argument that the Estate’s claims were barred by the compulsory counterclaim rule or by claim preclusion, the District Court would have needed to review the record in the Foreclosure Action to determine if the issues presented in that action were the same as the issues presented in this action, and to determine if the facts alleged in the Estate’s complaint in this action were in existence during the pendency of the previous action. The District Court did just that: 15 reviewed the discovery produced in the Foreclosure Action and determined that the facts central to the Estate’s present claims were in existence during the Foreclosure Action. The District Court did not take improper judicial notice of facts under Rule 201, but rather properly exercised its discretion under Rule 202 to take judicial notice of the record in previous actions. ¶28 4. Did the District Court abuse its discretion by denying the Estate’s motion under Montana Rule of Civil Procedure 60(b)(6) to vacate the order of summary judgment? ¶29 After the District Court granted the Bank’s motion for summary judgment, the Estate filed a motion for relief from judgment under Rule 60(b)(6) of the Montana Rules of Civil Procedure. The Estate argued that it was entitled to relief from judgment because the District Court took improper judicial notice of facts from previous actions in order to determine that no genuine dispute of material fact remained in this action. The merits of the Estate’s judicial notice arguments are addressed above. ¶30 Under Rule 60, a party may seek relief from a final judgment or order for one of the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. 16 M. R. Civ. P. 60(b). The Estate sought relief from judgment under subsection (6), the “catch-all” provision. We have held that “[a] movant cannot prevail under Rule 60(b)(6) unless [she] meet[s] the higher burden of proving extraordinary circumstances while showing that [she was] blameless and acted within a reasonable amount of time.” Wittich Law Firm, P.C. v. O’Connell, 2013 MT 122, ¶ 19, 370 Mont. 103, 304 P.3d 375 (citing Bahm v. Southworth, 2000 MT 244, ¶ 14, 301 Mont. 434, 10 P.3d 99). Moreover, “[i]t is not the intent of Rule 60(b)(6) to be a substitute for appeal.” Lussy v. Dye, 215 Mont. 91, 93, 695 P.2d 465, 466 (1985). A motion under Rule 60(b)(6) “must be something more than a request for rehearing or a request that the District Court change its mind. It must be shown that something prevented a full presentation of the cause or an accurate determination on the merits and that for reasons of fairness and equity redress is justified.” Lussy, 215 Mont. at 93, 695 P.2d at 466. ¶31 The Estate’s motion in this case was essentially a request that the District Court change its mind. The District Court noted in its order denying the Estate’s Rule 60(b)(6) motion that “[m]ere allegations do not constitute an ‘extraordinary circumstance’ when the moving party had an opportunity to argue, and did argue, before the District Court.” The fact that the Estate was unsuccessful in its arguments before the District Court is not an extraordinary circumstance warranting relief under Rule 60(b)(6). The District Court did not abuse its discretion in denying the Estate’s motion for relief from judgment. 17 CONCLUSION ¶32 For the foregoing reasons, we affirm the District Court’s April 22, 2014 Order granting the Bank’s motion for summary judgment, and the District Court’s April 16, 2015 Order denying the Estate’s motion for relief from judgment. /S/ PATRICIA COTTER We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON

February 2, 2016

23985309-de89-42c9-8213-a5a23d96f753

Kohler v. Keller

2016 MT 11N

DA 12-0600

Montana

Montana Supreme Court

DA 12-0600 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 11N RONALD L. KOHLER and BARBARA J. KOHLER, husband and wife; THOMAS F. JONES and RITA A. JONES, husband and wife; DENNIS A. ARNOLD and GERALDINE N. ARNOLD, husband and wife; and DEBRA L. SYKES, Plaintiffs and Appellees, v. KELLER TRANSPORT, INC.; WAGNER ENTERPRISES, LLC; AND DOES 1-10, Defendants. WESTCHESTER SURPLUS LINES INSURANCE COMPANY, Appellants. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DV 09-1 Honorable Jeffrey H. Langton, Presiding Judge COUNSEL OF RECORD: For Appellants: Jonathan D. Hacker (argued), O’Melveny & Myers LLP; Washington, District of Columbia Allan H. Baris, Moore, O’Connell & Refling, P.C.; Bozeman, Montana Robert J. Slavik, Cozen O’Connor; Seattle, Washington For Appellee Debra L Sykes: Trent N. Baker, Datsopoulos, MacDonald, & Lind, PC; Missoula, Montana January 12 2016 Case Number: DA 12-0600 2 For Appellees Tom and Rita Jones, Ronald and Barbara Kohler, and Dennis and Geraldine Arnold: Roger M. Sullivan (argued), McGarvey, Heberling, Sullivan & McGarvey, PC; Kalispell, Montana Timothy M. Bechtold, Beachtold Law Firm PLLC; Missoula, Montana Alan J. Lerner, Lerner Law Firm; Kalispell, Montana For Amici Montana Trial Lawyers Association: John L. Amsden, Beck & Amsden, PLLC; Bozeman, Montana Argued: September 11, 2015 Submitted: September 16, 2015 Decided: January 12, 2016 Filed: __________________________________________ Clerk 3 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Westchester Surplus Lines Insurance Company (Westchester) appeals from an order by the Twentieth Judicial District Court, Lake County, which denied Westchester’s motion to intervene to contest the reasonableness of a stipulated judgment entered between its insureds, Defendants Keller Transport, Inc. (Keller) and Wagner Enterprises, LLC (Wagner), and the Plaintiffs (Homeowners). We affirm. ¶3 The factual and procedural background of this matter is fully set forth in our opinion in Westchester Surplus Lines Insurance Company v. Keller Transport, Inc., 2016 MT 6, ___ Mont.___, ___ P.3d ___.1 Briefly, in April 2008, Keller leased a tanker truck from Wagner to transport gasoline to Kalispell, Montana. On Highway 35, adjacent to Flathead Lake, the truck’s trailer traveled off the road, overturned, and spilled 6,380 gallons of gasoline. The gasoline flowed underneath the highway and beneath Homeowners’ properties. Homeowners initiated a tort action against Keller and Wagner in Lake County. 1 These two cases were consolidated for purposes of oral argument only. See Order, July 22, 2015. 4 ¶4 Keller and Wagner were insured by Carolina Casualty Insurance Company (CCIC) under the same Commercial Transportation Policy. Keller and Wagner also had an excess insurance policy issued by Westchester. In late 2008, CCIC exhausted what it believed to be the limits of its policy and referred the defense of the matter to Westchester. Westchester undertook the defense until it exhausted what it believed to be the limits of its excess policy, at which point it referred the case back to CCIC. CCIC agreed to resume the defense. There was a brief delay before defense payments were re-initiated by CCIC. Months later, CCIC filed a declaratory action in Missoula County seeking a determination of the duties of CCIC and Westchester to Keller and Wagner. Homeowners then made claims that asserted there was additional coverage under both of the policies. CCIC and Westchester pled this coverage question in the declaratory action. Later, months after payments for defense of Keller and Wagner in this action were re-initiated, Homeowners entered stipulated judgments with Keller and Wagner in the amount of $13,066,474, in which Homeowners agreed to “limit collection by any legal means only upon and against” Keller’s and Wagner’s insurers. ¶5 CCIC and Westchester then moved to intervene in this action, arguing they had a right to a reasonableness determination of any damage award. The District Court issued an order stating it would not rule on the insurers’ motion to intervene until the coverage issue had been determined in the Missoula County declaratory judgment action. The District Court in the declaratory judgment action held that both policies provided additional coverage, and that Westchester had breached its duty to defend. The District 5 Court in this action then dismissed CCIC’s and Westchester’s motion to intervene, holding they were liable for the entire confessed judgment. Westchester timely appealed that order. CCIC has since settled all of its claims with Homeowners. ¶6 An issue is moot if the issue presented at the outset of the action has ceased to exist. Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 17, 364 Mont. 390, 276 P.3d 867. “Mootness is a threshold issue which we must resolve before we may address the substantive merits of a dispute.” Stuivenga, ¶ 17 (citation omitted). ¶7 Whether the District Court abused its discretion in denying Westchester’s motion to intervene has been mooted by our decision in Westchester. There, we held that Westchester did not breach the duty to defend and was not liable for the stipulated judgment. Westchester, ¶ 33. Therefore, Westchester no longer has an interest in intervening in this action to determine the reasonableness of a judgment for damages to which it is not bound. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for unpublished opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. ¶9 Affirmed. /S/ JIM RICE 6 We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ BETH BAKER

January 12, 2016

66fb02df-a27e-4da7-92cd-4cd6e4ebc688

Hauer v. State

2016 MT 23N

DA 15-0065

Montana

Montana Supreme Court

DA 15-0065 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 23N CALE EUGENE HAUER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-13-972 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Carl B. Jensen Jr., Attorney at Law; Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General; Helena, Montana Kirsten Pabst, Missoula County Attorney; Missoula, Montana Submitted on Briefs: December 16, 2015 Decided: January 26, 2016 Filed: __________________________________________ Clerk January 26 2016 Case Number: DA 15-0065 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Hauer appeals from an order entered by the Fourth Judicial District Court, Missoula County, dismissing his Petition for Post-Conviction Relief (PCR). We affirm. ¶3 In 2009, Hauer was charged with multiple crimes, including two counts of misdemeanor Partner or Family Member Assault (PFMA), two counts of felony PFMA, one count of misdemeanor Unlawful Restraint, and one count each of felony Aggravated Assault, Assault with a Weapon, and Tampering with a Witness. The matter proceeded to trial in August 2010 where Hauer was found guilty on six of the eight charges. He was found not guilty on the charge of felony tampering with a witness and the jury was hung on one of the felony PFMA charges. For the felony convictions Hauer was sentenced to the Montana State Prison for five years for his felony PFMA conviction, and twenty years each for the felony assault with a weapon and felony aggravated assault convictions. On direct appeal, Hauer appealed to this Court arguing error related to his claim of justifiable use of force, and also ineffective assistance of trial counsel (IAC) based on his counsel’s agreement with the prosecution not to introduce certain evidence related to the victim. We affirmed on both issues. See State v. Hauer, 2012 MT 120, 365 Mont. 184, 279 P.3d 149. 3 ¶4 In August 2013, Hauer, through counsel, filed a PCR petition in district court that set forth nine separate allegations: seven IAC claims against trial counsel, one IAC claim against appellate counsel, and one claim of prosecutorial misconduct. The State submitted a written response and included the affidavit of Hauer’s trial counsel. The District Court did not hold a hearing on the petition. On January 23, 2015, the District Court issued its order dismissing Hauer’s petition because Hauer failed to establish that either trial or appellate counsel were ineffective, or that the prosecution engaged in misconduct. ¶5 In the present appeal Hauer presents four issues for review: (1) whether the District Court’s failure to hear evidence regarding the complaining witness’s veracity denied Hauer a fair hearing; (2) whether the District Court failed to adequately address the IAC claims; (3) whether the District Court erred when it denied Hauer’s IAC claim regarding the failure to sever the charges at trial; and (4) whether the District Court erred when it denied Hauer’s constitutional equal protection claim. ¶6 We review a denial of a PCR petition to determine whether the District Court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285 P.3d 407; Robinson v. State, 2010 MT 108, ¶ 10, 356 Mont. 282, 232 P.3d 403. IAC claims present mixed questions of law and fact and are reviewed de novo. State v. Green, 2009 MT 114, ¶ 14, 350 Mont. 141, 205 P.3d 798. To determine whether an individual has received ineffective assistance of counsel, we use the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under this test, the 4 defendant must demonstrate that his counsel’s performance was deficient, and that his counsel’s deficient performance prejudiced the defendant. State v. Miner, 2012 MT 20, ¶ 11, 364 Mont. 1, 271 P.3d 56. Under Strickland’s second prong, we examine whether there is a reasonable probability that counsel’s lack of reasonable professional conduct renders the trial result unreliable or the proceedings fundamentally unfair. Miner, ¶ 12. If an insufficient showing is made regarding one prong of the test, there is no need to address the other prong. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont. 135, 10 P.3d 49 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). A petitioner seeking to reverse a district court order denying PCR based on ineffective assistance of counsel bears a heavy burden. Sartain, ¶ 9 (citing State v. Morgan, 2003 MT 193, ¶ 9, 316 Mont. 509, 74 P.3d 1047). ¶7 The District Court addressed all of Hauer’s IAC claims in light of the factual allegations set forth in the PCR petition and trial counsel’s affidavit, and concluded that Hauer “failed to meet his burden of establishing that either trial or appellate counsel’s performance ‘fell below an objective standard of reasonableness measured under prevailing professional norms and in light of the surrounding circumstances’” (quoting Whitlow v. State, 2008 MT 140, ¶ 20, 343 Mont. 90, 183 P.3d 861). Likewise, we have evaluated the District Court’s decision in light of Hauer’s petition, trial counsel’s affidavit, and the record, and we conclude that the court adequately addressed each and every one of Hauer’s claims of IAC. We also conclude that the court’s findings of fact are not clearly erroneous and that Hauer has failed to overcome his heavy burden of establishing IAC by either trial counsel or appellate counsel. 5 ¶8 We review discretionary rulings in PCR proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion. Morgan, ¶ 7. Hauer’s claim that the District Court erred by not ordering an evidentiary hearing fails because Hauer did not ask for a hearing and the court is not obligated to order a hearing sua sponte. Section 46-21-201, MCA; DuBray v. State, 2008 MT 121, ¶ 30, 342 Mont. 520, 182 P.3d 753 (overruled in part on other grounds by Marble v. State, 2015 MT 242, ¶ 31, 380 Mont. 366, 355 P.3d 742). Furthermore, this issue is raised for the first time on appeal and typically we will not review such an issue. State v. Armstrong, 172 Mont. 296, 300, 562 P.2d 1129, 1132 (1977). ¶9 We also conclude that the District Court did not err by rejecting Hauer’s specific claim that both trial and appellate counsel were ineffective for not asserting Hauer’s claim that the PFMA statute violates equal protection by making a distinction between homosexual and heterosexual individuals. Neither trial counsel nor appellate counsel is under an obligation to advance novel or unprecedented legal theories. State v. Weldele, 2003 MT 117, ¶ 70, 315 Mont. 452, 69 P.3d 1162 (“[T]here is a strong presumption that counsel ‘rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’” (quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066) (emphasis added); Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 3314 (1983) (“For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client would disserve the very goal of vigorous and effective advocacy. . . .”); Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667 (1986) (“Th[e] process of ‘winnowing out weaker 6 arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.”) (quoting Jones, 463 U.S. at 751, 103 S. Ct. at 3313). ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court’s ruling was not an abuse of discretion. ¶11 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE

January 26, 2016

5a387d73-916f-4fc8-b5f4-d909deb39233

State v. Segna

2016 MT 4N

DA 14-0568

Montana

Montana Supreme Court

DA 14-0568 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 4N STATE OF MONTANA, Plaintiff and Appellee, v. DAVID V. SEGNA, Jr., Defendant and Appellant. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DC-13-103 Honorable Kurt Krueger, Presiding Judge COUNSEL OF RECORD: For Appellant: Haley Connell, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Eileen Joyce, Silver Bow County Attorney, Samm Cox, Deputy County Attorney, Butte, Montana Submitted on Briefs: November 12, 2015 Decided: January 5, 2016 Filed: __________________________________________ Clerk January 5 2016 Case Number: DA 14-0568 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 David Victor Segna, Jr., appeals his criminal sentence. We affirm. ¶3 Segna, currently in his early thirties, has a lengthy criminal history. He was incarcerated in Pine Hills as a juvenile and later in both Nevada State Prison and Montana State Prison. He has a history of alcohol and drug abuse and many of his crimes were drug and violence-related. In the instant case, having absconded from his conditional release from the Department of Corrections on a prior conviction, Segna was apprehended in August 2013 following a high-speed chase through the streets of Butte and an ensuing burglary. He was charged with felony burglary, felony criminal endangerment, and fleeing from or eluding officers (Cause No. DC-13-103). ¶4 On the first day of trial, Segna entered into a plea agreement, pleading guilty to burglary and criminal endangerment, in exchange for an agreement by the State that it would drop the “fleeing” charge and not seek persistent felony offender status. The State also agreed to recommend that Segna’s sentences for the current crimes run concurrently with each other and with the criminal sentence Segna was serving at the time (Cause No. DC-11-73). The Second Judicial District Court for Butte-Silver Bow County accepted his plea. 3 ¶5 On March 6, 2014, after receiving the pre-sentencing investigation (PSI), the District Court conducted a sentencing hearing. Noting Segna’s extensive criminal history, the court orally sentenced Segna to Montana State Prison (MSP) for 15 years on the Count I burglary charge and 10 years on the Count II criminal endangerment charge. The court expressly stated, “These sentences should be run concurrently.” The court did not reference the DC-11-73 sentence that Segna was serving at the time of sentencing. On March 27, 2014, the District Court issued its written Judgment and Order of Commitment in which it stated “the sentences imposed in Counts I and II shall run concurrently with each other.” Again, the court did not state that the new sentences were to run concurrently with Segna’s DC-11-73 sentence despite the State’s recommendation that it do so. ¶6 Segna appeals the sentence claiming that the District Court’s written judgment does not conform to the oral pronouncement of sentence which, in accordance with established law, is the legally effective sentence. State v. Lane, 1998 MT 76, ¶¶ 37-40, 288 Mont. 286, 957 P.2d 9. Segna interprets the District Court’s oral pronouncement of sentence to require that his DC-13-103 sentences run concurrently with his DC-11-73 sentence. However, upon receipt of the written judgment, DOC ran his new sentences consecutively with his DC-11-73 sentence on the grounds that the written judgment did not state the sentences were to run concurrently. ¶7 Segna argues that if the District Court did not intend to run the DC-13-103 sentences concurrently with his DC-11-73 sentence, in accordance with the accepted plea agreement, the court should have expressly rejected that part of the plea agreement. It 4 did not do so. Segna therefore urges us to remand to the District Court for re-sentencing or to give the District Court the opportunity to clarify its sentence. ¶8 The State counters that the court’s oral and written pronouncements of sentence “unambiguously ordered the [DC-13-103] sentences . . . to run concurrently with each other” and made no reference to Segna’s sentence in DC-11-73. Consequently, the written judgment accurately memorialized the oral pronouncement of sentence and the District Court’s sentence should be affirmed. While the State acknowledges that it recommended concurrent sentences in DC-11-73 and DC-13-103, it argues that the District Court was not required to follow that recommendation or to notify Segna that it did not intend to follow it. It notes that the plea agreement was not binding and that Segna was adequately informed that the District Court had the authority to reject any element of it. ¶9 We agree with the State. The pre-trial agreement expressly notified Segna that the District Court was not a party to the plea agreement and was not bound by the sentencing recommendations therein. Segna was informed that he would not have the opportunity to withdraw his plea in the event the District Court did not accept the recommendations. Moreover, the court’s language in its full oral pronouncement displays its intent to be strict with Segna. The court stated: [T]he [c]ourt is very familiar with your criminal, extensive criminal history and even to the extent that it started as a youth. In reviewing your criminal history, it’s apparent that you’ve never tried to comply with the laws of the State of Montana; that throughout your entire life, you’ve had criminal behavior. 5 The court further noted that in its 12-year history on the bench, it had heard Segna’s name more than anyone else’s name and that Segna had “total disregard for other people and the consequences of the actions of [his] life.” The court verbally rejected the recommendation of Boot Camp and expressed hopes that Segna would learn in prison and seek and accept treatment. ¶10 Because the plea agreement was not binding upon the District Court, the court was not required to accept every recommendation or request set forth in the agreement. Section 46-12-211(1)(c) and (2), MCA. The court’s oral and written sentences are consistent and lawful, and reflect the court’s intention not to run the new sentences concurrently with the sentence in DC-11-73. We therefore decline to remand for resentencing. ¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. In the opinion of the Court, this case presents a question clearly controlled by settled law. ¶12 Affirmed. /S/ PATRICIA COTTER We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JIM RICE

January 5, 2016

25011ad7-b15f-46fb-9fff-0f9369bce515

In re C.W.E.

2016 MT 2

DA 15-0386

Montana

Montana Supreme Court

DA 15-0386 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 2 IN THE MATTER OF: C.W.E. and C.M.E., Youths in Need of Care. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DN 13-07C and DN 13-06C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Meri Althauser, Montana Legal Justice, PLLC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Michael S. Wellenstein, Assistant Attorney General, Helena, Montana Marty Lambert, Gallatin County Attorney, Bozeman, Montana Submitted on Briefs: December 2, 2015 Decided: January 5, 2016 Filed: __________________________________________ Clerk January 5 2016 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 T.E. (Mother) appeals two orders entered by the Eighteenth Judicial District Court, Gallatin County, terminating her parental rights to her two minor children, C.W.E. and C.M.E. We affirm. ¶2 Mother presents the following issues for review: 1. Did the District Court err in concluding that the conduct or condition that made Mother unfit to parent was unlikely to change within a reasonable time? 2. Did the District Court improperly rely on the statutory presumption contained in § 41-3-604(1), MCA, to conclude that termination of Mother’s parental rights was in her children’s best interests? 3. Did Mother receive ineffective assistance of counsel? FACTUAL AND PROCEDURAL BACKGROUND ¶3 C.W.E., age seven, and C.M.E., age five, were removed from Mother’s care in April 2013 after the Department of Public Health and Human Services (DPHHS) received seventeen referrals over a period of three years alleging Mother abused or neglected her children. On July 30, 2013, upon Mother’s stipulation, the District Court adjudicated C.W.E. and C.M.E. youths in need of care. Also on July 30, 2013, the District Court granted DPHHS temporary legal custody of C.W.E. and C.M.E. for six months. Temporary legal custody was later extended. C.W.E. and C.M.E. have different fathers. C.W.E. currently resides with his father, C.W., in Livingston, Montana, and C.M.E. currently resides with his father, D.E., in Sand Springs, Oklahoma. On June 9, 2015, the District Court terminated Mother’s parental rights, over two years after her children were removed from her care. 3 ¶4 Before termination, DPHHS developed a treatment plan for Mother, which she and her counsel signed on July 30, 2013. The District Court approved Mother’s treatment plan on August 21, 2013. The goal of the treatment plan was for Mother to address her chemical dependency issues in order for her to develop a healthy and positive relationship with her children. Summarized, the specific tasks outlined in Mother’s treatment plan required her to: 1) complete a chemical dependency evaluation and any recommended treatment; 2) complete a psychological evaluation, including a parenting assessment, and follow any resulting recommendations; 3) maintain visitation with her children; 4) abstain from using drugs or alcohol; 5) provide DPHHS her medical history; 6) maintain contact with a Child Protective Services Specialist; 7) develop a plan for continued contact with her children if inpatient chemical dependency treatment is recommended; and 8) abstain from criminal activity. ¶5 In compliance with her treatment plan, Mother completed at least two chemical dependency evaluations on January 3, 2014, and March 30, 2014. In them, Mother admitted a significant history of drug and alcohol abuse. Mother admitted she began drinking in the sixth grade and that from age 29 to age 32 she drank one and a half liters of hard alcohol each day. Mother admitted she began using marijuana at age 12 and now used marijuana daily. Mother admitted she began using methamphetamine at age 15, began using methamphetamine intravenously at age 31, and continues to do so on a daily basis. Mother admitted a history of using various other drugs; including cocaine, opioids, ecstasy, mushrooms, sedatives, inhalants, and spice. Mother admitted she could not control her drug use and that she had tried to stop many times. Mother admitted she had 4 dealt drugs and traded sex for drugs. Mother had an abscess on her face, which she attributed to her methamphetamine use. Mother was unemployed and homeless. The Addiction Counselor recommended Mother complete inpatient treatment at Montana Chemical Dependency Center (MCDC). Mother was initially denied admission because she arrived intoxicated. Later, Mother was admitted to MCDC, but left after 10 days without completing treatment. Although Mother did complete an outpatient detoxification program at MCDC, Mother did not complete the recommended inpatient treatment required by her treatment plan. ¶6 Relevant to her other treatment plan tasks, Mother completed a psychological evaluation and parenting assessment with a psychologist, Dr. Bowman Smelko. Dr. Smelko identified that Mother had mental health issues that could be a result of her substance abuse, but that Mother would need to achieve a year of sobriety before he could establish an accurate mental health diagnosis for her. Mother missed several scheduled visits with her children. Mother admitted to drinking before supervised visits she did attend, and failed urinalysis tests administered directly after visiting her children. Mother missed 23 drug tests between July 14, 2013, and October 21, 2013. Mother either failed to report to tests, failed to test, or tested positive for substances 15 times between March 26, 2014, and February 12, 2015. Mother did not provide her medical history to DPHHS. After her children were removed, but before her parental rights were terminated, Mother was arrested three times. Mother was arrested once for DUI; once for assaulting two individuals, including a police officer; and once for possession of dangerous drugs (methamphetamine). 5 ¶7 The District Court held a termination hearing on January 15, 2015, and continuations of that hearing were held on February 24, 2015, March 3, 2015, and March 9, 2015 (together, Termination Proceedings). Mother did not personally appear at the Termination Proceedings because a bench warrant had been issued for her arrest. She appeared by phone once, on March 3, 2015, but did not testify. During the Termination Proceedings, several witnesses testified, including Dr. Smelko. Dr. Smelko testified that, as of October 2013 when he first evaluated Mother, he believed that once Mother engaged in treatment, it would take her eighteen months to two years to eliminate her drug use. Dr. Smelko testified Mother’s prognosis was poor and, if reunification with her children was pursued, Mother would need significant and intense in-home services to assist her on how to parent appropriately. ¶8 After the Termination Proceedings, the District Court issued findings of fact, conclusions of law, and an order terminating Mother’s parental rights. The District Court concluded Mother’s conduct or condition rendering her unfit was unlikely to change within a reasonable time because Mother has an extensive history and current issues related to untreated substance abuse, is homeless, and has no income. Further, the District Court concluded that “[e]ven if the Mother initiated inpatient treatment today, she could not begin to parent for at least one year—and then only with intensive in home services and support.” The District Court applied the statutory presumption that if a child is in foster care for 15 of the most recent 22 months, termination of parental rights is presumed to be in the child’s best interest. The District Court concluded termination was in the best interests of the children because Mother’s children had been in “out of home 6 care since April 2013, well beyond the 15 of the last 22 months termination presumption time period.” Mother appeals. STANDARD OF REVIEW ¶9 We review a district court’s decision to terminate parental rights for an abuse of discretion. In re L.N., 2014 MT 187, ¶ 12, 375 Mont. 480, 329 P.3d 598 (citation omitted). We review a district court’s findings of fact for clear error and its conclusions of law for correctness. In re L.N., ¶ 12 (citation omitted). An appellant bears the burden of establishing that the district court’s factual findings are clearly erroneous. In re D.F., 2007 MT 147, ¶ 22, 337 Mont. 461, 161 P.3d 825 (citation omitted). “A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been made.” In re C.J.M., 2012 MT 137, ¶ 10, 365 Mont. 298, 280 P.3d 899 (citation omitted). An ineffective assistance of counsel claim presents mixed questions of law and fact which this Court reviews de novo. Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285 P.3d 407. DISCUSSION ¶10 1. Did the District Court err in concluding that the conduct or condition that made Mother unfit to parent was unlikely to change within a reasonable time? ¶11 Mother argues that the District Court incorrectly concluded that the conduct or condition rendering her unfit was unlikely to change within a reasonable time. Criteria for terminating parental rights are outlined in § 41-3-609(1)(f), MCA, which requires: 1) the child be adjudicated a youth in need of care; 2) an appropriate treatment plan that 7 has been approved by the court has not been complied with by the parent or has not been successful; and 3) that the conduct or condition rendering the parent unfit must be unlikely to change within a reasonable time. The third criterion requires a court to assess the parent’s past and present conduct. In re A.S., 2006 MT 281, ¶ 48, 334 Mont. 280, 146 P.3d 778 (citations omitted). In determining whether the conduct or condition rendering a parent unfit is unlikely to change, the court is also required to consider a parent’s “excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child.” Section 41-3-609(2)(c), MCA. The court “do[es] not have a crystal ball to look into to make this determination, so it must, to some extent, be based on a person’s past conduct.” In re M.T., 2002 MT 174, ¶ 34, 310 Mont. 506, 51 P.3d 1141 (quotation and citations omitted). The “best interests of the child are of paramount concern in a parental rights termination proceeding and take precedence over the parental rights.” In re M.A.L., 2006 MT 299, ¶ 18, 334 Mont. 436, 148 P.3d 606 (citation omitted). ¶12 Here, Mother stipulated to her children being youths in need of care. A treatment plan was developed and signed by Mother and Mother’s counsel. Mother did not comply with her treatment plan. The District Court concluded that Mother’s persistent homelessness, unemployment, and extensive history of substance abuse made her unfit and that, even if she began addressing these issues, “she could not begin to parent for at least one year—and then only with intensive in home services and support.” Our review of the District Court’s record indicates Mother has admitted to a substantial, over 15-year history of drug use including daily abuse of alcohol, marijuana, and methamphetamine. 8 Since her children were removed, Mother has been arrested three times; two arrests were for alcohol and drug offenses. At the time of the Termination Proceedings, there was a warrant outstanding for Mother’s arrest. There is clear and convincing evidence in the record that the conduct or condition rendering Mother unfit to parent is unlikely to change within a reasonable time. The District Court’s findings are not clearly erroneous and are supported by substantial evidence. The District Court did not abuse its discretion in concluding Mother’s conduct or condition was unlikely to change within a reasonable time. ¶13 2. Did the District Court improperly rely on the statutory presumption contained in § 41-3-604(1), MCA, to conclude that termination of Mother’s parental rights was in her children’s best interests? ¶14 Mother argues the District Court incorrectly applied the statutory presumption, contained in § 41-3-604(1), MCA, to conclude that termination of her parental rights was in the best interests of her children, because her children were placed with family, not in foster care. “[C]hildren need not be left to ‘twist in the wind’ when their parents fail to give priority to their stability and permanency.” In re T.S., 2013 MT 274, ¶ 30, 372 Mont. 79, 310 P.3d 538. If a child is in foster care under the physical custody of the state for 15 of the most recent 22 months, termination of parental rights is presumed to be in the child’s best interests. Section 41-3-604(1), MCA. Mother argues her children were placed with family members, not in “foster care,” and that the presumption in § 41-3-604(1), MCA, was inapplicable. Therefore, Mother contends the District Court improperly presumed termination of her parental rights was in her children’s best interests. 9 ¶15 “The granting of temporary legal custody to the department allows the department to place a child in care provided by a custodial or noncustodial parent, kinship foster home, youth foster home, youth group home, youth shelter care facility, or institution.” Section 41-3-442(3), MCA. DPHHS may pursue these forms of foster care placement because it has legal custody of the child. Here, temporary legal custody was granted to DPHHS and authorized DPHHS to pursue any of the placement options found in § 41-3-442(3), MCA. Between the children’s removal in April 2013 and Mother’s termination in June 2015, DPHHS placed C.W.E. and C.M.E. in various kinship foster homes and then with their respective noncustodial fathers. Contrary to Mother’s argument, the distinction between placement in a kinship foster home and other placement options does not alter the application of § 41-3-604(1), MCA. The presumption applies when a child is placed in kinship foster care because DPHHS has legal custody of the child. DPHHS had legal custody of Mother’s children who were in foster care for more than 15 of the 22 months preceding termination. Therefore, the District Court correctly applied the presumption in § 41-3-604(1), MCA, to conclude termination of Mother’s parental rights was in her children’s best interests. ¶16 3. Did Mother receive ineffective assistance of counsel? ¶17 Mother argues her counsel rendered ineffective assistance by failing to “adequately communicate with her.” Parents have a due process right to effective assistance of counsel in termination proceedings. In re A.S., 2004 MT 62, ¶ 20, 320 Mont. 268, 87 P.3d 408. Whether assistance was effective requires review of counsel’s training, experience, and advocacy. In re B.M., 2010 MT 114, ¶ 22, 356 Mont. 327, 233 10 P.3d 338 (citation omitted). Ineffective assistance of counsel requires reversal only if the parent suffered prejudice. In re B.M., ¶ 22 (citation omitted). ¶18 On January 15, 2015, Mother requested she be represented by alternative counsel in a faxed communication to her assigned counsel. Her assigned counsel notified the District Court of this request during the termination hearing held that same day and, as a result, that hearing was continued. Nevertheless, Mother’s assigned counsel continued to represent Mother at the three continuations with no further objection. Mother does not challenge her assigned counsel’s training or experience, but argues that “lack of communication” impacted her counsel’s ability to advocate for Mother. Mother contends a failure to communicate resulted in no witnesses being called to testify on Mother’s behalf at the Termination Proceedings, which, Mother argues, likely contributed to the District Court’s decision to terminate her parental rights. However, Mother does not state what witnesses her attorney failed to call or what they might have testified to. ¶19 Mother herself did not personally appear at the Termination Proceedings because she was fearful of arrest. Mother does not draw a correlation between her counsel’s purported lack of communication and any specific prejudice she suffered. The District Court relied on substantial evidence to determine that the statutory criteria to terminate Mother’s parental rights were met: 1) that C.W.E. and C.M.E. were youths in need of care; 2) that an approved treatment plan was not complied with or successful; and 3) that the conduct or condition rendering Mother unfit was unlikely to change within a reasonable time. Mother has not demonstrated that her counsel was ineffective or that she was prejudiced as a result. 11 CONCLUSION ¶20 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA

January 5, 2016

bd5161b2-2554-4a65-9fb5-982a7b0131c0

McCartney v. Barnekoff

2016 MT 12N

DA 15-0219

Montana

Montana Supreme Court

DA 15-0219 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 12N LINDA M. MCCARTNEY, Beneficiary, Petitioner and Appellant, v. CURT BARNEKOFF, Trustee, Respondent and Appellee. ----------------------------------------------- BEVERLY J. OLSON; RENEE VALDEZ, aka RENAE VALDEZ, ASHLEY M. McCartney YORK, ALISA VALDEZ, a minor, and ABIGAIL VALDEZ, a minor, Third Party Respondents and Appellees. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV 13-019 Honorable Robert G. Olson, Presiding Judge COUNSEL OF RECORD: For Appellant: Linda M. McCartney, Self-Represented, Great Falls, Montana For Appellees: Stephen R. Brown, Jr., Bosch, Kuhr, Dugdale, Martin & Kaze, PLLP, Havre, Montana Renee Valdez, Self-Represented, Great Falls, Montana (Guardian of A.V. and A.V., minors) Karen L. Reiff, Church, Harris, Johnson & Williams P.C., Great Falls, Montana (Attorney for Beverly J. Olson) January 12 2016 Case Number: DA 15-0219 2 Submitted on Briefs: December 9, 2015 Decided: January 12, 2016 Filed: __________________________________________ Clerk 3 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Linda McCartney (McCartney) appeals an order entered by the Eighth Judicial District Court, Cascade County, discharging Curt Barnekoff (Barnekoff) as Trustee of the Motari Trust. We affirm. We address whether McCartney’s appeal is timely. ¶3 Virginia and Leonard Motari, McCartney’s parents, executed the Motari Trust in 2001. Virginia predeceased Leonard, who died in 2007. Upon Leonard Motari’s death, the Motari’s children, McCartney and Beverly Olson (Olson) became primary beneficiaries and Barnekoff became Trustee. The Motari Trust was to be equitably divided between McCartney and Olson. The relationships between McCartney and Barnekoff and McCartney and Olson deteriorated. In January 2013, McCartney filed suit against Barnekoff for breach of trust and petitioned the District Court to divide the Motari Trust and discharge Barnekoff as Trustee. On July 15, 2014, the District Court entered summary judgment in Barnekoff’s favor. On March 3, 2015, the District Court ordered Barnekoff’s discharge. On March 31, 2015, McCartney filed a notice of appeal. 4 ¶4 McCartney, appearing pro se, raises seven issues on appeal. Restated they are: 1. Did Barnekoff breach his fiduciary duties? 2. Did the District Court deny McCartney due process by rescinding its Order granting her request for a jury trial? 3. Did the District Court fail to review the Motari Trust’s plain language? 4. Did the District Court fail to act impartially? 5. Did the District Court err by granting Barnekoff a protective order? 6. Did the District Court err by failing to provide notice to the mediator? 7. Did the District Court err by granting Barnekoff summary judgment? Ultimately, McCartney appears to object to the amount she received upon final distribution of the Motari Trust. Olson received $233,096 and McCartney received $234,095 upon final distribution. McCartney claims her parents told her she would receive her house, its mortgage and maintenance expenses would be paid for, and she would receive $2,000 each month for the rest of her life. Barnekoff, through counsel, argues this Court lacks jurisdiction to hear the issues McCartney raises because her appeal is not timely. Olson joined Barnekoff on appeal and both request an award of attorney’s fees and costs pursuant to § 72-38-1004, MCA. ¶5 The Montana Supreme Court has appellate jurisdiction and “may make rules governing appellate procedure.” Mont. Const. art. VII, § 2(1), (3). “In civil cases . . . the notice of appeal shall be filed with the clerk of the supreme court within 30 days from the date of entry of the judgment or order from which the appeal is taken.” M. R. App. P. 4(5)(a)(i). “A party may appeal from a final judgment.” M. R. App. P. 6(1). “A final judgment conclusively determines the rights of the parties and settles all claims in 5 controversy in an action or proceeding.” M. R. App. P. 4(1)(a). Interlocutory orders are generally not appealable. M. R. App. P. 6(5)(f). “An interlocutory judgment is an order or decree that determines a preliminary or subordinate question or issue and which enables the court to render a final judgment but does not finally decide the cause.” M. R. App. P. 4(1)(b). ¶6 A motion for summary judgment should be granted where the evidence shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). Orders or judgments adjudicating fewer than all claims and orders denying summary judgment or granting partial summary judgment are not appealable. M. R. App. P. 6(5)(b). However, an order granting summary judgment can be an appealable final judgment where it addresses all of the issues and adjudicates all of the claims of the parties. See Mines Mgmt. v. Fus, 2014 MT 256, ¶ 10, 376 Mont. 375, 334 P.3d 929; Losleben v. Oppedahl, 2004 MT 5, ¶ 26, 319 Mont 269, 83 P.3d 1271. ¶7 The District Court entered summary judgment in Barnekoff’s favor on July 15, 2014. The District Court entered a notice of entry of summary judgment on July 17, 2014. McCartney had thirty days from which to file a notice of appeal. McCartney filed her notice of appeal on March 31, 2015, or 257 days after notice of entry of summary judgment was entered. McCartney argues her appeal is taken, not from the summary judgment order, but from the District Court’s March 3, 2015, order discharging Barnekoff as Trustee. We disagree and note that each of the seven issues raised on appeal relate to McCartney’s original petition and the order granting Barnekoff summary 6 judgment. None relate to the District Court’s order discharging Barnekoff as Trustee, which McCartney requested and summary judgment required upon final distribution of the Motari Trust. ¶8 Barnekoff and Olson each request an award of attorney fees, incurred on appeal, be paid by McCartney. “In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.” Section 72-38-1004, MCA. Barnekoff and Olson assert that, at the District Court level, McCartney aggressively pursued meritless legal claims to their, and the Motari Trust’s, financial detriment and that, on appeal, McCartney’s arguments are not timely. They argue an award of attorney’s fees is an appropriate response. We disagree. Regardless of McCartney’s actions at the District Court level, justice and equity do not require an award here simply because her appeal was not timely. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. ¶10 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE

January 12, 2016

524c0464-8d5b-4b05-8f07-3149e86786e6

State v. McAlister

2016 MT 14

DA 13-0856

Montana

Montana Supreme Court

DA 13-0856 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 14 STATE OF MONTANA, Plaintiff and Appellee, v. TRAVIS MORGAN McALISTER, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 12-157 Honorable Gregory G. Pinski, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad R. Vanisko, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General; Helena, Montana John W. Parker, Cascade County Attorney, Joshua A. Racki, Deputy County Attorney; Great Falls, Montana Submitted on Briefs: December 16, 2015 Decided: January 19, 2016 Filed: __________________________________________ Clerk January 19 2016 Case Number: DA 13-0856 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 After a three-day trial before the Eighth Judicial District Court, Cascade County, a jury found Travis Morgan McAlister (McAlister) guilty of sexual intercourse without consent, a felony, pursuant to § 45-5-503, MCA (2011). Due to the age of the victim, McAlister was sentenced to 100 years in prison and is not eligible for parole for the first 50 years. He challenges his conviction. We affirm, addressing the following issues: 1. Did the District Court err by denying McAlister’s motions made during trial to dismiss the charge for insufficient evidence? 2. Did McAlister’s trial counsel provide ineffective assistance by failing to call any expert witnesses? PROCEDURAL AND FACTUAL BACKGROUND ¶2 This case was put into motion by a call to the child abuse hotline through the division of Child and Family Services, relating that the victim, A.H., had made a disclosure to her grandmother regarding possible sexual abuse. Detective Noah Scott of the Great Falls Police Department received the referral and that same afternoon conducted a forensic interview with A.H., who was four years old at that time. A.H. made several statements regarding McAlister, whom she referred to as “Dad,” “Daddy,” or “Travis”; he is not her biological father. A.H. told Detective Scott that she and McAlister “watch private movies” and “sometimes get naked on them.” A.H. stated that her dad would “kiss her peepee,” and that “he just sticks [his peepee] in my peepee,” and that sometimes it “hurts my peepee.” A.H. also made statements during the interview that were contradictory and nonsensical. When asked where she had sex, A.H. stated that 3 she would have sex at her daycare and “the whole world.” She also stated that she had sex with her “brother” (A.H. did not have any brothers at the time), that she would have sex “in that building,” and in her closet. Detective Scott also interviewed McAlister, after which McAlister was arrested and charged with one count of sexual intercourse without consent and one count of felony sexual assault, arising out of conduct that allegedly occurred between March 1, 2010, and March 27, 2012.1 ¶3 At trial, A.H., who was then five years old, testified. While on the stand, she stated that she would watch “sexy movies” while staying at McAlister’s house. She stated that “we did the same thing as them [the movies], but I didn’t want to.” When asked what she did that was on the movies, A.H. answered that “He put his peepee in my mouth and my peepee.” As direct examination continued, A.H. repeated this testimony several times. A.H. also testified that she “had sex” with “a friend” at daycare, and “with [her] big frog” in the closet at home. ¶4 The State called four expert witnesses to testify at trial. Dr. Robert Page, a specialist in forensic psychology, testified that, after watching the video of A.H.’s forensic interview with Detective Scott, it was his opinion that A.H.’s behaviors during the interview were “more consistent with a memory of an event that occurred that is attached to an aversion,” rather than appearing to be a disclosure of a mere fantasy or coached allegations. Dr. Page further testified that A.H.’s graphic descriptions in the forensic interview of an erect male penis and the act of ejaculation were significant, as a 1 The State later moved to dismiss the count of sexual assault, and only the count of sexual intercourse without consent went to the jury. 4 four year old child would not normally have experienced this, and would be unlikely to fabricate a description in that level of detail, bolstering his opinion that A.H.’s disclosures were not fabricated. Dr. Nancy Maynard performed a physical examination on A.H. shortly after the report was made. Dr. Maynard reported that she found no physical abnormalities, such as scars, skin tags, or other injuries that would be signs that sexual abuse occurred, finding an intact hymen with no signs of past healing. Maynard noted, however, that in the majority of sexual abuse cases, professionals do not find such physical evidence of abuse. Dr. Wendy Dutton testified as to the victimization process, or the process that leads up to sexual abuse of a child and the aftermath of the abuse, and about the ways in which a victim might disclose sexual abuse. Finally, Dr. Charlene Sabin, a behavioral pediatrician, testified that “I find it upsetting that [A.H.’s] child sexual behavior has gotten so intense, so extreme, and so entrenched. . . . It’s not in the range of normal child sexual behavior.” While she could not give an opinion as to whether A.H. had been sexually abused by McAlister specifically, Dr. Sabin testified that something must have happened to result in A.H.’s behaviors. ¶5 After the State rested, McAlister’s counsel moved for dismissal based on insufficient evidence, which the District Court denied. The defense proceeded and McAlister testified on his own behalf. His testimony established that he had a father-like relationship with A.H., and that he would provide childcare for A.H., sometimes overnight. McAlister adamantly denied having sexual intercourse with or sexually assaulting A.H. At the conclusion of his testimony, McAlister’s counsel renewed his 5 motion for dismissal for insufficient evidence, which the District Court again denied. The case was then submitted to the jury, which found McAlister guilty. McAlister appeals. STANDARDS OF REVIEW ¶6 We review the denial of a motion to dismiss a criminal charge for insufficient evidence de novo. State v. Swann, 2007 MT 126, ¶¶ 18-19, 337 Mont. 326, 160 P.3d 511. A motion to dismiss for insufficient evidence is appropriate only if, viewing the evidence in the light most favorable to the prosecution, there is not sufficient evidence upon which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Rosling, 2008 MT 62, ¶ 35, 342 Mont. 1, 180 P.3d 1102; § 46-16-403, MCA. ¶7 We address the ineffective assistance of counsel claims as follows: Ineffective assistance of counsel claims constitute mixed questions of law and fact which we review de novo. To prevail on an ineffective assistance of counsel claim, the defendant must show that: (1) his counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced him. The defendant must satisfy both prongs of the test, and where the defendant makes an insufficient showing as to one prong of the test, it is unnecessary to address the other prong. State v. Lindberg, 2008 MT 389, ¶ 26, 347 Mont. 76, 196 P.3d 1252 (citing Whitlow v. State, 2008 MT 140, ¶¶ 9-11, 343 Mont. 90, 183 P.3d 861) (internal citations omitted). DISCUSSION ¶8 1. Did the District Court err by denying McAlister’s motions made during trial to dismiss the charge for insufficient evidence? 6 ¶9 McAlister argues that the evidence presented by the State was not sufficient to convict him and that his motions to dismiss the charge should have been granted. McAlister notes many contradictions and inconsistencies between A.H.’s statement to Detective Scott and her later testimony at trial, including A.H.’s occasional denials that she had ever engaged in sex or even knew what sex was. He argues that A.H. “never definitively and independently identif[ied] McAlister as having had sexual intercourse with her . . . ,” and that the State failed to offer any physical evidence of a crime or that A.H. had even been sexually abused, noting that Dr. Maynard testified that she found no physical signs of scarring or past healing. McAlister argues that his case “is mired in a sea of insufficient evidence.” ¶10 Section 45-5-503(1), MCA (2011), provides that “[a] person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent.” In turn, § 45-2-101(68)(a), MCA (2011), defines “sexual intercourse” as “penetration of the vulva, anus, or mouth of one person by the penis of another person, [or] penetration of the vulva or anus of one person by a body member of another person . . . .” Instructions submitted to the jury stated that the State was required to prove that McAlister had sexual intercourse with A.H., that McAlister acted knowingly, and that the act of sexual intercourse was without the consent of A.H., although, because A.H. was younger than the age of 16, she was statutorily incapable of giving her consent to sexual intercourse. See § 45-5-501(1)(a)(ii)(D), MCA (2011). The State was thus tasked with proving that McAlister had sexual intercourse with A.H., and 7 that he did so knowingly. See § 45-2-101(35), MCA (2011) (“a person acts knowingly . . . when the person is aware of the person’s own conduct . . . .”). The jury found that all of these elements had been proven beyond a reasonable doubt when convicting McAlister. ¶11 McAlister supports his argument by necessarily focusing on A.H.’s testimony that McAlister did not “touch her peepee” and other like comments. However, A.H. also affirmatively repeated her statement that McAlister had penetrated her several times. After A.H. testified that she would watch “sexy movies” at McAlister’s house, and the prosecutor asked A.H. “And what did you do that was on the movies?” A.H. clearly answered “He put his peepee in my mouth and my peepee.” A.H. repeated this same phrase almost verbatim in response to another question. Later on during direct examination, the State asked, “Did anyone else besides Travis [McAlister] put his peepee in your peepee?” A.H. responded, “No.” ¶12 A.H.’s testimony offers evidence of the necessary elements of the crime of sexual intercourse without consent. Her testimony clearly identified McAlister as the perpetrator and described his actions in sufficient detail to satisfy the statutory definition. Viewing the evidence as a whole and “in the light most favorable to the prosecution,” Rosling, ¶ 35, we conclude it was entirely possible that a rational jury could have found all the essential elements beyond a reasonable doubt, based upon A.H.’s testimony as a whole. While A.H.’s statements were inconsistent at times and included the whimsical or even fantastical, a rationale jury could well have determined that such statements were 8 characteristic of a four or five year old child, but that the substance of her statements about McAlister were truthful.2 McAlister’s argument challenges the credibility of A.H.’s testimony (her statements “never rose above the level of being ambiguous at best and completely contradictory at worst”), but the “[d]eterminations of the credibility of witnesses and the weight of their testimony are within the exclusive province of the jury, and conflicting testimony does not render the evidence insufficient to support a guilty verdict.” State v. Dewitz, 2009 MT 202, ¶ 85, 351 Mont. 182, 212 P.3d 1040 (citations omitted). He also argues that a rational jury could not find the elements beyond a reasonable doubt when “the alleged victim simultaneously presents diametrically opposing testimony.” To the contrary, “[i]t is within the province of the jury to weigh the evidence based on the credibility of the witnesses and determine which version of events should prevail,” even when the conflict arises from the victim’s testimony. State v. Trull, 2006 MT 119, ¶ 20, 332 Mont. 233, 136 P.3d 551 (citing State v. Weigand, 2005 MT 201, ¶ 7, 328 Mont. 198, 119 P.3d 74); State v. Hicks, 2006 MT 71, ¶¶ 25-27, 331 Mont. 471, 133 P.3d 206; State v. Kelley, 2005 MT 200, ¶ 22, 328 Mont. 187, 119 P.3d 67 (“a jury is at liberty to believe all, a part of, or none of the testimony of any witness.”). ¶13 McAlister emphasizes that there was no physical evidence offered to prove that A.H. had been penetrated. However, Dr. Maynard testified that this is common in cases of alleged sexual abuse. We have previously upheld a conviction of sexual intercourse without consent based on the identification of the defendant by a child victim that was 2 A.H.’s competency as a witness is not an issue herein. 9 not confirmed by physical evidence. See State v. Osborne, 1999 MT 149, ¶ 39, 295 Mont. 54, 982 P.2d 1045 (“While there is no direct, physical evidence which links [the defendant] to the crime, the jury could have reasonably concluded from the evidence that [the victim] identified [the defendant] as the person who penetrated her . . . .”). The lack of physical evidence does not negate the sufficiency of A.H.’s oral testimony.3 ¶14 The District Court did not err in denying McAlister’s motions to dismiss for insufficient evidence. ¶15 2. Did McAlister’s trial counsel provide ineffective assistance by failing to call any expert witnesses? ¶16 McAlister argues that his appointed trial counsel was ineffective because he failed to call an independent expert witness to rebut the expert testimony offered by the State. Before undertaking review, we must first determine whether this issue is properly before us on direct appeal. “[W]here ineffective assistance of counsel claims are based on facts of record in the underlying case, they must be raised in the direct appeal; conversely, where the allegations of ineffective assistance of counsel cannot be documented from the record in the underlying case, those claims must be raised by petition for postconviction relief.” Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60, 973 P.2d 233. ¶17 The record indicates that McAlister’s counsel filed a notice of an expert witness one week prior to trial. The District Court issued an order that permitted McAlister to 3 McAlister also briefly suggests that the District Court’s statement, made when denying his motion to dismiss for insufficiency of the evidence, that the court was “not in a position to judge whether or not it’s beyond a reasonable doubt, it’s just simply whether the evidence is sufficient,” indicates that the court applied the incorrect legal standard when deciding the issue. However, we discern no substantive error in the statement. 10 add Dr. Cindy Miller to his list of witnesses. However, defense counsel did not call Dr. Miller at trial, and the record mentions only that she was expected to testify regarding “child psychology, child development[,] and the reliability of the victim’s testimony.” The bare fact that McAlister’s counsel did not call Dr. Miller or another expert witness to testify is not sufficient by itself to establish that his performance was deficient, and the record is silent as to the reasons why defense counsel made these decisions. This Court will not speculate as to the reasons for this action. See State v. Lewis, 2007 MT 16, ¶ 21, 335 Mont. 331, 151 P.3d 883 (“We refuse to speculate on counsel’s errors in light of the presumption favoring a finding that counsel performed effectively. A silent record fails to rebut the strong presumption that counsel provided reasonable professional assistance.”) (internal citations omitted). Because the basis of this ineffectiveness claim is not clear from the record, it is more properly brought by a petition for postconviction relief. See Hagen, ¶ 12. ¶18 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA

January 19, 2016

b2edf7fb-20e7-4f79-ba9b-2e46f76eeaf9

Brandenburg v. State

2016 MT 5N

DA 15-0291

Montana

Montana Supreme Court

DA 15-0291 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 5N JAMES PATRICK BRANDENBURG, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV- 15-05 Honorable Ray J. Dayton, Presiding Judge COUNSEL OF RECORD: For Appellant: James Patrick Brandenburg (self-represented); Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General; Helena, Montana Lewis K. Smith, Powell County Attorney, L. Jeanine Badanes, Deputy County Attorney; Deer Lodge, Montana Submitted on Briefs: December 2, 2015 Decided: January 5, 2016 Filed: __________________________________________ Clerk January 5 2016 Case Number: DA 15-0291 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 James Patrick Brandenburg appeals from the order of the Montana Third Judicial District, Powell County, denying his petition for postconviction relief (PCR). We affirm. ¶3 On June 26, 2007, Brandenburg was charged with Escape (a violation of § 45-7-306, MCA) from the Butte Pre-Release Center in Silver Bow County. Brandenburg pled guilty and was sentenced to four years in prison on December 11, 2007. This was the final judgment in the case as Brandenburg did not appeal his conviction or sentence. ¶4 Brandenburg filed a pro se PCR petition in Powell County on January 6, 2015, claiming ineffective assistance of counsel, procedural due process violations, and plea inducements stemming from the escape case. On April 19, 2015, the Powell County District Court entered an Order denying the PCR petition. The court determined the petition was time barred under § 46-21-102, MCA. On appeal, Brandenburg argues that the district court erred in its denial of his PCR petition. Brandenburg’s arguments on appeal do not address the court’s ruling that his petition was time barred, and he offers no argument regarding his failure to comply with the time bar in postconviction proceedings. 3 ¶5 Section 46-21-102, MCA, provides that a petition for postconviction relief “may be filed at any time within 1 year of the date that the conviction becomes final.” The applicable appeal period in this case adds 60 days (to the one year) to appeal to the Montana Supreme Court. Section 46-21-102(1)(a), MCA. Thus, the total time period for the PCR statute of limitations in this case is 1 year and 60 days from the date of judgment. ¶6 Because Brandenburg filed his PCR petition outside the statute of limitations, he is barred from raising these claims now. Brandenburg was sentenced for Escape on December 11, 2007; thus, pursuant to § 46-21-102, MCA, he had until February 8, 2009 to file a PCR petition. Brandenburg filed this PCR petition on January 6, 2015. Brandenburg missed the PCR petition filing deadline by nearly six years, thus he is procedurally barred from seeking postconviction relief. ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court’s ruling was not an abuse of discretion. ¶8 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA

January 5, 2016

7669d442-85ec-4c2d-aa66-3d3c4b4dfee6

Mont. Cannabis Indus. Ass’n v. State

2016 MT 44

DA 15-0055

Montana

Montana Supreme Court

DA 15-0055 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 44 MONTANA CANNABIS INDUSTRY ASSOCIATION, MARC MATTHEWS, SHELLY YEAGER, JESSE RUMBLE, JOHN STOWERS, M.D., POINT HATFIELD, and CHARLIE HAMP, Plaintiffs, Appellees, and Cross-Appellants, v. STATE OF MONTANA, Defendant, Appellant, and Cross-Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV-2011-518 Honorable James P. Reynolds, Presiding Judge COUNSEL OF RECORD: For Appellant: Timothy C. Fox, Montana Attorney General; J. Stuart Segrest (argued), Matthew T, Cochenour, Assistant Attorneys General, Helena, Montana For Appellees: James H. Goetz (argued), J. Devlan Geddes, Goetz, Baldwin & Geddes, P.C., Bozeman, Montana Argued and Submitted: November 4, 2015 Decided: February 25, 2016 Filed: __________________________________________ Clerk February 25 2016 Case Number: DA 15-0055 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 The State of Montana (State) appeals an order of the First Judicial District Court, Lewis and Clark County, granting a permanent injunction against the enforcement of certain provisions of the 2011 Montana Marijuana Act §§ 50-46-301 to -344, MCA (Act). Montana Cannabis Industry Association, Mark Matthews, Shelly Yeager, Jesse Rumble, John Stowers, M.D., Point Hatfield, and Charlie Hamp (collectively “Plaintiffs”) cross-appeal the District Court’s refusal to enjoin other provisions of the Act. We address the following issues on appeal: 1. Whether the District Court erred in determining that the Act’s provision requiring the Department of Public Health and Human Services (Department) to notify the Board of Medical Examiners of any physician who certifies 25 or more patients in a year for medical marijuana (§ 50-46-303(10), MCA) fails rational basis review. 2. Whether the District Court erred in determining that the Act’s commercial prohibitions (§ 50-46-308(3), (4), (6)(a),(b), MCA) fail rational basis review. 3. Whether the District Court erred in applying strict scrutiny review to the Act’s provision prohibiting advertising by providers of medical marijuana (§ 50-46-341, MCA), thereby concluding that the provision unconstitutionally infringes free speech. 4. Whether the District Court erred in determining that the Act’s provision prohibiting probationers from becoming registered cardholders for medical marijuana use (§ 50-46-307(4), MCA) withstands a facial challenge under rational basis scrutiny. 5. Whether the District Court erred in determining that the Act’s provision allowing warrantless inspections of medical marijuana providers’ businesses by the Department and law enforcement agencies (§ 50-46-329, MCA) comports with the U.S. and Montana Constitutions’ guarantees against unreasonable searches. ¶2 We affirm in part and reverse in part. 3 PROCEDURAL AND FACTUAL BACKGROUND ¶3 This is the State’s second appeal from the First Judicial District Court’s injunctions preventing implementation of certain provisions of the Act. Montana Cannabis Industry Association v. State, 2012 MT 201, 366 Mont. 224, 286 P.3d 1161 (hereafter MCIA I). The Act repealed the 2004 Medical Marijuana Act (2004 Act)— which was established by voter initiative (I-148)—and replaced it with a new statutory framework. The Act contains multiple provisions that limit both the eligibility of patients to qualify for its protections and the activities of medical professionals and providers of marijuana for medical purposes. ¶4 In the first case, the District Court preliminarily enjoined several of the Act’s provisions, including: its ban on the commercial sale of medical marijuana; its ban on provider advertising; its authorization of warrantless inspections; and the 25-patient physician review trigger. In its first order, the court reasoned that those provisions implicated Plaintiffs’ fundamental constitutional rights, triggering strict scrutiny analysis. The State agreed to a preliminary injunction against several of the challenged provisions pending consideration of the constitutional merits, but appealed the injunction against the commercial ban on the ground that the District Court erred in applying strict scrutiny analysis to the provisions in the absence of an infringement on fundamental rights. ¶5 In MCIA I, we determined that the commercial ban did not implicate the fundamental rights to employment, to health, or to privacy, and that Plaintiffs had no 4 fundamental right to medical marijuana. Accordingly, we reversed and remanded the case to the District Court to apply rational basis scrutiny. MCIA I, ¶ 35. ¶6 Following remand, Plaintiffs moved the District Court for a Temporary Restraining Order, Preliminary Injunction and Order to Show Cause. On October 26, 2012, the District Court granted a Temporary Restraining Order and set a Preliminary Injunction Hearing.1 At that hearing, Plaintiffs presented testimony from several witnesses to support their contention that many medical marijuana users and providers would suffer irreparable harm if certain provisions of the Act did not remain preliminarily enjoined. Several witnesses who suffered from debilitating medical conditions testified that they had very negative experiences with prescription drugs and that medical marijuana was the only treatment that provided them effective relief from their conditions. Providers of medical marijuana testified that without the injunction, it would not be feasible for them to continue their medical marijuana businesses. ¶7 The State urged the District Court to deny the preliminary injunction and to extend the temporary restraining order for a period to allow the Legislature to consider further amendments to the Act. To support its argument, the State referenced several abuses that occurred under the 2004 Act and that were discussed during the June 2011 preliminary injunction hearing. The State referenced telemedicine (the practice of some physicians to certify patients without ever actually seeing the patient), traveling caravans, and a disproportionate number of medical marijuana users in the “chronic pain category” who 1 The parties agreed that the District Court could consider testimony and evidence submitted at the June 2011 hearing on Plaintiffs’ previous motion for preliminary injunction. 5 falsified or exaggerated their need for medical marijuana. The State also emphasized that one-third of medical marijuana users were growing their own supply at that time. ¶8 Following the hearing, on January 16, 2013, the court issued an order maintaining its preliminary injunction against the Act’s commercial prohibitions. The court concluded that “[p]roperly registered and eligible cardholders will be injured or irreparably harmed if the Court does not preserve the status quo . . . [because] cardholders will be unable to grow their own medical marijuana or will be unable to obtain it from a provider.” Thereafter, the parties filed cross-motions for summary judgment. The District Court heard oral argument on the summary judgment motions on April 15, 2014. ¶9 On January 6, 2015, the District Court issued a Corrected Order on Motions for Summary Judgment. In its decision, the court reviewed the commercial ban and the 25-patient review trigger for a rational basis, and concluded that both provisions were invalid. The court applied strict scrutiny to the advertising prohibition, and enjoined it on the basis that the prohibition impermissibly restricted content-based political and educational speech. The District Court declined to enjoin the warrantless inspection provision and the ban on access to medical marijuana by probationers. The court entered its final judgment on January 8, 2015. ¶10 The State appeals the injunctions against the commercial ban, the 25-patient physician review trigger, and the advertising ban. Plaintiffs cross-appeal the District Court’s decision to uphold the warrantless inspection provision and the ban on probationer use. This Court heard oral argument on November 4, 2015. 6 STANDARDS OF REVIEW ¶11 We review summary judgment rulings de novo, applying the criteria set forth in M. R. Civ. P. 56. Walters v. Flathead Concrete Prods., 2011 MT 45, ¶ 8, 359 Mont. 346, 249 P.3d 913. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Walters, ¶ 8. If there are no genuine issues of material fact, we review for correctness a district court’s conclusion that the moving party is entitled to judgment as a matter of law. Zinvest, LLC v. Hudgins, 2014 MT 201, ¶ 11, 376 Mont. 72, 330 P.3d 1135. ¶12 This Court exercises plenary review of constitutional issues. Big Sky Colony, Inc. v. Mont. Dep’t of Labor and Indus., 2012 MT 320, ¶ 16, 368 Mont. 66, 291 P.3d 1231 (citation omitted). The constitutionality of a statute is presumed, “unless it conflicts with the constitution, in the judgment of the court, beyond a reasonable doubt.” Powell v. State Comp. Fund., 2000 MT 321, ¶ 13, 302 Mont. 518, 15 P.3d 877. If any doubt exists, it must be resolved in favor of the statute. Powell, ¶ 13. The party challenging the constitutionality of a statute bears the burden of proof. Big Sky Colony, ¶ 16. DISCUSSION ¶13 We begin by acknowledging the proverbial “elephant in the room.” Marijuana is a Schedule I Controlled Substance under the federal Controlled Substances Act, 21 U.S.C. § 812, under which its cultivation and distribution are illegal. 21 U.S.C. §§ 841(a)(1), 844(a). In this case, no challenge is brought to the Act on the ground that it is preempted by federal law, U.S. Const. art. VI, cl. 2, and the State expressly disclaimed such a 7 challenge during oral argument. In the face of action in numerous states to legalize marijuana for medical or even recreational purposes,2 the United States Department of Justice has issued guidance (discussed below) concerning enforcement priorities in an apparent effort to minimize conflict with state actions while maintaining the primacy of federal law. The Act is the Montana Legislature’s attempt to navigate shifting public policy toward marijuana in the absence of Congressional action to resolve state and federal differences.3 We are not called upon in this case to review the broad question of Montana’s authority to act on the subject of medical marijuana. Rather, we address only the question whether, having taken action on the subject, the Legislature’s means of addressing this conflict are permissible under defined standards of constitutional analysis. 2 Alaska Stat. §§ 17.37.010 et seq. (medical), §§ 17.38.010 et seq. (recreational); Ariz. Rev. Stat. §§ 36-2801 et seq. (medical); Cal. Health & Safety Code §§ 11362.5 et seq. (medical); Colo. Rev. Stat. §§ 12-43.3-101 et seq. (medical), §§ 12-43.4-101 et seq. (recreational); Conn. Gen. Stat. §§ 21a-408 et seq. (medical); Del. Code Ann. tit. 16, §§ 4901A et seq. (medical); D.C. Code §§ 7.1671.01 et seq. (medical); Haw. Rev. Stat. §§ 329-121 et seq. (medical); 410 Ill. Comp. Stat. Ann. 130/1 et seq. (medical); Me. Rev. Stat. tit. 22, §§ 2421 et seq. (medical); Md. Code Ann. Health-Gen §§ 13-3301 et seq. (medical); Mass. Ann. Laws ch. 94C, §§ Appx. 1 et seq. (medical); Mich. Comp. Laws Serv. §§ 333.26421 et seq. (medical); Minn. Stat. Ann. §§ 152.27 et seq. (medical); Nev. Rev. Stat. §§ 453A.___ [2015 ch. 401, § 29] et seq. (medical); N.H. Rev. Stat. Ann. §§ 126-X:2 et seq. (medical); N.J. Stat. Ann. §§ 24:6I-1 et seq. (medical); N.M. Stat. Ann. §§ 26-2B-1 et seq. (medical); N.Y. CLS Pub. Health Law §§ 1004.1 et seq. (medical); Or. Rev. Stat. §§ 475.300 et seq. (medical), Or. Rev. Stat. §§ ___.___ [2015 c.1, § 3] et seq. (recreational); R.I. Gen. Laws §§ 21-28.6-1 et seq. (medical); Vt. Stat. Ann. tit. 18 §§ 4472 et seq. (medical); Wash. Rev. Code §§ 69.51A et seq. (medical), Wash. Rev. Code §§ 69.50.360, 69.50.363, 69.50.66, 69.50.401 (recreational). 3 A number of bills have been introduced during recent Sessions of Congress, none of which have moved forward. E.g., Respect State Marijuana Laws Act of 2015, H.R. 1940, 114th Cong. (2015); States’ Medical Marijuana Property Rights Protection Act, H.R. 262, 114th Cong. (2015); Marijuana Businesses Access to Banking Act of 2015, H.R. 2076, 114th Cong. (2015). Respect State Marijuana Laws Act of 2013, H.R. 1523, 113th Cong. (2013); National Commission on Federal Marijuana Policy Act of 2013, H.R. 1635, 113th Cong. (2013); States’ Medical Marijuana Property Rights Protection Act, H.R. 6335, 112th Cong. (2012); States’ Medical Marijuana Patient Protection Act, H.R. 1983, 112th Cong. (2011). 8 ¶14 Plaintiffs allege denial of equal protection and due process rights under article II, sections 4 and 17 of the Montana Constitution. Plaintiffs bring their constitutional claims as facial challenges to certain statutes within the Act. Analysis of a facial challenge to a statute differs from that of an as-applied challenge. See e.g., State v. Whalen, 2013 MT 26, ¶¶ 20-22, 368 Mont. 354, 295 P.3d 105. In order to prevail on their facial challenges, Plaintiffs must show that “no set of circumstances exists under which the [challenged sections] would be valid, i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987)). See also In re Marriage of K.E.V., 267 Mont. 323, 336, 883 P.2d 1246, 1255 (1994) (Trieweiler, J., concurring and dissenting) (citation and internal quotation marks omitted) (noting that “a facial challenge to a legislative act is of course the most difficult challenge to mount successfully, since the challenger must establish that no circumstances exist under which the act would be valid”). Equal Protection ¶15 The principal purpose of the Montana Constitution’s Equal Protection Clause, art. II, § 4, is to ensure that Montana’s citizens are not subject to arbitrary and discriminatory state action. Powell, ¶ 16. When presented with an equal protection challenge, “we first identify the classes involved and determine whether they are similarly situated.” Rohlfs v. Klemenhagen, LLC, 2009 MT 440, ¶ 23, 354 Mont. 133, 227 P.3d 42. If we determine that the challenged statute creates classes of similarly situated persons, we next decide 9 whether the law treats the classes in an unequal manner. Caldwell v. MACo Worker’s Comp. Trust, 2011 MT 162, ¶ 16, 361 Mont. 140, 256 P.3d 923. Thus, to state a meritorious equal protection claim, Plaintiffs must demonstrate that “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” Bustell v. AIG Claims Serv. Inc., 2004 MT 362, ¶ 20, 324 Mont. 478, 105 P.3d 286 (citing Powell, ¶ 22). ¶16 A law may create a classification even if the classification is not expressed “on the face” of the statute. State v. Spina, 1999 MT 113, ¶ 85, 294 Mont. 367, 982 P.2d 421 (citing John E. Nowak, et al., Constitutional Law, 600 (2d ed. 1983)). “[A] law may contain no classification, or a neutral classification, and be applied evenhandedly. Nevertheless the law may be challenged as in reality constituting a device designed to impose different burdens on different classes of persons.” Spina, ¶ 85 (citing Nowak, supra, at 600). Plaintiffs argue that the Act creates different classifications: 1. The class of persons with debilitating medical conditions: (a) some of whom have conditions for which marijuana is the single most effective medical treatment; (b) others who effectively may be treated with other pharmaceutical drugs. 2. Among those who are solely or optimally treated with marijuana: (a) those who have the physical ability and the means, including suitable space, to grow their own; (b) those who do not. The District Court concluded that the Act “do[es] impose different burdens on different classes of persons as described by [Plaintiffs] and, therefore, do[es] create a classification.” 10 ¶17 We concluded in Caldwell that a statute denying rehabilitation benefits to workers’ compensation claimants based on a claimant’s age-based eligibility for social security benefits created two classes of similarly-situated claimants because it distinguished by age between workers who had similar work-related injuries. Caldwell, ¶ 18. The statutes at issue here concern a group of persons who all suffer from a debilitating medical condition but are distinguished by the manner in which they may obtain relief. Some may be treated effectively with pharmaceutical drugs; for others, marijuana is the sole or most effective treatment. The identifying factor that distinguishes them is the method of treatment. As we recognized in MCIA I, the Act regulates a person’s right to a particular treatment for his or her medical condition. MCIA I, ¶ 24. We observed in Caldwell that whether the challenged statute creates a discriminatory classification is informed by the statute’s purpose. Caldwell, ¶ 19. In Caldwell, as in Reesor v. Montana. State Fund, 2004 MT 370, 325 Mont. 1, 103 P.3d 1019, age was “the only identifiable distinguishing factor between the two classes;” we concluded in both cases that age was “unrelated to a person’s ability to engage in meaningful employment.” Caldwell, ¶ 19; Reesor, ¶ 12. In contrast, we concluded in Wilkes v. Montana State Fund, 2008 MT 29, 341 Mont. 292, 177 P.3d 483, that where “actual wages” was the single distinguishing factor between workers’ compensation claimants, that was a “fundamental distinction” between the two classes sufficient to defeat similarity for purposes of the plaintiff’s equal protection claim. Wilkes, ¶ 20. We reasoned that one stated purpose of the Workers’ Compensation Act was that “the 11 wage-loss benefit should bear a reasonable relationship to actual wages lost as a result of work-related injury or disease.” Wilkes, ¶ 26 (internal quotation marks omitted) (quoting § 39-71-105(1), MCA). ¶18 The reasoning in Wilkes applies here. One stated purpose of the Act is to “provide legal protections to persons with debilitating medical conditions who engage in the use of marijuana to alleviate the symptoms of the debilitating medical condition.” Section 50-46-301(2)(a), MCA. There is no need for the Legislature to provide legal protections to persons using prescribed pharmaceutical medication. “The distinguishing factor between the two classes, [their use of medical marijuana], plainly relates to the underlying justification of the statute.” Wilkes, ¶ 20. We conclude that the distinctions in regulation of different substances for medical treatment does not create two legitimate classes for an equal protection challenge because the single identifying factor—use of a substance prohibited by federal law—is a fundamental difference that sufficiently distinguishes the two classes to render them dissimilar. Substantive Due Process ¶19 Although there is considerable overlap between an equal protection analysis and a substantive due process analysis, “each Clause triggers a distinct inquiry.” Evitts v. Lucey, 469 U.S. 387, 405, 105 S. Ct. 830, 841 (1985). Equal protection “emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable,” while due process “emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same 12 situation may be treated.” Evitts, 469 U.S. at 405, 105 S. Ct. at 841 (quoting Ross v. Moffitt, 417 U.S. 600, 609, 94 S. Ct. 2437, 2443 (1974)). “For example, if a state prohibited all persons from purchasing or using a certain drug or medicine, a challenge to that law would be based on substantive due process.” 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 15.4(a) at 824 (5th ed. 2012). Because Plaintiffs essentially claim that the Act’s regulation of marijuana for medical purposes “restrict[s] the freedom of all persons in society without a constitutionally legitimate justification,” their challenges appropriately are analyzed under the due process clause, Montana Constitution Article II, Section 17. Rotunda & Nowak, supra, at 824. ¶20 Substantive due process also reflects a principle distinct from that protected by procedural due process: If an individual asserts that the government must provide him with some type of procedural safeguards before the government takes an interest from him, he must demonstrate that the interest constitutes life, liberty, or property. . . . There is no need to define life, property or liberty for substantive due process analysis . . . . All laws might be said to restrict [an] individual’s use of property rights or personal liberty, in the sense of restricting which actions the individual can take in society. Laws regulating property or liberty that do not restrict the exercise of a fundamental right should be upheld unless the person attacking the law can overcome the presumption of constitutionality and demonstrate that the law is not rationally related to a legitimate interest. Rotunda & Nowak, supra, § 15.5 at 847-48. ¶21 This Court analyzes substantive due process in the same fashion. Where a fundamental right is not implicated, “[s]ubstantive due process analysis requires a test of 13 the reasonableness of a statute in relation to the State’s power to enact legislation.” Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶ 33, 353 Mont. 265, 222 P.3d 566 (internal quotation marks omitted) (quoting Powell, ¶ 29). “Since the State cannot use its power to take an unreasonable, arbitrary or capricious action against an individual, a statute enacted by the legislature must be reasonably related to a permissible legislative objective in order to satisfy guarantees of substantive due process.” Satterlee, ¶ 33 (internal quotation marks omitted) (quoting Powell, ¶ 29). See Newville v. State Dep’t of Family Servs., 267 Mont. 237, 249, 883 P.2d 793, 800 (1994). We analyze substantive due process claims by examining (1) whether the legislation in question is related to a legitimate governmental concern, and (2) whether the means chosen by the Legislature to accomplish its objective are reasonably related to the result sought to be attained. Walters, ¶ 18. ¶22 In determining whether the statute’s objective is legitimate, we examine the legislation’s purpose, whether expressly stated or otherwise. Satterlee, ¶¶ 34, 37 (examining the purpose of worker’s compensation laws to determine whether they serve a permissible legislative objective); Goble v. Mont. State Fund, 2014 MT 99, ¶ 41, 374 Mont. 453, 325 P.3d 1211 (examining the stated policy provisions of the worker’s compensation system to determine whether it serves a legitimate governmental interest). The legislation’s purpose “does not have to appear on the face of the legislation or in the legislative history, but may be any possible purpose of which the court can conceive.” 14 Walters, ¶ 28 (internal quotation marks omitted) (quoting Satterlee, ¶ 34). See Kottel v. State, 2002 MT 278, ¶ 55, 312 Mont. 387, 60 P.3d 403. ¶23 In this case, we need not surmise possible purposes for the legislation because the Act makes explicit several purposes on its face. See Walters, ¶¶ 31-32; Goble, ¶ 41. Section 50-46-301, MCA, provides that the purposes of the Act are to: (a) provide legal protections to persons with debilitating medical conditions who engage in the use of marijuana to alleviate the symptoms of the debilitating medical condition; (b) allow for the limited cultivation, manufacture, delivery, and possession of marijuana as permitted by this part by persons who obtain registry identification cards; (c) allow individuals to assist a limited number of registered cardholders with the cultivation and manufacture of marijuana or marijuana-infused products; (d) establish reporting requirements for production of marijuana and marijuana-infused products and inspection requirements for premises; and (e) give local governments a role in establishing standards for the cultivation, manufacture, and use of marijuana that protect the public health, safety, and welfare of residents within their jurisdictions. Section 50-46-301(2), MCA. In addition, the legislative history demonstrates that the Act was enacted in response to the Legislature’s concern about a number of abuses that occurred following passage of the 2004 Act. As we noted in MCIA I, the 2011 Act was passed “in response to a drastic increase of caregivers and medical marijuana users.” MCIA I, ¶ 2. The goal of the Act, according to its sponsor, was “to repeal a system that is obviously broken, cleanse the system out, and then restore the laws of the State of Montana in a fashion that will recognize the intent of the Montana voters in 2004.” 15 Hearing on SB 423 Before the S. Jud. Comm. 62nd Leg. Reg. Sess. 07:46-08:01 (Mont. 2011). ¶24 Plaintiffs argue that they produced evidence proving the Legislature’s premises to be unfounded. They maintain that the District Court’s ruling correctly parsed the Act and struck down provisions that were shown not to be needed to address the Act’s legitimate objectives, while leaving intact other provisions that more effectively accomplished the Act’s purposes. Citing Brewer v. Ski-Lift, 234 Mont. 109, 115, 762 P.2d 226, 230 (1988), superseded by statute on other grounds as stated in Kopekin v. Moonlight Basin Mgmt., LLC, 981 F. Supp. 2d 936, 941 (Mont. 2013), Plaintiffs argue that the District Court properly enjoined provisions of the Act that are “needlessly overbroad and go far beyond the stated purposes of the statute.” ¶25 Brewer, however, says nothing about consideration of post-enactment evidence to prove a statute’s basis irrational. In concluding that the statute at issue in that case lacked a rational basis, this Court relied on the absence of reasons in the legislation to impose a strict assumption of risk standard on skiers in contradiction to state comparative negligence statutes that applied to other inherently dangerous activities. Brewer, 234 Mont. at 115, 762 P.2d at 230-31. We applied well-established principles of constitutional analysis: “‘The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose . . . .’” Brewer, 234 Mont. at 112, 762 P.2d at 229 (quoting Laurence H. Tribe, American Constitutional Law, 1440 (2d ed. 1988)). Likewise, Plaintiffs’ reliance on Conant v. Walters, 309 F.3d 16 629 (9th Cir. 2002), is misplaced because that case involved consideration of empirical evidence to support an injunction, not a facial challenge to the constitutionality of a statute. ¶26 As in Conant, the District Court properly considered the Plaintiffs’ evidence in the context of their motions for preliminary injunctive relief. Section 27-19-201, MCA; Citizens for Balanced Use v. Maurier, 2013 MT 166, ¶ 28, 370 Mont. 410, 303 P.3d 794 (noting that a district court must consider “the equities of all interests involved”). But in the context of the constitutional analysis of the Act, “[o]ur role is not to second guess the prudence of a legislative decision.” Satterlee, ¶ 34. As with all legislative compromises, the [Act] is not infallible and the legislative decisions made in adopting the [Act] are subject to honest debate. Nevertheless, once a statute has been duly approved by the legislative branch, this Court’s role is not one of second guessing the prudence of the conclusions reached. Satterlee, ¶ 37. Rational basis is the most deferential standard of review. See e.g., Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83, 108 S. Ct. 1645, 1653 (1988); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96 S. Ct. 2562, 2567 (1976). Under the due process clause, “the law need not be in every respect logically consistent with its aims to be constitutional.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88, 75 S. Ct. 461, 464 (1955). In light of the Act’s stated purposes, unless Plaintiffs establish that the statutes are unreasonable or arbitrary, the Legislature’s judgment should not be disturbed. Walters, ¶ 18. 17 ¶27 As we noted in Walters, it may be “easy to opine that the Legislature could have done better” in providing for available means of accessing treatment once it determined to authorize marijuana use for certain medical conditions; the law, however, “requires us to recognize that ‘such a debate involves issues and decisions about public policy that are clearly of the sort much better suited to the halls of the legislature.’” Walters, ¶ 33 (quoting Satterlee, ¶ 38). ¶28 We conclude that the Act’s purposes serve a legitimate state interest. The Legislature was highly cognizant of the fact that marijuana remains a Schedule I controlled substance, illegal for all purposes, under federal law. 21 U.S.C. §§ 812, 841, 845. The Legislature also took notice of the United States Attorney General’s direction to federal prosecutors that “[t]he prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs . . . .” Memorandum from David W. Ogden, Deputy Attorney General, U.S. Dep’t of Justice, to Selected United States Attorneys, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana 1 (Oct. 19, 2009). (hereafter “Ogden Memorandum”).4 The Attorney General issued a new directive in August 2013 that refined and stated more clearly the objectives of particular importance to the United States government. They include, among numerous others, “[p]reventing 4 Indeed, while the Act was under consideration, federal law enforcement agencies conducted raids on medical marijuana facilities in multiple Montana communities, and the United States commenced prosecution against numerous individuals involved in the operations. 18 revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; [and] [p]reventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity.” Memorandum from James M. Cole, Deputy Attorney General, U.S. Dep’t of Justice, to All United States Attorneys, Guidance Regarding Marijuana Enforcement, 1-2 (Aug. 29, 2013) (hereafter “Cole Memorandum”). While Plaintiffs emphasize that the Ogden and Cole Memoranda encourage federal prosecutors to decline prosecution of state-regulated marijuana dispensaries in most circumstances, “it’s Congress that passes the laws, Congress that saw fit to enact 21 U.S.C. § 841, and Congress that in § 841 made the distribution of marijuana a federal crime.” Feinberg v. Comm’r of Internal Revenue, 808 F.3d 813, 816 (10th Cir. 2015). As such, there is no basis for concluding that informal agency memoranda alter the U.S. government’s authority to enforce federal law. Moreover, “[t]here’s always the possibility, too, that the next (or even the current) Deputy Attorney General could displace th[o]se memoranda at anytime.” Feinberg, 808 F.3d at 816. After this case was argued, Plaintiffs called the Court’s attention to a recent Congressional Appropriations Act that prohibits the Justice Department from spending funds that would prevent states—including Montana—from implementing their own laws authorizing the use, distribution, possession, or cultivation of medical marijuana. Consolidated Appropriations Act, 2016, Pub. L. 114-113, § 542 Div. B, tit. V, 223 (2015). We take judicial notice of this action pursuant to M. R. Evid. 202(b). While the 19 measure does evince developing attitudes in Congress, the substantive criminal prohibitions in federal law remain intact. ¶29 The Legislature is presumed to be cognizant of guiding constitutional principles, under which federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. The Legislature sought to resolve prior abuses and to avoid entanglement with federal law while continuing to “provide legal protections” to qualified persons who engage in the medical use of marijuana, and to “allow individuals to assist a limited number” of qualified persons in obtaining marijuana or marijuana-infused products. Section 50-46-301(2)(a), (c), MCA. The careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative serves a legitimate state objective. ¶30 Having determined that the Act serves a legitimate objective, we proceed to consider whether the statutes are reasonably related to achieving that objective. Powell, ¶ 29. A statute that is unreasonable, arbitrary, or capricious and bears no reasonable relationship to a permissible government interest offends due process. Goble, ¶ 40. In contrast, a statute that is neither unreasonable nor arbitrary “when balanced against the purpose of the legislature in enacting the statute” does not offend due process. State v. Egdorf, 2003 MT 264, ¶ 19, 317 Mont. 436, 77 P.3d 517. This deferential standard demonstrates the Court’s recognition that we “have only the power to destroy, not to 20 reconstruct.” Stratemeyer v. Lincoln Cnty., 259 Mont. 147, 153, 855 P.2d 506, 510 (1993) (internal quotation and citation omitted). ¶31 In economic regulation cases, there are “good reasons for judicial self-restraint if not judicial deference to legislative judgment.” Stratemeyer, 259 Mont. at 152-53, 855 P.2d at 510 (internal quotation marks and citation omitted). “The legislature is simply in a better position to develop the direction of economic regulation . . . .” Stratemeyer, 259 Mont. at 153, 855 P.2d at 510. Because of this, we are “to assume that the Legislature was in a position and had the power to pass upon the wisdom of the enactment.” Rohlfs, ¶ 31. “[W]e cannot strike down [a statute] as a violation of substantive due process simply because we may not agree with the legislature’s policy decisions.” Satterlee, ¶ 34. “What a court may think as to the wisdom or expediency of the legislation is beside the question and does not go to the constitutionality of a statute.” Rohlfs, ¶ 31. Moreover, even if a court believes that statutes aimed at achieving the State’s interest could have been implemented “with greater precision,” those statutes likely still will withstand rational basis review because “rational distinctions may be made with substantially less than mathematical exactitude.” Ward v. Johnson, 2012 MT 96, ¶ 23, 365 Mont. 19, 277 P.3d 1216 (internal quotation marks omitted) (citing Burlington N. Ry. v. Ford, 504 U.S. 648, 653, 112 S. Ct. 2184, 2187 (1992) (quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2517 (1976))). ¶32 This restraint on judicial interference with legislative policy judgments has added significance here, because the Legislature took the unusual step in the Act of imposing 21 upon itself an obligation to continue examination of the issue and further consideration of changes in light of the evolving nature of the issue. Section 50-46-343, MCA, provides: [t]he children, families, health, and human services interim committee shall provide oversight of the department’s activities related to registering individuals pursuant to [the Act] and of issues related to the cultivation, manufacture, and use of marijuana . . . . The committee shall identify issues likely to require future legislative attention and develop legislation to present to the next regular session of the legislature. ¶33 We turn now to the application of the foregoing standards to the specific statutes at issue to determine whether they are “arbitrary or unreasonable,” or whether they instead are “rationally related to the recognized legitimate government objectives of the Act.” Walters, ¶ 34. ¶34 1. Whether the District Court erred in determining that the Act’s provision requiring the Department to notify the Board of Medical Examiners of any physician who certifies 25 or more patients in a year for medical marijuana (§ 50-46-303(10), MCA) fails rational basis review. ¶35 Under § 50-46-303(10)(a), MCA, the Department “shall provide the board of medical examiners with the name of any physician who provides written certification for 25 or more patients within a 12-month period. The board of medical examiners shall review the physician’s practices in order to determine whether the practices meet the standard of care.” Section 50-46-303(10)(b), MCA, requires that, “[t]he physician whose practices are under review shall pay the costs of the board’s review activities.” The District Court preliminarily enjoined these provisions on stipulation of the parties; the State withdrew from that stipulation following MCIA I. 22 ¶36 The District Court concluded that the 25-patient review trigger was not rationally related to the Act’s goals. The court relied in part on testimony from Ian Marquand, who appeared on behalf of the State Board of Medical Examiners. Marquand testified that there had been almost no reported problems with medical marijuana certifications following a standard of care directive issued by the Board in 2010 that disallowed certification exclusively by telemedicine. The court also relied on testimony from Roy Kemp, administrator of the Department’s medical marijuana registry program, who testified that “he knew of no rationale justifying the 25-patient limit.” Marquand’s and Kemp’s testimony, coupled with “the fact that this provision has never been in effect,” led the District Court to conclude that the 25-patient review trigger “is not rationally related—indeed not necessary at all—to the goals of the medical marijuana laws.” ¶37 The State argues that the District Court erred in its application of rational basis standards because it considered circumstances regarding the lack of problems with medical marijuana certifications following entry of the first preliminary injunction. The State contends that the court instead should have considered the “flagrant abuses” that were occurring in 2011, when the Legislature passed the Act. The State references testimony before a legislative conference committee to argue that the Legislature “realized that the abuse of the ‘chronic pain’ category was best controlled by increasing physician accountability.” The State also emphasizes the testimony of Dr. Stowers, one of the named plaintiffs, in the June 2011 preliminary injunction hearing. The State contends that Dr. Stowers acknowledged “serious problems with doctor 23 recommendations under the old law.” The State asserts that the 25-patient review trigger is rationally related to the Act’s goals because it creates a standard of care to ensure a bona fide physician-patient relationship and then “ensur[es] the standard is being followed by requiring review after a doctor certifies 25 or more patients in a year.” ¶38 We agree that the District Court incorrectly applied rational basis scrutiny to conclude that the 25-patient review trigger is not rationally related to the Act’s goals. The District Court based its conclusion on a finding that the 25-patient review trigger was “not necessary” to the goals of the medical marijuana laws. The question under rational basis review, however, is not whether the provision is necessary, but whether the provision is arbitrary or whether it has a “reasonable relation to some permitted end of governmental action . . . .” Powder River Cnty. v. State, 2002 MT 259, ¶ 79, 312 Mont. 198, 60 P.3d 357 (citations omitted). Although any limit the Legislature chooses may be attacked as an arbitrary number, we conclude that a 25-patient review trigger is not arbitrary in light of the statute’s objectives. The legislative history and testimony from the June 2011 preliminary injunction hearing show that there indeed were problems with over-certification under the 2004 Act. To address this problem, the Legislature created an objective standard of care for marijuana certification—set forth in § 50-46-302(2)(c), (18), MCA,—and the 25-patient review trigger. There is no arbitrary punishment for a doctor who certifies 25 or more patients because the Board of Medical Examiners is not required to suspend or otherwise take remedial action against the doctor under the statute. 24 Section 50-46-303(10)(a), MCA. Section 50-46-303(10)(a), MCA, requires only that the board review the doctor’s practices to determine whether they meet the standard of care. ¶39 While a 25-patient review trigger may or may not be the most effective way to prevent over-certification, it is beyond our purview to second-guess the “wisdom or expediency of the legislation.” Rohlfs, ¶ 31. And while there may not be precise statistical evidence that 25 patients is an ideal number to signal potential abuses, “rational distinctions may be made with substantially less than mathematical exactitude.” Ward, ¶ 23 (citations omitted). The review trigger also addresses the federal government’s expectation for “strong and effective regulatory and enforcement systems that will address the threat [that State marijuana laws] could pose to public safety, public health, and other law enforcement interests.” Cole Memorandum at 2. While a different scheme for preventing over-certification would have been permissible, the Legislature’s policy choice in this instance is not constitutionally invalid. See Ward, ¶ 24. ¶40 Finally, as noted above, the Legislature will continue to monitor its medical marijuana restrictions and recommend changes where circumstances warrant. Section 50-46-343, MCA. The 25-patient review trigger has never been in effect. Therefore, if the review provision turns out to be onerous or unworkable, the issue may be brought to the Legislature for consideration. ¶41 Because the 25-patient review trigger is rationally related to the legitimate state interest of carefully regulating the distribution of medical marijuana while allowing its limited use for people with debilitating medical conditions, we hold that the District 25 Court erred in determining that the 25-patient review trigger failed rational basis review. Accordingly, we vacate the District Court’s injunction against § 50-46-303(10), MCA, and uphold that provision of the Act. ¶42 2. Whether the District Court erred in determining that the Act’s commercial prohibitions (§§ 50-46-308(3), (4), (6)(a),(b), MCA) fail rational basis review. ¶43 The District Court enjoined several provisions of the Act that prohibit commercial trade in marijuana and marijuana products. The Act accomplishes its commercial restraint through two primary mechanisms: a three-patient limit for providers of marijuana products and a restriction against remuneration to providers. Section 50-46-308, MCA, provides: (3)(a)(i) A provider or marijuana-infused products provider may assist a maximum of three registered cardholders. (ii) A person who is registered as both a provider and a marijuana-infused products provider may assist no more than three registered cardholders. (b) If the provider or marijuana-infused products provider is a registered cardholder, the provider or marijuana-infused products provider may assist a maximum of two registered cardholders other than the provider or marijuana-infused products provider. (4) A provider or marijuana-infused products provider may accept reimbursement from a cardholder only for the provider’s application or renewal fee for a registry identification card issued under this section. . . . (6) A provider or marijuana-infused products provider may not: (a) accept anything of value, including monetary remuneration, for any services or products provided to a registered cardholder; (b) buy or sell mature marijuana plants, seedlings, cuttings, clones, usable marijuana, or marijuana-infused products. 26 Sections 50-46-308(3), (4), (6)(a), (b), MCA. The District Court analyzed the preceding sections as a whole, collectively referring to them as the “commercial provisions.” The court concluded that Plaintiffs met their initial burden by showing that the sections created distinct classes, and that the burden then shifted to the State to justify the distinction. The court found that one of the Act’s purposes is to “afford access to marijuana for persons with seriously debilitating conditions.” The court concluded that the commercial prohibitions “work in opposition to the goals of the statutes and the policy of the state” because the “compassionate purposes” of the statute are lost by the prohibition. According to the District Court, no provider “has come forward willing to invest the time, money, and labor to provide medical marijuana for free.” Therefore, the court concluded that the commercial prohibitions make it nearly impossible for people with the most serious debilitating conditions to get access to marijuana because the prohibitions essentially require them to grow their own marijuana—which they often are physically or financially unable to do. Based on these findings, the court held that there was no rational basis for the Act’s commercial prohibitions. ¶44 The District Court also addressed one of the State’s justifications for the commercial prohibitions—that marijuana is illegal under federal law. The court concluded that federal illegality cannot be a justification for the commercial prohibitions because the Act itself is “contrary” to federal law. To further support its conclusion, the court emphasized that the State had not provided evidence to show that certain abuses, prior to the Act’s passage, still existed. Based on this alleged lack of evidence, the court 27 concluded that the commercial prohibitions were irrelevant because “the medical marijuana laws, as enjoined . . . have accomplished their purpose.” ¶45 The State argues that the commercial prohibitions “easily pass” rational basis review for three reasons. First, the State claims that the court assumed an incorrect purpose for the Act because the explicit purpose of allowing “‘limited’ cultivation cannot be read to include affording commercial access—certainly not under rational basis review.” The State argues that the court inappropriately ruled on the “wisdom or expediency of the legislation” rather than providing the State the benefit of the doubt and assuming “any possible purpose” that may provide a legitimate interest. Second, the State claims that the District Court erred in refusing to consider federal illegality as a possible legitimate state interest for the commercial prohibitions. The State asserts that it has a legitimate interest in “lessening the conflict between a state law, its citizens, and federal law,” and that “taking the money out” of medical marijuana means that the federal government is less likely to get involved. Third, as discussed above, the State argues that the District Court erred by considering changed circumstances or the effects of the court’s preliminary injunctions. The State suggests that current circumstances support prohibition in any event because the growing number of cardholders evidences an increased potential for abuse. ¶46 Plaintiffs argue that the commercial prohibitions are an irrational response by the State to “perceived abuses.” According to Plaintiffs, “the State cannot, on the one hand, declare marijuana legally a medicine, but, on the other hand, arbitrarily discriminate as to 28 who may access it.” Plaintiffs contend that the State failed to provide “conceivable justifications” for the three-patient limit in its response to Plaintiffs’ Interrogatories. Plaintiffs respond to the State’s claimed justifications by arguing that: 1) selective scattered sound bites from legislative debates do not support rational basis because they are not authoritative and are “too general and not supported by evidence;” 2) according to Marquand’s testimony, there have been no problems with traveling caravans, doctor certification, and telemedicine since 2011; and 3) the federal ban is equivocal in that the State cannot definitively say whether there truly is a danger of federal prosecution because the U.S. Department of Justice, in the Ogden and Cole Memoranda, have “made it clear it will not interfere with the states as long as the states carefully monitor their laws.” ¶47 Our review of the commercial prohibitions focuses on whether they are rationally related to the State’s legitimate interest in carefully regulating access to an otherwise illegal substance for serious medical conditions. We analyze the three-patient limit separately from the remuneration restrictions. Three-Patient Limit: § 50-46-308(3), MCA ¶48 The three-patient limit is rational so long as it is not a capricious or arbitrary means of accomplishing the Act’s legitimate purpose. Powder River Cnty., ¶ 79. As noted previously, the Act was passed “in response to a drastic increase of caregivers and medical marijuana users.” MCIA I, ¶ 2. Because of this concern, one of the Act’s explicit purposes is to “allow individuals to assist a limited number of registered 29 cardholders with the cultivation and manufacture of marijuana or marijuana-infused products.” Section 50-46-301(c), MCA. ¶49 The Legislature determined that placing a limit on the number of registered cardholders a provider may assist serves the objectives of keeping marijuana away from large-scale manufacturing operations, making it less appealing to major traffickers. This relates directly to the federal government’s goals of preventing marijuana sales revenue from going to criminal enterprises and of keeping state-authorized marijuana activity from being used as a cover for other drug trafficking. Plaintiffs conceded during oral argument that, in light of these concerns, the State “probably could” set limits on the number of cardholders a provider could assist. The Legislature conceivably could have fixed a different number. But in the face of marijuana’s outright prohibition under federal law, and the U.S. government’s avowed intention to investigate and prosecute marijuana offenses where it finds “an important federal interest,” Cole Memorandum at 4, it is not irrational for the Legislature to put mechanisms in place to limit its commercial profitability. Whether a limit of just three patients is the best or the most effective means of achieving the State’s legitimate purpose is not for the Court to judge. Rohlfs, ¶ 31. Furthermore, it is outside our authority to opine on what number—if not three—would pass constitutional muster; “mathematical exactitude” is not required. Ward, ¶ 23 (citations omitted). Finally, the Legislature has committed itself to reviewing such matters if the three-patient limit proves unworkable. Section 50-46-343, MCA. 30 ¶50 Because the three-patient limit is reasonably related to the legitimate governmental concern of affording a means of treatment while avoiding large-scale commercial marijuana production, we hold that the District Court erred in concluding that the three-patient limit fails rational basis scrutiny. Walters, ¶ 18. Accordingly, we vacate the District Court’s injunction against § 50-46-308(3) MCA, and we uphold this subsection of the Act. Remuneration Restrictions: § 50-46-303(4), (6)(a), (b), MCA ¶51 In analyzing the remuneration restrictions for due process concerns we consider whether the restrictions bear a fair and substantial relation to the object of the legislation. Powell, ¶ 29. The State asserts that the purpose of the remuneration restrictions is to protect Montana from federal involvement by avoiding large-scale commercial marijuana operations. According to the State, the remuneration restrictions are rationally related to that goal. ¶52 Plaintiffs respond by pointing to Kemp’s testimony that if the three-patient limit and the remuneration restrictions were implemented, “that alone would completely disable it and invalidate the program.” While the initial choice to regulate is one for the legislative branch, Plaintiffs argue, “the Act’s attempt to prohibit all commercial traffic is completely out of proportion to any reasonable assessment of potential abuse.” ¶53 Legislative history indicates that the purpose of imposing restrictions against financial compensation of providers was to “keep the money out” of the marijuana business—presumably, to meet the federal government’s objectives of preventing 31 large-scale marijuana production operations that could serve as a front for other illegal drug trafficking and could funnel revenues to cartels, gangs, and criminal enterprises. While this is a legitimate objective, we must be able to ascertain a rational relationship between a complete prohibition against financial compensation and the objectives the Legislature sought to achieve. Walters, ¶ 18. We conclude that the remuneration restrictions fail this inquiry. ¶54 We first observe that the Act does not prohibit physicians from being compensated for their services or expenses when they examine a patient and provide written certification for the patient’s medical use of marijuana products. In addition, the State has not cited, and the Court has not found, any other service or product sanctioned by state law that the Legislature has mandated be provided for free. Although the State argues that the remuneration restrictions do effectively “keep the money out,” the restrictions are at odds with the Legislature’s stated purpose of allowing the limited possession and use of marijuana by persons with debilitating medical conditions in order to alleviate their symptoms. Section 50-46-301(2)(a), (b), MCA. More, the restriction is contrary to the purpose of keeping marijuana revenues out of the hands of criminals because it drives the business of medical marijuana to the black market. The Act allows marijuana to be used medically with approval by a physician. The complete prohibition against compensation is invidious because medical marijuana, even when approved by a physician, would have no commercially available source of supply. 32 ¶55 Finally, this provision also implicates equal protection concerns. See Evitts, 469 U.S. at 405, 105 S. Ct. at 841; Ross, 417 U.S. at 609, 94 S. Ct. at 2443 (recognizing that concerns of both clauses may be implicated in some cases and offer support for the Court’s conclusions). “A classification is not reasonable if it . . . ‘imposes peculiar disabilities upon [a] class of persons arbitrarily selected from a larger number of persons, all of whom stand in the same relation to privileges conferred or disabilities imposed.’” Kottel v. State, 2002 MT 278, ¶ 55, 312 Mont. 387, 60 P.3d 403 (quoting Leuthold v. Brandjord, 100 Mont. 96, 105, 47 P.2d 41, 45 (1935)). To withstand rational basis scrutiny, a legislative classification must rest upon a “real difference” and some reasonable consideration of difference or policy. Powder River Cnty., ¶ 79. As between all users of medical marijuana, the remuneration provision imposes a peculiar disability upon those unable to provide for themselves. To prohibit all compensation arbitrarily sets apart the patient who is unable to produce a medical marijuana product for her own use; this is not encompassed within any of the Act’s legitimate objectives and is not based on reasonable consideration of differences between people with debilitating medical conditions. ¶56 Accordingly, we conclude that the absolute prohibition against remuneration is not reasonable “when balanced against the purpose of the [L]egislature in enacting the [Act].” Egdorf, ¶ 19. We uphold the District Court’s permanent injunction against the remuneration restrictions, § 50-46-308(4), (6)(a), (b), MCA, and declare that those 33 provisions are invalid as violative of the equal protection and due process clauses of the Montana Constitution. ¶57 3. Whether the District Court erred in applying strict scrutiny review to the Act’s provision prohibiting advertising by providers of medical marijuana (§ 50-46-341, MCA), thereby concluding that the provision unconstitutionally infringes free speech. ¶58 Applying strict scrutiny, the District Court determined that the advertising prohibition violates the First Amendment. The court held that the provision restricts content-based speech because it “renders the ‘playing field’ for discussion of pros and cons of medical marijuana completely uneven.” Additionally, the District Court concluded that the advertising prohibition is “so vague and overbroad as to be meaningless as to what it prohibits,” because it leaves open the potential of banning political speech as well. The court also concluded that the statute is too narrow in that it limits only advertising by valid cardholders and because “[r]egulations which impose speech restrictions on one group are seldom upheld.” ¶59 The State asserts that this Court should apply basic rules of statutory construction to conclude that the statute unambiguously bars commercial speech only, thus affording it less protection. The State’s primary contention is that the District Court erred by applying strict scrutiny to the advertising ban when it should have applied the four-part commercial speech test set forth in Central Hudson Gas & Electric v. Public Service Commission of New York, 447 U.S. 557, 100 S. Ct. 2343 (1980). Citing City of Great Falls v. Morris, 2006 MT 93, ¶ 19, 332 Mont. 85, 134 P.3d 692, the State argues that the 34 court should have interpreted the statute narrowly in a way that avoids an unconstitutional interpretation. ¶60 Plaintiffs argue that the advertising ban is overbroad and implicates both political and educational speech. Plaintiffs therefore claim that the court was correct to apply strict scrutiny instead of rational basis. Plaintiffs further argue that the government failed to meet even a rational basis standard when it relied on an overly deferential interpretation of the standard and failed to provide a M. R. Civ. P. 30(b)(6) witness or other evidence to justify the ban. ¶61 The U.S. Supreme Court has defined commercial speech as an “expression related solely to the economic interests of the speaker and its audience.” Cent. Hudson, 447 U.S. at 561, 100 S. Ct. at 2349. This definition, together with our well-established rules of statutory interpretation, guides our determination of the speech that § 50-46-341, MCA, prohibits. ¶62 In construing a statute, we are “to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. “Statutory language must be construed according to its plain meaning and if the language is clear and unambiguous, no further interpretation is required.” In re Adoption of Snyder, 2000 MT 61, ¶ 14, 299 Mont. 40, 996 P.2d 875. “[W]e construe statutes narrowly to avoid an unconstitutional interpretation if possible.” Farrier v. Teachers Ret. Bd., 2005 MT 229, ¶ 13, 328 Mont. 375, 120 P.3d 390. 35 ¶63 Applying these rules of construction to § 50-46-341, MCA, we conclude that the advertising ban prohibits only commercial speech. The statute provides: Advertising prohibited. Persons with valid registry identification cards may not advertise marijuana or marijuana-related products in any medium, including electronic media. Section 50-46-341, MCA. Advertising is “[t]he action of drawing the public’s attention to something to promote its sale.” Black’s Law Dictionary 65 (Bryan A. Garner ed., 10th ed. 2014). A product is “[s]omething that is distributed commercially for use or consumption . . . .” Black’s Law Dictionary, supra, at 1402. These commonly-understood terms the statute employs are not subject to multiple interpretations. The plain language clearly and unambiguously establishes that the statute is aimed solely at expression relating to the commercial sale of marijuana or marijuana products for use or consumption. We would impermissibly “insert what has been omitted” to hold that the statute implicates political speech or speech pertaining to education or advocacy. Section 1-2-101, MCA. ¶64 “Commercial speech is accorded less constitutional protection than noncommercial speech.” Mont. Media, Inc. v. Flathead Cnty., 2003 MT 23, ¶ 30, 314 Mont. 121, 63 P.3d 1129 (citing Metromedia Inc. v. City of San Diego, 453 U.S. 490, 506, 101 S. Ct. 2882, 2891-92 (1981)). To determine the validity of a commercial speech restriction, we apply the factors set forth in Central Hudson, which do not call for strict scrutiny. Mont. Media, Inc., ¶ 31. The Central Hudson factors are: (1) the speech must concern lawful activity and not be misleading; (2) the asserted government interest must 36 be substantial; (3) the regulation must directly advance the governmental interest asserted; and (4) the regulation must not be more excessive than necessary to achieve its purpose. Cent. Hudson, 447 U.S. at 566, 100 S. Ct. at 2351. ¶65 Considering the first factor, it bears repeating that marijuana use or possession unequivocally is an unlawful activity under federal law. 21 U.S.C. §§ 812, 841, 845; MCIA I, ¶ 32. Federal law controls our First Amendment commercial speech analysis, U.S. Const. amend. I; Mont. Media, ¶ 31, and Plaintiffs rely exclusively on federal law in their argument on this issue. Congress has acted upon the subject of marijuana and made it illegal. That a person possesses or uses medical marijuana in compliance with the laws of his or her state of residence provides no defense under the federal law. Gonzales v. Raich, 545 U.S. 1, 29, 125 S. Ct. 2195, 2212-13 (2005). “[A]ny legislation of a State, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority.” Smith v. Ala., 124 U.S. 465, 437, 8 S. Ct. 564, 566 (1888); U.S. Const. art. I, § 8, cl. 3. While the states retain police power to establish and enforce laws protecting the welfare, safety, and health of the public, U.S. Const. amend. X, if Congress acts upon the same subject, “the laws of the States, in so far as they cover the same field, are superseded, for necessarily that which is not supreme must yield to that which is.” Second Emp’rs Liab. Cases, 223 U.S. 1, 55, 32 S. Ct. 169, 177 (1912) (citations omitted). 37 ¶66 Because federal law governs the analysis of this issue, we conclude that an activity that is not permitted by federal law—even if permitted by state law—is not a “lawful activity” within the meaning of Central Hudson’s first factor. As such, the advertisement of marijuana is not speech that concerns lawful activity. There is no First Amendment violation and our analysis under Central Hudson therefore ends here. ¶67 Section 50-46-341, MCA, limits only commercial speech. The District Court accordingly erred in applying strict scrutiny instead of the Central Hudson test. Section 50-46-341, MCA, does not satisfy the first factor under Central Hudson, and thus does not unconstitutionally infringe on First Amendment free speech rights. Accordingly, we vacate the District Court’s injunction against § 50-46-341, MCA, and uphold the statute. ¶68 4. Whether the District Court erred in determining that the Act’s provision prohibiting probationers from becoming registered cardholders for medical marijuana use (§ 50-46-307(4), MCA) withstands a facial challenge under rational basis scrutiny. ¶69 Section 50-46-307(4), MCA, prohibits probationers from becoming registered cardholders for medical marijuana: “A person may not be a registered cardholder if the person is in the custody of or under the supervision of the department of corrections or youth court.” Section 50-46-307(4), MCA. ¶70 The District Court upheld § 50-46-307(4), MCA, because it was “able to perceive a substantial rational basis for th[e] provision.” The court noted that probationers “routinely have several limitations on their activities and rights.” While the court agreed with Plaintiffs’ argument that criminal sentences should have a “nexus with the underlying offense,” the court ultimately concluded that determining such a nexus 38 requires case-by-case consideration, which “raises genuine issues of material fact beyond the ability of this Court to determine on a motion for summary judgment.” ¶71 The State defends the District Court’s ruling, suggesting that Plaintiffs must bring any challenge to § 50-46-307(4), MCA, as applied to a particular case, rather than as a facial challenge, because there are “clearly circumstances in which the prohibition is constitutional.” ¶72 Plaintiffs contend that the “blanket prohibition” on probationers receiving medical marijuana is facially invalid because “the law, on its face, classifies persons for different treatment.” Plaintiffs maintain that § 50-46-307(4), MCA, undermines the purpose of the Act—to provide access to medical marijuana for those with debilitating medical conditions. Plaintiffs point out that under State v. Ashby, 2008 MT 83, 342 Mont. 187, 179 P.3d 1164, a sentencing court may, on a case-by-case basis, impose reasonable conditions on sentences so long as the conditions have “a nexus” either to the offense or to the offender. Ashby, ¶ 15. This case-by-case analysis, Plaintiffs suggest, is impossible under the current statute because the ban prohibits medical marijuana in all cases for probationers. Plaintiffs argue that the “complete ban on probationers’ use” should be declared unconstitutional, and that a sentencing court should consider on a case-by-case basis whether to allow marijuana use by an offender serving a suspended or deferred sentence, just as sentencing courts consider other appropriate conditions based on the characteristics of the offender and of the offense committed. 39 ¶73 We agree with the District Court. As noted above, a facial challenge may succeed only if the challenger can establish that “no set of circumstances exists under which the [challenged legislation] would be valid.” Salerno, 481 U.S. at 745, 107 S. Ct. at 2100. That the challenged provision “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid . . . .” Salerno, 481 U.S. at 745, 107 S. Ct. at 2100. Although Plaintiffs mount a facial challenge to the ban on probationer use, they recognize that a sentencing court is authorized by law to impose reasonable conditions on a sentence that the sentencing judge “considers necessary to obtain the objectives of rehabilitation and the protection of the victim and society.” Section 46-18-202(1), MCA. Whether a condition or restriction of a sentence bears the requisite “nexus” to the offender or to the underlying offense is a question of compliance with sentencing statutes. Ashby, ¶¶ 13-15. If, in a particular case, a district court imposes a sentence prohibiting medical marijuana use but the required nexus is not satisfied, an offender may be able to bring a claim that, as applied to that offender and to his or her sentence, § 50-46-307(4), MCA, is unconstitutional. Plaintiffs acknowledge that a sentencing court would have discretion, in particular cases, to prohibit an offender from using or possessing medical marijuana. In light of this concession, Plaintiffs cannot argue that the ban on probationer use is invalid under any conceivable set of circumstances. As such, § 50-46-307(4), MCA, is not facially invalid. We affirm the District Court’s ruling upholding the provision prohibiting probationers from becoming registered cardholders for medical marijuana use. 40 ¶74 5. Whether the District Court erred in determining that the Act’s provision allowing warrantless inspections of medical marijuana providers’ businesses by the Department and law enforcement agencies (§ 50-46-329, MCA) comports with the U.S. and Montana Constitutions’ guarantees against unreasonable searches. ¶75 The Act allows law enforcement agencies to inspect a provider’s premises during normal business hours without a warrant. Section 50-46-329, MCA, provides: Inspection procedures. (1) The department and state or local law enforcement agencies may conduct unannounced inspections of registered premises. (2) (a) Each provider and marijuana-infused products provider shall keep a complete set of records necessary to show all transactions with registered cardholders. The records must be open for inspection by the department and state or local law enforcement agencies during normal business hours. (b) The department may require a provider or marijuana-infused products provider to furnish information that the department considers necessary for the proper administration of this part. (3) (a) A registered premises, including any places of storage, where marijuana is cultivated, manufactured, or stored is subject to entry by the department or state or local law enforcement agencies for the purpose of inspection or investigation during normal business hours. (b) If any part of the registered premises consists of a locked area, the provider or marijuana-infused products provider shall make the area available for inspection without delay upon request of the department or state or local law enforcement officials. (4) A provider or marijuana-infused products provider shall maintain records showing the names and registry identification numbers of registered cardholders to whom mature plants, seedlings, usable marijuana, or marijuana-infused products were transferred and the quantities transferred to each cardholder. ¶76 In upholding this provision, the District Court relied on New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987). In Burger, the U.S. Supreme Court established a rule that administrative or regulatory inspections of “closely regulated” industries can 41 constitute an exception to the warrant requirement even if the inspections are conducted by law enforcement officials to uncover and use evidence of criminal behavior. Burger, 482 U.S. at 703-11, 107 S. Ct. at 2646-48. The District Court concluded that the marijuana industry is a closely regulated industry. The court emphasized that “possession and use of marijuana remains a crime under federal law,” and that the “entire issue of marijuana use and possession generally has significant criminal overtones.” Moreover, the court concluded that § 50-46-329, MCA, “carefully defin[ed]” the premises subject to inspection, thereby avoiding concerns that inspections might be too broad or intrusive. ¶77 Plaintiffs contend that the court’s “lock-step adherence” to Burger is incorrect because 1) the search provisions relate to law enforcement functions rather than to administrative searches, and 2) Montana’s privacy rights are much stronger than those implicitly found under the United States Constitution. Relying on federal law, Plaintiffs argue that the authorization for warrantless inspections is unconstitutional because there are “no administrative regulations concerning specific neutral criteria governing warrantless searches under the Act.” According to Plaintiffs, the lack of a regulatory scheme makes it “abundantly clear that the so-called ‘inspection’ procedures of the Act are for the sole purpose of allowing law enforcement officers to develop evidence for enforcement of criminal laws.” Additionally, given Montana’s explicit privacy expectation, Plaintiffs argue that the State must have a compelling reason to invade someone’s privacy and that it has demonstrated none. Plaintiffs assert that the State 42 “failed to provide a meaningful answer and refused to produce a [M. R. Civ. P.] 30(b)(6) witness” when Plaintiffs questioned the inspections’ purposes in pre-trial discovery. ¶78 Plaintiffs’ argument that marijuana is not a heavily regulated industry in Montana because there are “no regulations . . . applying to growing operations or establishing inspection procedures for medical marijuana dispensaries” overlooks that the provision has been the subject of this litigation since its enactment. Thus, there has been no opportunity for its full implementation. Further, Plaintiffs acknowledge that marijuana is classified as a Schedule I drug—the most strictly regulated classification under the Controlled Substances Act. 21 U.S.C. § 812(c). “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.” Gonzales, 545 U.S. at 14, 125 S. Ct. at 2204. ¶79 Plaintiffs’ argument that the production of medical marijuana is not a closely regulated industry is in disaccord with their argument that many provisions of the Act are overly restrictive. By design, the Act distinguishes medical marijuana from other substances for which a prescription may be obtained and filled under an existing set of laws and regulations comprehensively controlling the sale and dispensing of lawful medications. Because marijuana cannot be prescribed within that regulatory framework, the Legislature imposed instead a series of restrictions to curb widespread distribution and to limit possession of the substance to individuals with debilitating medical conditions for whom there is little or no other effective treatment. Marijuana’s status as a 43 strictly prohibited drug under federal law required the Legislature to devise a substitute method of regulation. ¶80 Although Plaintiffs eschew “lock-step adherence” to federal law, they do not develop their argument that the result would be different under a Montana constitutional privacy analysis, except to fault the State for failing “to produce a 30(b)(6) witness” to establish a compelling state interest as required by Montana Constitution Article II, Section 10. Plaintiffs cite no authority that this determination requires an evidentiary foundation. ¶81 Rather, to determine what constitutes an unlawful intrusion by the government into one’s privacy, the Court considers the following factors: (1) whether the person has an actual expectation of privacy; (2) whether society is willing to recognize that expectation as objectively reasonable; and (3) the nature of the state’s intrusion. State v. Therriault, 2000 MT 286, ¶ 33, 302 Mont. 189, 14 P.3d 444. While individuals may have an actual expectation of privacy from warrantless searches, an expectation that a provider’s marijuana production and distribution facilities are entitled to the same privacy protections is not one that society is willing to recognize as objectively reasonable. Indeed, it is reasonable for owners of registered premises where marijuana—a uniquely regulated substance—is cultivated, manufactured, or stored to expect those premises to be subject to inspection during normal business hours to satisfy the State’s legitimate regulatory interests. 44 ¶82 Plaintiffs’ argument that the primary reason for the procedures under § 50-46-329, MCA, “is to allow for evidentiary searches for criminal enforcement purposes” is not only unsubstantiated, but also inappropriate for a facial challenge. Without any supporting evidence, Plaintiffs conclude that because Montana has no regulatory scheme regarding grow operations, “it is abundantly clear that the so-called ‘inspection’ procedures of the Act are for the sole purpose of allowing law enforcement officers to develop evidence for enforcement of criminal laws.” This conclusory assertion does not support a holding that the inspection procedures are facially invalid. Section 50-46-329, MCA, on its face addresses only the regulatory aspects of the medical marijuana industry, not the enforcement of criminal laws. If issues arise with a warrantless inspection against a particular facility, then it may be appropriate to challenge the statute “as applied” to that business. We conclude that Plaintiffs have failed to establish that “no set of circumstances exists under which the [challenged legislation] would be valid.” Salerno, 481 U.S. at 745, 107 S. Ct. at 2100. The District Court did not err in declining to enjoin § 50-46-329, MCA, and we affirm its ruling on this point. CONCLUSION ¶83 For the reasons stated above, the District Court’s judgment is affirmed in part and reversed in part. We vacate the District Court’s injunctions against the 25-patient physician review provision (§ 50-46-303(10), MCA), the three-patient limit (§ 50-46-308(3), MCA), and the advertising prohibition (§ 50-46-341, MCA), and uphold the constitutionality of those provisions; we declare the remuneration restrictions 45 (§ 50-46-308(4), (6)(a), (b), MCA), to be unconstitutional under the equal protection and due process clauses of the Montana Constitution and permanently enjoin the enforcement of those provisions; and we affirm the District Court in upholding the constitutional validity of the provision prohibiting probationers from becoming registered cardholders for medical marijuana use (§ 50-46-307(4), MCA), and the provision allowing warrantless inspections of medical marijuana providers’ businesses by the Department and law enforcement agencies (§ 50-46-329, MCA). /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ ROBERT G. OLSON District Court Judge Robert G. Olson sitting for Justice Patricia Cotter Justice Laurie McKinnon specially concurs and dissents. ¶84 The Court provides an exhaustive substantive due process analysis of the Act after “acknowledging the proverbial ‘elephant in the room,’” that “[m]arijuana is a Schedule I Controlled Substance under the federal Controlled Substances Act,” which criminalizes its cultivation and distribution. Opinion, ¶ 13. The Court correctly notes that the parties are not challenging the Act on the ground that it is preempted by federal law, Opinion, 46 ¶ 13, and that “one stated purpose of the Act is to ‘provide legal protections to persons with debilitating medical conditions who engage in the use of marijuana to alleviate the symptoms of the debilitating medical condition.’” Opinion, ¶ 18 (citation omitted and emphasis added). The Court nevertheless fails to remain focused on this purpose for the legislation—to provide legal protections. ¶85 The State, pursuant to its police powers, may define what is and is not a criminal offense under the laws of Montana, including what constitutes a defense or immunity to a state prosecution. The Court’s analysis is led astray by Plaintiff’s arguments that are incorrectly premised upon the purpose of the Act as being one of providing access to marijuana. Opinion, ¶ 29 (“The careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative serves a legitimate state objective.”). ¶86 Marijuana is a Schedule I controlled substance under § 50-32-222(4)(x), MCA. It is considered a dangerous drug under §§ 50-32-101(6), -202, MCA. Distribution includes selling, bartering, exchanging, giving away, or offering to sell, barter, exchange, or give away. Section 45-9-101(1), MCA. The Act “provides exceptions to the illegality of distribution and possession, establishing certain privileges for those in compliance with its provisions.” Med. Marijuana Grower’s Ass’n v. Corrigan, 2012 MT 146, ¶ 25, 365 Mont. 346, 281 P.3d 210 (emphasis added). ¶87 In enacting the Act, the Legislature sought to “provide legal protections to persons . . . who engage in the use of marijuana to alleviate the symptoms of [a] debilitating 47 medical condition.” Section 50-46-301(2)(a), MCA. The Legislature intended to “allow for the limited cultivation, manufacture, delivery, and possession of marijuana” and “allow individuals to assist a limited number of registered cardholders with the cultivation and manufacture of marijuana.” Section 50-46-301(2)(b-c), MCA. Amounts that a registered cardholder may possess are limited, § 50-46-319, MCA, and places of use are similarly restricted, § 50-46-320, MCA. The Act provides that an individual “may not be arrested, prosecuted, or penalized in any manner” solely because “the individual cultivates, manufactures, possesses or transports marijuana in the amounts allowed under this section; or the registered cardholder acquires or uses marijuana.” Section 50-46-319(2), MCA. As previously explained by this Court, “the legislature, in its exercise of the State’s police powers, decided that it would legalize the limited use of medicinal marijuana while maintaining a prohibition on the sale of medical marijuana.” MCIA I, ¶ 21. ¶88 States use their inherent police powers to create crimes and also defenses, exceptions, or immunities to those crimes. The “State of Montana has a police power by which it can regulate for the health and safety of its citizens.” Wiser v. State, 2006 MT 20, ¶ 19, 331 Mont. 28, 129 P.3d 133 (citing State v. Skurdal, 235 Mont. 291, 294, 767 P.2d 304, 306 (1988)). Certain statutory provisions create affirmative defenses, exceptions, or immunities to crimes which grant defendants a limited immunity from prosecution. See generally State v. Archambault, 2007 MT 26, 336 Mont. 6, 152 P.3d 698. For instance, justifiable use of force provisions, §§ 45-3-101 through -115, MCA, create an affirmative defense to actions that would otherwise constitute crimes. Human trafficking statutes provide another example of immunity and an affirmative 48 defense provided to a child who is a victim. Sections 45-5-709, -710, MCA. Further, by its terms, § 45-8-109(3), MCA, provides a variety of exceptions to a charge of civil disorder, including actions of a peace officer committed during performance of their duties; training in nonviolent civil disobedience techniques; lawful self-defense or defense of others or an activity intended to teach or practice self-defense or self-defense techniques; or training in safe firearm handling and use. Under § 45-6-203, MCA, a person qualified to appraise or audit property for property tax purposes, a person qualified to survey land to delineate boundaries, or a firewarden exercising their duty are excepted from prosecution for criminal trespass by §§ 15-7-139, 70-16- 111, and 76-13-116, MCA. Finally, under § 45-8-206(2)(a), MCA, it is a defense to the crime of public display or dissemination of obscene material to minors to have had reasonable cause to believe the minor was 18 years of age. ¶89 Given that marijuana is illegal and the State, in the exercise of its police powers, has carved out a “legal protection” to a state prosecution for violation of Montana’s controlled dangerous substance laws, I cannot agree that the statute creates any sort of classification of persons necessary for an equal protection challenge or any substantive right necessary for a substantive due process challenge. The Court states that the Act concerns “a group of persons who all suffer from a debilitating medical condition but are distinguished by the manner in which they may obtain relief. Some may be treated effectively with pharmaceutical drugs” and for others, “marijuana is the sole or most effective treatment.” Opinion, ¶ 17. However, the Act simply fails to make any of the distinctions between “groups” which the Court implicitly considers. The Act does not provide marijuana for one group of persons and withhold it from another group; it does 49 not distinguish based upon type of prescription medication; and it does not distinguish based upon who is able to grow marijuana. The Act does, however, provide a benefit or privilege—not a right—to those using marijuana for medical purposes and correspondingly defines, as the State may do, the parameters of a defense for violation of Montana’s controlled dangerous substance laws.1 ¶90 To prevail on an equal protection challenge, the plaintiff “must demonstrate that the law at issue discriminates by impermissibly classifying individuals and treating them differently on the basis of that classification.” Egdorf, ¶ 15 (citation omitted). A plaintiff must first show that the challenged law creates a classification between two classes which are otherwise similarly situated. Farrier, ¶ 15. If a plaintiff is unable to show that the challenged law creates such a classification among similarly situated individuals, the inquiry ends and the court need not apply rational basis review. See Powell, ¶ 22 (“If the classes at issue are not similarly situated, then the first criteria for proving an equal protection violation is not met and we need look no further.”). To the extent the Court finds that the Act creates two groups of persons who are “distinguished by the manner in which they may obtain relief,” I disagree. The Act provides limited “legal protections” to 1 Physicians do not “prescribe” marijuana under the Act, but instead provide a “written certification.” Section 50-46-310, MCA. Thus, medical marijuana is not a prescribed drug which, if the State prohibited all persons from using, might serve as a basis for a substantive due process challenge. The Court appears to imply medical marijuana is a prescribed drug, the prohibition of which implicates due process concerns. See Opinion, ¶ 18. 50 those who use marijuana for medical purposes; all other persons are using marijuana in violation of state law.2 ¶91 After correctly concluding that the Act “does not create two legitimate classes for an equal protection challenge,” Opinion, ¶ 18, the Court is led afield when it conducts an exhaustive substantive due process analysis. I disagree with the Court’s conclusion that Plaintiff’s challenges are appropriately analyzed under Montana’s due process clause. Opinion, ¶ 19. The Court separates the various provisions of the Act and asks itself whether a legal protection which benefits medical marijuana users, is either “arbitrary or unreasonable” or is “rationally related to the recognized legitimate government objectives of the Act.” Opinion, ¶ 33. ¶92 Both the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution provide that no person shall be deprived of life, liberty, or property without due process of law. “Substantive due process primarily examines the underlying substantive rights and remedies to determine whether restrictions . . . are unreasonable or arbitrary when balanced against the purpose of the legislature in enacting the statute.” Newville, 267 Mont. at 249, 883 P.2d at 800 (citation omitted); see also Egdorf, ¶ 19. The concept of substantive due process refers to “the ability of government to restrict the freedom of action (regarding life, liberty, or 2 The potential that some individuals who are eligible to use marijuana under the Act may not be able to grow marijuana themselves or locate a provider does not establish a class, as Plaintiffs argue, and is insufficient to prove an equal protection violation. Again, the purpose of the Act is to provide legal protections. The idea that some medical marijuana users who are unable to grow their own marijuana creates a class for purposes of an equal protection violation is akin to an argument that homeless people create a class because they are unable to raise a defense pursuant to Montana’s “castle doctrine,” § 45-3-103, MCA. 51 property) of all persons.” Rotunda & Nowak, supra § 15.4(a) at 823-24 (emphasis added). A substantive due process analysis must begin with a careful description of the asserted right, for the “doctrine of judicial self-restraint requires that we exercise the utmost care whenever we are asked to break new ground in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 1068 (1992). The United States Supreme Court has held that due process specially protects the right to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, to abortion, and to refuse unwanted lifesaving medical treatment. Wash. v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267 (1997) (citations omitted). ¶93 In explaining the nature of a substantive due process claim, the Supreme Court has: [A]lways been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court. Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267-68 (internal quotation marks and citations omitted). A “careful description of the asserted fundamental liberty interest” is required and a court must decide whether the asserted liberty interest, as described, is “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were 52 sacrificed.” Glucksberg, 521 U.S. at 720-21, 117 S. Ct. at 2268 (internal quotation marks and citations omitted). In Glucksberg, four physicians representing three anonymous, terminally-ill patients challenged a state law prohibiting assisted suicide. They argued that the patients had a fundamental right to choose medical treatment that included assistance in committing suicide. The Court rejected this argument, stating that, in previously holding that individuals have a fundamental “right to refuse unwanted medical treatment,” that holding could not “be somehow transmuted into a right to assistance in committing suicide.” Glucksberg, 521 U.S. at 725-26, 117 S. Ct. at 2270 (citation omitted). ¶94 Applying this analysis, many other courts have held that smoking, using, possessing, or manufacturing marijuana is not a substantive due process right. See Raich v. Gonzales, 500 F.3d 850, 864-66 (9th Cir. 2007) (holding that, where the plaintiff’s asserted fundamental right was “the right to use marijuana to preserve bodily integrity, avoid pain, and preserve her life,” that “federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering” because the alleged right was neither “fundamental” nor “implicit in the concept of ordered liberty”) (internal quotation marks and citations omitted); U.S. v. White Plume, 447 F.3d 1067, 1074-76 (8th Cir. 2006) (holding that there is no substantive due process right to farm hemp, which, like marijuana, contains tetrahydrocannabinol or THC); U.S. v. Maas, 551 F. Supp. 645, 647-48 (D.N.J. 1982) (“Smoking marijuana receives no explicit or implicit constitutional protection. The act of 53 smoking does not involve the important values inherent in questions concerning marriage, procreation, or child rearing. Moreover, its use predominantly as a ‘recreational drug’ undercuts any argument that its use is as important as, e.g., use of contraceptives”) (citations omitted); U S. v. Wash., 887 F. Supp. 2d 1077, 1102 (D. Mont. 2012). ¶95 We clearly stated in MCIA I, that Plaintiffs “cannot seriously contend that they have a fundamental right to medical marijuana when it is still unequivocally illegal under the [federal] Controlled Dangerous Substances Act.” MCIA I, ¶ 32 (citations omitted). Plaintiffs have no right or claim to “access” marijuana; rather the State has chosen to provide a benefit to those medical marijuana users who comply with the terms of the Act. It cannot reasonably be argued that there is a “substantive right” to possess a substance illegal under both federal and state law. ¶96 I thus disagree with the premise implicit in the Court’s approach—namely, that it is appropriate to conduct a substantive due process analysis of a “legal protection” allowed in a state criminal prosecution which has the purpose of providing a benefit or privilege—as compared to a deprivation—to medical marijuana users. These proceedings are not proceedings in which a defendant has attempted to mount a defense to a criminal prosecution by invoking the Act’s limited protections. Plaintiffs have alleged constitutional challenges premised on a right of access to marijuana. To the extent we have addressed these challenges with a far-reaching constitutional analysis— 54 inappropriate outside the context of a criminal proceeding invoking the protections of the Act—I am concerned that we have distorted our constitutional jurisprudence. ¶97 In particular, we find that the remuneration restriction violates the equal protection clause, after earlier concluding that an equal protection analysis is undeserved, without even identifying the two classes of persons we considered. We find that a patient who is unable to grow marijuana on her own is set apart. Opinion, ¶ 55. We conclude, without any analysis, that such a prohibition is not encompassed within the Act’s legitimate objectives. Opinion, ¶ 55. We cherry pick a provision from the Act that we find offensive and, not surprisingly, are completely unable to support it with an appropriate constitutional analysis. Such a policy preference for members of this Court is precisely the danger inherent in expanding substantive due process to an interest that is neither a substantive nor a fundamental right. ¶98 Marijuana is a controlled dangerous substance under federal and Montana law. The State, pursuant to its police powers, may define what is and is not a criminal offense under state law, including defining what constitutes a defense or immunity to a state prosecution. The Legislature, through the provisions of the 2011 Montana Marijuana Act, chose to carve out and define a defense to a state prosecution for marijuana possession. I would uphold all provisions of the Act as related to this exercise of police power. /S/ LAURIE McKINNON 55 Justice Jim Rice, dissenting. ¶99 I concur with the Court’s Opinion on all issues except for the remuneration provision, from which I dissent. In striking down the provision, the Court fails to properly implement the standards our precedent has imposed for due process review. ¶100 The sheer deference we pay to the legislature under reasonableness review could not be clearer under our precedent: “the purpose of the legislation does not have to appear on the face of the legislation or in the legislative history, but may be any possible purpose of which the court can conceive.” Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶ 34, 353 Mont. 265, 222 P.3d 566 (citing Stratemeyer v. Lincoln County, 259 Mont. 147, 152, 855 P.2d 506, 509-10 (1993)) (emphasis added). Despite this standard, the Court proceeds to test each provision of the Act not against any possible purpose, but against a single purpose to which it latches on and won’t let go. We have previously expressly rejected such an approach in the context of rational basis review, which the Court also employs to strike down the remuneration provision. Opinion, ¶ 55. See Stratemeyer, 259 Mont. at 151-52, 855 P.2d at 509-10 (holding lower court erred by reasoning “the legislature must provide” a rational basis and that a court “may not speculate” about the legislature’s purpose). We should reject this approach once again. When we have determined, as the Court here concedes, that “the legislation in question is related to a legitimate government concern,” then the inquiry is simply whether the means chosen by the Legislature to accomplish its objective “are reasonably related to the result sought to be obtained.” Walters v. Flathead Concrete Products, 2011 MT 45, ¶ 18, 56 359 Mont. 346, 249 P.3d 913 (citing Plumb v. Fourth Jud. Dist. Ct., 279 Mont. 363, 372, 927 P.2d 1011, 1016 (1996)). This inquiry is the embodiment of judicial restraint and deference. ¶101 Given that marijuana is illegal under federal law, and that the State’s interest may be “any possible purpose of which the court can conceive,” Satterlee, ¶ 34, it requires a particularly uncreative judge indeed to be unable to articulate a legitimate state interest that justifies the remuneration provision. Further, against this first backdrop of federal illegality, there is a second backdrop: the abuses of the drug and of the access provided to it under the I-148 initiative. In response to this chaos, which Plaintiffs acknowledge, the Legislature chose to decisively restrict, limit and constrain all aspects of marijuana availability, and to impose heavy regulation by passing the Act. While the Court ties itself to the generally stated purpose clauses of § 50-46-301, MCA—to which, as stated above, we are not bound—such as providing protections to those with debilitating medical conditions, it fails to acknowledge that the Act provided not one provision that expanded upon or liberalized access to the drug for anyone, as compared to the I-148 initiative. The Act, in its entirety, is a clear constriction of access in response to the abuses under prior law. The Legislature specifically sought to impose new, heavy regulations upon the illegal drug, particularly by “eliminating commercial access,” as the State’s brief states. This is a legitimate purpose, given the concerns created by commercial access to medical marijuana, such as the need to police, license, and tax commercial goods. The Legislature may well have believed that eliminating commercial 57 access alleviated these concerns, as it has with other home products. See § 16-3-201(2), MCA (exempting from regulation the manufacture of beer not intended for sale). ¶102 The Court counters that the remuneration provision will likely drive the business of medical marijuana back to the black market. Opinion, ¶ 54. Perhaps so, but the proper inquiry does not permit the Court to entertain such policy speculations, and, in fact, as properly applied, mandates the Court do just the opposite: speculation and presumption is required in favor of upholding the provision. See Davis v. Union Pacific R.R., 282 Mont. 233, 240, 937 P.2d 27, 31 (1997) (“[E]very possible presumption must be indulged in favor of the constitutionality of the legislative act.”). Employing such a presumption here, the remuneration provision certainly seems likely to eliminate commercial access and alleviate the State’s concerns for purposes of due process analysis, as well as justifying its enactment and differential treatment of the purported similarly situated classes under equal protection. ¶103 I would uphold all of the provisions of the Act. /S/ JIM RICE Justice Michael E Wheat, dissenting. ¶104 Except as to the Majority’s conclusion regarding the remuneration provisions, I respectfully dissent from the Majority’s decision in this case. 58 ¶105 At the outset, I note that I-148 was passed by a majority of Montana voters who clearly wanted medical marijuana to be made available for those who need it to treat medical conditions. This was and is the underlying purpose of the law. Shortcomings in the original law subsequently lead to abuses that required the Legislature to step in and impose restrictions to control the abuses. The real question in this case is whether the statutory restrictions went too far and impaired the rights of those who need medical marijuana by severely limiting or eliminating their access to a drug made medicinally legal under the Act. The answer is determined by how one views the underlying purpose of the Act: whether it is to provide “access” to a medicinal drug, or to provide “protection” to those engaged in the business (producers, distributors, and consumers), because marijuana remains federally illegal. So, which analytical lens one uses will determine the outcome. While I recognize a need for regulatory framework, I believe the State has gone too far in this case by creating a law that focuses so heavily on curbing the abuses of medicinal marijuana that it violates the rights of patients by so severely limiting or eliminating access to it, which ultimately destroys the law’s purpose. I disagree with the Majority on nearly every issue brought before this Court. I would affirm the District Court’s decision to enjoin certain provisions of the Act, but I would go further and also enjoin the prohibition of medical marijuana use by probationers and the warrantless search provisions. ¶106 It is noteworthy that the landscape of the law regarding medical and recreational use of marijuana has changed significantly since this case began. Currently, twenty-three 59 states and the District of Columbia have statutes that allow for the legal use of marijuana for medicinal purposes, and four western states have passed laws that allow for legal recreational use of the drug. Opinion, ¶ 13, n.2. I believe that many more changes are coming in this area of law based on society’s evolving understanding of marijuana, including its medical benefits. The 25-Patient Certification Limit on Physicians ¶107 The District Court found that the Board of Medical Examiners reported no problems with medical marijuana certifications throughout the pendency of this action, even though the certification-limit provision was never in effect. The court heard testimony from State officials who testified that no problems exist, and further the State lacked any rationale to justify the limit. Opinion, ¶ 36. The court also determined that the Board possesses the authority to discipline doctors who violate the standard of care, that the Board had already made changes to completely disallow certification “exclusively by telemedicine,” and thus the Board is fully capable of regulating physicians in the State. Opinion, ¶ 36. ¶108 I agree with the District Court’s conclusion that the evidence regarding the ability of the Board to self-regulate and the lack of the State’s rationale to justify a 25-patient limit demonstrates that the provision is unnecessary, and further it is arbitrary. Under rational basis review this provision must be reasonable, not arbitrary, and bear a fair and substantial relation to the object of the legislation. Powder River Cnty., ¶ 79. It is my belief that the object of medical marijuana legislation is to provide legal medicinal access 60 to marijuana. This government regulation reaches beyond a substantial relation to the object of the legislation and instead sets a number so arbitrarily low that the object is stymied. By definition, an arbitrary act is one that is made without consideration or regard for facts, circumstances, fixed rules, or procedures. Black’s Law Dictionary, supra, at 125. This limit fails to consider the fact that the Board already eliminated the telemedicine certification process, which essentially resolved the prior certification problems. This limit fails to consider the circumstance of the Board’s continued authority and ability to properly regulate and discipline doctors for violations of the standard of care in all avenues of medicine. Finally, there is no indication that the Legislature followed any procedure to determine a patient-certification number that would substantially relate to providing regulated access to medicinal marijuana. Instead, the Legislature chose an arbitrary number of 25 that is not reasonable when balanced against the purpose of the legislation. Egdorf, ¶ 19. I therefore conclude that this provision of the law fails rational basis review and I would affirm the District Court’s injunction of the 25-patient limit on physicians. Commercial Provisions ¶109 At the outset, I would decline to split the provisions as the Majority did because both types of commercial provisions, not just the remuneration provisions, serve to limit the access of medical marijuana to a distinct class of persons. Opinion, ¶ 47. The remuneration restrictions and the three-patient commercial limit both impose “‘peculiar disabilities upon [a] class of persons arbitrarily selected from a larger number of persons, 61 all of whom stand in the same relation to privileges conferred or disabilities imposed.’” Kottel, ¶ 55 (quoting Leuthold, 100 Mont. at 105, 47 P.2d at 45). The District Court determined that the effect of these provisions renders access to medical marijuana nearly impossible for people with the most debilitating conditions. I agree with the District Court that the commercial provisions create different classes of persons by imposing different burdens on those who can provide medical marijuana for themselves and those who must purchase it in the marketplace, which then fail rational basis review. I agree with the conclusion the Majority reaches in respect to the remuneration decision. Opinion, ¶¶ 53-56. However, as stated, I would choose to analyze both commercial provisions as one because I believe both restrictions implicate equal protection. ¶110 As written, the statutes create an absurd result where those with the most debilitating medical conditions will have no access to medical marijuana because they will not be able to grow it due to inability, cannot pay someone else to grow it, and will not likely be able to find someone else to do so under the advertising prohibitions. As the Majority notes, this class of persons will likely be forced into the black market to acquire marijuana, creating business for the criminal enterprise the State seeks to avoid under the Act. Opinion, ¶ 54. Here, I agree with the District Court that the statutes fail because as written “[a] statute which is directly contrary to its justification cannot be rationally related to that justification.” Because the commercial provisions fail to protect those persons with the most debilitating conditions, I would likewise enjoin these commercial provisions as they violate equal protection of the laws. 62 Advertising Ban ¶111 I disagree with the Majority’s application of the Central Hudson test. Opinion, ¶¶ 64-67. I would apply strict scrutiny because I agree with the District Court’s conclusion that § 341 of the Act “renders the ‘playing field’ for discussion of the pros and cons of medical marijuana completely uneven.” I am not convinced by the Majority’s attempt to limit the language of the Act to a plain-language analysis to establish a commercial-speech basis for allowing the provision. Opinion, ¶¶ 62-63. Instead, I find the language of the statute overbroad and vague. While the Majority reaches a narrow interpretation of the language, I believe it is just as straightforward to come to the opposite conclusion that broad restrictions on political and educational speech have occurred under this law. Article II, section 7 of the Montana Constitution states: “No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.” Because the language of § 341 creates content-based restrictions as written, it fails an examination under strict scrutiny, which is the standard that should be applied. I would affirm the District Court and enjoin § 341. Prohibition on Probationer Use ¶112 I would reverse the District Court’s determination that the prohibition on probationer use under § 50-46-307(4), MCA, is constitutional because the State has shown a rational basis for the provision. In my view, the law undermines the purpose of the Act because it clearly bars a class of persons from access to a legally-recognized 63 medicine: medical marijuana. Under the law, all sentences imposed by the district courts include a prohibition on medical marijuana use, which precludes the district court’s ability to apply a case-by-case “nexus” analysis under Ashby. As written, the effect of the prohibition is unconstitutional because the blanket ban violates equal protection of the laws, by classifying persons for different treatment, and it should be analyzed as such. I would enjoin this provision. Warrantless Searches ¶113 I would reverse the District Court and enjoin the provisions allowing warrantless searches under § 50-46-329, MCA, because these provisions provide carte blanche to State and local law enforcement. I would uphold Montana privacy rights and use this opportunity to strengthen our State’s privacy rights. The inspection procedures under the Act result in a constant threat to potential business owners that law enforcement can enter their premises and gather and develop evidence. I believe this provision will only create hostility and enhance the State’s view of medical marijuana as a criminal endeavor rather than a medicine available to those in need. Ultimately, the search provisions would be better served by providing for warrantless administrative inspections to be carried out only by a State agency with no direct involvement by local or State law enforcement. Conclusion ¶114 I agree with the Majority that the remuneration restrictions do not bear a fair and substantial relation to the object of the legislation, and furthermore the provisions violate the equal protection clause of the Montana Constitution. Opinion, ¶¶ 53-56. I disagree 64 with the Majority on all of the remaining issues in this case and believe the Majority has erred in its interpretation of the statutes. For the reasons stated above, I dissent. /S/ MICHAEL E WHEAT

February 25, 2016

fd7b8b9c-d6a6-468f-b319-31f86cd60d58

Cruson v. Missoula Electric Coopera

2016 MT 125N

DA 15-0330

Montana

Montana Supreme Court

DA 15-0330 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 125N JON G. CRUSON, Plaintiff and Appellee, v. MISSOULA ELECTRIC COOPERATIVE, INC., Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 13-645 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: David B. Cotner, Anna C. Conley, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana Edward “Rusty” Murphy, Murphy Law Offices, PLLC, Missoula, Montana For Appellee: David C. Berkoff, Berkoff Law Firm, P.C., Missoula, Montana Nate McConnell, McConnell Law Office, P.C., Missoula, Montana Submitted on Briefs: March 16, 2016 Decided: May 25, 2016 Filed: __________________________________________ Clerk May 25 2016 Case Number: DA 15-0330 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Missoula Electric Cooperative, Inc. (MEC) appeals from an order entered by the Fourth Judicial District Court, Missoula County, partially denying its motion for summary judgment on claims filed by Jon Cruson (Cruson). We reverse. ¶3 MEC employed Cruson as a master electrician from October 1, 2001, until May 20, 2013.1 Employing Cruson as its lone master electrician qualified MEC to receive an Unlimited Electrical Contractor’s License from the Montana State Electrical Board. Cruson is a member of the Local Union 44 of the International Brotherhood of Electrical Workers, which entered into a Collective Bargaining Agreement (CBA) with MEC. ¶4 Around 2009, Cruson began complaining to MEC’s general manager, Mark Hayden (Hayden), other management personnel, and MEC’s board of directors that unqualified employees were performing work that only an electrician could perform. 1 For additional factual background, see Cruson v. Missoula Elec. Coop., Inc., 2015 MT 309, 381 Mont. 304, 359 P.3d 98. 3 Cruson resigned from his position on or about May 19, 2013. Cruson initiated the grievance process on May 28, 2013, by submitting a written complaint to MEC alleging constructive discharge and retaliation for whistleblowing. Cruson’s grievance described the same facts that formulate the basis of the claims asserted in this action—that MEC allowed unqualified employees to conduct electrical work which created an unsafe working environment and put Cruson’s Master Electrician’s License at risk. Pursuant to the grievance procedure, on June 5, 2013, Cruson, representatives from his union, Hayden, and MEC’s attorney met to discuss settling the dispute, but failed to reach an agreement. On June 6, 2013, Cruson filed a complaint against MEC and a demand for a jury trial. On June 28, 2013, the union demanded arbitration of Cruson’s grievance. The parties scheduled binding arbitration proceedings to be held April 14-15, 2014. However, on March 10, 2014, before arbitration began, Cruson withdrew his grievance under the CBA and cancelled the scheduled arbitration hearing. ¶5 After resigning, Cruson filed four separate actions against MEC.2 Cruson’s June 6, 2013 complaint, included eleven counts: 1) Violation of Article II, Section 3 of the Montana Constitution; 2) Deceit; 3) Fraud; 4) Constructive Fraud and Misrepresentation; 5) Tortious Interference with Electrical License Requirements; 6) Constructive Discharge for Refusing to Violate Public Policy; 7) Retaliation for Refusing to Violate Public Policy; 8) Negligent Hiring, Training, and Supervision; 2 The record does not establish in what tribunals or forums the other three actions have been filed and they are not currently before us. 4 9) Negligent Infliction of Emotional Distress; 10) Intentional Infliction of Emotional Distress; and 11) Negligence Per Se. On June 25, 2014, MEC filed a motion for summary judgment on all claims. In its order, the District Court partially granted and partially denied MEC’s motion for summary judgment. The District Court did not rule specifically regarding each count.3 ¶6 The issue raised on appeal is whether the District Court erred by concluding Cruson’s claims relating to safety and licensing fell outside the scope of the parties’ CBA and were not subject to its mandatory arbitration provision. ¶7 We review an entry of summary judgment de novo and perform the same analysis as a district court pursuant to Rule 56 of the Montana Rules of Civil Procedure. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 36, 345 Mont. 12, 192 P.3d 186 (citation omitted). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). ¶8 In its motion for summary judgment and brief in support filed in the District Court, MEC argued that Cruson failed to complete the arbitration process required by the CBA and failed to exhaust his contractual remedies. This failure, MEC maintained, 3 On appeal, the parties dispute whether the language of the District Court’s order dismissed specific claims. However, because we conclude the CBA covers and preempts all of Cruson’s claims, we do not address which, if any, specific claims the District Court’s order may have dismissed. 5 waived Cruson’s right to pursue this lawsuit in District Court. On appeal, Cruson contends that a) the CBA does not govern his employment because he has a special relationship with MEC; b) MEC’s prior admission that the CBA does not cover Cruson’s claims bars MEC from now arguing that there is coverage; and c) Cruson’s claims are not covered or preempted by the CBA. We address each contention in turn. a. Special relationship ¶9 On appeal, Cruson first argues that a special relationship between himself and MEC distinguished his employment such that Cruson was not governed by the terms of the CBA. Cruson explains that this relationship is unlike MEC’s other employment relationships because Cruson acted as MEC’s lone master electrician. Cruson contends this special relationship allowed MEC to apply for and receive its Unlimited Electrical Contractor’s License. MEC responds that there was no special relationship that exempted Cruson’s employment from the terms of the CBA. ¶10 We agree with MEC. “We interpret the provisions of a [CBA] ‘according to the plain, ordinary language used by the parties.’” Klein, ¶ 20 (quoting Winchester v. Mountain Line, 1999 MT 134, ¶ 28, 294 Mont. 517, 982 P.2d 1024). Cruson was a member of the Local Union 44 of the International Brotherhood of Electrical Workers. That entity entered into the CBA with MEC, which governs the employment relationships between MEC and “all employees with job classifications that perform electrical maintenance and construction.” Cruson was employed by MEC as its master electrician to perform electrical maintenance and construction. As such, his employment 6 was governed by the CBA. Furthermore, Cruson implicitly appeared to recognize that his employment was governed by the CBA because he initially followed its grievance procedure, but did not complete it. Pursuant to the plain language of the CBA, grievances respecting Cruson’s employment were matters governed by the CBA. b. Prior admission ¶11 Next Cruson argues MEC is barred from asserting that the CBA covers Cruson’s claims because MEC already admitted the CBA does not cover his claims. Cruson refers to a letter written by Hayden and addressed to Cruson’s union as support for his assertion that MEC admitted the CBA does not cover his claims. That letter states, in part: “Mr. Cruson voluntarily quit his position with [MEC]. I do not believe that he has demonstrated a violation of the [CBA]. Therefore his grievance is denied.” “A judicial admission is an express waiver made to the court by a party or its counsel conceding for the purposes of trial the truth of an alleged fact.” Bilesky v. Shopko Stores Operating Co., LLC, 2014 MT 300, ¶ 12, 377 Mont. 58, 338 P.3d 76 (internal quotations and citation omitted). “There must be a statement made to the court” and “[s]tatements made outside the litigation proceedings are not made to the court, and thus cannot be judicial admissions.” Bilesky, ¶ 13 (citations omitted). This letter was sent pursuant to the grievance process, outside litigation proceedings before a court. Furthermore, contrary to Cruson’s assertion, this letter did not expressly concede that the CBA does not cover Cruson’s claims. Instead, it discusses MEC’s belief that the CBA was not violated. MEC did not admit the CBA lacked coverage over Cruson’s claims. 7 c. CBA coverage ¶12 Cruson contends that his claims fall outside the scope of the CBA because they are based on public policy and state licensing requirements. Cruson’s complaint contained eleven allegations stemming from his contention that MEC allowed unqualified employees to complete work only a licensed electrician is authorized to conduct. This, Cruson contends, placed his Master Electrician’s License in jeopardy and endangered the public at large. MEC counters that all of Cruson’s claims relate to safety and licensing and are expressly covered by the CBA. ¶13 “Only in those cases where it is certain that the arbitration clause contained in a [CBA] is not susceptible to an interpretation that covers the dispute is an employee entitled to sidestep the provisions of the [CBA].” Small v. McRae, 200 Mont. 497, 504, 651 P.2d 982, 986 (1982) (citation omitted). For example, in MacKay v. State, 2003 MT 274, 317 Mont. 467, 79 P.3d 236, nursing instructors at the Montana State College of Technology filed a complaint against their employer alleging failure to provide a safe working environment, constructive discharge, and other related claims. MacKay, ¶ 9. On appeal, this Court concluded the district court erred when it denied Montana State College of Technology’s motion for summary judgment. Summary judgment should have been granted because a CBA covered the parties’ employment relationship and governed workplace safety. We stated, “If the CBA covers the dispute . . . the CBA should be interpreted as requiring use of the grievance procedure.” MacKay, ¶ 24. Further, we specified that this Court consistently holds that “an employee covered by a 8 CBA that contains a grievance procedure must exhaust that remedy before bringing suit.” MacKay, ¶ 25 (citations omitted). “The purpose of the rule is to encourage arbitration of disputes, and to make the use of grievance procedures in union agreements attractive to both labor and management.” MacKay, ¶ 25. In MacKay, we determined that the CBA could be interpreted as offering coverage and, therefore, that the instructors must have exhausted their contractual remedies before filing suit. ¶14 Conversely, in Klein v. State, 2008 MT 189, 343 Mont. 520, 185 P.3d 986, we addressed whether an employee’s tort claims were covered by a CBA. There, the CBA stated, “the parties hereto agree that they will promptly attempt to adjust all disputes arising between them involving questions of interpretation or application of the terms and provisions of this Agreement.” Klein, ¶ 13. We concluded that Klein was not required to pursue her tort claims of deceit and negligent infliction of emotional distress through arbitration pursuant to the CBA because these claims did not involve “interpretation or application” of the CBA’s terms. Klein, ¶ 24. We stated, “the alleged actions of the [employer] are far afield of any employment action and have nothing to do with [] any of the rights, terms, or provisions enumerated in the CBA.” Klein, ¶ 26. In Klein, we determined that the plain language limited the CBA’s coverage to disputes interpreting or applying its terms and left Klein’s tort claims outside the scope of the parties’ agreement. ¶15 Here, the CBA covers “all employees with job classifications that perform electrical maintenance and construction.” Summarized, the CBA includes general provisions, grievance and arbitration procedures, guidelines for proper crew make-up to 9 ensure workplace safety, and working rules. The grievance and arbitration procedures direct employees who believe they have been aggrieved on any matter covered by the CBA to write a grievance stating the provision of the CBA allegedly violated and the relief they seek. After the written grievance is submitted, this provision directs the necessary parties to hold a conference to discuss the issues and agree on a remedy. According to these procedures, if the controversy is not resolved and either party demands arbitration, the parties proceed to arbitration. The working rules outline various classifications of workers, such as working foremen, servicemen, electricians, linemen, groundmen, and apprentices and specify crew make-up to perform work safely and productively. ¶16 Although Cruson states many claims in his complaint, all are derived from his assertion that MEC allowed unqualified employees to conduct work only an electrician is authorized to do. This, he argued, jeopardized his Master Electrician’s License because “[t]he responsible electrician of a licensed electrical contractor shall not allow any person to perform electrical work unless properly licensed.” Admin. R. M. 24.141.403(5). Upon examination of each count in Cruson’s complaint and the factual allegations offered as support, we conclude all of the claims arise from Cruson’s allegations related to electrical safety and licensing violations occurring while Cruson was employed with MEC. 10 ¶17 “When reviewing whether a claim is covered by the terms of a [CBA], the role of the court is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. If it is, then the aggrieved party must pursue and exhaust those remedies provided for in the [CBA].” Klein, ¶ 20 (internal quotations and citations omitted). The scope of a CBA may be negotiated to include arbitration of any controversy and “a broadly written arbitration provision requiring arbitration of ‘any controversy’ encompasses a tort claim of assault.” Edwards v. Cascade Cnty. Sheriff’s Dep’t, 2009 MT 451, ¶ 54, 354 Mont. 307, 223 P.3d 893 (citations omitted). “When the scope of a [CBA] is written more narrowly than ‘any controversy’ or ‘all claims,’ the contract wording must be reviewed to determine which claims are not rooted in the [CBA] and are capable of being litigated directly in court.” Edwards, ¶ 54 (citation omitted). Here, the grievance and arbitration procedure outlined in the CBA states, “Any employee or group of employees who believes that they have been aggrieved on any matter covered by this Agreement shall proceed as follows.” ¶18 We now compare the CBA terms to determine whether allegations related to electrical safety and licensing violations are covered by the CBA. Sections 11.02, 11.04, 11.07, 12.00, and 12.01 cover general safety in the workplace, providing for “proper crew make-up,” avoiding accidents, and MEC’s duty and authority to draft and enforce safety provisions. Sections 11.00, 11.01, 11.02, and 11.04 cover job classifications, work crew assignments, and generally regulate what class of employee can do specific types of work. Together, these provisions cover safety related issues and work assignments, 11 which Cruson alleges were inappropriately completed and jeopardized his Master Electrician’s License. Accordingly, whether interpreted as broadly written or narrowly written, the provisions of the CBA cover Cruson’s safety and licensing claims. ¶19 Our decision today comports with the decisions discussed above. Because our conclusion is that the plain language and interpretation of the CBA provides coverage for Cruson’s claims, he is not entitled to “sidestep” its provisions. The CBA allows a party to demand arbitration, § 5.01, and Cruson’s union did so on June 28, 2013. Cruson must have exhausted his contractual remedies under the CBA before filing this suit. The District Court erred by failing to grant MEC’s motion for summary judgment. ¶20 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no issues of first impression and does not establish new precedent or modify existing precedent. ¶21 The District Court’s order is reversed and remanded for entry of summary judgment in favor of MEC. /S/ LAURIE McKINNON We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE

May 25, 2016

d781644a-0115-4718-9983-aeeaac95e705

Jardine v. Schwartz

2016 MT 22

DA 15-0218

Montana

Montana Supreme Court

DA 15-0218 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 22 IN THE MATTER OF THE ADOPTION OF: A.M.S., M.A.S., and A.W.S, minor children, Petitioners and Appellees, v. W.S., Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DA 14-048 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: Wesley A. Schwartz, self-represented, Los Angeles, California For Appellees: Kevin T. Sweeney, Attorney at Law, Billings, Montana Submitted on Briefs: January 6, 2016 Decided: January 26, 2016 Filed: __________________________________________ Clerk January 26 2016 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 W.S. (Father) appeals from the orders of the Thirteenth Judicial District Court, Yellowstone County, terminating his parental rights to A.M.S., M.A.S., and A.W.S., and entering decrees of adoption in favor of C.J. (Grandfather). In accordance with M. R. App. P. 10(6), we have amended the caption to remove the full names of all involved parties. We restate the dispositive issues on appeal: 1. Whether Father was properly served by publication. 2. Whether the District Court erred in granting the petition for adoption and termination. ¶2 We reverse and remand for further proceedings. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Father and J.J. (Mother) are the biological parents of minor children, A.M.S., M.A.S., and A.W.S. Grandfather is the children’s maternal grandfather. Although the record on appeal is quite limited, it is undisputed that Father and Mother married in 2005 and divorced in 2013. Mother and Grandfather currently reside in Billings, Montana, and Father resides in Los Angeles, California. ¶4 On July 1, 2014, Mother and Grandfather filed a joint petition for termination of Father’s parental rights and for Grandfather to adopt the children. Under the petition, Mother would maintain her parental rights. The District Court issued a summons for Father on the same day the petition was filed. ¶5 After attempting to serve Father, whose exact whereabouts in Southern California were unknown at the time, Mother’s and Grandfather’s counsel submitted an affidavit on 3 October 14, 2014, stating that Father could not be found and requesting that the District Court order publication of summons. On October 15, 2014, the Clerk of Court entered an order directing that service of the summons be made upon Father by publication in the Billings Times newspaper. ¶6 Father did not respond to the summons. On December 12, 2014, Mother and Grandfather filed a motion for entry of default. The Clerk of Court entered default against Father three days later on December 15, 2014. ¶7 The District Court held a hearing on March 13, 2015. During the seven-minute hearing, Grandfather and Mother testified and submitted one exhibit. The exhibit included the following documents: a letter from Grandfather’s and Mother’s counsel to a California-based process server; a letter to Father at a Billings address regarding the proceedings; an e-mail to Father regarding the proceedings; and a number of pictures of Father from various social media sites. Father did not provide on appeal, and the record does not contain, a hearing transcript. At the close of the hearing, the District Court issued combined written orders terminating Father’s parental rights and granting decrees of adoption for each of the children.1 STANDARD OF REVIEW ¶8 We review a district court’s decision to terminate parental rights for an abuse of discretion. In re the Matter of the Termination of the Parental Rights and Adoption of: 1 We consolidated the three orders following Father’s appeal. Although we referred Father to determine eligibility for participation in the Court’s Appellate Pro Bono Program, at Father’s request he continues to be self-represented in this appeal. 4 J.W.M. & A.K.M., 2015 MT 231, ¶ 11, 380 Mont. 282, 354 P.3d 626. A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. J.W.M., ¶ 11. This Court reviews a district court’s interpretation and application of statutes for correctness, and its findings of fact to determine whether the findings are clearly erroneous. In re the Parenting of S.J.H. & J.B.H, 2014 MT 40, ¶ 8, 374 Mont. 31, 318 P.3d 1021. DISCUSSION ¶9 It is well established that parental rights are a fundamental liberty interest that “must be protected by fundamentally fair procedures.” In the Matter of K.J.B., 2014 MT 327, ¶ 18, 377 Mont. 270, 339 P.3d 824 (citing In re Adoption of A.W.S. & K.R.S., 2014 MT 322, ¶ 25, 377 Mont. 234, 339 P.3d 414); In re the Matter of J.N. & A.N., 1999 MT 64, ¶ 12, 293 Mont. 524, 977 P.2d 317. Accordingly, “a district court must adequately address each applicable statutory requirement before terminating an individual’s parental rights.” J.N., ¶ 12 (citing In re Declaring E.W., C.W., & A.W., 1998 MT 135, ¶ 12, 289 Mont. 190, 959 P.2d 951). Because an order terminating parental rights implicates a fundamental liberty interest, it must be supported by “clear and convincing evidence that the statutory criteria for termination have been met.” J.N., ¶ 12 (citing E.W., ¶ 12). ¶10 1. Whether Father was properly served by publication. ¶11 Title 42, MCA, governs the termination of parental rights when a child is the subject of an adoption proceeding. Sections 42-2-601 to -620, MCA. Under § 42-2-605(1), MCA, notice of a hearing on a petition for termination of parental rights 5 “must be served in any manner appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct . . . .” The notice must inform the individual whose rights will be terminated “that failure to appear at the hearing constitutes a waiver of the individual’s interest in custody of the child and will result in the court’s termination of the individual’s rights to the child.” Section 42-2-605(2), MCA. ¶12 Father argues that the clerk’s order for publication was improper and that service may not be made by publication in a proceeding to terminate parental rights. Mother and Grandfather respond that service by publication is proper under § 42-2-605(1), MCA. They further contend that they “followed both the letter and the spirit of this law.” ¶13 The Montana Rules of Civil Procedure authorize service by publication in four enumerated situations. M. R. Civ. P. 4(o)(1)(A)-(D). A parental rights termination proceeding is not one of the listed situations. Nevertheless, service by publication is permitted by statute in parental rights termination proceedings brought under both Title 41 and Title 42. Sections 41-3-428 and -429, MCA, authorize service by publication in child abuse and neglect cases and specify the requirements for service in those cases. Section 42-2-605(1), MCA, provides for service of a notice of hearing on a petition for termination of parental rights brought in conjunction with an adoption proceeding “in any manner appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct on . . . a person who is recorded on the child’s birth certificate as the child’s father; . . . or . . . a parent . . . of the child in question who has not waived notice.” We have observed that this statute allows a district court to order service by publication 6 even though that method of service is not otherwise allowed by M. R. Civ. P. 4(o). M.B.J. v. Fourth Judicial Dist. Ct., 2010 Mont. LEXIS 515, *8, No. OP 10-0345 Or. (Mont. Oct. 6, 2010) (granting petition for writ of supervisory control and directing district court to order service of putative father(s) by publication). ¶14 Because § 42-2-605(1), MCA, provides for alternate service “in any manner that the court may direct” (emphasis added), publication may not be ordered by the clerk in the manner provided by M. R. Civ. P. 4(o)(3)(B). Rather, the court must direct the manner of alternate service in order for it be sufficient under § 42-2-605(1), MCA. Here, the Clerk of Court, not the District Court, entered the order directing service by publication. Service therefore was improper. ¶15 Service by publication further was insufficient because the publication did not put Father on notice that his parental rights would be terminated as required by § 42-2-605(2), MCA. The affidavit of publication in the record contains a copy of the published notice: IN THE MATTER OF THE ADOPTION OF A.M.S. . . . THE STATE OF MONTANA SENDS GREETINGS TO RESPONDENT [FATHER]: You are hereby summoned to respond to the petition in this action which is filed in the office of the Clerk of this Court, a copy of which is herewith served upon you, and to file your response and serve a copy thereof upon the co-petitioners’ attorney within twenty-one (21) days after the service of this Summons, exclusive of the date of service; and in case of your failure to respond, judgment will be taken against you by default for the relief requested in the petition. 7 . . . Although the notice informed Father that if he did not respond “judgment [would] be taken against [him] by default for the relief requested in the petition,” it did not specify the relief requested. The notice therefore failed to inform Father “that failure to appear at the hearing constitutes a waiver of [his] interest in custody of the child and will result in the court’s termination of [his] rights to the child.” Section 42-2-605(2), MCA. ¶16 The District Court incorrectly applied the statutes governing service of the petition and notice of the hearing on Father. We conclude that Father was not properly served by publication. ¶17 2. Whether the District Court erred in granting the petition for adoption and termination. ¶18 Although our holding on Issue 1 requires reversal of the District Court’s orders and decrees, we address Father’s legal challenges to the termination and adoption in the event that service is perfected on remand. ¶19 Father relies on K.J.B. to assert that Mother and Grandfather were not permitted to bring the petition to terminate and adopt “in the first instance.” He argues that Grandfather and Mother are not parties who may bring a petition for termination under § 42-2-603(2), MCA, and that Grandfather is not a stepparent who may bring a petition for termination of parental rights in conjunction with a petition for adoption. Father therefore contends that the District Court lacked authority to terminate his parental rights. 8 ¶20 K.J.B. does not support Father’s argument in this case. In K.J.B., the mother sought termination of the father’s parental rights, but the parties’ child was not the subject of an adoption proceeding. K.J.B., ¶¶ 3, 14. We therefore concluded that the mother could not bring the petition because a petition for termination of parental rights “under Title 42 may be filed only if the child is the subject of an adoption proceeding.” K.J.B., ¶ 14 (citing § 42-2-607(2), MCA). Here, the children are the subject of an adoption proceeding. ¶21 Under Title 42, “[a]n adoption decree may not be entered if the child who is the subject of an adoption proceeding is not legally free for adoption.” Section 42-1-107(1), MCA. Section 42-2-602(1), MCA, provides that “a child is not legally free for adoption until the parental rights of the birth parent or parents have been terminated by a court: (1) as provided in this title . . . .” Mother and Grandfather joined a petition for termination of parental rights with a petition for adoption—a procedure that Title 42 authorizes for stepparent adoptions. Section 42-4-302(3), MCA (providing that “[a] petition for adoption by a stepparent may be joined with a petition for termination of parental rights”); § 42-4-310, MCA (providing in pertinent part that “[a] stepparent who desires to adopt a stepchild shall obtain an order of termination of parental rights of the child’s noncustodial parent prior to or contemporaneously with the petition to adopt. . . .” (emphasis added)). See J.W.M. (reviewing a petition for termination and adoption brought by mother and stepfather); In re the Adoption of K.P.M., 2009 MT 31, ¶ 45, 349 Mont. 170, 201 P.3d 833 (Nelson, J., dissenting) (observing that “a stepparent may join 9 [his or her] petition for adoption with the natural parent’s petition for termination of parental rights”). If the petitions are joined, both the required contents for a termination of parental rights petition under § 42-2-604, MCA, and the required contents for an adoption petition under § 42-5-101, MCA, must be included. Furthermore, a petition for adoption and a petition for termination may be brought only by the proper parties. Sections 42-2-603(2) and 42-1-106, MCA. ¶22 Section 42-2-603(2), MCA, provides that a petition for termination of parental rights may be filed by “a guardian with custody of the child . . . .” Although these terms are not defined in Title 42, we find it appropriate to consult other provisions of the Montana Code to ascertain their meaning. When a word is defined in any part of the MCA, the same definition applies “wherever it occurs, except where a contrary intention plainly appears.” Section 1-2-107, MCA. See In re the Matter of the Conservatorship of Minor Children, J.S., K.S., & R.S., 2015 MT 335, ¶¶ 14-15, 381 Mont. 462, ___ P.3d ___ (applying statute in Title 40, MCA, to ascertain duties of guardian ad litem under § 25-5-301, MCA). “Guardian” is defined in Title 41 as “an adult: (a) who is responsible for a youth and has the reciprocal rights, duties, and responsibilities with the youth; and (b) whose status is created and defined by law.” Section 41-5-103(21), MCA. See also Black’s Law Dictionary, 822 (Bryan A. Garner ed., 10th ed. 2014) (defining “guardian” as “[s]omeone who has the legal authority and duty to care for another’s person or property, esp. because of the other’s infancy, incapacity, or disability”). Title 40 defines the “parent and child relationship” as “the legal relationship existing between a child and 10 the child’s natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” Section 40-6-102(2), MCA. Parental authority over a child ceases upon a court’s appointment of a guardian or when the child marries or attains majority. Section 40-6-234, MCA. A parent’s legal rights, powers, and obligations also are divested by a decree terminating the parent-child legal relationship. Section 41-3-611, MCA. “Physical custody” is “the physical care and supervision of a child.” Section 40-7-103(14), MCA. ¶23 As the children’s natural mother who undisputedly has physical custody of the three children, Mother is a “guardian with custody of the child[ren]” within the meaning of § 42-2-603(2), MCA. She has standing to bring a petition for termination, provided that the children are the subject of a proper adoption proceeding.2 ¶24 Section 42-1-106, MCA, provides that the following individuals have standing to adopt a child if they otherwise meet the requirements of Title 42: (1) a husband and wife jointly or either the husband or wife if the other spouse is a parent of the child; (2) an unmarried individual who is at least 18 years of age; or 2 In K.P.M. we concluded that a stepparent had standing to petition for termination of the non-custodial parent’s rights. K.P.M., ¶ 14. In that case, the stepparent’s petition initially sought only adoption but later was amended to include a petition for termination. K.P.M., ¶ 7. The custodial natural parent was not named as a party. Because we conclude that Mother has standing to seek termination of Father’s rights in this proceeding, we do not address whether Grandfather independently would have standing to petition for termination. 11 (3) a married individual at least 18 years of age who is legally separated from the other spouse or whose spouse has judicially been declared incompetent. Because Mother is not relinquishing her children for adoption but seeking their adoption under the stepparent adoption procedures, the requirements of Title 42 “otherwise” applicable in this case are those contained in Title 42, chapter 4, part 3, MCA. ¶25 Under our case law, a “stepparent” is normally “someone who is married to a child’s biological parent.” In the Matter of J.B., 2015 MT 342, ¶ 19, 381 Mont. 525, ___ P.3d ___ (citations omitted). Section 42-4-302(2), MCA, however, provides that “[f]or good cause shown, a court may allow an individual who is not the stepparent but who has the consent of the custodial parent of a child to file a petition for adoption.” Such a petition “must be treated as if the petitioner were a stepparent.” Section 42-4-302(2), MCA. In that case, the petition for adoption “may be joined with a petition for termination of parental rights.” Section 42-4-302(3), MCA. The District Court made no findings of fact on Grandfather’s standing under either § 42-1-106 or § 42-4-302(2), MCA. ¶26 On remand, and if service is effected properly on Father, the District Court may allow the petition to proceed if it first determines that there is “good cause” for Grandfather to be treated as a “stepparent” under § 42-4-302(2), MCA, and that he meets the qualifications set forth in § 42-1-106, MCA. If the court so finds, it then may move forward with proceedings on the termination of Father’s parental rights in accordance with § 42-4-310, MCA, “prior to or contemporaneously with the petition to adopt.” 12 CONCLUSION ¶27 We reverse the District Court’s order terminating Father’s parental rights and remand for further proceedings consistent with this opinion. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE

January 26, 2016

ed5496d9-760a-46b7-8428-4898e29c3829

Shockley v. Cascade County

2016 MT 34

DA 15-0361

Montana

Montana Supreme Court

DA 15-0361 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 34 J.G. SHOCKLEY, Petitioner and Appellant, v. CASCADE COUNTY, JASON CARROLL, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 2, Respondents and Appellees. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DV-10-534C Honorable Kenneth R. Neill, Presiding Judge COUNSEL OF RECORD: For Appellant: Peter Michael Meloy, Attorney at Law, Helena, Montana For Appellee: D. Patrick McKittrick, Timothy J. McKittrick, Attorneys at Law, Great Falls, Montana Carey Ann Shannon, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: January 6, 2016 Decided: February 16, 2016 Filed: __________________________________________ Clerk February 16 2016 Case Number: DA 15-0361 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Following a successful petition under Article II, section 9 of the Montana Constitution for disclosure of certain documents, J.G. Shockley (Shockley) filed a motion for attorney fees and costs under § 2-3-221, MCA. The District Court granted Shockley his costs but denied his request for attorney fees. Shockley appeals the denial of his motion for an award of attorney fees, and requests that this Court impose upon district courts clear guidelines for denying motions for attorney fees in right to know cases. We decline to articulate such guidelines, and we affirm the District Court. ISSUE ¶2 We address the following issue on appeal: Did the District Court abuse its discretion by declining to award Shockley attorney fees under § 2-3-221, MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶3 This is the second time this matter has come before us. In Shockley v. Cascade County (Shockley I), 2014 MT 281, 376 Mont. 493, 336 P.3d 375, we held that Shockley had standing under Article II, section 9 of the Montana Constitution to assert a claim against Cascade County for disclosure of certain documents. Shockley was seeking disclosure of a settlement agreement entered into by Jason Carroll (Carroll), a Cascade County detention officer, Carroll’s employer, Cascade County (the County), and Carroll’s collective bargaining unit, the International Brotherhood of Teamsters, Local 2 (the Union). Shockley I, ¶ 3. Early in the litigation, the County admitted it had no 3 objection to disclosure of the settlement agreement. Then on July 25, 2013, the District Court entered Carroll’s default. From July 2013 onward, the only barrier to disclosure of the settlement agreement was the resistance of the Union. In opposing disclosure, the Union relied on the confidentiality provision of the settlement agreement, to which it was a party. ¶4 Following our decision in Shockley I, the District Court balanced the public’s right to know against the individual privacy interests at stake, granted Shockley’s motion, and ordered the County to disclose the settlement agreement. As the prevailing party, Shockley then filed a motion under § 2-3-221, MCA, for an award of costs and attorney fees. In his motion for fees, Shockley requested only the fees incurred after Carroll’s default was entered and the County conceded that it had no objection to release of the settlement agreement. Thus, his fee request was directed solely against the Union. The Union opposed Shockley’s motion. The District Court awarded Shockley his costs but denied his request for attorney fees. Shockley appeals the denial of his request for attorney fees. STANDARD OF REVIEW ¶5 We review for abuse of discretion a district court’s decision to award or deny attorney fees. Billings High Sch. Dist. No. 2 v. Billings Gazette, 2006 MT 329, ¶ 23, 335 Mont. 94, 149 P.3d 565 (citing Pengra v. State, 2000 MT 291, ¶¶ 24, 27, 302 Mont. 276, 14 P.3d 499). 4 DISCUSSION ¶6 Did the District Court abuse its discretion by declining to award Shockley attorney fees under § 2-3-221, MCA? ¶7 After successfully petitioning under Article II, section 9 for disclosure of the settlement agreement, Shockley sought an award of attorney costs and fees under § 2-3-221, MCA. Section 2-3-221, MCA, provides that “[a] person alleging a deprivation of rights who prevails in an action brought in district court to enforce the person’s rights under Article II, section 9, of the Montana constitution may be awarded costs and reasonable attorney fees.” An award of attorney fees for prevailing parties in suits brought under Article II, section 9 is discretionary. Yellowstone Cnty. v. Billings Gazette, 2006 MT 218, ¶ 30, 333 Mont. 390, 143 P.3d 135. ¶8 Although we have declined to articulate firm guidelines for a district court’s denial of a request for attorney fees under § 2-3-221, MCA, “it is well-established that outright denial of a motion for attorney fees without rationale, is ‘not an exercise of discretion, but is an abuse of that discretion.’” Yellowstone Cnty., ¶ 30 (citing Matter of Investigative Records, 265 Mont. 379, 383, 877 P.2d 470, 472 (1994)). In his brief in support of his motion for attorney fees, Shockley contended that a defendant’s acting reasonably and in good faith has not been held to be a sufficient defense to a request for attorney fees and costs in right to know cases. See e.g. Bozeman Daily Chronicle v. City of Bozeman Police Dep’t, 260 Mont. 218, 232, 859 P.2d 435, 443-44 (1993); The Associated Press v. Board of Pub. Educ., 246 Mont. 386, 393, 804 P.2d 376, 380 (1991). Nevertheless, the District Court determined that “the unique procedural history of this case takes this 5 matter beyond mere reasonableness and good faith on the part of the Union.” The District Court granted Shockley his costs but denied his request for attorney fees, on the grounds that the “extraordinary development of case law evolving as the case was in progress [makes it] hard to find any justice in assessing attorney’s fees against the Union.” ¶9 We decline to reach the question of whether the District Court’s rationale for denying fees satisfies abuse of discretion review. Instead, we conclude that an award of attorney fees under any rationale is inappropriate in this case because the sole entity from which such fees are sought—the Union—is not a public or governmental body. As we have said before, “[w]e will affirm a district court decision if the right result was reached, though for the wrong reason, and we do so here.” Hinebauch v. McRae, 2011 MT 270, ¶ 25, 362 Mont. 358, 264 P.3d 1098 (citing Wells Fargo Bank v. Talmage, 2007 MT 45, ¶ 23, 336 Mont. 125, 152 P.3d 1275). ¶10 Article II, section 9 of the Montana Constitution, entitled “Right to know,” ensures that “[n]o person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” Review of a claim brought under the right to know is a three-step process. First, we consider whether the provision applies to the particular political subdivision against whom enforcement is sought. Second, we determine whether the documents in question are “documents of public bodies” subject to public inspection. Finally, if the first two requirements are satisfied, we decide whether a privacy interest is present, and if so, whether 6 the demand of individual privacy clearly exceeds the merits of public disclosure. Becky v. Butte-Silver Bow Sch. Dist. No. 1, 274 Mont. 131, 136, 906 P.2d 193, 196 (1995). The District Court conducted this analysis in determining whether to grant Shockley’s petition for disclosure of the settlement agreement. But the requirements are also relevant to a determination of whether to award attorney fees to a party who prevailed in a right to know action. ¶11 We have in the past affirmed a district court’s denial of a motion for attorney fees when the party that objected to disclosure on privacy grounds was not a public body. In Pengra v. State, 2000 MT 291, 302 Mont. 276, 14 P.3d 499, we concluded that the district court did not abuse its discretion when it declined the petitioner’s request for attorney fees, and we noted that “[t]he State has not asserted a right of privacy-that right has instead been asserted in this case by Pengra, a private party.” Pengra, ¶ 26. As in Pengra, the party in this case asserting a right to privacy and against whom attorney fees are being sought is not a public or governmental body. Rather, that party, the Union, is a private collective bargaining group. As a private entity, the Union is not subject to Article II, section 9 of the Montana Constitution. Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2, 2002 MT 264, ¶ 25, 312 Mont. 257, 60 P.3d 381 (explaining that Article II, section 9 applies to public bodies and governmental agencies and that a “public or governmental body” is “a group of individuals organized for a governmental or public purpose.”). For this reason the District Court did not abuse its discretion in denying Shockley’s motion for attorney fees. 7 ¶12 On a final note, we acknowledge we are resolving this case on grounds not addressed by the parties on appeal. Although we generally do not address issues not raised by the parties, Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 15, 340 Mont. 217, 172 P.3d 1273 (citing In re Parenting of D.A.H., 2005 MT 68, ¶ 7, 326 Mont. 296, 109 P.3d 247), we have done so out of necessity before, see e.g. State v. Dickinson, 2008 MT 159, ¶¶ 20-24, 343 Mont. 301, 184 P.3d 305 (determining “that the question of whether items would have been inevitably discovered pursuant to execution of a valid search warrant is one we can answer sua sponte”); Pinnow, ¶¶ 15-17 (determining sua sponte whether a district court judge “had authority to assume jurisdiction over this case”); Knowlton v. Knowlton, 193 Mont. 448, 450, 632 P.2d 336, 337 (1981) (sua sponte setting aside an order granting a modification of custody because “the parties and the trial court failed to abide by” an applicable statute). We do so here because the parties and the District Court failed to acknowledge that right to know fees are recoverable under § 2-3-221, MCA, only when the prevailing party is successful in enforcing his rights under Article II, section 9 of the Montana Constitution, and only against a public body or governmental agency. Were we to resolve this case premised on the rationale adopted by the District Court, our Opinion would by implication suggest that under other circumstances, right to know fees could be recovered against a non-public or non-governmental entity. It is important for purposes of this and future cases to clearly announce that this is not permitted under the law. 8 CONCLUSION ¶13 For the foregoing reasons, we affirm the District Court’s May 13, 2015 Order granting Shockley’s motion for costs but denying his motion for attorney fees. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE

February 16, 2016

41488f52-ea66-46dc-b8c7-dac73e2c95fa

KARTES v KARTES

N/A

13299, 13757

Montana

Montana Supreme Court

No. 13757 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THEODORE C. KARTES, Plaintiff and Respondent, DOROTHY A. KARTES, and EMILY J. KARTES, Defendants and Appellants. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Landoe, Gary and Planalp, Bozeman, Montana Hjalmar B . Landoe argued, Bozeman, Montana Gordon Carlson argued, Roseburg, Oregon For Respondent: Larry W. Moran argued, Bozeman, Montana ( . ' I Filed: - Submitted: September 22, 1977 Decided : Ccc 30 r a g 'w6 j Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This case involves an intra-family dispute regarding the ownership of real property located in Gallatin County, Montana. Plaintiff, Theodore C. Kartes, brought the principal action in the District Court, Gallatin County, asking a constructive trust be imposed upon the property for his benefit, and alleging a case of adverse possession, and by reason thereof, possession of the property. Following a non-jury trial, a judgment was entered for plaintiff. Defendants, Dorothy A. Kartes and Emily J. Kartes, appealed from this judgment. During the pendency of the appeal, defendants filed a petition seeking remand of the cause to the District Court to permit filing of a motion for new trial based on the ground of newly discovered evidence. All proceedings before this Court were stayed and the cause remanded to the District Court for the purpose of filing a motion for new trial based on newly discovered evidence. Defendants' motion for new trial was denied following a hearing in the District Court. From this order defendants raise a second appeal. Defendants' two companion appeals, designated as Cause Nos. 13299, and 13757 respectively, and ensuing issues are combined for review. During oral argument of the second appeal, No. 13757, both parties argued the merits of the first appeal, No. 13299. Due to the subject matter covered, this Court deems any objection waived as to the reviewing and deciding of both appeals together. The parties to this appeal are brother and sisters. The property in dispute was acquired in 1936 with legal title being placed in the name of Amanda L. Myers, mother of plaintiff and defendants. The theories, conclusions and evidence offered by both litigants were at all times diametrically opposed. Due to this conflict of evidence, the following findings of fact from the District Court are pertinent to this appeal: "That Plaintiff and Amanda L. Myers jointly agreed that although legal title to the property would be placed in the name of Amanda L. Myers, the property was nevertheless to be considered the separate property of Plaintiff, and Plaintiff would pay back the funds advanced by decedent, Amanda L. Myers, used in its purchase. "That at the time Plaintiff entered the United States Navy in 1942, Plaintiff executed a Power of Attorney to Amanda L. Myers, giving her full power and authority to transact business in Plaintiff's name during the period he was in the service. Amanda L. Myers, while Plaintiff was in the service, through use of the Power of Attorney, acquired and used for her own purposes the approximate sum of $2,800.00, on deposit in Plaintiff's bank account. Use of such funds was in addition to sums theretofore, and thereafter paid Amanda L. Myers by Plaintiff. "That at the time the Power of Attorney was executed by Plaintiff to decedent, Amanda L. Myers in Helena, Montana, in 1942, decedent, Amanda L. Myers, also - executed and delivered a deed conveying the property described in Finding 1, to Plaintiff. Both the Power of Attorney and the deed were left in possession of decedent, Amanda L. Myers. That in 1946, Plaintiff was married, at which time he was expelled from the family home. All papers, documents, and other records belonging to the Plaintiff, including the deed and Power of Attorney, were retained by the decedent, Amanda L. Myers, or Defendant, Dorothy A. Kartes, with whom Plaintiff resided prior to marriage, and have since been misplaced or lost. "That on several occasions decedent, Amanda L. Myers made statements recognizing Plaintiff's ownership of the property described in Finding 1. One such statement was made in 1942, after return from Helena, Montana, when Plaintiff enlisted into the service, decedent, Amanda L. Myers, stating to her husband in the presence of Plaintiff's witness, Ray P. Myers, Jr., to the effect that she had signed a deed conveying the property to the Plaintiff. At about this same time another statement was made by decedent, Amanda L. Xyers, to Plaintiff's witness, Donna Hoell, to the effect that Plaintiff had paid her more than she had due with respect to the real estate, and she had given Plaintiff a deed to the property. Subsequently, in 1946, decedent, Amanda L. Myers, stated to Plaintiff's witness, Kenneth Gee, to the effect that she would like to lease the property described in Finding 1 to him, but could not do so, and then took Mr. Gee to the Ryegate, Montana, area and offered to lease him certain property owned by her in that vicinity. "That the undated deed notarized on March 11, 1968, recorded August 4, 1972, and purportedly conveying the property described in Finding 1 to the Defendants, is a nullity and can be given no legal effect. "That both Defendants stated during the course of the trial of this matter that their claimed ownership was based solely on the deed described in Finding 15, and on no other basis. "That at no time since 1936, and to date has any effort been made by decedent, Amanda L. Myers, and Defendants to legally remove Plaintiff from the premises described in Finding 1.; further, such persons have never demanded that he remove himself from the premises, without being legally forced to do so. "That decedent, Amanda L. Myers, never personally advised the Plaintiff that she claimed ownership of the real property described in Finding 1, nor did said decedent ever personally advise Plaintiff that the agreement under which title was placed in her name was no longer recognized as valid and binding. "That Amanda L. Myers died on April 20, 1973. Thereafter, an estate proceeding was opened in Oregon, which estate proceeding does not concern itself with title to the real property described in Finding 1." The dispositive issue of defendants' first appeal is whether substantial credible evidence exists to support the District Court's findings of fact and conclusions of law. The issue of defendants' second appeal is whether the District Court's refusal to grant a motion for new trial, or in the alternative, a motion to admit newly discovered evidence was error. Defendants' second appeal will be resolved first before discussing the merits of the principal appeal. The question of new trials on the ground of alleged "newly discovered" evidence is statutorily covered by Rules 59 and 60, M.R.Civ.P., and section 93-5603, R.C.M. 1947. The basic criteria for determining new trials on alleged "newly discovered" evidence is: 1. The substantial rights of the party moving for new trial must be materially affected. 2. The "newly discovered" evidence sought to be introduced must be material to the issue involved in the trial. 3. The "newly discovered" evidence must be such as could not have been discovered and produced at trial with the exercise of reasonable (or "due", per Rule 60, M.R.Civ.P.1 diligence, or could not have been discovered by reasonable diligence in time to move for a new trial under Rule 59, M.R.Civ.P. In addition to the statutes and procedural rules, Montana has a wealth of case law on the question of "newly discovered" evidence. This Court, in Kerrigan v. Kerrigan (1943), 115 Mont. 136, 144, 139 P.2d 533, placed the burden on the moving party to show: 1. The alleged "newly discovered" evidence came to his knowledge after the trial; 2. It was not a want of diligence which precluded its earlier discovery; 3 . The materiality of the evidence is so great it would probably produce a different result on retrial; and, 4. The alleged "new evidence" is not merely cumulative, not tending only to impeach or discredit witnesses in the case. Where the moving party in a motion for new trial on the ground of "newly discovered" evidence has had the books and documents in possession, from which he later "discovers" the "new evidence", the motion will be denied, even though the evidence itself may be material. Rand v. Kipp (1902), 27 Mont. 138, 142, 69 P. 714. The burden rests on the defendants to show there was no want of diligence which precluded earlier discovery of the evidence. This burden was not met. The alleged "newly discovered" evidence, consisting of a letter, was at all times in the exclusive possession of the defendants. The defendants were ordered by the District Court to produce documents pursuant to Rule 34, M.R.Civ.P. Three times plaintiff filed motions concerning the production of evidence by the defendants, and one time the defendants filed a like motion. These motions indicate the defendants had every opportunity not only to voluntarily prepare their case, but were also constantly under court order to produce. Nevertheless, defendants were not diligent in their efforts to properly prepare for trial. The testimony at the hearing on the motion for new trial indicates neither defendant made a significant effort to go through the books, records and papers of which the alleged "newly discovered" evidence is a part. The original issue of title and ownership of the ranch was contested at every stage by the continuous assertion of conflicting claims. The alleged "newly discovered" evidence presents nothing new to the positions of the parties and presents nothing so critically material as to reasonably require a different result on retrial. At best, the alleged "newly discovered" evidence is merely cumulative. The findings of fact, conclusions of law and judgment entered by the District Court in the principal case specified several different legal findings and conclusions. Any of these alone would sustain judgment for the plaintiff. Defendants asserted during the trial of the principal case that their title and ownership was based solely upon a deed. The District Court found that no deed existed. The District Court also found in the principal case that the plaintiff possessed the property adversely for the required period of time. The alleged "newly discovered" evidence does not affect these two findings of the District Court. The burden of rebutting legal presumptions of the correctness of the District Court's findings and conclusions, and to establish the relief requested by solid, commanding evidence, rests exclusively on the defendants. This burden was not met. Defendants' second appeal, No. 13757, fails. Having affirmed the District Court's denial of defendants' motion for a new trial, this Court now directs its attention to defendants' principal appeal. Defendants present numerous issues for review. The dispositive issue is whether substantial credible evidence exists to support the District Court's findings of fact and conclusions of law. The overall legal issue--ownership and title to the property-- was the subject of extensive testimony and introduction of exhibits by the litigants during the principal trial. At all times, the position of the respective parties was diametrically opposed. Plaintiff claimed ownership and title to the property under several theories, and defendants likewise claimed ownership and title to the property by a purported deed. The District Court resolved the issue of title and ownership after a careful review of all testimony and evidence received in the case. From the conflicting versions presented by plaintiff and defendants, the District Court chose to accept plaintiff's theories and ruled: "That in addition to being invalid and void as a breach of trust, the deed upon which Defendants assert and claim ownership (notarized March 11, 1968, recorded August 4, 1972) is invalid because it is not a genuine document, and does not contain the genuine signature of the decedent, Amanda L. Myers." The District Court was afforded the opportunity of seeing the witnesses, hearing them testify, and thus was in the best position to understand and construe the testimony in light of all surrounding circumstances. Davis. v. Smith (1968), 152 Mont. 170, 176, 448 P.2d 133. This Court is permitted to review only the cold record according to the established procedure for appellate review. In Luppold v. Lewis (1977), Mont. , 563 P.2d 538, 540, 34 St.Rep. 227, this Court stated: "When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such findings and conclusions will not be disturbed if supported by substantial evidence and by the law. (Citations omitted.) When reviewing evidence it will be viewed in the light most favorable to the prevailing party in the district court, and the credibility of witnesses and the weight assigned to their testimony is for the determination of the district court in a nonjury trial. * * * " In adhering to the guidelines set forth in L ~ p p ~ l d , This Court reviews the evidence existing to support the findings of fact and conclusions of law of the District Court. Extensive testimony was given as to the validity of the signature on defendants' purported deed. Plaintiff produced a document examiner and handwriting expert who testified: "Q. Are you stating an opinion that the signature on this deed is a forgery? A. I feel it is, yes. " 9 . You feel it is? A. Yes." Defendants contradicted this testimony with their own document examiner and handwriting expert who testified: "Q. From the examinations that you have made here, have you formed a conclusion or an opinion as to whether the signature that appears on the deed document of 1968 is or is not a genuine signature of Amanda L. Myers? A. Yes; I have. "Q. What is your opinion? A. That the questioned deed signature of 1968 is a genuine signature by Amanda Myers." Both litigants went to great lengths to discredit the testimony of the other party's expert. The District Court, after seeing the witnesses, and hearing their testimony in light of all the surrounding circumstances, chose to accept the plaintiff's evidence. This Court must accept the District Court's judgment on this point: " ' * * * The credibility and weight given to witnesses, however, is not for this Court to determine. This is a primary function of a trial judge sitting without a jury; it is of special consequence where the evidence is conflicting. * * * ' " Miller v. Fox (19771, Mon t . I P.2d I 34 St.Rep. 1367, 1370, quoting Hellickson v. Barrett Mobile Home Transport, Inc. (1973), 161 Mont. 455, 4 5 i , 507 P.2d 523. No purpose is served by setting forth additional testimony before the District Court. This Court does not choose to second guess the District Court in matters involving conflicts of testimony. The credibility of witnesses and the weight assigned to their testimony is solely for the determination of the District Court. Additional evidence before the District Court to support its decision is: 1. Besides plaintiff's own testimony, plaintiff presented witness Kenneth Gee who stated the property had never been called anything but the "Ted Kartes" place; 2. Plaintiff's witness Donna Hoell stated the property had the reputation of being the "Ted Kartes" place; 3 . Plaintiff's witness Ray Myers, Jr. stated the plaintiff's father tried to buy the "Ted Kartes" ranch from the plaintiff; 4 . Defendant Dorothy Kartes, upon being called as an adverse witness, stated she recalled overhearing a verbal agreement between plaintiff and Amanda L. Myers concerning the property. Dorothy also stated that at one time, Amanda L. Flyers wanted plaintiff to receive the property and that plaintiff could pay for it; and 5 . Defendant Emily A. Kartes, upon being called as an adverse witness, admitted referring to the property as "Ted's beautiful ranch". During this examination as an adverse witness, Emily also stated that Amanda L. Myers had requested that Emily prepare the deed which defendants rely on to claim ownership of the property. The function of this Court is not to determine which version or theory is more plausible. This Court must only determine that substantial evidence exists to support the findings of fact and conclusions of law of the District Court. Following a careful review of the District Court record, this Court finds sufficient evidence to support the findings of fact and conclusions of law of the District Court. The judgment of the District Court is affirmed on both appeals, Nos. 13299 and 13757. We Concur: Justices

December 30, 1977

af7645f5-18da-4483-abfc-83ee990f02b4

Matter of M.A.W. M.L.W. K.R.T.

2016 MT 40N

DA 15-0491

Montana

Montana Supreme Court

DA 15-0491 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 40N IN THE MATTER OF: M.A.W., M.L.W, and K.R.T., Youths in Need of Care. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause Nos. DN 14-12D, DN 14-13D, DN 14-14D Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellant: Elizabeth Thomas, Elizabeth Cunningham Thomas, PLLC, Hebron, Ohio For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Edward J. Corrigan, Flathead County Attorney, Anne Lawrence, Deputy County Attorney, Kalispell, Montana Submitted on Briefs: January 6, 2016 Decided: February 16 2016 Filed: __________________________________________ Clerk February 16 2016 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 N.N. (Mother) appeals three orders of the Eleventh Judicial District Court, Flathead County, terminating her parental rights to her children, M.A.W., M.L.W, and K.R.T., ages 11, 9, and 7 at the time of termination. The three appeals were consolidated and this memorandum opinion is applicable to each. Mother argues that the Department of Public Health and Human Services (Department) failed to provide clear and convincing evidence that she was unlikely to change within a reasonable amount of time and that she should have been given more time to complete her treatment plan. She suggests that “guardianship was an appropriate disposition in lieu of termination.” ¶3 On March 5, 2014, the Department received a report with concerns that Mother had been using methamphetamine that morning and would be unable to care for her children when they returned home from school because she was hallucinating. Child Protective Services Specialist Nicole Doyle assessed Mother’s condition and observed her to be hallucinating and under the influence of drugs. Mother admitted to Doyle that she had been using methamphetamine and had taken three prescription Klonopins that day. M.A.W. and M.L.W. were placed in foster care in Flathead County and K.R.T. was placed with her birth father. 3 ¶4 The following day, Doyle met with Mother again and discussed Mother’s drug use and a possible plan for her. Doyle requested that Mother submit to urinalysis (UA) testing and a chemical dependency evaluation. Mother tested positive for methamphetamine, morphine, and hydrocodone on March 14 and March 19, 2014. On March 27, 2014, the Department filed a Petition for Emergency Protective Services, Adjudication of the Child as a Youth in Need of Care and Temporary Legal Custody for each child. ¶5 The District Court held a show cause hearing on April 15, 2014, after which it adjudicated the children as Youths in Need of Care, granted the State Temporary Legal Custody of the children for six months, and ordered the development of a treatment plan for Mother. ¶6 In September 2014, the Department petitioned the District Court for an extension of temporary legal custody of the children to give Mother additional time to complete her treatment plan. All parties stipulated to the Petition and a hearing was held on November 7, 2014. At the hearing, the court was advised that Mother had not followed through with recommended inpatient chemical dependency treatment as she had failed to appear for her scheduled bed date at the Montana Chemical Dependency Center (MCDC). Mother also had not addressed additional concerns in her treatment plan and had not maintained any period of sobriety. The court granted the Department’s petition on November 24, 2014. ¶7 Following the extension of temporary legal custody, Mother continued to miss scheduled UAs and to test positive for opiates. Mother again was admitted for inpatient 4 treatment at the MCDC, but left against medical advice after approximately three days. Mother also continued to miss scheduled visits with her children and did not follow any recommendations made by her visitation supervisor. When Mother did attend visits with her children, Family Concepts Staff noted that she appeared intoxicated, would fall asleep during visits, and would have changes in behavior during the course of the visits. The Family Concepts visitation supervisor noticed that the children sometimes appeared distressed after visits with Mother. In addition, the majority of UAs Mother completed at the visits tested positive for drugs. ¶8 Mother completed a psychological evaluation with Edward H. Trontel, Ph.D., in February. Trontel diagnosed Mother with Opioid Use Disorder, Amphetamine-type Substance Use Disorder, Generalized Anxiety Disorder, Persistent Depressive Disorder, and Personality Disorder NOS. Trontel noted that Mother’s parenting failures were “direct results of drug addiction” and that Mother’s drug use was her “primary obstacle to resuming parenting duties.” Trontel recommended that Mother obtain sobriety before beginning psychotherapy. ¶9 On May 6, 2015, the Department petitioned the District Court for termination of Mother’s parental rights with permanent legal custody and right to consent to adoption, and for approval of permanency plans for the children. The Department stated that Mother had “failed to successfully complete her Court-ordered treatment plan and the conduct/condition rendering her unfit to parent is unlikely to change within a reasonable time due to her excessive use of narcotic or dangerous drugs that affects her ability to care and provide for the child[ren].” 5 ¶10 The court held a hearing on July 20, 2015. Mother’s social worker, addictions counselor, clinical psychologist, drug screening counselor, and Family Concepts counselors were among those who testified on behalf of the Department. Mother testified on her own behalf. The Department’s witnesses testified about Mother’s failures in completing her treatment plan, referring to the missed and positive UAs, missed bed dates at MCDC, inconsistent visitations with her children, and inability to maintain any level of sobriety in order to begin counseling on her mental-health issues. The Child Protective Services Supervisor testified that the children require long-term stability and sober persons making decisions on their behalf, and that without closure and a plan to move forward, the children would be prevented from making great strides. She also testified that the children were “thriving” in their current families. ¶11 Mother testified that she now was ready to enter treatment after a wake-up call from K.R.T., who had asked Mother if she cared more about drugs than about her children. Mother testified that she was ready to schedule another bed date at the MCDC and to complete inpatient treatment. Mother requested either a six-month extension or guardianship for all three children with their paternal aunt and uncle instead of termination. On cross-examination, Mother admitted to using morphine on July 4, 2015—sixteen days before the hearing. Mother stated that she used morphine on July 4 because it was the anniversary of the death of M.A.W.’s and M.L.W.’s father and, “how could I say no?” ¶12 The District Court entered Findings of Fact, Conclusions of Law, and Orders terminating Mother’s parental rights and awarding permanent legal custody to the 6 Department with lawful authority to consent to the children’s adoption. Mother appeals the District Court’s termination of her parental rights. ¶13 We review a district court’s decision to terminate parental rights for an abuse of discretion. In re C.M., 2015 MT 292, ¶ 11, 381 Mont. 230, 359 P.3d 1081. We review a district court’s findings of fact for clear error and its conclusions of law for correctness. In re D.B., 2008 MT 272, ¶ 13, 345 Mont. 225, 190 P.3d 1072. ¶14 A court may terminate parental rights to a child if it finds by clear convincing evidence that the child is an adjudicated youth in need of care and both of the following exist: (i) the parent has not complied with an appropriate court-approved treatment plan, and (ii) the parent’s conduct or condition rendering her unfit is unlikely to change within a reasonable time. Section 41-3-609(f), MCA. ¶15 On appeal, Mother does not contest the adjudication of the children as youths in need of care or the determination that she did not complete her treatment plan. She argues that the Department did not provide clear and convincing evidence that she was unlikely to change within a reasonable time because the Department did not show that she could not be successful once she committed to treatment. Mother points out that she testified that she had been working to secure another bed date at MCDC, and that the conversation with K.R.T. “had really opened her eyes to the severity of the problem and was significant in her decision to commit to treatment.” Mother argues that because she had not made any “real attempts at treatment it was speculative to find that she was unlikely [to] change if she received treatment.” 7 ¶16 In order to conclude that the conduct or condition rendering a parent unfit is unlikely to change within a reasonable time, a district court must find that continuing the parent-child legal relationship “will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.” Section 41-3-609(2), MCA. In making this determination, a court must consider the following non-exclusive factors: emotional illness, mental illness, or mental deficiency of the parent; a history of violent behavior by the parent; excessive use of drugs or alcohol by the parent; and any present judicially ordered long-term confinement of the parent. Section 41-3-609(2), MCA. A court also must consider “past and present conduct of the parent.” In re J.C., 2003 MT 369, ¶ 11, 319 Mont. 112, 82 P.3d 900. A parent’s past behavior may be considered in determining whether the parent would become a fit parent in the future. In re L.V-B., 2014 MT 13, ¶ 23, 373 Mont. 344, 317 P.3d 191. ¶17 The District Court entered findings of fact, supported by the record, and concluded that Mother’s consistent drug use rendered her unable or unfit to parent and was unlikely to change within a reasonable time. The court concluded that continuation of the parent-child legal relationship would likely result in continued abuse or neglect due to Mother’s past and present “excessive use of narcotic or dangerous drug that affects her ability to care and provide for the child[ren].” ¶18 A parent’s right to the care and custody of a child is a fundamental liberty interest that must be protected by fundamentally fair procedures. In re D.B., 2007 MT 246, ¶ 17, 339 Mont. 240, 168 P.3d 691. A court’s paramount concern in a termination proceeding, 8 however, is the best interest of the children, and primary consideration is given to the physical, mental, and emotional conditions and needs of the children. In re T.J.H., 2003 MT 352, ¶ 7, 318 Mont. 528, 81 P.3d 504 (citations omitted). When a child has been in foster care for fifteen of the last twenty-two months, “the best interests of the child must be presumed to be served by termination of parental rights.” Section 41-3-604(1), MCA. ¶19 The District Court found that Mother’s “lack of affirmative efforts to resume custody of [her children] indicates an unwillingness and/or inability to exercise her fundamental rights in a responsible manner.” The court noted that the children had been in the custody of the Department for sixteen out of the most recent twenty-two months while Mother had failed to complete her treatment plan or to remedy the conditions that led to the children’s removal. The court found that the children “need[] to know who [they] can rely upon for [their] care; as such, termination for the sake of permanency in this instance is proper.” ¶20 Our review of the record convinces us that the District Court appropriately gave primary consideration to the needs of the children. There is substantial evidence of Mother’s infrequent and inconsistent efforts in completing the required tasks in her treatment plan. The District Court did not misapprehend the effect of the evidence in reaching its conclusion that Mother is unlikely to change within a reasonable time. A district court has discretion under the law to afford a parent more time to achieve sobriety where the parent is making progress. Section 41-3-442(4)(a)(i), (6), MCA. In this case, however, Mother did not show meaningful signs of engaging in treatment for sixteen months. The substantial evidence of Mother’s continued drug use supports the court’s 9 conclusion that continuing the parent-child legal relationship likely will result in continued abuse or neglect. Although Mother’s long inability to recognize the disastrous effects of her drug use is not an uncommon attribute of addiction, the law does not require children to wait for permanency until a parent’s wake-up call produces meaningful results. In re Custody & Parental Rights of D.A., 2008 MT 247, ¶ 26, 344 Mont. 513, 189 P.3d 631. The evidence showed that Mother had not taken concrete steps toward successful inpatient treatment and that, even if she did, she would not be ready to resume parenting her children unless and until she demonstrated persistent abstinence from drugs. Accordingly, we conclude that the District Court did not abuse its discretion. ¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the appeal is resolved by the applicable standard of review. The District Court’s factual findings are supported by the record, and the court did not clearly err in finding that Mother was unlikely to change within a reasonable period of time. The District Court’s judgments terminating Mother’s parental rights to M.A.W., M.L.W, and K.R.T. are affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA

February 16, 2016

9eb3d15f-bc48-40fb-b3cd-720cc67e7163

State v. M. Brown

2016 MT 60N

DA 15-0440

Montana

Montana Supreme Court

DA 15-0440 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 60N STATE OF MONTANA, Plaintiff and Appellee, v. MARK E. BROWN, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 10-626 Honorable Ingrid Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: Mark E. Brown (self-represented); Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney, Robert S. Spoja, Deputy County Attorney; Billings, Montana Submitted on Briefs: February 10, 2016 Decided: March 8, 2016 Filed: __________________________________________ Clerk March 8 2016 Case Number: DA 15-0440 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Mark E. Brown appeals an order of the Thirteenth Judicial District Court, Yellowstone County, denying his request for credit in Cause Number DC 10-626 for time served from March 8 through September 2, 2011. We address whether the District Court correctly concluded that Brown was not entitled to the credit because he was incarcerated during that time solely for charges brought in a separate case: Cause Number DC 11-159. We affirm. ¶3 On November 19, 2010, Brown was arrested for driving under the influence (DUI). He was charged with felony DUI, Cause Number DC 10-626, and released on bond on November 30, 2010. While those charges were pending, Brown was arrested on March 8, 2011, for another DUI, Cause Number DC 11-159. Brown did not post a bond in DC 11-159 and remained incarcerated. On September 2, 2011, the District Court sentenced Brown in DC 10-626 to ten years at Montana State Prison with three years suspended, to run concurrently to the sentence imposed in DC 11-159. The court ordered that Brown receive credit in DC 10-626 for each day of time served from November 19 through November 30, 2010. The court further ordered that Brown receive credit in DC 11-159 for each day of time served from March 8 through September 2, 2011. In 3 April 2015, Brown moved to amend his sentence, requesting credit in DC 10-626 for time served from March 8 through September 2, 2011. The District Court denied Brown’s motion on the ground that his incarceration from March 8 through September 2, 2011, was in connection with DC 11-159, and not DC 10-626. ¶4 We review a criminal sentence for legality only, to determine whether the sentence falls within the statutory parameters. State v. Hernandez, 2009 MT 341, ¶ 3, 353 Mont. 111, 220 P.3d 25. ¶5 “A person incarcerated on a bailable offense against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction . . . .” Section 46-18-403(1), MCA. However, “a defendant should only be credited for time served prior to sentencing where the incarceration is directly related to the offense for which the sentence is imposed.” State v. Erickson, 2008 MT 50, ¶ 21, 341 Mont. 426, 177 P.2d 1043 (emphasis in original). When two or more charges are pending, a defendant is incarcerated on a charge for which he was released on bond if the bond was revoked. See Erickson, ¶ 18. The record contains no indication that Brown’s bond in DC 10-626 was revoked when he was incarcerated for the charges brought in DC 11-159. Brown was credited in DC 11-159 for time served from March 8 through September 2, 2011. Brown is not entitled to credit against his sentence in DC 10-626 for time served solely on the charge brought in DC 11-159. Accordingly, Brown is not entitled to credit in DC 10-626 for time served from March 8 through September 2, 2011. ¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion 4 of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court’s interpretation and application of the law were correct. We affirm. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ PATRICIA COTTER

March 8, 2016

a5b9e9a3-06aa-4209-836a-10f30314d84e

Shelhamer v. Hodges

2016 MT 29

DA 15-0420

Montana

Montana Supreme Court

DA 15-0420 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 29 SAMUEL T. SHELHAMER, Petitioner and Appellant, v. TAMARA HODGES, and MONTANA DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES, CHILD SUPPORT ENFORCEMENT DIVISION, Respondents and Appellees. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-2014-713 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: William M. Gilbert, High Plains Law, PLLC; Billings, Montana For Appellees: Ann Hefenieder, Special Assistant Attorney General; Billings, Montana Submitted on Briefs: January 6, 2016 Decided: February 9, 2016 Filed: __________________________________________ Clerk February 9 2016 Case Number: DA 15-0420 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Samuel T. Shelhamer appeals the order of the First Judicial District Court, Lewis and Clark County, which affirmed the order of the Department of Public Health and Human Services, Child Support Enforcement Division (CSED). We affirm. ¶2 The issue on appeal is: Whether a parent’s military housing and subsistence allowances should be included as part of the parent’s actual income when calculating child support obligations. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Shelhamer and Tamara Hodges are the natural parents of A.S. In October 1999, CSED entered an order requiring Shelhamer to pay Hodges $74 per month in child support. The order remained in effect without modification until Hodges filed a request for review nearly fifteen years later, on May 1, 2014. On May 12, 2014, CSED issued a modification notice and order establishing Shelhamer’s monthly support obligation at $743 per month. ¶4 Shelhamer requested an administrative hearing, which was held on July 23, 2014. Shelhamer is a Warrant Officer in the United States Marine Corps, with a base pay of $53,309 per year. Shelhamer also receives a non-taxable basic housing allowance (BAH) of $25,776 per year and a non-taxable basic subsistence allowance (BAS) of $2,955 per year. At the hearing, the Administrative Law Judge combined Shelhamer’s base pay with his BAH and BAS, and attributed to him a total annual income of $82,040. Hodges was attributed a total annual income of $24,960. On August 19, 2014, CSED issued its final 3 administrative order, setting Shelhamer’s support obligation at $935 per month, beginning June 2014. ¶5 Shelhamer petitioned for judicial review of CSED’s final decision. Shelhamer objected to CSED’s inclusion of his BAH and BAS in his income, arguing that these allowances defray the cost of food and housing. CSED responded, and the matter was fully briefed in the District Court. On May 12, 2015, the District Court affirmed the final decision of CSED setting Shelhamer’s child support obligation at $935 per month. Shelhamer appeals. STANDARDS OF REVIEW ¶6 In contested cases, district courts review administrative decisions to determine whether the agency interpreted the law correctly and whether the findings of fact were clearly erroneous. Arlington v. Miller’s Trucking, Inc., 2015 MT 68, ¶ 10, 378 Mont. 324, 343 P.3d 1222. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of evidence, or if this Court’s review of the record convinces us a mistake has been made. Arlington, ¶ 10. ¶7 “This Court employs these same standards when reviewing a district court’s order affirming or reversing the agency’s decision.” Knowles v. State ex rel. Lindeen, 2009 MT 415, ¶ 23, 353 Mont. 507, 222 P.3d 595. However, an agency’s interpretation of its own rule “should be afforded great weight, and the court should defer to that interpretation unless it is plainly inconsistent with the spirit of the rule. The agency’s 4 interpretation of the rule will be sustained so long as it lies within the range of reasonable interpretation permitted by the wording.” Knowles, ¶ 22. DISCUSSION ¶8 Whether a parent’s military housing and subsistence allowances should be included as part of the parent’s actual income when calculating child support obligations. ¶9 CSED is required to adopt uniform child support guidelines to determine minimum child support amounts. Section 40-5-209(1), MCA. The guidelines are used to establish “a standard to be used by the district courts, child support enforcement agencies, attorneys and parents in determining child support obligations.” Admin. R. M. 37.62.101(1) (1998). The underlying principle and stated purpose of the guidelines is as follows: These guidelines are based on the principle that it is the first priority of parents to meet the needs of the child according to the financial ability of the parents. . . . [A] child’s standard of living should not, to the degree possible, be adversely affected because a child’s parents are not living in the same household. Admin. R. M. 37.62.101(2) (1998). ¶10 At issue in this appeal is the definition of “actual income” attributable to a parent when calculating a child support obligation. “Actual income” is broadly defined by Admin. R. M. 37.62.105 (2012), and, among other things, includes: (a) economic benefit from whatever source derived . . . and includes but is not limited to income from salaries, wages, tips, commissions, bonuses, earnings, profits, dividends . . . earned income credit and all other government payments and benefits. . . . 5 (e) allowances for expenses, flat rate payments or per diem received, except as offset by actual expenses. Actual expenses may be considered only to the extent a party can produce receipts or other acceptable documentation. Reimbursement of actual employment expenses may not be considered income for purposes of these rules. Admin. R. M. 37.62.105(2)(a), (e) (2012) (emphasis added). ¶11 The District Court affirmed CSED’s holding that Shelhamer’s BAH and BAS should be included in his actual income as an “economic benefit,” noting that “the allowances are substantial, and they are available to be utilized without restriction.” The District Court cited In re Marriage of Stokes, 228 P.3d 701 (Or. Ct. App. 2010), in which the Oregon Court of Appeals held that both BAH and BAS should be included in a parent’s “income from any source” when calculating a parent’s child support obligations. Stokes, 228 P.3d at 705. The District Court also noted that, when calculating child support obligations, all parents are credited with a personal allowance in order to address their housing and food costs. “Personal allowance is an amount which reflects 1.3 multiplied by the federal poverty guideline for a one-person household. . . . Personal allowance is a contribution toward, but is not intended to meet the subsistence needs of parents.” Admin. R. M. 37.62.114(1) (2012). Both Shelhamer and Hodges were allowed a personal allowance of $15,171. This amount was therefore subtracted from Shelhamer’s actual income calculation when determining his child support obligation. The District Court agreed with CSED’s argument that, if Shelhamer were allowed to receive the benefit of the personal allowance in addition to having his BAH and BAS excluded from his actual income calculation, he would in effect be receiving a double benefit. 6 ¶12 Shelhamer’s BAH and BAS are allowances provided by the Marine Corps in addition to his base pay. BAH is based on a service member’s pay grade, the dependency status of the member, and the geographic location of the member. 37 U.S.C. § 403(a)(1) (2012). BAS is based on a member’s BAS from the preceding year and the cost of a “liberal food plan for a male in the United States.” 37 U.S.C. § 402(b)(1)(A), (B) (2012). The payments are intended to assist with a service member’s housing and food expenses; however, there are no requirements for how the money is spent, no accounting of any expenditures is required, and the payments are made with each paycheck. ¶13 Shelhamer argues in this appeal that he provided acceptable documentation that his BAH and BAS are “offset by actual expenses” of his housing and food costs, and therefore the payments cannot be included in his actual income under Admin R. M. 37.62.105(2)(e) (2012). We disagree. Read in the proper context of the entire rule, the “actual expenses” that offset the inclusion of such an allowance or per diem into actual income are additional expenses incurred because of the parent’s work, not the regular mortgage or rent payments and grocery bills that would otherwise have to be paid from any parent’s regular source of income. This is evident from the remainder of the section which provides that “[r]eimbursement of actual employment expenses may not be considered income for purposes of these rules.” Admin R. M. 37.62.105(2)(e) (2012) (emphasis added).1 1 It bears noting that the military similarly distinguishes BAH and BAS from per diem travel payments and allowances. Military members are “provided transportation-, lodging-, or meals-in-kind, or actual and necessary expenses of travel and transportation, for, or in connection with, official travel . . . .” 37 U.S.C. § 452(a) (2012) (emphasis added). 7 ¶14 The infirmity of Shelhamer’s argument is further illustrated when considering other items that the rule does include as actual income. Specifically, Admin R. M. 37.62.105(2)(c) (2012), considers actual income to include “the value of noncash benefits, including . . . housing, . . . food, utilities, etc.” Thus, if we were to accept Shelhamer’s interpretation of the rule, it would lead to the paradoxical conclusion that the cash value of employer-provided housing and food is considered income, but the actual cash to pay for housing and food is not. ¶15 Shelhamer further asserts that the District Court erroneously relied on the personal allowance as justification for including the BAH and BAS in his income. We disagree. The personal allowance recognizes the cost that a parent incurs to care for his or her own needs. It was not error for the District Court to note that all parents are allowed a personal allowance for such expenses under Admin. R. M. 37.62.114(1) (2012), but not all parents receive extra funds from their employers to be used as they choose. ¶16 Finally, Shelhamer argues the District Court improperly relied on Stokes, arguing that Oregon law does not contain the same exemption for expense payments offset by actual expenses found in Admin R. M. 37.62.105(2)(e) (2012). While the Oregon court’s reasoning in Stokes is merely persuasive authority, we note the spirit of Oregon’s child support guidelines mirrors our own. The Oregon court noted in Stokes that the Oregon child support guidelines “must ensure that the child benefits from the income ‘of both parents to the same extent that the child would have benefited had the family unit remained intact.’” Stokes, 228 P.3d at 705 (citing Or. Rev. Stat. § 25.275(2)(a) (2015)). Compare Montana’s guidelines which provide: “[A] child’s standard of living should not, 8 to the degree possible, be adversely affected because a child’s parents are not living in the same household.” Admin. R. M. 37.62.101(2)(1998). ¶17 Shelhamer’s BAH and BAS contribute a significant amount of income towards his ability to provide for his own needs as well as the needs of A.S. CSED’s interpretation of Admin R. M. 37.62.105(2)(e) (2012) is reasonable and well within the language and the spirit of the rule. The District Court correctly affirmed CSED’s order which included Shelhamer’s BAH and BAS in his actual income to calculate his child support obligation. CONCLUSION ¶18 The District Court’s affirmation of the final decision of CSED—which included Shelhamer’s BAH and BAS in his actual income to calculate his child support obligation—was correct. Affirmed. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE

February 9, 2016

3a060cb4-6676-4e95-9e32-33ae88203be0

STATE v DESHNER

N/A

13816

Montana

Montana Supreme Court

No. 13816 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- TERRY H. DESHNER, Defendant and Appellant. Appeal from: District Court of the Eighth Judicial District, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Howard F. Strause argued, Great Falls, Montana For Respondent : Honorable Mike Greely, Attorney General, Helena, Montana Rick Anderson, Assistant Attorney General, argued, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana , . .--*- Filed: 9EC2 # - Submitted: December 6, 1977 Decided : DEC 2 5 1974 Mr. Justice Frank I. Baswell delivered the Opinion of the Court: Defendant was charged with the crime of aggravated assault. Defendant was found guilty after trial by jury. Following denial of defendant's motion for a new trial, he appeals to this Court. On July 21, 1976, at approximately 9:30 p.m. Dan VanDenBos and two companions were traveling in VanDenBos' car along First Avenue North in Great Falls, Montana. Near the intersection of Ninth Street and First Avenue North a white 1964 Pontiac with five occupants pulled out in front of the VanDenBos car nearly causing an accident. The two cars then continued along First Avenue North side by side with the occupants of both cars exchanging obscenities. Subsequently, one of the occupants of the white Pontiac fired two shots with a slingshot at the VanDenBos car. The second shot struck VanDenBos in the left side of the face. VanDenBos then stopped his car, examined himself to determine if he was bleeding, and proceeded to a hospital emergency room. He was examined by the emergency room physician and spoke to Officer David J. Brinka about the incident. A description of the white Pontiac and its occupants was given to the officer. Pursuant to this complaint, a car of the same description was stopped later the same evening. Among the occupants of the car was defendant, Terry Deshner. A followup investigation by Officer David Warrington resulted in the arrest of Deshner. Subsequent to his arrest, defendant was given his Miranda warning, signed a waiver, and stated that it was he who had shot at the VanDenBos automobile with a slingshot. He stated, however, that he was acting in self-defense and was not sure that he had actually struck VanDenBos. This incriminating statement was testified to by Officer Warrington at the trial. The state's case-in-chief consisted of the testimony of VanDenBos, Officers Brinka and Warrington, and Dr. Thomas M. Keenan, a physician who examined the victim the morning after the incident. Defendant chose not to present evidence. VanDenBos testified that he was driving his car at the time of the incident and was struck on the jaw by some kind of projectile. He testified that he was not aware of exactly what had hit him and was not sure the projectile had been propelled by a slingshot. VanDenBos also testified that he did not know who flung the projectile at him. No other witnesses were called by the state to show that VanDenBos had been struck by a projectile fired from a slingshot or that defendant had fired a projectile at the victim. It should be noted that two other individuals were in the VanDenBos car at the time of the incident. They were not called as witnesses. Two issues are presented for our consideration on appeal: 1. Whether sufficient evidence was produced by the state to sustain a verdict of guilty of the charge of aggravated assault as defined by section 94-5-2Q2(1) (b), R.C.M. 1947. 2 . Whether the District Court erred in refusing to give an instruction to the jury stating that a confession must be corroborated by other evidence before a guilty verdict can be returned. On the first issue, defendant contends that there is no proof that the slingshot which was used was capable of producing death or serious bodily injury, an element of the crime of aggravated assault. He points out that neither the slingshot nor the projectile were ever introduced in evidence or described to the jury. Section 94-5-202(1) (b) defines the elements of the crime : "A person commits the offense of aggravated assault if he purposely or knowingly causes: "(b)bodily injury to another with a weapon." Section 94-2-101 (65), R.C.M. 1947, defines a "Weapon" as: " * * * any instrument, article or substance which, regardless of its primary function, is readily capable of being used to produce death or serious bodily in j ury . " Serious bodily injury is defined as bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function or process of any bodily member or organ. Section 94-2-101 (53), R.C.M. 1947. The evidence presented at trial concerning proof of the use of a slingshot in the assault on VanDenBos is as follows. VanDenBos testified on direct examination that he was struck by a projectile propelled by a slingshot. However, he later partially recanted and stated that he was not sure it was a slingshot that had propelled the projectile that struck him. Officer Warrington testified as to a confession made by defendant to him wherein defendant admitted firing two shots with a slingshot at the VanDenBos automobile. The cumulative effect of the testimony offered at trial, taken in the light most favorable to the state does not prove that the assault was committed with a weapon "capable of being used to produce death or serious bodily injury". Even if we assume that the use of a slingshot was adequately proven, the record is barren of any testimony that the slingshot-projectile combination was in fact a weapon capable of producing death or bodily injury. No evidence was presented concerning the size, weight or shape of the projectile which struck the victim nor the velocity at which the slingshot was capable of propelling such projectile. The evidence indicated that VanDenBos received a bruise on the jaw requiring no hospitalization and that no bones were broken. Such proof falls far short of establishing an assault with a weapon capable of being used to produce death or serious bodily injury as required by statute. Since the evidence was insufficient to support the conviction, discussion of the second issue is unnecessary. The judgment of the District Court is reversed and the charge of aggravated assault dismissed. Justice We concur: -

December 29, 1977

13d33c66-5ec4-49a1-9045-aba628c3083d

State v. Follette

2016 MT 16N

DA 14-0182

Montana

Montana Supreme Court

DA 14-0182 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 16N STATE OF MONTANA, Plaintiff and Appellee, v. NEILL ISAAC FOLLETTE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADC 2013-93 Honorable Mike Menahan, Presiding Judge COUNSEL OF RECORD: For Appellant: Julie Brown, Montana Legal Justice, PLLC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney, Helena, Montana Submitted on Briefs: January 6, 2016 Decided: January 19, 2016 Filed: __________________________________________ Clerk January 19 2016 Case Number: DA 14-0182 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Neill Isaac Follette (Follette) appeals his conviction and sentence from the First Judicial District Court, Lewis and Clark County. We affirm in part, reverse in part, and remand. ¶3 On March 11, 2013, Follette’s wife contacted law enforcement with concerns that Follette was sexually abusing her daughter, M.C.D., who is Follette’s stepdaughter and was thirteen years old at the time. During a forensic interview Lewis and Clark County Child Advocacy Center conducted on March 13, 2013, M.C.D. explained that Follette had abused her four or five times over a period of several months. During a physical examination conducted on March 21, 2013, M.C.D. described several instances where Follette anally, vaginally, or orally sexually abused her. The State charged Follette by information, filed on April 5, 2013, with felony Sexual Intercourse without Consent, a violation of § 45-5-503(1), (3), MCA, and felony Sexual Assault, a violation of § 45-5-502(1), (3), (5)(a)(ii), MCA. ¶4 Before trial, the State filed a motion in limine asking the District Court to preclude Follette from introducing evidence at trial of prior crimes, wrongs, or bad acts of any of the State’s witnesses, including Follette’s wife. Follette objected to the State’s motion, 3 stating that it was overbroad and would inhibit his right to present a defense, but failed to make an offer of proof of the evidence he intended to offer. The District Court granted the State’s motion in limine at trial. On October 23, 2013, a jury found Follette guilty of both offenses and the District Court sentenced him to two concurrent terms of forty years in prison with twenty years suspended. The District Court also ordered Follette to reimburse the cost of a forensic interview as part of his sentence. ¶5 Follette raises two issues on appeal. The first issue is whether the District Court abused its discretion in granting the State’s motion in limine. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Wagner, 2013 MT 47, ¶ 14, 369 Mont. 139, 296 P.3d 1142 (citation omitted). A district court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. M. R. Evid. 403. ¶6 Here, Follette argues that, in granting the State’s motion in limine, the District Court precluded him from introducing evidence that his wife had threatened him in the past that she would publicly accuse him of molesting one of her children in order to keep Follette from leaving her. This evidence, Follette asserts, would have supported his assertion that M.C.D. fabricated the allegations against him because her mother told her to. The District Court granted the State’s motion to exclude this evidence concluding it was both more prejudicial than probative and “beyond the scope of the State’s case.” Also, the District Court noted that Follette had been given several opportunities to 4 provide an offer of proof, essentially to outline what specific prior crimes, wrongs, or bad acts of his wife he wished to introduce at trial. Follette never provided an offer of proof. Despite the lack of evidence introduced about his wife’s prior threats, Follette was still able to argue, in his closing statement to the jury, that M.C.D. fabricated Follette’s abuse at her mother’s behest. The District Court did not act arbitrarily and employed its judgment reasonably in excluding Follette’s proposed evidence. We conclude the District Court did not abuse its discretion in granting the State’s motion in limine. ¶7 The second issue Follette presents is whether the District Court erred in imposing the cost of a forensic interview as part of his sentence. Item 52 of Follette’s sentence states that the “defendant shall reimburse the Lewis and Clark County Child Advocacy Center $500.” The court may require a convicted defendant in a felony case to pay costs, limited to the expenses specifically incurred by the prosecution in connection with the proceedings. Section 46-18-232(1), MCA. This statute has been interpreted to include only costs incurred after the State files an information charging the defendant. State v. Fertterer, 255 Mont. 73, 83, 841 P.2d 467, 473 (1992); overruled on other grounds by State v. Gatts, 279 Mont. 42, 52, 928 P.2d 114, 120 (1996). M.C.D.’s forensic interview was conducted on March 13, 2013, and Follette was charged by information filed on April 5, 2013. Here, the State concedes that Follette was improperly sentenced under § 46-18-232(1), MCA, because his sentence required him to reimburse costs incurred before he was charged. Because Follette was sentenced to reimbursing costs in violation of § 46-18-232(1), MCA, the District Court imposed this portion of his sentence in error. 5 ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no issues of first impression and does not establish new precedent or modify existing precedent. ¶9 Affirmed in part, reversed in part, and remanded with instructions that the District Court vacate the portion of Follette’s sentence requiring reimbursement for a forensic interview conducted prior to the State’s charge against him. /S/ LAURIE McKINNON We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ JIM RICE

January 19, 2016

6dbdbeb9-1f57-4940-b8c9-96257cf57835

Shaffer v. State

2016 MT 39N

DA 15-0397

Montana

Montana Supreme Court

DA 15-0397 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 39N ZACHARY SHAFFER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DV 15-40 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Zachary Shaffer, Self-Represented, Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Alex Nixon, Carbon County Attorney, Red Lodge, Montana Submitted on Briefs: February 3, 2016 Decided: February 16, 2016 Filed: __________________________________________ Clerk February 16 2016 Case Number: DA 15-0397 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by unpublished opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 In 2013, a jury convicted Zachary Shaffer of felony assault on a police officer. Shortly thereafter, and in a separate criminal action, Shaffer entered a nolo contendere plea to a charge of intimidation. Following sentencing in both cases, Shaffer appealed his judgments claiming, among other things, he received ineffective assistance of counsel (IAC). This Court affirmed the judgments in a non-cite opinion, State v. Shaffer, 2014 MT 340N, 377 Mont. 436, 348 P.3d 172, and determined that Shaffer’s IAC claims could not be reviewed on direct appeal. ¶3 In April 2015, Shaffer filed a pro se Petition for Postconviction Relief (PCR) with the Twenty-Second Judicial District Court, Carbon County, claiming his trial and appellate counsel provided ineffective assistance and that he was maliciously prosecuted. In conclusory statements, he set forth several examples of counsels’ failure to adequately represent him. He further indicated that he would develop facts supporting his allegations in an “amended petition.” The District Court denied and dismissed Shaffer’s petition finding that Shaffer failed to provide any substantive evidence in support of his conclusory allegations. The court further observed that while a petitioner is permitted one amendment of an original PCR petition, it is inappropriate to submit a deficient original petition in anticipation of submitting an amended one. 3 ¶4 In October 2015, Shaffer filed a pro se brief on appeal to this Court. He argues that the District Court erred when it denied his petition without appointing counsel for him or providing him an evidentiary hearing. The State responds that Shaffer’s PCR petition was properly denied as deficient and that Shaffer was not statutorily or constitutionally entitled to appointed counsel for his PCR proceeding. Moreover, the State asserts that Shaffer’s petition before this Court seeking reversal of the District Court’s ruling was deficient in its failure to comply with the Rules of Appellate Procedure. ¶5 Section 46-21-104, MCA, provides, in relevant part: (1) The petition for postconviction relief must: . . . (c) identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts. Shaffer’s PCR petition before the District Court failed to satisfy this statutory requirement, justifying the District Court’s dismissal and denial of the petition. ¶6 Furthermore, Shaffer failed to properly brief and argue his claims on appeal before this Court. M. R. App. P. 12(1)(g) requires parties to cite to relevant authorities and statutes in support of their arguments on appeal. Shaffer fails to cite to any statute, rule, or applicable case to support his claim that the District Court was required to appoint counsel or conduct an evidentiary hearing on his IAC claims. “We have repeatedly held that it is not this Court’s obligation to conduct legal research on behalf of a party or to develop legal analysis that might support a party’s position.” State v. Cybulski, 2009 MT 70, ¶ 13, 349 Mont. 429, 204 P.3d 7. 4 ¶7 While self-represented litigants are given a certain amount of latitude in legal proceedings, we cannot allow such latitude to prejudice the opposing party. It is reasonable to expect all litigants to comply in most respects with the applicable procedural rules. Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124. Here, Shaffer has failed to comply with these rules and has failed to demonstrate error on the part of the District Court. ¶8 For the foregoing reasons, we conclude the District Court’s findings were not clearly erroneous nor were its conclusions of law incorrect. Davis v. State, 2004 MT 112, ¶ 13, 321 Mont. 118, 88 P.3d 1285. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for unpublished opinions. In the opinion of this Court, this case presents questions clearly controlled by settled law. ¶10 Affirmed. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE

February 16, 2016

03fe2e47-12e9-4ded-a429-4c2203654b32

State v. Ballinger

2016 MT 30

DA 14-0544

Montana

Montana Supreme Court

DA 14-0544 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 30 STATE OF MONTANA, Plaintiff and Appellee, v. DEAN JASON BALLINGER, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 13-0816 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: Haley Connell, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General; Helena, Montana Scott Twito, Yellowstone County Attorney, Juli Pierce, Deputy County Attorney; Billings, Montana Submitted on Briefs: December 29, 2015 Decided: February 9, 2016 Filed: __________________________________________ Clerk February 9 2016 Case Number: DA 14-0544 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Dean Jason Ballinger appeals the order of the Thirteenth Judicial District Court, Yellowstone County, which denied his motions to suppress evidence and to dismiss the charge of felony criminal possession of dangerous drugs. Ballinger later was convicted of the charge and sentenced to five years at Montana State Prison. We affirm the District Court’s denial of Ballinger’s motions. ¶2 The issue on appeal is: Whether the District Court correctly found that the police officer had particularized suspicion to conduct an investigatory stop of Ballinger. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On September 28, 2013, at approximately 9:30 p.m., Cindy Trumbo called the Billings Police Department’s dispatch to report that the front door of a house across the street was open. She believed the address was 211 South 33rd Street. Trumbo reported that she saw people moving out of the house earlier in the day, but no one had been around the house for some time. ¶4 Billings Police Officer Grant Morrison responded to the call at 10:13 p.m. When Officer Morrison arrived at 211 South 33rd Street, he found the front door open, the lights on, and no one around. Officer Morrison parked his patrol vehicle on the north side of the house. He then saw a man and a woman, later identified as Ballinger and Julie Ramirez, get out of a vehicle across the street. Officer Morrison testified that “[t]hey were walking straight towards” 211 South 33rd Street. 3 ¶5 As the man and the woman stepped on the curb, Officer Morrison testified that he “intercepted” them. Using his flashlight to see better, Officer Morrison stated that he was responding to a call regarding a vacant residence with a door open. He asked them where they were going, and Ramirez stated that they were going to meet people hanging out on the sidewalk. Officer Morrison did not see anyone else on the sidewalk in the area. Ramirez then said they were going from 622 South 31st Street (later identified as Ballinger’s home) to 522 South 33rd Street (Ramirez’s mother’s home). Officer Morrison testified that, at 211 South 33rd Street, Ballinger and Ramirez would be four blocks out of their way if they were going from Ballinger’s home to Ramirez’s mother’s home. Officer Morrison was suspicious of Ramirez’s and Ballinger’s presence in the area, and he suspected Ramirez was lying to him. ¶6 Officer Morrison asked Ballinger for identification. Ballinger stated, “I just live right down the street.” Officer Morrison responded, “I need to identify you, and this is suspicious to me. And this is what I’m investigating, so . . . I want to see ID.” Ballinger’s Montana Identification Card confirmed that his address was 622 South 31st Street. Officer Morrison ran a warrant check on Ballinger. He found a probation violation warrant, and he detained Ballinger while he validated the warrant. While patting down Ballinger, Officer Morrison felt numerous unknown items in Ballinger’s pants pockets. Because no items felt like a weapon, nothing was retrieved from Ballinger’s pockets. Officer Morrison also confirmed that neither Ballinger nor Ramirez lived at 211 South 33rd Street. 4 ¶7 Officer Morrison arrested Ballinger. Ramirez was allowed to leave. Officer Morrison then left Ballinger with Officer Miller, who had arrived as back up. Officer Morrison approached 211 South 33rd Street. He found the lights on and the front door open. Officer Morrison knocked on the door, called out, and rang the doorbell, but received no response. Officer Morrison shut and locked the front door. ¶8 Ballinger was transported to the Yellowstone County Detention Facility. After Ballinger was removed from the patrol vehicle and turned over to the Detention Facility staff, Officer Morrison searched his patrol vehicle. Officer Morrison found a small plastic bag containing a white crystal substance in the back seat. He identified the substance as methamphetamine. The drugs were not present when Officer Morrison started his shift at 9:00 p.m., and no other person had ridden in the back seat of the vehicle that night. On October 7, 2013, Ballinger was charged by information with criminal possession of dangerous drugs, a felony. ¶9 Ballinger moved to suppress the evidence of the drugs, arguing that Officer Morrison did not have particularized suspicion to conduct a stop of Ballinger or Ramirez. Ballinger then argued that the case should be dismissed for lack of evidence. On December 18, 2013, the District Court held a hearing on Ballinger’s motions to suppress and dismiss. ¶10 The District Court denied Ballinger’s motions, finding that Officer Morrison had the required particularized suspicion to make the investigatory stop of Ballinger and Ramirez. The District Court based its finding on the suspicious nature of the call, the condition of the home at 211 South 33rd Street, and Officer Morrison’s observation of 5 Ramirez and Ballinger walking directly towards the house. The court also considered facts gathered after Officer Morrison began talking with Ballinger and Ramirez, including Ramirez’s statement that they were going to see people on the sidewalk when no one else was around and Ramirez’s explanation that they were traveling between two homes when they were four blocks out of their way. ¶11 On March 10, 2014, a jury found Ballinger guilty of criminal possession of dangerous drugs, a felony. Ballinger was sentenced to five years at Montana State Prison, and he was designated a persistent felony offender. Ballinger appeals. STANDARDS OF REVIEW ¶12 We review the grant or denial of a motion to suppress to determine whether the district court’s findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those facts. State v. Wagner, 2013 MT 159, ¶ 9, 370 Mont. 381, 303 P.3d 285. A district court’s determination that particularized suspicion exists is a question of fact, which we review for clear error. Wagner, ¶ 9. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. Wagner, ¶ 9. ¶13 We review the denial of a motion to dismiss in criminal cases de novo to determine whether the district court’s conclusions of law are correct. State v. Seiffert, 2010 MT 169, ¶ 10, 357 Mont. 188, 237 P.3d 669. 6 DISCUSSION ¶14 Whether the District Court correctly found that the police officer had particularized suspicion to conduct an investigatory stop of Ballinger. ¶15 Citizens are protected from unreasonable searches and seizures by government officials under both the Fourth Amendment of the United States Constitution and Article II, Section 11 of the Montana Constitution. Montanans are afforded broader protection from unreasonable searches and seizures under the express right to privacy in Article II, Section 10 of the Montana Constitution. State v. Bullock, 272 Mont. 361, 384, 901 P.2d 61, 75 (1995). ¶16 With limited exceptions, police officers must obtain a warrant before seizing an individual under both the United States Constitution and the Montana Constitution. State v. Graham, 2007 MT 358, ¶ 13, 340 Mont. 366, 175 P.3d 885. One exception to the warrant requirement is the investigatory or “Terry stop,” which allows “a brief seizure of the individual that must be supported by a reasonable [or particularized] suspicion of criminal activity.” State v. Lovegren, 2002 MT 153, ¶ 15, 310 Mont. 358, 51 P.3d 471 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). Such a stop “may not last longer than necessary to effectuate the purpose of the stop.” Section 46-5-403, MCA. ¶17 Ballinger argues that he was seized when Officer Morrison stopped him with a flashlight and began asking him questions. The District Court did not make an explicit finding as to when Officer Morrison seized Ballinger. However, it is clear from the District Court’s order denying Ballinger’s motion to suppress that the court found particularized suspicion by relying upon all of the information Officer Morrison obtained 7 before asking Ballinger for his identification. Implicit in the District Court’s analysis, therefore, is that it found no seizure had occurred until Officer Morrison asked Ballinger for his identification. ¶18 “‘[N]ot all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’” State v. Wilkins, 2009 MT 99, ¶ 8, 350 Mont. 96, 205 P.3d 795 (quoting Terry, 392 U.S. at 19 n.16, 88 S. Ct. at 1879 n.16). To determine if a seizure has occurred, this Court applies the same test under both the United States and Montana Constitutions. State v. Strom, 2014 MT 234, ¶ 10, 376 Mont. 277, 333 P.3d 218. “‘[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” Wilkins, ¶ 9 (quoting U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Circumstances which may indicate that a person has been seized include the presence of many officers, a display of weapons by an officer, physical touching of the person by the officer, or the officer’s use of language or tone indicating compliance with the officer’s request is required. Strom, ¶ 10 (citing Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877). However, these factors are not exhaustive. Strom, ¶ 10. ¶19 The record in this case does not support Ballinger’s contention that a seizure occurred before Officer Morrison asked for his identification. Officer Morrison first “intercepted” Ballinger and Ramirez as they were walking on a public street towards the 8 vacant house that he was investigating. In State v. Dupree, 2015 MT 103, 378 Mont. 499, 346 P.3d 1114, this Court held that the defendant was not seized when officers approached her in a public place of her choosing, identified themselves as law enforcement officers, and told her about a tip they had received that indicated that she would be carrying drugs. Dupree, ¶ 15. We further held the defendant was not seized when the officers asked the defendant if she would sign a consent form for a search or when they asked her to move to another room. Dupree, ¶ 15. ¶20 Here, the parties were on a public street, and Officer Morrison told Ballinger and Ramirez that he was investigating a suspicious call regarding a vacant house with an open door. Wanting to know if they were connected to the vacant house, he asked them where they were going. Officer Morrison made no show of force or authority; he merely used a flashlight to see better in the dark. Officer Morrison did not ask Ballinger or Ramirez to do anything until he requested their identification and stated, “I need to identify you, and this is suspicious to me. And this is what I’m investigating, so . . . I want to see ID.” The State concedes that at this point the encounter became a seizure because Ballinger and Ramirez would not have felt free to stop the encounter and walk away. ¶21 Regardless of when he was seized, Ballinger contends that Officer Morrison did not have particularized suspicion for the stop. A police officer “may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.” Section 46-5-401(1), MCA. A police officer has particularized suspicion to conduct an investigatory stop when the officer has “(1) objective data and articulable 9 facts from which he or she can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is about to commit an offense.” Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. When reviewing whether a police officer had particularized suspicion, a court must “look to the facts and to the totality of the circumstances of each case.” Brown, ¶ 20. ¶22 Before Officer Morrison requested Ballinger’s identification, Officer Morrison had objective data and articulable facts from which he could reasonably infer and suspect that Ballinger was involved in criminal activity. Just as Officer Morrison was responding to a call regarding a vacant house with an open door at 211 South 33rd Street, Ballinger and Ramirez arrived at the same house, and Officer Morrison observed them walk directly towards the house. Officer Morrison stopped Ballinger and Ramirez and told them he was investigating a vacant house with an open door. When asked where they were going, Ramirez stated that they were meeting people on the sidewalk, but Officer Morrison did not observe any other people in the vicinity. Ramirez also explained that they were travelling between two homes that Officer Morrison observed would not normally take them past the vacant house they were walking directly towards. ¶23 Based on the totality of the facts and circumstances of this case, Officer Morrison had a particularized suspicion that justified an investigatory stop of Ballinger. The evidence collected as a result of the investigatory stop and validly executed arrest warrant was admissible at trial. The District Court correctly denied Ballinger’s motions to suppress the evidence and dismiss the charge. 10 CONCLUSION ¶24 The District Court correctly found that Officer Morrison had particularized suspicion to conduct an investigatory stop of Ballinger. Therefore, Ballinger’s motions to suppress the evidence gathered as a result of the stop and to dismiss the charge of criminal possession of dangerous drugs for lack of evidence were correctly denied. Affirmed. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ JIM RICE

February 9, 2016

347b5a9e-b0cc-474e-9a31-6f14df7bebe2

Wickham v. State

2016 MT 17N

DA 15-0222

Montana

Montana Supreme Court

DA 15-0222 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 17N KELLY S. WICKHAM, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-98-067(A) Honorable Ted O. Lympus, Presiding Judge COUNSEL OF RECORD: For Appellant: Kelly Wickham, Self-Represented, Deer Lodge, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Kalispell, Montana Submitted on Briefs: December 2, 2015 Decided: January 19, 2016 Filed: __________________________________________ Clerk January 19 2016 Case Number: DA 15-0222 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Kelly Scott Wickham appeals pro se from an order issued by the Eleventh Judicial District Court, Flathead County, denying his motion for credit for time served. We affirm. ¶3 We address the following issue on appeal: whether the District Court1 erred by denying Wickham’s request that he be given credit for time served. ¶4 On March 26, 1998, the District Court sentenced Wickham to the Montana State Prison (MSP) for a term of 10 years, all suspended, for Bail Jumping. On December 16, 2004, the Twentieth Judicial District Court, Lake County, sentenced Wickham to the MSP for a term of 20 years, with 10 years suspended, after he pled guilty to Burglary and Robbery. On June 17, 2005, the State filed a petition in District Court to revoke Wickham’s suspended sentence for Bail Jumping, alleging that Wickham violated the conditions of his suspended sentence by committing the additional offenses in Lake County. The same day, the District Court granted the State’s petition and issued a warrant for Wickham’s arrest. On September 1, 2005, the District Court resentenced 1 “District Court” refers to the Eleventh Judicial District Court, Flathead County, unless expressly stated otherwise. 3 Wickham for Bail Jumping to the Montana Department of Corrections for a term of 10 years, with 5 years suspended. Wickham again violated the terms of his suspended sentence in 2010. ¶5 On February 2, 2015, Wickham filed a motion in District Court requesting that he be given credit for time served toward his Bail Jumping sentence. Wickham maintained that he should be credited with 617 days for time he apparently served awaiting trial on the Burglary and Robbery charges in Lake County between March 18, 2003, and December 15, 2004.2 The District Court denied Wickham’s motion, concluding that it would be inappropriate under § 46-18-403(1), MCA, to award him credit for time served in Lake County when his incarceration in Lake County was entirely unrelated to Bail Jumping. The court explained that the State did not file its petition to revoke Wickham’s sentence for Bail Jumping until June 17, 2005. ¶6 On appeal, Wickham renews his argument that he should be given credit for time served in Lake County between March 18, 2003, and December 15, 2004. Pursuant to § 46-18-403(1), MCA, a “person incarcerated on a bailable offense against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction . . . .” We have previously explained that under § 46-18-403(1), MCA, “a defendant’s sentence may be credited with the time he or she was incarcerated only if that incarceration was directly related to the offense for which the sentence is imposed.” State v. Kime, 2002 MT 38, ¶ 16, 308 Mont. 341, 43 P.3d 290. 2 The record does not include the dates Wickham was actually incarcerated in Lake County. We will assume that Wickham is correct that he was incarcerated in Lake County between March 18, 2003, and December 15, 2004. 4 Here, Wickham’s incarceration in Lake County between March 18, 2003, and December 15, 2004, was not related to Bail Jumping. The State did not file its petition to revoke his suspended sentence until June 17, 2005, well after his incarceration in Lake County. Therefore, the District Court did not err by declining to credit Wickham’s sentence with the time he was incarcerated on the unrelated charges of Burglary and Robbery. ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law. ¶8 Affirmed. /S/ LAURIE McKINNON We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JAMES JEREMIAH SHEA

January 19, 2016

d2a9a299-ea99-40dc-906f-b27ddd26c02e

HALLDORSON v HALLDORSON

N/A

13780

Montana

Montana Supreme Court

No. 13780 I N THE SUPRENE COURT OF THE STATE OF MONTANA 1 9 7 7 CAROL J O HALLDORSON, P l a i n t i f f and R e s p o n d e n t , -vs- JOSEPH B. HALLDORSON, D e f e n d a n t and A p p e l l a n t . A p p e a l f r o m : D i s t r i c t C o u r t of t h e Fourth J u d i c i a l D i s t r i c t , H o n o r a b l e E d w a r d D u s s a u l t , Judge presiding. C o u n s e l of R e c o r d : For A p p e l l a n t : S m i t h L a w F i r m , H e l e n a , M o n t a n a R o b e r t J. S e w e l l , Jr. argued, H e l e n a , M o n t a n a For R e s p o n d e n t : Patterson, M a r s i l l o & T o r n a b e n e , M i s s o u l a , M o n t a n a C h a r l e s J. T o r n a b e n e argued, M i s s o u l a , M o n t a n a S u b m i t t e d : D e c e m b e r 6 , 1 9 7 7 CEJ 2 8 19!. D e c i d e d - - - T - Filed: Mr. Justice John C. Harrison delivered the Opinion of the Court. Appellant Joseph B. Halldorson appeals from the final decree of dissolution of marriage entered in the district court, Missoula County, January 27, 1977. The court ordered dissolution of the marriage between appellant and respondent Carol Jo Halldorson, awarded custody of the parties1 three year old son to respondent, ordered appellant to pay $150 per month child sup- port, and made a division of their property. Respondent filed a petition for dissolution of marriage September 9, 1976, asking for custody of the child, child support, and a property settlement. Appellant counterclaimed for custody, child support, and a different division of property. Custody and visitation became a problem pending the trial and on December 21, 1976, respondent sought and obtained a tempor- ary custody order, temporary child support, and an order prevent- ing appellant from using the family home or disturbing the peace of respondent. Such order was made permanent pendente lite follow- ing a hearing. Trial was set for December 15, 1976, at which time respon- dent (petitioner in the divorce proceeding) began her case-in- chief. Respondent herself was sworn and testified first. At the conclusion of her testimony, the district judge made the follow- ing statement: "THE COURT: I will at this time take a short recess, and I would just state to any witnesses who are here: both of these people, Petitioner and Respondent, are public employees just like I am, and I do not favor anyone exposing their wash-- their dirty linens--in public. Those who are here I don't believe will have to remain to testify, because there's not that much difference, in reading the file, between the two parties. They're both very fine people; very well educated people. They both love that child. They both love that property. "I think the Petitioner stated it's up to the Court, and I don't want to cut you people off, but a decision made by a Court is never as good as the one made between the parties. Somebody is going to, I suppose, suffer from it, but I'd like to see for a few minutes after I get a chance to talk to counsel, both Mr. and Mrs. Halldorson in Chambers without counsel. Thank You." A recess was called and the trial was never reconvened. The district court filed proposed findings of fact and conclusions of law January 6, 1977, and its final decree on Jan- uary 27. There is record of objection either the discontinuance of the trial, nor is there any objection to the proposed findings and conclusions. On February 28, 1977, appellant filed a motion to vacate j udgment with the district court. Apparently the motion to vacate judgment has not been acted upon. The controlling issue on appeal is No. 1 and in view of the fact the case must be returned to the trial court, we will discuss only that issue--due process. Appellant argues that due process, in its most rudimen- tary form, requires that a party have his day in court and appel- lant was deprived of his day in court by the termination of the trial. He relies generally on several state and federal cases, such as Thompson v. Tobacco Root Co-op, (1948) 121 Mont. 445, 450, "It is well settled that notice and opportunity to be heard are essential elements of due process." More specifically, appellant relies upon an Arizona case, Marco v. Superior Court, (1972) 17 Ariz.App. 210, 496 P.2d 636. In Marco, the Arizona Supreme Court overturned a restraining order which had been issued on the basis of the pleadings alone. The trial court had refused to conduct a hearing on the matter even though the complaining party strongly objected. The supreme court held that the refusal of the district court to conduct a hearing deprived complainant of her right to due process under the Fourteenth Amendment, which " * * * means that no citizen shall be deprived of his life, or his liberty, or his property, without reasonable notice and reasonable opportunity to be heard according to the regular and established rules of procedure." Marco, 496 P.2d at 638. Respondent does not seem to question that the action of the district court would be error if properly objected to, but argues that appellant waived any error by failing to object to the procedure. Respondent points to a long line of Montana cases, not involving the precise factual situation as here but stating the general rule that an objection raised for the first time on appeal is not timely. Berdine v. Sanders County, (1974) 164 Mont. 206, 520 P.2d 650; Boehler v. Sanders, (1965) 146 Mont. 158, 404 P.2d 885. Respondent states appellant was not deprived of notice and opportunity to be heard--he had the opportunity but failed to avail himself of it. The nearest case supporting respondent's (1972) position is Turner v. Turner,/l57 Mont. 262, 484 P.2d 1303. This Court in Turner dismissed an appeal from findings of fact and conclusions of law because appellant failed to except to the findings, conclusions and judgment at the District Court level. In reply appellant requests this Court to consider and apply the "Plain error" doctrine under which this Court may con- sider questions raised for the first time on appeal if the error affects the substantial rights of the parties. 5 Am Jur 2d Appeal and Error 5 549, p. 34; 5 C.J.S. S 1220, p. 42. While this doc- trine has not previously been recognized in this jurisdiction it has nationwide recognition in both the Federal system and in the courts of most of the state jurisdictions. Ordinarily errors not raised below will not be considered on appeal, however this rule is subject to the exception that h the question is raised for the first time on appeal it relates to the fundamental rights of the parties. As noted by the Washington Supreme Court in the case of Maynard Investment Co. v. McCann, 77 Wash.2d 616, 465 P.2d 657, 661: "The exception to the rule is a salutary one. Courts are created to ascertain facts in a con- troversy and to determine the rights of parties according to justice. Courts should not be con- fined by the issues framed or theories advanced by the parties if the parties ignore the mandate of a statute or an established precedent * * *." See also State v. Kaliman, 10 Wash.App. 41, 516 P.2d 1096; Kudrna (1977) Comet Corporation,/ Mont. t See M.R.Ev., Rule 103. We note here that appellant alleges that there is no record that his trial attorney ever saw the trial court's findings of fact and conclusions of law, and that he had no opportunity to object. However, the record shows counsel made a motion to vacate judgment . In adopting the "plain error" doctrine we believe that appellate courts have a duty to determine whether the parties be- fore them have been denied substantial justice by the trial court, and when that has occurred we can, within our sound discretion, consider whether the trial court has deprived a litigant of a fair and impartial trial, even though no objection was made to the conduct during the trial. In adopting this rule we hold that the exception will not be applied where the failure or refusal to raise the issue in the trial court was conscious and intentional on the part of trial counsel. Johnson v. United States, 318 U.S. 189, 87 L.Ed. 704, 63 S.Ct. 549, reh.den. 318 U.S. 801, 87 L.Ed.1164, 63 S.Ct. Judgment is reversed and the cause is returned to the District Court for a new trial. W e concur: iw Chief J u s t i c e

December 28, 1977

d10becbe-c58d-428a-96e2-b2e4d6299cb3

Harbor Village Homeowners Assoc. v.

2016 MT 13N

DA 15-0337

Montana

Montana Supreme Court

DA 15-0337 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 13N HARBOR VILLAGE HOMEOWNERS ASSOCIATION, INC., a Montana Corporation, Petitioner and Appellee, v. SAM WALDENBERG and SHIRLEEN WEESE, individually and as Trustees of the S&SW TRUST, Respondents and Appellants. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-12-1190C Honorable Heidi J. Ulbricht, Presiding Judge COUNSEL OF RECORD: For Appellants: Richard De Jana, Richard De Jana & Associates, PLLC, Kalispell, Montana For Appellee: Paul A. Sandry, Johnson, Berg & Saxby, PLLP, Kalispell, Montana Submitted on Briefs: December 2, 2015 Decided: January 14, 2016 Filed: __________________________________________ Clerk January 14 2016 Case Number: DA 15-0337 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Sam Waldenberg and Shirleen Weese appeal the Eleventh Judicial District Court’s order dismissing their claims against the Harbor Village Homeowners Association (HVHOA or Association). We affirm. ¶3 In 1997, a developer established the residential Eagle Bend West Subdivision in Big Fork, Montana. The residential properties within Eagle Bend were subject to specific covenants established by the Eagle Bend homeowners association. These 1997 covenants as well as Articles of Incorporation and Bylaws for Eagle Bend West Community Association were filed and recorded with the Flathead County Clerk and Recorder but the Articles were never filed with the Montana Secretary of State. In 1998, husband and wife Waldenberg and Weese (Homeowners) purchased two lots located on Harbor Drive in the Eagle Bend subdivision. In 2001, the members of the homeowners association (HOA), including Waldenberg and Weese, approved changing the name of the HOA to Harbor Village Homeowners Association. The HVHOA amended its covenants in both 2002 and 2011. ¶4 In 2011, Homeowners sought approval from the Design Review Committee of the HVHOA for the construction of a fence around the perimeter of their property. In June 2012, the HVHOA approved their design and the submitted application for construction. In August 2012, after construction was underway, the HVHOA determined the fence was not in 3 compliance with the application and issued a Notice of Non-Compliance. Homeowners disregarded the notice. In October 2012, in reliance upon the 2011 covenants, the HVHOA petitioned for a temporary restraining order and injunctive relief to prohibit further construction and to require removal of the non-compliant fence. Homeowners counterclaimed seeking in part a declaratory judgment that the HVHOA was not a valid homeowners association and therefore had no governance authority over Homeowners’ property. Homeowners further sought restitution of the membership fees they had paid to HVHOA since 2002, plus interest. ¶5 The District Court ruled on summary judgment that the 2011 amended covenants were void because they had not been amended properly under the terms of the original 1997 covenants. Consequently, the court held that HVHOA could not proceed with its petition under the 2011 covenants. The court offered the HVHOA the option of amending its complaint to proceed under either the 2002 or 1997 version of the covenants but the Association declined, electing instead to simply defend against the Homeowners’ counterclaims. The District Court also ruled that Homeowners could not receive attorney fees under the void 2011 covenants. ¶6 Homeowners amended their counterclaims to include a claim for abuse of process, malicious prosecution, and interference with quiet enjoyment. A bench trial was held October 27 through 29, 2014. In May 2015, the District Court issued its Findings of Fact, Conclusions of Law and Judgment. The court determined that the 1997 covenants created and established a valid and lawful homeowners association. Additionally, it held that while the 2002 amendments to the covenants were not adopted in compliance with the terms of the 4 1997 covenants, the HVHOA was nonetheless a legitimate homeowners association having been ratified by its members, including Homeowners, all of whom had accepted the Association and its governance since 2002. The court concluded that the Association had not properly amended the covenants in 2002 or 2011; therefore, the 1997 covenants remained in effect. ¶7 The District Court also determined that Homeowners were not entitled to reimbursement of the HVHOA dues they had paid since 2002 because they had over the years accepted the benefits of the Association in exchange for the payment of dues. The court concluded that Homeowners had ratified the “possibly” voidable contract with the HVHOA by subsequent consent through participation with the HOA and acceptance of its benefits. ¶8 The District Court also addressed the Homeowners’ claims of unjust enrichment, abuse of process, and malicious prosecution and concluded that Homeowners had not established recoverable claims under these legal theories. Lastly, the court concluded that Homeowners were not entitled to punitive damages because the HVHOA’s challenged actions were not motivated by actual malice. The District Court dismissed Homeowners’ claims against the HVHOA with prejudice and ordered both parties to bear their own attorneys’ fees and costs. ¶9 Homeowners appeal claiming the District Court erred in concluding the HVHOA was a valid homeowners association and that Homeowners were not entitled to their attorneys’ fees. 5 ¶10 Homeowners assert that because HVHOA was not the homeowners association created by and named in the 1997 covenants it could not assume the authority granted in those covenants. They claim that the court erred by basing its judgment on HVHOA’s articles and by-laws rather than the 1997 covenants and erred in concluding that they are estopped from challenging HVHOA’s authority. We are unpersuaded and conclude the District Court did not err in applying the doctrine of ratification. ¶11 In Erler v. Creative Fin. & Invs., 2009 MT 36, 349 Mont. 207, 203 P.3d 744, we discussed the “robust history” of the doctrine of ratification within our State’s jurisprudence, noting that “[r]atification appeared even before statehood.” Erler, ¶ 25 (citing Schnepel v. Mellen, 3 Mont. 118 (1878)). Ratification is defined as “the confirmation of a previous act done either by the party himself or by another.” Erler, ¶ 25. Ratification is a form of equitable estoppel and is applied both in the agency context as well as in contracts. A previously formed voidable contract may be ratified by subsequent actions of the parties which in turn bind the parties to the terms of the contract and entitle them to the proper benefits of the contract. Erler, ¶ 26 (quoting In Audit Servs. v. Francis Tindall Constr., 183 Mont. 474, 477-78, 600 P.2d 811, 813 (1979)). Section 28-2-304, MCA, provides “A contract which is voidable solely for want of due consent may be ratified by a subsequent consent.” ¶12 In the case before us, the creation of HVHOA was not in compliance with the covenant amendment provisions of the 1997 covenants. However, the members of the HVHOA, including Homeowners, began paying dues to the Association in 2002 and most members still continue to do so. Additionally, HVHOA, since its creation, has used 6 membership dues to secure goods and services to the benefit of its membership. HVHOA members have accepted these benefits of membership and many, including Homeowners, have actively participated in HVHOA as board members and officers. While HVHOA may not have been lawfully created in 2001 under the 1997 covenants, its actions have nonetheless been repeatedly ratified by the Association members, including Homeowners, since 2002. ¶13 We affirm the District Court’s application of ratification and its determination that HVHOA was a valid homeowners association with enforcement authority over its members. We also affirm the court’s refusal to grant Homeowners’ request for restitution of their HVHOA membership dues. We therefore need not address the additional claims for relief presented by Homeowners, as these claims are premised upon Homeowners’ assertion that the HVHOA was not a valid HOA. We further affirm the District Court’s denial of Homeowners’ request for attorneys’ fees under the 1997 covenants. ¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The District Court’s findings of facts are supported by substantial evidence and the legal issues are controlled by settled Montana law which the District Court correctly interpreted. ¶15 Affirmed. /S/ PATRICIA COTTER We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON 7 /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA

January 14, 2016

d76ef178-45e9-4d69-81bc-3a23b25eb3f4

State v. Deshazer

2016 MT 8

DA 14-0551

Montana

Montana Supreme Court

DA 14-0551 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 8 STATE OF MONTANA, Plaintiff and Appellee, v. TANRE DESHAZER, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 2013-243 Honorable James A. Haynes, Presiding Judge COUNSEL OF RECORD: For Appellant: Natalie Wicklund, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General; Helena, Montana William Fulbright, Ravalli County Attorney, Thorin Geist, Deputy County Attorney; Hamilton, Montana Submitted on Briefs: October 28, 2015 Decided: January 12, 2016 Filed: __________________________________________ Clerk January 12 2016 Case Number: DA 14-0551 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Tanre Deshazer appeals an order of the Thirteenth Judicial District Court, Ravalli County, denying his motion to dismiss a charge of felony theft by common scheme for improper venue. We address the following issue: Whether the District Court erred when it denied Deshazer’s motion to dismiss for improper venue. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In December 2013, the State of Montana charged Deshazer with felony theft by common scheme for double-cashing seven paychecks issued by SS Staffing Inc., an employment agency located in Ravalli County. SS Staffing issued the paychecks for Deshazer’s work as a temporary employee at The Springs, a senior living community in Missoula County. ¶4 Between October and December 2012, Deshazer electronically deposited the seven paychecks to his Bank of America account via a mobile banking application on his smartphone. Using the application, Deshazer sent a photograph of each paycheck and a note of its amount to Bank of America for deposit. After making the electronic deposits, Deshazer retained the physical paychecks; then, between February and April 2013, Deshazer endorsed, submitted, and received cash for those same paychecks at either a 3 Walmart or an Albertson’s in Missoula. Bitterroot Valley Bank in Ravalli County,1 where SS Staffing does its banking, honored all fourteen deposits and later reimbursed SS Staffing for the duplicate charges. ¶5 In April 2013, an SS Staffing employee reported the double-cashed paychecks to the Hamilton Police Department in Ravalli County. Deshazer admitted to double-cashing the paychecks, and the State charged him in Ravalli County with one count of felony theft by common scheme. Deshazer moved to dismiss the charges against him, alleging that they were brought in an improper venue. At a May 8, 2014 pre-trial hearing, the District Court verbally denied Deshazer’s motion, concluding that Ravalli County was a proper venue. The District Court issued its written opinion and order denying Deshazer’s motion on June 2, 2014. The District Court concluded that the State could charge Deshazer with theft in Ravalli County because the stolen funds were unlawfully transferred from SS Staffing’s bank account at Bitterroot Valley Bank in Ravalli County. ¶6 On June 3, 2014, at the conclusion of a non-jury trial, Deshazer was convicted of felony theft by common scheme. The parties stipulated to $1,549.03 in restitution, and Deshazer was sentenced to a five-year commitment to the Department of Corrections. On appeal, Deshazer contends that the District Court erred by denying his motion to dismiss for improper venue. 1 Deshazer requests that this Court take judicial notice of the Secretary of State’s Registry that Bitterroot Valley Bank is located in Lolo, in Missoula County. We decline to do so, as that fact was not presented below and we “will not consider on appeal facts that are not found in the record.” State v. Bromgard, 273 Mont. 20, 23, 901 P.2d 611, 613 (1995). 4 STANDARD OF REVIEW ¶7 We review de novo a district court’s grant or denial of a motion to dismiss in a criminal case. State v. Young, 2007 MT 323, ¶ 24, 340 Mont. 153, 174 P.3d 460. DISCUSSION ¶8 Whether the District Court erred when it denied Deshazer’s motion to dismiss for improper venue. ¶9 The Montana Constitution safeguards a criminal defendant’s right to a trial by a “jury of the county or district in which the offense is alleged to have been committed.” Mont. Const. art II, § 24. In line with this provision, § 46-3-110(1), MCA, requires criminal charges to be filed “in the county where the offense was committed.” However, when the requisite acts of a criminal offense occur in more than one county, “the charge may be filed in any county in which any of the acts or offenses occurred.” Section 46-3-112(1), MCA. Similarly, “if the county in which the offense was committed cannot be readily determined, the offender may be charged in any county in which it appears that an element of the offense occurred.” Section 46-3-114(1), MCA. ¶10 The State charged Deshazer with the crime of felony theft by common scheme pursuant to § 45-6-301(1), MCA. “A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner” with “the purpose of depriving the owner of the property.” Section 45-6-301(1), MCA. Felony theft thus consists of two elements: “a knowing exertion of control and a purpose to deprive.” State v. Eagle Speaker, 2000 MT 152, ¶ 13, 300 Mont. 115, 4 P.3d 1 (citing § 45-6-301(1)(a), MCA (Compiler’s Cmts.)). 5 Under the Montana Constitution, the State had the authority to bring charges against Deshazer in any county in which either of these elements occurred. See Eagle Speaker, ¶ 24 (“[T]he offense of theft occurs for jurisdictional purposes where the elements of that offense take place.”). ¶11 The parties dispute the moment in time at which Deshazer “knowingly exert[ed] unauthorized control” over the property of SS Staffing. See § 45-6-301(1), MCA. In its order denying Deshazer’s motion to dismiss, the District Court concluded that Ravalli County was an appropriate venue because “the requisite act of exerting unauthorized control over money occurred when Deshazer cashed each of the 7 checks a second time, causing funds to be unlawfully transferred from SS Staffing’s bank account at Bitterroot Valley Bank, thereby acting negatively upon these two Ravalli County based entities.” On appeal, Deshazer contends that Ravalli County was not a proper venue because “Mr. Deshazer completed the theft when he accepted the cash” and, thus, “[e]very element of Mr. Deshazer’s theft transpired within Missoula County.” By contrast, the State contends that “[u]nauthorized control did not occur until Bitterroot Valley Bank transferred the funds” for the duplicate checks. ¶12 “[A] theft is complete once all the elements of the theft transpired.” Eagle Speaker, ¶ 15. The State cites State v. Cline, 170 Mont. 520, 555 P.3d 724 (1976), to support its argument that Deshazer’s theft was not complete until the funds for the duplicate checks were retracted from SS Staffing’s bank account at Bitterroot Valley Bank. In Cline, we held that Lewis and Clark County was a proper venue to charge a defendant with obtaining money by false pretenses because one of the elements of that 6 crime—“fraud in obtaining the state’s settlement money”—occurred “in Lewis and Clark County where the settlement money was disbursed.” Cline, 170 Mont. at 533, 555 P.3d at 732-33. Deshazer attempts to distinguish Cline by arguing that, in Cline, “the disbursal action completed the element of fraud.” By contrast, Deshazer argues, a theft charge does not require a victim to assent to action, so Deshazer committed a theft “as soon as” he received cash for his paychecks at Albertson’s or Walmart. ¶13 Section 45-6-301(1), MCA, specifically requires the exertion of “unauthorized control over the property of the owner” (emphasis added). The parties do not dispute that SS Staffing owned the bank account from which the money for Deshazer’s duplicate paychecks was retracted. Until the funds were transferred out of SS Staffing’s account, Deshazer did not exert unauthorized control over SS Staffing’s property. We find Deshazer’s attempt to distinguish Cline unpersuasive. ¶14 SS Staffing, based in Ravalli County, issued Deshazer’s paychecks. Deshazer first electronically deposited seven paychecks into his own bank account. He then took the same seven paychecks to retailers in Missoula County and received cash in exchange for them. Deshazer did not obtain control of SS Staffing’s property until the duplicate amounts were transferred from SS Staffing’s bank account at Bitterroot Valley Bank. ¶15 Had Deshazer’s theft been interrupted immediately after he had cashed the checks, or had Bitterroot Valley Bank refused to honor the checks before retracting the money from SS Staffing’s bank account, then Deshazer’s theft would have been perpetrated against Walmart and Albertson’s, since they would have been the “owners” of the money over which he had exercised “unauthorized control.” See § 45-6-301(1), MCA. But that 7 is not what happened in this case. The checks were honored, and duplicate funds were retracted from SS Staffing’s account, thus completing Deshazer’s theft of SS Staffing’s funds. Accordingly, the element of theft requiring the exertion of unauthorized control over property of the owner occurred in Ravalli County when the stolen funds were transferred out of SS Staffing’s bank account. The District Court did not err in concluding that Ravalli County was a proper venue for the State to charge Deshazer with felony theft by common scheme. CONCLUSION ¶16 We affirm the District Court’s decision and order denying Deshazer’s motion to dismiss for improper venue. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE

January 12, 2016

56f731b4-bdb9-4110-975f-0f011c42d19d

OLSON v CARTER

N/A

13734

Montana

Montana Supreme Court

No. 13734 IN THE SUPREME COURT OF THE STATE OF MONTANA MARTIN OLSON, Plaintiff and Respondent, -vs- CLARK CARTER, Defendant and Appellant. Appeal from: District Court of the Tenth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Bradley B. Parrish argued, Lewistown, Montana For Respondent: Rapkoch and Knopp, Lewistown, Montana Peter L. Rapkoch argued, Lewistown, Montana . . -. -, Filed: - Submitted: September 30, 1977 M r . Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Defendant appeals from a judgment of the District Court, Fergus County, awarding plaintiff the unpaid balance on a con- tract for fattening cattle, plus attorney fees. During September, 1974, the parties to this suit dis- cussed the possibilities of plaintiff feeding and fattening de- fendant's cattle. A written contract was signed in November, 1974, setting forth the services and feed to be supplied by plaintiff, the compensation to be paid by defendant, and the basis for com- putation of the feeding charge. Pursuant to this contract, de- fendant delivered to plaintiff 204 head of cattle to be fed and fattened in plaintiff's feedlot. Defendant was thereafter billed monthly for feeding costs. Accordingly, defendant paid $27,935.11 as payment for plaintiff's feeding of the cattle before refusing to pay any additional sums. Plaintiff sued defendant for the unpaid balance on the contract for feeding and fattening the cattle. The complaint alleged that defendant owed $20,037.41. Defendant refused to pay this amount on the ground that the total billing placed the cost per pound of gain at $.98 whereas the anticipated price for fattening assured by plaintiff was to be around $.50 per pound of gain. Defendant contends the difference between the antici- pated and actual cost was due to plaintiff's breach of both the written contract and an oral agreement apart from the written contract. Following a nonjury trial, the District Court found plaintiff performed his part of the contract and was entitled to a judgment as prayed for in plaintiff's complaint. In addition, plaintiff was also entitled to recover attorney fees in the amount of $6,679.14. From this judgment defendant appeals. Defendant raises the following issues on appeal: 1 . Did the District Court err in finding that plain- tiff had fully performed his part of the Custom Cattle Feeding contract? 2. Did the District Court err in awarding plaintiff $20,037.41 plus interest as damages? 3. Did the District Court err in awarding attorney fees in the amount of $6,679.14? The parties to this appeal are not disagreeing as to the law applied, but rather over the facts as found by the District Court. Issues one and two are combined in reviewing whether evidence exists to support the findings of the District Court. In considering the totality of the facts before the District Court, this Court notes two principles of appellate review. First, where there is substantial evidence to support the findings of the District Court, this Court will not review such findings unless there is a clear preponderance of evidence against such findings. Merritt v. Merritt, (1975) 165 Mont. 172, 177, 526 P.2d 1375. Second, the credibility and weight given to the witness, especially where the evidence is conflicting, is a matter for the District Court's determination in a nonjury case. Mont. Miller v. Fox, (1977) - f - P.2d , 34 St.Rep. 1367, 1370. Defendant argues that plaintiff failed to perform his part of the written contract and therefore was not entitled to the damages awarded. Included within this failure to perform was plaintiff's breach of the collateral oral agreement apart from the written agreement. Pursuant to this collateral oral agreement plaintiff allegedly agreed to abort the heifers included in the cattle de- livered for feeding. The heifers were not aborted thereby causing a high death loss and poor fattening result. At trial, when defendant offered testimony concerning this oral agreement, plaintiff offered evidence to contradict the existence of such agreement and maintained a continuing objection as to any evidence not supported by the written contract being inadmissible under the par01 evidence rule. Such objections were overruled. From the conflicting versions presented by plaintiff and de- fendant the District Court chose to rule that plaintiff had per- formed his part of the written agreement. while no mention of the oral agreement was made by the District Court, the findings of fact are inconsistent with and contradictory to the existence of such an oral contract. The inference of such a ruling is that no collateral oral agreement existed, or, if there was, then the plaintiff performed his part of that agreement. This Court must sustain the District Court's ruling on this point: "From these conflicting versions presented by plaintiff and defendant as to the terms of their contract, the trial judge chose to believe de- fendant * * *. This Court must sustain the trial judge's ruling on this point. " ' * * * The credibility and weight given to wit- nesses, however, is not for this Court to deter- mine. This is a primary function of a trial judge sitting without a jury; it is of special consequence where the evidence is conflicting.'" Miller, supra at 1370. Although this Court will not review the credibility and weight given to witnesses by the District Court in establishing performance of the cattle feeding contract, this Court will re- view the sufficiency of the evidence to support the damages awarded. From the record, a written contract was entered into by the parties. Section 13-705, R.C.M. 1947, sets forth the rule of interpretation of contracts: "When a contract is reduced to writing, the in- tention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this chapter." In Batey Land & Livestock Co. v. Nixon, (1977) Mont. , 560 P.2d 1334, 34 St.Rep. 105, 110, this Court cited Fulton v. Clark, 167 Mont. 399, 538 P.2d 1371 in stating: " * * * The plain and clear meaning of the instruments is to control and the intent of the parties is to be ascertained from the instru- ments. " Pursuant to the contract, defendant was to pay for "Purchased barley and hay at cost plus interest at 1% p/mon, "Raised haylage at market value", "Minerals and vitamins--supplements (hand mixed) at cost". Plaintiff testified that the average cost of all the barley fed to defendant's cattle was $6.41 per hundred weight. Plaintiff also testified that the charge to defendant for the barley was $6.75 per hundred weight. Plain- tiff included in the total charge for barley an additional $0.13 per hundred weight for storage and $0.15 per hundred weight to pay for the cost of a capital improvement. Defendant contends that although the charge for storage may be correct, the $0.15 charged on the barley to construct capital items should not be charged to him pursuant to the contract. We agree. The "plain and clear meaning of the instrument" controls the intent of the parties. Nowhere in the written agreement is there a provision to charge defendant for capital items. Additionally, paragraph I of the contract states the following: "Feeder hereby agrees to take delivery of said cattle for the purpose above stated and to handle and care for them in keeping with his experience and knowledge of the cattle feeding and artificial insemination businesses and acts, upon which the Owner relies, and pursuant to the standard of practice of said businesses in the Central Montana area. " The average cost of all the barley charged to defendant was $6.41 per hundred weight. Plaintiff's testimony as to his cost is as follows: "A. No. We purchased this barley, some of this barley arrived prior to December 30th, December 2nd, 31st and 20th, and most of it in January. "Q. But it was all purchased at the same price? A. No. "Q. Did it follow the market price? A. Well, I hope it did. We purchased some at $7.00, some at $5.70, some at $6.08, some at $6.25, some at $6.55 and 6.55, 6.50 and 6.35. "Q. That's in a chronological order, 6.35 was the last? A. $6.35 was the last - no. No. The last bunch of barley I bought was $6.25. "Q. Isn't it a fact that the price of barley from November, '74 to March, '75, went down? A. No, it was not. "Q. It didn't go down? A. No. After January lst, it went up. T-Bone paid $7.25 for barley, if you please." Contrary testimony as to the price of barley was given by the manager of the Con-Agra grain elevator in Lewistown, Montana. The manager stated that the highest cost for barley between October, 1974, and March, 1975 was during November, 1974, when Barley reached $6.50 per hundred weight. From that month for- ward, the price went down reaching a low in March, 1975 of $5.20 per hundred weight. No evidence exists to explain the differ- ence between the price paid by plaintiff and the price of barley sold at the local grain elevator in Lewistown. The third issue raised on appeal concerns the award of attorney fees. Defendant contends the District Court abused its discretion in awarding attorney fees in the amount of $6,679.14. We agree. The contract under which plaintiff sued provided for recovery of reasonable attorney fees in the event the defendant failed to make payments as provided by the contract. The only evidence presented to establish reasonable attorney fees was the testimony of plaintiff's attorney. That testimony revealed 15 hours had been spent working on the case. For this 15 hours over $6,000 was charged based on a contingent fee arrangement be- tween the plaintiff and his attorney. On the basis of this evidence, the court awarded plaintiff $6,679.14 as reasonable attorney fees. In Engebretson v. Putnam, Mont . - - I P.2d I 1246. 34 St.Rep. 1241,/(#13679, filed 11/4/77) this Court faced the same question under almost identical facts. This Court stated: "We disapprove of an award of attorney fees based on this type of documentation. We have previously approved guidelines for such an award. Crncevich v. Georgetown Recreation Corp., 168 Mont. 113, 541 P.2d 56 (1975). * * * "The retainer agreement between plaintiff and her attorney does not conform to the above requirements. The result of the negotiations between an attorney and his client as to their fee agreement is not controlling in fixing a reasonable attorney fee to assess against the opposing party. Such an award must be deter- mined in accordance with the guidelines enumerated in Crncevich." This case warrants the same result. The award must be based in accordance with the guidelines enumerated in Crncevich. For the above reasons, this case is remanded for a re- determination of the amount of t We concur:

December 28, 1977

4c963d50-d85c-4e1f-9f72-c256bb550fc3

CORSCADDEN v KENNEY

N/A

13653

Montana

Montana Supreme Court

No. 13653 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 NELSON E. CORSCADDEN, Plaintiff and Respondent, -vs- STEPHEN J. KENNEY, Defendant and Appellant. Appeal from: District Court of the Seventeenth Judicial District, Honorable Thomas Dignan, Judae presiding. Counsel of Record: For Appellant: Douglas Y . Freeman argued, Hardin, Montana For Respondent: Robert Hurly argued, Glasgow, Montana Filed: Submitted: December 2, 1977 Mr. Justice John Conway Harrison delivered the Opinion of the Court. Nelson E. Corscadden, d/b/a Corscadden Steel Construction Company, brought this action against Stephen J. Kenney, seeking damages occasioned by an alleged breach of contract by Kenney. Kenney answered and counterclaimed for alleged equipment rental due and damages resulting from alleged defective workmanship and default by Corscadden. A nonjury trial was commenced in the District Court, Valley County, on December 2, 1976. By its findings of fact and conclusions of law dated December 30, 1976, the District Court, the Honorable Thomas Dignan presiding, rendered judgment for plain- tiff Corscadden in the amount of $8,961.55 with interest at 6 percent per annum, and denied Kenney's counterclaim. Kenney appeals the judgment and the denial of his counterclaim. Defendant Kenney, a contractor from Hardin, Montana, was the successful bidder with the United States Corps of Engineers on a contract to rehabilitate a barge at Fort Peck, Montana. A por- tion of the rehabilitation consisted of welding on the barge. Corscadden submitted a bid to Kenney, seeking to subcontract per- formance of the welding services. The bid was rejected. However, in May, 1975, a verbal agreement was entered into between Kenney, by his superintendent Ralph Marcher, and Corscadden. Kenney hired Corscadden and his employees on an hourly basis to furnish labor by certified welders, welding material and two welding machines at a rate of pay of $16 per man hour. Corscadden and his employees were to begin performance in May, 1975. Although Corscadden and his employees were based in Glasgow, Montana, a distance of 17 miles from the job site, no agreement was reached at the time concerning mileage charges. Corscadden moved the welding equipment from Glasgow to Fort Peck and began performance on May 12, 1975. On June 22, however, a dispute arose between the parties concerning the rate at which the work was progressing. Corscadden terminated the employment and moved his men and equipment off the job. On June 24, unable to locate replacement welders, Marcher reached a verbal agreement with Corscadden for continued performance, the terms of which, for the greater part, are in dispute. The parties agree that Corscadden and his men were entitled to a new rate of pay of $22 per hour. Corscadden contends, however, the par- ties agreed the new rate of pay would operate retroactively to the beginning of the job, covering some 145-1/2 man hours worked, and mileage charges of $1 per actual mile traveled between Glasgow and Fort Peck, also applicable retroactively. Such items were alleged to have been payable upon completion of the work. Marcher disputes the latter terms. In any event, Corscadden and his men did return to work on June 24, 1975, and commenced performance under the terms of the new agreement. At trial, the parties disputed liability for rent on certain items of Corscadden welding equipment. Kenney and Marcher admitted liability for an exhaust fan, one grinding machine, oxygen and acet- ylene bottles and gauges, and a cutting head. However, Corscadden testified additional items of equipment, consisting of a second grinding machine, a paint respirator, a "scarfing tip", and flood lights were also rented. Marcher asserted the rental rates were to have been those established by a local rental agency, Moen's Equipment Rental of Glasgow. Corscadden testified there was no agreement to so restrict the rental rates, but rather the rates charged were those he typically charges for rental of such items; a rate higher than that charged by Moen's. It should be noted, in this regard, that certain of the items in dispute were not available for rental at Moen's. A further dispute concerns the cost of time and travel for a three day testing and recertification of one of Corscadden's employees, Zane Geer. Corscadden contends Kenney is liable for such costs under the express terms of the prime contract between the United States and Kenney. Kenney denies liability for such costs, arguing Corscadden had agreed to provide certified welders. In support of his counterclaim for damages due to delay and defective workmanship, Marcher testified Corscadden failed to pro- vide the two-man work force agreed upon during May and June, 1975. Other welders were employed by Kenney to complete the job. Kenney stated that, due to the delay, he was unable to bid on other potential jobs. Other defense witnesses indicated, however, the delays were due primarily to the failure of Kenney's crew to have welding steel available and make the job site ready for work. It is undisputed that Kenney was subjected to no fine or penalty due to the ultimate delay in completing performance on the prime contract. Additionally, proper Marcher testified Corscadden's failure to provide the/one-fourth-inch welds required by the terms of the prime contract resulted in approxi- mately 200 hours of rewelding and, thus, additional delay and cost to Kenney. Kenney stated he was damaged in an approximate amount in excess of $10,000. Corscadden testified, however, he was not made aware of the specifications regarding weld thickness and was not informed of the insufficiency of the work at the time it was being performed, although Marcher himself was in constant supervision of the welding work. Corscadden testified that due to Kenney's failure to make scheduled payments on their agreement, he was forced to obtain high cost bank loans to finance his employees' salaries and continued operations. As a result, Corscadden allegedly suffered a loss of credit and damages to his business reputation. Corscadden and his men completed their work on August 20, 1975. Kenney contends his final payment of $6,541.44, by check dated October 30, 1975, was accepted and cashed in full satisfaction of the account. Corscadden denied such sums were accepted as final payment. -4- The District Court gave judgment for Corscadden on all items of damage, save those for loss of credit and business repu- tation. Awarded to Corscadden were the following: Total 824-1/2 hours labor at $22 per hour, including 24 hours compensation for recertification of Corscadden employee Geer . . . . . . . . . . . . . . . . . .$18,139.00 Mileage charges, retroactive to May 12, 1975 . 3,706.00 Equipment rental and other charges . . . . . . 3,727.55 TOTAL DUE CORSCADDEN FROM KENNEY. .$25,572.55 Less payments made by Kenney. .(16,611.00) BALANCE DUE AND OWING. .$ 8,961.55 The court computed 6 percent interest on the rental and other charges from December 15, 1975, the date at which the last of the equipment was returned, and 6 percent interest on the balance owing on the labor and mileage accounts from October 30, 1975, the date at which the last of the payments on such account was made. The District Court denied Kenney's counterclaim on the ground that the work was done under the direct supervision of Kenney's foreman, Marcher, who failed to disclose the plans and specifications to the welders. Thus, Corscadden could not be 5eld responsible for the delays due to faulty welding. The court also denied Kenney's counterclaim for rental due on a welding machine present at the site of the work, finding that its presence was at all times for the convenience of Kenney. The sole determination to be made on this appeal concerns the sufficiency of the evidence adduced at the trial, to sustain the findings of fact and conclusions of law of the District Court, and the judgment subsequently entered thereon. The thrust of appellant's argument on appeal is that the evidence is insufficient to support the judgment of the District Court. The proper standard for review of a lower court's findings of fact and judgment based thereon was recently stated in the case of Strong v. Williams, (1969) 154 Mont. 65, 68, 460 P.2d 90: "* * * Where the evidence is conflicting, but substantial evidence appears in the record to support the judgment, the judgment will not be disturbed on appeal, and this is especially true when the district court, as here, has passed upon the sufficiency of the evidence * * * * ' I See also: McGuire v. American Honda Co., (1977) - Mont . - , 566 P.2d 1124, 34 St.Rep. 632; Rearns v. McIntyre Const. Co., (1977) Mont . , 567 P.2d 433, 34 St-Rep. 703. While the evidence offered below by the respective parties is, in varying degrees, in direct conflict, we conclude the evidence taken as a whole substantially supports the findings of the District Court, with two minor exceptions. Respondent Corscadden contends, and the record makes plain, that appellant Kenney's offered evidence is often unclear and, in certain respects, contradictory. Kenney's primary evidence, in the form of the testimony of his supervisor, Marcher, is ambiguous regarding numerous terms of both the original and renegotiated agree- ments between the parties. The credibility and weight accorded given witnesses is a primary function of a trial judge sitting without a jury and is of special consequence where the evidence is in conflict. This Court will ordinarily sustain such a determination on appeal. Hellickson v. Barrett Mobile Home Transport, Inc., (1973) 161 Mont. 455, 507 P.2d 523; Eliason v. Eliason, (1968) 151 Mont. 409, 443 P.2d 884. We feel the judgment of the District Court, given the facts as presented, is essentially correct. However, the dispute con- cerning the retroactivity of the increased pay rate and mileage charges necessitates a modification of judgment in this case. Cor- scadden never d e m o n s t r a t e d t h a t w c h e r h a d agreed to such terms, as the following direct testimony of Corscadden himself will disclose: "Q. Did you reach any agreement on whether or not this $22 per hour would go back to the start of the contract? A. We had talked about that. We hadn't even been paid for the 145 hours, I don't think, at that- time, and I just assumed that we did. You know, that it would start right from the start. "Q. Did you discuss that with Ralph [Marcher]? A. Yes, we did, and he talked back and forth about it, and I don't remember any decision made whether, you know, that was the way it was going to be or not. "BY THE COURT: Did you ever make an agreement on that? Or what was the situation? A. I don't think there was ever an agreement made one way or the other. "BY THE COURT: On the -- A. I know he didn't want to pay it, and I wanted it. We argued it out, but I don't think there was ever any final agreement made whether they were going to pay it or not." (Emnhasis added.) Further, a Corscadden invoice admittedly submitted subsequent to renegotiation of the agreement on June 24, 1975, gave credit for the additional rate of pay at 145-1/2 hours. This, we feel, con- stitutes a clear admission of nonretroactivity. Likewise, the following direct testimony of Corscadden con- cerning mileage charges indicates no agreement was reached concerning retroactivity of such charges: "A. * * * I told him [Marcher] I wanted a dollar a mile, and he said, 'What? For three men that would come to quite a bit.' I said, 'The men drive their own outfits, but my truck runs over the road, it would be 34 miles a day.' "Q. Did you agree on that? A. Yes. ee --- on whether or - - not that would be retroactive or not? Whether - or not that would go back to the start of the contract .- or not? A. No. - " (~rn~hasis added. ) There being no evidence of record to justify a finding that Corscadden was entitled to the above retroactive rates and, indeed, the entire weight of evidence to the contrary, the judgment must be reduced accordingly, under the previously noted "substantial credible evidence" standard of review. The judgment of the District Court is therefore affirmed, as modified. The cause is hereby remanded to the District Court for recomputation of the amount of judgment under the standards outlined herein. \ y h i e f Justice

December 23, 1977

831e1e64-3b5c-4922-84d8-f31b9649a5ac

KARTES v KARTES

N/A

13299, 13757

Montana

Montana Supreme Court

No. 13757 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THEODORE C. KARTES, Plaintiff and Respondent, DOROTHY A. KARTES, and EMILY J. KARTES, Defendants and Appellants. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Landoe, Gary and Planalp, Bozeman, Montana Hjalmar B . Landoe argued, Bozeman, Montana Gordon Carlson argued, Roseburg, Oregon For Respondent: Larry W. Moran argued, Bozeman, Montana ( . ' I Filed: - Submitted: September 22, 1977 Decided : Ccc 30 r a g 'w6 j Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This case involves an intra-family dispute regarding the ownership of real property located in Gallatin County, Montana. Plaintiff, Theodore C. Kartes, brought the principal action in the District Court, Gallatin County, asking a constructive trust be imposed upon the property for his benefit, and alleging a case of adverse possession, and by reason thereof, possession of the property. Following a non-jury trial, a judgment was entered for plaintiff. Defendants, Dorothy A. Kartes and Emily J. Kartes, appealed from this judgment. During the pendency of the appeal, defendants filed a petition seeking remand of the cause to the District Court to permit filing of a motion for new trial based on the ground of newly discovered evidence. All proceedings before this Court were stayed and the cause remanded to the District Court for the purpose of filing a motion for new trial based on newly discovered evidence. Defendants' motion for new trial was denied following a hearing in the District Court. From this order defendants raise a second appeal. Defendants' two companion appeals, designated as Cause Nos. 13299, and 13757 respectively, and ensuing issues are combined for review. During oral argument of the second appeal, No. 13757, both parties argued the merits of the first appeal, No. 13299. Due to the subject matter covered, this Court deems any objection waived as to the reviewing and deciding of both appeals together. The parties to this appeal are brother and sisters. The property in dispute was acquired in 1936 with legal title being placed in the name of Amanda L. Myers, mother of plaintiff and defendants. The theories, conclusions and evidence offered by both litigants were at all times diametrically opposed. Due to this conflict of evidence, the following findings of fact from the District Court are pertinent to this appeal: "That Plaintiff and Amanda L. Myers jointly agreed that although legal title to the property would be placed in the name of Amanda L. Myers, the property was nevertheless to be considered the separate property of Plaintiff, and Plaintiff would pay back the funds advanced by decedent, Amanda L. Myers, used in its purchase. "That at the time Plaintiff entered the United States Navy in 1942, Plaintiff executed a Power of Attorney to Amanda L. Myers, giving her full power and authority to transact business in Plaintiff's name during the period he was in the service. Amanda L. Myers, while Plaintiff was in the service, through use of the Power of Attorney, acquired and used for her own purposes the approximate sum of $2,800.00, on deposit in Plaintiff's bank account. Use of such funds was in addition to sums theretofore, and thereafter paid Amanda L. Myers by Plaintiff. "That at the time the Power of Attorney was executed by Plaintiff to decedent, Amanda L. Myers in Helena, Montana, in 1942, decedent, Amanda L. Myers, also - executed and delivered a deed conveying the property described in Finding 1, to Plaintiff. Both the Power of Attorney and the deed were left in possession of decedent, Amanda L. Myers. That in 1946, Plaintiff was married, at which time he was expelled from the family home. All papers, documents, and other records belonging to the Plaintiff, including the deed and Power of Attorney, were retained by the decedent, Amanda L. Myers, or Defendant, Dorothy A. Kartes, with whom Plaintiff resided prior to marriage, and have since been misplaced or lost. "That on several occasions decedent, Amanda L. Myers made statements recognizing Plaintiff's ownership of the property described in Finding 1. One such statement was made in 1942, after return from Helena, Montana, when Plaintiff enlisted into the service, decedent, Amanda L. Myers, stating to her husband in the presence of Plaintiff's witness, Ray P. Myers, Jr., to the effect that she had signed a deed conveying the property to the Plaintiff. At about this same time another statement was made by decedent, Amanda L. Xyers, to Plaintiff's witness, Donna Hoell, to the effect that Plaintiff had paid her more than she had due with respect to the real estate, and she had given Plaintiff a deed to the property. Subsequently, in 1946, decedent, Amanda L. Myers, stated to Plaintiff's witness, Kenneth Gee, to the effect that she would like to lease the property described in Finding 1 to him, but could not do so, and then took Mr. Gee to the Ryegate, Montana, area and offered to lease him certain property owned by her in that vicinity. "That the undated deed notarized on March 11, 1968, recorded August 4, 1972, and purportedly conveying the property described in Finding 1 to the Defendants, is a nullity and can be given no legal effect. "That both Defendants stated during the course of the trial of this matter that their claimed ownership was based solely on the deed described in Finding 15, and on no other basis. "That at no time since 1936, and to date has any effort been made by decedent, Amanda L. Myers, and Defendants to legally remove Plaintiff from the premises described in Finding 1.; further, such persons have never demanded that he remove himself from the premises, without being legally forced to do so. "That decedent, Amanda L. Myers, never personally advised the Plaintiff that she claimed ownership of the real property described in Finding 1, nor did said decedent ever personally advise Plaintiff that the agreement under which title was placed in her name was no longer recognized as valid and binding. "That Amanda L. Myers died on April 20, 1973. Thereafter, an estate proceeding was opened in Oregon, which estate proceeding does not concern itself with title to the real property described in Finding 1." The dispositive issue of defendants' first appeal is whether substantial credible evidence exists to support the District Court's findings of fact and conclusions of law. The issue of defendants' second appeal is whether the District Court's refusal to grant a motion for new trial, or in the alternative, a motion to admit newly discovered evidence was error. Defendants' second appeal will be resolved first before discussing the merits of the principal appeal. The question of new trials on the ground of alleged "newly discovered" evidence is statutorily covered by Rules 59 and 60, M.R.Civ.P., and section 93-5603, R.C.M. 1947. The basic criteria for determining new trials on alleged "newly discovered" evidence is: 1. The substantial rights of the party moving for new trial must be materially affected. 2. The "newly discovered" evidence sought to be introduced must be material to the issue involved in the trial. 3. The "newly discovered" evidence must be such as could not have been discovered and produced at trial with the exercise of reasonable (or "due", per Rule 60, M.R.Civ.P.1 diligence, or could not have been discovered by reasonable diligence in time to move for a new trial under Rule 59, M.R.Civ.P. In addition to the statutes and procedural rules, Montana has a wealth of case law on the question of "newly discovered" evidence. This Court, in Kerrigan v. Kerrigan (1943), 115 Mont. 136, 144, 139 P.2d 533, placed the burden on the moving party to show: 1. The alleged "newly discovered" evidence came to his knowledge after the trial; 2. It was not a want of diligence which precluded its earlier discovery; 3 . The materiality of the evidence is so great it would probably produce a different result on retrial; and, 4. The alleged "new evidence" is not merely cumulative, not tending only to impeach or discredit witnesses in the case. Where the moving party in a motion for new trial on the ground of "newly discovered" evidence has had the books and documents in possession, from which he later "discovers" the "new evidence", the motion will be denied, even though the evidence itself may be material. Rand v. Kipp (1902), 27 Mont. 138, 142, 69 P. 714. The burden rests on the defendants to show there was no want of diligence which precluded earlier discovery of the evidence. This burden was not met. The alleged "newly discovered" evidence, consisting of a letter, was at all times in the exclusive possession of the defendants. The defendants were ordered by the District Court to produce documents pursuant to Rule 34, M.R.Civ.P. Three times plaintiff filed motions concerning the production of evidence by the defendants, and one time the defendants filed a like motion. These motions indicate the defendants had every opportunity not only to voluntarily prepare their case, but were also constantly under court order to produce. Nevertheless, defendants were not diligent in their efforts to properly prepare for trial. The testimony at the hearing on the motion for new trial indicates neither defendant made a significant effort to go through the books, records and papers of which the alleged "newly discovered" evidence is a part. The original issue of title and ownership of the ranch was contested at every stage by the continuous assertion of conflicting claims. The alleged "newly discovered" evidence presents nothing new to the positions of the parties and presents nothing so critically material as to reasonably require a different result on retrial. At best, the alleged "newly discovered" evidence is merely cumulative. The findings of fact, conclusions of law and judgment entered by the District Court in the principal case specified several different legal findings and conclusions. Any of these alone would sustain judgment for the plaintiff. Defendants asserted during the trial of the principal case that their title and ownership was based solely upon a deed. The District Court found that no deed existed. The District Court also found in the principal case that the plaintiff possessed the property adversely for the required period of time. The alleged "newly discovered" evidence does not affect these two findings of the District Court. The burden of rebutting legal presumptions of the correctness of the District Court's findings and conclusions, and to establish the relief requested by solid, commanding evidence, rests exclusively on the defendants. This burden was not met. Defendants' second appeal, No. 13757, fails. Having affirmed the District Court's denial of defendants' motion for a new trial, this Court now directs its attention to defendants' principal appeal. Defendants present numerous issues for review. The dispositive issue is whether substantial credible evidence exists to support the District Court's findings of fact and conclusions of law. The overall legal issue--ownership and title to the property-- was the subject of extensive testimony and introduction of exhibits by the litigants during the principal trial. At all times, the position of the respective parties was diametrically opposed. Plaintiff claimed ownership and title to the property under several theories, and defendants likewise claimed ownership and title to the property by a purported deed. The District Court resolved the issue of title and ownership after a careful review of all testimony and evidence received in the case. From the conflicting versions presented by plaintiff and defendants, the District Court chose to accept plaintiff's theories and ruled: "That in addition to being invalid and void as a breach of trust, the deed upon which Defendants assert and claim ownership (notarized March 11, 1968, recorded August 4, 1972) is invalid because it is not a genuine document, and does not contain the genuine signature of the decedent, Amanda L. Myers." The District Court was afforded the opportunity of seeing the witnesses, hearing them testify, and thus was in the best position to understand and construe the testimony in light of all surrounding circumstances. Davis. v. Smith (1968), 152 Mont. 170, 176, 448 P.2d 133. This Court is permitted to review only the cold record according to the established procedure for appellate review. In Luppold v. Lewis (1977), Mont. , 563 P.2d 538, 540, 34 St.Rep. 227, this Court stated: "When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such findings and conclusions will not be disturbed if supported by substantial evidence and by the law. (Citations omitted.) When reviewing evidence it will be viewed in the light most favorable to the prevailing party in the district court, and the credibility of witnesses and the weight assigned to their testimony is for the determination of the district court in a nonjury trial. * * * " In adhering to the guidelines set forth in L ~ p p ~ l d , This Court reviews the evidence existing to support the findings of fact and conclusions of law of the District Court. Extensive testimony was given as to the validity of the signature on defendants' purported deed. Plaintiff produced a document examiner and handwriting expert who testified: "Q. Are you stating an opinion that the signature on this deed is a forgery? A. I feel it is, yes. " 9 . You feel it is? A. Yes." Defendants contradicted this testimony with their own document examiner and handwriting expert who testified: "Q. From the examinations that you have made here, have you formed a conclusion or an opinion as to whether the signature that appears on the deed document of 1968 is or is not a genuine signature of Amanda L. Myers? A. Yes; I have. "Q. What is your opinion? A. That the questioned deed signature of 1968 is a genuine signature by Amanda Myers." Both litigants went to great lengths to discredit the testimony of the other party's expert. The District Court, after seeing the witnesses, and hearing their testimony in light of all the surrounding circumstances, chose to accept the plaintiff's evidence. This Court must accept the District Court's judgment on this point: " ' * * * The credibility and weight given to witnesses, however, is not for this Court to determine. This is a primary function of a trial judge sitting without a jury; it is of special consequence where the evidence is conflicting. * * * ' " Miller v. Fox (19771, Mon t . I P.2d I 34 St.Rep. 1367, 1370, quoting Hellickson v. Barrett Mobile Home Transport, Inc. (1973), 161 Mont. 455, 4 5 i , 507 P.2d 523. No purpose is served by setting forth additional testimony before the District Court. This Court does not choose to second guess the District Court in matters involving conflicts of testimony. The credibility of witnesses and the weight assigned to their testimony is solely for the determination of the District Court. Additional evidence before the District Court to support its decision is: 1. Besides plaintiff's own testimony, plaintiff presented witness Kenneth Gee who stated the property had never been called anything but the "Ted Kartes" place; 2. Plaintiff's witness Donna Hoell stated the property had the reputation of being the "Ted Kartes" place; 3 . Plaintiff's witness Ray Myers, Jr. stated the plaintiff's father tried to buy the "Ted Kartes" ranch from the plaintiff; 4 . Defendant Dorothy Kartes, upon being called as an adverse witness, stated she recalled overhearing a verbal agreement between plaintiff and Amanda L. Myers concerning the property. Dorothy also stated that at one time, Amanda L. Flyers wanted plaintiff to receive the property and that plaintiff could pay for it; and 5 . Defendant Emily A. Kartes, upon being called as an adverse witness, admitted referring to the property as "Ted's beautiful ranch". During this examination as an adverse witness, Emily also stated that Amanda L. Myers had requested that Emily prepare the deed which defendants rely on to claim ownership of the property. The function of this Court is not to determine which version or theory is more plausible. This Court must only determine that substantial evidence exists to support the findings of fact and conclusions of law of the District Court. Following a careful review of the District Court record, this Court finds sufficient evidence to support the findings of fact and conclusions of law of the District Court. The judgment of the District Court is affirmed on both appeals, Nos. 13299 and 13757. We Concur: Justices

December 30, 1977

d4c67607-c0b8-4dbc-ad7a-d58caa0185d4

CLOSE v ST REGIS PAPER CO

N/A

13496

Montana

Montana Supreme Court

No. 13496 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 DONNA J. CLOSE, Claimant and Respondent, -vs- ST. REGIS PAPER COMPANY, Employer, and ST. REGIS PAPER COMPANY, Defendant and Appellant. Appeal from: Workers' Compensation Court Honorable William E. Hunt, Judge presidinq. Counsel of Record: For Appellant: Warden, Walterskirchen and Christiansen, Kalispell, Montana Merritt 13. Warden argued, Kalispell, Montana For Respondent : Daley and Sherlock, Kalispell, Montana Joseph Daley argued, Kalispell, Montana Submitted: October 6, 1977 CEC 2 2 l$Z Decided : ---- Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This is an appeal by an employer from a judgment in favor of its employee by the Workers' Compensation Court. That court held claimant was entitled to temporary total dis- ability benefits from July 21, 1974 to April 6, 1976; reimburse- ment for certain medical expenses and travel costs; and attorney fees. Following denial of its petition for rehearing, the employer appeals to this Court. Claimant sustained an injury in an industrial accident on April 16, 1974, while employed by appellant, St. Regis Paper Company at Libby, Montana. Claimant was attempting to free some lumber that had become lodged in a machine and was struck in the head with a board. Claimant was immediately taken to a hospital and was examined by Dr. Seifert, a Libby-area physician. An X-ray of claimant's skull was taken and proved negative for injury. Claim- ant, however, was experiencing severe pain in her neck and back and a partial numbness of her hands. Dr. Seifert referred claimant to a neurosurgeon in Spokane, Washington, who examined her in May, 1974. No objective evidence of injury was found. Claimant returned to Spokane in July, 1974, and was examined by a second neurosurgeon. Spinal X-rays proved negative for in- jury, and the neurosurgeon diagnosed claimant as suffering from tension which was vascular in origin. He stated that he believed claimant's condition to be triggered by the injury but not directly causally related. Claimant was released to return to work by Dr. Seifert July 15, 1974. However, she complained of continuing pain and stated that she was unable to work. Claimant continued to seek medical aid and was examined by several doctors. On February 4, 1975, claimant was examined by Dr. Forbeck, a neurosurgeon in Great Falls, Montana, Dr. Forbeck concluded that claimant's pain was the result of a cervical disc hernia- tion. On February 20, claimant underwent surgery by Dr. Alex- ander Johnson. No cervical disc problem was found, hut a large osteophytic ridge which was compressing the C7 nerve root was discovered. This osteophytic ridge and a smaller one were removed and claimant recovered without difficulty. The evidence reflects that the osteophytic ridges which were causing claim- ant's discomfort could not have been caused by the accident of April 16, 1974. Dr. Forbeck stated that they undoubtedly ante- dated this injury as they could not have developed during a ten month period. Appellant, who is a Plan I self-insurer under Montana's Workers1 Compensation Act, terminated benefits on July 21, 1974, following the release of claimant to return to work by her doctor. Thereafter, claimant employed counsel to represent her and a hearing was held before the Workers' Compensation Court on April 6, 1976. Claimant was the only witness called to testify. The deposition of Dr. Johnson, who performed the surgery on claimant, was filed. On June 4, the Workers' Compensation Court judge issued his findings of fact and conclusions of law awarding claimant compensation from the date her employer terminated benefits to the date of hearing at the rate of $94.62 per week. He further ordered that claimant be reimbursed for travel costs incurred in seeking medical treatment, medical expenses, and attorney fees. The sole issue on appeal is the sufficiency of the evidence to support the findings of fact and conclusions of law of the Workers' Compensation Court. Specifically appellant questions the findings and conclusions in three areas: (1) Sufficiency of the evidence to support the finding that claimant is entitled to temporary total disability benefits from July 21, 1974 to ~ p r i l 6, 1976; (2) Sufficiency of the evidence to support the finding that appellant is responsible for the medical and travel ex- penses incurred by claimant along with her attorney fees; (3) Sufficiency of the evidence to support the conclu- sion that claimant is entitled to compensation benefits at the rate of $94.62 per week. We recently stated in Bond v. St. Regis Paper Company, Mont. - 1 - P.2d , 34 St.Rep. 1237, 1238 (1977) : "The function of this Court is to determine whether there is substantial evidence to support the find- ings and conclusions of the Workers1 Compensation Court. Flansburg v. Pack River Co., Mont . I 561 P.2d 1329, 34 St.Rep. 183 (1977); Kimball v. Continental Oil Co., 1 4 o n t . , 550 P.2d 912, 33 St.Rep. 517, ( 1 9 7 6 ) . ~ h i s Court will not sub- stitute its judgment for that of the trial court as to the weight of the evidence on questions of fact. Brurud v. Judge Moving & Storage Co., Inc., Employer and Transportation Insurance Co., Mont. , 563 P.2d 558, 34 St.Rep. 260 ( 1 9 7 7 ) , Where there is substantial evidence to support the findings of the Workers' Compensation Court, this Court will not overturn the decision. Skrukrud v. Gallatin Laundry Co., Inc., Mont . , 557 P.2d 278, 33 St.Rep. 1191 (1976)." Appellant raises two questions in its first issue; whether claimants disability is a compensable disability under Montana law and whether claimant has met her burden of proving that the accident of April 16, 1974, caused the onset of her disability. Appellant contends that claimant's problems were caused by a pre-existing condition and are therefore noncompensable, citing LaForest v. Safeway Stores, Inc., (1966) 147 Mont. 431, 414 P.2d 200. The well-established rule in Montana is that an employer takes his employee subject to the employee's physical condition at the time of employment. Schumacher v . Employers Mutual Liability Insurance Co., (1977) Mont . P.2d , 34 St.Rep. 1112; - I - Birnie v. U . S. Gypsum Co., (1958) 134 Mont. 39, 328 P.2d 133; Peitz v . Industrial ~ccident Board, (1953) 127 Mont. 316, 264 P.2d 709. An employee who suffers from a pre-existing condition is entitled to compensation if such condition is aggravated by an industrial injury. Bond v . St. Regis Paper Co., supra; Rumsey v . Cardinal Petroleum, (1975) 166 Mont. 17, 530 P.2d 433; Weakley v . Cook, (1952) 126 Mont. 332, 249 P.2d 926. LaForest v. Safeway Stores Inc., supra, is factually distinguishable from the instant case. In LaForest the claimant experienced pain in her left shoulder in February. She was ex- amined by a physician who diagnosed her condition as chronic bursitis and treated her with cortisone. Two days later claim- ant returned to work. The following month claimant suffered an injury for which she sought compensation benefits. The District Court decision allowing claimant benefits was reversed by this Court on the basis of a determination that the claimant's dis- ability was the result of a disease not traceable to injury and therefore noncompensable. Here the record reflects that claimant was suffering no discomfort prior to the accident; she was able to perform her job with no orthopedic problems. The cases are therefore dis- tinguishable upon their facts. We find substantial evidence to support the Workers' Compensation Court's finding that claimant's injury aggravated her pre-existing condition and she was therefore disabled from the date of injury to April 6, 1976. Dr. Alexander Johnson, the doctor who performed surgery upon claimant, testified in his deposition: "Q. Now, with respect to Mrs. Close, do you have an opinion based on her description of discomfort and its continuousness, as to whether this kind of injury to the nerve root and continuing irri- tation did occur? A. Well, I would assume, as I believe I did indicate, that where there is a sequence of events from the time of the injury and a patient prior to injury who is asymptomatic, that I would assume there is some relationship as an inciting or aggravating factor even though a major portion of the problem pre-existed." Appellant asks us to review the sufficiency of the evi- dence to support the finding that appellant is responsible for the medical and travel expenses incurred by claimant along with her attorney fees. This issue was neither briefed nor argued on appeal and is therefore deemed waived. Appellant finally asks us to review the weekly compen- sation rate of $94.62 established for claimant by the Workers' Compensation Court. Appellant argues that claimant was less than a 40 hour per week employee and she is therefore being over compensated. Claimant's testimony clearly reflects that she worked 40 hours per week during the months preceding her injury with the exception of periods of illness. Appellant chose not to rebut this testimony. Sufficient evidence is therefore present to support the finding. Judgment affirmed. Justice Justices

December 23, 1977

bbe5168a-f183-41f1-9408-846675449316

In re Marriage of Rose

2016 MT 7

DA 15-0353

Montana

Montana Supreme Court

DA 15-0353 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 7 IN RE THE MARRIAGE OF: SHERRI ELAINE ROSE, Petitioner and Appellant, v. MICHAEL THOMAS ROSE, Respondent and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 13-0342 Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: Kevin T. Sweeney, Attorney at Law, Billings, Montana For Appellee: J. Reuss, Guthals, Hunnes, & Reuss, P.C., Billings, Montana Submitted on Briefs: December 9, 2015 Decided: January 12, 2016 Filed: __________________________________________ Clerk January 12 2016 Case Number: DA 15-0353 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Sherri Elaine Rose appeals the findings of fact, conclusions of law, and decree of dissolution of the Thirteenth Judicial District Court, Yellowstone County, dissolving her marriage to Michael Thomas Rose. We restate the issue on appeal as follows: Whether the District Court erred in allocating delinquent tax liability equally between the parties after taxing authorities had determined that Sherri was an “innocent spouse” for purposes of joint tax liability. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 Sherri and Michael married in 1994 and have three children. They resided together in Billings, Montana, for the majority of their marriage before separating in late 2012. Sherri filed a petition for dissolution in March 2013 and, on April 24, 2014, the District Court held a bench trial. ¶4 During their marriage, Michael worked in medical equipment sales and Sherri was primarily a homemaker. Following their separation, Michael moved to Florida to take a job as a surgical supplies sales representative trainer. Sherri returned to work as a cosmetologist, a profession she had held prior to the marriage. ¶5 In 2005, Sherri and Michael bought a house at 2407 Teton Avenue, Billings. Sherri and Michael bought the Teton property as an investment; they planned to improve the house and “flip” it. Over the course of several years, they invested approximately one hundred thousand dollars into improving the Teton property. They were unable to sell it due to the downturn in the housing market following the 2008 financial crisis. Sherri and Michael also owned a recreational cabin in Red Lodge. 3 ¶6 In 2006, Sherri and Michael began to accrue both federal and state income tax liability. By 2012, they had accumulated over $70,000 in delinquent tax liability to the Internal Revenue Service (IRS) and $20,000 in delinquent tax liability to the Montana Department of Revenue (Department). As a consequence, state and federal taxing authorities placed tax liens on both of the Roses’ real properties. ¶7 At the dissolution proceeding, Michael testified that their tax liability accrued because he and Sherri decided to apply the income intended to pay their taxes to improving the Teton property. Their plan, he testified, was to pay the tax liability once the Teton property was sold. He further testified that income that should have been put toward the tax liability also was spent on “vacations and what have you.” Michael proposed during the dissolution proceeding that the tax liability be considered marital debt and that both the Teton property and the Red Lodge property be sold to pay off the tax liability. ¶8 Sherri testified that she was aware that the tax liability was incurred during the marriage and acknowledged that she and the family benefitted from the income that created the tax liability. Prior to the dissolution proceeding, however, she sought and obtained a determination from both the IRS and the Department that she was an “innocent spouse.” The IRS and the Department therefore concluded that Sherri was not liable to the agencies for any of the delinquent tax liability. As a result of the innocent spouse relief, Sherri testified that she received refunds from the IRS and the Department totaling nearly $11,000. Sherri proposed during the dissolution proceeding that the tax 4 liability not be considered marital debt due to her status as an “innocent spouse” and that she be awarded the Teton property. ¶9 At the conclusion of the proceeding, the District Court orally pronounced that it intended to order that both the Teton property and the Red Lodge property be sold, in part, to pay the tax liability: It’s my conclusion that the only reason the tax liability occurred is because [Sherri and Michael] put the money into either living expenses or into the Teton Avenue home and it’s—even though it’s—the IRS decided that they weren’t going to go after Ms. Rose, I think it is a marital debt and should be paid for out of the proceeds. In its written findings of fact, conclusions of law, and decree of dissolution, the court ordered that the Teton and Red Lodge properties be sold and that the proceeds be put towards paying off the tax liability. The court found, “Although the IRS has decided that were [sic] weren’t going to pursue the tax liability against Sherri, the Court finds that the tax liabilities are joint marital obligations because the parties put the money into living expenses or the Teton Avenue home.” Sherri appeals the court’s finding and conclusion regarding the tax liability. STANDARD OF REVIEW ¶10 We review a district court’s findings of fact pertaining to marital property division to determine if they are clearly erroneous. In re Marriage of Crowley, 2014 MT 42, ¶ 24, 374 Mont. 48, 318 P.3d 1031. A finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if our review of the record convinces us that a mistake has been made. Crowley, ¶ 24. We review a district court’s conclusions of law to determine if they are correct. In re 5 Marriage of Bartsch, 2007 MT 136, ¶ 9, 337 Mont. 386, 162 P.3d 72 (hereafter Bartsch II). Absent clearly erroneous findings, we will affirm a district court’s property division unless we identify an abuse of discretion. Bartsch II, ¶ 9. DISCUSSION ¶11 Whether the District Court erred in allocating delinquent tax liability equally between the parties after taxing authorities had determined that Sherri was an “innocent spouse” for purposes of joint tax liability. ¶12 On appeal, Sherri contends that because the District Court did not adequately consider the IRS’s and the Department’s innocent spouse determinations, it erred in apportioning the delinquent tax liability equally between the parties. She asserts that the District Court “wholly misunderstood or misapplied” the administrative rulings that she was an “innocent spouse” and not responsible for the tax liability. She argues that in order to obtain innocent spouse status, she had to prove that she did not know and had no reason to know of the non-payment and that it would be inequitable to hold her liable for the debt. Sherri maintains that, because she could not have been found to be an “innocent spouse” unless she did not receive a material benefit from the understatement of tax, the District Court improperly disregarded the taxing authorities’ rulings in reaching a contrary finding. ¶13 In response, Michael argues that the administrative rulings have no preclusive effect in the dissolution proceeding and that the District Court did not err in concluding that the tax liability should be treated as marital debt based on substantial evidence that the parties put the money into joint living expenses or into the Teton property. 6 ¶14 Sherri’s reply, on one hand, appears to acknowledge that the administrative determinations do not have preclusive effect. On the other hand, she maintains that she could not have been granted innocent spouse status unless she did not materially benefit from the untaxed income. Michael, she points out, did not appeal from the administrative determinations. For the District Court to reach a contrary conclusion, it would have to point to specific evidence in the record and explain why equity required a result different from that reached by the taxing authorities. In this regard, Sherri argues that the District Court’s findings of fact are inadequate “in determining what evidence the court used to order relief ignoring both taxing authorities.” ¶15 Innocent spouse relief from joint tax liability is an administrative remedy provided for by both Montana and federal statute. Under Montana statute, “A taxpayer who has obtained relief from joint and several liability under section 6015 of the Internal Revenue Code, 26 U.S.C. 6015, may apply to the department for relief from joint and several liability of the tax imposed by this chapter.” Section 15-30-2646(1), MCA. Under federal statute, “an individual who has made a joint return may elect to seek relief” from joint tax liability if she meets certain requirements. 26 U.S.C. § 6015(a)(1). The relevant requirements for such relief include: (A) a joint return has been made for a taxable year; (B) on such return there is an understatement of tax attributable to erroneous items of one individual filing the joint return; (C) the other individual filing the joint return establishes that in signing the return he or she did not know, and had no reason to know, that there was such an understatement; 7 (D) taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such taxable year attributable to such understatement . . . 26 U.S.C. § 6015(b)(1). In determining whether it is inequitable to hold a spouse requesting innocent spouse relief liable for an understatement of tax, “[o]ne relevant factor . . . is whether the requesting spouse significantly benefited, directly or indirectly, from the understatement. A significant benefit is any benefit in excess of normal support.” 26 C.F.R. § 1.6015-2(d). The record before the District Court does not substantiate any factual determinations made either by the IRS or by the Department in awarding Sherri innocent spouse relief. ¶16 To address Sherri’s arguments fully, we first clarify that the doctrines of claim and issue preclusion do not apply here to foreclose the District Court’s determination that the tax liability is a marital debt. First, we have held that claim and issue preclusion may apply to an administrative decision that has been “upheld on judicial review.” Rooney v. City of Cut Bank, 2012 MT 149, ¶ 17, 365 Mont. 375, 286 P.3d 241 (citing Parini v. Missoula Cnty. High Sch. Dist., 284 Mont. 14, 23, 944 P.2d 199, 204 (1997)). See also Dobson v. Dobson, 159 S.W.3d 335, 337 (Ky. Ct. App. 2004) (concluding that the “IRS’s determination for innocent spouse relief is not entitled to preemption or res judicata because it involves only an administrative process rather than an adjudication”). The IRS’s and the Department’s administrative decisions that Sherri is an “innocent spouse” were not subjected to judicial review. ¶17 In addition, the administrative proceedings do not satisfy all elements that must be met in order to bar re-litigation of an issue. Among those elements is that the issues 8 decided in the prior adjudication must be identical to the issues raised in the current litigation. Rooney, ¶ 17; Planned Parenthood v. State, 2015 MT 31, ¶ 13, 378 Mont. 151, 342 P.3d 684 (concluding that “[t]he identity of issues is the most important element of issue preclusion”). An innocent spouse determination involves considerations different from a district court’s division of a marital estate. Under an innocent spouse determination, “[t]he IRS’s only concern is the identity of the spouse to whom it will look for payment of the delinquent taxes . . . .” In re Marriage of Hargrave, 36 Cal. App. 4th 1313, 1320 (Cal. App. 2d Dist. 1995) (citations omitted). In other words, the IRS is concerned only with which party will be responsible for payment to the government of the delinquent taxes. ¶18 In contrast, a district court’s concern in a dissolution proceeding is the equitable apportionment of the marital estate. Section 40-4-202(1), MCA (stating in pertinent part that the court must “equitably apportion between the parties the property and assets . . .”). In equitably apportioning the marital estate, the court generally must determine the marital estate’s net worth. In re Marriage of Lewton, 2012 MT 114, ¶ 15, 365 Mont. 152, 281 P.3d 181. This determination necessarily requires the court to consider marital debt. Crowley, ¶ 31 (citing In re Marriage of Rudolf, 2007 MT 178, ¶ 23, 338 Mont. 226, 164 P.3d 907 (concluding that by not considering the parties’ debt, “the true net worth of the marital estate was not accurately determined” and therefore the issue of equitable apportionment could not be resolved)). We have defined “marital debt” as “all debt incurred by either party during the marriage.” In re Marriage of Scoffield, 258 Mont. 9 337, 342, 852 P.2d 664, 667 (1993). We have not examined previously how an innocent spouse determination may affect the equitable apportionment of marital debt. ¶19 Section 40-4-202(1), MCA, requires the court to “equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title to the property and assets is in the name of the husband or wife or both.” The statute therefore requires the court to apportion marital property equitably “regardless of how or when it was acquired.” In re Marriage of Funk, 2012 MT 14, ¶ 13, 363 Mont. 352, 270 P.3d 39. Because the court must consider marital debt in dividing the marital estate under § 40-4-202(1), MCA, it follows that the court also apportions marital debt equitably, and may do so regardless of which party is responsible for it. Crowley, ¶¶ 28, 34; Scoffield, 258 Mont. at 342, 852 P.2d at 667 (concluding that “the medical debts incurred by [Wife] on behalf of her children during the course of the parties’ marriage are marital debts”). ¶20 Accordingly, we conclude that so long as the delinquent tax debt was incurred during the marriage, an innocent spouse determination by the IRS or the Department does not preclude a district court from equitably apportioning the delinquent tax debt to an “innocent spouse” under § 40-4-202(1), MCA. Other jurisdictions agree with this conclusion. Dobson, 159 S.W.3d at 337 (concluding that the trial court did not abuse its discretion in apportioning delinquent tax liability to an “innocent spouse” in part because the “[innocent spouse] did not present evidence that the money the family had as a result of the underpayment of taxes was not spent on family expenses”); In re Marriage of Hargrave, 36 Cal. App. 4th at 1320-21 (upholding the trial court’s apportionment of 10 delinquent tax liability and concluding that an innocent spouse determination does not preempt state law efforts to impose liability for federal income taxes in a dissolution proceeding). ¶21 Contrary to Sherri’s assertions, the District Court did not find that Sherri “substantially benefitted” from the understatement; that is, the court did not find that Sherri received “any benefit in excess of normal support.” 26 C.F.R. § 1.6015-2(d). The court simply found that “the tax liabilities are joint marital obligations because the parties put the money into living expenses or the Teton Avenue home.” The court “recognize[d], and attempt[ed] to compensate for,” the fact that, as Sherri testified, the income that created the tax liability contributed to the marriage. Bartsch II, ¶ 20. As such, this finding is in line with the court’s “broad discretion to apportion the marital estate in a manner equitable to each party under the circumstances.” Bartsch II, ¶ 9 (citations omitted). The District Court therefore did not abuse its discretion in apportioning the delinquent tax liability equally between the parties. ¶22 We are not persuaded by Sherri’s contention that the District Court’s departure from the taxing authorities’ findings was not explained sufficiently to withstand review for clear error. Because “[f]indings of fact inform the court of appeals of the basis of the judgment,” they must be “sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and the evidence presented must support them.” Bartsch II, ¶ 33 (citation omitted). Therefore, in order for a district court’s findings to be adequate, they “must be complete at least to the point that this Court need not succumb to 11 speculation when assessing the conscientiousness or reasonableness of the district court’s judgment.” Bartsch II, ¶ 33 (citation omitted). ¶23 Here, the District Court was presented with very little evidence regarding Sherri’s status as an “innocent spouse.” Sherri presented no documentation from the IRS or the Department pertaining to the innocent spouse determination.1 Sherri did not cite the trial court to the statutes and regulations that she has identified in her briefing to this Court. Furthermore, Sherri’s own proposed findings of fact and conclusions of law do not address the innocent spouse determination. Although Sherri did testify at the dissolution proceeding that both the IRS and the Department had determined her to be an “innocent spouse,” there was very little testimony regarding what that determination entails. During his cross-examination of Michael, Sherri’s counsel stated that there “are legal definitions” regarding an innocent spouse determination. Counsel then stated: In order for the taxman to call someone an innocent spouse and use that special and very limited exception. There’s very specific rules. I know you may not know them. The Court may well know them, and they’re certainly in the law, and I recognize you may not know the tax law, but I didn’t know whether or not you knew that, but I take it from your answer that you did not, correct? The extent of counsel’s discussion of these “very specific rules” during the proceeding was to state that “at least by my understanding of these rules, is that she didn’t know of any of [the tax liability] and that she didn’t benefit from any of [the income that created 1 In her reply brief on appeal, Sherri requests that we take judicial notice of documentation from the IRS and the Department regarding her innocent spouse relief, which she has appended to her reply brief. “We generally do not take judicial notice of evidence not presented to the district court.” Cruson v. Missoula Elec. Coop., Inc., 2015 MT 309, ¶ 30, 381 Mont. 304, 359 P.3d 98. This rule is particularly apropos here, where we are reviewing whether the District Court’s findings of fact are adequate in light of the record before it. 12 the tax liability].” On cross-examination, however, Sherri testified that she was aware that the couple incurred income tax debt during the marriage and that “I did benefit [from the income that created that debt], but I won [innocent spouse relief].” ¶24 Based on this limited evidence, the District Court found that even though the IRS was not going to pursue the tax liability against Sherri, “the tax liabilities are joint marital obligations because the parties put the money into living expenses or the Teton Avenue home.” The court’s finding is “sufficiently comprehensive and pertinent to the issues to provide a basis for decision” in light of the limited evidence presented by Sherri regarding her innocent spouse relief. Bartsch II, ¶ 33. Moreover, Sherri’s own testimony supports the court’s finding that the delinquent tax liability was a joint marital obligation. Although the court’s finding is brief, it does not require us to engage in speculation in “assessing the conscientiousness or reasonableness of the district court’s judgment” because it provides a “basis upon which to review whether” the District Court equitably apportioned the marital estate, as required by § 40-4-202(1), MCA. Bartsch II, ¶¶ 33-34. ¶25 There is substantial evidence in the record to support the District Court’s finding that Michael’s income that created the tax liability was used for marital purposes. The court considered Sherri’s status as an “innocent spouse” and was within its discretion to conclude that this determination did not affect equitable apportionment of the delinquent tax liability. We decline to reverse the District Court’s findings as inadequate. CONCLUSION ¶26 The District Court was not bound by the taxing authorities’ determinations that they would not collect delinquent taxes from Sherri. The court did not err in considering 13 the tax liability as marital debt or by including that debt in apportioning the marital estate. Its judgment is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ JIM RICE

January 12, 2016

580afa8e-1c48-4b33-abcb-7d973da8d527

Mont. Envtl. Info. Ctr. v. Mont. Dep’t of Envtl. Quality

2016 MT 9

DA 15-0208

Montana

Montana Supreme Court

DA 15-0208 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 9 MONTANA ENVIRONMENTAL INFORMATION CENTER, Plaintiff and Appellant, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY and GOLDEN SUNLIGHT MINES, INC., Defendants and Appellees, JEFFERSON COUNTY, a Political subdivision of the State of Montana, Defendant and Intervenor. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DV 2014-36 Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD: For Appellant: David K. W. Wilson, Jr., Morrison, Sherwood, Wilson & Deola, PLLP, Helena, Montana Elizabeth A. Brennan, Brennan Law & Mediation, PLLC, Missoula, Montana For Appellees: KD Feeback, Toole & Feeback, PLLC, Lincoln, Montana R. Timothy McCrum, Thomas R. Lundquist, Crowell & Moring LLP, Washington, DC (Attorneys for Golden Sunlight Mines, Inc.) January 12 2016 Case Number: DA 15-0208 2 John North, Ed Hayes, Department of Environmental Quality, Helena, Montana Mathew Johnson, Jefferson County Attorney, Steven C. Haddon, Deputy County Attorney, Boulder, Montana Submitted on Briefs: November 4, 2015 Decided: January 12, 2016 Filed: __________________________________________ Clerk 3 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 The Montana Environmental Information Center (MEIC) appeals from an order issued by the Fifth Judicial District Court, Jefferson County, granting summary judgment in favor of the Montana Department of Environmental Quality (DEQ) and Golden Sunlight Mines, Inc (GSM). We affirm. ¶2 In April 2014, MEIC filed suit in the Fifth Judicial District Court, challenging the DEQ’s decision to approve the expansion of GSM’s gold mine to include a smaller nearby pit. MEIC contended that the reclamation plan the DEQ chose to reclaim the nearby pit violated Article IX, Section 2 of the Montana Constitution and the Montana Metal Mine Reclamation Act (MMRA), § 82-4-301, MCA, et seq. MEIC argued that Article IX, Section 2 of the Montana Constitution and the MMRA require land disturbed by the taking of natural resources to be “fully reclaimed” to its previous condition, and that the reclamation plan the DEQ chose to reclaim the pit failed to do so. MEIC maintained that the DEQ must adopt a reclamation plan that requires GSM to completely backfill the pit after closure in order to comply with the Montana Constitution and the MMRA. MEIC also contended that the DEQ’s decision to select the particular reclamation plan was arbitrary and capricious because the criteria set forth in the MMRA were not satisfied. ¶3 In response, the Appellees asserted that MEIC should be collaterally estopped from relitigating whether the Montana Constitution and the MMRA require lands disturbed by a mining operation to be fully reclaimed. Appellees argued that, in 4 connection with a reclamation plan for a different pit at GSM’s mine, this precise question had already been litigated, with MEIC receiving an adverse ruling from the District Court. Alternatively, the Appellees argued that neither the Montana Constitution nor the MMRA require full reclamation of disturbed lands. The Appellees also maintained that the DEQ’s decision regarding its choice of reclamation plans was supported by substantial evidence under the criteria set forth in the MMRA. ¶4 The District Court agreed with the Appellees, concluding that MEIC’s constitutional and statutory arguments were collaterally estopped and the DEQ’s decision was supported by the evidence under the MMRA criteria. We affirm the District Court’s decision regarding collateral estoppel and thus do not address the merits of whether Article IX, Section 2 of the Montana Constitution and the MMRA require land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. We also affirm the District Court’s holding that the criteria under the MMRA were satisfied. ¶5 We address the following issues on appeal: 1. Whether MEIC is precluded from relitigating the issue of whether Article IX, Section 2 of the Montana Constitution requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. 2. Whether MEIC is precluded from relitigating the issue of whether the Montana Metal Mine Reclamation Act requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. 3. Whether the DEQ made a reasoned decision in selecting the Agency-Modified Alternative under the criteria set forth in the Montana Metal Mine Reclamation Act. 5 FACTUAL AND PROCEDURAL BACKGROUND ¶6 Golden Sunlight Mines operates an open pit gold mine on the southern edge of the Bull Mountains near Whitehall, Montana. In September 2012, GSM submitted an application to the DEQ to amend the operating permit for its mine, proposing to expand its mining operation to develop a smaller nearby pit that the parties refer to as the North Area Pit. The North Area Pit is estimated to cover approximately 49.4 acres. The expansion would allow GSM to mine an additional 4.2 million tons of gold ore and extend GSM’s current mining operation by about two years. GSM proposed mining the North Area Pit through the use of conventional open pit mining methods which would be consistent with its current mining operation. In order to obtain the gold ore beneath the North Area Pit, GSM proposed excavating below the natural water table and installing external dewatering wells adjacent to the North Area Pit to lower the water table beneath the pit and allow for the mineral extraction. ¶7 As part of the proposed expansion, GSM submitted a reclamation plan for the North Area Pit to the DEQ. In 2013, the DEQ issued a draft Environmental Impact Statement (EIS) which discussed the impacts of four alternative reclamation plans for the North Area Pit: (1) the No Action Alternative; (2) the GSM Proposed Reclamation Alternative; (3) the Agency-Modified Alternative; and (4) the North Area Pit Backfill Alternative. The No Action Alternative reflects the current mining operation conducted under GSM’s existing permit with no management plan for an additional disturbance at the North Area Pit. Under the GSM Proposed Reclamation Alternative, the 6 approximately 52.6 million tons of non-ore waste rock that will be generated from the North Area Pit will be primarily placed in an expansion area on the east side of the mine. The GSM Proposed Reclamation Alternative requires GSM to continue to operate its external dewatering wells after closure of the mine to prevent contamination of local groundwater. In addition, GSM must install an underground in-pit sump to protect against local groundwater contamination in the event that one of the external dewatering wells fails. The Agency-Modified Alternative is the same as the GSM Proposed Reclamation Alternative with the exception of various additional modifications developed by the DEQ to further mitigate environmental impacts associated with the mining. These modifications include: (1) the implementation of closure geodetic and ground-movement monitoring for the North Area Pit to ensure safe access and to keep reclamation systems working, and (2) the preparation of a detailed bat and raptor habitat plan for the North Area Pit to provide habitat and add utility to the North Area Pit highwall. Lastly, the fourth proposed reclamation plan identified as the North Area Pit Backfill Alternative requires GSM to use 9.2 million tons of waste rock from the mine to backfill the North Area Pit. Like the GSM Proposed Reclamation Alternative and the Agency-Modified Alternative, the Backfill Alternative requires GSM to continue to operate the external dewatering wells after closure. However, unlike the other alternatives, the Backfill Alternative does not allow for the installation of an in-pit sump to protect against contamination of local groundwater in the event of an external dewatering well failure. In the draft EIS, the DEQ extensively analyzed the advantages 7 and disadvantages associated with these four alternatives and evaluated the alternatives in light of the criteria set forth in the MMRA. ¶8 Following a public hearing and comments, the DEQ issued a final EIS identifying the Agency-Modified Alternative as the preferred alternative. In rejecting the Backfill Alternative, the DEQ recognized several benefits associated with the Backfill Alternative, including better structural stability, increased wildlife habitat, and added aesthetic value. However, despite these advantages, the DEQ rejected the Backfill Alternative in lieu of the Agency-Modified Alternative, concluding that the Backfill Alternative failed to sufficiently mitigate the risk of groundwater contamination because it did not permit GSM to install an in-pit sump. The DEQ explained that local groundwater and surface water contamination could result if the natural water table rebounds and comes into contact with the acidic North Area Pit highwalls. The DEQ found that unlike the Agency-Modified Alternative in which the underground sump would prevent the water table from rebounding in the event of an external dewatering well failure, “[i]f the external dewatering wells were to fail under the North Area Pit Backfill Alternative, it is unlikely that replacement wells could be installed before impacted groundwater begins to discharge from the North Area Pit.” Thus, the DEQ explained that it chose the Agency-Modified Alternative rather than the Backfill Alternative because the Agency-Modified Alternative provided adequate assurance that pollution of the local aquifers and surface waters would not occur. The Backfill Alternative did not provide such assurances. 8 ¶9 On January 9, 2014, the DEQ approved the expansion of GSM’s mine to include the proposed North Area Pit and issued a Record of Decision (ROD) outlining the reasons for its decision. On April 8, 2014, MEIC filed its complaint, challenging the DEQ’s decision to approve the expansion of the existing mining operation to include the North Area Pit with the Agency-Modified Alternative as the chosen reclamation plan. MEIC contended that the DEQ’s decision to choose the Agency-Modified Alternative violated the Montana Constitution and the MMRA. MEIC argued that Article IX, Section 2 of the Montana Constitution requires that all land disturbed by a mining operation must be “fully reclaimed” to its previous condition, and that, because of this constitutional mandate, the MMRA must also require all lands to be fully reclaimed. MEIC further sought a legal declaration from the District Court that to the extent the MMRA could be interpreted to “allow less than full reclamation” the MMRA violated Article IX, Section 2 of the Montana Constitution. Finally, MEIC maintained that the DEQ’s decision to adopt the Agency-Modified Alternative was arbitrary and capricious because the alternative did not satisfy the criteria under the MMRA. ¶10 In response, the Appellants argued that MEIC should be collaterally estopped from contending that Article IX, Section 2 of the Montana Constitution and the MMRA require full reclamation of disturbed lands because that issue had been previously litigated in Montana Environmental Information Center v. Montana Department of Environmental Quality, 2011 Mont. Dist. LEXIS 99 (5th Jud. Dist. Ct. June 30, 2011) (hereinafter, MEIC I). In MEIC I, MEIC filed suit against the DEQ and GSM in the Fifth Judicial 9 District Court, challenging the DEQ’s adoption of its reclamation plan regarding a large open pit mine also located at GSM’s mine near Whitehall. The parties refer to this open pit mine as the Mineral Hill Pit. As in the present case, MEIC claimed that the reclamation plan was unlawful under the Montana Constitution and the MMRA. Similarly, MEIC argued that Article IX, Section 2 of the Montana Constitution and the MMRA require all land disturbed by mining operations to be “fully reclaimed” to its previous condition. MEIC likewise sought a legal declaration that to the extent the MMRA “allows less than full reclamation” the statute was in violation of this constitutional provision. ¶11 The District Court disagreed with MEIC in MEIC I, holding that Article IX, Section 2 of the Montana Constitution does not require disturbed land to be returned to its previous condition. Instead, the District Court concluded that the constitutional standard by which legislative actions are measured under Article IX, Section 2 of the Montana Constitution is whether the Legislature has provided “reasonable” standards for the reclamation of disturbed lands. Citing the language of the Montana Constitution, the transcripts from the 1972 Constitutional Convention, and a lack of precedent from this Court indicating that reclamation is a fundamental right, the court explained that the constitutional provision “provide[s] a guide for the legislature” and that the “legislature is authorized to do that which is reasonable” under the provision. MEIC did not appeal the District Court’s decision in MEIC I. 10 ¶12 In the present case, based on its conclusion in MEIC I, the District Court held that MEIC was estopped from relitigating the question of whether Article IX, Section 2 of the Montana Constitution and the MMRA require land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. The court explained that in MEIC I it “squarely rejected MEIC’s argument that ‘[Article IX, Section 2 of the Montana Constitution] requires restoration of the ground to its previous condition.’” The court further explained that in MEIC I it expressly “held that this provision provides a ‘guide for the legislature’” and “empowers the legislature to ‘do that which is reasonable.’” After determining that “[c]ollateral estoppel precludes MEIC from arguing that the MMRA is unconstitutional to the extent that it did not require restoration of the ground to its previous condition,” the court concluded that the Agency-Modified Alternative satisfied the criteria under the MMRA. STANDARD OF REVIEW ¶13 We review a district court’s ruling on motions for summary judgment de novo. Gibbs v. Altenhofen, 2014 MT 200, ¶ 8, 376 Mont. 61, 330 P.3d 458. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file,” together with any affidavits, demonstrate that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Dewey v. Stringer, 2014 MT 136, ¶ 6, 375 Mont. 176, 325 P.3d 1236. The availability of collateral estoppel and the preclusive effect of a prior judgment are also 11 reviewed de novo. Brilz v. Metro. Gen. Ins. Co., 2012 MT 184, ¶ 13, 366 Mont. 78, 285 P.3d 494. ¶14 We review an agency’s decision not classified as a contested case under the Montana Administrative Procedure Act1 using the same standard as the district court. We determine whether the agency decision was “arbitrary, capricious, unlawful, or not supported by substantial evidence.” Clark Fork Coal. v. Mont. Dep’t of Envtl. Quality, 2008 MT 407, ¶ 21, 347 Mont. 197, 197 P.3d 482. In making this inquiry, “we consider whether the decision was ‘based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” Clark Fork, ¶ 21 (quoting North Fork Pres. Ass’n v. Dep’t of State Lands, 238 Mont. 451, 465, 778 P.2d 862, 871 (1989)). Although our review of an agency decision is narrow, we will not “automatically defer to the agency ‘without carefully reviewing the record and satisfying [our]selves that the agency has made a reasoned decision.’” Clark Fork, ¶ 21 (quoting Friends of the Wild Swan v. DNRC, 2000 MT 209, ¶ 28, 301 Mont. 1, 6 P.3d 972). DISCUSSION ¶15 1. Whether MEIC is precluded from relitigating the issue of whether Article IX, Section 2 of the Montana Constitution requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. ¶16 Issue preclusion (collateral estoppel) bars a party from relitigating an issue already decided in prior litigation. Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281, 1 “Contested case” denotes a “proceeding before an agency in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing.” Section 2-4-102(4), MCA. All parties to this action agree that this is not a contested case within the meaning of § 2-4-102(4), MCA. 12 130 P.3d 1267. The doctrine ensures that “once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties.” Brilz, ¶ 18. Issue preclusion serves dual purposes. First, it protects the interests of litigants by “reliev[ing] parties of the expense and vexation of multiple lawsuits.” Brilz, ¶ 18. Second, it promotes judicial economy by “prevent[ing] parties from incessantly waging piecemeal, collateral attacks against judgments.” Baltrusch, ¶ 15. In substantively considering whether the issues are the same in the former and present actions, we do not equate an issue with “elements of a cause of action.” Rather, “the bar that arises from collateral estoppel extends to all questions essential to the judgment and actively determined by a prior valid judgment.” McDaniel v. State, 2009 MT 159, ¶ 33, 350 Mont. 422, 208 P.3d 817. ¶17 We apply a four-element test to determine whether relitigation of an issue is barred: 1. Was the issue decided in the prior adjudication identical to the issue raised in the action in question? 2. Was there a final judgment on the merits in the prior adjudication? 3. Was the party against whom preclusion is now asserted a party or in privity with a party to the prior adjudication? 4. Was the party against whom preclusion is now asserted afforded a full and fair opportunity to litigate the issue which may be barred? Omimex Can., LTD. v. State, 2015 MT 102, ¶ 13, 378 Mont. 490, 346 P.3d 1125 (citing McDaniel, ¶ 28). The parties agree that the final three elements of the issue preclusion test are satisfied. Further, the parties do not dispute that in MEIC I MEIC directly 13 presented the District Court with the question of whether Article IX, Section 2 of the Montana Constitution requires disturbed land to be restored to its previous condition, and that the court “squarely rejected” this argument. MEIC thus focuses on the first element—whether the issue is identical—and advances two arguments in support of its contention that the issue in MEIC I is not identical to the issue in the present action. First, MEIC argues that the legal issue here and the legal issue in MEIC I are different because the constitutional standard it advanced in MEIC I is not the standard its puts forth in the current litigation. Second, MEIC argues that factual differences in the two actions create different issues. We address MEIC’s arguments in turn. ¶18 MEIC begins by arguing that the District Court’s holding entirely “misses the point” with respect to its constitutional argument in this case, contending that, contrary to the District Court’s understanding, MEIC did not argue that Article IX, Section 2 of the Montana Constitution requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. Instead, MEIC maintains that its argument here and in the District Court below is that the Constitution requires the “DEQ to choose the most effective reclamation alternative” and the “Backfill Alternative most effectively reclaims the land disturbed by the North Area Pit.” ¶19 The Appellees respond that the legal issue here is the same as the legal issue in MEIC I and MEIC is attempting on appeal to reframe the same constitutional argument it made in MEIC I in order to avoid issue preclusion. The Appellees argue that the constitutional standard MEIC has offered “has been somewhat of a moving target during 14 the course of the GSM litigation.” Appellees observe that in the District Court MEIC argued that the Constitution requires “full reclamation,” but on appeal MEIC argues that the Constitution requires the “most effective reclamation alternative.” The Appellees maintain the legal issue nevertheless remains the same: “whether the Constitution requires [full] restoration of land disturbed by natural resource extraction.”2 ¶20 We agree with the Appellees that MEIC raised the same legal issue in MEIC I that it raises in the present action. We have explained that a “litigant cannot avoid preclusion simply by reframing the same issues or raising novel contentions.” Baltrusch, ¶ 25. If this were the case, “a party could escape the preclusive effect of an adverse judgment” in every case by using different language to describe the same argument. B&B Hardware, Inc. v. Hargis Indus., __U.S.__, 135 S. Ct. 1293, 1308 (2015). While MEIC couches its argument on appeal in terms of the “most effective” reclamation alternative, MEIC stated in its complaint in the present action, as it did in MEIC I, that Article IX, Section 2 of the Montana Constitution requires “full reclamation.” Similarly, in both complaints, MEIC sought a legal declaration that to the extent the MMRA “allows less than full reclamation” the MMRA is unconstitutional. Further, MEIC argues on appeal that the DEQ cannot constitutionally choose a reclamation alternative that “reclaims less land” than another alternative. Although MEIC’s argument can certainly be stated in any number of different ways, the constitutional standard MEIC advocated for in MEIC I and 2 The parties use the term “restoration” to denote full reclamation. 15 the constitutional standard that it advocates for in the present litigation are indistinguishable. ¶21 Moreover, even if we were to accept MEIC’s assertion that it is offering a different constitutional standard than it offered in MEIC I, MEIC would still be precluded from advancing it because MEIC could have raised that different legal theory in the former litigation. We have explained that merely because a litigant advances a new contention in a second action, it does not necessarily follow that the new contention is exempt from preclusion. Haines Pipeline Constr. v. Mont. Power Co., 265 Mont. 282, 288-89, 876 P.2d 632, 636-37 (1994). “‘If a new legal theory or factual assertion put forward in the second action is related to the subject-matter and relevant to the issues that were litigated and adjudicated previously, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.’” McDaniel, ¶ 33 (quoting Haines, 265 Mont. at 288-89, 876 P.2d at 636-37) (emphasis in original). ¶22 In MEIC I, MEIC pressed the District Court to decide the constitutional standard under Article IX, Section 2 of the Montana Constitution. MEIC could have pleaded or otherwise urged the District Court to adopt whatever constitutional standard it believed to be appropriate. It elected to argue that the Constitution requires disturbed land to be restored to its previous condition. The District Court disagreed with MEIC, holding instead that the Constitution requires that the statutory scheme achieve “reasonable” reclamation. MEIC now attempts to challenge that determination in a separate action 16 involving the same parties, contending that the “Constitution does not direct the legislature to enact ‘reasonable’ standards,” and that such an interpretation is “hollow” and a “dead letter.” MEIC had an opportunity to make this argument and challenge the District Court’s determination by appealing the court’s decision in MEIC I to this Court. For whatever reason, MEIC did not do so. Issue preclusion now prevents MEIC from raising the same issue with respect to the North Area Pit that it raised, and lost, with respect to the Mineral Hill Pit. In MEIC I, the District Court conclusively addressed the constitutional standard under Article IX, Section 2 of the Montana Constitution. ¶23 We next turn to MEIC’s argument that it can avoid issue preclusion because of the factual differences between the Mineral Hill Pit and the North Area Pit. MEIC asserts that the “two pits are materially different,” and that these factual differences have legal significance, thereby preventing the issues from being the same. We disagree. ¶24 Issue preclusion applies with equal force to both issues of law and issues of fact. In cases involving the same issues of law, issue preclusion is appropriate when the factual differences between the two actions “are of no legal significance whatever in resolving the issue presented in both cases.” United States v. Stauffer Chem. Co., 464 U.S. 165, 174, 104 S. Ct. 575, 579 (1984). Accord Pacific Power & Light Co. v. Mont. Dep’t of Revenue, 246 Mont. 398, 404, 804 P.2d 397, 401 (1991). The United States Supreme Court’s decision in Stauffer and this Court’s decision in Pacific Power provide clear illustrations of the category of cases, in which the present case falls, where the party opposing the preclusive effect of collateral estoppel sought to relitigate legal issues in 17 which the different facts of the underlying litigation and the former litigation were not legally significant in determining the issue presented. ¶25 In Stauffer, the United States Supreme Court addressed whether the Environmental Protection Agency (EPA) could relitigate the issue of whether private contractors are “authorized representatives” as that term is used in the Clean Air Act. Stauffer, 464 U.S. at 166, 104 S. Ct. at 576. In previous litigation, Stauffer Chemical Co. v. EPA, 647 F.2d 1075 (10th Cir. 1981) (hereinafter, Stauffer I), private contractors from the EPA attempted to conduct an inspection of one of Stauffer’s phosphate plants in Wyoming, but Stauffer refused to allow them to enter the plant. In Stauffer I, Stauffer argued that he did not need to permit the contractors entry because private contractors are not “authorized representatives” under the Clean Air Act for purposes of conducting inspections. The district court agreed, and the Tenth Circuit Court of Appeals affirmed. In a subsequent action filed in the United States District Court for the Middle District of Tennessee, Stauffer Chemical Co., v. EPA, 511 F. Supp. 744 (M.D. Tenn. 1981) (hereinafter, Stauffer II), the EPA attempted to inspect one of Stauffer’s chemical plants in Tennessee using different private contractors than the ones used in Stauffer I. Stauffer again refused to allow entry to the private contractors and argued that the EPA should be estopped from relitigating the issue of whether private contractors are authorized representatives under the Clean Air Act based on the Tenth Circuit’s decision in Stauffer I. The Sixth Circuit agreed, holding that the EPA was collaterally estopped by Stauffer I from relitigating the same question against Stauffer. The United States Supreme Court 18 upheld the Sixth Circuit’s decision, concluding that, while the two suits involved two completely different occurrences at different plants located in different States, the “authorized representative” issue was the same in Stauffer I and Stauffer II. Stauffer, 464 U.S. at 170, 104 S. Ct. at 578. The Court explained that “[a]ny factual differences between the two cases, such as the difference in the location of the plants and the difference in the private contracting firms involved, are of no legal significance whatever in resolving the issue presented in both cases.” Stauffer, 464 U.S. at 172, 104 S. Ct. at 579. Thus, the Court determined the EPA was collaterally estopped from relitigating whether private contractors are “authorized representatives” under the Clean Air Act, despite factual differences in the plants and the particular private contractors utilized for inspections. Stauffer, 464 U.S. at 174, 104 S. Ct. at 580.3 ¶26 Similarly in Pacific Power, this Court addressed whether public utility owners could relitigate the issue of whether beneficial use taxes on the utility owners were unconstitutional under the Commerce Clause. Pacific Power, 246 Mont. at 404, 804 P.2d at 401. In previous litigation, the Court had held that the beneficial use taxes were constitutional for the year 1984. However, the utility owners argued that issue preclusion 3 MEIC contends that under the general rule of issue preclusion the facts must be “virtually identical” in the two actions to preclude relitigation of an issue under Stauffer. MEIC misreads Stauffer. While the United States Supreme Court did make reference to “virtually identical” facts in Stauffer, it did so in the context of an exception to the general rule of issue preclusion known as the “unmixed question of law” exception. In Stauffer, the Supreme Court acknowledged that “the exception is generally recognized” but was “frank to admit uncertainty as to its application.” Stauffer, 464 U.S. at 171, 104 S. Ct. at 579. Similarly, other courts have recognized the “‘unmixed question of law’ exception is not easily summarized.” AMTRAK v. Pa. PUC, 288 F.3d 519, 530 (3d Cir. 2002). Here, however, unlike the EPA in Stauffer, MEIC has failed to develop an argument under the ill-defined exception. Thus, we decline to address whether the “unmixed question of law” exception is applicable in this instance. 19 did not bar their suit because the present action involved different tax years, namely 1985, 1986, and 1987. Pacific Power, 246 Mont. at 404, 804 P.2d at 401. This Court rejected the owners’ argument, concluding that the “fact that different tax years are being challenged makes no difference” in resolving the constitutional issue presented in both cases. Pacific Power, 246 Mont. at 404, 804 P.2d at 401. We explained: The constitutional challenges remain the same, and it is the substance of these challenges that have failed. The year in which they were brought has no bearing upon their lack of success. Allowing the [utility owners] to raise the same challenges to the same tax each subsequent tax year serves no purpose. Pacific Power, 246 Mont. at 404, 804 P.2d at 401 (emphasis in original). Thus, we precluded the utility owners from relitigating the legal issue. Pacific Power, 246 Mont. at 405, 804 P.2d at 401. ¶27 The present case fits comfortably into the framework provided by Stauffer and Pacific Power. Here, like the parties opposing issue preclusion in Stauffer and Pacific Power, MEIC seeks to relitigate a legal issue in which any factual differences between the former and the current action are of no legal significance whatsoever in resolving the legal issue presented in both cases. Just as the difference in the contracting firms and location of the plants in Stauffer and the difference in the year in which the constitutional challenge was brought in Pacific Power were irrelevant to the issues presented in those cases, the difference in the physical characteristics of the North Area Pit and the Mineral Hill Pit are wholly immaterial to the legal issue presented here. MEIC does not, nor could it, seriously contend that the constitutional issue—whether Article IX, Section 2 of 20 the Montana Constitution requires land disturbed by the taking of natural resources to be restored to its previous condition—turns on geography, location, size, or any other physical characteristic of the two pits. Indeed, in making its constitutional argument, MEIC relies on the language of Article IX, Section 2 of the Montana Constitution, the jurisprudence of this Court, and the transcripts from the 1972 Constitutional Convention, not the physical characteristics of the two pits. Like the utility owners’ challenge in Pacific Power, MEIC’s constitutional argument remains the same, and any factual distinctions are without legal significance. The District Court has already “squarely rejected” MEIC’s argument that the Montana Constitution requires restoration of the ground to its previous condition. Allowing MEIC to relitigate the issue of full reclamation would frustrate the collateral estoppel doctrine and defeat its purpose of protecting litigants from burdensome relitigation and of promoting judicial economy. ¶28 In sum, MEIC pressed the District Court in MEIC I to decide the constitutional standard by which legislative actions are measured under Article IX, Section 2 of the Montana Constitution. The District Court did so. Because that issue was specifically raised, litigated, and decided by the District Court in the former litigation in MEIC I in which the DEQ and GSM were parties, MEIC is barred by the doctrine of issue preclusion from raising the issue again for consideration by the District Court. We hold that the District Court did not err by precluding MEIC from relitigating whether Article IX, Section 2 of the Montana Constitution requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. 21 ¶29 2. Whether MEIC is precluded from relitigating the issue of whether the Montana Metal Mine Reclamation Act requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. ¶30 MEIC is similarly precluded from relitigating whether the MMRA requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. First, our rationale for precluding MEIC from raising its constitutional challenge applies with equal force to MEIC’s statutory argument. In MEIC I, the District Court considered and rejected the same legal argument that MEIC makes here—that the MMRA requires the DEQ to choose the most effective reclamation alternative because Article IX, Section 2 of Montana Constitution requires as much. Similarly, here, MEIC maintains that the factual differences between the Mineral Hill Pit and the North Area Pit create different issues. As explained above, any factual variations between the two pits are legally insignificant to resolving the issue presented in both cases—whether the MMRA requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. ¶31 Second, even if MEIC had not advanced its statutory argument in MEIC I, our conclusion with respect to Issue 1 precludes review of this issue as well. Issue preclusion operates to preclude a party from advancing an issue in a current action even though the party did not advance that issue in the former “when the issues are so intertwined that to decide the issue before it, the District Court would have to rehear the precise issue previously decided.” Baltrusch, ¶ 25 (quoting Martelli v. Anaconda-Deer Lodge County, 258 Mont. 166, 169, 852 P.2d 579, 581 (1993)) (ellipsis, internal quotation marks, and 22 brackets omitted). Here, MEIC’s statutory argument is entirely premised on its constitutional argument and the two arguments are so intertwined that the District Court would have to revisit the constitutional issue to decide the statutory issue. Because we affirmed the District Court’s conclusion to preclude MEIC from relitigating the constitutional standard, MEIC’s statutory argument is necessarily precluded as well. We hold that the District Court did not err by precluding MEIC from relitigating whether the MMRA requires land disturbed by the taking of natural resources to be fully reclaimed to its previous condition. Our conclusion on this Issue, however, does not preclude MEIC from challenging the DEQ’s application of the MMRA’s statutory criteria to the facts of the North Area Pit. ¶32 3. Whether the DEQ made a reasoned decision in selecting the Agency-Modified Alternative under the criteria set forth in the Montana Metal Mine Reclamation Act. ¶33 MEIC argues that the DEQ’s decision to select the Agency-Modified Alternative is unsupported by the evidence under the criteria set forth in the MMRA. Pursuant to § 82-4-336(9)(b), MCA, of the MMRA “a reclamation plan must provide sufficient reclamation to a condition: (i) of stability structurally competent to withstand geologic and climatic conditions without significant failure that would be a threat to public safety and the environment; (ii) that affords some utility to humans or the environment; (iii) that mitigates postreclamation visual contrasts between reclamation lands and adjacent lands; and (iv) that mitigates or prevents undesirable offsite environmental impacts.” ¶34 In both the final EIS and the ROD, the DEQ extensively analyzed the Agency-Modified Alternative in light of the MMRA criteria set forth in § 82-4-336(9)(b), 23 MCA. Beginning with the first condition, the DEQ concluded that “[w]hile the North Area Pit Backfill Alternative would provide better structural stability, no highwall failures would occur under any of the alternatives that would threaten public safety or the environment outside the pit.” To ensure public safety within the North Area Pit, the DEQ required that GSM install fencing and monitor ground-movement after closure of the mine under the Agency-Modified Alternative. The DEQ concluded that with these precautionary measures “[m]inor raveling and small wall failures could occur over time but would not present a risk to human health or the environment.” To better afford utility to the environment, the DEQ required GSM to place growth media on the pit benches to support establishment of vegetation and to plant tree seedlings on the berms and benches. The revegetated portions of the North Area Pit will total approximately 22 acres, which the DEQ concluded will provide wildlife habitat for a number of animal species, including the Black-tailed Prairie Dog, the Fringed Myotis, and the Hoary Bat. To mitigate postreclamation visual contrasts between reclaimed lands and adjacent lands, the DEQ required GSM to plant shrubs and trees on accessible benches in the highwalls that are visible from outside of the North Area Pit. The DEQ concluded that the “planting and seeding of benches will reduce the visual contrast between the highwall areas and adjacent undisturbed topography.” ¶35 Lastly, the DEQ addressed the potential for undesirable offsite impacts, specifically the potential impact associated with contaminated groundwater. The DEQ concluded that with the installation of an underground sump pump the Agency-Modified 24 Alternative “provided adequate assurance that pollution of the Jefferson River alluvial aquifer and surface water in the Jefferson River Slough in violation of water quality laws would not occur.” The DEQ found that “if the external dewatering wells were to fail, they could be replaced before the water table rebounds and impacted water begins discharging from the North Area Pit.” The DEQ found that “[g]iven the capacity of the underground sump,” the flow of impacted groundwater “will not exceed the design capacity of the sump.” The DEQ explained that under the Agency-Modified Alternative even if the external dewatering wells were to fail “no impacts to groundwater or surface water outside the pit are anticipated because impacted groundwater would be captured by the underground sump and not flow from the pit.” Thus, the DEQ concluded that the Agency-Modified Alternative provided better assurances against ground water contamination than the Backfill Alternative. ¶36 The DEQ’s decision was based on consideration of the relevant factors set forth in § 82-4-336(9)(b), MCA, of the MMRA, and was not arbitrary, capricious, unlawful, or unsupported by substantial evidence. Therefore, we cannot conclude that the DEQ made a clear error of judgment, and we are satisfied that the DEQ made a reasoned decision in selecting the Agency-Modified Alternative. The District Court did not err by upholding the DEQ’s decision. ¶37 Affirmed. /S/ LAURIE McKINNON 25 We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ PATRICIA COTTER /S/ BETH BAKER

January 12, 2016

78197659-e620-4cf4-b384-8437c1a9a9e8

KELLER v LLEWELLYN

N/A

13745

Montana

Montana Supreme Court

No. 13745 IN THE SUPREDIE COURT OF THE STATE OF MONTANA 1977 LARRY KELLER and CATE, LYNAUGH, FITZGERALD & HUSS, Plaintiffs and Respondents, HARRY LLE.NELLYN a/k/a H. D. LLEWELLYN, H. THOMAS LLEWELLYN and LLEWELLYN ASSOCIATES, INC. , Defendants and Appellants. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellants: Berg, Anderson, Sinclair & b ! u r p h y , Billings, Montana Chris Nelson argued, Billings, Montana For Respondents: Hutton, Sheehy and Cromley, Billings, Montana Rodney 6 Hartrnan argued, Billings, Montana Submitted: November 29, 1977 Decided : Filed: Mr. Justice John Conway Harrison delivered the Opinion of the Court. Plaintiffs brought this action in the District Court, Yellowstone County, to recover the amount due on a promissory note. Fron an order granting summary judgment to plaintiffs, defendants appeal. Plaintiff Keller is an architect and had been employed by defendants in that capacity. A dispute arose, and Keller filed suit against defendants. Keller was represented by the law firm of Cate, Lynaugh, Fitzgerald & Huss (hereinafter referred to as "Cate"). In settlement of the suit, defendants executed a promissory note naming Keller and Cate as copayees. In pertinent part, the note recited: "Six months after the date of this note, we the undersigned, for value received, jointly and severally promise to pay to the order of Larry Keller and his attorneys, Cate, Lynaugh, Fitz- gerald & Huss, of Billings, Montana, at Billings, Montana, $7,000.00 plus interest at the rate of 8 percent per annum, interest to begin with the - date of the note." The note was not paid at maturity, and Keller and Cate filed the instant action. Keller thereafter assigned his interest in the note to Cate in consideration of attorney fees. The next day, defendants filed a motion to consolidate the action on the note with another pending action in which defendants were suing Keller and his architectural firm as a result of an allegedly faulty remodeling job performed by Keller. Keller and Cate filed a praecipe, and thereafter a supplemental complaint, directing that Keller be re- moved as a party plaintiff in the instant action because Keller no longer had any interest in the note. Defendants' motion for consolidation was denied. Defendants answered the complaint, and plaintiffs moved for summary judgment. This motion was granted. The issues raised on appeal may be consolidated as follows: (1) Whether the appeal was timely; ( 2 ) Whether the District Court erred in denying the motion to consolidate; (3) Whether summary judgment was proper; (4) Whether the District Court erred in granting attorney fees to plaintiff without conducting an evidentiary hearing on the issue; and (5) Whether this Court should grant damages to plaintiff under Rule 32, M.R.App.Civ.P. We first consider plaintiff's contention that the appeal should be dismissed as not timely filed. Judgment was entered against defendants on December 17, 1976. On January 25, 1977, defendants moved the District Court for an extension of time in which to file a notice of appeal. The motion was based upon the affidavit of one of defendants' attorneys, who stated the notice of appeal had not been filed because of "a press of business, the Christmas holidays, and a ten-day illness (pneumonia)". After a hearing, the District Court granted defendants' motion. A party must file for an extension with the District Court within sixty days after the service of notice of entry of judgment. Zell v. Zell, (1977) - Mont. , 565 P.2d 311, 34 St.Rep. 492. Defendants asked for an extension within the sixty day period. In view of the allegation of illness of counsel, we do not find the District Court abused its discretion in granting the extension. Therefore the notice of appeal filed February 8, 1977 was timely. Defendants urge that the District Court erroneously denied their motion to consolidate the action on the note with another action brought by defendants against Keller and the Architectural Design Group, of which Keller is the principal owner and operator, for damages as the result of a remodeling job performed by Keller. Rule 42(a), M.R.Civ.P., allows the court to consolidate pending actions "* * * involving a common question of law or fact * * *". It is clear there are no common questions of law or fact in the two actions. The refusal of the District Court to consolidate was not an abuse of discretion. Nor may defendant take advantage of Rules 13 and 18, M.R.Civ.P., which allow a defendant to join any other claims he may have against a plaintiff. Before defendants answered the original complaint, plaintiffs filed a supplemental complaint noting the assignment from Keller to Cate and dropping Keller as a party plaintiff. There is no question the assignment was proper, and after the assignment Keller no longer had an interest in the action. Rule 25(c), M.R.Civ.P., involving the substitution of parties on a transfer of interest, is not, as defendants claim, applicable here. No party was substituted into the action. One party plaintiff was simply removed from it. It was not improper to do this by use of a supplemental complaint. Since Cate was the only remaining party plaintiff, defendants were properly not allowed to join their claims against Keller. In opposition to the granting of summary judgment, defend- ants claim that two defenses at least raise an issue of material fact: (1) lack of consideration; and (2) setoff. Defendants argue the defense of lack of consideration for a note is available against a nonholder in due course. Section 87A-3-405, R.C.M. 1947. While defendants admit that consideration existed as to Keller in the form of the settlement of a prior action, they deny there was any consideration flowing from Cate. This defense is untenable in view of the express language of the note stating that consideration existed and that Cate is a copayee on the note. This language is plain and unambiguous, and cannot be varied by the court. Section 93-401-15, R.C.M. 1947; Larson v. Burnett, (1972) 158 Mont. 421, 427, 492 P.2d 921; ~anielson v. Danielson, (1977) Mont. , 5 . 6 0 P.2d 893, 34 St,Rep. 76. Defendants further claim a right of setoff against Keller for any amount that may be collected in the other action. Under section 87A-3-306(b), R.C.M. 1947, a holder not in due course takes an instrument subject to "all defenses of any party which would be available in an action on a simple contract". We are convinced that any claimed setoff against Keller is not available against Cate. Defendants' claim is not a "defense" to an action on the note but rather is a personal claim against Keller that is utterly unrelated to the note. As such it is not available against Cate. There is no issue of material fact precluding summary judgment . The next issue relates to an award of attorney fees to plaintiffs on the affidavit of Cate and without an evidentiary hear- ing on the matter. This was manifestly improper in view of the holdings of this Court in First Security Bank of Bozeman v. Tholkes, (1976) 169 Mont. 422, 547 P.2d 1328, 33 St.Rep. 341 and Crncevich v. Georgetown Recreation Corp., (1975) 168 Mont. 113, 541 P.2d 56. As a final consideration, plaintiffs ask this Court to award damages in accordance with Rule 32, M.R.App.Civ.P. This rule em- powers this Court to award damages if an appeal "was taken without substantial or reasonable grounds, but apparently for purposes of delay, only * * *". Upon examination of the record, we are satis- fied the appeal was not taken "without substantial or reasonable grounds" and decline to grant damages under Rule 32. In summary, the order granting summary judgment is affirmed, except for the award of attorney fees. The case is returned to the trial court for the purpose of setting attorney fees. We decline to grant damages to plaintiff pursuant to Rule 32, M.R.App.Civ.P. We Concur: .+ / 9 ' 7 - " Chief Justice

December 28, 1977

5e825e97-c81e-42f6-a837-97bf097992ad

Parenting of DCNH a Minor

2016 MT 24N

DA 14-0624

Montana

Montana Supreme Court

DA 14-0624 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 24N IN RE THE PARENTING OF: D.C.N.H., Minor Child. ________________________________ AVALON DAWN DOUGLAS, Petitioner and Appellee, v. BAILEY JOSEPH HANSON, Respondent and Appellant. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause No. DR 13-26 Honorable Robert G. Olson, Presiding Judge COUNSEL OF RECORD: For Appellant: David F. Stufft, Attorney at Law; Kalispell, Montana For Appellee: Nathan J. Hoines, F. Peter Landsiedel, Hoines Law Office, P.C.; Great Falls, Montana Submitted on Briefs: December 30, 2015 Decided: January 26, 2016 Filed: __________________________________________ Clerk January 26 2016 Case Number: DA 14-0624 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Bailey Joseph Hanson appeals from an order adopting a final parenting plan entered by the Ninth Judicial District Court, Glacier County, on the grounds that it is not in the best interests of the child. We affirm. ¶3 Avalon Douglas and Bailey Hanson were involved in an intimate, though abusive, relationship over a period of about five years, but they never married. During that time they produced a child who was born in September 2012. Avalon has been their child’s primary caretaker since birth. Avalon works part-time and Bailey works full-time. Their relationship ended in August 2013 after Bailey physically abused and injured Avalon. ¶4 In September 2013, the District Court approved an interim parenting plan that divided parental time with the child almost equally, although Avalon retained primary custody. Unfortunately, the child exchange times were often tumultuous and many times required the intervention of law enforcement. Ultimately, Avalon petitioned the court for a final parenting plan and on August 28, 2014, the District Court held a hearing where the parties appeared with their respective attorneys and presented evidence. On September 18, 2014, the District Court issued its findings of fact, conclusions of law, and order adopting a final parenting plan that named Avalon as the “Primary Custodial 3 Caregiving Parent,” awarded Bailey visitation “every other week beginning Wednesday at 5:30 p.m. and lasting until Sunday at 5:30 p.m.,” and divided holiday visits between them. ¶5 Montana law requires a district court to resolve parenting matters in accordance with the best interests of the child by taking into consideration the factors enumerated in § 40-4-212(1), MCA. Hood v. Hood, 2012 MT 158, ¶ 23, 365 Mont. 442, 282 P.3d 671. In child custody matters, the Court reviews findings of fact to determine whether they are clearly erroneous and conclusions of law to determine whether they are correct. In re Marriage of Fishbaugh, 2002 MT 175, ¶ 19, 310 Mont. 519, 52 P.3d 395. A district court’s “findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or our review of the record convinces us that a mistake has been committed.” In re Marriage of Shupe, 276 Mont. 409, 416, 916 P.2d 744, 748 (1996) (citations omitted). ¶6 This Court will not overturn a district court unless there has been a clear abuse of discretion. Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont. 55, 63 P.3d 499. “The test for an abuse of discretion is whether the district court acted arbitrarily without the employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” In re Marriage of Robison, 2002 MT 207, ¶ 15, 311 Mont. 246, 53 P.3d 1279 (citing Meeks v. Meeks, 276 Mont. 237, 242, 915 P.2d 831, 834 (1996)). “We have also specifically recognized the District Court’s broad discretion when considering the parenting of a child. ‘Child custody cases often present the court with difficult decisions. We must presume that the court carefully considered the evidence 4 and made the correct decision.’” In re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28 (citing In re Parenting of N.S., 2011 MT 98, ¶ 18, 360 Mont. 288, 253 P.3d 863). ¶7 This Court, as a general principle, will not find an abuse of discretion where the district court adopts a parenting plan that favors stability and convenience over the equal apportionment of time between parents. In re Marriage of Dennison, 2006 MT 56, ¶ 16, 331 Mont. 315, 132 P.3d 535. ¶8 It is clear from the parties’ briefs and the record that both Avalon and Bailey had problems and challenges, but the District Court also noted that each has positive attributes. It is equally clear that the parties do not like each other and are quick to point out the other’s deficiencies. The District Court was tasked with the difficult job of sifting through all of the conflicting evidence related to the parties’ lives, how their respective relationships with the child were impacted, and ultimately what was in the child’s best interests. The District Court gave the weight it deemed appropriate to the various witnesses who testified and the evidence submitted, and made a reasoned decision based on the child’s best interests. We find the court’s decision to be within its broad discretion in determining matters of child custody, and therefore affirm its decision in this matter. ¶9 Regarding the issue of appellate mediation, it appears that Bailey’s counsel made some effort to comply, thus we decline to summarily dismiss Bailey’s appeal as was requested by Avalon. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion 5 of the Court, the District Court’s findings of fact are not clearly erroneous, it did not abuse its discretion, and the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶11 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE

January 26, 2016

2a4fe983-d5d4-42a2-bef9-90fab503d391

Interstate Explorations, LLC v. Morgen Farm & Ranch, Inc.

2016 MT 20

DA 15-0472

Montana

Montana Supreme Court

DA 15-0472 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 20 INTERSTATE EXPLORATIONS, LLC, Plaintiff and Appellant, v. MORGEN FARM AND RANCH, INC., Defendant and Appellee. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Wibaux, Cause No. DV-14-14 Honorable Richard A. Simonton, Presiding Judge COUNSEL OF RECORD: For Appellant: Loren J. O’Toole, II, O’Toole & O’Toole; Plentywood, Montana For Appellee: William A. D’Alton, D’Alton Law Firm, P.C.; Billings, Montana Submitted on Briefs: December 9, 2015 Decided: January 26, 2016 Filed: __________________________________________ Clerk January 26 2016 Case Number: DA 15-0472 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Interstate Explorations, LLC (Interstate), leases mineral rights beneath the surface estate of Morgen Farm and Ranch, Inc. (Morgen). Interstate filed this action against Morgen in the District Court of the Seventh Judicial District, Wibaux County, requesting a declaration that Morgen had wrongfully denied an easement necessary for installing a power line to operate the well drilled by Interstate on the property. Morgen answered and counterclaimed regarding alleged hydrocarbon spills on the property, requesting damages. Asserting that Morgen had failed to first exhaust administrative remedies before initiating legal action for damages, Interstate moved to dismiss Morgen’s counterclaims for lack of subject matter jurisdiction, which the District Court denied. Interstate appeals. We affirm and state the issue as follows: ¶2 Did the District Court err by denying Interstate’s motion to dismiss Morgen’s counterclaims for lack of subject matter jurisdiction because Morgen did not first exhaust statutory remedies? PROCEDURAL AND FACTUAL BACKGROUND ¶3 Morgen leased oil and gas rights on a portion of its property to Montana Oil Properties, Inc. Morgen owns the surface rights to the property. Montana Oil Properties later assigned its interest in the lease to Interstate, who drilled and completed a well on the Morgen property. ¶4 In July 2014, Interstate initiated this lawsuit, alleging that Morgen “has refused to execute the easement for [Montana-Dakota Utilities Co.] to enter the property to hook up the electrical line necessary to operate the well.” Interstate requested a judgment 3 declaring Interstate’s interests and rights in the property, and also requested damages for the “increase in expenses . . . incurred by having to use a generator” to maintain the well on the site. ¶5 Morgen answered by denying that an easement was necessary because Interstate had the right to run power to the well by virtue of the lease, but counterclaiming that Interstate had damaged the surface of the property by spilling hydrocarbons. Morgen alleged that the damage had not been remedied by compensation and that Interstate was wrongfully entering and remaining on the property until the damage was paid, stating claims for trespass, unjust enrichment, and wrongful occupation. Interstate moved to dismiss Morgen’s counterclaims for lack of subject matter jurisdiction, which the District Court denied. Interstate again raises the issue of subject matter jurisdiction on appeal. STANDARD OF REVIEW ¶6 “A district court’s decision to grant or deny a motion to dismiss for lack of subject matter jurisdiction is a question of law that we review for correctness.” Pickett v. Cortese, 2014 MT 166, ¶ 11, 375 Mont. 320, 328 P.3d 660 (citing Ballas v. Missoula City Bd. of Adjustment, 2007 MT 299, ¶ 9, 340 Mont. 56, 172 P.3d 1232). “[A] district court’s conclusion as to its jurisdiction is always subject to de novo review, regardless of the context in which the conclusion is made.” Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 53, n. 5, 345 Mont. 12, 192 P.3d 186 (citing Stanley v. Lemire, 2006 MT 304, 334 Mont. 489, 148 P.3d 643). 4 DISCUSSION ¶7 Did the District Court err by denying Interstate’s motion to dismiss Morgen’s counterclaims for lack of subject matter jurisdiction because Morgen did not first exhaust statutory remedies? ¶8 The District Court explained that, pursuant to the provisions governing Surface Owner Damage and Disruption Compensation, §§ 82-10-501, et seq., MCA (referred to herein as the “Surface Damage Act” or “Act”), oil and gas developers and operators are responsible for damages sustained by the surface owner caused by oil and gas operations. Sections 82-10-504, 505, MCA. However, citing §§ 82-10-508 and 82-11-142(2), MCA, the District Court reasoned that the Act was not the exclusive remedy for surface damage claims, and that surface owners were entitled to seek other remedies permitted by law. Therefore, the court concluded it had subject matter jurisdiction over Morgen’s claims. ¶9 Interstate argues that the District Court erred by not holding that Morgen’s failure to exhaust administrative remedies set forth in Title 82, chapter 10, MCA, addressing surface damage compensation, deprived the District Court of subject matter jurisdiction to entertain Morgen’s counterclaims seeking damages. Noting that § 82-11-141(1), MCA, provides that “the Montana Administrative Procedure Act (MAPA) applies to this chapter,” Interstate argues that § 2-4-702(1)(a), MCA, MAPA’s administrative exhaustion provision, requires that Morgen’s surface damage claims first be pursued before the Montana Board of Oil and Gas Conservation (Board). ¶10 “To determine whether or not [a party] must exhaust administrative remedies, we look first to the statutory language, and where that is unclear, to legislative intent.” Stanley v. Holms, 267 Mont. 316, 320, 883 P.2d 837, 839 (1994) (citation omitted) 5 (considering whether administrative remedies within the Commissioner of Labor and Industry divested district courts of subject matter jurisdiction over statutory wage claims). This case is resolved by a careful review of the language and structure of the governing statutes. ¶11 The parties’ arguments involve two chapters. Chapter 10 of Title 82 of the Montana Code Annotated governs oil and gas issues generally and includes the provisions of the Surface Damage Act in Part 5. Part 5 provides for notification to the surface owner of planned drilling operations, notification to the oil or gas operator of any surface damage, and a process of exchanging offers of settlement to resolve damages issues. Sections 82-10-501, et seq., MCA. Then, Chapter 11 of Title 82 governs oil and gas conservation and Part 1 thereof includes the extensive provisions entitled “Regulation by Board of Oil and Gas Conservation.” Sections 82-11-101, et seq., MCA. ¶12 Notably, the Surface Damage Act, in Chapter 10, is not structured under the regulatory powers of the Board set forth in Chapter 11. Further, the Board is not expressly given any role within the damage resolution provisions of the Act, and, indeed, is not even referenced by the Act. While § 82-10-510, MCA, adopts the penalty provision of Chapter 11 for violation of “the notice requirements of § 82-10-503” by an oil and gas operator, see Pinnacle Gas Res., Inc. v. Diamond Cross Properties, LLC, 2009 MT 12, ¶ 28, 349 Mont. 17, 201 P.3d 160, the Act gives the Board no other duty in the damage resolution process. The Board’s lack of involvement with the process under Chapter 10 was confirmed during the 2007 Legislative Session, when Senate Bill 19 was 6 passed to make a minor revision to the Act.1 During a hearing before the Senate Natural Resources Committee, the following exchange occurred between Senator Greg Lind and Tom Richmond, administrator of the Board: Senator Lind: ‘Under [] existing law, how often under § 82-10-505, liability and damages, can you give me an idea of the magnitude of the activity, does that come through your office? Are you aware of those actions and disputes?’ Tom Richmond: ‘Mr. Chairman, we typically are not. We don’t have direct enforcement and rule-making authority under Chapter 10. Our enforcement is under Chapter 11, that’s why you’ll see the penalty section referring to the penalties in Section [sic] 11, because there are no penalties in Section [sic] 10. That was one of the rabbit holes we went down, trying to figure out what to do about penalties. We decided to best defer to existing law.’ Mont. S. Comm. on Natural Res., Hearing on S. Bill 19, 60th Legis., Reg. Sess. (Jan. 15, 2007). ¶13 Thus, consistent with the plain language of the Act, the Board assumes no direct enforcement or rule-making authority under Chapter 10 regarding the dispute resolution process. Rather, the Act is an attempt to facilitate communication between surface owners and oil and gas operators to help resolve damage disputes. As such, while a statutory process has been enacted, it is not an agency or administrative proceeding that must be exhausted before litigation may be commenced. ¶14 Even if the process created by the Act were considered to be an administrative process, the Act specifically provides that the process is not an exclusive one. Section 1 SB 19 added the following language to § 82-10-504(1)(a), MCA: “The surface owner and the oil and gas developer or operator shall attempt to negotiate an agreement on damages.” Sec. 3, Ch. 57, L. 2007. 7 82-10-511, MCA, states that “[t]he remedies provided by this part do not preclude any person from seeking other remedies allowed by law.” Thus, by statute, the process is not mandatory and need not be completed prior to initiation of litigation. While we need not cite legislative history in light of the statute’s clear language, that history also demonstrates that the Legislature did not intend this process to be exclusive.2 ¶15 Interstate’s MAPA argument is likewise unavailing. Section 82-11-141(1), MCA, provides that MAPA is applicable “to this chapter”—meaning Chapter 11, the Board’s enforcement powers, and not Chapter 10, which includes the Surface Damage Act. ¶16 The District Court correctly held that a surface owner is not required to exhaust an administrative remedy under the Surface Damage Act before litigating a damage claim in the courts, and correctly denied Interstate’s motion to dismiss Morgen’s counterclaims on this basis. ¶17 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA 2 See Mont. S. Comm. on Natural Res., Hearing on S. Bill 19, 60th Legis., Reg. Sess. (Jan. 15, 2007).

January 26, 2016

77ab1aed-7a04-44b2-ab91-b0da2e095cb4

Matter of E.E.

2016 MT 38N

DA 15-0362

Montana

Montana Supreme Court

DA 15-0362 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 38N IN RE THE MATTER OF E.E., A Youth in Need of Care. D.K and J.K., Appellants, v. DEPARTMENT OF PUBLC HEALTH AND HUMAN SERVICES, Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DN 14-32 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert Terrazas, André Gurr, Terrazas Law Offices, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Kelly Henkel, Deputy County Attorney, Missoula, Montana Submitted on Briefs: January 13, 2016 Decided: February 16, 2016 Filed: __________________________________________ Clerk February 16 2016 Case Number: DA 15-0362 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by unpublished opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 In September 2013, D.K. and J.K. became guardians of 12-year-old E.E. with the intention of adopting him. The relationship between the guardians and E.E. did not progress well and the adoption plans subsequently were abandoned. In March 2014, the Department of Public Health and Human Services, Child and Family Services Division (CFS or the Department) initiated a dependent neglect action (DN case) and petitioned for emergency protective services and temporary investigative authority over E.E. In June 2014, after the legal guardianship between D.K., J.K., and E.E. was dissolved, the Department moved to dismiss D.K. and J.K. from the dependent neglect action. On the same day, however, CFS filed an administrative proceeding against D.K. and J.K., based upon the same factual allegations contained in the dependent neglect petition, out of concern that D.K. and J.K. might subsequently attempt to adopt another child. ¶3 On August 7, 2014, following a hearing in the DN case, the Fourth Judicial District Court entered an order on the Department’s motion, dismissing D.K. and J.K. from the DN action with prejudice, expressly stating: For purposes of any other legal action against [guardians]— including any past, current, or future actions by CFS or any other person or entity—any and all issues and allegations against the [guardians] in this 3 cause, whether express or implicit, shall be deemed to have been fully and finally adjudicated on the merits, including, but not limited to, CFS’s prior, concurrent, and subsequent alleged facts and issues in this cause. ¶4 D.K. and J.K subsequently requested that CFS voluntarily dismiss its administrative action. It declined to do so. Therefore, on February 11, 2015, D.K. and J.K. moved for summary judgment in the administrative proceeding. They argued that in light of the District Court’s order of August 7, 2014, all actions against them by the Department were fully and finally adjudicated on the merits and dismissed with prejudice, and the Department was not entitled to reopen or substantiate any further allegations against them in the administrative proceeding. No order has been entered on the motion. ¶5 On March 3, 2015, E.E., through his attorney, moved the District Court for entry of a supplemental order “clarifying” the scope and effect of the dismissal of D.K. and J.K. from the DN proceeding. He was joined in the motion by his present custodians on behalf of the Department. On March 9, 2015, before D.K. and J.K. had an opportunity to respond to the motion, the District Court issued its “clarifying” order, noting that: This [c]ourt has not heard testimony on the merits of the original allegations of this case, as the former guardians were dismissed for their lack of standing prior to the [c]ourt making such a determination. This [c]ourt’s prior Order Dismissing [D.K. and J.K.] with Prejudice therefore is only to be construed as a final ruling on the [former guardians’] standing to proceed as a party in the above-captioned Dependent and Neglect Matter. . . . The Order dismissing the [former guardians] from the above captioned Dependent-Neglect case has no effect on any administrative proceeding by the Department . . . regardless of whether the administrative 4 proceeding is on the same facts or allegations in the above referenced Dependent-Neglect case. ¶6 On June 15, 2015, D.K. and J.K. appealed the March 2015 order on the grounds that the District Court lacked the authority to issue an amended order and that the court denied them due process when it issued its order without providing them the opportunity to respond to the Department’s motion. The parties agreed to stay any administrative action against D.K. and J.K. pending the outcome of this appeal. ¶7 A district court may correct a clerical error in a previously-issued decision at any time and without leave of this Court providing the case at issue is not on appeal. M. R. Civ. P. 60(a) (Rule 60). We have instructed, however, that the error to be corrected must be clerical rather than judicial and the correction must not alter the substantive rights of the parties. Davenport v. Odlin, 2014 MT 109, ¶ 15, 374 Mont. 503, 327 P.3d 478. “Where an error is not clerical, but judicial, a court lacks jurisdiction to amend its order outside of the time limitations and process prescribed by the Rules of Civil Procedure.” Davenport, ¶ 15. Here, the District Court’s “clarifying” order—issued 7 months after its original order dismissing D.K. and J.K. from all proceedings with prejudice—did not correct any clerical error but rather substantively and adversely altered the rights of D.K. and J.K. by allowing the Department to pursue administrative action against them based upon “issues and allegations” that arose in the dependent neglect proceeding with E.E. ¶8 The Rules of Civil Procedure do not provide for a “motion for clarification.” Rather, the rules provide for a motion to alter or amend a judgment which must be filed no later than 28 days after the entry of the challenged judgment. M. R. Civ. P. 59(2)(e). 5 See also M. R. Civ. P. 52(b) (“On a party’s motion filed no later than 28 days after the entry of judgment, the court may amend its findings . . . and may amend the judgment accordingly.”). E.E.’s motion for clarification was clearly a motion to amend the court’s previous judgment on substantive grounds, and was untimely under the foregoing rules. Moreover, the District Court did not provide D.K. and J.K. an opportunity to be heard before issuing its order, as required under Rule 59(d). ¶9 The Department argues that D.K. and J.K.’s June 15, 2015 appeal should be dismissed as untimely. It asserts that the notice of appeal should have been filed no later than April 8, 2015, i.e., within 30 days from entry of the May 9, 2015 order. M. R. App. P. 4(5)(a)(i). The Department further contends that it was not required to file a notice of entry of judgment under M. R. Civ. P. 77(d) for the order because it was an order arising from a Rule 60 motion. We disagree. The motion for clarification did not rely on Rule 60 in seeking relief. In fact, nowhere in the Joint Motion and Brief for Clarification of Order of Dismissal or its attachments do the movants even refer to Rule 60. Moreover, as discussed above, applicable Rules 52, 59, and 60 do not provide for motions to clarify. ¶10 Notably, it was the Department that moved for dismissal of D.K. and J.K. from the dependent neglect proceeding and the former guardians agreed provided the dismissal was with prejudice. A final order dismissing them with prejudice was entered and the Department did not seek to amend the order within 28 days. Nor did the Department file a Rule 77 notice of entry of judgment for either the August 7, 2014 dismissal order or the March 9, 2015 clarification order. In In re Alexander, 2011 MT 1, ¶ 12, 359 Mont. 89, 246 P.3d 712, we stated that because no notice of entry of judgment was filed in that 6 case, husband’s appeal filed approximately one year after the entry of the challenged order was timely. For this reason, we conclude that D.K. and J.K.’s appeal was timely. ¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for unpublished opinions. In the opinion of this Court, this case presents questions clearly controlled by settled law. ¶12 For the foregoing reasons, we vacate the District Court’s March 9, 2015 Order. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA

February 16, 2016

858808b3-39c9-4d63-bc62-64f44cb17df3

MORRIS v C C COMMUNICATION CORP

N/A

13674

Montana

Montana Supreme Court

No. 13674 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 RONALD G. MORRIS, Plaintiff and Respondent, C. C. COMMUNICATIONS CORPORATION, Defendant and Appellant. Appeal from: District Court of the Eleventh Judicial District, Honorable Mat Allen, Judge presiding. Counsel of Record: For Appellant: Astle and Astle, Kalispell, Montana William E. Astle argued, Kalispell, Montana For Respondent: Warden, Walterskirchen & Christiansen, Kalispell, Montana Gary R. Christiansen argued, Kalispell, Montana Submitted: October 7, 1977 -.g;- - Decided: J- - ,$ i g q Filed:-: ig& Clerk Mr. Justice Daniel J. Shea delivered the Opinion of the Court. C. C. Communications Corporation, a Florida based company, appeals from a judgment of the Flathead County District Court awarding the plaintiff-employee vacation pay and overtime pay, together with the statutory penalties under Montana's wage statutes. C. C. Communications Corporation also appeals from the District Court's dismissal of a counterclaim it had filed against the employee. The employer's contentions are: First, the evidence was not sufficient to justify the award of vacation pay; second, the evidence was not sufficient to sustain any agreement by the employer to pay overtime to the employee; and third, it was denied a fair trial on its counterclaim because the District Court improperly limited cross-examination of the employee. The employment history involved here started with the employee becoming employed by the VanVelkinburg Company in September, 1970. On March 6, 1972, he went to work for the C. C. Communica- tions Corporation, a "sister corporation" to the VanVelkinburg Company until 1974. In October, 1975, the employee was transferred from Toronto, Canada, to Kalispell, Montana to provide emergency help to the Northwestern Telephone Systems during a strike. At all times the employee was employed by and paid by C. C. Communications Corporation although there was no written contract of employment between them. The employee continued to work for the C. C. Communications Corpora- tion until December 31, 1975, when he resigned because of a dispute relating to payment of wages. This dispute led to the filing of a wage claim, which is the subject of this appeal. The dispute as to the employee's right to vacation pay centers around a determination of his anniversary service date of employment. The employer concedes that if the anniversary service date is September of 1970, the employee is entitled to vacation pay. The employer contends, however, that the anniversary service date is March, 1972, and, therefore, the employee is not entitled to vacation pay. In this respect, this was strictly a factual ques- tion presented to the District Court and resolved against the employer. There being sufficient evidence in the record to support this find- ing, we cannot set it aside. Rule 52, M.R.Civ.P.; Luppold v. Lewis, Mont. , 563 P.2d 538, 34 St.Rep. 227, 229 (1977). - The employer relies entirely on its policy manual of employ- ment, which states that an employee cannot "bridge" work experience from another employer for the purpose of obtaining benefits from C. C. Communications Corporation. The only policy manual introduced in evidence was that which was introduced by the employee. This manual had an effective date of January, 1975, which was after the date the employee went to work for the employer. Moreover, the employee testified that this was not the policy of the employer when he first went to work. He illustrated thisbytestifying that the first year he went to work for C. C. Communications Corporation, he was paid two weeks' vacation benefits. The policy manual required an employee to be employed two years before he was entitled to two weeks' vacation benefits. This was strong evidence that the policy in effect at the time the employee first went to work for C. C. Communications Corporation was not the same as that shown by the employment policy manual bearing the 1975 date. It demonstrated that C. C. Communications Corporation did allow the employee to "bridge" his employment from VanVelkinburg Company to C. C. communi- cations Corporation. The employer did not refute the employee's testimony. Accordingly, the District Court properly ruled that the employee was entitled to vacation pay. The issue of overtime pay also involves a factual determina- tion that the District Court resolved against C. C. Communications Corporation. The employer's sole contention is that it is not bound to pay overtime wages to the employee because there is no evidence that it had agreed to do so. The employer contends that the employee had agreed to work for a flat salary. However, there was substantial evidence from which the District Court could con- clude that the employer had agreed to pay overtime wages to the employee. The employee introduced exhibits showing that he was paid on an hourly basis rather than on a salary for this particular job. These exhibits also showed that C. C. Communications Corporation had regularly billed its client (Northwestern Telephone Systems) for the employee's overtime hours. During this entire period the employee submitted time sheets indicating the overtime hours he had worked. Moreover, the testimony of a manager of C. C. Communications Corpora- tion, together with that of another employee, supported the employee's contention that there was an agreement to pay $500 a week for 40 hours and time and a half for anything over a 40-hour week. During the course of the employment, the manager continued to assure the employee of compensation for overtime. Based on these assurances, the employee continued to work overtime. The employer called one management witness who testified that there was no agreement for the employee to receive overtime pay and that the employee was on a salary. Given this conflict in the evidence, the question was one of fact for the District Court to resolve. Schulz v. Fox, 136 Mont. 152, 345 P.2d 1045 (1959). Clearly, it was the province of the District Court to resolve any discrepancies. The third issue relates to the employer's counterclaim, which in essence charged that the employee did not properly account for funds entrusted to him. Before trial the employer took the employee's deposition, and also submitted detailed interrogatories to the employee concerning the funds, which interrogatories were answered. The employer also obtained the employee's records relating to the money entrusted to him. The trial was held in one day, August 17, 1976. Near the end of the trial, just before cross- examination of the employee started, the trial judge stated to . counsel: "I will give you five minutes [to cross-examine]." Counsel contends that this limitation deprived the employer of a fair trial. On the facts before us, we do not agree. The trial judge's statement to employer's counsel was not made in the context the employer asserts. It was 5:00 p.m. and the trial judge asked employee's counsel how much time he needed before he finished the direct examination. The answer was that he was finished with the employee, and then would call another witness for a brief examination. At the conclusion of the examination of the employee, the employer's counsel stated to the court: "MR. ASTLE: Your Honor, I will attempt to be very brief. I have a few questions, just very brief. "THE COURT: I will give you five minutes." From this it is obvious that counsel in effect told the court he needed only a few minutes to do the entire cross-examination. Counsel did not object to this time limitation and conducted a very brief examination concluding with the remark: "Your Honor, I have no further questions." Moreover, at the completion of this cross- examination, another witness was called to testify, was examined, cross-examined, and examined again on re-direct before the comple- tion of the day-long trial. Counsel at no time indicated he needed more time to examine either witness. At the conclusion of trial, the trial judge suggested that because of the voluminous and complicated records as to the accounting, the parties might like to submit them to an accountant for proper study. The accountant could then make a report to the court. The employer never took up this suggestion nor suggested at a later time that it wanted an accountant to do a detailed study of the records. In the employer's motion in the District Court for a new trial, counsel did not point out the need for further questioning, and did not show in any way how additional cross-examination would have, or even might have, benefited the employer. Under these circumstances we cannot say the employer was denied a fair trial because of time restrictions placed upon the cross-examination of the employee. The judgment of the District Court is affirmed. / - - We Concur:

December 2, 1977

9ee219a9-7936-4a80-abfb-001dbdb1641e

MARRIAGE OF JOHNSRUD

N/A

13560

Montana

Montana Supreme Court

No. 13560 I N T H E S U P R E M E COURT O F THE STATE O F MONTANA 1977 I N RE THE MARRIAGE O F DONALD L. JOHNSRUD, P e t i t i o n e r and Respondent, -vs- JEANETTE I. JOHNSRUD, Respondent and Appellant. Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t , Honorable B.W. Thomas, Judge presiding. Counsel of Record: For Appellant: Marra, Wenz and Iwen, Great F a l l s , Montana Joseph Marra argued, Great F a l l s , Montana For Respondent : Morrison, E t t i e n and Barron, Havre, Montana Van H. Barron argued, Havre, Montana Submitted: March 16, 1977 Decided: NQQ 2 5 19'7-7 f , , I 7. i . i -- F i l e d : Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Jeanette I. Johnsrud, former wife of Donald L. Johnsrud, appeals from an order of the Hill County District Court, awarding her $250 a month maintenance in the decree of dissolution of the parties' marriage. The parties were married January 24, 1958. They have three children: Donald Larry, born October 6, 1960; Steven Paul, born April 2, 1963; and Cynthia Lynn, born May 17, 1966. At the time the parties married, the wife was 16 years old. She did not graduate from high school but later obtained a high school equivalency certi- ficate. She had not been employed outside the home during the mar- riage. Each month, the husband gave the wife funds to pay for groceries, utilities and clothing. At the time of separation, she had been receiving $556 a month plus occasional supplements. In addition, the husband paid the house payments, car expenses including insurance, and bills for his own clothes. The parties accumulated approximately $248,800 in assets during their marriage, with liabilities at the time of trial of approximately $40,800. In its decree of dissolution of marriage dated July 28, 1976, the District Court decreed custody of the older son to the husband and the two younger children to the wife. The court ordered the husband to pay $150 a month child support for each of the two children in the wife's custody until each child reached majority or graduated from high school, whichever occurred first. The court awarded the wife the following property totaling $80,400 in value: Family residence $53,900 Household furnishings, fixtures and appliances 15,000 1976 Pacer automobile 5,000 Two snowmobiles 1,500 Cash The court awarded all other property to the husband, includ- ing $129,000 in corporate and other business interests. The court also ordered the husband to assume all liabilities, which included the monthly house payments of $169.00. It appears, however, in the court's findings that the house payments were somehow considered as maintenance, to terminate upon the wife's remarriage. The court found the husband's average net salary was $22,350 for the years 1971 through 1974, and that this income for succeeding years "should equal or exceed his average annual income for the 1971-1974 period." The court awarded monthly maintenance to the wife in the amount of $250, to be reviewed in five years. The wife appeals primarily from the award of maintenance, but also questions the source of funds to be used for child support, and contends the District Court improperly denied attorney fees. The wife contends the husband cannot use as a source of child support payments a $30,000 trust set up for the children under the Uniform Gifts to Minors Act. However, there appears to be no dispute on this matter. The husband agrees this trust was set up for incidental future expenses such as higher education and claims he does not intend to use it for present child support payments. Furthermore, the District Court in its findings of fact recognized the child support would come from the husband's income and not from any trust fund set up for future educational needs of the children. It is clear this trust fund will not be used for present child sup- port obligations. As to maintenance, the wife contends the court erred in deter- mining the amount of maintenance, and that it awarded rehabilitative maintenance where it should have awarded permanent maintenance. The disposition of marital property and the right to main- tenance are closely related under the Uniform Marriage and Divorce Act, which became effective in Montana on January 1, 1976. section 48-321, R.C.M. 1947, states: "Disposition of property. (1) In a proceeding for dissolution of a marriage, legal separation, or disposition of property following a decree of dis- solution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, without regard to marital mis- conduct, shall, and in a proceeding for legal separa- tion may, finally equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both. In making apportionment the court shall consider the duration of the marriage, and prior mar- riage of either party, antenuptial agreement of the parties, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the oppor- tunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respec- tive estates, and the contribution of a spouse as a homemaker or to the family unit. In disposing of property acquired prior to the marriage; property acquired by gift, bequest, devise or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separa- tion, the court shall consider those contributions of the other spouse to the marriage, including the non- monetary contribution of a homemaker; the extent to which such contributions have facilitated the main- tenance of this property and whether or not the property disposition serves as an alternative to maintenance arrangements. "(2) In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general wel- fare of any minor, dependent, or incompetent children of the parties." (Emphasis added.) The maintenance provision, section 48-322, R.C.M. 1947, states: "Maintenance. (1) In a proceeding for dissolu- tion of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court nay grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: "(a) lacks sufficient property to provide for his reasonable needs, and - "(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. "(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including: "(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; "(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; " (c) the standard of living established dur- ing the marriage; "(d) the duration of the marriage; "(e) the age, and the physical and emotional condition of the spouse seeking maintenance; and "(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance." (Emphasis added.) The comments of the code commissioners to these statutes indicate the property division statute and maintenance statute must be read together because they have a dual purpose. In 9 Uniform Law Annotated, Marriage and Divorce Act, 5308, p. 494, the comment under the maintenance section states in part: "* * * The dual intention of this section [main- tenance] and Section 307 [property disposition] is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills and interests or is occupied with child care may an award of maintenance be ordered." (Paraphrased material added.) We conclude, therefore, it is the first duty of the District Court to equitably distribute the marital property. After the court makes a decision on property division, then any additional needs of a spouse petitioning for maintenance should be readily apparent. If these future needs cannot be met by a property distribution, then a petitioning spouse is entitled to maintenance if he fulfills the requirements of section 48-322, R.C.M. 1947. The District Court should enter appropriate findings under section 48-322, either grant- ing or denying the maintenance. In the present case no consideration was given to an equitable property distribution. The District Court awarded the wife only one-third of the marital estate; and, it was, as the District Court noted, income consuming. On the other hand, the property awarded to the husband was income producing and most likely would increase in value. Section 48-321, R.C.M. 1947, requires certain factors to be considered in dividing the marital estate, and there is no indication from the findings that this statute was followed in this case. As a housewife, the wife acquired a vested interest in the property accumulated by the parties during the marriage. Biegalke v. Biegalke, Mont. , 564 P.2d 987, 34 St.Rep. 401, 404 (1977); Eschenburg v. Eschenburg, Mont. , 557 P.2d 1014, 33 St.Rep. Mont . 1198, 1201 (1976); Downs v. Downs, , 551 P.2d 1025, 33 St.Rep. 576, 578 (1976). From the evidence before us we cannot determine whether an equitable division of the marital property would sufficiently provide for the wife's future needs without the need for maintenance. Whatever the case, before ordering maintenance and arriving at an amount, the District Court should first have arrived at an equitable division of the property. The District Court need not be hamstrung in devising methods to accomplish an equitable division of property. States which have adopted the Uniform Marriage and Divorce Act dissolution provisions have provided alternative methods of handling the division of property upon dissolution of marriage. In the case of In re Marriage of Harding, (Colo. 1975), 533 P.2d 947, the parties, during the marriage, had accumulated assets of $668,640, mostly in radio station stock. The court gave the husband the option of selling the stoclc and dividing the proceeds with the wife, or retaining full ownership and paying off the wife's interest in installments over 20 years. Another Uniform Marriage and Divorce Act case, Williams v. Williams, (Ky. 1973) 500 S.W.2d 79, set out similar alternatives. Williams cited as authority the pre-Uniform Marriage and Divorce Act cases of Clark v. Clark, (Ry. 1972), 487 S.W.2d 272 and Colley v. Colley, (Ky. 1970), 460 S.W.2d 821. In Colley the court held that the property should be distributed in kind, but where that is imprac- ticable, it can be paid in money value, either in a gross amount ok in installments. The court stated: "The distribution or division of property acquired during marriage by the team effort of the marital partners, is, strictly speak- ing, not alimony. * * * Where property is acquired during marriage by the joint efforts of the parties, it should be divided between the spouses according to what is just and rea- sonable. * * * This division is a distribu- tion of property in kind or where that is impracticable the value of the interest in property in money can be adjudged payable in a gross amount or in installments where that method is suitable. * * *" 460 S.W.2d 826. In Clark, the wife contended that the property awarded to her on division of the couple's horse breeding and trading business should be granted in kind rather than in cash. The court disagreed, stating: " * * * We have here a business estate, the division or forced liquidation of which could materially depreciate its value and could de- stroy the basis of the husband's earning capa- city. In those circumstances it is proper to allow the wife the value of her share in cash, payable in installments. * * *" 487 S.W.2d 275. For similar but non-Uniform Marriage and Divorce Act cases, see also, Vaughn v. Vaughn, (S. Dak. 1977), 252 N.W.2d 910, reported in 3 Family Law Reporter 2446; and Wilcox v. Wilcox, (1977 Ind.App.), 365 N.E.2d 792, 3 FLR 2599. Under the Uniform Marriage and Divorce Act, there is a need to distinguish between a property right in the marital estate, and the maintenance provisions. Upon dissolution of marriage the property interest vests in the spouse to whom it is awarded. On the other hand, an award of maintenance is related only to the "needs" of the spouse seeking maintenance, and ceases, for example, upon the happen- ing of certain events,such as death. Section 48-322 does not dis- tinguish between permanent and rehabilitative maintenance. The right to maintenance continues as long as the need exists but, under set- ,' u-! ) tion 48-32>7f), R.C.M. 1947, this must be balanced with the needs of the other party. Under any circumstances, one is not entitled to maintenance unless he fulfills the requirements of section 48-322. Absent any evidence and findings under section 48-322, there is simply no basis to award maintenance. It appears here the parties were confused as to the nature of maintenance. The record seems to indicate the wife did not object to the property division because she anticipated income in the form of maintenance to supplement this property award. There is no indi- cation in the record as to whether she regarded the maintenance as a property right she would be getting in exchange for giving up the business property, or whether she was confining her claim to main- tenance strictly to a situation where she could continue to show her need for it. The wife demanded maintenance in the minimum amount of $600.00 per month and the maximum of $1,000.00 per month to continue re- either until her/marriage or death, or until she reached the age of 62. There is some indication, however, that perhaps she was looking at maintenance more in the nature of a property interest in that she sought to peg her maintenance to a certain percentage of the husband's gross salary. Whatever the situation, the nature of her claim is not at all clear. Neither party proceeded on the basis that it was the duty of the District Court to first make an equi- table division of the marital estate before determining whether the wife should also receive maintenance. Since we cannot determine from the findings and record that the case was properly tried and considered under the provisions of the Uniform Marriage and Divorce Act, we remand for a redetermination of the disposition of the parties' marital estate. The District Court is instructed to make specific findings of fact on each element delineated in section 48-321, R.C.M. 1947, as well as any other factors which it considers in dividing the property. Without such findings we cannot determine how the District Court arrived at its ultimate property division. We cannot effectively reach the secondary matter of mainte- nance until there is a more equitable determination of the parties' interests. As we stated earlier, an award of maintenance is allowed only where a spouse has insufficient assets to cover living expenses (section 48-322(1)(a)) and cannot have appropriate employment for the reasons stated in section 48-322(1)(b). The needs of the spouse as to maintenance can only be determined after there is an equitable division of the marital estate. The last issue is that of attorney fees. The wife requests an award for fees incurred for the trial. The District Court denied them because she did not request them in her pleadings. Section 48- 327, R.C.M. 1947, allows the District Court to award attorney fees to a party in a dissolution of marriage procedding. while this section does not require attorney fees to be prayed for, nevertheless we deem it good practice to request such fees in the pleadings. The Montana Rules of Civil Procedure do apply to the Uniform Marriage and Divorce Act unless otherwise provided. Section 48-315, R.C.M. 1947. Since we remand this case for a determination of property interests, the wife has the right to move to amend her pleadings and make an appropriate request for attorney fees. The judgment is vacated and remanded for redetermination of the marital estate in a manner consistent with this opinion. We Concur: . c P LJ'a,&& Justices & 4

November 29, 1977

9951e7b2-2204-4912-8205-6b79f653fb4d

STATE v STEWART

N/A

12990

Montana

Montana Supreme Court

No. 12990 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 STATE OF MONTANA, Plaintiff and Respondent, ANDRA PHILLIP STEWART, Defendant and Appellant. Appeal from: District Court of the Eighth Judicial District, Hon. Robert S. Keller, Judge presiding. Counsel of Record: For Appellant: Moses, Kampfe, Tolliver and Wright, Billings, Montana Charles F. Moses argued, Billings, Montana For Respondent: Hon. Michael Greely, Attorney General, argued, Helena, Montana J. Fred Bourdeau, County Attorney, argued, Great Falls, Montana Submitted: January 24, 1977 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant Andra Phillip Stewart appeals from a conviction of aggravated kidnapping under section 94-54303, R.C.M. 1947, fol- lowing trial in the District Court, Cascade County. In early January, 1974, defendant, an airman stationed at Yalmstrom Air Force Base near Great Falls, Montana, was involved in a court-martial hearing at that installation. On January 9, after spending the afternoon at Malmstrom's legal office, defendant met Larry Vample, also an airman at the Base, and the two men went to the Base recreation center. They stayed there for a few minutes, then drove in Vample's car to the apartment of Billy Naray Evans in Great Falls. Vample later left Evans' apartment in his car, and defendant and Evans drove to Darrell Sloan's apartment, where they met Vample, Sloan, and three other airmen. The men discussed defendant's court-martial. Defendant told them someone had informed on him and others living off the Base in Great Falls. John K. Walsh, Jr., an airman who lived in defendant's barracks, was mentioned as a possible informant. They agreed to confront Walsh and to force him to tell them whether he had informed, and if he had, what he had said. Before leaving for the Base, Evans obtained a syringe from one of the other airmen and filled it with battery acid, with the apparent intention of using this device to threaten Walsh. They arrived at Malmstrom sometime between 9:00 and 9:30 p.m. While the others waited in his barracks room, defendant went to get Walsh. Defendant returned with Walsh, and asked him if he had been an informant. Walsh denied he had informed on anyone, and bolted for the door. He was stopped, a scuffle ensued, and Walsh was knocked to the floor and grabbed by several people. Evans then tried to inject the battery acid into Walsh's leg, but the needle broke and the attempt was unsuccessful. One of the men threatened Walsh with a gun, telling him to be quiet. Walsh finally was subdued. By this time, the only per- sons left in defendant's room were Evans, Vample, Walsh, and defend- ant. is mouth taped and his body wrapped in a blanket, Walsh was carried out of the barracks, placed in Vample's automobile, and taken to the Giant Springs recreation area near Great Falls. There Walsh was removed from the vehicle and shot--once in the chest and three times in the head. His body was thrown over the bank of the Missouri River, where it was found three days later by a fisherman. There was a direct conflict in testimony at the trial con- cerning who was present and who did the shooting when John Walsh, Jr. was killed. Evans and Vample testified they, together with defendant, took Walsh to Giant Springs and defendant shot and killed Walsh. Defendant testified he abandoned the enterprise as Walsh was being taken from the barracks by Evans and Vample, and he was not present when Walsh was shot. Defendant subsequently was arrested and charged by Informa- tion, filed in the District Court, Cascade County, on three felony counts: one court of deliberate homicide, in violation of section 94-5-102, R.C.M. 1947, and two counts of aggravated kidnapping, in violation of section 94-5-303, R.C.M. 1947. Defendant plead not guilty to each of the counts of the Information. Trial by jury began on September 9, 1974. At the conclusion of the state's case, the trial court granted defendant's motion to dismiss the third count, which alleged defendant kidnapped Walsh for the purpose of interfering with a governmental investiga- tion. On September 19, 1974, defendant was found not guilty of the deliberate homicide count, and guilty of the remaining count of aggravated kidnapping. Defendant appeals from the conviction and from the 100 year sentence imposed thereon. Defendant presents twelve issues for review: 1. Whether the District Court had jurisdict.ion over this kidnapping offense which occurred on a United States Air Force Base. 2. Whether defendant's motion for a change of venue should have been granted. 3. Whether Air Force personnel and Blacks were spectacularly and purposely excluded from the assessment roll which made up the jury panel list. 4. Whether testimony and evidence obtained by the use of a dog is admissible. 5. Whether the District Court erred when it refused defend- ant the right to cross-examine a prosecution witness as to his mili- tary rank. 6. Whether the District Court erred when it refused to allow testimony as to items seized under a search warrant. 7. Whether a prosecution witness was erroneously permitted to testify as to a self-serving and hearsay statement. 8. Whether a prosecution witness was erroneously permitted to testify as to his conclusion. 9. Whether the District Court erroneously answered a jury question after the case was submitted to the jury. 10. Whether the kidnapping punishment statute which requires the sentencing judge to make a finding of fact and base his sentence thereon is unconstitutional. 11. Whether the 100 year sentence was error. 12. Whether the District Court improperly retried the case by personally interviewing witnesses after the jury verdict and then making determinations of fact as a part of the sentencing procedure. Issue 1. Defendant contends the District Court was without jurisdiction over the kidnapping offense because the crime took place on a United States Air Force Base. In State ex rel. Parker v. District Court, 147 Mont. 151, 155, 410 P.2d 459 (1966), this Court held that where the federal government purchases land from the state, the state reserves criminal jurisdiction over such l a n 1 - l after its purchase. Defendant recognizes Parker, but contends 1) it is erroneous, and 2) it is no longer controlling as the law has since been changed and the state now has no such jurisdiction. We affirm our holding in Parker. The state may reserve criminal jurisdiction over land conveyed to the federal government. State v. Rindal, 146 Mont. 64, 67, 404 P.2d 327 (1965). The next question of Issue 1 is whether section 95-304, R.C.M. 1947, the general statute for criminal jurisdiction, enacted after Parker, divests the state of jurisdiction over a crime com- mitted on a federal military base located in Montana. In relevant part, section 95-304 provides: "(a) A person is subject to prosecution in this state for an offense which he commits * * * if: "(1) The offense is committed either wholly or partly within the state * * * "(d) This state includes the land and water and the air space above such land and water with re- spect to which the state has legislative juris- diction. " Defendant argues that since Montana first must have legis- lative jurisdiction over the Air Force Base before it can claim criminal jurisdiction, under section 95-304, the state may not try the kidnapping in the present case. We do not think this statute can be so narrowly interpreted. The Revised Commission Comment concerning section 95-304 states: "The purpose of this section is to establish a broad grant of jurisdiction for all crimes. "Subsection (d) claims for the state of Montana the maximum territorial jurisdiction compatible with federal claims." There is nothing in the language of section 95-304 indicating legis- lative intent to restrict jurisdiction this state had previously exercised over crimes committed on land purchased by the federal government. We hold the District Court did have jurisdiction. Issue 2. Defendant contends the trial court should have granted his motion for change of venue because of the anti-Black attitude alleged to exist in Great Falls, the trial site. Defendant and the other airmen involved in the incident are Blacks. The vic- tim was Caucasian. Defendant did not move for change of venue until the eve of trial. One witness called in support at the hearing on defend- ant's motion was Air Force Captain Theron R. Jones, Chief of Social Activities at Malmstrom. The main thrust of his testimony was that there is, in his opinion, a kind of "unconscious bias" against Blacks in Great Falls. He explained that by "unconscious bias", he meant the local population would tend to judge a Black person to be a troublemaker. A Black himself, Capt. Jones conceded he had not had any problems personally, but indicated other Blacks experi- enced this "unconscious bias". During the hearing, this exchange took place: "THE COURT: Do you think going out of this county would change unconscious bias? "THE WITNESS: [Jones] Not in the State of Montana, no. "MR. WRIGHT: [counsel for defendant] Your Honor, I personally think * * * I asked the Captain if he thought Airman Stewart would get a fair trial here, and I believe your answer was * * * "THE WITNESS: My answer is no. "THE COURT: By the same token, you don't think he would get any fairer a trial anywhere else in the State as far as you know? "THE WITNESS: As far as I know." Captain Jones stated this "unconscious bias" probably existed through-. out the state of Montana and that it also existed in other states where he had been stationed. The only other evidence on this point was presented by the same witness, who testified to some vague proh- lems created in the community by Black Air Force personnel dating local white, Indian, and Chicana girls. A clear abuse by the District Judge in denying a change of venue is required to support reversal of his denial. State v. Loqan, 156 Mont. 48, 58, 473 P.2d 833 (1970). Neither in the original hearing on this motion nor on appeal has defendant shown he could not receive a fair trial in Cascade County. There is simply no evidentiary basis in the record to show the trial court abused its discretion in denying a change in venue. Issue 3. Defendant contends he was denied a fair trial because Air Force personnel and Blacks were excluded from the assess- ment roll which made up the jury panel list. There is no dispute that no Black Air Force personnel were included in the jury panel list. A fair cross section of the community must be represented on such a panel to fulfill the Sixth Amendment's guaranty of an impartial jury trial in criminal prosecutions. While a defendant is not entitled to a jury of any particular composition, the jury panel "must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L ed 2d 690, 703 (1975). The jury panel in the instant case came from the Cascade County assessor's list of qualified taxpayers, a method of selection that is not per se unconstitutional. Leggroan v. Smith, 498 F.26 168, 170 (10th Cir. 1974). Defendant argues this method is uncon- stitutional here becauseitsuse results in the exclusion of a sub- stantial percentage of the Air Force personnel at Malmstrom from the county's jury panel. The record discloses Air Force personnel constitute approxi- mately 15 percent of the population of Cascade County, and that approximately 10 percent of all Air Force personnel at Malmstrom are Black. The assessor's list of taxpayers, however, includes only about 20 percent of the Air Force personnel who live in the county. The questions is--Does this variation between the percentage of Air Force personnel in the county and the percentage of their representation on the jury panel, as taken from the assessment roll, reflect a constitutional infirmity in the selection method. We hold that it does not. Under the Soldiers' and Sailors' r , ' , .. - Relief Act, 50 U.S.C. S574, enacted in 1940, military personnel may not be required to pay taxes in the state in which they are stationed if they retain residence elsewhere. Cascade County allows Air Force personnel to exempt themselves from this taxation by the signing of an affidavit stating that the affiant is a nonresident. The effect of this voluntary exemption is to keep those who so elect off of the assessment roll, and consequently, off of the county's jury panel list. Here, at the time of trial, state law required that a juror be a resident of this state for one year. Section 93-1301, R.C.M. 1947 (repealed 1975). One year residency requirements for jurors have been upheld as constitutional. United States v. Ross, 468 F.2d 1213, 1216 (9th Cir. 1972), cert. denied 410 U.S. 989, 93 S.Ct. 1500, 36 L ed 2d 188; United States v. Perry, 480 F.2d 147, 148 (5th Cir. 1973). By signing the affidavit of nonresidency required for exemption from taxation, military personnel established exemption from jury duty in the state. The latter effect was incidental; the purpose of the exemption affidavit was to facilitate compliance with federal law respecting the status of military personnel as taxpayers in the state where they are stationed. Nonresidency is sufficient grounds for the exclusion from the jury panel list of the majority of Air Force personnel living in Cascade County on temporary assignment, and defendant's conviction therefore is not invalid. Since over 95 percent of the Black population of Cascade County is Air Force personnel, it follows that, if most of them choose to take the exemption from taxation, only a small percentage of the jury panel list will be Blacks. The number of Black Air Force personnel remaining for inclusion in the jury panel equals approximately .35 percent of the county's total population. All Blacks in Cascade County constitute approximately 1.65 percent of the county's population; the variation between the percentage of Blacks in the county and those qualified to be on the jury panel list thus is about 1.4 percent. Defendant cites no authority to the effect that such a small variation shows systematic exclusion of a distinctive community group. Issue 4. Defendant contends the trial court improperly allowed testimony as to evidence obtained through the use of dogs during the search of the Giant Springs area. Keith Wolverton, a Cascade County deputy sheriff, and other sheriff's department per- sonnel brought several dogs to the area after the victim's body was discovered there. The dogs located a pool of blood in the snow, and after examination the sheriff's deputies recovered two bullets in or near the blood. Defendant argues that under State v. Storm, 125 Mont. 346, 238 P.2d 1161 (1951), testimony given by Deputy Wolverton relating to the recovery of this evidence should not have been permitted. In Storm, bloodhounds allegedly followed a scent from a foot or knee- print found near the site of a fatal shooting which ultimately led them to the defendant's house. The handler testified that his dogs' behavior would tend to incriminate the defendant. The purpose of the testimony was to link the defendant to the crime, and it was the only evidence. Storm is clearly distinguishable from the present case. Here, dogs were not used to track and locate the defendant, and the testimony allowed did not tend to identify defendant as having been in the area searched with the aid of the dogs. The testimony objected to here was not that of a dog or other dumb animal as interpreted by his handler. It was that of an investigating officer, whose tools included specially trained dogs. Defendant was afforded ample oppor- tunity on cross-examination to question the relevance of the evi- dence recovered with the aid of the dogs, and Deputy Wolverton's testimony concerning this recovery is not "bloodhound testimony" found to be incompetent in Storm. The testimony was properly allowed. Issue 5. Defendant contends the trial court erred in re- fusing his inquiry as to the military rank of a prosecution witness, Robert Lusk, Jr. Lusk, a special agent of the Air Force Office of Special Investigations, testified on direct examination that the victim, Walsh, had provided him with information concerning criminal investigations Lusk's office was carrying out at Malmstrom. In his testimony, Lusk identified the victim's body in a photograph as Walsh. In his voir dire of the witness, defense counsel asked Lusk what his military rank was. Lusk replied that his rank was privi- leged. During the in-chambers discussion that followed, defense counsel contended the question as to Lusk's rank was related to the second count of aggravated kidnapping, the charge involving defend- ant's alleged interference with the performance of a governmental investigation. In chambers, the witness stated that nondisclosure of his military rank was necessary to insure cooperation from military personnel being investigated. It was the Air Force's belief that personnel of a lower rank than the investigator would be intimidated, and that personnel of a higher rank might intimidate a lower ranking investigator. The trial court ruled Lusk's rank was irrelevant, and since the purpose of Lusk's direct testimony was to identify the victim, inquiry into the witness' rank exceeded the scope of direct examination. Defendant has shown no prejudice as a result of the trial court's ruling. Whatever inquiries defendant may have made concerning the third count were rendered moot by the trial court's granting of defendant's motion to dismiss that count at the close of the state's case. Issue 6. Defendant contends the trial court improperly refused to allow testimony as to items seized under a search warrant. Cascade County Deputy Sheriff William Fargo testified on direct examination that he searched defendant's barracks room and recovered a note and some masking tape. On cross-examination, he stated a rug and sheets from defendant's bed were also recovered, and that the other officer present seized other items. Deputy Fargo also testified a complete inventory of all items seized was filed as a return on the search warrant with the issuing court. When defense counsel asked how many items were taken, the state objected on the grounds the best evidence would be the search warrant and return thereon, and the trial court sustained the objec- tion. Defendant has not shown how he was prejudiced by this ruling, and the fact the witness testified on recross-examination as to the other items seized eliminates any possibility of prejudicial error. Issue 7. Defendant contends a prosecution witness was improperly allowed to make a self-serving and hearsay statement. The witness, Air Force Captain Robert Stewart, was brought to Malmstrom to try defendant's court-martial. On cross-examination, defense counsel asked the witness if he had made formal application to call John Walsh, Jr., as a witness in the court martial pro- ceedings. Captain Stewart testified he hadmade no such applica- tion, and the Air Force Office of Special Investigations had refused to officially release Walsh's name. On redirect examination, the witness was asked if he had attempted or had been precluded from making formal application for Walsh as a witness. This question triggered defendant's objection, and the trial court's overruling of the objection, here specified as error. The witness' answer, that he had been precluded from calling Walsh in the sense that the Office of Special Investigations would not release Walsh's name, was not prejudicial to the defense. There was no error in allowing the question. Issue 8. Defendant contends the trial court should not have permitted a prosecution witness to testify that he knew of no reason why Billy Naray Evans would shoot John Walsh, Jr. Defendant argues the question called for a conclusion and therefore, the trial court should have sustained his objection to the question. Defendant has shown no prejudice from this question or its answer with respect to the kidnapping charge. The question went to the prosecution's attempt to prove defendant guilty of the deliberate homicide charge, of which he was found innocent. There was no prejudicial error in permitting the witness to reply to the question. Issue 9. Defendant contends the trial court erroneously answered a jury request after the matter was submitted to the jury. The record discloses this was submitted, in writing, to the trial court : "There have been two charges of kidnapping. They dropped one charge. Could you specify the charge and boundary of the charge that was dropped? We the jury feel that one charge that was dropped is the one inside. The other we feel is the one with the car to Giant Springs." Defendant and his counsel were given the opportunity to read the request. Defendant argued the only proper response would be to supply the jury with a copy of the dismissed third count. Over defendant's objection, the trial court gave the jury a written answer which stated that the Information alleged two counts of aggravated kidnapping; set forth both counts verbatim from the Information; and, concluded by stating that Count I11 had been dis- missed. Defendant contends the answer, as given, placed undue empha- sis on the remaining kidnapping count and therefore imp~operly indicated to the jury how it should view the evidence. This con- tention is without merit. The original instructions did not set out the Information under which defendant was charged. The instructions did state defendant was charged with deliberate homicide and aggravated kid- napping, and indicated what those charges entailed. The response to the jury's request given by the trial court was no more than an additional, warranted instruction as to the law applicable to the case. Under section 95-1913(d), R.C.M. 1947, a trial court may give additional instructions after the case has been submitted to the jury. In State v. Hawkins, 165 Mont. 456, 460, 529 P.2d 1377 (1975), this Court held it is in the discretion of the trial court whether or not to give additional instructions when such a request is made. There was no abuse of discretion in the present case. Issue 10. Defendant challenges the constitutionality of section 94-5-303(2), R.C.M. 1947, the aggravated kidnapping punish- ment statute. This sub-section, before amendment in 1977, provided: "(2) A person convicted of the offense of aggravated kidnapping shall be punished by death as provided in section 94-5-304, or be impri- soned in the state prison for any term not to exceed one hundred (100) years unless he has voluntarily released the victim, alive, in a safe place, and not suffering from serious bodily injury, in which event he shall be im- prisoned in the state prison for any term not to exceed ten (10) years. " Defendant asserts this statute is unconstitutional because it requires the trial court to make a finding of fact, thereby violating defendant's right to have all facts submitted to and determined by the jury. The existence of every fact necessary to constitute the crime charged must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L ed 2d 368, 375 (1970). Initially, the question is whether an accused's voluntary release of or failure to release his victim in a safe place, alive and not suffering from serious bodily injury, has any bearing on his guilt or innocence of the crime of aggravated kidnapping. Clearly it does not. Section 94-5-303(1), R . C . 1 4 . 1947, provides: "(1) A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation, or by using or threatening to use physical force, with any of the following purposes: "(a) to hold for ransom or reward, or as a shield or hostage; or " (b) to facilitate comnission of any felony or flight thereafter; or "(c) to inflict bodily injury on or to ter- rorize the victim or another; or "(d) to interfere with the performance of any governmental or political function; or "(e) to hold another in a condition of involun- tary servitude." The intent to restrain and the restraint, for any of the enumerated purposes, are the facts the jury must determine to establish an accused's guilt of aggravated kidnapping. No additional facts need be proved in order to constitute the crime. The next question of Issue 10 is whether defendant's right to a jury trial includes the right to have the jury determine facts that relate only to the severity of punishment, once guilt has been established. In Patterson v. New York, U.S. , 97 S.Ct. 2318, 53 L ed 2d 281 (decided June 17, 1977), the United States Supreme Court held that a state may require a defendant to prove mitigating cir- cumstances of severe emotional distress as an affirmative defense to a second degree murder charge. The challenge there turned on the defendant's contention that due process required the state prove beyond a reasonable doubt that he had not acted under the influence of severe emotional distress. The Court found the mitigating factor was a separate issue, neither presumed nor inferred to be an ele- ment of the crime from the statutory definition of the offense, and the state therefore did not have the burden of proving it. In language relevant to the present case, Justice Powell in his dissent in Patterson stated: " * * * The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punish- ment alone is not enough. It must also be shown that in the Anglo-American legal tradition the factor in question historically has held that level of importance. * * *" 53 L ed 2d 302. Here, we are concerned with a statute having a bifurcated sentencing provision rather than a statute that separately allocates the burden of proof, as in Patterson. However, the present case and Patterson, both, focus on the status of a fact neither by tra- dition nor by statute a necessary element of the crime charged. The majority decision and Justice Powell's dissent in Patterson indicate that when the presence or absence of such a fact determines only the severity of punishment, it need not be proved by the state beyond a reasonable doubt. The release or nonrelease of a kidnapper's victim is such a fact, and it is within the power of the state to allow the trial court, rather than the jury, to make this factual determination. Issue 11. Defendant next contends the 100 year sentence imposed by the trial court was error. Defendant argues that since the jury acquitted him on the deliberate homicide charge, it neces- sarily follows it found he had not accompanied the victim to Giant Springs. Defendant asserts his abandonment of the enterprise at the barracks exit limits his punishment under the applicable statute to a maximum of 10 years. Section 94-5-303(2) provides a maximum sentence of 10 years for a person convicted of aggravated kidnapping when the accused voluntarily released the victim, alive, in a safe place, and not suffering from serious bodily injury. Defendant maintains that under the facts of the present case, as found by the jury, he did voluntarily release John Walsh, Jr. alive and not suffering from bodily injury in a safe place, the Malnstrom Air Force Base barracks where defendant and Walsh lived. Even assuming that Walsh was alive and not seriously injured when defend.ant claims to have left him with Vample and Evans, it cannot be said defendant released Walsh in a "safe place". It defies logic to say that a location is, as a matter of law, "safe" for a person who there was struck by a lamp, threatened with a gun, assaulted with a syringe filled with battery acid, bound, gagged and wrapped in a blanket. This was not a release in a "safe place" as would entitle defendant to receive the benefit of the lesser sentence, and there was no inconsistency in sentencing this defendant to the greater sentence, even if he had no further participation in the events that culminated in Walsh's death. Issue 12. In his final issue defendant challenges the methods employed by the trial court in conducting its own presentence investigation following defendant's conviction. The record shows that at various times and places between September 19, 1974, when the jury returned its verdict, and October 15, 1974, the date of the presentence hearing, the trial judge personally interviewed several persons who testified at the trial. The day after the trial concluded, the trial judge interviewed witness Jimmy Lee Thomas at Malmstrom. On the night before the hearing on defendant's bail request, the trial judge interviewed witnesses Billy Naray Evans and Larry Vample at the Cascade County jail. On the day of the bail hearing, the trial judge interviewed witness Hiram McDonald at an undisclosed location. Also interviewed, at times and places not appearing in the record, were witnesses Fay McRoberts and Marion Johnson, Jr. No record was made of any of these interviews, and no notice was given to defendant or his counsel of the trial court's intent to conduct the interviews. When defense counsel learned of the trial court's actions in this regard, during an in-chambers discus- sion just prior to the opening of the presentence hearing, he moved the trial judge to disqualify himself from the sentencing of defend- ant. The motion was denied, and the question here is whether it was proper for the trial court to act as the sentencing judge in light of his out-of-court interviewing of several witnesses. Defendant argues the trial judge should have disqualified himself. He relies primarily on Kuhl v. District Court, 139 Mont. 536, 366 P.2d 347 (1961), and State v. Simtob, 154 Mont. 286, 462 P.2d 873 (1969). In both cases this Court held that the reliance on information privately received by a sentencing judge is an abuse of the judge's sentencing discretion. However, neither case is controlling here. In Kuhl, the Court was interpreting sentencing statutes, sections 94-7813 and 94-7814, R.C.M. 1917, repealed in 1967, and replaced by sections 95-2203, 95-2204, and 95-2205, R.C.M. 1947. The statutes are considerably different. In Simtob, the Court was interpreting a provision of the Dangerous Drug Act (section 54-133, R.C.M. 1947) which provides that a first-time offender under 21 is presumptively entitled to a deferred imposition of sentence. The trial court relied on private information and sentenced defend- ant to a prison term. Defendant had no opportunity to meet this information. Relying on Kuhl, this Court held use of this privately received information to be improper. In the present case, the controlling statutes are sections 95-2203, 95-2204, and 95-2205, R.C.M. 1947. Section 95-2203 pro- vides that a presentencing investigation be prepared by a probation officer, when a defendant has been convicted of a crime which may result in a sentence of one year or more. Under section 95-2204, the probation officer is directed to inquire into, among other things, the circumstances of the offense. Section 95-2205 grants the sentencing judge the discretion to make the report, in full or in part, available to the defendant and to allow cross-examination of those who gave information included in the report. The effect of these statutes on the question of whether a sentencing judge may receive and adopt information from sources other than the testimony of witnesses in open court was considered by this Court in State v. Orsborn, Mont. , 555 P.2d 509, 33 St-Rep. 935, 939 (1976). There, we held that when a defendant is protected against a sentence predicated on misinformation, there is no due process violation when presentence information comes from a source not subject to cross-examination in court. Orsborn, supra. The specific protections found to have been present in Orsborn included: 1) defendant was represented by counsel at the time the sentencing information was made known to him; 2) the defendant had the opportunity to rebut the information; and 3) the defendant chose to affirm the accuracy of the information. Orsborn, however, cannot be read to mean that in every case in which a sen- tencing judge goes beyond the confines of a presentencing investi- gation report, the sole question is whether or not subsequent pro- ceedings afford the defendant an opportunity to correct inaccuracies in the judge's information. When, as in the present case, the sentencing judge becomes a private fact gatherer, he thereby oversteps his legitimate role as a fact finder in the sentencing procedure. Whether or not the defendant is "protected" from misinformation is irrelevant. There is no doubt the trial judge's primary motivation in conducting the interviews was to get the "full story" of the killing of John Walsh, Jr. The trial judge stated he was "satisfied the bulk of these witnesses there have a lot more to say than what we heard at this trial". The interviews were designed, at least in part, to find what was left out of their test<-rnony. The trial judge characterized his discretion as a sentencing judge as being limited only by the requirement that "anything I use be presented in open Court, so that there is no sand bagging." While the court's sincere efforts at full disclosure of and granting access to the sources of his presentence information are laudable, they cannot remove the prejudice to defendant that attached the moment the trial judge began his informal and private retrial of the case. A sentencing judge may not conduct his own presentence investigation by privately interviewing persons he believes to know more than they have told. By doing this, he becomes a fact gatherer as well as a fact finder, and thereby subjects a defendant to an impossible burden. Realistically, there is no way a defendant can dislodge from a judge's mind, the results of his own personal investigation. It is only natural that a judge has at least a subconscious bias supporting the techniques used and the results of his own investigation. The judge, by this process, has unwittingly become intimately connected with the accusatory process. In this case, for example, cross-examination of the witnesses whom the judge had privately interviewed, would only serve to make the c o l . l . r t guardian of those conclusions he adduced from his personal investi- gation. Moreover, assuming a witness had not told the truth to the trial judge during the private investigation, it is unlikely such witness would, on the witness stand, admit that he had on a previous occasion, lied to the very judge hearing his testimony. We must not forget that the presence of a judge in a role as a private investigator, can be intimidating, if not coercive. This is not to say the trial court cannot acquire more information as to the circumstances of a crime. We only hold that if it is his desire to do so, he must delegate that responsibility to other officials. They can gather the information and put it in a report to be made available to the defense. At the presentencinq hearing, if anything in the report is contested, these officials may then be cross-examined as to the investigation and the results of their investigation. Here, it would be an impossible burden to suggest that the defendant if he desired, could cross-examine the trial judge as to the methods he employed, and the results of his private investigation. Here, because the trial judge became so intimately involved in the presentence fact gathering process, it is clear he should have disqualified himself from sentencing the defendant. His failure to do so requires the sentence be vacated. In so holding, we emphasize that we reaffirm our adherence to the sentencing policy stated in Orsborn, supra, quoting from Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. " I * * * Highly relevant--if not essential--to [the sentencing judge's] selection of an appro- priate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly appli- cable to the trial.'" However, the United States Supreme Court also stated in Williams, supra: " * * * Leaving a sentencing judge free to avail himself of out-of-court information * * * does secure to him a broad discretionary power, one susceptible of abuse. * * *" (Emphasis added.) 93 L.Ed. 1344. It is clear that in this case this sentencing discretion was abused. We affirm the defendant's conviction; vacate the sentence We Concur: /-'/-7 u* Chief Justice (,)~LJL Justices Lj) @%ldziK?-

December 14, 1977

b7408de0-4838-47a7-a91f-3590cc312ebf

Cleveland v. Ward

2016 MT 10

DA 15-0123

Montana

Montana Supreme Court

DA 15-0123 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 10 SHELBY CLEVELAND, Plaintiff and Appellant, v. JANICE WARD, Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV-2012-984 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian J. Miller, Morrison, Sherwood, Wilson & Deola, PLLP; Helena, Montana For Appellee: Patrick M. Sullivan, Poore, Roth & Robinson, P.C.; Butte, Montana Submitted on Briefs: October 14, 2015 Decided: January 12, 2016 Filed: __________________________________________ Clerk January 12 2016 Case Number: DA 15-0123 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Shelby Cleveland appeals several rulings by the First Judicial District Court, Lewis and Clark County, excluding trial testimony by Cleveland’s physical therapist and treating physician; directing a defense verdict on Cleveland’s claim that her rotator cuff tear and arthritis were caused by a vehicle collision; and ruling that Cleveland may not recover damages incurred by her business, Shelby House, Inc. We affirm. ¶2 We restate and address the issues on appeal as follows: 1. Whether the District Court abused its discretion by excluding trial testimony of Cleveland’s treating physician, Dr. Phillip Steele. 2. Whether the District Court abused its discretion by excluding trial testimony of Cleveland’s physical therapist, Anne Ripley. 3. Whether the District Court erred in granting a directed verdict on Cleveland’s claim that her rotator cuff tear and shoulder arthritis were caused by the collision. 4. Whether the District Court erred in concluding that Cleveland could not recover damages incurred by Shelby House. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On June 1, 2012, Cleveland was involved in a vehicle collision with another driver, Janice Ward. Cleveland was stopped in traffic when Ward struck her vehicle from behind and pushed it into the vehicle in front of Cleveland. The impact totaled Cleveland’s vehicle. Ward admitted that she was negligent, and Cleveland filed suit for damages. Cleveland contended that she suffered physical injuries from the collision and sought, among other items, damages for emotional distress, past medical costs, and “business loss/lost income.” 3 ¶4 On November 5, 2014, Ward filed pre-trial motions in limine. Ward sought to exclude reference to any damages suffered by Shelby House, and to exclude any testimony by Dr. Steele that Cleveland suffered a rotator cuff injury as a result of the collision. On January 21, 2015, the District Court granted Ward’s motions on those two issues.1 The District Court concluded that, because Shelby House was not a named party, any discussion of damages it incurred was not relevant. The District Court further concluded that Dr. Steele could not testify as to the cause of Cleveland’s rotator cuff tear because he “clearly avoided giving an opinion” on causation in a September 2014 deposition. In reaching this conclusion, the District Court relied on the following testimony from Dr. Steele in that deposition: My belief is that [Cleveland] had pre-existing shoulder pathology that to my knowledge had never bothered her. Its relationship to the automobile accident would be purely speculative on my part. I don’t have a firm way to confirm or deny it. I think certainly the automobile accident could have exacerbated it; the automobile accident could have nothing to do with it. I don’t really know at this point in time. ¶5 On January 6, 2015, the parties took Dr. Steele’s perpetuation deposition. On January 23, 2015, Ward filed objections to certain parts of Dr. Steele’s perpetuation deposition testimony based on the District Court’s decision that Dr. Steele could not testify about the cause of Cleveland’s rotator cuff tear. On January 27, 2015, the District Court issued an order sustaining several of Ward’s objections. The court concluded that Dr. Steele’s testimony could not be “offered for the purpose of establishing the cause of the rotator cuff injury, as his testimony did not include medical opinions based on the 1 The District Court also granted and denied Ward’s motions on other issues not appealed. 4 required probability that the collision ‘more likely than not’ caused the injury,” quoting Beehler v. E. Radiological Assocs., P.C., 2012 MT 260, ¶ 35, 367 Mont. 21, 289 P.3d 131. ¶6 A three-day jury trial commenced on February 2, 2015. During the trial, Cleveland called her physical therapist, Anne Ripley, to testify. Outside of the presence of the jury, the District Court asked Ripley several questions to clarify the scope of her testimony. When asked whether she could diagnose the cause of Cleveland’s rotator cuff tear, Ripley responded: “I can’t say that the accident caused the rotator cuff tear. But I can say function was normal before the accident and after the accident she had all of this change.” The District Court therefore prohibited Ripley from offering “testimony as to medical causation” of Cleveland’s rotator cuff tear. Cleveland’s attorney then made an offer of proof by questioning Ripley. ¶7 At the close of evidence, Ward moved for a directed verdict on Cleveland’s claim that her rotator cuff tear and shoulder injuries were caused by the collision. Ward’s attorney argued that Cleveland must have “medical expert testimony to establish the medical causation link” between Cleveland’s shoulder injuries and the collision, and that “[t]he jury can’t speculate on something like that.” The District Court granted Ward’s motion for a directed verdict, preventing Cleveland from arguing that her rotator cuff tear or shoulder arthritis were caused by the collision. ¶8 On February 4, 2015, the jury returned a verdict for Cleveland in the amount of $10,534. On February 17, 2015, the District Court entered judgment for Cleveland in the amount of $3,056.99, after factoring in offsets for previously-made payments. Cleveland 5 appeals, contending that the District Court abused its discretion in limiting the scope of Dr. Steele’s testimony, granting five of Ward’s objections to Dr. Steele’s testimony, and limiting the scope of Ripley’s trial testimony. Cleveland further contends that the District Court erred by granting a directed verdict on Cleveland’s shoulder injury claim and ruling that Cleveland may not recover damages incurred by Shelby House. STANDARDS OF REVIEW ¶9 We review for abuse of discretion a district court’s evidentiary rulings and determination whether a witness is qualified as an expert to testify. Harris v. Hanson, 2009 MT 13, ¶ 18, 349 Mont. 29, 201 P.3d 151; Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561. District courts have broad discretion to control the admission of evidence at trial. Seltzer, ¶ 65. A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Seltzer, ¶ 65. ¶10 If an appellant demonstrates that a district court has abused its discretion in rendering an evidentiary ruling, we determine whether that abuse of discretion constitutes a reversible error. Seltzer, ¶ 65. No reversible error occurs unless a substantial right of the appellant is affected or the evidence in question could have affected the outcome of the trial. Seltzer, ¶ 65. ¶11 Whether a directed verdict should be granted or denied is a question of law, which we review de novo. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. In reviewing a motion for a directed verdict, we determine “whether the non-moving party could prevail upon any view of the evidence including the legitimate 6 inferences to be drawn therefrom.” Cameron v. Mercer, 1998 MT 134, ¶ 8, 289 Mont. 172, 960 P.2d 302. Courts must “exercise the greatest self-restraint in interfering with the constitutionally-mandated process of jury decision. Thus, unless there is a complete absence of any credible evidence in support of the verdict, a motion for a directed verdict is not properly granted.” Cameron, ¶ 8 (internal citations omitted). DISCUSSION ¶12 1. Whether the District Court abused its discretion by excluding trial testimony of Cleveland’s treating physician, Dr. Phillip Steele. ¶13 Cleveland appeals the District Court’s January 21, 2015 order that Dr. Steele could not testify on the cause of Cleveland’s rotator cuff injury and its January 27, 2015 order excluding several specific portions of Dr. Steele’s perpetuation deposition testimony. M. R. Evid. 702 permits “a witness qualified as an expert by knowledge, skill, experience, training, or education” to testify “in the form of an opinion or otherwise” if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” An expert’s testimony is reliable if: (1) the expert field is reliable, (2) the expert is qualified, and (3) the qualified expert reliably applied the reliable field to the facts. Harris, ¶ 36 (citing M. R. Evid. 702). The first two factors are determined by the district court. By contrast, “[t]he question whether a qualified expert reliably applied the principles of th[e] reliable field to the facts of the case is for the finder of fact.” Harris, ¶ 36. However, when expert medical testimony is required to establish a necessary element of a claim, “the expert must testify with a ‘reasonable medical certainty.’” McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 29, 7 380 Mont. 204, 354 P.3d 604. Under this standard, “[a] medical expert’s opinion is admissible if it is based on an opinion that it is ‘more likely than not’ that the alleged wrongdoing caused the plaintiff’s injury.” McClue, ¶ 29 (quoting Hinkle ex rel. Hinkle v. Shepherd Sch. Dist. # 37, 2004 MT 175, ¶ 36, 322 Mont. 80, 93 P.3d 1239). ¶14 Neither party disputes that Dr. Steele’s field is reliable or that he is qualified as an expert. The parties dispute the scope of Dr. Steele’s testimony and the District Court’s exclusion of five portions of it. In its January 21, 2015 order, the District Court determined that Dr. Steele “cannot be offered for the purpose of establishing causation” because he would not say that the collision “more likely than not” caused Cleveland’s rotator cuff tear. The District Court based its decision on Dr. Steele’s September 2014 deposition testimony that it would be “purely speculative” for him to opine on the relationship between Cleveland’s rotator cuff tear and the collision. The District Court did not abuse its discretion by prohibiting Dr. Steele from testifying that the collision caused Cleveland’s rotator cuff tear because Dr. Steele clearly indicated that he could give no such opinion. ¶15 The District Court relied on its decision that Dr. Steele could not testify on causation to exclude several specific portions of Dr. Steele’s perpetuation deposition testimony. Cleveland appeals five of these exclusions, summarized below. Cleveland contends that the excluded evidence was offered to explain factual issues “related to observations and conclusions Dr. Steele made in the course of his treatment” and should have gone to the jury. 8 ¶16 Though district courts have broad discretion to control the admission of evidence at trial, we have long recognized that it is “the sole province of the jury to determine questions of fact.” Murray v. Heinze, 17 Mont. 353, 364, 42 P. 1057, 1061 (1895). As such, courts should liberally construe the rules of evidence to admit all relevant expert testimony, even if that evidence may be characterized as “shaky.” McClue, ¶ 23. “The expert’s testimony then is open for attack through ‘the traditional and appropriate’ methods: ‘vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof.’” McClue, ¶ 23 (quoting State v. Clifford, 2005 MT 219, ¶ 28, 328 Mont. 300, 121 P.3d 489). ¶17 In the first excluded portion of his testimony, Dr. Steele responded to a request for clarification of his treatment note that a vehicle collision “can be” a contributor to Cleveland’s symptoms. Dr. Steele did not opine whether the collision caused Cleveland’s rotator cuff tear. Rather, he testified about the medical difficulty of determining the “pain generator” of shoulder and neck pain. This testimony was factual; thus, it was admissible. Although this testimony should have been admitted, Dr. Steele made a similar statement using nearly the same language earlier in his deposition. He testified: [O]ne of the big conundrums of musculoskeletal care is all the nerve roots from the neck go there through the shoulder . . . so sometimes shoulder pain is neck pain and sometimes neck pain is shoulder pain. . . . It’s an extremely challenging area to determine what’s coming from where. 9 The District Court did not exclude that testimony and, thus, there is not a reasonable possibility that the excluded evidence contributed to the jury’s verdict. The District Court’s exclusion of Dr. Steele’s testimony was not reversible error. ¶18 The second and third excluded portions of Dr. Steele’s testimony directly pertain to the cause of Cleveland’s rotator cuff tear. In the second excluded portion, Dr. Steele responded to a question regarding whether Cleveland had a rotator cuff tear in 2001 by refusing to speculate as to when Cleveland’s rotator cuff tear occurred. In the third excluded portion, during a discussion about whether Cleveland had a rotator cuff tear prior to the collision, Dr. Steele testified that a person typically would show symptoms of a tear. In the fourth excluded portion, Dr. Steele discussed the various treatment options for Cleveland’s rotator cuff tear. ¶19 There is no dispute that Cleveland had a rotator cuff tear. However, as discussed below in our resolution of Issue 3, Cleveland never produced expert testimony that her rotator cuff tear was “more likely than not” caused by the collision, and the jury ultimately did not consider that claim because of the District Court’s directed verdict. As further discussed in our resolution of Issue 3, Cleveland never argued that her rotator cuff tear, even if pre-existing, was aggravated or rendered symptomatic by the collision. In the absence of either medical evidence supporting Cleveland’s causation theory or an argument that the collision aggravated a pre-existing condition, the District Court did not err by excluding testimony about the cause of Cleveland’s rotator cuff tear or treatment for that injury. 10 ¶20 In the fifth excluded portion of his testimony, Dr. Steele testified that it was not possible to apportion Cleveland’s symptoms between the vehicle collision and any pre-existing conditions. Cleveland contends on appeal that this testimony was admissible to rebut Ward’s contention that Cleveland’s symptoms were “100% attributable to a pre-existing rotator cuff tear.” However, this was not Ward’s contention. The only testimony in this regard came when Cleveland’s attorney asked Ward’s medical expert, Dr. Heid, whether Cleveland’s limitations were “completely 100 percent unrelated to the motor vehicle accident.” Dr. Heid responded that the question was misleading because it was unclear how much of Cleveland’s limitations were due to her neck injury versus her shoulder injury. Since Ward never attempted to apportion potential causes of Cleveland’s injuries to the jury, Dr. Steele’s testimony that it was not possible to apportion Cleveland’s symptoms was not in rebuttal of anything. The District Court did not err in excluding it. ¶21 2. Whether the District Court abused its discretion by excluding trial testimony of Cleveland’s physical therapist, Anne Ripley. ¶22 Cleveland next contends that the District Court abused its discretion by barring Ripley from offering medical causation testimony. At trial and outside of the presence of the jury, the District Court questioned Ripley about the scope of her testimony. When asked by the court whether she could determine the cause of a rotator cuff tear, Ripley responded: “I can’t say that the accident caused the rotator cuff tear. But I can say function was normal before the accident and after the accident she had all of this change.” Based in part on this statement, the District Court decided that it was “not going to allow 11 [Ripley] to offer testimony as to medical causation.” The District Court further explained that Cleveland had not produced required medical expert testimony that, “to a reasonable degree of medical certainty[,] . . . this accident caused her rotator cuff tear.” On appeal, Cleveland contends that the District Court reached this decision arbitrarily by not first allowing Cleveland an opportunity to make an offer of proof. Cleveland further contends that the District Court should have considered Ripley’s qualifications to determine whether she was competent to testify under M. R. Evid. 702. ¶23 Regardless of whether Ripley was qualified as a physical therapist to testify on medical causation, she clearly indicated that she could not opine that the collision caused Cleveland’s rotator cuff tear. The District Court did not abuse its discretion in determining that Ripley could not testify that the collision “more likely than not” caused Cleveland’s rotator cuff tear. ¶24 Moreover, it bears noting that the District Court did not exclude Ripley’s testimony regarding Cleveland’s general pain and limitations in her shoulder. Outside of the presence of the jury, Ripley told the court that she could testify “about the change in function that I saw after the motor vehicle accident in [Cleveland]. I can talk about her pain . . . .” The District Court never said that Ripley could not provide this information to the jury. In fact, before the District Court made its ruling, and while Ripley was still in front of the jury, Ripley extensively testified about Cleveland’s shoulder injuries, functional limitations, and pain. The District Court did not exclude any of this testimony. The District Court’s ruling that Ripley could not testify that the collision caused Cleveland’s rotator cuff tear did not prevent Cleveland’s attorney from asking Ripley 12 further questions about her treatment of Cleveland’s injuries. Nor did the Court’s ruling prevent Cleveland’s attorney from asking whether Ripley believed the collision aggravated a pre-existing injury or prevent Ripley from testifying about Cleveland’s pain and limitations before and after the accident. ¶25 3. Whether the District Court erred in granting a directed verdict on Cleveland’s claim that her rotator cuff tear and shoulder arthritis were caused by the collision. ¶26 “A directed verdict . . . is not proper if reasonable persons could differ regarding the conclusions which could be drawn from the evidence, and a directed verdict is proper only in the complete absence of any evidence to warrant submission to the jury.” King v. Zimmerman, 266 Mont. 54, 60, 878 P.2d 895, 899 (1994). The District Court granted Ward’s motion for a directed verdict “as to the argument for the rotator cuff or arthritic condition” because it concluded: “There is no medical causation, expert testimony, that says that [Cleveland’s] rotator cuff arthritic condition in her shoulder is related to the accident. . . . [N]obody has—and we have to have an expert—has said it was caused by the motor vehicle accident.” On appeal, Cleveland contends that the District Court erred in reaching this decision because the jury could infer from “substantial credible evidence” that the collision was the “apparent cause” of Cleveland’s “on-going shoulder pain and limitations.” ¶27 Regarding its directed verdict, the District Court instructed the jury: I have further concluded at the conclusion of the evidence that there is insufficient evidence to establish that the motor vehicle accident caused the plaintiff’s rotator cuff tear and arthritis in the right shoulder. So you are not to be awarding damages for the rotator cuff tear or the arthritis in her right shoulder. 13 Nowhere in its ruling on Ward’s motion for a directed verdict or explanation of that ruling to the jury did the District Court prevent Cleveland from arguing that the collision aggravated a pre-existing condition or caused her pain and limitations. ¶28 On appeal, Cleveland conflates the District Court’s directed verdict on the issue of whether the accident caused her objectively-diagnosed rotator cuff tear and shoulder arthritis—an argument that did not have the required medical testimony to support it— with the issue of whether the accident aggravated those injuries, irrespective of their origin—an argument that was not made to the District Court. As a general rule, “this Court will not address either an issue raised for the first time on appeal or a party’s change in legal theory.” Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, 961 P.2d 100 (citing Day v. Payne, 280 Mont. 273, 276, 929 P.2d 864, 866 (1996)). This is because “it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” Easley, ¶ 15 (quoting Day, 280 Mont. at 276-77, 929 P.2d at 866). We will not fault the District Court for failing to rule on Cleveland’s claim that the collision aggravated a pre-existing injury or caused her pain because the District Court never was given the opportunity to consider that issue. ¶29 4. Whether the District Court erred in concluding that Cleveland could not recover damages incurred by Shelby House. ¶30 In its January 21, 2015 order on Ward’s motions in limine, the District Court concluded that Cleveland could not seek damages for “business loss/lost income” on behalf of Shelby House because Shelby House was not a named party in the lawsuit. 14 Cleveland claims that the District Court erred in excluding evidence of an alleged increase in payroll expenses incurred by Shelby House, and that she has standing to assert a claim for these losses because they filter through to her as the sole shareholder. ¶31 “A corporation has a separate and distinct entity from its stockholders.” First Sec. Bank v. Gary, 245 Mont. 394, 402, 798 P.2d 523, 528 (1990). As the District Court recognized, “[g]enerally, a shareholder may not bring a claim that belongs to their corporation.” Weaver v. Advanced Refrigeration, 2011 MT 174, ¶ 14, 361 Mont. 233, 257 P.3d 378 (citing Gullett v. Van Dyke Constr. Co., 2005 MT 105, ¶ 14, 327 Mont. 30, 111 P.3d 220). This includes claims of profits lost to the corporation. Gullet, ¶¶ 14, 17. Cleveland is bound by her pleadings, see Weaver, ¶ 15, and she does not allege personal loss of income due to her injuries. Any claim against Ward for “business loss/lost income” belongs to Shelby House, not to Cleveland personally. See Weaver, ¶ 15. The District Court did not err in concluding that Cleveland could not recover damages incurred by Shelby House. CONCLUSION ¶32 The District Court did not abuse its discretion in determining that Dr. Steele may not testify that the vehicle collision caused Cleveland’s torn rotator cuff and shoulder injuries. Any abuse of discretion in the court’s exclusion of the five disputed portions of Dr. Steele’s testimony was not reversible error. The District Court did not abuse its discretion in concluding that Ripley may not testify that the collision caused Cleveland’s rotator cuff tear or shoulder arthritis. Because Cleveland produced no expert testimony that her rotator cuff tear or shoulder arthritis more likely than not were caused by the 15 collision, the District Court did not err in granting a directed verdict on that claim. Finally, the District Court did not err in concluding that Cleveland may not recover damages incurred by Shelby House. We affirm. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JIM RICE Justice Patricia Cotter, concurring. ¶33 I concur in the outcome reached by the Court, but not in all that is said in the Opinion. At ¶ 19, in addressing the exclusion of Dr. Steele’s testimony, the Court states that Cleveland never argued that her rotator cuff tear was aggravated or rendered symptomatic by the collision. However, as the Court notes at ¶ 4, Dr. Steele had already opined in his deposition that “the automobile accident could have exacerbated it; the automobile accident could have nothing to do with it. I really don’t know at this point.” Thus, Dr. Steele was on record prior to trial that he would not offer an opinion as to aggravation. Cleveland’s counsel did inquire of the defendant’s expert orthopedic surgeon Dr. Heid whether the motor vehicle accident caused any aggravation of a pre-existing injury, and it was her opinion that it did not. ¶34 I also disagree with the Court’s contention at ¶ 24 that the District Court’s ruling did not prevent Cleveland’s attorney from asking Ripley whether the collision aggravated 16 a pre-existing injury. As we note in ¶ 22, the District Court ruled that it would not allow Ripley to offer testimony as to medical causation. A witness testifying that an accident aggravated an injury is clearly testifying as to causation for an aggravated injury; therefore, this opinion too would likely have been excluded. For the same reason, I disagree with the Court’s incorrect assertion at ¶ 27 that nothing prevented Cleveland from arguing that the collision aggravated a pre-existing condition. As noted, Steele refused to offer an opinion on aggravation, Heid denied it occurred, and Ripley was precluded by court order from offering a causation opinion. Without expert testimony to support a claim that the accident aggravated a pre-existing injury, Cleveland could not present this argument to the jury. ¶35 With these caveats, I concur in the Court’s Opinion. /S/ PATRICIA COTTER

January 12, 2016

d32b9a17-6bea-44a6-94d1-636f2926a419

STATE v AZURE

N/A

13710

Montana

Montana Supreme Court

No. 13710 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 STATE OF MONTANA, Plaintiff and Respondent, -vs- DAVID L. AZURE, Defendant and Appellant. Appeal from: District Court of the Twelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Donald A. Ranstrom argued, Chinook, Montana Robert D. Morrison, Havre, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Mayo Ashley, Assistant Attorney General, argued, Helena, Montana William M. Solem, County Attorney, Chinook, Montana Submitted: September 16, 1977 Decided :&-c g 3 1 - - - - - + . - . ;,Lt ; i i - . ; . - - ~ -- Filed: - :- Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant David L. Azure appeals from a judgment entered in the District Court, Blaine County, upon a plea of guilty to the crime of deliberate homicide, in violation of section 94-5-102(1) (a), R.C.M. 1947. The sole issue on appeal is whether the District Court abused its discretion in denying defendant's motion to withdraw his guilty plea. While not specifically discussed by either party at the Dis- trict Court level or in their briefs on appeal, we confine our ruling to the arraignment record, as we deem it to be controlling. On June 29, 1976, defendant was charged by Information filed in Blaine County District Court with the deliberate homicide of Randy Lewis, who was shot and killed while sitting in a parked ve- hicle near Chinook, Montana. On the same day, the District Court ordered defendant to undergo psychiatric evaluation at Warm Springs State Hospital. This evaluation concluded defendant was able to understand the charges against him and to assist in his defense. On September 14, 1976, after his return from Warm Springs, defendant appeared in court, with appointed counsel, and entered a plea of guilty to the charge of deliberate homicide. Before ac- cepting his plea, the district judge examined defendant: "Q. And, before accepting your plea, Mr. Azure, its the desire of the Court to ask you some ques- tions so that it can be established of record that you know what you are doing and that this is your own voluntary decision here. A. Yes. " Q . First of all, I will remind you that you have the right to a speedy trial if you should enter a plea of not guilty. That you do have the right to enter a plea of not guilty. And, that you could be represented throughout the trial by an attorney. That you could require the state to produce wit- nesses to testify in your presence subject to cross- examination by your attorney and that you would have the right to testify for yourself if you wanted to do that. You also have the right to remain silent and could remain silent during the trial. Do you understand that you have those rights? A. Yes. "Q. And, do you understand by a plea of guilty that you are giving up those rights? A. Yes. "Q. In making a plea today, are you acting on the basis of any promises that have been made to you? A. No, sir. "Q. And, so, at this time, you don't feel that any promises have been made by any law enforcement officer as to what would be done in your case? A. No, sir. "Q. And do you feel that you are acting as a result of any compulsion or any threats that have been made against you? A. No. " Q . Do you understand in making your plea today, that you are leaving the disposition of this case up to the Court? It will be up to the Court to decide what will be done in this case? A. Yes, sir. "Q. And, do you understand, also, what the Court could do, what the maximum penalty the Court could impose in this case? A. Yes, sir. "Q. What is your understanding of that? A. Death penalty. "Q. What do you understand that you are admitting? You do understand when you entered a plea today that you are admitting that you did certain things alleged in the information. What would be your understanding as to what you are admitting here? A. That I did shoot and kill Randy Lewis. " Q . And, you understand, also that you admit that this occurred in Blaine county, Montana, on June 23, 1976? A. Yes, sir. "Q. And further, you are admitting that you did this purposely or knowingly? A. Yes, sir. "Q. Can you tell me at this time why you have decided to enter a plea of guilty? A. Because there are too many witnesses and I know that I did it and I figure there is just no way around it. "Q. Do you feel that if you stood trial that the state would have enough evidence to convict you? A. Yes, sir. "Q. And, Mr. Ranstrom, you feel you have had adequate time to go over this with the defendant? "MR. RANSTROM: [Counsel for defendant] Yes, Your Honor, I have. "THE COURT: And, do you concur with the plea that the defendant has made? "MR. RANSTROM: Yes. I do. "THE COURT: Do you feel you have had sufficient time to talk to Mr. Ranstrom about this? A. Yes. I have. "Q. And, do you have any question in your mind or any dissatisfaction with any services that Mr. Ranstrom has performed for you up to this time? A. No, sir." The District Court then set pronouncement of judgment and sentencing for October 19, 1976. Approximately ten days after pleading guilty, defendant wrote to the district judge, requesting appointment of new counsel. On September 28, 1976, at the hearing held on this request, defendant indicated he was dissatisfied because his counsel had not promptly moved to change his plea from guilty to not guilty. Defendant stated that after entering his guilty plea, he felt he had not been fully responsible for his actions on the night of the shooting, due to intoxication. Defendant requested his counsel to file a motion to withdraw the guilty plea. Counsel did not immediately make such a motion, telling defendant he wanted first to check on some things, and defendant then wrote to the district judge. During this Sep- tember 28 hearing defendant withdrew his request that his attorney be removed and another appointed. The court ruled that his present counsel remain on the case. On November 3, 1976, a hearing was held on defendant's for- mal motion for leave to withdraw his guilty plea. Extensive testi- mony was given by defendant as to the circumstances surrounding his actions on the night of the shooting. In his account, defendant stated he had been under the influence of drugs and alcohol and was emotionally depressed when the shooting occurred. Defendant stated he learned these factors might tend to lessen his responsibility for his actions after his entry of the guilty plea, and he then decided to change his plea to not guilty and to proceed to trial. The District Court denied defendant's motion by order dated November 23, 1976. The order was made by minute entry, and we note the record shows neither an explanation of nor a reason for this ruling. When a motion is addressed to the discretion of the court, as is a motion for leave to withdraw a guilty plea, the touchstone on review is abuse of that discretion. A District Court's failure to provide even a skeletal record of its reasoning in support of its ruling on such a motion may of itself call into question the soundness of the court's exercise of its discretion. This is unfor- tunate as well as unnecessary, and we urge the District Courts to set out reasons for their rulings on motions of this nature. Following denial of this motion and a presentence hearing, defendant was sentenced to a sixty year prison term with credit for time served. Defendant argues that when he plead guilty to the charge of deliberate homicide he was not aware that,under the facts of his case, he may have been guilty only of mitigated deliberate homicide. Under section 94-5-101, R.C.M. 1947, criminal homicide con- stitutes three distinct crimes: deliberate homicide, mitigated deliberate homicide, and negligent homicide. Both deliberate homi- cide and mitigated deliberate homicide can be established by proof that the accused purposely or knowingly caused the death of another human being. Substantively, the difference between these two crimes is that mitigated deliberate homicide includes an additional, ex- tenuating element; it is defined in section 94-5-103(1), R.C.M. "Criminal homicide constitutes mitigated deliberate homicide when a homicide which would be deliberate homicide is committed under the influence of extreme mental or emotional stress for which there is a rea- sonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the actor's situation." Ultimately, the most telling difference between deliberate, and mitigated deliberate homicide is in the maximum sentence that can be received upon conviction of one or the other. A person convicted on a charge of deliberate homicide is punishable by imprisonment for up to 100 years, or under certain circumstances, by death. Mitigated deliberate homicide carries a maximum sentence of 40 years imprisonment. If this case had proceeded to trial, and defendant presented evidence tending to show mitigating circumstances, he would have been entitled to an instruction on the law of mitigated deliberate homicide. This follows from the fundamental rule the court's instruc- tions should cover every issue or theory having support in the evi- dence. State v. Taylor (1973), 163 Mont. 106, 116, 515 P.2d 695; State v. Thomas (1966), 147 Mont. 325, 331, 413 P.2d 315. This Court stated in Thomas: " ' * * * on the trial of an indictment for murder, the court is required to instruct not only as to that offense, but also as to all the inferior de- grees of homicide * * * to which the evidence is properly applicable and of which the jury would be warranted in finding the accused guilty * * *.I1' 147 Mont. 331. Section 95-1606, R.C.M. 1947, Procedure on arraignment, provides in pertinent part: "(e) * * * The court may refuse to accept a plea of guilty and shall not accept the plea of guilty without first determining that the plea is voluntary with an understanding of the charge." This statute imposes upon the court the duty to determine that the accused understands the charge to which he is pleading guilty, before that plea may be accepted. In the handling of the motion to withdraw the plea, neither the defendant nor the state discussed whether the record of the arraign- ment itself disclosed that the defendant had a clear understanding of the charge. In their arguments to this Court,theyargued only as to the actual hearing on the motion to withdraw the guilty plea. That is not enough. The record itself demonstrates that defendant was not sufficiently informed of the difference between deliberate homicide and mitigated deliberate homicide. The District Court's examination of defendant at the time of entry of his plea included only two questions as to defendant's understanding of the crime of deliberate homicide: (1) whether defendant knew the maximum penalty which could be imposed, to which defendant replied he could receive the death penalty; and (2) whether defendant understood he was admitting he shot and killed Randy Lewis "purposely or knowingly" and defendant answered "yes". The court did not explain the meaning of "purposely or knowingly". The District Court made no inquiry as to whether defendant understood that by purposely or knowingly causing the death of Randy Lewis he may have committed either deliberate homicide - or mitigated deliberate. homicide. Nor was defendant informed that if he went to trial on the charge of deliberate homicide, he would have the right to present evidence of mitigation, and if the jury accepted kis version of the offense and convicted him of mitigated deliberate homicide, the maximum sentence he could receive would be a 40 year prison term. It is doubtful that an accused who has not been informed of these factors can plead voluntarily with an understanding of the charge as required by section 95-1606(e), R.C.M. 1947. The dif- ferences between deliberate homicide and mitigated deliberate homi- cide in terms of the disparity in the maximum sentences which can be imposed and social stigma which attaches upon conviction of one or the other is profound. But for the additional mitigating element, they are established by proof of the same facts. They are decep- tively similar. When an accused pleads guilty to the crime of deliberate homicide charged under Montana's statutory scheme which sets out distinct kinds of criminal homicide, it is of vital importance that the record discloses the defendant had a full understanding of the precise kind of homicide to which he plead. Absent such a showing, this Court will not assume the plea was made "with an understanding of the charge". In Jones v. State of Montana, 235 F.Supp 673 (D. Mont. 1964), the Federal District Court found a denial of due process in the ac- ceptance of a guilty plea to a charge of first degree burglary where it was shown the accused had not been informed as to the difference between first and second degree burglary prior to entry of his plea. While our decision in the present case concerns statutory rather than Constitutional requirements, virtually every criminal procedure statute seeks to assure that an accused is afforded the kind of fundamental fairness guaranteed by the due process clause. As the court stated in Jones, 235 F.Supp. at 676: " * * * Real notice and understanding by a defendant of the true nature of the charge against him is the first and most universally recognized requirement of due process. * * * Understanding of the nature of the charge is indispensable to a valid plea of guilty. * * * " Because the District Court did not determine whether defend- ant understood the differing elements and effects of deliberate homi- cide and mitigated deliberate homicide, we hold that acceptance of his plea of guilty was improper. The District Court should have granted defendant's motion for leave to withdraw the guilty plea. Accordingly, the judgment and sentence is vacated, the Dis- trict Court is instructed to allow the withdrawal of the guilty plea, and to undertake such further proceedings as are consistent with this opinion. We Conqr:

December 30, 1977

a8d2261e-4168-4629-9880-eaadb14786da

Westchester Surplus Lines Ins. Co. v. Keller Transport, Inc.

2016 MT 6

DA 14-0278

Montana

Montana Supreme Court

DA 14-0278 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 6 WESTCHESTER SURPLUS LINES INSURANCE COMPANY, Plaintiff and Appellant, v. KELLER TRANSPORT, INC.; WAGNER ENTERPRISES, LLC; THOMAS F. JONES and RITA A. JONES, husband and wife; DEBRA L. SYKES; RONALD L. KOHLER and BARBARA J. KOHLER, husband and wife; and DENNIS A. ARNOLD and GERALDINE N. ARNOLD, husband and wife, Defendants and Appellees. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-10-1133 Honorable Edward P. McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Jonathan D. Hacker (argued), O’Melveny & Myers LLP; Washington, District of Columbia Allan H. Baris, Moore, O’Connell & Refling, P.C.; Bozeman, Montana Robert J. Slavik, Cozen O’Connor; Seattle, Washington For Appellee Debra L. Sykes: Trent N. Baker, Datsopoulos, MacDonald & Lind, PC; Missoula, Montana For Appellees Tom and Rita Jones, Ronald and Barbara Kohler, and Dennis and Geraldine Arnold: Roger M. Sullivan (argued), McGarvey, Heberling, Sullivan & Lacey, PC; Kalispell, Montana Timothy M. Bechtold, Bechtold Law Firm, PLLC; Missoula, Montana January 12 2016 Case Number: DA 14-0278 2 Alan J. Lerner, Lerner Law Firm; Kalispell, Montana For Amici Montana Trial Lawyers Association: John L. Amsden, Justin P. Staples, Beck & Amsden, PLLC; Bozeman, Montana Argued: September 11, 2015 Submitted: September 16, 2015 Decided: January 12, 2016 Filed: __________________________________________ Clerk 3 Justice Jim Rice delivered the Opinion of the Court. ¶1 Westchester Surplus Lines Insurance Company (Westchester) appeals from orders entered by the Fourth Judicial District Court, Missoula County, in this declaratory action that granted summary judgment against Westchester and in favor of its insureds, Keller Transport, Inc. (Keller), and Wagner Enterprises, LLC (Wagner). We affirm in part and reverse in part. We address the following issues on appeal: 1. Did the District Court err by determining that Westchester’s policy was ambiguous and that it provided an additional $4 million in coverage under the “general aggregate” limit? 2. Did the District Court err by holding that Westchester breached its duty to defend the insureds under its policy? PROCEDURAL AND FACTUAL BACKGROUND ¶2 In April 2008, Keller leased a tanker truck from Wagner to transport gasoline to Kalispell, Montana. On Highway 35, adjacent to Flathead Lake, the truck’s trailer traveled off the road, overturned, and spilled 6,380 gallons of gasoline. The gasoline flowed underneath the highway and beneath several homeowners’ (Homeowners) properties. ¶3 Keller and Wagner were both insured under a Commercial Transportation Policy issued by Carolina Casualty Insurance Company (CCIC), which provided two distinct coverages: commercial automobile (Auto), and commercial general liability (CGL). The stated limit for the Auto coverage was $1 million per accident, while the stated limit for the CGL coverage was $1 million for each occurrence, as well as a $2 million “General 4 Aggregate.” The CGL provisions stated that its “General Aggregate” limit was the most that would be paid under the CGL coverage regardless of the number of insureds or persons making claims. CCIC’s policy stated that CCIC had the duty to defend its insureds against any lawsuit that might implicate the policy, but that such duty terminated when the coverage limits had “been exhausted by payment of judgments or settlements.” ¶4 Westchester insured both Keller and Wagner under an excess liability policy, which covered those losses exceeding the coverage limits of CCIC’s policy. Stated limits of the Westchester excess policy were $4 million for each “occurrence” as well as a $4 million “General Aggregate.” The term “General Aggregate” was not defined. The Westchester policy incorporated the CCIC policy, stating, “[e]xcept as otherwise stated herein, and except with respect to (1) any obligation to investigate or defend any claim or suit, or (2) any obligation to renew, the insurance afforded by this policy shall apply in like manner as the underlying insurance described in the Declarations.” The Declarations in turn referenced the coverages of the CCIC policy. Regarding the duty to defend, the Westchester policy stated that Westchester “shall not be called upon to assume charge of the settlement or defense of any claim made or proceeding instituted against the insured; but the company shall have the right and opportunity to associate with the insured in the defense and control of any claim or proceeding reasonably likely to involve the company.” ¶5 The Westchester policy contained a federally-mandated endorsement, known as the “MCS-90,” as a protection for third parties injured in motor carrier vehicle accidents. The MCS-90 endorsement was created by the Motor Carrier Act of 1980 as a means to 5 guarantee recovery for injured third parties when insurance coverage was lacking. The MCS-90 required Westchester to pay up to the prescribed limit for each motor carrier vehicle accident regardless of whether covered by the policy. The insured motor carrier may be required to reimburse the insurer for any payout the insurer would not otherwise have been obligated to make. The MCS-90 attached to Westchester’s policy stated “[t]his insurance is excess and the company shall not be liable for amounts in excess of $4,000,000 for each accident in excess of the underlying limits of $1,000,000 for each accident.” ¶6 Following the accident, CCIC initiated payments for related clean-up expenses and litigation costs. Late in 2008, CCIC exhausted the $1,000,000 Auto coverage limit of its policy. Shortly before reaching the limit, CCIC notified Keller and Wagner that its duty to defend would end once the Auto coverage had been exhausted, citing the duty to defend provision of its policy. In January 2009, the Homeowners initiated suit against Keller and Wagner in the Twentieth Judicial District Court, Lake County, alleging negligence for causing the accident and in the manner that clean-up efforts had been implemented, which Homeowners asserted had caused further damage (hereinafter “the tort action.”). Because the limits of its Auto coverage had been exhausted, CCIC referred the matter to Westchester. Westchester undertook defense of the suit on behalf of Kohler and Wagner pursuant to a reservation of rights, noting the provision of its policy that disavowed a duty to defend and, like CCIC, Westchester stated it would continue defending only until “the applicable Westchester Policy Limit has been exhausted.” Westchester did not seek to withdraw from the defense pursuant to the reservation of 6 rights, and continued defending Keller and Wagner until December 2009, by which time it had paid $4 million in clean-up expenses and litigation costs. On the ground that the limit of its excess coverage for Auto liability had been exhausted, Westchester referred the defense back to CCIC in early 2010. Keller and Wagner did not challenge Westchester’s assessment that the limits of its policy had been reached. ¶7 In response to Westchester’s referral, CCIC made assurances to Keller and Wagner in February 2010 that it would continue to provide a defense despite having previously exhausted the limits of its policy’s Auto coverage. CCIC’s payments for defense costs resumed in May 2010. Despite the delay in re-initiation of payments, Keller and Wagner remained represented by counsel at all times. ¶8 In August 2010, CCIC initiated this action (hereinafter “the declaratory action”) in the Fourth Judicial District Court, Missoula County, seeking a declaration of CCIC’s and Westchester’s responsibilities for Keller’s and Wagner’s defense and costs, naming Westchester, Keller and Wagner. Thereafter, Homeowners made a claim that the CCIC policy provided an additional $1 million pursuant to the CGL coverage, and that the Westchester policy likewise provided an additional $4 million in excess limits under the CGL coverage. On the premise that the post-rollover negligent conduct of Keller and Wagner constituted a separate occurrence under the CGL coverage, Homeowners demanded an additional $5 million to settle their claims. In response to these claims, CCIC amended its complaint in this declaratory action, seeking a ruling on whether separate CGL coverage was implicated by the Homeowners’ claims in the underlying litigation, in addition to the Auto coverage. Westchester likewise sought a declaration 7 that the limit under its excess policy was $4 million in total, regardless of the coverages that applied, and that the limit had already been exhausted. CCIC and Westchester thus opposed Homeowners’ contention that the policies provided an additional $5 million in coverage. ¶9 Keller and Wagner, on the premise they had been prejudiced by the delay in the re-initiation of defense payments by CCIC earlier in the year, entered settlement negotiations with Homeowners, excluding CCIC and Westchester. In January 2011, eight months after their defense payments had resumed, Keller and Wagner filed confessions of judgment in the tort action in favor of Homeowners that stipulated Homeowners had suffered $13,066,474 in damages. This amount was to be offset by $3 million that Homeowners had received from a settlement with another defendant. Keller and Wagner assigned their rights under the policies to Homeowners, who agreed to collect the remainder of the judgments “by any legal means only upon and against” CCIC and Westchester. Between them, CCIC and Westchester fully paid Keller’s and Wagner’s defense costs from the commencement of the underlying tort action through the entry of their confessions of judgment. ¶10 Shortly before the confessions of judgment were filed in the tort action, CCIC and Westchester moved to intervene in that case. CCIC and Westchester asserted a right to a determination establishing the reasonableness of any damages judgment, and the right to participate in that determination. The Lake County District Court issued an order stating it would not rule on CCIC’s and Westchester’s motion to intervene until the coverage issue had been determined in the Missoula County declaratory action. 8 ¶11 All parties moved for partial summary judgment on two issues in the declaratory action: 1) whether there was additional coverage under CCIC’s CGL coverage and Westchester’s excess insurance, and 2) whether CCIC and Westchester had breached their duty to defend Keller and Wagner. ¶12 On the first issue, the Missoula County District Court determined that an additional $1 million in limits under CCIC’s CGL coverage were implicated by Homeowners’ claims.1 Regarding Westchester’s excess policy, the District Court held that an additional $4 million was available, reasoning that the phrase “general aggregate” limit was undefined and ambiguous, and could be read as establishing a “general aggregate” limit for excess payments for each coverage in the underlying policy, rather than only establishing a “general aggregate” limit for the entire policy. Regarding the second issue, the District Court held that CCIC and Westchester had both breached their duties to defend. Regarding Westchester, the District Court held that Westchester had assumed a duty to defend, despite the language disavowing a duty in its policy, by engaging to pay Keller’s and Wagner’s defense costs, and, in light of the court’s determination that an additional coverage amount was available, had violated that duty by withdrawing from the defense before such additional amounts were expended. ¶13 Westchester filed a Rule 60(b) motion, seeking reconsideration of the District Court’s rulings on coverage and the duty to defend. Homeowners then filed a second motion for partial summary judgment, seeking a determination from the court that the 1 Homeowners and CCIC have settled all claims and the District Court’s decision regarding the CCIC policy is not before the Court. 9 stipulated damages were reasonable, and that Westchester was required to pay the judgments of $13,066,477, less the $3 million Homeowners had received in another settlement, but in addition to the $4 million Westchester had already paid. The District Court denied Westchester’s Rule 60(b) motion, slightly altering its first order granting summary judgment to Homeowners. The District Court held that Westchester’s policy was not only ambiguous on its face, but particularly so in light of the MCS-90 endorsement attached to the policy. The District Court reasoned that because the MCS-90 endorsement stated that Westchester was not liable for amounts in excess of $4 million “for each accident,” this statement conflicted with the $4 million “general aggregate” limit, and required resolution in favor of the insured. The District Court rejected Westchester’s arguments on the duty to defend and reaffirmed its ruling that the duty had been breached, and that Westchester was liable for the stipulated judgments. The District Court granted Homeowners second motion for partial summary judgment, ruling that Westchester was not entitled to a reasonableness hearing, but that undisputed facts raised to the court in the summary judgment hearing were sufficient to establish that the stipulated judgments were reasonable as a matter of law. ¶14 Westchester appeals the orders granting summary judgment to Homeowners on the interpretation of the policy, the duty to defend, and denial of a hearing on the reasonableness of the stipulated damages. STANDARD OF REVIEW ¶15 We review the interpretation of insurance contracts de novo. Tidyman’s Mgmt. Servs. v. Davis, 2014 MT 205, ¶ 13, 376 Mont. 80, 330 P.3d 1139. 10 DISCUSSION ¶16 1. Did the District Court err by determining that Westchester’s policy was ambiguous and that it provided an additional $4 million in coverage under the “general aggregate” limit? ¶17 The parties both acknowledge that the $4 million “general aggregate” limit in the Westchester policy represents a maximum dollar liability. The disagreement, and alleged ambiguity, concerns the question: to what does this maximum apply? According to Westchester, the term “general aggregate” is commonly used in policies and means the maximum that applies to all coverages under the entire policy. According to Homeowners, because the term was undefined in the policy, and given the structure of the excess and underlying policies here, the maximum must apply individually to each of the underlying coverages, or at least create an ambiguity that makes it so. We agree with Homeowners. ¶18 We first dispense with the notion the MCS-90 endorsement is a basis to conclude the policy is ambiguous. The federally-mandated MCS-90 endorsement is a surety provision, not a modification of the policy to which it is attached. Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 878 (10th Cir. 2009) (“The insurer’s obligation under the MCS-90 endorsement [is] one of a surety rather than a modification of the underlying policy.”). It operates as a safety net to protect the public when coverage for motor carrier vehicle accidents is lacking. Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995). The MCS-90 obligates an insurer to guarantee a source of coverage for third parties injured by a negligent motor carrier, but only after it is determined that (1) the policy to which the endorsement is attached does not otherwise provide coverage 11 and (2) either no other insurer is available to satisfy the judgment against the motor carrier, or the motor carrier’s insurance coverage is insufficient to satisfy the federally- prescribed minimum levels of financial responsibility. Yeates, 584 F.3d at 878. The language of the endorsement demonstrates that it is not intended to affect the terms of the policy’s coverage: “all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company.” Further, because a court must first determine whether the policy provides coverage before considering the applicability of the MCS-90, the endorsement necessarily is not a part of the policy for interpretational purposes. The District Court erroneously considered the provisions of the MCS-90 in analyzing the coverage question at issue here. ¶19 The terms in an insurance contract are to be interpreted according to their common sense meaning, viewed from the perspective of a reasonable insurance consumer. Am. States Ins. Co. v. Flathead Janitorial & Rug Servs., 2015 MT 239, ¶ 12, 380 Mont. 308, 355 P.3d 735. A policy provision is ambiguous when, in light of the contract as a whole, it is reasonably susceptible to two different interpretations. Farmers Alliance Mut. Ins. Co. v. Holeman, 1998 MT 155, ¶ 25, 289 Mont. 312, 961 P.2d 114; Fisher v. State Farm Mut. Auto. Ins. Co., 2013 MT 208, ¶ 15, 371 Mont. 147, 305 P.3d 861. Because insurers draft the language of insurance contracts and the object of an insurance contract is to give protection to the insured, we construe ambiguous provisions “against the insurer and in favor of extending coverage.” Fisher, ¶ 15 (citation omitted). 12 ¶20 “Item 5” of Westchester’s Policy Declarations addresses “Underlying Insurance” and states “See Schedule A – Schedule of Underlying Insurance.” In turn, Schedule A sets forth the coverages and financial limits of the coverages within the underlying CCIC policy that was issued to Keller and Wagner: SCHEDULE A – SCHEDULE OF UNDERLYING INSURANCE (A) Automobile “Bodily Injury” & “Property Carolina Casualty Liability Damage” Insurance Co. Combined Single Limit 02/15/08 - 02/01/09 $1,000,000 Each Occurrence (B) Commercial $1,000,000 Each Occurrence Carolina Casualty General $2,000,000 General Aggregate Insurance Co. Liability ( ) Per Project/Location 02/15/08 - 02/01/09 $2,000,000 Products/Completed Operations Aggregate $1,000,000 Personal & Advertising Injury ¶21 Item 6 of the Westchester Declarations addresses “Limits of Insurance,” as follows: LIMITS OF INSURANCE $4,000,000 Each Occurrence; $4,000,000 General Aggregate $4,000,000 Products/Completed Operations Aggregate excess of the limits indicated in Item 5 of the Declarations. [Underlining in original.] ¶22 The District Court reasoned that, given that Schedule A makes clear that the Westchester policy provides excess insurance for both the Auto and CGL coverages, and that Item 6 makes clear there is a $4 million aggregate limit on something, a reasonable insurance consumer might draw two different, but plausible, interpretations. On one hand, the $4 million general aggregate limit might represent the maximum liability of the entire excess policy, so that $4 million exhausted under one coverage would mean there 13 was nothing available under the other coverage. On the other hand, the $4 million general aggregate limit might represent the maximum liability under each coverage, so that $4 million exhausted under one coverage had no bearing on the limits available under the other coverage. The District Court stated that Westchester’s failure to define “general aggregate” makes one no more plausible than the other. ¶23 The District Court correctly noted that the fundamental interpretational problem is caused by Westchester’s failure to define the term “general aggregate” in a policy that provides excess coverage for an underlying policy with more than one coverage and more than one stated limit.2 A reasonable consumer is faced with applying the “follow-form”3 language of the excess policy: “the insurance afforded by this policy shall apply in like manner as the underlying insurance described in the Declarations.” The phrase “in like manner” creates an apparent symmetry between the two policies that supports Homeowners’ ambiguity argument. Schedule A lists two aggregates under the CGL coverage of the CCIC policy, including “GENERAL AGGREGATE ( ) PER PROJECT/LOCATION” and “PRODUCTS/COMPLETED OPERATIONS AGGREGATE” (PCO), and lists the amount of $2 million for each of these aggregates within a column headed with the oxymoronic “COMBINED SINGLE LIMIT.” The Auto coverage contains only the term “occurrence,” with no reference to an “aggregate,” and lists a “Combined Single Limit” of $1 million. A reasonable consumer attempting to 2 Notably, CCIC’s insurance policy defined the term “general aggregate” as used for its policy. 3 See Olin Corp. v. American Home Assurance Co., et al., 704 F.3d 89, 93-94 (2d. Cir. 2012) (“Each policy also ‘follows form’ to lower-level excess policies, which means that it adopts their terms and conditions.”). 14 apply the excess insurance “in like manner” could reasonably conclude that the Limits of Insurance stated in Item 6 of the excess policy are meant to correspond to the identically stated counterparts in Schedule A. Thus, the $4 million “General Aggregate” and $4 million “PCO Aggregate” are applicable only to the CGL coverage because that is the only coverage for which those terms are used in the underlying insurance stated in Schedule A. Then, the “$4,000,000 Each Occurrence” stated in the excess policy’s Limits of Insurance provision would likewise appear to correspond to the Auto coverage’s “$1,000,000 Each Occurrence” stated in Schedule A. Under this reasonable, logical reading, a consumer could expect to have $4 million in excess insurance per occurrence under the Auto coverage, with no aggregate, and $4 million in excess insurance, with a $4 million aggregate, under the CGL coverage, or a total of $8 million in excess limits for the two coverages in this case. ¶24 Westchester cites Weyerhaeuser Co. v. Commercial Union Ins. Co., 15 P.3d 115, 123 (Wash. 2000), and similar authority, for the proposition that, because the term “general aggregate” as used in the excess policy is not expressly tied to a specific coverage, it must convey the total limit of excess coverage for the entire underlying policy. However, reliance on Weyerhaeuser is flawed here. First, it should be noted that we look to the four corners of a contract to ascertain the parties’ intent, because context can provide meaning. K&R P’ship v. City of Whitefish, 2008 MT 228, ¶ 26, 344 Mont. 336, 189 P.3d 593. Therefore, the manner in which the Weyerhaeuser policy applied its aggregates is not necessarily relevant or instructive to the manner in which the Westchester policy is applied. But, further, the Weyerhaeuser policy was well-defined 15 and left no confusion regarding the applicability of the aggregate limits. It avoided the confusion present here by explicitly identifying the underlying coverages that had aggregate limits, leaving little ambiguity that the named coverages had aggregate limits while the unnamed coverages did not. See Weyerhaeuser, 15 P.3d at 123 (finding policy language unambiguous). The Weyerhaueser Court could quite confidently state that the application of the aggregate limit was unambiguous due to the precision of the policy language. In contrast, the Westchester policy does not define the term “general aggregate” or give any explicit indication as to how its “general aggregate” limits are to be applied. ¶25 We conclude that Westchester’s policy with regard to application of the general aggregate is ambiguous because, taken as a whole, it is reasonably susceptible to at least two interpretations. Such an ambiguity must be construed in favor of coverage. Fisher, ¶ 15. Therefore, we affirm the District Court’s holding that Westchester’s policy provides an additional $4 million in CGL coverage. ¶26 “[T]he contractual duty to indemnify is breached when an ‘insurer has wrongfully refused to provide coverage to an insured.’” State Farm Mut. Auto. Ins. Co. v. Freyer, 2013 MT 301, ¶ 27, 372 Mont. 191, 312 P.3d 403. Westchester incorrectly interpreted its policy and therefore breached its duty to indemnify Keller and Wagner to the proper limits of its policy. “[A]n insurer’s wrongful refusal to indemnify entitles its insured to recover consequential damages,” including attorney fees. Freyer, ¶ 42. Homeowners requested and were granted these damages by the District Court, and we likewise affirm that award. 16 ¶27 Did the District Court err by holding that Westchester breached its duty to defend the insureds under its policy? ¶28 Westchester argues at length that its policy did not impose a duty to defend, but nonetheless acknowledges that it agreed to pay for Keller’s and Wagner’s defense upon exhaustion of CCIC’s primary coverage limits “until the limits of [Westchester’s] excess policy were exhausted,” under a reservation of rights. It further argues that once its “policy limits were exhausted, the [tort] proceeding would no longer ‘involve the company’” as that term is used in Condition E of the policy, and at that point Westchester “was unambiguously authorized to withdraw.” Given Westchester’s assumption of the defense by agreement until the policy limits were exhausted, and our holding above that additional policy limits were implicated by Homeowners’ claims, we hold that Westchester had a continuing duty to defend its insureds herein, and decline to further address Condition E regarding Westchester’s options in undertaking a defense. We thus turn to the question whether Westchester breached that duty to defend. ¶29 Homeowners argue that Westchester breached its duty by withdrawing from the defense before the additional policy limits were exhausted because that created a delay in defense payments that prejudiced Keller’s and Wagner’s defenses. Westchester argues that it did not breach the duty because the insureds continued to be represented by counsel at all times, Westchester and CCIC paid all of the insureds’ defense costs through the entry of the confessional stipulated judgments, including for expert witnesses, and the stipulated judgments were entered long after any delay in defense payments. For the reasons set forth below, we agree with Westchester. 17 ¶30 “Where the insurer refuses to defend a claim and does so unjustifiably, that insurer becomes liable for defense costs and judgments.” Lee v. USAA Cas. Ins. Co., 2004 MT 54, ¶ 19, 320 Mont. 174, 86 P.3d 562 (citing Independent Milk & Cream Co. v. Aetna Life Ins. Co., 68 Mont. 152, 216 P. 1109 (1923)). The Independent Milk rule has been reiterated by this court multiple times in more recent years. See Lee, ¶ 19; Tidyman’s, ¶ 25; and Farmers Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 20, 321 Mont. 99, 90 P.3d 381. Although we are unaware of a Montana case where this rule has been applied to an insurer that voluntarily assumed a duty to defend, other jurisdictions have done so. See Bluestein & Sander v. Chi. Ins. Co., 276 F.3d 119, 122 (2nd Cir. 2002); United Pac. Ins. v. Pac. Nw. Research Found., 593 P.2d 1278, 1280 (Or. App. 1979); Ging v. American Liberty Ins. Co., 423 F.2d 115, 120 (5th Cir. 1970). We find these authorities persuasive, and hold that Independent Milk applies to a breach of an assumed duty to defend. ¶31 At the time Westchester withdrew from Keller’s and Wagner’s defense, there had been no suggestion that additional coverage was implicated by Homeowners’ claims. Indeed, Keller and Wagner, although desiring that Westchester would continue to provide a defense, also understood that Westchester’s policy limits had been exhausted. Homeowners’ claim for additional coverage came eight months later, after CCIC had initiated this declaratory action for a determination of CCIC’s and Westchester’s respective duties, which Westchester joined. Unlike Tidyman’s, where the insured confessed judgment during a time his insurer declined to provide a defense, Tidyman’s, ¶ 9, Wagner and Keller were not declined a defense. Although there was a short delay in 18 payments after the defense was tendered back by Westchester, CCIC promptly agreed to provide a defense and re-initiated payments. All defense expenses incurred up to the entry of the stipulated judgments were paid. It was some eight months after defense payments resumed that Keller and Wagner confessed judgment. They were continually represented by counsel up to that point, evidenced by their counsel’s numerous filings in the underlying action, even during the period of delayed payment. ¶32 Homeowners argue the delay in defense payments hindered Wagner’s efforts to retain experts, but the record reveals that this was a matter of case management on the part of Wagner. Wagner waited until one month before its expert disclosure deadline in September 2010—seven months after CCIC agreed to resume its defense and four months after defense payments re-started—before asking Keller if Wagner could share Keller’s experts at trial. When Keller declined, Wagner scrambled to locate its own experts in the remaining time. There is scant indication in the record that the delay in Wagner’s retention of experts had anything to do with the delay in defense payments, particularly in light of the fact that Keller’s experts were obtained at the insurer’s expense as a defense cost. Notably, Wagner was still able to timely obtain experts, at the insurer’s expense. ¶33 The stipulated judgments here were entered eight months after defense payments resumed. A defense was being provided and all defense costs were being covered. The facts of this case demonstrate that the insureds were not “improperly abandon[ed]” by their insurers and left without a defense such that they would be “justified in taking steps to limit [their] personal liability” by entering a stipulated judgment. Freyer, ¶ 34 19 (citations omitted); Tidyman’s, ¶ 25 (citations omitted). The authority upon which we have relied for these principles holds that a stipulated judgment will not be enforced “against an insurer where the insurer has conceded coverage and defended its insured, and where there has been no finding of bad faith against the insurer.” Freyer, ¶ 34 (citations omitted). Therefore, the District Court’s order that Westchester is liable for the stipulated judgments must be reversed. This being so, it is unnecessary for us to address Westchester’s appeal of the District Court’s denial of a hearing on the reasonableness of the stipulated damages. CONCLUSION ¶34 The Westchester policy provides an additional $4 million in excess insurance pursuant to the CGL coverage. Westchester thus breached its duty to indemnify Keller and Wagner, and the District Court’s order in this regard, including assessment of consequential damages, is affirmed. Westchester’s assumed duty to defend continues at least until these policy limits are exhausted. However, Westchester did not breach the duty to defend and is not liable for the stipulated judgments. To this extent, the District Court is reversed. ¶35 Affirmed in part and reversed in part. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT 20 Justice Laurie McKinnon, dissenting. ¶36 The Court fundamentally errs when it fails to consider the insurance contract as a whole and the plain language of the Insuring Agreement. We have repeatedly held that when we look at an insurance contract to ascertain its purpose and intent, we will examine the contract as a whole, giving no special deference to any specific clause. Mitchell v. State Farm, 2003 MT 102, ¶ 26, 315 Mont. 281, 68 P.3d 703 (quotation and citation omitted). ¶37 Keller and Wagner’s excess liability policy with Westchester unambiguously provides, under “Insuring Agreement,” that “the Company’s obligation hereunder shall not exceed the limit of liability stated in [Item] 6.”1 The limits of insurance are determined by Item 6, rather than Item 5 as the Court erroneously concludes. Item 6, as contrasted with Item 5 relating to “underlying insurance,” clearly provides that the “limits of [Westchester’s] insurance” is “$4,000,000 Each Occurrence; $4,000,000 General Aggregate.” Item 6 is again referenced as setting the upper limits of insurance in the “Appeals” section of the Westchester policy, which unambiguously provides “but in no event shall the liability of the company for excess loss exceed the amount set forth in [Item] 6.” Item 5, relating to the schedule of underlying insurance provided by CCIC, does not conflict or render ambiguous these clear provisions of the Westchester policy, which incorporates Item 6 and thus limits Westchester’s insurance to $4 million for each occurrence, not to exceed $4 million general aggregate. Nowhere in the Court’s decision 1 The declarations page of the Westchester policy lists the various provisions as Items while its Insuring Agreement refers to them as Declarations. For the sake of consistency, I use the term Item. 21 have we recognized or acknowledged the existence of the Insuring Agreement, which clearly incorporates the provisions of Item 6—and not Item 5—as setting the limits of insurance. The Insuring Agreement’s “shall not exceed the limit” clause does not, as the Court erroneously concludes, refer to or depend on Item 5 or CCIC’s coverage. ¶38 Moreover, the Court’s reliance on the “follow-form” language of the Westchester policy is legally unsound and misconstrues the provisions of the policy.2 The “follow-form” provision states that, “[e]xcept as otherwise stated herein,” the CCIC policy “shall apply in like manner.” This provision makes clear that where the Westchester and CCIC policies diverge, the distinct terms of the Westchester policy control. As the Westchester policy’s Insuring Agreement clearly specifies policy limits that are different from those set forth in the CCIC policy, Westchester’s terms apply without reference to the CCIC policy limits. The Court errs in concluding Item 5 creates an ambiguity regarding the limits of insurance, as nothing in the insurance documents incorporates Item 5 to establish the limits of insurance. The CCIC policy terms apply only where the Westchester policy terms have not provided otherwise. The incorporation of Item 6 as Westchester’s limit of insurance is expressly provided for in the Westchester policy. I cannot subscribe to manufacturing an ambiguity, as the Court does, when a simple and careful review of the insurance documents does not support coverage beyond the general aggregate amount of $4 million for each occurrence. 2 I agree with the Court that the federally mandated MCS-90 endorsement is a surety provision, not a modification of the policy to which it is attached. Opinion, ¶ 18. 22 ¶39 The term “general aggregate” is unambiguous: “The aggregate dollar liability represents the insurer’s maximum total dollar liability. The fact is clear both from the ordinary everyday meaning of the word aggregate, and from case law.” 3 Allan D. Windt, Insurance Claims & Disputes: Representation of Insurance Companies & Insureds § 11:32, 11-501 (5th ed. 2010) (italics omitted); Weyerhaeuser, 15 P.3d at 122 n. 5 (“An aggregate limit defines an insurer’s total liability under a policy.”). The word “general” means “involving or belonging to the whole of a body, group, class, or type: applicable or relevant to the whole rather than to a limited part, group, or section.” Webster’s Third New International Dictionary 944 (Philip Babcock Gove ed. 1971). The phrase “general aggregate;” therefore, clearly refers to Westchester’s maximum liability for the whole insurance policy rather than individual sections of the underlying CCIC policy. Under the provisions of the Westchester policy, the plain and ordinary meaning of “general” and “aggregate” do not require that “general aggregate” be defined in order to avoid an ambiguity within the policy as the Court offers. ¶40 I dissent from our conclusion that the policy is ambiguous and that an additional $4 million in excess insurance coverage is available. As Westchester paid out $4 million in coverage before withdrawing from the defense and tendering it back to CCIC, I would not address the remaining issues. /S/ LAURIE McKINNON

January 12, 2016

59de5bc9-0d96-4871-a514-a759ecb35299

BANKS v DEPT OF REVENUE

N/A

13758

Montana

Montana Supreme Court

No. 13758 IN THE SUPREME COURT OF THE STATE OF MONTANA THE UNITED STATES NATIONAL BANK OF RED LODGE, FARMERS CITIZENS BANK OF WORDEN, and FIRST CITIZENS BANK OF BILLINGS, MONTANA, Plaintiffs and Appellants, MONTANA DEPARTMENT OF REVENUE et al., Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellants: Berger, Anderson, Sinclair and Murphy, Billings, Montana Chris Nelson argued, Billings, Montana Robert F. Conwell, Red Lodge, Montana For Respondents : Harold Hanser, County Attorney, Billings, Montana R. Bruce McGinnis argued, Helena, Montana Submitted: November 29, 1977 w- - f - = - = ? ,-' Filed: 2~~~ 1 i I Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Appellants appeal from orders of the District Courts of Yellowstone and Carbon Counties granting respondents1 motions to dismiss. In January, 1977, appellants, The United States National Bank of Red Lodge, Farmers State Bank of Worden, Montana, and First Citizens Bank of Billings, Montana, filed virtually identical com- plaints in the District Courts of Yellowstone and Carbon Counties. In their complaints appellants alleged that they are banking corpor- ations engaged in the banking business in the State of Montana; that appellants at all times material to the complaint were owners of United States obligations within the meaning of 31 U.S.C. S742 (1970); that, for the taxable year 1976, respondent Montana Department of Revenue determined the assessed value of appellants1 shares of stock without allowance of a deduction for the value of the UniOed States obligations held by appellants during the taxable year 1976; that appellants timely paid taxes on the total assessed value of its stock under written protest; that the assessment and taxation of appellants1 shares of stock, without allowance of a deduction from assessed value equal to the value of appellants1 United States obligations for the taxable year 1976, is an unlawful tax in vio- lation of 31 U.S.C. S742 (1970). Appellants in their complaints asked for a finding that the 1976 property taxes on their shares of stock were illegal, and requested a refund of the taxes paid on the shares. Respondents filed Rule 12 (b) (1) , M.R.Civ.P., motions to dismiss appellants' complaints, alleging that the District Courts lacked jurisdiction over the subject matter of the cases. In its briefs in support of the motions to dismiss, respondent Montana Department of Revenue (hereinafter referred to as "the Department") asserted that appellants' complaints concerned the valuation of the banks' shares, and as such, appellants were required by Title 84, Chapters 6 and 7, R.C.M. 1947, to appeal to the county and state tax appeal boards. The Department contended that appeal to the tax appeal boards was a condition precedent to taxpayer appeal on a valuation issue to the District Courts. Since appellants did not first appeal these cases to the tax appeal boards, the Department concluded that appellants had failed to exhaust their administrative remedies and that the District Courts therefore lacked subject mat- ter jurisdiction in these cases. It is from the District Courts' orders granting the Department's motions to dismiss that appellants appeal. The sole issue on appeal is whether the District Courts erred in granting the Department's motions to dismiss. We first note that the District Court orders granting the motions to dismiss were appealable orders. Section 84-603, R.C.M. 1947, as it was in effect in 1976, required that appeals to the county tax appeal boards be made on or before the third Monday of July in the year in which the property was assessed. Since the section 84-603 statute of limitations for 1976 appraisals has long since passed, " * * * the practical effect of the district court's order is to leave appellant without opportunity for further judi- cial relief, just as if judgment had been rendered against him. Therefore, the order * * * is properly before this Court on appeal." Hasbrouck v. Krsul (1975), 168 Mont. 270, 272, 541 P.2d 1197. In reviewing the propriety of an order granting a motion to dismiss, we repeat the oft-quoted rule that " * * * the allega- tions of the complaint must be viewed in a light most favorable to plaintiffs, admitting and accepting as true all facts well-pleaded." Board of Equalization v. Farmers Union Grain Terminal Assoc. (19621, 140 Mont. 523, 531, 374 P.2d 231. Admitting and accepting as true all facts well-pleaded in appellants' complaints, the District Courts in this case did indeed have subject matter jurisdiction, and the Department's Rule 12(b)(l) motions to dismiss were therefore improperly granted. Appellants, in their complaints, alleged that the Department had illegally taxed appellants' United States obli- gations, in violation of 31 U.S.C. S742 (1970), which provides: "All stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or muni- cipal or local authority * * *." The allegations of the complaints thus raised a question as to the legality of the tax imposed, and did not put into issue any question of valuation. Where the issue is one of an illegal taxation, the courts, and not the tax appeal boards, have original' jurisdiction to hear the case, under the rule of Larson v. State (1975), 166 Mont. 449, 534 P.2d 854. In Larson, as in this case, the Department contended that the taxpayers should have been required to exhaust their statutory, administrative remedies of appeal to the tax appeal boards before bringing a court action. This Court held in Larson, however, that where a case does not concern a property tax valuation, but rather the state's use of an unconstitutional and illegal appraisal, the determination is an appropriate function of the courts. Larson v. State, 166 Mont. at 456-57. The legality of a taxation, the issue raised by appellants in their complaints, like the unconstitutional and illegal appraisal issue in Larson, is an issue for the courts and not for the tax appeal boards. Respondents contend that the Department is making no attempt to tax the federal obligation of the banks. The question is, then, whether the value of the banks' federal obligations are contained in its capital,surplus,or undivided profits. The banks are claim- ing it is and should be deducted. The Department contends this is a question of valuation and properly presentable to the county tax appeal board for its determination. It is entirely possible the Department's interpretation of the facts may later prove to be correct. If in subsequent proceed- ings the Department proves that this case involves an issue of valuation rather than imposition of an illegal tax, appellants would be barred from court for failure to first exhaust their administrative remedies of appeal to the tax appeal boards, as required by Title 34, Chapters 6 and 7, R.C.M. 1947. By submitting documentary evidence, the Department may be able to prove that they did not tax appellants' United States obligations, but merely valued the banks' shares; the Department might then be entitled to summary judgment pursuant to Rule 56, M.R.Civ.P. By introducing testimony or documentary evidence at trial, the Department might likewise prove that this case involves a tax valuation and not an illegal taxation. These considerations, however, are irrelevant to our inquiry at this stage of the proceedings. The only relevant inquiry in reviewing a District Court order granting a Rule 12(b) (1) motion to dismiss is whether the complaint, standing alone, sets forth facts which, if true, vest the District Court with subject matter jurisdiction. The complaints, alleging an illegal tax, give the District Court subject matter jurisdiction. The Department may not, simply by making allegations refuting the contentions in appel- lants' complaints, be granted their motions to dismiss. As this Court stated in Harrington v. Holiday Rambler Corp. (1974), 165 Mont. 32, 35, 37, 525 P.2d 556: "The underlying issue is whether the denial of jurisdiction, i.e. defendant's affidavit, over- comes the allegations of the complaint. We find it does not and hold that dismissal of plaintiffs' complaint on that ground was premature. "The most troublesome aspect here is that defendant was permitted simply to say 'May' upon affidavit and thereby prevent plaintiffs from having their day in court. * * * " The District Courts' orders granting the Department's motions to dismiss are reversed, and the cases are remanded for further pro- ceedings consistent with this opinion. i >\ / - , O & Chief Justice 1 We Concur: Justices

December 30, 1977

5d38e43c-8ce5-4114-84d9-fc6f31bcc749

State v. Davis

2016 MT 102

DA 14-0525

Montana

Montana Supreme Court

DA 14-0525 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 102 STATE OF MONTANA, Plaintiff and Appellee, v. KELLY DAVIS, Defendant and Appellant. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DC-2013-62 Honorable Brenda Gilbert, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad M. Wright, Chief Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Bruce E. Becker, Park County Attorney, Kathleen Carrick, Deputy County Attorney, Livingston, Montana Submitted on Briefs: March 23, 2016 Decided: May 10, 2016 Filed: __________________________________________ Clerk May 10 2016 Case Number: DA 14-0525 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Kelly Davis appeals the decision and order of the Sixth Judicial District Court, Park County, denying his motion to dismiss his misdemeanor DUI conviction. We restate the issues on appeal as follows: 1. Whether Davis’s trial before a non-lawyer justice of the peace violated his constitutionally-guaranteed right to due process of law. 2. Whether Davis’s trial before a non-lawyer justice of the peace deprived him of his constitutionally-guaranteed right to effective assistance of counsel. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On January 12, 2013, a Park County law enforcement officer arrested Davis on suspicion of Driving under the Influence of Alcohol (DUI). Two days later, the Board of Commissioners of Park County passed Resolution No. 1147, which changed the Park County Justice Court from a non-record court into a court of record, effective immediately. Appeals to a district court from a justice court of record are not taken as trials de novo. Section 3-10-115(1), MCA. ¶4 Davis was arraigned on January 24, 2013, in Park County Justice Court, Honorable Linda Budeski presiding. Budeski is not an attorney licensed to practice law in Montana. At the arraignment, Davis pleaded not guilty to DUI, second offense, in violation of § 61-8-401, MCA. A second DUI is punishable by up to one year of incarceration. Section 61-8-714(2)(a), MCA. ¶5 Davis filed a motion to dismiss in justice court arguing that the prosecution of a jailable offense before a non-lawyer judge without the option of a trial de novo before a 3 lawyer-judge violates the Due Process and Right to Counsel Clauses of the United States and Montana Constitutions. The Justice Court denied Davis’s motion to dismiss. ¶6 Davis was tried in justice court before a jury and was found guilty on July 16, 2013. Thereafter, the Justice Court issued a written sentence and judgment, which Davis appealed to the District Court demanding a trial de novo. Davis also filed a motion to dismiss. ¶7 On December 10, 2013, after considering briefs on the issue from both parties, the District Court denied Davis’s motion to dismiss, concluding that Davis’s constitutional rights had not been violated by his trial being conducted by a non-lawyer judge in a court of record without a trial de novo.1 We granted Davis leave to file an out of time appeal. M. R. App. P. 4(6). STANDARDS OF REVIEW ¶8 A district court’s denial of a motion to dismiss in a criminal case presents a question of law that we review de novo for correctness. State v. Willis, 2008 MT 293, ¶ 11, 345 Mont. 402, 192 P.3d 691. We exercise plenary review of constitutional issues of due process and the right to counsel. In re Mental Health of C.R.C., 2009 MT 125, ¶ 13, 350 Mont. 211, 207 P.3d 289. 1 The same decision reversed the judgment of the Justice Court and granted Davis a new trial on the ground that Davis’s right to due process was violated “by his case being changed midstream to a court of record proceeding, without formal notice to him.” Following remand, Davis pled no contest, reserving the right to appeal. After another trial, the Justice Court reinstated Davis’s sentence and Davis appealed again to the District Court. The District Court again treated the second appeal as an appeal of record and set a briefing schedule. Davis entered a no contest plea and filed a motion for issuance of judgment and motion to set a sentencing hearing. The District Court issued a judgment on June 20, 2014, reaffirming the Justice Court’s sentence and staying execution of sentence pending appeal to this Court. 4 DISCUSSION ¶9 1. Whether Davis’s trial before a non-lawyer justice of the peace violated his constitutionally-guaranteed right to due process of law. ¶10 Section 3-10-101(5), MCA, authorizes counties to establish justices courts as courts of record. “The court’s proceedings must be recorded by electronic recording or stenographic transcription and all papers filed in a proceeding must be included in the record.” Section 3-10-101(5), MCA. Pertinent here, justices courts have jurisdiction within their respective counties over “all misdemeanors punishable by a fine not exceeding $500 or imprisonment not exceeding 6 months, or both.” Section 3-10- 303(1)(a), MCA. Justices of the peace are not required to be licensed attorneys. See Sections 3-10-202, -204, 3-1-1502, MCA. In an appeal from a justice court established as a court of record, the district court functions as an appellate court and the appeal is confined to a review of the record and questions of law. Section 3-10-115(1), MCA; Stanley v. Lemire, 2006 MT 304, ¶ 25, 334 Mont. 489, 148 P.3d 643 (citing State v. Seaman, 2005 MT 307, ¶ 10, 329 Mont. 429, 124 P.3d 1137). ¶11 The District Court concluded that Davis’s constitutional rights were not violated by virtue of his trial being conducted by a non-lawyer judge presiding in a court of record without the right to a trial de novo. The court concluded that Article VII, Section 4(2), of the Montana Constitution, along with our decision in Hernandez v. Board of County Commissioners and State of Montana, 2008 MT 251, 345 Mont. 1, 189 P.3d 638, establish that the Legislature has “the ability to provide for something other than de novo appeals in district courts.” The court concluded also that the statutory scheme that allows 5 for justice court proceedings and the appeal process to district courts “ensures that the Defendant’s case is reviewed by a judge with formal legal training, and any alleged errors are reviewed and subject to correction, reversal and/or remand.” The court noted that other jurisdictions such as Wyoming, New Mexico, and South Carolina have concluded that defendants’ due process rights are not infringed by having a non-lawyer as a judge. The District Court emphasized that justices of the peace in Montana have extensive training requirements pursuant to § 3-10-203, MCA. ¶12 The District Court determined that “[t]here is simply no constitutional right to a trial before a judge with formal training,” and that “[e]ach state is vested with the authority of devising its judicial system.” The court concluded that the Legislature acted within its power to establish justices courts as courts of record without requiring trial by a lawyer-judge. ¶13 As an accused person facing incarceration, Davis contends that he has a fundamental and essential right to a fair trial before a lawyer-judge because “due process requires that both the presenters and the evaluators of legal arguments in criminal trials be lawyers.” Davis argues that a criminal defendant must have a “meaningful opportunity to be heard.” Quoting Powell v. Alabama, 287 U.S. 45, 68-69, 53 S. Ct. 55, 64 (1932), Davis asserts, “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” From this, Davis reasons that “being heard by counsel is of little avail if it does not comprehend the right to be heard by a lawyer-judge” because “[l]aypersons, by definition, lack the requisite expertise of an attorney to evaluate legal arguments.” Davis concedes that governments are “free to 6 regulate the procedures of their courts in accordance with their own conception of policy and fairness,” but argues that a “judge’s qualifications must still meet the constitutional floor of the Due Process Clause.” While Davis concedes that the right to a lawyer-judge is not explicit in the Montana Constitution, he points out that the same is true with many other fundamental rights that are essential to a fair trial, e.g., proof beyond a reasonable doubt, the right to be provided with the prosecution’s material evidence, and a neutral and detached judge. ¶14 Davis refers to other states—Tennessee, Indiana, California, and Vermont—that have held that due process includes the right of a lawyer-judge for defendants facing the possibility of incarceration. In addition, Davis argues that there is “widespread recognition of the lawyer-judge right across the nation.” The right to a lawyer-judge, according to Davis, began 800 years ago under the Magna Carta, which proclaimed that England would only appoint justices and constables who knew the law of the realm. According to Davis, this idea permeated through our country’s history so that today “28 states require lawyer-judges to preside in all cases in which there is a possibility of incarceration . . . [and] [a]nother 16 states do permit lay judges to conduct criminal trials but provide criminal defendants with either the option of trial de novo before a lawyer-judge or the ability to request a trial before a lawyer-judge in the first instance.” In contrast, Davis contends that only six states—Montana included—allow a non-lawyer judge to conduct criminal trials without the option of a trial de novo before a lawyer-judge. Because of this “persuasive authority,” Davis contends that Montana “is not in compliance with due process.” 7 ¶15 Davis argues further that review by a lawyer-judge on appeal does not cure the lack of a lawyer-judge at trial because “the fundamental right to be heard must first be protected at trial.” Davis contends that much of a trial judge’s work is not reviewed on appeal under a de novo standard”; rather, many rulings are reviewed for abuse of discretion or for clear error. According to Davis, this creates the possibility that “a defendant now may be sentenced to imprisonment when a lay judge makes a mistake of law that, because of the standard of review, will evade appellate review by a lawyer-judge.” Davis argues that even if a trial court’s error can be remedied on appeal, the defendant already will have gone through substantial “burden, expense, and delay,” and even may have served his or her entire term of imprisonment before the appeal system can provide relief. ¶16 The State argues that the use of non-lawyer judges to “expeditiously try minor criminal offenses is consistent with longstanding, traditional common law practice.” Relying on Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964), the State contends that it is “free to regulate the procedure of its own courts in accordance with its own conception of policy and fairness unless in doing so it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The State claims that non-lawyer judges have presided over criminal trials for jailable offenses and their decisions have been reviewed on the record for mistakes of law “for centuries in common law countries, including this one,” and that “[n]either the United States Constitution nor the Montana Constitution explicitly requires judges who try minor 8 jailable offenses to be lawyers.” Therefore, according to the State, a trial before a lawyer-judge “is not a practice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Relying on Shadwick v. City of Tampa, 407 U.S. 345, 92 S. Ct. 2119 (1972), and North v. Russell, 427 U.S. 328, 96 S. Ct. 2709 (1976), the State contends that “the United States Supreme Court has never equated the guarantee of a ‘fair tribunal’ with any particular educational background or professional licensure, and has instead approved of lay judges wholly uneducated in the law to act as examining magistrates and to try minor jailable offenses.” ¶17 The State contends that states are “free to experiment with different types of criminal justice systems so long as the system contains sufficient procedural safeguards to ensure the fundamental fairness of the proceedings.” The State points out that non-lawyer judges are “extensively educated, trained, and certified in the law and their duties as judicial officers. Their proceedings are recorded, and their conclusions of law and decisions on mixed questions of fact and law—including their decisions regarding constitutional issues—are reviewed for correctness on appeal.” According to the State, Davis has produced no evidence showing that Montana’s non-lawyer judges “necessarily, or usually, or even probably decide legal issues without understanding the arguments of counsel or on any basis other than the sound exercise of judicial discretion in accordance with the law.” Moreover, the State argues that Davis has not shown that he was prejudiced by having his trial conducted by a non-lawyer judge. ¶18 Davis takes issue with the State’s argument that he was not actually prejudiced by the lack of a lawyer-judge at trial. The procedure itself, according to Davis, is 9 unconstitutional and therefore, there is no need to show actual prejudice “in order to imperil a defendant’s due process [right].” ¶19 Article VII, Section 4(2), of the Montana Constitution provides in relevant part, “The district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law.” In Hernandez, we held that the phrase “unless provided by law” in Article VII, Section 4(2), gave the Legislature “the ability to provide for something other than de novo appeals in district courts.” Hernandez, ¶ 24. Our decision in Hernandez is consistent with the delegates’ intentions at the 1971-1972 Montana Constitutional Convention (Convention). Convention delegates considered whether to retain justices courts and whether to require that a justice of the peace be a lawyer. Montana Constitutional Convention, Verbatim Transcript, February 26, 1972, Vol. IV, p. 1014. Delegates agreed that justices courts are important, particularly in Montana’s small towns, and that justices of the peace do not have to be lawyers so long as they undergo mandatory training in the law. Montana Constitutional Convention, Verbatim Transcript, February 26, 1972, Vol. IV, pp. 1014, 1020. The delegates also specifically debated whether all justice court cases should be subject to trial anew review by a district court, or whether the legislative branch should be granted the authority to eliminate trial anew review in the future. Montana Constitutional Convention, Verbatim Transcript, February 29, 1972, Vol. IV, pp. 1075-1078. Ultimately, the delegates chose to enable the Legislature to limit the availability of trial anew in district court. Montana Constitutional Convention, Verbatim Transcript, February 29, 1972, Vol. IV, p. 1078; Mont. Const. art. VII, § 4(2). 10 ¶20 While our decision in Hernandez establishes that the Legislature’s creation of justices courts of record without de novo review is consistent with Article VII, Section 4(2), of the Montana Constitution, we did not decide in that case whether a trial before a non-lawyer justice of the peace without de novo appeal denies a defendant his or her constitutionally-guaranteed right to due process of law. In North, the United States Supreme Court addressed whether an accused, subject to possible imprisonment, is denied due process when tried before a non-lawyer judge with a later trial de novo available. North, 427 U.S. at 329, 96 S. Ct. at 2710. The courts at issue in that case were Kentucky’s lower courts, which were not courts of record. North, 427 U.S. at 336 n.5, 96 S. Ct. at 2713 n.5. The Court held that such a trial does not violate due process. North, 427 U.S. at 339, 96 S. Ct. at 2714. North, however, did not address whether a trial by a non-lawyer judge in a lower court of record without the availability of a trial de novo on appeal would violate due process, and the United States Supreme Court has not yet answered that question. See North, 427 U.S. at 334, 96 S. Ct. at 2712. This issue is a matter of first impression for this Court; there are a number other jurisdictions, however, that have addressed it. ¶21 In Tsiosdia v. Rainaldi, 547 P.2d 553 (N.M. 1976), the Supreme Court of New Mexico held that having a non-lawyer judge preside over criminal cases arising from violations of municipal ordinances, which are punishable by incarceration, does not violate a defendant’s due process rights. Tsiosdia, 547 P.2d at 554. Noting that due process “generally only requires that the tribunal be fair and impartial,” the court concluded, 11 The judge’s major function is to determine which of two espoused view-points—the [defense] attorney’s or the prosecutor’s—is applicable to the facts of the case before him. An unbiased and reasonably intelligent person should be able to choose fairly between such espoused viewpoints. Fairness in this context is not critically dependent upon the judge being a member of the bar; a judge must have wisdom and common sense which are at least as dependable as an education in guaranteeing the defendant a fair trial. As with district court judges, as a last resort the appellate process is able to correct the mistakes of law of a municipal court judge. Tsiosdia, 547 P.2d at 554-55. Similarly, the Wyoming Supreme Court held that a defendant’s due process rights are not infringed by a trial before a non-attorney judge when the criminal case is recorded. Canaday v. Wyoming, 687 P.2d 897, 898-99 (Wyo. 1984). The court noted that even though the defendant does not have a right to a trial de novo before the district court, “the record of the proceeding provides an opportunity for a meaningful and complete judicial review by a law-trained judge.” Canaday, 687 P.2d at 900. Other jurisdictions also have approved non-lawyer judges when a record is available for review by a lawyer-judge. E.g., Goodson v. State, 991 P.2d 472 (Nev. 1999); Palmer v. Super. Ct., 560 P.2d 797 (Ariz. 1977); People v. Sabri, 362 N.E.2d 739 (Ill. App. Ct. 1977); State v. Duncan, 238 S.E.2d 205 (S.C. 1977). ¶22 There is contrary authority from courts in Tennessee, Indiana, California, and Vermont. In State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 791 (Tenn. 1980), the Tennessee Supreme Court determined that the “‘law of the land’ provision in Article I, Section 8 of the Constitution of Tennessee does not permit a judge who is not licensed to practice law to make any disposition of a juvenile that operates to confine him or deprive him of his liberty.” In City of White House v. Whitley, 979 S.W.2d 262, 268 (Tenn. 1998), the Tennessee Supreme Court extended the ruling from Anglin to prohibit 12 non-lawyer municipal and general session judges from presiding over misdemeanor cases where incarceration may be imposed. Similar to Montana, there is nothing in Tennessee’s Constitution or statutes that require that all judges be licensed attorneys. See Tenn. Const. art. VI, § 4; Tenn. Code Ann. § 16-18-202 (2015). The dissent in City of White House criticized the majority for “redraft[ing] the constitution to reflect the majority’s notions of fundamental fairness.” City of White House, 979 S.W.2d 262, 270 (Holder, J., dissenting). Accordingly, the dissent would have held that “it is for the legislature and not for this Court to redraft the requirements for holding office as judge.” City of White House, 979 S.W.2d 262, 270 (Holder, J., dissenting). ¶23 In In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 332 N.E.2d 97, 98 (Ind. 1975), the Indiana Supreme Court struck down a law that would have permitted lay judges to preside over misdemeanor cases in the county courts. The court interpreted its constitutional authority over the “discipline, removal and retirement of justices and judges,” Ind. Const. art. 7, § 4, to give it “responsibility of [sic] the competence of . . . those persons sitting as justices and judges in [Indiana] state courts,” In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 332 N.E.2d at 98. It noted that the legislature had failed to provide specific requirements or qualifications for lay judges. The court concluded that the legislature’s attempt to require the court to fix standards less than what the court had required for attorneys violated the separation of powers doctrine. In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 332 N.E.2d at 98. In contrast, Montana’s Constitution calls for the Legislature to determine 13 the qualifications and training required for justices of the peace. Mont. Const. art. VII, § 5. ¶24 In Gordon v. Justice Court for Yuba Judicial District, 525 P.2d 72, 79 (Cal. 1974), the California Supreme Court held that there is a right to a lawyer justice of the peace in criminal cases carrying the possibility of incarceration. The court held that an appeal from a justice court judgment was “inadequate to guarantee a fair trial since justice courts are not courts of record, and thus no transcript is ordinarily made of the original proceeding.” Gordon, 525 P.2d at 78 (internal citation omitted). Unlike the justices courts in Gordon, Montana justices courts from which appeal is not by trial de novo must be courts of record. Sections 3-10-101(5), -115, MCA. ¶25 In Vermont v. Dunkerley, 365 A.2d 131, 132 (Vt. 1976), the Vermont Supreme Court addressed part of Vermont’s uncustomary legal system that permitted three judges to preside in a trial in the superior court. Only one of the three judges was required to be a lawyer, and the votes of two non-lawyer judges could override the vote of the lawyer-judge on any legal question. Dunkerley, 365 A.2d at 132. The court held that such a practice was “a sufficient deviation of due process to require proscription.” Dunkerley, 365 A.2d at 132. Different from the historical record in Montana, where the practice of non-lawyer judges was expressly debated by Convention delegates and the Legislature, the Vermont Court noted that “the fact that positions of Assistant Judges have come to be usually filled by laymen is at least partly a matter of historical accident.” Dunkerley, 365 A.2d at 132. 14 ¶26 Both the Fourteenth Amendment to the United States Constitution and Article II, Section 17, of the Montana Constitution provide that no person shall be deprived of liberty “without due process of law.” [I]t is normally within the power of the State to regulate procedures under which its laws are carried out . . . and its decisions in this regard [are] not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. State v. Krantz, 241 Mont. 501, 509-10, 788 P.2d 298, 303 (1990) (citing McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S. Ct. 2411, 2415-16 (1986) (quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S. Ct. 2319, 2322 (1977))). “Historical practice” is the “primary guide” in determining whether a proposed procedural rule is so fundamental as to be required under the Due Process Clause. Montana v. Egelhoff, 518 U.S. 37, 43, 116 S. Ct. 2013, 2017 (1996). The common contemporary practice of some states does not automatically qualify a procedural rule as fundamental. Egelhoff, 518 U.S. at 49-51, 116 S. Ct. at 2020-21. “[N]ot every widespread experiment with a procedural rule favorable to criminal defendants establishes a fundamental principle of justice” even if the rule “has gained considerable acceptance” and “especially” if “it displaces a lengthy commonlaw tradition which remains supported by valid justifications today.” Egelhoff, 518 U.S. at 51, 116 S. Ct. at 2021. In addition, “Due Process is flexible and calls for such procedural protections as the particular situation demands.” Goble v. Mont. State Fund, 2014 MT 99, ¶ 46, 374 Mont. 453, 325 P.3d 1211 (citation and internal quotation marks omitted). It does not require that states take “every conceivable step . . . at whatever cost, to eliminate the possibility of convicting an innocent person.” Patterson, 432 U.S. at 15 208, 97 S. Ct. at 2326. Rather, states are required to provide “only the most basic procedural safeguards.” Patterson, 432 U.S. at 210, 97 S. Ct. at 2327. ¶27 We decline to adopt Davis’s contention that there is a fundamental and essential right to a trial before a lawyer-judge. Our historical practice does not support the notion that a trial before a lawyer-judge is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Krantz, 241 Mont. at 510, 788 P.2d at 303. The 1889 Montana Constitution required that district court judges and supreme court justices be admitted to the practice of law but did not require the same of justices of the peace. Mont. Const. of 1889, art. VIII, §§ 10, 16. In 1971, despite the fact that some other jurisdictions were eliminating or reforming their justices courts, the Montana Legislature rejected a bill that would have required justices of the peace to be lawyers or otherwise trained in the law. H.B. 362, 42d Mont. Leg. Assem. § 5 (Mont. 1971). As discussed above, Convention delegates, noting the lack of lawyers in many small Montana counties, agreed that justices courts should be retained in order to provide prompt, local justice to Montanans and that justices of the peace are not required to hold a law license. Montana Constitutional Convention, Verbatim Transcript, February 26, 1972, Vol. IV, p. 1014. That some states have required that justices of the peace be licensed attorneys does not render that practice of constitutional magnitude. Egelhoff, 518 U.S. at 51, 116 S. Ct. at 2021. ¶28 We find persuasive the reasoning of jurisdictions that have upheld the constitutionality of non-attorney judges. Similar to New Mexico’s municipal judges in Tsiosdia, Montana justices of the peace are required to be educated and trained in the law 16 before entering upon the duties of office. Sections 3-1-1502, 3-10-202(2), MCA. After each general election, justices of the peace must take a certification test, which covers subjects commonly encountered by judges of courts of limited jurisdiction. Rules for Courts of Limited Jurisdiction Training and Certification of Judges, Rule 6. Each justice of the peace is required to attend “two mandatory annual training sessions supervised by the supreme court.” Section 3-10-203(2), MCA. “Failure to attend [the mandatory training sessions] disqualifies the justice of the peace from office and creates a vacancy in the office.” Section 3-10-203(3), MCA. In addition, the Commission on Courts of Limited Jurisdiction has developed numerous educational and training resources to assist justices of the peace in their duties, including a Deskbook, a Benchbook, an evidence manual, and a DUI manual. The Commission on Courts of Limited Jurisdiction, Courts of Limited Jurisdiction: Training Guides and Manuals, courts.mt.gov, http://courts.mt. gov/lcourt (https://perma.cc/S7N8-G2UB). The training and testing create “procedural safeguards,” Patterson, 432 U.S. at 210, 97 S. Ct. at 2327, to help ensure that Montana justices of the peace are “unbiased and reasonably intelligent person[s] [who] should be able to choose fairly between” two espoused viewpoints and whose “[f]airness in this context is not critically dependent upon the judge being a member of the bar,” Tsiosdia, 547 P.2d at 555. ¶29 We conclude that, even without the right to trial de novo, a district court’s appellate review procedures sufficiently safeguard a defendant’s due process rights. Similar to the Wyoming Supreme Court’s determination in Canaday, we conclude that the justice court record combined with district court appellate review provide “an 17 opportunity for a meaningful and complete judicial review by a law-trained judge.” Canaday, 687 P.2d at 900. Montana district court judges must be admitted to practice law in Montana. Section 3-5-202(1), MCA. When acting as an appellate court, district court judges review questions of law and mixed questions of law and fact de novo. Duffy v. State, 2005 MT 228, ¶ 10, 328 Mont. 369, 120 P.3d 398. While evidentiary rulings and decisions regarding jury instructions generally are reviewed for an abuse of discretion, the trial court’s discretion must be “guided by the rules and principles of law,” and jury instructions must “fully and fairly instruct the jury on the applicable law.” State v. Ring, 2014 MT 49, ¶¶ 12-13, 374 Mont. 109, 321 P.3d 800. To the extent a discretionary ruling is based upon a conclusion of law, review is de novo. Ring, ¶ 12. Factual findings are reviewed for clear error. Stanley, ¶ 25. ¶30 In other words, all issues involving interpretation and application of the law are decided by the appellate court on the basis of the law, without according deference to the trial court. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727 (citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2536, 333 (2d ed., West 1955); accord 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2536, 238 (2d ed., West 2006)). The deferential standards of review are reserved for such matters as determinations of fact and trial administration. Decisions that are purely discretionary are reviewed for an abuse of discretion. In matters of discretion and fact-finding, a license to practice law is not necessarily required to ensure a fair and unbiased proceeding. On appellate review, the district court has the power to “affirm, reverse, or amend any appealed order or judgment 18 and may direct the proper order or judgment to be entered or direct that a new trial or further proceeding be had in the court from which the appeal was taken.” Section 3-10- 115, MCA. Accordingly, with the full record of trial before it, the requisite standards of review empower the district court’s lawyer-judge to ensure that appeals from justices courts are heard on a legally adequate record and that the record supports the conviction with evidence that has been received in compliance with constitutional and statutory standards. ¶31 Moreover, when a district court functions as an intermediate appellate court from a lower court of record, this Court reviews the appeal as though it was originally filed in this Court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461. We “examine the record independently of the district court’s decision,” reviewing the justice court’s legal conclusions for correctness. Stanley, ¶ 26. “Our ultimate determination is whether the district court, in its review of the trial court’s decision, reached the correct conclusions under the appropriate standards of review.” Stanley, ¶ 26. Consequently, our court structure and the appeals system ensure that a defendant’s case in a justices court of record includes opportunity for a complete and meaningful de novo review of legal issues by law-trained judges. We find no basis upon which to conclude that properly trained non-lawyer judges are incapable of making factual determinations or exercising discretion appropriately, or that a license to practice law would improve their ability to do so. Accordingly, we conclude that Davis’s right to due process of law was not violated by having a trial before a non-lawyer justice of the peace without a trial de novo in the District Court. 19 ¶32 2. Whether Davis’s trial before a non-lawyer justice of the peace deprived him of his constitutionally-guaranteed right to effective assistance of counsel. ¶33 The District Court declined to find that Davis’s right to counsel was violated when he was not allowed a trial de novo before a lawyer-judge. The court concluded that “[t]he crucial factor, from the standpoint of right to counsel, is that the defendant has an attorney guarding and protecting the rights of the defendant. Accordingly, the absence of an attorney-judge does not violate the defendant’s right to counsel.” ¶34 Davis argues that this Court “could” hold “that the lack of a lawyer-judge deprives criminal defendants of the right to constitutionally meaningful counsel.” Davis claims that Vermont’s and Tennessee’s supreme courts have found that failing to provide a lawyer-judge can violate the right to counsel. Conceding that the Court declined in North to address the issue of non-lawyer justices of the peace as it may affect the right to counsel, Davis relies on Justice Stewart’s dissent to conclude that an “essential assumption behind the right to counsel is that the judge ‘will be able to understand what the defendant’s lawyer is talking about.’” North, 427 U.S. at 342, 96 S. Ct. at 2716 (Stewart, J., dissenting). Davis relies on the dissent in Canaday for the same proposition. ¶35 In contrast, the State argues that most courts have rejected Davis’s contention that the right to trial before a lawyer-judge is a necessary corollary to the right to counsel. The State argues that the purpose of the right to counsel is “to level the playing field at trial, not because . . . lay persons are incapable of understanding the law or presenting a competent defense because they have not attended law school and passed a bar examination.” In any event, the State points out that a judge is not an adversary and 20 therefore would “in no way level the playing field” because the judge’s functions are “purely judicial,” involving “evaluat[ing] the arguments presented by counsel fairly and impartially [and] exercise[ing] good judgment and discretion in deciding those arguments.” ¶36 We have not yet determined whether a trial before a non-lawyer justice of the peace denies a defendant his or her constitutionally-guaranteed right to counsel. Other jurisdictions, however, have addressed the issue. Both the Kentucky Court of Appeals and the South Carolina Supreme Court have recognized, The function of the court is not to defend the accused, or to represent him, but to decide fairly and impartially. An accused needs counsel to defend him . . . because the government employs lawyers to prosecute him . . . . But the judge is not one of the accused’s adversaries and is not there either to defend or to prosecute him. So the fact that the accused needs a lawyer to defend him does not mean that he needs to be tried before a lawyer judge. Ditty v. Hampton, 490 S.W.2d 772, 774-75 (Ky. Ct. App. 1972); Duncan, 238 S.E.2d at 208 (quoting Ditty, 490 S.W.2d at 775). Accord Amrein v. State, 836 P.2d 862, 864 (Wyo. 1992) (concluding that “the performance of an accused’s lawyer is not per se impaired when a lay judge presides over the accused’s misdemeanor trial”). Similarly, in Tsiosdia, the New Mexico Supreme Court emphasized that due to the adversarial nature of our legal system, “the guardianship of defendant’s rights lies chiefly with his attorney, not the judge.” Tsiosdia, 547 P.2d at 555. ¶37 We find the reasoning of these jurisdictions informative to our analysis. We agree that the right to counsel stems from the notion that a balanced adversarial system—between the prosecution and the defense—is important to a fair trial. The Sixth 21 Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee the right to counsel. “The purpose of the right to counsel is to insure that the defendant receives a fair trial.” Wilson v. State, 1999 MT 271, ¶ 12, 296 Mont. 465, 989 P.2d 813 (citing Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063 (1984)), overruled in part on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817. Fairness, in the context of the right to counsel, “envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. “The right to counsel plays a crucial role in the adversarial system” because “access to counsel’s skill and knowledge is necessary to accord the defendants the ample opportunity to meet the case of the prosecution.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063 (citation and internal quotation marks omitted). ¶38 Judges in our adversarial system play an independent and impartial role in the system. M. C. Jud. Cond., Preamble [1]. Judges are not one of the accused’s adversaries and are not there to defend or prosecute an accused. Ditty, 490 S.W.2d at 775. The right to counsel serves “to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023 (1938). This protection comes from an attorney acting on the accused’s behalf. As noted in Issue 1, should it occur that the arguments of a defendant or of defense counsel are heard by a non-lawyer justice of the peace, who erroneously applies the law, the defendant may appeal, demonstrate the error to the district court, and receive a new trial. Section 3-10-115, MCA. 22 ¶39 Additionally, the right to counsel does not stand for the proposition that non-lawyers are incapable of understanding the law or presenting a competent defense. See Faretta v. California, 422 U.S. 806, 835, 95 S. Ct 2525, 2541 (1975). A defendant may waive the right to counsel, so long as the court determines the waiver is voluntary, knowing, intelligent, and unequivocal. City of Missoula v. Fogarty, 2013 MT 254, ¶ 12, 371 Mont. 513, 309 P.3d 10 (citing Faretta v. California, 422 U.S. at 835, 95 S. Ct. at 2541; § 46-8-102, MCA). “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation . . . .” Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. Moreover, “it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense.” Faretta, 422 U.S. at 834, 95 S. Ct. at 2540. We decline to interpret the right to counsel as meaning that non-lawyer judges are incapable of understanding legal arguments. ¶40 While fairness requires that a defendant has the right to be represented by legal counsel in order to meet the case of the prosecution and ensure protection of the accused’s rights, it does not follow that the trial in such a case must be presided over by a lawyer. Accordingly, we conclude that requiring Davis to proceed to trial before a non-lawyer justice of the peace did not violate his constitutionally-guaranteed right to effective assistance of counsel. 23 CONCLUSION ¶41 For the foregoing reasons, the District Court’s decision and order are affirmed. We hold that Davis’s trial before a non-lawyer justice of the peace, even though trial de novo was not available on appeal, did not violate his constitutional right to due process or to effective assistance of counsel. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE

May 10, 2016

3b05af66-c242-4c26-8f47-9724c7dee3b1

LAUTERJUNG v JOHNSON

N/A

13620

Montana

Montana Supreme Court

No. 13620 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 CARL LAUTERJUNG, Plaintiff and Appellant, CARLTON J. JOHNSON, Defendant and Respondent. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Vadala, Schwickert & Hanson, Kalispell, Montana Randy Schwickert argued, Kalispell, Montana For Respondent: Brown, Pepper and Kommers, Bozeman, Montana William L. Pepper arqued, Bozeman, Montana Submitted: October 3, 1977 Decided: QEC 18 @fl Filed: a ~ o 2 $ IE~ Mr. Justice Frank I . Haswell delivered the Opinion of the Court. This case concerns the interpretation and effect of a partnership dissolution agreement entered into by appellant and respondent. Appellant brought this action to recover damages alleged to have been due him under the partnership dissolution agreement. Respondent counterclaimed for the sum of $2,000. The District Court entered judgment in favor of respon- dent for the sum of $2,000 on the grounds that the agreement was ambiguous and that the ambiguity should be construed against the appellant in light of the fact that he prepared the agreement. The District Court found that the damages claimed by appellant were not of a type for which respondent agreed to be responsible and were incurred prior to a final testing or inspec- tion of certain work the partnership was obligated to perform. The court concluded that respondent was only responsible for ex- traordinary expenses of the partnership incurred subsequent to the final testing or inspection. The court further concluded that damages incurred by appellant subsequent to the said final testing or inspection were not extraordinary and that appellant owed respondent the sun of $2,00O,together with interest from December, 1974. Following the entry of judgment, appellant moved to amend the findings of fact, conclusions of law and judgment. Appellant's motion was denied and he now appeals to this Court. In the summer, 1973, appellant and respondent entered into an oral partnership agreement creating the Trails End Construc- tion Company. The partnership was engaged in the business of con- structing water, sewer and sanitary sewer lines. In November, 1973, the partnership entered into a contract with Rural Special Improvement District No. 305 at Big Sky, Montana, to install a sanitary sewer line. Respondent undertook the responsibility of supervising all field work involved in installing the sewer line. Appellant assumed the administrative and managerial duties on behalf of the partnership. The partnership began work on the sewer line in November, 1973. By April, 1974, the sewer line was approximately 92% com- pleted. On April 13, 1974, appellant and respondent agreed to dissolve their partnership and the agreement in question was signed. Appellant prepared the dissolution agreement. Prior to the dis- solution appellant had expressed concern with the quality of the work on the Big Sky project. Under the terms of the dissolution agreement, appellant agreed to complete the construction of the sewer line and to pay respondent the sum of $5,000. $3,000 of this amount was paid at the time the agreement was signed and the remaining $2,000 was to have been paid at the time the partnership received final payment from Rural Special Improvement ~istrict No. 305. The $2,000 pay- ment was not made and is the basis for respondent's counterclaim. The agreement provided as follows in regard to the com- pletion of Rural Special Improvement District No. 305: "It is further agreed that Lauterjung will be solely responsible for all existing liabilities of the partnership with the exception of Rural Special Improvement District #305 located in Gallatin and Madison Counties, Montana. With regard to R.S.I.D. 305 it is agreed that Lauter- jung will complete the work required on said project but due to the fact that Johnson has previously been primarily involved in the project and due to the fact that there may be required a testing of the installation involved in this pro- ject; if such testing or inspection shows a de- ficiency which results in expense which normally would not have been incurred as a part of said project, it is agreed that the parties shall share such expense equally." As a result of the continuing testing and inspection of the project, deficiencies were revealed which allegedly resulted in abnormal expenses totaling $15,791.64. Appellant demanded one-half of this amount or $7,895.82 from respondent on March 22, 1975. Following respondent's failure to respond this action was commenced. Two issues are before this Court upon appeal: (1) Whether the evidence supports the ~istrict Court's finding of fact and conclusion of law that the dissolution agree- ment was ambiguous concerning the meaning of the terms "testing or inspection". (2) Whether the evidence supports the District Court's findings of fact and conclusions of law that respondent's lia- bility under the dissolution agreement was only for certain ex- traordinary partnership expenses arising as a result of a final testing or inspection. This Court recently stated in Luppold v . Lewis, Mont. , 563 P.2d 538, 540, 34 St.Rep. 227 (1977), that: "When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such findings and conclusions will not be disturbed if supported by substantial evidence and by the law. Compton v. Alcorn, 1 4 0 n t . , 557 P.2d 292, 33 St.Rep. 1186 (1976); Brady v. State Highway Cornm'n, 163 Mont. 416, 517 P.2d 738; Timerman v. Gabriel, 155 Mont. 294, 470 P.2d 528; Wash. Water Power Co. v. Morgan Electric Co., 152 Mont. 126, 448 P.2d 683. When reviewing evidence it will be viewed in the light most favorable to the prevailing party in the district court, and the credibility of witnesses and the weight assigned to their testi- mony is for the determination of the district court in a nonjury trial. (Citations omitted.) " The crux of appellant's first issue is a determination of whether that portion of the dissolution agreement dealing with the testing and inspection of the Big Sky job is ambiguous. Appel- lant specifically takes issue with the District Court's finding that the phrase " * * * if such testing or inspection shows a de- ficiency which results in expense which normally would not have been incurred as a part of said project, it is agreed that the parties shall share such expense equally" is ambiguous. Appellant argues that the testing or inspection referred to is the interim testing. Respondent, however, argues that his liability, if any, arose as a result of a final testing of the project. We find an abundance of substantial evidence in the record which supports the District Court's finding of ambiguity. Appel- lant's Exhibit W 1 is a copy of the job specifications prepared for the Big Sky job. A reading of these specifications clearly re- veals that periodic tests and inspections as well as a final test were contemplated. Several types of tests were required to be performed at various stages in the construction. Appellant him- self testified that his understanding of the term inspection meant that the owner or his engineer had the right to inspect the mater- ials and workmanship at any time during construction. It is clear therefore that the dissolution agreement is ambiguous in regard to defining which inspection triggered respondent's duty to share the cost of modifications or corrections to the sewer line. The core of appellant's second issue is a determination of whether the District Court correctly ruled that respondent was responsible for extraordinary partnership expenses arising as a result of the final test or inspection only. In cases of uncertainty as to the meaning of a contract this Court has repeatedly followed the rule that the contract should be interpreted most strongly against the party who caused the uncertainty to exist. Section 13-720, R.C.M. 1947; Miller v. Walter, 165 Mont. 221, 527 P.2d 240; Miller v. Meredith, ill and Whitfield, 149 Mont. 125, 423 P.2d 595. Appellant drafted the dissolution agreement so we must construe its terms most strongly against him in determining the intent of the parties. The District Court ruled that the parties intended that appellant and respondent share the cost of modification or repair of the sewer line which was required after final inspection. Appellant's argument that the testing and inspection contemplated by the parties was an interim testing simply was not accepted by the District Court. Substantial evidence is found in the record to support this ruling. Respondent testified concerning his understanding of the dissolution agreement: " Q . Did you have any discussions with the Plain- tiff concerning the meaning of that language at the time you signed it? A. I asked him about it and he just clarified what I had already thought. "Q. What were the substances of those discussions? Just summarize it. A. Well, I asked him what it meant and what it involved. And he said that we had to do a lot of work after the final inspection. He expected me to help him do half of it, which I agreed to do. "Q. Was it your understanding that he agreed to finish the job? A. Yes. "Q. And the words 'Testing and Inspection' used in that paragraph, what did Mr. Lauterjung indicate to you that they meant? A. Well, the testing and final inspection before he sold it to Big Sky. "Q. Did he state that to you? A. Yes. It has been a long time, but I am positive it was." Furthermore, on cross-examination, appellant himself ad- mitted that: "Q. he language 'testing', Mr. Lauterjung, that implies a final testing; is that not correct? A. Yes. I' The judgment of the District Court is affirmed. Justice

December 12, 1977

b3998534-c5c7-48bc-a13a-801ef60bff16

DELONG v DOWNES

N/A

13629

Montana

Montana Supreme Court

No. 13629 IN THE SUPREME: COURT OF THE STATE OF MONTANA 1977 JOE A. DeLONG et al., Plaintiffs and Respondents, -vs- ALEX L. DOWTJES et al., Defendants and Appellants. Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judg& presiding. Counsel of Record: For Appellants: Maore, Lympus and Dor,an, Kalispell, Montana James Moore argued, Kalispell, Montana For Respondents: Patrick M. Springer Kalispell, Montana Norbert F. Donahue Submitted.: December 1, 1977 DEC 2 2 lgn, Decided: , - . --- - M r . Justice John Conway Harrison delivered the Opinion of the Court : This is an action for a declaratory judgment i n i t i a t e d i n the District Court, Flathead County, by the Board of County Commissioners of that county. Defendants are ten individuals whose signatures appear on a Petition for I n i t i a t i v e requesting that the Board place before the general electorate for vote a resolution limiting gambling within Flathead County t o bingo, raffles and g i f t enterprises t o be conducted by religious and charitable organizations. The Board, i n i t s complaint and petition for declaratory judgment f i l e d September 16, 1976, sought judgment that the subject matter of the Petition for I n i t i a t i v e was outside the powers and jurisdiction of any board of county commissioners and that it be enjoined and restrained from placing a resolution pursuant t o the petition on the ballot for submission t o the general electorate. The City of Kalispell received a similar petition and moved the District Court t o intervene as a p l a i n t i f f . Supported by stipulation of the parties, an order authorizing intervention was issued by the court on September 22, 1976. The cause was submitted upon the pleadings of the respective parties. The'District Court, the Hon. Robert C. Sykes presiding, i n i t s order containing findings of fact and conclusions of l a w , dated September 30, 1976, concluded the Board and City were without jurisdiction t o prohibit certain gambling a c t i v i t i e s , and without power t o l i m i t issuance of gambling licenses t o non- p r o f i t religious and charitable organizations. The court there- fore restrained the Board and City from placing the proposed resolutions on the ballot. Defendants, individual signators of the petition, appeal the order of the District Court. O n September 3 , 1976, the,-described petitions for i n i t i a t i v e s on gambling, prepared i n accordance with sections 37-301 and 11-1104, R.C.M. 1947, were presented t o the Board and the City Council. The petitions requested that those bodies submit t o the qualified electorate measures t o enact a resolution and an ordinance, respectively, that such bodies: "Section 1. * * * may authorize Bingo, (not Keno) , Raffles o r Gift Enterprises by non-profit religious or charitable organizations within [the City and County]; provided however, that a l l other forms of gambling, l o t t e r i e s o r g i f t enterprises, for whatever purposes, are hereby prohibited * * *. "Section 2. A l l acts, ordinances, resolutions, regulations o r rules of [the City and County] i n con- f l i c t with t h i s a c t are hereby repealed." (Bracketed material paraphrased). There i s no question as t o the validity of the petitions o r the manner i n which they were prepared o r certified. The City and County refused t o honor the petitions, on the ground the requested measures were outside the powers and jurisdiction of the respective bodies t o enact and were, there- fore, improper subjects for i n i t i a t i v e . The instant action ensued. The issue to be resolved on t h i s appeal is: Does a resolution which specifies the types of gambling to be licensed and l i m i t s the nature of organizations or individuals t o be li+bensea for gambling constitute a proper subject for public i n i t i a t i v e within the legislative jurisdiction and powers of the City of Kalispell and County of Flathead? The thrust of appellants' argument is that local units of government have the power and jurisdiction, pursuant t o the Montana gambling statutes, section 62-701 et.seq., R.C.M. 1947, to limit and control, as well as authorize, gambling and the various forms thereof. Such limitation, it is argued, may be accomplished by way of initiative or referendum, submitted to the qualified voters in such jurisdictions. We cannot sustain this position. A county possesses and can exercise only such powers as are conferred on it by the Constitution and statutes of the state, or such powers as arise by necessary implication from those expressly granted, or such as are required for performance of duties imposed on it by law. Hersey v. Neilson, 47 Mont. 132, 131 P. 30 (1913); Roosevelt County v . State Board of Equalization, 118 Mont. 31, 162 P.2d 887 (1945); Helena Gun Club v. Lewis and Clark County, 141 Mont. 490, 379 P.2d 436 (1963). Therefore, beyond the express powers delegated counties by virtue of section 16-801 et.seq., R . C . M . 1947, and those necessarily implied therefrom, counties are without powers. Any reasonable doubt concerning the existence of a power should be resolved against a county's exercise of that power. Sullivan v . Big Horn County, 66 Mont. 45, 212 P. 1105 (1923); Bignell v. Cumins, 69 Mont. 294, 222 P. 797 ( 1 9 2 3 ) . Cites and towns are similarly limited in their exercise of legislative powers. Sharkey v. City of Butte, 52 Mont. 16, 155 P. 266 ( 1 9 1 6 ) ; Penland v. City of Missoula, 132 Mont. 591, 318 P.2d 1089 (1957); Leischner v. City of Billings, 135 Mont. 109, 337 P.2d 359 ( 1 9 5 9 ) . The Montana Card Games Act and the Bingo and Raffles Law, section 62-701 et.seq., R.C.M. 1947, by their express terms authorize various forms of gambling. Sections 62-703, 62-717. The gambling acts contain a delegation of authority t o c i t i e s , towns and counties, by t h i s language i n sections 62-708 and "The governing body authorized t o issue gambling licenses pursuant t o t h i s a c t may establish by ordinance or resolution regulations governing the qualifications for and the issuing, suppression, and revocation of such gambling licenses. * * *" Theabsve statutes make plain, the sole power delegated t o the local governing bodies is a discretionary power t o regu- l a t e the licensing of gambling. The statutes reveal no language empowering the local units t o prohibit "authorized" forms of gambling i n t h e i r entireties. Neither is such prohibition properly implied from an exercise of licensing power. Thus, neither the City of Kalispell nor Flathead County has the power o r jurisdiction to l i m i t or altogether prohibit certain forms of gambling within i t s jurisdiction by way of ordinance o r resolution. Nor can local gambling restrictions be properly considered an implied exercise of police powers by the local governing bodies. It is entirely conceivable that a group of citizens i n a given locality may desire t o l i m i t o r prohibit a c t i v i t i e s such as gambling on the basis of a perceived adverse moral and economic impact upon their community. However, the Montana Legislature expressly chose t o regard the question of gambling a s a matter of statewide, as contrasted with local, concern. I n effect, the legislature has preempted the field with regard t o the authoriza- tion of certain forms of gambling and card games. In State ex rel. City of Libby v. Haswell, 147 Mont. 492, 414 P.2d 652 (1966), a case concerning a conflict, such as the instant one,in the area of liquor control, t h i s Court recognized the applicable principle: "* 9; * when the s t a t e has exercised a power through i t s s t a t u t e s which c l e a r l y show t h a t the s t a t e l e g i s l a t u r e deems the subject matter of the l e g i s l a t i o n t o be a matter of general statewide concern rather than a purely l o c a l municipal pro- blem, the c i t y is then without the e s s e n t i a l authority o r power t o pass o r adopt any ordinance dealing with the subject matter." 147 Mont. 495. See also: City of Billings v. Herold, 130 Mont. 138, 296 P.2d 263 (1956); State ex r e l . Wiley v. D i s t r i c t Court, 118 Mont. City of Bozeman v. Ramsey, 139 Mont. 148, 362 P.2d 206 (1961) and Town of White Sulphur Springs v. Voise, 136 Mont. 1, 343 P.2d 855 (1959), while factually analogous t o the i n s t a n t case, a r e c l e a r l y distinguishable. I n those cases challenges were made t o the j u r i s d i c t i o n of l o c a l governmental bodies re- garding c e r t a i n l o c a l t r a f f i c regulations alleged t o be preempted by s t a t e s t a t u t e s . However, the s t a t e s t a t u t o r y scheme there i n question, the 1957 amendment t o the Uniform Act Regulating T r a f f i c , granted express authority t o l o c a l a u t h o r i t i e s t o so regulate t r a f f i c , a s an exercise of the police power. Such cases have no application where, a s here, the l e g i s l a t i v e grant of power t o l o c a l u n i t s of government is patently absent. Appellants would have us hold the gambling a c t s confer upon l o c a l governments a "local option" i n permitting o r pro- h i b i t i n g gambling i n t h e i r respective jurisdictions. It i s argued the l e g i s l a t i v e provision t h a t l o c a l a u t h o r i t i e s "may" issue licenses implies a l e g i s l a t i v e i n t e n t t o create a l o c a l option concerning gambling. Sections 62-707, 62-719. Such a position is untenable. It i s axiomatic t h a t l e g i s l a t i v e i n t e n t i s f i r s t t o be ascertained from the language of the lawmakers. Green v. C i t y of Roundup, 117 Mont. 249, 157 P.2d 1010 (1945). W e conclude, from the plain language of the gambling acts, that the legislature intended t o grant minimal power t o the local governments regarding regulation of gambling, such power being confined t o a discretionary licensing power. W e therefore hold that local governmental bodies a r e without the power, under the Montana Card Games Act and the Bingo and Raffles Law t o l i m i t or prohibit gambling and the approved forms thereof, except a s expressly provided by such a c t s , within t h e i r respective jurisdictions. Accordingly, the order of the District Court restraining respondents from placing the proposed resolutions on the ballot for submission t o the general electorate i s affirmed. W e Concur: -

December 22, 1977

96e93ad9-f7e9-44ad-a260-318bec6e8f6e

ERICKSON v PERRETT

N/A

13762

Montana

Montana Supreme Court

No. 13762 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 TYYRA J. ERICKSON, Plaintiff and Appellant, -vs- LUELL J. PERRETT, Defendant and Respondent. Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Boone, Karlberg and Haddon, Missoula, Montana Sam E. Haddon argued, Missoula, Montana For Respondent : George, Williams and Benn, Missoula, Montana Shelton C. Williams argued, Missoula, Montana Submitted: December 1, 1977 ~ecided:DEC 1 9 j9f. -c; 59 1 . 1 7 Filed: - Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This is an action for damages allegedly resulting from an automobile accident in which plaintiff's car was struck from behind by defendant's car. The original trial resulted in a jury verdict for the defendant on the issue of liability. On appeal this Court granted a new trial on the basis that the jury had ignored proof of,negligence and proof of property damage. Erickson v. Perrett, 169 Mont. 167, 545 P.2d 1074, 1078, 33 St. Rep. 109 (1976). In the new trial plaintiffs, Tyyra and Nils Erickson, received a directed verdict against the defendant on the issue of liability. On the issue of damages the jury awarded Nils Erickson the full amount of damages to his car, but awarded no damages to Tyyra Erickson for injuries allegedly caused by the accident. Tyyra Erickson appealed. On this appeal Mrs. Erickson asserts that her motion for a new trial was improperly denied on two grounds: (1) Inadequate damage award, (2) jury misconduct prejudicial to plaintiffs occurred. Mrs. Erickson contends that the automobile accident caused a whiplash injury resulting in severe headaches, excruciating pain in her neck, numbness in her right arm and hand, and nervous- ness. In March, 1973, she underwent a spinal fusion to correct a herniated disc which she alleges resulted from the accident. Prior to the accident, Mrs. Erickson worked full-time as a foreman in a meat packing plant. Since the accident, she has not returned to work allegedly because of the pain in her neck and her limited neck movement due to the spinal fusion. Defendant, Luell J. Perrett, maintains that Mrs. rickso on's neck problems resulted from pre-existing arthritic and degener- ative disc conditions. He contends that the impact from the car accident was too minimal to have aggravated those pre-existing conditions. Additionally, he argues Mrs. rickso on's medical records demonstrate that many of the symptoms of which she com- plained were symptoms she also had experienced at various times prior to the accident. The issue of inadequate damages is governed by our de- cision in Holenstein v. Andrews, 166 Mont. 60, 530 P.2d 476 (1975). In Holenstein the plaintiff was involved in an automobile accident for which the defendant admitted liability. Plaintiff contended that the accident aggravated a pre-existing arthritic and degenerative disc problem, but the jury awarded her no dam- ages. Although there was no direct evidence that plaintiff's pre-existing conditions were not aggravated by the accident, we held there was sufficient circumstantial evidence presented to support the jury's verdict. In the present case, seven doctors testified as to the causal relation between Mrs. Erickson's neck problems and the car accident. Dr, Burton, a Missoula orthopedic surgeon, ex- amined Mrs. Erickson on February 13, 1973. In this examination he found no nerve damage in her neck, no numbness, normal motion of her neck without much pain when moving her neck, no actual bone injury nor any ruptured ligaments. He checked for and found no evidence of a ruptured disc. He concluded that the accident did not worsen or affect Mrs. Erickson's cervical spine disease. Another Missoula orthopedic surgeon, Dr. Jacobsen, examined Mrs. Erickson prior to both of the trials. Based on his exam- ination and a review of X-rays of Mrs. Erickson's neck taken both before and after the accident, he could not say as a matter of reasonable medical certainty that the accident caused any of Mrs. Erickson's problems. He testified there was no medical probability that the accident was the cause of her problems. We hold that this evidence is sufficient to support the jury's verdict that Mrs. Erickson's damages did not result from the automobile accident. Plaintiff argues that the jury cannot disregard the medical testimony of Dr. Albert Harris regarding the cause of her herniated disc. Dr. Harris, the neurosurgeon who discovered Mrs. Erickson's herniated disc and performed the spinal fusion, concluded that the automobile accident caused the herniated disc. The jury was instructed: "A witness who has special knowledge, skill, experience, training or education in a particular science, profession or occupation may give his opinion as an expert as to any matter in which he is skilled. In determining the weight to be given such opinion, you should consider the qualifica- tions and credibility of the expert and the reasons given for his opinion. You are not bound by such opinion. Give it the weight, if any, to which you deem it entitled. "In resolving any conflict that may exist in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the relative qual- ifications and credibility of the expert witnesses, as well as the reasons for each opinion and the facts and other matters upon which it is based." (Emphasis added.) Dr. Harris based his opinion in part on Mrs. Erickson's version of the severity of the automobile accident and what she told him of her prior medical history. Defendant intro- duced evidence that sharply conflicted with plaintiff's version of the severity of the impact. He also showed that Mrs. Erickson did not relate to her examining doctors her history of medical problems and a head injury she had sustained prior to the auto- mobile accident. Additionally, other medical experts testified that the automobile accident was not the cause of Mrs. Erickson's neck problems. instructions Under the evidence presented and the jury/given, the jury could properly disregard Dr. Harris' testimony. Plaintiff argues that Holenstein is distinguishable from the instant case and therefore, not controlling. She bases this argument on the fact that in the instant case the auto- mobile accident allegedly caused a herniated disc in her neck, a fact not present in Holenstein. This distinction makes no difference. In EIolenstein the plaintiff contended the auto- mobile accident "aggravated a pre-existing arthritic and degen- erative disc problem in her neck". Holenstein v. Andrews, 166 Mont. 60, 62, 530 P.2d 476 (1975). In the instant case Mrs. Erickson also suffered from a pre-existing arthritic and degen- erative disc problem which she claims was aggravated by the automobile accident. Holenstein is, therefore, controlling. The second basis Mrs. Erickson urges for a new trial is jury misconduct. On the last day of the trial several of the jurors inadvertently saw defendant's car during the noon recess where it was parked outside the courthouse. Conflicting testimony as to the amount of damage done to defendant's car had been introduced at trial to demonstrate the severity of impact between the two cars. Plaintiffs testified that one of defendant's headlights was broken in the collision. In contrast, defendant introduced photographs showing the dam- age to his car in which there were no broken headlights. To settle this dispute, defendant moved that the jury be allowed to view his car. The District Court denied this motion feeling it was inappropriate for the jury to see the car. Section 93-5603, R.C.M. 1947, provides that a new trial may be granted when there has been jury conduct materially affecting the substantial rights of the complaining party. Not every act of jury misconduct, however, mandates a new trial. See, e.g., Schmoyer v . Bourdeau, 148 Mont. 340, 420 P.2d 316 (1966); Nelson v. C. & C. Plywood Corp., 154 Mont. 414, 465 P.2d 314 (1970). The alleged jury misconduct must affect a material matter that is in dispute and must prejudice the complaining party. Schmoyer, supra; Nelson, supra. The plaintiff cites in support of her position Goff v. Kinzle, 148 Mont. 61, 417 P.2d 105 (1966). In Goff the foreman of the jury went to the scene of the car accident the night before the case went to the jury. He spent 30 to 45 min- utes conducting experiments and then prepared a map of the scene. He showed all of this to the jury the next day. In Goff the materiality of the foreman's investigations to the plaintiff's case and the prejudice to plaintiff was ob- vious. Such is not the situation in the present case. Affi- davits by the jurors who saw defendant's car stated that they did not search out the car, nor did they make any measurements or tests regarding the damage done to it. Other jurors by affidavit swore that no juror provided any new or different in- formation concerning the condition of defendant's car. We, therefore, find no prejudice in this case. Judgment affirmed. Justice Justices

December 19, 1977

d3e69a21-2088-4f2d-8303-6e0a5de0b897

MURRAY v MONT INS GUARANTY ASSN

N/A

13835

Montana

Montana Supreme Court

No. 13835 IN THE SUPREME COURT OF THE STATE OF MONTANA DONALD MURRAY, Plaintiff and Respondent, MONTANA INSURANCE GUARANTY ASSOCIATION an urbcorporated legal entity, Defendant and Appellant, and NATIONAL FARMERS UNION INSURANCE COMPANY, a corporation, Defendants and Respondents. Appeal from: District Court of the Fifth Judicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellant: Keller, Reynolds and Drake, Helena, Montana Paul T . Keller argued, Helena, Montana For Respondents: Landoe, Gary & Planalp, Bozeman, Montana Joseph B. Gary argued, Bozeman, Montana Schulz, Davis and Warren, Dillon, Montana 1 . 3 ., \977 Filed: . ' Submitted: December 7, 1977 Decided: DEf: 3 8 12;; Mr. Justice John C. Harrison delivered the Opinion of the Court. Plaintiff Donald Murray instituted this action against the Montana Insurance Guaranty Association (hereinafter referred to as "the Association"), and alternatively against National Farmers Union Insurance Company, to recover a settlement claim of $6,500. The Association appeals from the judgment of the District Court, Beaver- head County, dismissing the action as to Farmers Union and the denial of a motion to dismiss submitted by the Association. On July 15, 1974, a logging truck owned by Nice Log Hauling was proceeding north on Highway 91 near Divide, Montana. The driver made a left turn causing an oncoming car to go out of control and strike a car in which plaintiff was a passenger. Plaintiff was injured in the accident. Plaintiff commenced negotiations for a settlement with Manufacturers and Wholesalers Indemnity Exchange, the insurer for Nice Log Hauling. On November 15, 1975, a settlement was reached under which Manufacturers & Wholesalers agreed to pay plaintiff the sum of $6,500. Before any payment was made, Manu- facturers & Wholesalers was declared insolvent in the State of Colorado. The Association took over claims against the insolvent company pursuant to the provisions of sections 40-5701 et seq., R.C.M. 1947. It disallowed plaintiff's claim on the ground that section 40-5712, R.C.M. 1947, provides for nonduplication of recovery, and that plaintiff could recover the full amount of the claim under his own "uninsured motorist" policy issued by Farmers Union. The policy provides, in pertinent part: (c) ' u e u r e d automobile ' means : "(1) an automobile with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such auto- mobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coveraae thereunder: * * * ". (Emphasis added The Association contends that the insurer denied coverage within the meaning of the policy when it became unable to pay the settlement due to insolvency. This is a question of first impression in Montana. In interpreting the phrase "denies coverage" we are mind- ful of the general rule that "The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning * * *." Section 13-710, R.C.M. 1947. Webster's Third New International Dictionary defines, in part, the word "deny" at p. 603: " * * * to refuse to recognize or acknowledge: withhold acknowledgement from: disclaim con- nection with, allegiance to, or responsibility to or for * * * " . Clearly, as used in its ordinary and popular sense, the phrase "denies coverage" connotes some type of affirmative activity by the insurer. A consistent and logical definition is found +-1 in Seabaugh v. Sisk, 413 S.W.2d 602, 609 (Mo;. 1967), quoting Uline v. Motor Vehicle Accident Indeminification Corp., 28 "'to deny coverage' (i.e. 'to take the position that for some reason or other the policy does not encompass the particular accident') * * *." Here it is plain that Manufacturers & Wholesalers did not deny coverage. For over a year, the company negotiated with plaintiff and finally agreed to settlement under which it expressly admitted that it owed plaintiff the sum of $6,500. Only the insurer's inability to pay prevented plaintiff from recovering the full amount of the settlement. We do not think it tenable that Farmers Union, by contracting to cover situations in which the original insurer "denies coverage", agreed to be responsible for a claim that is sixteen months old and has already been negotiated and settled with the original insurer. An ambiguous insurance contract will be liberally construed against the insurer. Mountain West Farm Bureau v. Neal (1976), 169 Mont. 317, 547 P.2d 79, 33 St.Rep. 193. However, there is no am- biguity here. We cannot equate the phrase "denies coverage", with "becomes unable to pay the claim due to insolvency". Sea- baugh v. Sisk, supra; Farkas v. Hartford Accident & Indemnity Co., 285 Minn. 324, 173 N.W.2d 21 (1969). We are aware that a majority of jurisdictions facing this issue have reached the opposite conclusion. See, e.g.: Winans v. Hartford Accident Indenmity Co., 25 Mich. App. 75, 181 N.W.2d 17 (1970) ; McCaffery v . St. Paul Fire & Marine Ins. Co., 108 N.H. 373, 236 A.2d 490 (1967); Katz v. American Motorist Insurance Co., 244 Cal.App.2d 886, 53 Cal.Rptr. 669 (1966); State Farm Mutual Automobile Ins. Co., v. Brower, 204 Va. 887, 134 S.E.2d 277 (1964). The reasoning of these decisions is generally that coverage is just as effectively denied when the insurer is unable to pay as when the insurer voluntarily refuses to pay. Running through all of these decisions is the theory that the insurance policy in question must be liberally construed in light of the remedial pur- poses of the uninsured motorist statutes. Since the paramount concern of this legislation is the protection of the public from losses caused by uninsured motorists, insurance policies issued in conformance with such legislation have often been interpreted liberally to effectuate this goal. Such compelling legislative direction does not exist in this State regarding this question. Motorists have the protection of a requirement that uninsured motorist coverage be offered but they also have the option to decline such coverage. Section 40-4403, R.C.M. 1947. Situations involving the insolvency of an insurer are more directly covered by the Montana Insurance Guaranty Association Act. The purpose of this act is expressed in section 40-5702, R.C.M. 1947: "Purpose. The purpose of this act is to pro- vide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an assoc- iation to assess the cost of such protection among insurers." This act is to be liberally construed to effectuate its stated purpose. Section 40-5704, R.C.M. 1947. The application of this act to cases such as the one presented here protect the innocent victim of a tortfeasor whose insurance company is rendered insolvent just as effectively as a strained judicial construction of the phrase "denies coverage" in the victim's uninsured motorist policy. We find that the subsequent insolvency of the insurer is not a denial of coverage within the meaning of this policy. The judgment of the District Court is affirmed.

December 30, 1977

e6ab87e1-5fec-48b9-8d81-84c1cbb66b38

STATE v LAVE JR

N/A

13427

Montana

Montana Supreme Court

No. 13427 I N T H E SUPREME COURT O F THE STATE O F M O N T A N A 1977 T H E STATE O F MONTANA, P l a i n t i f f and Respondent, ALBERT LaVE, J R . Defendant and Appellant. Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable Charles Luedke, Judqe p r e s i d i n g . Counsel o f Record: For Appellant: Michael J. Whalen arsued, B i l l i n g s , Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana J. Mayo Ashley argued, A s s i s t a n t Attorney General, Helena, Montana Harold Hanser, County Attorney, B i l l i n g s , Montana Submitted: September 26, 1977 F i l e d : T ! O V 1 5 T97? I Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Defendant appeals from his conviction in the District Court, Yellowstone County, of the offense of robbery and his imprisonment in the Montana state prison. On November 12, 1975, defendant Albert LaVe, Jr. allegedly robbed the Food Bank grocery store, located at the corner of Third Avenue South and 27th Street, Billings, Montana, of between $800 and $1,000. No arrest was made at that time. During a murder investi- gation in Los Angeles, California, in January 1976, defendant was arrested by Officer Jerry Marvel of the Los Angeles Police Depart- ment and held on suspicion of murder. Although the Los Angeles Police Department never charged LaVe with the murder, it was dis- covered while he was in custody that he was wanted in Montana on a robbery charge. LaVe was subsequently extradited to Montana to stand trial. At LaVe's trial the prosecutor sought to introduce an "admission" by defendant concerning the robbery in Montana which defendant allegedly made to Officer Marvel while he was under arrest in California. During trial the trial judge held a hearing in his chambers to determine the admissibility of the "admission". At this hearing Officer Marvel testified that on January 13, 1976, a woman identifying herself as LaVe's mother telephoned him and asked him to talk with LaVe about a "deal" LaVe wanted to make concerning the robbery charge in Montana. In exchange for identifying the murderer in the Los Angeles case, LaVe wanted the Los Angeles police to delay returning him to Montana. Marvel testified LaVe's state- ments to him were: " * * *'I have some folks in Montanaf--indicating relatives--[he] said 'They want me for some robberies up there' and he also said, 'They have me pretty good' and also that l i e wanted to stay in the L. A. area or jail as long as he could because he felt he had a better change of beating the case the longer he stayed away." Lave's counsel objected to admitting Marvel's testimony claiming, among other things, that it would be error to mention the fact that LaVe was ever suspected of a murder. He informed the trial judge, however, that if Marvel's testimony was allowed to go before the jury, he would inquire into the circumstances under which LaVe was arrested and made the statement to Marvel. He felt those circumstances were oppressive to LaVe and he claimed they would have a substantial bearing on the weight the jury should give Marvel's testimony. Because of defense counsel's position, the trial judge initially refused to allow any of Marvel's testimony to go before the jury. He felt the chances of connecting LaVe with the murder in Los Angeles, with which he was not charged, were too great. The prosecution later moved for a reconsideration of the trial judge's ruling. After assurances from the prosecutor that he would not associate LaVe with the Los Angeles murder, the trial judge decided to allow Marvel's testimony. Lave's counsel then renewed his prior objections to the ad- mission of Marvel's testimony. In order to avoid interrupting Marvel while he was on the witness stand, defense counsel requested continuing objections to all of Marvel's testimony. The trial judge granted the defense counsel's request. Marvel's testimony in front of the jury began: "Q. Your name is Jerry Marvel? A. Yes, it is. "Q. And you have just finished testifying in Chambers. A. Yes, sir. "Q. Mr. Marvel, what is your occupation? A. Police Officer, City of Los Angeles, California. "Q. How long have you been a police officer? A. Approximately five and a half years. "Q. And that's all been with Los Angeles? A. Yes, an additional two years in Washington, D.C. "Q. Okay, thank you. What are your present duties with the Los Angeles Police Department? A. Assigned to Holenbeck Investigations, homicide detail. "Q. You're a detective then. A. Yes I am." Marvel then testified that he had at one time spoken with defendant in the sheriff's office of the Los Angeles county jail. He went to see defendant in response to a telephone call he received that LaVe wished to speak with him. Before beginning the conversa- tion Marvel advised LaVe of his rights. LaVe then made the state- ments previously quoted. Marvel did not testify, at that time, who had arrested LaVe or why he had been arrested. On cross-examination LaVe's counsel developed the circumstances surrounding LaVe's arrest and his later conversation with Marvel. Marvel testified it was his partner and he who had arrested LaVe when he knocked at the door of a certain apartment in Los Angeles. Marvel and his partner had already arrested two other men when LaVe came to the door. A service revolver was put into LaVe's face and he was told to "freeze". LaVe's counsel also attempted to discredit Marvel's testimony concerning defendant's admission about the Montana robbery charge by showing that Marvel was dissatisfied with LaVe's testimony in a separate preliminary hearing in Los Angeles, regarding a criminal charge against a third person. Marvel, however, did not admit that either he or the Los Angeles Police Department was dissatisfied with LaVe's testimony. At the close of Marvel's testimony, defendant moved for a mistrial on the basis that Marvel's testimony should not have been allowed before the jury and that Marvel had made statements in the initial part of his testimony that he was cautioned against making prior to taking the stand. The trial judge denied defendant's motion. The jury found defendant guilty of committing the offense of robbery and the trial judge sentenced him to 20 years at hard labor in Montana state prison. Defendant appealed. On appeal defendant raised these issues: I. Did the District Court err in denying defendant's motion for a mistrial? 2. Was Officer Marvel's testimony before the jury prejudi- cial to defendant, thus denying him his right to a fair trial? Because the two issues are related, we will discuss them together. The decision to declare a mistrial is within the sound dis- cretion of the trial judge. A motion for mistrial may be granted when something has occurred which is likely to affect the justice of the verdict. Curley v. Boston Herald-Traveler Corp., 314 Mass. 31, 49 N.E.2d 445, 446 (1943). The introduction of inadmissible evidence which results in harmful error to the defendant may be such an instance. Generally, evidence of other offenses or of other similar acts at other times is inadmissible for the purpose of showing the commission of the particular criminal offense charged. State v. Taylor, 163 Mont. 106, 120, 515 P.2d 695 (1973). The reason is that the defendant is entitled to be informed of the offense charged so that he need prepare his defense only to that particular offense. Proof of other offenses subjects him to surprise and to a defense of multiple collateral or unrelated issues. State v. Jensen, 153 Mont. 233, 455 P.2d 631 (1969). This rule applies to evidence of other offenses regardless of whether defendant was actually charged with the other offense. See, State v. Tiedemann, 139 Mont. 237, 362 P.2d 529 (1961). The general rule, however, is subject to several exceptions when such evidence becomes admissible: (1) When similar acts with the same prosecuting witness are involved; (2) when similar acts are not too remote in time; and (3) when evidence of other offenses tends to establish a common scheme, plan or system, where such other offenses are similar to, closely connected with and not too remote from the one charged, and where they are so that the proof of one tends to establish the other. State v. Taylor, supra; State V. Jensen, supra. Once such evidence is introduced, the party who objected to its introduction generally does not waive his objection to its erro- neous admission by subsequently introducing evidence to disprove the matters testified to, to explain them, or to prove facts inconsistent with them, even though the matter he introduces is of the same kind or nature. State v. Tiedemann, supra; 89 C.J.S. Trial §66l, p. 507. After the opposing party's objections are made to the testimony and overruled, that ruling becomes the law of the case to which the op- posing party is required to submit. He is obligated to try the case on this ruling and cannot have the ruling reversed until judgment is entered and an appeal is made. The fact that the opposing party conforms to the ruling and offers testimony on the theory adopted by the trial court does not indicate a purpose to waive the error. State v. Tiedemann, supra. / Evidence showing oc tending to show that defendant committed another offense is prejudicial where a fair inference from the evidence is that defendant was guilty of the other crime. State v . Tiedemann, supra. The test of whether the prejudicial error requires reversal is this: Is there a reasonable possibility that the inadmissible evidence might have contributed to the conviction? State v. Langan, 151 Mont. 558, 568, 445 P.2d 565 (1968). The ground rules under which the court allowed Marvel's testimony provided that neither side would bring out evidence asso- ciating defendant with a murder charge in Los Angeles. The state- ment which Marvel made on direct examination to which the defendant objected was that in his beginning testimony, Marvel stated he was assigned to "homicide detail".  his statement was not prejudicial for two reasons. First, the statement was made in response to the prosecutor's question asking Marvel what his present duties with the Los Angeles Police Department were, not what his duties were at the time he arrested defendant. That Marvel was presently assigned to homicide detail does not necessarily mean he was assigned to that same detail at the time he arrested the defendant some four months earlier. Second, Marvel did not testify to anything on direct examina- tion that would have connected defendant to a murder charge. He did not tell who it was who had arrested defendant or under what circum- stances defendant was arrested. In explaining how he came to have a conversation with the defendant, Marvel stated only that he "had received a telephone call that Mr. Lave wished to speak to me." It was not until cross-examination by the defense counsel that Marvel revealed it was he who had arrested defendant and what the circumstances of that arrest were. Marvel never testified to what defendant was charged with, nor why he was held. An examination of the cases cited by defendant reveals that the alleged error in those cases were statements strongly indicating the defendants were guilty of other offenses. In Jensen, the defendant was charged with committing a lewd and lascivious act on a child under 16 years old. The evidence sought to be introduced, which was allowed under an exception to the general rule, was testimony of other patients of the defendant- doctor that defendant had committed the same acts on them. In Tiedemann, the defendant was charged with the attempted rape of a child under 18 years. Defendant's conviction was reversed because the prosecution testified over the defendant's objection to an admission which defendant had made to the county attorney after his arrest indicating he was involved in an earlier rape incident. In State v. Ebel, 92 Mont. 413, 15 P.2d 233 (1932), the defendant was charged with burglarizing another's house. Evidence was introduced showing that the defendant had in his possession an unusually shaped comb similar to one allegedly taken from the victim in an earlier burglary. The defendant's conviction was reversed. Although it is true that Marvel's testimony showed that his conversation with defendant took place while the defendant was under arrest and in police custody, none of Marvel's direct examina- tion indicated why defendant was arrested. The jury may have assumed he was arrested for the alleged robbery in Montana. None of Marvel's testimony associated defendant with the murder charge in Los Angeles, nor was there any indication defendant was arrested on suspicion of murder. For these reasons we find Marvel's testimony that he was presently assigned to homicide detail was not prejudicial to the defendant. The trial judge was correct in refusing to grant defend- ant's motion for a mistrial. The defendant was given a fair trial. A£ £ irmed. Justice We Concur:

November 15, 1977

7fef8120-2e6f-4f4b-bc11-888440961bcc

MCDONALD CO v FISHTAIL CREEK RA

N/A

13654

Montana

Montana Supreme Court

No. 1 3 6 5 4 I N THE SUPREME COURT OF THE STATE OF MONTANA 1977 McDONALD & CO. , a M o n t a n a C o r p o r a t i o n , P l a i n t i f f and R e s p o n d e n t , F I S H T A I L CREEK RANCH LIMITED PARTNERSHIP, A M o n t a n a L i m i t e d Partnership, and JAMES R. REGER, D e f e n d a n t s and A p p e l l a n t s . A p p e a l f r o m : D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , H o n o r a b l e C h a r l e s L u e d k e , Judge presiding. C o u n s e l of R e c o r d : For A p p e l l a n t s : M o s e s , T o l l i v e r and Wright, B i l l i n g s , M o n t a n a K e n n e t h D. T o l l i v e r argued, B i l l i n g s , M o n t a n a For R e s p o n d e n t : H i b b s , S w e e n e y and C o l b u r g , B i l l i n g s , M o n t a n a M a u r i c e R. C o l b e r g , Jr. argued, B i l l i n g s , M o n t a n a S u b m i t t e d : S e p t e m b e r 2 3 , 1 9 7 7 D e c i d e d : goy ; , 9 yf! 4 . -. Filed: M r . Justice Gene B. Daly delivered the Opinion of the Court. Plaintiff McDonald & Co. initiated this action in the District Court, Yellowstone County, to recover damages for defendants' alleged breach of a real estate l i s t i n g agreement. Defendants counterclaimed t o recover damages purportedly caused by p l a i n t i f f ' s breach of a broker's fiduciary duty. The jury returned a verdict and judgment was entered awarding plaintiff damages i n the sum of $11,830 and awarding defendants damages on their counterclaim i n the sum of $10,000. Plaintiff filed an alternative motion to a l t e r or amend the judgment. The District Court granted the motion and an amended judgment on the verdict was entered awarding plaintiff damages i n the s u m of $11,830 and awarding defendants damages on their counterclaim i n the sum of $2,500. Defendants appeal from the District Court's amended judgment allowing plaintiff to recover $11,830 i n d a m a ~ s and granting p l a i n t i f f ' s alternative motion to amend the judgment by reducing defendants' amount of recovery on their counterclaim from $10,000 to $2,500. Plaintiff appeals from the District Court judgment allowing defendants t o recover on their counterclaim. The issues presented on appeal are: 1. Whether plaintiff McDonald & Co. should be entitled t o recover a commission under the l i s t i n g agreement? 2 . Whether the written l i s t i n g constituted merely a written confirmation of just one part of the overall oral contract between the parties which could be repudiated and thereby allow defendants t o deem a l l agreements a t an end? 3. Whether the District Court erred i n reducing the jury's verdict t o defendants on their counterclaim? McDonald & Co. is a Montana corporation located i n Billings, Montana, engaged in the business of selling real estate. Sam E. McDonald, Jr., is the president and majority stockholder of McDonald & Co. Fishtail Creek Ranch is a limited partnership organized under the laws of Montana and qualified to do business i n Montana. I t s original articles of limited partnership were executed on M a y 1, 1973. James R. Reger is listed as the general partner with limited partners Russell C. Clark, Sam E. McDonald, Jr., John 0. Odegaard, James R. Reger, S. C. Sande, C. B. Sand, and S.J. Sande. M r . Reger testified he received a monthly salary of $250 as compensation for h i s duties as general partner. In the spring of 1973, Reger became associated with McDonald & Co. a s a real estate salesman. H e received his real estate license i n June 1973. Reger and McDonald pur- portedly formed an oral agreement as to the division of com- missions between the broker and salesman upon the sale of property. Reger remained associated with McDonald & Co. u n t i l mid-January 1974. During his employment with McDonald Reger's major efforts were devoted to negotiating the sale of Fishtail Creek Ranch, a cow ranch, formerly known as the Partington Ranch located i n Stillwater County, Montana. The ranch was purchased by Fishtail Creek Ranch Limited Partnership as an investment property. A n instrument entitled "EXCLUSIVE RIGHT TO SELL RANCH AND ACREAGE LISTING F O R M " was executed by Sam E. McDonald, Jr., and James R. Reger, i n his capacity a s general partner of Fishtail Creek Ranch Limited Partnership. The instrument is dated June 20, 1973; however, the testimony of the signators indica ks the instrument was not executed u n t i l sometime i n November 1973. The instrument indica tes the l i s t i n g was not t o expire u n t i l June 19, 1974. The apparent motive for predating the instrument was t o guarantee McDonald & Co. a commission from any sale of Fishtail Creek Ranch which might have been precipitated a f t e r June 20, 1973. During Reger's employment with McDonald & Co. there were several attempts t o consummate a sale of F i s h t a i l Creek Ranch. I n July 1973, J i m 0. Mayo executed an agreement t o purchase Fishtail Creek Ranch for $235,000. Mayo deposited $1,000 with McDonald & Co. a s consideration for an option to purchase, the option t o expire August 31, 1973. Mayo was unable t o obtain financing for the purchase and requested a refund of h i s $1,000. McDonald & Co. returned $800 t o Mayo, $200 was forfeited t o the limited partnership. I n October 1973 McDonald & Co. i n an alleged attempt t o precipitate sale of the Fishtail Creek Ranch, contracted with Mueller Engineering for the subdivision and plotting of some ten acre t r a c t s on the property. McDonald & Co. paid the costs for the subdivision work and was purportedly reimbursed by F i s h t a i l Creek Limited Partnership for a l l costs incurred i n l i s t i n g the property. O n November 9, 1973, an agreement for the purchase of F i s h t a i l Creek Ranch (exclusive of the area being subdivided) was executed by Reger, in h i s capacity a s general partner for F i s h t a i l Creek Ranch Limited Partnership, and the purchasers, Jack D. Shanstrom, Morris P. Blakely, and Arnold Huppert, Jr. The agreement incorporated a contract for deed which provided for the deposit of earnest money. The typed contract specified an earnest money deposit i n the amount of $5,000. However, the printing on the instrument had been struck out by a pen and the figure $15,000 written i n as a substitution. The facts reveal that only $5,000 was ever received by Sam E. McDonald,Jr. Checks totaling an additional $10,000 were retained by the attorney for the buyers and these checks were eventually returned t o the buyers when the prospective purchase f e l l through. O n January 11, 1974, the parties to the purchase agreement executed a "MUTUAL RELEASEt' providing that Fishtail Creek Ranch Limited Partnership "retain the $5,000 earnest money which i s presently deposited i n the escrow account of McDonald & Company." Further,that the purchasers be released from a l l claims or demands arising out of the agreements executed by the parties for the purchase of Fishtail Creek Ranch. The $5,000 was delivered to Fishtail Creek Ranch Limited Partnership. Reger's association with McDonald & Co. was terminated i n January 1974. The purported basis for termination of the employment relationship was Reger's refusal to accept McDonald's contractual conditions for the 1974 employment year. B y l e t t e r of February 1, 1974, counsel for Reger informed McDonald that the l i s t i n g agreement for Fishtail Creek Ranch was terminated as of January 28, 1974, the date when the parties allegedly severed their association. Reger subsequently went to work for Northwest Real Estate, a real estate brokerage firm located i n Billings. B y M a y 1, 1974, Reger had sold eight of the previously subdivided tracts for a t o t a l amount of $123,000. Six of the eight tracts were sold to or through representatives of Mueller Engineering. On April 19, 1974, James E . Edwards entered an option contract to purchase Fishtail Creek Ranch for $215,000. Edwards eventually exercised the option. Issue 1 . It is necessary to decide whether or not the listing agreement between McDonald & Co. and Fishtail was exclusive or nonexclusive. The pertinent parts of the listing agreement are: The title reads:"EXCLUSIVE RIGHT TO SELL RANCH AND ACREAGE The body sets forth: "Agreed Commission Seven percent ( 7 % ) of Sales price "Exclusive Listing McDonald & Co. I I Exclusive Agency - No Non-Exc. - no "Commences June 20, 1973 Expires June 19, 1974." The agreement is on a printed form. The items inserted in the blanks are typed into the printed form. It is obvious there can be no other reasonable construction of this agreement than that it grants an exclusive listing to the broker whose name is typed in the appropriate blank, "McDonald & C o . " . The exclusive listing agreement to that broker has a one year period of duration commencing June 20, 1973 and expiring June 19, 1974. The word "no" is inserted in the blank after the form provision of "Non-Exc.". Certainly that means the agreement is not a nonexclusive agreement and therefore, the nonexclusive reference contained in the last paragraph of the portion of the agreement quoted above does not control. The agreement as a whole speaks of an exclusive listing agreement. The form provides that a commission must be paid upon any actual sales prior to the "termination of such right ." Defendants argue the February 1, 1974, l e t t e r giving notice the l i s t i n g agreement was terminated, unilaterally terminated the l i s t i n g agreement. Plaintiff axtends defendants could not unilaterally terminate the listing agreement. In Kester v. Nelson, 92 Mont. 69, 73, 10 P.2d 379 (1932), t h i s Court stated: II 8 Persons competent t o contract can as validly agree t o rescind a contract already made as they could agree t o make it originally. However, as a contract is made by the joint w i l l of two parties, it can be rescinded only by the joint w i l l of the two parties. It is obvious that one of the parties can no more rescind the contract without the other's express or implied assent, than he alone can make it. "' In the instant case, there was no mutual assent. In fact, a f t e r Sani McDonald received the termination l e t t e r of February 1, 1974, he personally told James Reger that the exclusive l i s t i n g agreement was still i n effect u n t i l i t s termination date. In Cloe v. Rogers, 31 Okl. 255, 1 2 1 P. 201 (1912), the court, relying on similar facts as are found i n the instant case, stated a general rule that: 'I* * * where an agency is uncoupled with an interest, it may be revoked by the principal a t w i l l , without l i a b i l i t y for damages; but where it is for a fixed time, and contemplates on the part of the agent the expenditure of time and money to carry it out, and is accepted, and the duties imposed are entered upon by the agent, and money and time are expanded in pursuance of the object of the agency, that, although the principal has the power t o revoke and bring to a termination the contract, yet he lacks the right of so doing, except upon the burden of responding to the agent for such damages as he may suffer by reason thereof." 121 P. 203. Issue 2. Defendants i n their second issue raise an ingenious but unmeritorious argument. They allege McDonald & Co. breached its employer-employee relationship with James Reger and t h i s breach also breached the exclusive l i s t i n g agreement between McDonald & Co, and Fishtail on the premise that the general partner signing that agreement for Fishtail was also James Reger. Defendants c i t e section 13-708, R.C.M. 1947, as authority. That statute requires that contracts to be considered as one trans- action must (1) relate to the same matter; (2) be between the same parties, It is obvious that any employer-employee agreement between McDonald & Co. and Reger personally, has no connection with the exclusive l i s t i n g agreement for the sale of the Fishtail properties. The two agreements were between different parties. The employer-employee agreement was between McDonald & Co. and Reger personally. The exclusive listing agreement is between McDonald & Co. and Fishtail. Again, i n Cloe v. Rogers, supra, it is stated: '"Where an agent has an agreement with h i s principal t o s e l l certain lands, which have been placed i n h i s hands t o be disposed of within a time limited, and the agent is to receive no pay or compensation for adver- tising, putting the same upon the market, or for his services, excepting a share of the profits arising from the sales of the lands, and i n the performance of such agreement he renders services for several months, and expends time and money, and then, without any reason o r excuse, the principal revokes the contract, the agent is entitled to recover from the principal such compensa- tion i n damages as w i l l be equal i n amount to h i s share of the profits which would have resulted had the lands been sold by him." 121 P. 207. In the instant case, McDonald & Co. not only advertised t h i s land i n major newspapers throughout the country, it also arranged for part of these lands to be surveyed and platted so it could be subdivided. Robert Sanderson, president of Mueller Engineering, testified: "Q. W h o f i r s t contacted you concerning t h i s work? A. Our records indicate that Randy Reger was our f i r s t contact on the project. Q One of the defendants in t h i s case is James R. Reger. Is that the person you refer to a s Randy Reger? A. That's correct. "Q. Did you understand that he represented another firm a t that time? A. Yes. Again, our f i l e indicates that Randy Reger was the contact on the project and our client was actually McDonald & Company, of which w e understood that he was an employee. "Q. You mention your l a s t b i l l of January 28, 1974. To w h o m was that directed, the b i l l ? A. The statement was directed to the client, McDonald & Company." A s a result of contact with Mueller Engineering which was initiated by McDonald & Co., s i x of the subdivision tracts were sold to people associated with Mueller Engineering. "It is a generally accepted law that a real estate broker is entitled t o commissions when he has, i n pursuance of h i s employment and within the time specified in the contract of employment, procured a purchaser able, ready and willing t o purchase the s e l l e r ' s property on the terms and conditions specified i n the contract of employment. Roscow v. Baia, 114 Mont. 246. 135 P.2d 364. * * *I1 Diehl and Associates, Inc. v. Houtchens, Mont . , 567 P.2d 930, 34 ~ t . ~ e p . 814, 817 (1977). When, as in the instane case, there is a revocation and a subsequent sale within the period of the exclusive l i s t i n g agreement, it w i l l be presumed that the broker with the exclusive l i s t i n g would have made the sale. "'Where * * * a real estate broker has an exclusive l i s t i n g and has established that the property described i n the l i s t i n g agreement has been sold, a prima facie case is established for a c o d s s i o n upon the entire sales price. ''I Seattle Investment Company v, Kilburn, 5 Wash,App. 137, 485 P.2d 1005, 1007 (1971), quoting from Fleetham v. Schneekloth, 52 Wash.2d 176, 179, 324 P. 2d 429, 431 (1958). In the instant case the entire Partington ranch was sold within the time the exclusive listing agreement was i n effect. Therefore, the District Court was correct i n its award of commissions totaling $11,830 t o McDonald & Co. Issue 3. The f i n a l consideration on appeal is whether the District Court erred i n reducing the jury's verdict to the defendants' counterclaim? Reger and Fishtail claim that McDonald & Co. failed to collect an additional $10,000 earnest money in connection with the proposed Shanstrom, Blakely and Huppert sale. The agreement on this sale called for $15,000 earnest money. Of this $15,000 only $5,000 was ever received. The reason why the other $ 1 0 , 0 0 0 was not received is not clear from the record, however, James Murphy, attorney for the three buyers, testified: "Q. Did you ever get authority from your clients to release those checks, totaling $10,000.00 to the seller of the property or the broker? A. N O . " Whatever the reason for withholding the authority to deliver those checks, nowhere in the record does it disclose that McDonald & Co. was negligent in not collecting this $10,000. The Shanstrom, Blakely and Huppert agreement was terminated by all parties including Reger and Fishtail. A mutual release agreement was signed and dated January 11, 1974. This agreement was signed by Reger as general partner of Fishtail. It was also signed by the three buyers. All parties agreed that any contracts to purchase and sell the property were terminated. The buyers agreed that $5,000 earnest money could be forfeited to Fishtail and matters were in fact terminated. There is no question that there was a recognition in the execution of this agreement that $5,000 was the total amount of earnest money to be forfeited on behalf of the buyers. Here, the record not only fails to substantiate damages but it is devoid of any wrongdoing by McDonald in collecting the earnest money. Therefore, Fishtail on its counterclaim is entitled to nothing and the District Court is affirmed with respect to the judgment of $11,830 awarded to plaintiff-respondent. The judgment awarding the sum of $2,500 to defendants-appellants is vacated. Austice

November 29, 1977

82b4e828-18c7-4c95-b77d-935fd388320d

State v. Stewart

2016 MT 1

DA 13-0623

Montana

Montana Supreme Court

DA 13-0623 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 1 STATE OF MONTANA, Plaintiff and Appellee, v. LAURENCE ALAN STEWART II, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DC 12-472 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Jennifer Hurley, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Great Falls, Montana Submitted on Briefs: December 2, 2015 Decided: January 5, 2016 Filed: __________________________________________ Clerk January 5 2016 Case Number: DA 13-0623 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Laurence Alan Stewart II appeals his conviction in the Eighth Judicial District Court, Cascade County, of seven counts of attempted deliberate homicide. Stewart raises the following issue on appeal: Whether the District Court erred when it denied Stewart’s request to instruct the jury on misdemeanor assault as a lesser-included offense of attempted deliberate homicide. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On the morning of November 1, 2012, Montana Highway Patrol Trooper Joe DeJong stopped Stewart for speeding on Highway 87 outside Stanford, Montana. Stewart handed his driver’s license to Trooper DeJong, who took the license to his patrol car. Trooper DeJong learned from dispatch that Virginia law enforcement wanted to speak with Stewart in relation to an investigation in Virginia. In accordance with standard operating procedure, Trooper DeJong requested that another officer come to the scene before re-engaging Stewart. Before the back-up officer arrived, however, Stewart drove off in the direction of Great Falls. ¶4 Trooper DeJong activated his lights and siren and pursued Stewart along the highway. Several minutes into the pursuit, Stewart threw a homemade pipe bomb out of the driver’s side window of his car. The bomb exploded approximately 100-150 yards ahead of Trooper DeJong’s car. Trooper DeJong saw the explosion and heard pieces of debris hit his car. Concerned about additional bombs, Trooper DeJong slowed to keep 150-200 yards between his car and Stewart’s and radioed for additional assistance. 3 ¶5 After Stewart turned off Highway 87 onto a dirt road, Trooper Goodemoot joined in the pursuit. Stewart threw another pipe bomb out of his window. Upon seeing the smoke from the second pipe bomb, the troopers stopped 150-200 yards away and waited for the bomb to detonate. Trooper DeJong testified that he stayed a distance away from the bomb “because [he] did not want to die.” When the bomb detonated, the troopers heard a “big boom” and could hear shrapnel “zing by [their] cars.” Trooper DeJong testified that he could feel “the concussion” when the bomb went off. At this point, because they were “very concerned” about more pipe bombs, the troopers stayed even further back from Stewart’s car—approximately three to four miles. ¶6 After some distance, Stewart turned back onto Highway 87 where another Highway Patrol Trooper had laid spike strips over the highway. Despite swerving to avoid the spikes, Stewart drove over them, puncturing his tires. Stewart continued to drive as multiple officers from the Highway Patrol, the Cascade County Sheriff’s Department, and the Judith Basin County Sheriff’s Department pursued him. ¶7 As the chase continued, Stewart threw several more pipe bombs out of his window. Responding officers had to swerve to avoid hitting the bombs. Some bombs, however, detonated very near several of their cars, throwing shrapnel along the side of the cars. One officer testified that his car shook when he drove by one of the explosions. ¶8 Eventually the tires on Stewart’s car began to come off of their rims and he turned off of the highway. An officer rammed his patrol car into the back of Stewart’s car, sending it into the ditch partially down a slope and into a fence. Stewart got out of the car with a handgun and ran. The officers chased Stewart, surrounded him, tased him, and 4 finally apprehended him. No one fired any shots. As he was being escorted to Trooper DeJong’s patrol car, Stewart told the officers he did not mean to hurt anyone. ¶9 None of the officers were harmed during the pursuit and eventual apprehension of Stewart. During the “render safe” process that followed, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Agent Brad Engelbert discovered a total of nine additional pipe bombs—seven in Stewart’s car and two along the roadway—that were undetonated. The bombs were constructed from galvanized metal pipe, end caps, cannon fuse, and plastic tape, and were filled with hex nuts, dry-wall screws, and ball bearings. ¶10 On November 16, 2012, the State charged Stewart by Information with seven counts of Attempted Deliberate Homicide, in violation of §§ 45-4-103 and 45-5-102, MCA. The court held a jury trial from April 29 through May 6, 2013. The jury heard testimony from the officers involved in the pursuit and saw video footage from dashboard cameras of their vehicles. The video footage captured several of the explosions. During closing argument, the State played a portion of a video obtained by federal law enforcement agencies in which Stewart previously had made threatening statements that if law enforcement came for him, “people will die.” ¶11 During the settling of jury instructions, Stewart asked the District Court to instruct the jury on various lesser-included offenses, including misdemeanor assault. After hearing argument from both counsel, the court concluded that, as a matter of law, misdemeanor assault is a lesser-included offense of deliberate homicide. The court also concluded, however, that the evidence at trial did not support a misdemeanor assault instruction, “however formulated.” The court instead decided to give an instruction on 5 the lesser-included offense of attempted aggravated assault. Stewart asked the jury to acquit him on Counts I-IV, and to convict him on the lesser-included offense of attempted aggravated assault on Counts V-VII. ¶12 The jury found Stewart guilty on all seven counts of attempted deliberate homicide. The District Court sentenced Stewart to serve a life term in prison on each count and declared him ineligible for parole. Stewart appeals. STANDARD OF REVIEW ¶13 We review for abuse of discretion a district court’s refusal to give an instruction on a lesser-included offense. State v. Johnson, 2008 MT 227, ¶ 12, 344 Mont. 313, 187 P.3d 662. A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. State v. McLaughlin, 2009 MT 211, ¶ 9, 351 Mont. 282, 210 P.3d 694. A district court has broad discretion when it instructs the jury; we review jury instructions in criminal cases to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. McLaughlin, ¶ 10. DISCUSSION ¶14 Whether the District Court erred when it denied Stewart’s request to instruct the jury on misdemeanor assault as a lesser-included offense of attempted deliberate homicide. ¶15 A defendant is entitled to a lesser-included offense instruction if: 1) the offense constitutes an included offense as defined by § 46-1-202(9), MCA, and 2) there is sufficient evidence to support an instruction on the lesser-included offense. State v. Cameron, 2005 MT 32, ¶ 20, 326 Mont. 51, 106 P.3d 1189. In other words, the court 6 must give a lesser-included offense instruction if the party properly requests it and if “the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.” Section 46-16-607(2), MCA. ¶16 A person commits misdemeanor assault when he purposely or knowingly causes bodily injury to another or the reasonable apprehension of bodily injury in another. Section 45-5-201, MCA. “Bodily injury means physical pain, illness, or an impairment of physical condition and includes mental illness or impairment.” Section 45-2-101(5), MCA. A person commits aggravated assault when he “purposely or knowingly causes serious bodily injury to another or purposely or knowingly, with the use of physical force or contact, causes reasonable apprehension of serious bodily injury or death in another.” Section 45-5-202, MCA. Serious bodily injury means bodily injury that: (i) creates a substantial risk of death; (ii) causes serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ; or (iii) at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ. (b) The term includes serious mental illness or impairment. Section 45-2-101(66), MCA. “A person commits the offense of attempt, when with the purpose to commit a specific offense, the person does any act toward the commission of the offense.” Section 45-4-103(1), MCA. ¶17 “A defendant may be convicted only of the ‘greatest included offense about which there is no reasonable doubt.’” State v. Castle, 285 Mont. 363, 367, 948 P.2d 688, 690 (1997) (quoting § 46-16-606, MCA). We have held, and the State does not dispute, that misdemeanor assault is a lesser-included offense of deliberate homicide. Castle, 285 7 Mont. at 368-69, 948 P.2d at 691. In State v. Feltz, 2010 MT 48, 355 Mont. 308, 227 P.3d 1035, and in State v. Reiner, 179 Mont. 239, 587 P.2d 950 (1978), we considered the issue of misdemeanor assault as a lesser-included offense of aggravated or felony assault. In both cases we recognized that whether bodily injury is serious, within the meaning of the law, is a question for the jury to determine. Feltz, ¶ 25; Reiner, 179 Mont. at 252, 587 P.2d at 958. The trial court need not instruct the jury on misdemeanor assault, however, if the evidence shows that the only type of injury that would be feared is serious bodily injury. Reiner, 179 Mont. at 253, 587 P.2d at 958. ¶18 Stewart argued at trial that there was sufficient evidence for a misdemeanor assault instruction and that the jury reasonably could conclude that there was a risk of only bodily injury, as opposed to serious bodily injury. Stewart noted that the State “never put on any expert that talked about the strength of the explosive potential of the bombs that were recovered from Mr. Stewart’s car, or the two that were found that never exploded.” The court denied Stewart’s request on the ground that the evidence “doesn’t support the concept of intent to either cause mere bodily injury or to cause reasonable apprehension of mere bodily injury.” ¶19 Stewart’s counsel requested at a minimum that the court instruct the jury on misdemeanor assault as a lesser-included offense on Counts I and II—the bombs that exploded in front of Trooper DeJong and Trooper Goodemoot. The court denied the request on grounds that the “manifest dangerous nature” of pipe bombs, together with the officers’ proximity to the bombs as they pursued Stewart, did not support a reasonable conclusion that there was an intent simply to “either scare [the troopers] by reference to 8 mere bodily injury or to attempt mere bodily injury as distinct from the risk or actuality of serious bodily injury.” The District Court instead instructed on the lesser-included offense of attempted aggravated assault with respect to all charges. ¶20 On appeal, Stewart argues that evidence supported his defense that he “was trying only to scare the officers away during the pursuit or cause at most bodily injury—not serious bodily injury or death.” The question whether he intended or attempted to cause serious bodily injury or lesser bodily injury, Stewart claims, was one of fact for the jury. Stewart argues that the court’s refusal based on the “manifest dangerous nature of pipe bombs” was improper because it “took that question of fact out of the jury’s hands.” Stewart asserts that the detonations shown in the pictures and videos “were not massive explosions,” and that there was “no expert testimony to inform the jury about the capacity of these pipe bombs, their force, or their actual dangerousness.” Stewart underscores that the bombs caused no injuries and that he “repeatedly stated he had not intended to hurt anyone.” Therefore, Stewart contends that the District Court erred when it “usurped the jury’s role in making that determination.” ¶21 Stewart relies on Feltz to support his assertions. In Feltz, the defendant was charged with felony assault with a weapon for wielding a knife at his neighbors while swearing and calling them names. Feltz, ¶¶ 5, 11. The district court denied the defendant’s request for a lesser-included offense instruction on misdemeanor assault. Feltz, ¶ 12. We held that the district court erred in refusing the instruction because there was evidence to support a fear of bodily injury. We reasoned that “the size and type of knife used, the way [the defendant] held it, whether he displayed it prominently, and what 9 [the defendant] said while doing so were in dispute.” Feltz, ¶ 28. Moreover, the victim did not testify that she feared for her life. Feltz, ¶ 28. ¶22 In Reiner, the defendant was armed with a .357 Magnum revolver and threatened to shoot and kill suspected trespassers on the property he was caretaking. Reiner, 179 Mont. at 242-43, 578 P.2d at 952-53. The defendant fired two shots on the ground near where the suspected trespassers were standing. The State charged him with three counts of aggravated assault. Reiner, 179 Mont. at 243, 587 P.2d at 953. The district court denied the defendant’s request for a lesser-included offense instruction on misdemeanor assault. Reiner, 179 Mont. at 251, 587 P.2d at 957. We upheld the court’s refusal of the instruction because the evidence did not support that the victims were at risk of bodily injury; rather, it was “clear that defendant put his victims in reasonable apprehension of serious bodily injury by his menacing use of a .357 Magnum revolver.” Reiner, 179 Mont. at 253, 587 P.2d at 958. We distinguished Feltz because the jury would not have been warranted in finding that the defendant’s actions could have caused reasonable apprehension of only bodily harm. Reiner, 179 Mont. at 253, 587 P.2d at 958. ¶23 As in Reiner, we conclude that the District Court did not abuse its discretion because the evidence did not warrant a conviction of any offense lesser than the two offenses on which the trial court gave instructions. Stewart lit the fuses on seven pipe bombs and tossed them into the paths of oncoming law enforcement vehicles. The pipe bombs were filled with materials that easily would cause serious bodily injury if a bomb had detonated in contact with a vehicle. Stewart’s argument that the State should have provided expert testimony about the “actual dangerousness” of pipe bombs is 10 unpersuasive. Videos show the bombs exploding with considerable force. The videos and witness testimony demonstrate that upon explosion, shrapnel from the bombs flew substantial distances from the detonation site. Multiple law enforcement officers testified that they feared for their lives. Stewart previously had recorded a video in which he made threats to kill law enforcement officers. Although Stewart claims that he did not intend to hurt anyone, the jury would not have been warranted in finding that Stewart purposely or knowingly caused only reasonable apprehension of bodily injury, as opposed to reasonable apprehension of or attempt to cause serious bodily injury or death. ¶24 The trial court did not act arbitrarily, without conscientious exercise of judgment, or exceed the bounds of reason when it determined that the “manifest dangerous nature of pipe bombs” and the officers’ proximity to the bombs supported the jury’s consideration of only the offenses of attempted deliberate homicide or attempted aggravated assault. ¶25 We conclude further that the District Court’s refusal to instruct the jury on misdemeanor assault did not prejudice Stewart’s substantial rights. Despite an instruction on the lesser-included offense of attempted aggravated assault, the jury rejected that lesser charge in favor of attempted deliberate homicide on all seven counts. Given this rejection, Stewart’s case does not present “the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let his action go unpunished simply because the only alternative was acquittal.” Castle, 285 Mont. at 367, 948 P.2d at 690 (citing State v. Gopher, 194 Mont. 227, 231, 633 P.2d 1195, 1197-98 (1981)). 11 CONCLUSION ¶26 The District Court did not abuse its discretion in denying Stewart’s request to instruct the jury on misdemeanor assault as a lesser-included offense of deliberate homicide. Accordingly, the Judgment is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA

January 5, 2016

d38cf918-7861-4c20-8ea2-6850cb1c9c8f

ROUNDUP NATIONAL BANK v DEPT OF R

N/A

13688

Montana

Montana Supreme Court

No. 13688 IN THE SUPREME COURT OF THE STATE OFMINTANA 1977 ROUNDUP NATIONAL BANK, Plaintiff and Appellant, DEPARTMENT OF REVENUE et al., Defendants and Respondents. Appeal from: District Court of the First Judicial District, Honorable Gordon R . Bennett, Judge presiding. Counsel of Record: For Appellant: Towe, Ball & Enright, Billings, Montana For Respondents: R . Bruce McGinnis, Helena, Montana John L. Pratt, Roundup, Montana Submitted On Briefs. Filed: Submitted: December 2, 1977 Decided: D E C l 4 1 9 ~ - - Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This is an appeal from an order entered in the District Court of Lewis and Clark County, granting respondents' motion for change of venue. On May 20, 1976, appellant paid certain taxes under protest to the county treasurer of Musselshell County. The taxes were paid pursuant to an audit conducted by the Department of Revenue which reassessed appellant's tax liability for the tax years 1969-1973. This action was filed on July 2, 1976, pursuant to section 84-4502, R.C.M. 1947, in the District Court, Lewis and Clark County, seeking a recovery of the taxes paid under protest. On August 3, the Musselshell County attorney, on behalf of the county treasurer, filed a motion for change of venue the District Court, Musselshell County. The Department of Revenue joined in the motion. A hearing was held and the motion was granted. Appellant now appeals to this Court. The sole issue on appeal is whether the District Court erred in granting respondent's motion for change of venue. Controlling this issue is section 93-2902, R.C.M. 1947, which states: "Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial: "1. For the recovery of a penalty or forfeiture imposed by statute; except that, when it is imposed for an offense committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed. "2. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office; or against a person who, by his command or in his aid, does anything touching the duties of such officer." The determinative factors of the proper place of venue are the nature of the cause of action and the place where it arose. Guthrie v. Montana Department of Health and Environmental Sciences, Mont . , 561 P.2d 913, 34 St.Rep. 155; Billings Associated Plumbing et al. v. Emerson, Mont . , 563 P.2d 1123, 34 St.Rep. 309. The nature of the cause of action is an action to recover taxes paid under protest. The additional tax assessment on appellant bank was prompted by an audit of the bank which is located in Musselshell County. The audit was actually conducted in Musselshell County. The tax was paid under protest to the Musselshell County treasurer. It is being held in a special tax protest fund therein and any refund found due and owing to appel- lant will be paid by the county treasurer. It is clear, therefore, that the cause of action arose in Musselshell County and venue is proper therein. Judgment affirmed. Justice

December 14, 1977

0767f407-aba3-4a84-aeed-feed4e9536b3

STATE v LANE JR

N/A

13759

Montana

Montana Supreme Court

No. 13759 IN THE SUPREME COURT OF THE STATE OF PIONTANA THE STATE OF MONTANA, Plaintiff and LESTER BROWNLOW LANE, JR . , t c J Defendant and b. Appeal from: ~istrict Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Hooks and Sherlock, Townsend, Montana Jeffrey Sherlock argued, Townsend, Kontana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Thomas Budewitz, County Attorney, Townsend, Kontana Robert J. Yunck argued, Cut Bank, Montana - - 7'- = ,. : ' - - Filed: Submitted: December 5, 1977 T P r Decided b d 0 197; . ./,,.- rcC , . ., ( , % - ,! f r , , , , , . ;. , '/ ' t - / Clerk Mr. Justice John C. Harrison delivered the Opinion of the Court: The State of Montana appeals from an order of the District Court, Broadwater County, suppressing evidence. The evidence was seized without a warrant, from defendant's mobile home on July 2, 1976, the evening of his arrest. Defendant was subsequently charged by an Information filed July 16, 1976 with criminal sale of dangerous drugs, a felony, in violation of section 54-132, R.C.M. 1947. During the early evening hours of July 2, 1976, Broadwater County Undersheriff Michael Walrod proceeded to a mobile home located at 500 N. Walnut, Townsend, Montana. Officer Walrod, who had sold the mobile home in question to one Dick Ellis on January 1, 1976, was seeking to locate a pair of hip-wading boots he thought he may have left in the mobile home. It is clear from the record that the officer was on duty at the time, and was operating a county vehicle. However, there is no indication whether the officer was dressed in his sheriff's uniform. Officer Walrod parked in front of the mobile home, proceeded up the sidewalk, and knocked at the door. As he was halfway up the walk, the officer could see, through an open window just to the right of the front door, someone lying on a sofa inside the home. In response to the knock, the individual, defendant Lane, got up off the sofa and came to the window. Defendant asked what the officer wanted. As the officer described the search for the missing boots, he stepped off the porch adjoining the front door and moved to the window. The officer glanced down and noticed two containers a distance of eighteen (18) inches away, placed on a TV tray just below window level. In the containers were six (6) one to two inch plants. Believing them to be marijuana, the officer inquired of defendant if the plants were, in fact, marijuana. The defendant responded affirmatively. Officer Walrod testified he then asked if he could come in and defendant opened the door. The officer went inside, arrested defendant, advised him of his constitutional rights, and seized the plants. Defendant stated, at the time of the arrest, that he was merely caring for the plants for Dick Ellis. Upon being taken to and remaining in the Broadwater County jail for approximately one hour, defendant executed a written "Consent to Search" form. In the ensuing search, a quantity of seeds, later determined to be marijuana seeds, was located and seized. The plants were subsequently subjected to chemical tests to determine marijuana content. The test results indicated the plants were, in fact, marijuana. Defendant's version of the seizure and his arrest differs in certain particulars from that of Officer Walrod, notably in suggesting a search of broader scope than that detailed above. In addition, defendant testified he was never informed he was under arrest, although he admits he was read his constitutional rights while at the mobile home. Following the suppression hearing, the state sought to justify the seizure and subsequent admission in evidence of the plants under the "Plain View" exception to the Fourth Amendment warrant requirement, arguing that Officer Walrod had inadvertently observed obviously incriminating evidence while legitimately upon the premises of the defendant. The District Court, by its findings of fact, conclusions of law, memorandum and order, dated January 28, 1977, determined there was no "search" within the purview of the Fourth Amendment. However, the court also concluded that the warrantless seizure of the plants was unreasonable and, therefore, a violation of the Fourth Amendment. In its memorandum, the District Court indicated its determination was based on the state's failure to satisfy two essential preconditions to the application of the "Plain View" doctrine: (1) The state failed to show the evidence was immediately apparent as such, (2) There was no showing of exigent circumstances rendering immediate seizure of the evidence imperative. For the reasons specified herein, we affirm the order of the District Court suppressing the evidence. The issues on appeal concern application of the component requirements of the "Plain View" doctrine to the facts at bar. We phrase the issues as follows: (1) Must "exigent circum- stances" rendering imperative an immediate warrantless seizure of evidence be demonstrated where the evidence so seized is within the plain view of the officer? (2) Was the evidence "immediately apparent as such" to Officer Walrod in the instant case? The state centrally argues there is no requirement under any pertinent decision interpreting the "Plain View" doctrine, that exigent circumstances be shown to justify a warrantless seizure of evidence. Defendant takes the position, adopted below by the District Court, that a showing of exigent circumstances by the state is a foundational prerequisite to application of the "Plain View" doctrine. The fundamental rule in the area of search and seizure law is set forth in the case of Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L Ed 2d 576, 585: " * * * searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." 389 U.S. 357, 19 L Ed 2d 585. It is clear that such exceptions are "jealously and carefully drawn." Jones v. United States (1957), 357 U.S. The "Plain View" exception, as an independently recognized doctrine, was first articulated and given content by the case of Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L Ed 2d 564, 583, and has found application in Montana. State v. Gallagher, (1973), 162 Mont. 155, 509 P.2d 852. The conditions precedent to application of the "Plain View" exception are delineated in Coolidge as follows: "What the plain view cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification -- whether it be a warrant for another object, hot pursuit, search incident to a lawful arrest or some other legitimate reason for being present unconnected with a search directed against the accused -- and permits the warrant- less seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them * * *." 403 U.S. 466. The "Plain View" doctrine is not without limits, however. Plain view of evidence, standing alone, is an insufficient justification for warrantless seizure thereof. Despite the observation of evidence in plain sight and the existence of probable cause, the police are not justified in making a warrantless seizure of the evidence absent a showing of exigent circumstances rendering immediate seizure imperative. Coolidge v. New Hampshire, supra.; State v. Schur (1975), 217 Kan. 741, 538 P.2d 689; Brown v. State of Maryland (1972) , 15 Md. App. 584, 292 A.2d 762. Here, we are presented with a seizure situation in which exigent circumstances were wholly absent. The state failed to demonstrate defendant was in any manner alerted to the officer's initial observation of the evidence prior to being questioned. There was no suggestion in the record of threatened flight or potential destruction of evidence. Given such a framework, the officer's valid visual observation merely furnished probable cause for issuance of a warrant. One of the distinct constitutional objectives served by the warrant requirement is voiced by the majority opinion in Coolidge: " * * * First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. See, e.g. McDonald v. United States, 335 U.S. 451, Warden v. Hayden, 387 U.S. 294, Katz v. United States, 389 U.S. 347, Chime1 v. California, 395 U.S. at 761-762." 403 U.S. 467. Here, Officer Walrod had ample opportunity to procure a valid search warrant; he knew the description and location of the mobile home and the evidence to be seized therein. The seizure was therefore unreasonable and a violation of defendant's right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments. Accord- ingly, the District Court was correct in granting defendant's motion to suppress the evidence. We question whether the plain view which occurred in this case is within the doctrine contemplated by Coolidge for yet another reason. The first condition precedent and common denominator to any valid "Plain View" seizure is, under Coolidge, a justifiable prior intrusion. 403 U.S. 466. See also, Harris v . United States (1967), 390 U.S. 234, 88 S.Ct. 992, 19 L Ed 2d 1067; Ker v . California (1962), 374 U.S. 23, 83 S.Ct. 1623, 10 L Ed 2d 726. The doctrine therefore comprehends only post- intrusion observations. Brown v. Maryland, supra. The formal "Plain View" doctrine does not extend to preintrusion observation of evidence within a "constitutionally protected area," such as defendant's mobile home, from a vantage point outside the "constitutionally protected area." Such distinction is recognized by the majority in Coolidge, wherein it is stated: " * * * Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest measure of probable cause. But even where the object is contra- band, this Court has repeatedly stated and enforced the basic rule that police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1; Johnson v. United States, 333 U.S. 10; McDonald v. United States, 335 U.S. 451; Jones v. United States, 357 U.S. 493, 497-498; Chapman v. United States, 365 U.S. 610; Trupiano v. United States, 334 U.S. 699." 403 U.S. 468. In this case, Officer Walrod, by his own testimony, first viewed the evidence located within defendant's mobile home while standing outside the window. A search warrant should have been obtained. This is not a case in which the officer had made an intrusion into a home, by invitation or other legitimate reason, prior to observation of the evidence in plain view. Cf. State v. Gallagher, supra. It is well settled that this Court presumes the correctness of the lower court's order on appeal. It is the burden of appellant to overcome such a presumption. State ex rel. Stevens v. District Court (1976), Mont. , 550 P.2d1 385, 388, 33 St.Rep. 469; State ex rel. Elakovich v. Zbitnoff (1963), 142 Mont. 576, 386 P.2d 343. Here, the state has failed to carry its burden. Given our resolution of the cause on the first issue, we find no need to discuss the second issue heretofore noted. The order of the District Court suppressing evidence is af firmed. W e concur: Chief J u s t i c e / \

December 30, 1977

2611cd3f-ee55-4c7e-959e-f7d1fc4887c4

MATTER OF SONSTENG

N/A

13719

Montana

Montana Supreme Court

No. 13719 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF CURTIS SONSTENG, Respondent-and Appellant. Appeal from: District Court of the Third Judicial District, Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: James Dorr Johnson argued, Warm Springs, Montana Steven Bunch, Helena, Montana For Respondent : Mark P. Sullivan argued, Butte, Montana Nick A. Rotering, Helena, Montana Submitted: November 28, 1977 Decided :D-E& c. , .- - : Filed: - - Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. The Montana Department of Institutions, by state psychologist Katherine Gallagher, comenced this action in the District Court, Deer Lodge County, pursuant to Section 38-1312, R.C.M. 1947, petitioning for extended detention of respondent at Warm Springs State Hospital. Petitioner sought a declaration that respondent was "seriously mentally ill" and should be committed to a mental health facility for a period not to exceed three months. Respondent Curtis Sonsteng was first committed to Warn Springs by judicial order in 1951. Although released on con- valescent leave in 1959, respondent was recommitted in 1962. Respondent was last committed on February 8, 1964 by an order of the Valley County District Court. He has remained at Warm Springs since 1964. Currently, respondent is 48 years of age. At some time prior to June 1976, respondent was placed under the care and supervision of Katherine Gallagher, a staff psychologist at Warm Springs and certified "professional person" as defined in section 38-1302, R.C.M. 1947. Section 38-1312, R.C.M. 1947, requires that any person judged mentally ill prior to the enactment of Title 38, Chapter 13 shall, one year following the effective date of the act, be released unless a petition for an extended detention order is filed. On June 29, 1976, Gallagher prepared and filed the required petition, together with a written report and evaluation of respondent's mental and physical condition as required by section 38-1306(6), R.C.M. 1947, (now section 38-1306(3) by amendment of 1 9 7 7 ) . Upon application of counsel for respondent, the district judge appointed Dr. Ben Peters of Anaconda, Montana, to conduct an independent evaluation of respondent. Respondent was detained during the period of evaluation. On October 4, 1976, Dr. Peters prepared a report concerning respondent. On December 2, 1976, Dr. Avelina Dimarucot, a Warm Springs psychiatrist, prepared and filed an additional evaluation report on respondent's condition. At the hearing held December 3, 1976, Gallagher testified respondent was, in her opinion, seriously mentally ill and a danger to himself and others. She concluded that further de- tention for six months would be in the best interests of the patient. Dr. Dimarucot, in her testimony, classified respondent as "psychotic" and a danger to himself and others. Respondent offered no testimony, professional or otherwise, nor did respondent offer the report of the independent evaluator, Dr. Peters. By its findings , conclusions and final order da k d December 3, 1976, the District Court found that alternatives other than continued commitment were considered and rejected due to the seriousness of respondent's mental illness, although the precise a1 ternatives were not enumerated. The district judge concluded respondent was "seriously mentally ill" and ordered commitment be continued for a period not to exceed six months. Respondent appeals from that order. The issues raised on this appeal are: 1 . Did the District Court err in permitting, over objection, the written report of the professional person concerning the mental and physical condition of the patient to become a part of the record? 2 . Did the District Court err in permitting the testimony of respondent's institutional psychologist and psychiatrist, in derogation of the psychologist/patient and physician/patient privileges? 3, Was there sufficient evidence to support the conclusion that respondent was "seriously mentally ill" beyond a reasonable doubt ? Issue 1. Respondent first contends the District Court erred in failing to exclude from all consideration the reports of the professional persons submitted in the instant case pursuant to section 38-1306(6), R . C . M . 1947. On the one hand,respondent maintains such reports must be properly entered into evidence prior to their being considered. Yet, on the other hand, he characterizes the reports as inherently inadmissible hearsay, incapable of admission in any event. Such reports typically contain brief medical histories compiled from the hospital files of the various patients. Such inclusion, we believe, is the foundation for respondent's argument in this regard. Thus, it is asserted the reports are inadmissible hearsay in that a portion of the material contained in the reports is gleaned from accumulated documents in hospital files consisting of unsworn statements. The resulting inability of respondent to cross-examine the authors of such statements is posited as a denial of due process. This argument misses the mark. Submission of such reports at some point in an involuntary commitment proceeding is provided for by virtually every state statutory scheme. Illinois provides that hearing pursuant to a petition for involuntary commitment must be commenced by the filing of a certificate of a physician or psychologist. Ill. Rev. Stat., Chap. 91 1/2, 58-3. In New York, admission can be made upon a medical certification alone, with the burden of petitioning for a hearing on the matter being shifted, for the most part, to the patient. 34A McKinney, New York Mental Hygiene Law $31.27 et.seq..California, considered to be one of the forerunners in the reform of civil commitment procedures,provides, by the 1969 Lanterman-Petris-Short Act, for a professional person's sub- mission to the court of affidavits serving a function similar to the reports submitted in Montana. 73A Cal.Welfare & Institu- tions Code, $5 5301 et.seq. The controlling Montana legislative provision in this regard is section 38-1306(6), R . C . M . 1947. This section provided in pertinent part: "* * * the professional person in charge of the patient may petition the court for extension of the detention period. The petition shall be accompanied by a written report and evaluation of the patient's mental and physical condition. The report shall describe any tests and evaluation devices which have been employed in evaluating the patient, the course of treatment which has been undertaken for the patient and the future course of treatment anticipated by the professional person. * * *'I In analyzing the propriety of consideration of the report by the district judge, it is significant to consider the role af the report in the context of the Montana involuntary comrnit- ment procedure generally. For this purpose, an analogy can be found in the procedure whereby an affidavit in support of a request for leave to file an Information is filed with a District Court by a county attorney in a criminal case. Both the report and affidavit are grounded in and compiled pursuant to informa- tion derived from others. The weight and relative veracity attached to such documents is based primarily upon the high measure of professional responsibility traditionally inherent in the offices of the persons submitting the documents to the court. Their purpose, then, is in furnishing reasonable grounds for initiation of a legal proceeding. The documents are in neither case offered as substantive proof of that sought to be demonstrated in the proceeding. As such, the question of the admissibility of the reports or their alleged hearsay character is in fact a nullity. Respondent is correct in asserting that involuntary commit- ment constitutes a deprivation of liberty which a state cannot accomplish without due process of law. O'Connor v. Donaldson, 422 U . S . 563, 580, 95 S.Ct. 2486, 45 L ed 2d 396 (1975); Specht v. Patterson, 386 U . S . 605, 608, 87 S.Ct. 1209, 18 L ed 2d 326 ( 1 9 6 7 ) . It is well settled that due process entails the right to cross-examination. Specht v . Patterson, supra. We find sufficient protection of a patient's due process rights regarding the limited consideration of the report in the fact that the professional person compiling the report is required to be present in court and subject to cross-examination. Sections 38-1306(6), 38-1306 ( 4 ) , 38-1305(7), R . C . M . 1947. Respondent attempts to establish a parallel between consid- eration of the report of the professional person in a commitment hearing and consideration of social welfare service investigative reports in custody cases. Recent decisions of this Court require the authors of such welfare reports to testify at the custody hearing, subject to cross-examination, prior to any consideration of the reports. In re Declaring Swan Children Youths in Need of Care, Mont . - 3 567 P.2d 898, 34 St.Rep. 390 (1977); In re Mont . Moyer, - 9 567 P.2d 47, 48, 49, 34 St.Rep. 682 (1977); Ronchetto v . Ronchetto, - Mont . , 567 P.2d 456, 34 St.Rep. 797 ( 1 9 7 7 ) . However, it is significant to note that in Moyer, t h i s Court expressly approved the provision of section 10-1311(3), R.C.M. 1947, which specifically authorizes the f i l i n g of a welfare department report support of a petition for temporary custody. Moreover, Moyer is authority for the proposition that a D i s t r i c t Court is not in error i n receiving a welfare report where the record f a i l s to indicate the court considered the report i n making the actual custody determination. I n the instant case, the argument favoring reception of the report i s stronger than i n Moyer. Here, as i n Moyer, the record i n no manner suggeststhe District Court considered the reports f i l e d i n deermining respondent was seriously mentally ill. Both psychologist Gallagher and psychiatrist Dimarucot t e s t i f i e d a t the commitment hearing, and were subject t o f u l l cross-examin- ation concerning both t h e i r professional opinions and the respec- tive b a s h thereof. Further, submission of the report of a professional person i s not merely permitted, but is i n fact mandated by the express language of section 38-1306(6), R.C.M. 1947. Respondent's position regarding such reports cannot be sustained . Issue 2. Respondent argues that a professional person who has treated a given patient cannot be examined as t o any information acquired in the course of evaluation and treatment of such patient, under the psychologist/patient and physician/ patient privileges s e t forth a t sections 66-3212 and 93-701-4, R.C.M. 1947. The alternative, it i s maintained, is t o require the professional person t o advise the patient of h i s right t o remain s i l e n t prior t o the commencement of any interaction be- tween them. I The deprivation of liberty entailed by an involuntary commitment has been justified by two distinct exercises of power by the state. The s t a t e , by virtue of the common law, retains the authority t o a c t as "'the general guardian of a l l infants, idiots and lunatics"'. Hawaii v. Standard O i l Co., 405 U.S. 251, 257, 92 S.Ct. 885, 31 L ed 2d 184 (1972). Acting as parens patriae the s t a t e is vested with both the power and the duty t o promote the interests and welfare of its citizens. A s a sovereign, the s t a t e also possesses plenary power t o make laws and regulations for the protection of public health, safety, welfare and morals, commonly referred t o as police power. Jacobson v. Massachusetts, 197 U.S. 11, 24,25, 25 S.Ct. 368, 49 L.Ed. 643 (1905). The power of parens patriae, when exercised i n accordance with the requirements of substantive due process, has been held to justify commitment of a person who is shown t o have a mental disorder depriving him of the a b i l i t y t o protect h i s l i f e o r health, or rendering him dangerous t o himself. I n r e Ballay, 482 F.2d 648, 658,659 (D.C.Cir.1973). Likewise, the police power j u s t i f i e s commitment of a person whose mental dis- order has resulted in injury t o others, o r poses the imminent threat thereof. Jacob- v. Massachusetts, supra. A s indicated by the definition of "seriously mentally ill" i n Montana commitment statutes, a commitment may be predicated on either o r both of the above powers, subject t o the same s t r i c t procedural requirements. Section 38-1302(13), R.C.M. 1947. Here we note that Montana's involuntary commitment statues, effective July 1, 1975, are most progressive i n t h i s regard. I t is manifest that the state interests entailed by the two powers necessitate dispensing with the various forms of physician/ patient privilege. California maintains an express exception to the privilege in instances where the psychotherapist has cause to believe the patient suffers from a mental or emotional condition rendering him dangerous to himself or to the person or property of another. 29B Cal.Code 51024. The legislative intent in creating the exception to the privilege requirement is contained in the official law revision comment to California's 51024: "* * * Although this exception might inhibit the relationship between the patient and his psycho- therapist to a limited extent, it is essential that appropriate action be taken if the psychotherapist becomes convinced during the course of treatment that the patient is a menace to himself or others and the patient refuses to permit the psychotherapist to make the disclosure necessary to prevent the threatened danger.'' A broader exception, applicable where the psychotherapist in the course of treatment, determines the patient is in need of hospital- ization, has been recommended by the Commissioners on Uniform State Laws. 13 U . L . A . Uniform Rules of Evidence, 5503(d) ( 1 ) . In Montana, the statutes require the presence of the profes- sional person at the hearing for commitment or extended detention and corequisite availability of such professional person for cross- examination evidence, which manifests a legislative intent to create an exception to the privileged communications rule. Sections 38-1305(7), 38-1306(4), 38-1306(6), R.C.M. 1947. Precedent for such an exception can be found in the Montana Code of Criminal Procedure, which renders admissible statements of an examining psychiatrist on the issue of the mental condition of the accused, whether privileged or not. Section 95-509, R . C . M . 1947. Indeed, to uphold the assertion of the privilege in commitment proceedings would be to frustrate the state interests involved in the commitment procedure, rendering a patient's true mental condition incapable of proof. The sole persons qualified to render an educated psychological or medical opinion as to the mental condition of a patient and its actual and potential manifestations are those psychologists and psychiatrists who have been engaged in evaluation and treatment of that patient. Neither judges nor administrative personnel are as qualified as psychologists and psychiatrists to render judgments concerning a patient's mental condition. In re Bye, 115 Cal.Rptr. 382, 524 P.2d 854 ( 1 9 7 4 ) . We conclude that mental health professionals on the hospital staff qualify as "neutral factfinders . ' I Accordingly, we recognize an exception to the privilege in cases such as the instant one. Issue 3. Respondent finally challenges the sufficiency of the state's proof of serious mental illness in the instant case. The state has the burden of proving in an original commitment or extended detention proceeding the following elements: 1 . Mental disorder. 2 . Resulting self-inflicted injury or injury to others or the imminent threat thereof, or inability to protect life or health. Sections 38-1305(7), 38-1306(4), 38-1306(6), 38-1302(13), R.C.M. 1947. The standard of proof applicable in such proceedings is proof beyond a reasonable doubt. Section 38-1306(6). Proof of a mental disorder, defect or deficiency alone is an insufficient basis for involuntary confinement. OtConnor v . Donaldson, supra. Respondent argues, in essence, that the elements of "dangerousness" and "inability to protect life or health" must be proved by direct evidence of overt acts on the part of the patient . At the hearing, both professional persons, the sole witnesses, testified respondent had a mental disorder rendering him a danger to himself or others. Witness Gallagher testified respondent suffers from schizophrenia and is seriously mentally ill. Witness Dimarucot concluded respondent is psychotic. Respondent failed to cross-examine the witnesses at any length and offered no testimony in opposition to such conclusions. While proof of various acts of a patient tending to estab- lish "dangerou~ness'~ and "inability to protect life or health" through the testimony of persons related to or acquainted with the patient is ultimately desirable, such is not required, nor even possible in every case. In cases such as the instant one, the state may establish a prima facie case through the expert conclusions of qualified professional persons. Testimony of such experts is not objection- able merely because it embraces an ultimate issue to be determined by the trier of fact. McGuire v . Nelson, 167 Mont. 188, 199, 536 P.2d 768 ( 1 9 7 5 ) . Here, the state effectively established a prima facie case that respondent was seriously mentally ill. The burden thereupon shifted to respondent to overcome the case against him. Gibbons v. Huntsinger, 105 Mont. 562, 74 P.2d 443 ( 1 9 3 7 ) . In the absence of proof to the contrary, the District Court cannot be placed in error for its conclusion. The order of the District Court i s affirmed. W e Concur: Justices. . . . . . . . . . . M r . Justice Frank I . Haswell concurring: I concur in the result. Justice.

December 22, 1977

a3706a8c-9366-4d34-96ab-b09781c302c4

FLAKE v AETNA LIFE CASUALTY CO

N/A

13526

Montana

Montana Supreme Court

No. 13526 IN THE SUPREME COURT OF THE STATE OF P40MTANA 1977 VIRGINIA FLAKE, Claimant and Appellant, -vs- ST. VINCENTS'S HOSPITAL, Employer, and AETNA LIFE & CASUALTY COMPANY, Defendant and Respondent. Appeal from: Workers' Compensation Court Honorable William E. Hunt, Judqe presiding. Counsel of Record: For Appellant: Kelly and Foley, Billings, Montana William T. Kelly argued, Billings, Montana For Respondent: Anderson, Symmes, Forbes, Peete and Brown, Billings, Montana Weymouth D. Symmes argued, Billings, Montana Submitted: September 20, 1977 Decided: QEC 1 3 j m Filed: der 2 s M r . Justice John Conway Harrison delivered the Opinion of the Court. This i s an appeal from a decision of the workers' compen- sation court, Billings, that claimant sustained a 12% permanent p a r t i a l disability and awarding a lump sum payment i n the amount of $2,431.20. Virginia Flake, claimant and appellant, is a licensed practical nurse. She suffered an injury t o her lower back i n the course of her employment a t St. Vincent's Hospital in Billings on March 3, 1974. Prior t o her injury, she was employed part-time, working an average of three eight hour days per week. The record reveals claimant worked one f u l l forty hour week just prior t o her injury. Following the injury, claimant continued t o work u n t i l March 30, 1974, when the paid of the injury forced her t o discontinue her work. D r . D. R. Huard performed a laminectomy on claimant in August 1974. The workers' Compensation Division paid a l l b i l l s and l o s t wages during the period of claimant's nonemployment. O n November 18, 1974, claimant resumed work a t St. Vincent's. She was unable to do l i f t i n g because of the injury. However, she was able to work three t o four days per week and has, in fact, worked several forty hour weeks subsequent t o the injury. Her wages have increased approximately eightycents per hour, primarily due t o across the board cost of living increases, so she makes somewhat more money now than before the injury. O n August 29, 1974, D r . Huard submitted a report stating: "* * 9 : I believe there is a p a r t i a l permanent impair- ment. This following r e s u l t of laminectomy would be 20% of her spine, which converts t o 12% of the man a s a whole. * * *" The insurance c a r r i e r f o r St. Vincent's, defendant and respondent Aetna Life & Casualty Company concluded the 12% impairment factor limited i t s l i a b i l i t y under the ~ o r k e r s ' Compensation Act t o 12% o r 60 of the possible 500 weeks of maximum benefit. Multiplying 60 weeks by the weekly compensa- tion r a t e of $40.52 yielded $2,431.20, which sum was offered t o claimant. Claimant rejected the o f f e r and, on September 4, 1975, sought a de termination before the workers ' compensation court. During the hearing of November 5 , 1975, pursuant t o claimant's p e t i t i o n , claimant submitted evidence of her i n a b i l i t y t o perform c e r t a i n types of work, such a s l i f t i n g , as a d i r e c t r e s u l t of her injury. The court, by i t s findings of f a c t and conclusions of law dated August 23, 1976, accepted the c a r r i e r ' s computation of $2,431.20, upon a finding of no substantial loss of earning capacity, based upon claimant's work records and the 12% impairment rating. Claimant appeals the c o u r t ' s conclusions. The issue presented by t h i s appeal i s whether the workers' compensation court erred i n arriving a t a 12% permanent p a r t i a l d i s a b i l i t y rating, given the f a c t s of record. W e hold it did not. Claimant contends the court should not have determined d i s a b i l i t y solely upon the basis of the doctor's medical impairment rating b u t , r a t h e r , t h a t d i s a b i l i t y should be com- puted upon a consideration of "loss of earning capacity". I n making such computation, the court should properly evaluate the d i s a b i l i t y i n view of claimant's age, education, work experience, pain and d i s a b i l i t y , a c t u a l wage l o s s , and loss of future earning a b i l i t y . Here, claimant's i n a b i l i t y t o perform more than three o r four days of work should be con- sidered strong evidence of a loss of earning capacity. I n t h i s regard, claimant submits the Workers ' Compensation Act should be l i b e r a l l y construed i n favor of recovery. Respondent, however, s t r e s s e s t h a t claimant is presently working a t l e a s t a s many hours and, i n f a c t , i s earning more a f t e r than before the injury, therefore there being no actual wage l o s s there i s no loss of earning capacity. Claimant sus- tained a "bodily functional impairment" only, f u l l y compensable by the settlement offered by respondent insurance c a r r i e r . The court properly based i t s award on the percentage of such i m - pairment, t h i s being the only substantive evidence of d i s a b i l i t y . Claimant's p e t i t i o n for workers' compensation benefits pro- ceeded under and i s governed by the workers' Compensation Act, section 92-703.1, R.C.M. 1947. This section provided p r i o r t o amendment i n 1975: "Compensation f o r i n j u r i e s causing p a r t i a l d i s a b i l i t y . Weekly compensation benefits f o r injury producing p a r t i a l d i s a b i l i t y s h a l l be sixty-six and two-thirds percent (66 2/3%) of the difference between the wages received a t the time of the injury and the wages the injured employee is capable of earning thereafter, sub- jece. t o a maximum compensation of s i x t y d o l l a r s ($60.00) a week. Section 92-703.1 "* * * bases the benefit upon a c t u a l l o s s of earning capacity resulting from the injury * * *.I' McAlear v. Arthur G. McKee & Co., - Mont . - 9 558 P.2d 1134, 33 St. Rep. 1.337, 1341 (1976). It i s manifest from a reading of section 92-703.1 t h a t the t e s t f o r such l o s s of earning capacity under the Workers' Compensation Act is "the difference between the wages received a t the time of the injury and the wages the injured employee is capable of earning thereafter yc + ; *.'I Also see: Olson v. Manion's, Inc., 162 Mont. 197, 202, 510 P.2d 6 (1973). Claimant r e l i e s on decisions of t h i s Court adopting the "loss of earning capacity" t e s t . Shaffer v. Midland Empire Packing Co., 127 Mont. 211, 259 P.2d 340 (1953); Lind v. Lind, 142 Mont. 211, 383 P.2d 808 (1963); Graham v. Tree Farmers, Inc., 142 Mont. 483, 385 P.2d 83 (1963). Claimant draws support primarily from the related r u l e emerging from such cases, t h a t loss of earning power a s a r e s u l t of an injury i s not necessarily proportional t o bodily functional impairment. It i s argued t h a t t o equate a percentage bodily functional impairment rating with a percentage d i s a b i l i t y rating f o r purposes of compensation under section 92-703.1, is t o make wholly a r b i t r a r y the concept of "compensable disability". While we agree a small percentage of bodily functional impairment can r e s u l t i n a substantial loss of earning capacity and a greater compensation award i n some cases, the evidence adduced a t the hearing i n the instant case leads t o the opposite conclusion. Claimant was shown t o be working a t l e a s t a s oisny hours a f t e r the injury a s before. The f a c t claimant may have worked more hours, earned more pay, o r been promoted i n her employment had it not been for the injury, i s immaterial t o a determination of compensable d i s a b i l i t y especially where, d s here, the record i s devoid of evidence i n support of such ~ ~ o n c l u s i o n . Olson v. Manion's, Inc., supra. The s a l i e n t tact remains claimant was a part-time employee before and axter the injury. To base an o r i g i n a l compensation award upon any other c r i t e r i o n would be t o do violence t o the l i t e r a l Language of section 92-703.1. Finally, we note the medical report submitted by D r . Huard was the sole evidence i n the record substantiating the percentage of claimant's impairment. W e find the workers' zon~pensation court had no a 1 ternative, based upon the f a c t s L n the record, than t o ground the award on the impairment rating i n the l i g h t of claimant's work records and, i n so doing, accepting the settlement figure offered by respondent insurance c a r r i e r . The decision of the workers' compensation court i s a f - tirmed. i4e Concur: - f L - J u s t i c e s . M r . Chief Justice Paul G. Hatfield concurs in the r e s u l t , but not i n a l l the discussion. i e f Justice. - 6 - M r . Justice Gene B. Daly dissenting: I respectfully dissent. This claimant was performing part-time employment before her injury i.e., there was only three or four days a week available t o her. Since her operation she i s only - able to work three or four days a week even though there is more work now available t o her. There is no doubt claimant may be earning the same number of dollars or even more but t h i s is not m y understanding of the standard t o be applied when determining her right t o be paid under section 92-703.1 for diminished earning capacity. The number of dollars earned and hours spent performing her employment create a presumption of earning capacity compatible with her stated disability. This presumption may be rebutted by evidence that shows her post-injury dollars earned and time spent t o be an unreliable basis for the determination of earning capacity. Shaffer v. Midland Empire Packing Co., 127 Mont. 211, 213, 259 P.2d 340,342 (1953). Here, there seems t o be a loss of capacity t o perform as well as before the injury and a loss of a b i l i t y t o compete and earn i n the open labor market. This would bring claimant within section 92-703.1, R.C.M. 1947. . . . . . . . . . M r . Justice Daniel J. Shea dissenting: I concur i n the above dissent of M r . Justice Daly.

December 13, 1977

4d5d7133-3f3c-4350-a251-0fe184c222c4

WILLIAMS v WELLMAN-POWER GAS INC

N/A

13536

Montana

Montana Supreme Court

No. 13536 IN THE SUPRElIE COURT OF THE STATE OF MONTANA 1977 TERRY N. WILLIAMS, Claimant and Appellant, -vs- WELLMAN-POWER GAS, INC., Employer, and HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant and Respondent. Appeal from: hlorkers' Compensation Court Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Greg J. Skakles argued, Anaconda, Montana For Respondent: Poore, McKenzie, Roth, Robischon and Robinson, Butte, Montana David J. Wing argued, Butte, Montana Submitted: October 7, 1977 Decided: B()v I 4 1 g n Filed: "UY . t t374f , . + - Clerk M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court : Claimant Terry N. Williams appeals from the finding, conclusions and order of the Workers' Compensation Court dis- missing h i s claim f o r benefits on the ground the claim was not timely f i l e d . Claimant, an employee of defendant Wellman-Power Gas, Inc., was injured i n the course and scope of h i s employment February 15, 1973, when he f e l l and struck h i s elbow. H e reported the accident t o h i s employer and was taken t o see D r . John P. Lacey, who took X-rays of the elbow. The X-rays were negative, but the doctor could f e e l broken c a r t i l a g e i n the injured area. He informed claimant the c a r t i l a g e was not l i k e l y t o give him trouble but there was a p o s s i b i l i t y of severe swelling, in which case surgery would be necessary. N o treatment was recom- mended o r administered and claimant returned t o work without any loss of wages. The employer was enrolled under Plan 11 of the workers' Compensation Act with insurance coverage provided by defendant Hartford Accident & Indemnity Company. A report of occupa- t i o n a l injury and disease was f i l e d with the Workers' Compensation Division February 20, 1973. The insurer paid the medical ex- penses f o r the i n i t i a l examination. On April 10, 1973, the division n o t i f i e d the insurer t o forward Form 54, Claim f o r Compensation, t o claimant. The Workers' Compensation Court found t h i s form was duly mailed t o claimant, along with a cover l e t t e r advising him t o f i l l out the form and return it f o r the insurer's f i l e s . Claimant d i s - putes t h i s finding and denies receiving the form. Claimant did not f i l e a claim and apparently had no more trouble with the elbow u n t i l the summer of 1975, when he began t o experience pain while working f o r a d i f f e r e n t employer i n Alaska. H e returned t o D r . Lacey i n Gctober 1975, and surgery was performed by a s p e c i a l i s t . Claimant f i l e d a claim f o r com- pensation with the division December 17, 1975.The division and the Workers' Compensation Court denied the claim. Claimant presents three issue f o r review: 1) Did the twelve month s t a t u t e of limitation under section 92-601,R.C.M. 1947, p r i o r t o amendment i n 1973, commence t o run only a f t e r the discovery of a l a t e n t injury? 2) Does the amendment t o section 92-601, e f f e c t i v e July 1, 1973, apply t o t h i s action? 3) Should the employer and insurer be found t o have waived and be estopped from asserting the s t a t u t e of limitation? Because of our disposition of Issue 2), it is unnecessary t o discuss Issues 1) and 3). On February 20, 1973, the date of the accident, section 92-601, provided: "Claims must be presented within what time. I n case of personal injury o r death, a l l claims s h a l l be for- ever barred unless presented i n writing under oath t o the employer, the insurer, o r the board, a s the case may be, within twelve months from the date of the hap- pening of the accident, e i t h e r by the claimant o r someone legally authorized t o a c t f o r him i n h i s behalf." On J u l y 1, 1973, an amendment t o section 92-601 became effective. The amendment did not change the twelve month limita- t i o n period but added t h i s paragraph: "The division may, upon a reasonable showing by the claimant of lack of knowledge of d i s a b i l i t y , waive the time requirement, up t o an additional twenty-four (24) months .I1 Claimant petitioned f o r an extension under t h i s paragraph, but the court concluded the amendment could not be applied r e t r o - actively t o give the division discretion t o allow the claim. A t the outset, we note t h a t the Workers' Compensation Act has always been l i b e r a l l y construed i n favor of the injured claimant. Section 92-838, R.C.M. 1947; Rumsey v. Cardinal Petroleum, 166 Mont. 17, 530 P. 2d 433 (1975) ; S t a t e ex r e l . Romero v. D i s t r i c t Court, 162 Mont. 358, 513 P.2d 265 (1973); Ness v. Diamond Asphalt Co., 143 Mont. 560, 393 P.2d 43 (1964). W e a l s o note the 1973 amendment t o section 92-601 was passed t o a l l e v i a t e a condition t h a t was d i r e c t l y contrary t o the s t a t e d purposes and policies of the Workers' Compensation Act. Prior t o July 1, 1973, a claim was required t o be f i l e d within twelve months of the date of the accident, regardless of the circumstances. I f an injury did not manifest i t s e l f u n t i l more than twelve months a f t e r the date of the accident, the injured party had no recourse and simply was required t o bear the expenses of the injury. Criticism of t h i s ' s i t u a t i o n i s well expressed i n 3 Larson, Workmen's Compensation Law, 578.42(b), p. 15-104: "It i s odd indeed t o find, i n a supposedly beneficent piece of l e g i s l a t i o n , the survival of t h i s fragment of i r r a t i o n a l cruelty surpassing the most technical f o r f e i t u r e s of l e g a l s t a t u t e s of limitation. Statutes of limitation generally proceed on the theory t h a t a man f o r f e i t s h i s r i g h t s only when he inexcusably delays assertion of them, and any number of excuses w i l l t o l l the running of the period. But h e r e no amount of vigilance i s of any help. The limitations period runs against a claim t h a t has not yet matured; and when it matures, it i s already barred. * * *" The 1973 amendment offered a solution t o t h i s problem by granting the division the authority t o extend the time period on a reasonable showing of lack of knowledge of the d i s a b i l i t y . In view of these circumstances, it is not unreasonable t o construe the amendment l i b e r a l l y t o give it broad application. .iowever, Jeienciallc . ~ S S ~ L is that t o so construe the .smeridnlent t o apply t o the i n s t a n t claim would be a retroactive application of the s t a t u t e , contrary t o section 12-201, R.C.M. 1347, which s t a t e s : "No law contained i n any of the codes o r other s t a t u t e s of Montana i s retroactive unless expressly 50 declared." This s t a t u t e should be read i n l i g h t of the long-standing def iriition of "retroactive", expressed i n Butte & Superior Mining Co. v. McIntyre, 71 Mont. 254, 263, 229 P. 730 (1924): "* >y > ? This i s but a r u l e of construction. A s t a t u t e which takes away o r impairs vested r i g h t s , acquired under existing laws, o r creates a new 2bligation, imposes a new duty o r attaches a riew d i s a b i l i t y , i n respect t o transactions already past, is deemed retroactive." See a1sd:City of Harlem v. S t a t e Highway Commission, 149 Mont. To apply the amendment t o claims not already barred a t +he tirne the amendment took e f f e c t would not require retro- a c ~ i v e application within the meaning of t h i s amendment. N o vested r i g h t s a r e taken away o r impaired. N o new duties o r J i s a b i l i t i e s a r e imposed. The amendment simply grants the Jivision the discretion t o extend the time period i n limited circumstances. The California Supreme Court i n Mudd v. McColgan, 30 Cal.2d 463, 183 P.2d 10, 13 (1947), considered an amendment which extended a s t a t u t e of limitations. The c o u r t ' s reasoning "It i s the s e t t l e d law of t h i s s t a t e t h a t an anlesldment which enlarges a period of limitation spplies t o pending matters where not otherwise expressly excepted. Such l e g i s l a t i o n a f f e c t s the cemedy and is applicable t o matters not already 'mrred, without retroactive e f f e c t . Because the speration i s prospective rather than retrospective, there is no impairment of vested r i g h t s . Moreover a party has no vested r i g h t i n the running of a s t a t u t e of limitation prior t o i t s expiration. He i s deemed t o s u f f e r no injury i f , a t the time of an amendment extending the period of limita- t i o n f o r recovery, he is under obligation t o pay. * * * Thus t r u e retroactive operation of a limita- tion s t a t u t e i s such a s would revive matters t h a t had already been barred by the lapse of time." This case i s therefore distinguishable from Penrod v. Hoskinson, M.D., Mont . , 552 P.2d 325, 33 St.Rep. 705 (1976), r e l i e d upon by defendants. This Court i n Penrod rejected an attempt t o retroactively apply a new s t a t u t e of limitation r e l a t i n g t o medical malpractice which would have limited p l a i n t i f f ' s r i g h t t o sue under the "discovery doctrine". There was no question i n Penrod t h a t defendant was asking f o r retroactive application of the new s t a t u t e , and we found no manifestation of l e g i s l a t i v e i n t e n t t h a t it be so applied. The i n s t a n t case does not involve the retroactive application of the amendment but rather the exercise by the division of discretion which it had the power t o exercise while claimant was s t i l l e n t i t l e d t o f i l e h i s claim. W e hold the amendment applies t o a11 claims existing July 1, 1973, without retroactive e f f e c t . Claimant's action had not been barred by July 1, 1973, and therefore the division had the power t o consider h i s p e t i t i o n f o r ' a n extension of time. The workers' Compensation Court erred i n holding otherwise. While defendants argue the matter is s t i l l discretionary with the division and the division may refuse t o exercise i t s discretion, t h i s argument has no merit here. The division was obviously under the f a l s e impression it had no jurisdiction t o consider the matter, and refused t o exercise i t s discretion f o r t h a t reason. The judgment is reversed and the cause i s remanded to the Workers' Compensation Court for further proceedings consistent with t h i s opinion. W e Concur: > -- -7 ( / , / / & - - - ' ' 1 GI, chief Justice I Justices. ........................... M r . Justice Frank I. Haswell, specially concurring: I concur in the result in the foregoing Opinion. Just ice

November 3, 1977

5cb6f755-4fbc-4039-8c15-3db4fc505705

YETTER v KENNEDY

N/A

13812

Montana

Montana Supreme Court

No. 13812 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 HELGA IRIS YETTER, Plaintiff and Respondent, CHARLES C. R. KENNEDY and REBECCA Z. KENNEDY, husband and wife, Defendants and Appellants. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Larry W. Moran argued, Bozeman, Montana For Respondent: Landoe, Gary and Planalp, Bozeman, Montana Joseph Gary argued, Bozeman, Montana Huppert and Swindlehurst, Livingston, Montana Submitted: September 27, 1977 Decided: Noti 2 1 l,$'.T qp3.! 7 ' x . Filed: Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff brought suit to have an option agreement for the purchase of certain real property released and to recover damages. The jury entered a special verdict determining that the option agreement should not be released and finding no damages. Plaintiff moved for and received a judgment notwithstanding the verdict terminating defendants' rights to the option agreement. Defendants filed notice of appeal. Plaintiff subsequently moved to dismiss the appeal on the grounds defendants failed to trans- mit a transcript to the Supreme Court. Although this Court received no transcript, we have dis- cerned the following facts from the trial court exhibits submitted to this Court: On October 13, 1967, plaintiff Helga Iris Yetter entered into an agreement with J. Angus Christensen, of Salem, Utah, for the sale of certain real property near West Yellowstone, Montana. Incorporated in this agreement was a first option to purchase certain other real property upon such terms and conditions as Yetter offered it to any third party. This option was to extend "for any reasonable period of time up to twenty years". On December 1, 1967, plaintiff filed with the Gallatin County Clerk and Recorder a standard form contract denominated an "Option Contract". In it plaintiff agreed to hold the real property she had subjected to the option, subject to the order of Christensen until December 1 5 , 1987, and to transfer it to him "at and for the price and upon such terms and conditions as first party [Helga Yetter] may offer said property to any third party, such option to continue until December 15, 1987, and allowing a period of sixty days to meet such terms and conditions On November 27, 1967, Christensen assigned to defendants, Charles C. R . and Rebecca Z. Kennedy: " * * * all of his right, title and interest in and to that certain Option Agreement made and executed between HELGA IRIS YETTER of Livingston, Park County, Montana, and the said party of the first part [J. Angus Christensen], dated November 12, 1967 * * * under the covenants, conditions and terms of said Option." On August 21, 1974, plaintiff entered into an agreement with a partnership, which we shall refer to as the "Povah Partner- ship", for the sale of approximately twenty-seven acres of the real property subject to the option provision. Pursuant to that agreement, plaintiff gave written notice to defendants of the terms and conditions of the Povah Partnership's offer. Although defendants informed plaintiff they intended to purchase the real property, they did not make any payment within the sixty day period provided in the December 1, 1967 option contract. Four months later, they were still asking for further time in which to make payment. At the same time they refused to release their option agreement even though the sixty day period had elapsed. On February 14, 1975, the Povah Partnership withdrew its offer and requested the return of its down payment because of defendants' failure to release the option agreement. At no time did defendants tender any purchase money as they initially promised. After learning the Povah Partnership had withdrawn its offer, they refused to release the option agree- ment. On April 3, 1975, Helga Yetter filed suit against Charles C . R. and Rebecca Z. Kennedy seeking cancellation of the option agreement, general damages resulting from loss of the sale and impairment of her credit, plus punitive damages for slandering her title. On March 10, 1977, the jury returned a special verdict finding : (1) That plaintiff had notified the defendants of an offer from a third party to purchase the real property in ques- tion. (2) That plaintiff had notified the defendants of the offer on September 13, 1974. (3) That the sixty day period in which to meet the terms and conditions of the Povah Partnership's offer expired November 12, 1974. (4) That defendants should not be compelled to release the "Option Agreement". (5) That defendants had not interfered with the perform- ance of the contract of sale between Yetter and the Povah Partner- ship. The jury did not award the plaintiff general or punitive damages. The District Court entered judgment in accord with the special verdict. Plaintiff timely filed a motion for judgment notwith- standing the verdict, requesting the District Court to enter judg- ment declaring defendants had breached their option agreement and to order them to release the "Option Agreement". The District Court granted plaintiff's motion. Although defendants filed notice of appeal on April 12, 1977, they never ordered a transcript of the trial from the court reporter, nor was one ever transmitted to this Court for purposes of the appeal. In addition, they failed to file and serve upon the plaintiff within ten days after filing notice of appeal, statements indicating they did not intend to transmit any portion of the transcript to this Court and enumerating the issues they intended to present on appeal. On July 1, 1977, plaintiff filed a motion with this Court to dismiss defendants' appeal due to their failure to order a transcript of the trial proceedings and to transmit it to this Court. We grant plaintiff's motion. Rule 10(a), M.R.App.Civ.P., provides that the record on appeal, including any transcript necessary for the determination of the appeal, shall be transmitted to the Supreme Court within 40 days after filing a notice of appeal, unless that time is shortened or extended by order of either the District Court or the Supreme Court. Although the District Court file and the exhibits from the District Court trial were sent to this Court, the trial transcript was not included. Nor was any order to extend the time to transmit the transcript requested or made. Rule 9(b), M.R.App.Civ.P., delineates the duties of the appellant in regard to ordering a transcript of the trial pro- ceedings : "Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclu- sion in the record. In all cases where the appel- lant intends to urge insufficiency of the evidence to support the verdict, order or judgement in the district court, it shall be the duty of the appel- lant to order the entire transcript of the evidence. Wherever the sufficiency of the evidence to support a special verdict or answer by a jury to an in- terrogatory, or to support a specific finding of fact by the trial court, is to be raised on the appeal by the appellant, he shall be under a duty to include in the transcript all evidence relevant to such verdict, answer or finding. Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the respondent a description of the parts of the transcript which he intends to include in the record and a statement of the issues which he intends to present on the appeal. If the respon- dent deems a transcript of other parts of the proceedings to be necessary he shall within 10 days after such filing and service order such parts from the reporter or procure an order from the district court requiring the appellant to so do." If the appellant fails to cause timely transmission of the record, the respondent may file a motion in the Supreme Court to dismiss the appeal. Rule ll(c), M.R.App.Civ.P. Plaintiff contends that defendants' appeal challenging the District Court's entry of judgment notwithstanding the ver- dict is, in effect, an assertion that there is insufficient evidence to support the District Court's order. Under Rule 9(b), M.R.App.Civ.P., therefore, defendants are required to transmit the entire transcript of the trial court proceedings to the Supreme Court. Defendants assert the issues they raise on this appeal are issues of law and that the trial transcript is not necessary for their resolution. As defendants themselves framed the issues, two questions are presented: (1) Did the District Court err in granting plaintiff's motion for judgment notwithstanding the verdict? (2) When is a preemptive right [a right of first refusal] to acquire property terminated? The trial transcript, however, is necessary for a resolution of the issues they raise. The question involved in whether a judgment notwithstand- ing the verdict was proper is not whether there was sufficient evidence to support the District Court's order. A motion for such a judgment may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. "Where there is conflicting evidence, or there is insufficient evidence to make a 'one-way' verdict proper, judgment n.0.v. should not be awarded." 5A Moore's Federal Practice ! [ 50.07[2], p. 2356. Both questions, however, require careful examination of the entire transcript of the trial court proceedings. Montana's Rules of Appellate Civil Procedure are patterned after the Federal Rules of Appellate Procedure. " * * * the burden of showing error by reference to matters of record is upon the appellant. Unless the record that he brings before the court of appeals affirmatively shows the occurrence of the matters upon which he relies for relief, he may not urge those matters on appeal." 9 Moore's Federal Practice 1l210.05[1], pp. 1618, 1619. Where sufficiency of the evidence to support a judgment not- withstanding the verdict is the issue on appeal, the transcript of the trial proceedings is necessarily an integral part of the record and must be transmitted to this Court. An appeal, however, will not automatically be dismissed in every instance when the Rules of Appellate Civil Procedure have not been strictly followed. Moore's Federal practice ad- vocates that the presence of a rule such as Rule ll(c), M.R. App.Civ.P., should not suggest "the drastic sanction of dismissal [be] the normal consequence of delay in effecting transmission of the record." 9 Moore's Federal Practice 11212.05, p. 1909. Rule 4(a), ~.~.App.civ.P., expressly provides: " * * * Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the supreme court deems appropriate, which may include dismissal of the appeal." In this case the defendants' fault does not lie in mere delay in effecting transmission of the record on appeal, it lies in their complete failure to order and to transmit a tran- script to this Court. Nor did they apparently ever file and serve upon the plaintiff a description of the parts of the tran- script they intended to include in the record and a statement of the issues they intended to present on appeal. Rule 9(b), M.R. App.Civ.P., requires such a filing within ten days after filing notice of appeal, when the appellants are not transmitting the entire transcript. On June 23, 1977, plaintiff gave defendants notice that she intended to move for a dismissal of the appeal because defendants had failed to cause timely transmission of the record. Subsequent to this notice the defendants still failed to transmit a transcript to this Court, or to otherwise comply with Rules 9(b) and 10(a), M.R.App.Civ.P. Defendants have demonstrated a complete lack of adherence to the Montana Rules of Appellate Civil Procedure. Their failure to transmit the transcript of the trial court proceedings leaves us unable to decide the issues they present. Concerning the quality of the brief submitted by the defendants--while we appreciate conciseness and brevity in briefs submitted on appeal, we do not appreciate briefs in which the arguments made are without substantive explanation and are marked by a total lack of authority in their support. The appeal is dismissed. Justice

November 21, 1977

13fa3c12-7d96-4259-8c25-2b0ca6f6326b

IN RE MILLER

N/A

13718

Montana

Montana Supreme Court

No. 13718 IN THE SUPREbE COURT OF THE STATE OF MONTANA IN RE: THE MATTER OF HERBERT MILLER. Appeal from: District Court of the Third Judicial District, Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: James Dorr Johnson argued, Warm Springs, Montana Steven Bunch, Helena, Montana For Respondent: Mark P.Sullivan argued, Butte, Montana Nick A. Rotering, Helena, Montana ~iled: DEC 22 1977 Submitted: November 28, 1977 ?cr 2~ . - Decided: - i u . M r . Justice John Conway Harrison delivered the Opinion of the Court. This appeal results from proceedings pursuant t o section 38-1312, R.C.M. 1947. The d i s t r i c t court, Deer Lodge County, the Hon. Robert Boyd presiding, found Herbert Miller t o be seriously mentally ill and ordered an extension of h i s commit- ment period a t Warm Springs State Hospital for s i x additional months. Miller was f i r s t committed t o Warm Springs i n 1956. The . reason for admission was given a s acharge of homicide. Miller was l a s t committed to Warm Springs by court order on January 9, 1957. Section 38-1312, R.C.M. 1947, requires that any person who, by reason of a judicial decree, was adjudged mentally ill prior t o the enactment of T i t l e 38, Chapter 13, shall, within one year following the effective date of the a c t be released, unless a petition for an extended detention order is filed. The required petition was f i l e d by Warm Springs s t a f f psychologist Katherine Gallagher on June 29, 1976. Miller had been under the care and supervision of psychologist Gallagher prior t o the f i l i n g of the petition. The petition was accom- panied by a written report and evaluation of h i s mental and physical condition a s required by section 38-1306(6) (now 38- 1306(3), by 1977 amendment), R.C.M. 1947, compiled by psycholo- g i s t Gallagher. Upon application of counsel for Miller, Judge Boyd appointed D r . Ben Peters, a psychia trist from Anaconda, Montana, t o inde- pendently evaluate him. The hearing pursuant t o the petition was held on December 3, 1976. Psychologist Gallagher was the sole witness t o testify. A t the beginning of the hearing, counsel for Miller moved to s t r i k e the psychologist' report from the court f i l e on the grounds it constituted hearsay evidence. The District Court denied the motion. Counsel additionally asserted the psychologist/patient privilege under section 66-3212, R.C.M. 1947, a s a bar to the testimony of psychologist Gallagher. That motion was likewise denied. A t the conclusion of the hearing, the District Court con- cluded Miller was "seriously mentally ill" and ordered h i s detention a t Warm Springs be extended for an additional s i x months, Miller appeals. \ The issues raised and arguments advanced on appeal by Miller a r e identical t o those considered i n the companion case In the Matter of Curtis Sonsteng ( t h i s Court's No. 13719, decided December , , 1977), and reference is made thereto. W e find no need t o repeat our prior holdings and discussion of the relevant procedures and legal principles a s found i n Sonsteng. The order of the District Court is affirmed. W e Concur: Justices.

December 22, 1977

b8c9eb89-23e5-4124-99f6-51fc12b6140b

STATE v BAUGH

N/A

13547

Montana

Montana Supreme Court

N o . 13547 I N THE SUPREME COURT OF THE STATE O F M O N T A N A 1977 THE STATE O F MONTANA, P l a i n t i f f and Respondent, -vs- RANDALL CRAIG BAUGH, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t c o u r t o f t h e E l e v e n t h J u d i c i a l D i s t r i c t , Honorable Robert Sykes, Judge p r e s i d i n g . Counsel o f Record: For A p p e l l a n t : Donald L. S h a f f e r a r g u e d , Libby, Montana For Respondent : Hon. Mike Greely, A t t o r n e y General, Helena, Montana A l l e n B. C h r o n i s t e r a r g u e d , A s s i s t a n t A t t o r n e y General, I-lelena, Montana William A. Douglas argued, County A t t o r n e y , Libby, Montana Submitted: September 29, 1977 Decided: YO\I i 5 ]gn F i l e d : l U \ ( , S : ~ f l M r . Justice Gene B. Daly delivered the Opinion of the Court. I n August 1975, the body of ~ a v i d s c c a was discovered i n an isolated area of Lincoln County, Montana. Sometime a f t e r that, warrants of a r r e s t were issued for Randall Craig Baugh, defendant herein, and William Beechman. William Beechman has never been found. I n November 1975, Randall Craig Baugh turned himself i n t o the authorities. Defendant was arraigned and plead not guilty t o the charge of deliberate homicide i n the District Court, Lincoln County. P r e t r i a l motions were made by the s t a t e and the defense. Among these was a motion by the s t a t e t o amend the Information as t o the alleged date of the crime and motions for discovery made by defendant. Two prospective witnesses were arrested by the s t a t e for the deliberate homicide of Davidmcca. One, Randy Jacobsen, was arrested before the defense could t a l k t o him and held over night. It was a week a f t e r t h i s incident that Jacobsen consented t o an interview by the defense. The other witness, William Phillip Stuart, was arrested i n N e w Mexico and then released. The defense requested the court t o help locate Stuart. The court ordered the Lincoln County s h e r i f f ' s office t o cooperate with the Lincoln County public defender's office i n locating Stuart because the Lincoln County public defender has no budget o r personnel t o pursue such matters. The Lincoln County s h e r i f f ' s office located Stuart i n N e w Mexico, did not inform the public defender, but instead informed the Lincoln County attorney, who then flew t o N e w Mexico, interviewed Stuart, arrested him, gave him a polygraph examination, released him, flew back t o Montana, and then informed the defense and the court of the whereabouts of Stuart. T r i a l was had in Lincoln County, Montana, starting on M a y 17, 1976. The jury was interviewed prior t o voir d i r e by Hon. Robert C. Sykes, because of a controversy that existed a t t h a t existed a t that time between the Lincoln County sheriff and the county attorney, William Douglas. Evidence began on May 18, 1976. O n May 21, 1976, the defense made two motions for a mistrial. The f i r s t motion was made because defendant had been brought t o court on the morning of M a y 21 i n handcuffs, and thoehandcuffs were unlocked in front of the jury before the t r i a l commenced. The reason for the handcuffs, according t o the deputy sheriff, was the defendant's bickering. The other motion was because a juror, Sandy Kolar, had evidence of the matter acquired outside of the t r i a l . I n fact, Kolar was present with Douglas when videotape of the exhumation of the body of D a v i d p c c a had been shown. Douglas was fully aware Kolar was present a t t h i s videotape showing. Both motions for mistrial were denied; Kolar was excused and an alternate juror was seated. A further motion for m i s - t r i a l was made and a motion for a directed verdict. Defendant was found guilty and sentenced t o 75 years i n the Montana s t a t e prison. Defendant appeals from the judgment, and presents four issues on appeal: 1. Whether a defendant charged with deliberate homicide has a right t o a jury instruction on mitigated deliberate homi- cide? 2. Whether the a r r e s t of potential defense witnesses deprives a defendant of due process and a f a i r t r i a l ? 3. Whether it i s reversible error for an accused to appear i n handcuffs before a jury? 4. Whether the replacing of a juror who is a personal friend of the prosecutor and has personal knowledge of evidence of the. case is error, i f replaced by an alternate juror prior to the time the jury goes into deliberations? Issue 1. Is a defendant charged with deliberate homicide entitled t o a jury instruction on mitigated deliberate homicide even though no evidence i s presented on that issue. Under sectlon 94-5-103, R.C.M. 1947, deliberate homicide is mitigated i f committed "under the influence of extreme mental or emotional s t r e s s for which there i s reasonable explanation or excuse." A s ascertained from the record, defendant's theory is that he did not k i l l the deceased and had no knowledge of who did. A t t r i a l , defendant's attorney, in h i s opening statement stated: "* * * 'Now,-,Randy w i l l take the stand and I w i l l t e l l you essentially what he w i l l say. H e has no knowledge o r information as t o how ~ a v i d G c c a met h i s death, he could speculate and that is a l l it would be i s pure speculation, he doesn' t know, * * *" This Court reaffirmed the Montana rule on the requirement fbr an instruction on mitigated deliberate homicide i n State v. Buckley , Mont , , 557 P.2d 283, 33 St.Rep. 1204, 1207 (1976) and s e t out t h i s t e s t : "* * * the d i s t r i c t court's instructions must cover every issue or theory having support in the evidence, and the inquiry of the d i s t r i c t court must only be whether o r not any evidence exists i n the record to warrant an instruction on mitigated deliberate homicide .'' 557 P.2d 285. The United States Supreme Court i n Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L ed 2d 844 (1973), stated that the defendant i s 'entitled t o instruction on a lesser included offense, i f evidence would permit the jury rationally t o find him guilty of the lesser offense and acquit him of the greater. I n the instant case there was no evidence i n the record t o show mitigation a s required by section 94-5-103. In f a c t , defendant's theory throughout the t r i a l was that he did not murder the victim. In State v. McDonald, 51 Mont. 1, 16, 149 P. 279 (1915), it was said: "* * * I n many instances, however, the evidence i s such as t o show that the defendant is either guilty of the offense charged o r is entitled t o an acquittal. In such cases the court may not be put i n error for refusing o r f a i l i n g t o instruct a s to the lower degree o r the included offense ." This rationale applies to the instant case, and the t r i a l court acted properly in not giving the alternate instruction on m i t i - gated homicide. Issue 2, concerns the county attorney's arresting and holding *itnesses Jacobsen and Stuart and a f t e r questioning releasing them. Defendant alleges t h i s prejudicially impaired the effectiveness of defense counselfs e f f o r t s t o interview these same witnesses. This Court i n State v. Gangner, 73 Mont. 187, 194, 235 P. 703 (1925) stated: "Whatever the popular notion may be, it i s neither the duty nor the right of the s t a t e , acting through its public officers, t o secure the convic- tion of one of i t s citizens by any available means, f a i r or foul. The Constitution guarantees t o everyone accused of crime a f a i r and impartial t r i a l * * * and the s t a t e had no more right t o deny defendant's counsel access t o a witness material t o the defense then it would have had t o secrete the witness t o prevent the defendant using him * * *.I' In the instant case while defense counsel was able t o t a l k t o these witnesses, defendant contends the prosecution so intimidated them that the effectiveness of the interviews was substantially diminished. Yet, there i s no showing how the prosecution intimidated these witnesses or that it in- structed them not t o cooperate with the defense attorney, or that it otherwise attempted t o directly impede the effectiveness of defense counsel. The record shows that a t the time these witnesses were interviewed and arrested, they were potential defendants i n t h i s case. There is extensive discussion in1 the record concerning these witnesses. It i s clear from that discussion the court took every action possible t o provide the defense access t o them. While defense counsel may have had d i f f i c u l t y in locating and interviewing witnesses Jacobsen and Stuart, there is nothing i n the record to show lack of due process, which could be a t t r i - buted to the s t a t e ' s investigatory procedure. Issue 3. O n the morning of May 21, 1975, defendant was escorted into the courtroom i n handcuffs by a deputy sheriff. Apparently the handcuffs were removed once defendant was i n the courtroom. Counsel for defendant contends defendant having been seen by the jury i n handcuffs i s reversible error. When the handcuff incident occurred, defense counsel moved i n chambers for a mistrial and was denied. Ruling, however, on the mistrial was reserved in order t o give the court opportunity t o question the jurors a f t e r the verdict was in t o determine whether the jurors were influenced by the handcuff incident. This was done a f t e r the jury reached its verdict, but before it was announced. This exchange took place between the court and jurors: "THE COURT: N o w before presenting t h i s verdict t o .me, I would l i k e t o ask the jurors some questions. Did any of the jury observe the defendant during the course of the t r i a l being brought into the courtroom in handcuffs? "THE JURY: Yes sir. "THE COURT: Now, did that i n any way affect any of you i n your deliberations a s t o h i s g u i l t or innocence? ''THE JURY: No. "THE COURT: It did not, any of you? The basic principles of the criminal justice system is that an accused, whatever h i s past record, is presumed innocent u n t i l proven guilty beyond a reasonable doubt. Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L ed 481 (1895). It follows that the accused is also entitled to the indicia of innocence. I n the presence of the jury, he is ordinarily entitled t o be relieved of handcuffs, o r other restraints, so he w i l l not be m d e d as an obviously bad person o r to suggest that the fact of h i s g u i l t i s a foregone conclusion. United States v. Samuel, 431 F.2d 610, 614 (4th C i r . 1970). The Montana case closest in point i s State v. Bentley, 155 Mont. 383, 472 P.2d 864 (1970). There t h i s Court held the defendant was not prejudiced by having t o wear j a i l clothing during the t r i a l . However, the Ninth Circuit Court i n Bentley v. Crist, 469 F.2d 854 (1972), reversed the Montana holding and held that compelling the accused t o wear prison clothing mag deny him the presumption of innocence. I n State v. Sawyer, 60 Wash.2d 83, 371 P.2d 932 (1962), - the defendant was handcuffed i n the courtroom upon adjournment, much like the instant case wherein the defendant was brought into court handcuffed and then unlocked. The court found no prejudicial error. Sawyer relied upon W a y v. United States, 285 F.2d 253, 254, (10th C i r . 1960) where, a s here, the defendant was brought into t r i a l handcuffed, without order of the court, and the handcuffs were then removed. I n Way the court held that "in the absence of an indication of pre- judicial consequences, such an occurrence does Inot warrant the granting of a new t r i a l . " It i s incumbent upon defendant t o demonstrate actual prejudice, which he has not done here. The Ninth Circuit i n United States v. Kress, 451 F.2d 576 (1971), held that an appearance before the jury during t r i a l by a defendant i n shackles is not inherently prejudicial. The majority rule i s that, absent unusual circumstances, a prisoner brought into court for t r i a l is entitled t o appear free from a l l bonds o r shackles, t h i s right being an important component of a f a i r and impartial t r i a l . However, i n State v. Jones, 130 N.J.Super. 596, 328 A.2d 41 (1974), the court held defendant's right t o be free of shackles during t r i a l need not be extended t o the right to be free of shackles while being taken back and -forth between the courthouse and the j a i l . Most courts now agree with Sawyer that a defendant i s not denied a f a i r t r i a l and i s not entitled t o a mistrial solely because he was momentarily and inadvertently seen.:in handcuffs by jury members. I n the instant case counsel f o r defendant admits the jury was well aware of the fact defendant was i n custody and not free on bail. There is no indication t h i s occurrence was pre- judicial. In the absence of an indication of prejudicial conse- quences, such an occurrence does not warrant the granting of a new t r i a l . - 8 - Issue 4 . O n M a y 21, 1976, five days a f t e r the t r i a l commenced it came t o the court's attention that juror Kolar, along with the county attorney and h i s wife had, several months prior t o t r i a l , viewed a videotape of the exhumation of the deceased. This fact was unknown t o the court and counsel for the defendant prior to that time. Z t was immediately apparent t o the court that: "* * * under these circumstances, M i s s Kolar was not qualified nor should have been made part of t h i s jury unless t h i s was known t o defendant's attorney prior t o t h i s time. 11 Prior t o determining a course of action, the court called juror Kolar into chambers and i n the presence of counsel and defendant, the following transpired : "THE COURT: So would you have the b a i l i f f,:aBki her t o come in here. The l a s t time I asked, I think I asked Mrs. Hunt t o come in here and I scared the t a r out of her. Well,- I don' t want t o scare the t a r out of you. It has just come t o m y attention and con- firmed by M r . Douglas that prior to the time of t h i s t r i a l , i n h i s .presence, you did observe and see the videotaping that had been conducted of the exhumation of the body. "MISS KOLAR: Yes. "THE COURT: Well, now it is m y opinion that that should have in i t s e l f disqualified you from partici- pating i n t h i s t r i a l , because you have observed part of the process of the interrogation and investigation of t h i s case and that could affect your deliberations fiossibly and t h i s information, not being known t o M r . Shaffer prevented him from possibly exercising the right of a peremptory challenge that he might have exercised or might not have. Now, what I a m concerned with i s whether or not during the course of t h i s t r i a l have you a t any time discussed t h i s fact with any other member of the jury? "MISS KOLAR: No, I have not. "THE COURT: And there hasn't been any juror that knows f r o m you that you saw any of t h i s videotaping o r anything? "MISS KOLAR: N o ." It was further developed upon questioning by defense counsel that juror Kolar was a friend of the county attorney, and "more so" of h i s wife and the videotape was viewed prior t o going t o see a movie. The court then further questioned juror Kolar: "THE COURT: Well, just one thing. A s it pertained t o your participating on the jury and i n the voir dire, you f e l t that viewing that had not in any way affected your opinion as t o the g u i l t or innocence of M r . Baugh? "MISS KOLAR: No. sir. "THE COURT: And you f e l t that since t h i s was just a viewing of the exhumation that that in no way would affect your deliberations? "MISS KOLAR: No, it would not. "THE COURT: Now, did you f e e l that your friendship with Mrs. Douglas and your knowledge of M r . Douglas would , .. . !. in- any way affect your deliberations? MISS KOLAR: No, sir." The court then excused juror Kolar from further service and even though thisvinformation "should have been disclosed by M r . Douglas during the voir dire" the court f e l t the t r i a l could proceed by seating one of the alternate jurors. The court's finding that no prejudice had resulted i s clear from the denial of defendant's motion for a mistrial. I In open court, the jury, with the alternate s i t t i n g for Kolar, was admonished: ':'THE COURT: JC * * M r . Smith, a t t h i s time, you should take the jury box and i n so doing, although the Court knows o r makes t h i s assumption, the reasons for Miss Kolar's not participating in any further proceedings should not and w i l l hot affect the r e s t of you jurors participating i n t h i s case and that we are proceeding with the t r i a l . That was one of the reasons we have alternate jurors i f certain circumstances do arise. Now, a t t h i s time, having reconvened, M r . Douglas, c a l l your next witness ." A t the conclusion of the t r i a l , a f t e r the jury had reached i t s verdict, but before that,verdict was announced, the court questioned the jury: "THE COURT: During the time that Miss Kolar was a member of the jury, did she discuss with any of you any of the evidence on the t r i a l ? "THE JURY :' No. "THE COURT: Let the record show that a l l of the jury answer no t o that question. That the previous question, they stated that the bringing of the defendant i n handcuffs into the courtroom in t h e i r presence did not affect their deliberations and the presumption of the defendant's innocence u n t i l proven guilty. Now, the fact that Miss Kolar was removed from the jury and M r . Smith replaced her, did that i n any way affect your deliberations on t h i s case? "THE JURY: N o .I1 Defendant was not prejudiced by the occurrence involving juror Kolar. While serious prejudice may have arisen i f juror Kolar had participated i n the verdict, those problems were thus arrested by replacing her with an alternate juror and the further safeguards taken by the t r i a l judge. The verdict and judgment of the t r i a l court i s affirmed. .---We Concur : 1

November 15, 1977

f606d027-d0ef-454b-8f35-49c0c7a0b528

STATE v KNAPP

N/A

13774

Montana

Montana Supreme Court

No. 13774 I N T H E SUPREME COURT O F THE STATE O F M O N T A N A T H E STATE O F M O N T A N A , P l a i n t i f f and Respondent, T O N Y M. KNAPP, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t , Honorable Frank E. B l a i r , Judge p r e s i d i n g . Counsel of Record: For Appellant: Schulz, Davis and Warren, D i l l o n , Montana John Warren argued, D i l l o n , Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, F4ontana Daniel Kernmis argued, Missoula, Montana W. G. G i l b e r t , 111, argued, County Attorney, D i l l o n , Montana Submitted: September 2 9 , 1977 F i l e d : ' . . - . 6 ~ , - - , l e r k M r . Justice Daniel J. Shea delivered the Opinion of the Court: Defendant appeals from an order of the District Court, Beaverhead County, revoking a deferred imposition of sentence for failure t o make regular reports t o a probation officer, and sentencing the defendant t o two concurrent 10-year terms i n prison for two counts of robbery. On appeal defendant alleges the d i s t r i c t judge abused h i s discretion when he revoked defendant's deferred imposition of sentence. He claims the judge was unduly influenced by public opinion when he revoked, that he mistook the defendant for an- other defendant being sentenced the same day i n the same court, that the judge misunderstood the offenses involved i n the defendant's own case, and that he based h i s decision on in- sufficient evidence. Because of the apparent confusion a s t o the crimes involved, which confusion may have existed before the revocation order, w e are compelled t o s e t aside the revocation and sentencing. W e find no merit in defendant's other allegations of abuse of discretion. Defendant was charged with two counts of robbery and one count of burglary by Information f i l e d March 13, 1975. He pled guilty t o the two robbery counts on arraignment May 20, 1975. The court dismissed the burglary count on motion of the county attorney. On June 17, 1975, the court imposed a three year deferred imposition of sentence on both counts of robbery. A s a condition of the deferred imposition, the court required de- fendant t o abide by the rules and r e g u l a t i o n ~ of the State Board of Pardons. One of the rules required defendant t o make monthly reports t o a parole officer. Defendant reported regularly t o a parole officer from June 17, 1975 t o June 15, 1976, but then failed t o report for the next four months, a t which point the probation department issued a report of violation .and issued an a r r e s t warrant. Defendant was arrested February 28, 1977, and appeared with counsel March 10, 1977, a t a hearing on the s t a t e ' s motion t o revoke the defendant's deferred imposition of sentence. The probation officer t e s t i f i e d t o the failure t o make monthly reports and h i s violation report was admitted in evidence. De- fendant did not explain h i s failure t o report. After granting the motion to revoke, the d i s t r i c t judge commented that he was "subject t o untold criticism" for h i s original decision t o defer the defendant' s imposition of sentence. Although he commented on the two counts of robbery before he revoked the deferred sentence, almost immediately a f t e r the order of revocation he sentenced defendant t o s i x months i n j a i l and a $500 fine for misdemeanor theft, and 10 years i n prison for felony theft. Counsel for defendant pointed out t o the judge that the offenses to which the defendant had pled guilty were two counts of robbery. A t that point the judge reexamined the Information charging the defendant, and sentenced him t o 10 years on felony t h e f t and 10 years on burglary. Counsel for defendant again corrected the judge as t o the offenses in- volved, and the judge imposed a sentence of 10 years i n prison on each count of robbery, the terms t o run concurrently. W e do not agree with defendant's contention that the judge was unduly influenced by public opinion. H i s comment that he had been "subjected t o untold criticism" by imposing the original sentence was made i n the permissible context that the judge originally had conf idence i n defendant but defendant had not upheld that; confidence. Such comment i s not necessarily an indication of passion o r prejudice as defendant asserts. In Commonwealth ex r e l . Hendrickson v. Myers, 182 Pa.Super. 169, 126 A.2d 485, 488 (1956), the reviewing court stated in a similar situation: '"Judge ~ o y e r ' s remarks * * * were characteristically phrased in terms of almost personal concern that relator had not seen f i t to p r o f i t by the prior con- sideration given him by the juvenile court probation. W e cannot believe that there was any element of * * * or unfairness present i n h i s mind. I t 1 The same is true i n the instant case. Here, the t r i a l judge as much as stated he had confidence i n defendant and com- passion for h i s wife and child, but defendant did not uphold h i s confidence. Furthermore, the evidence clearly showed a violation of the probation conditions. Defendant admitted he agreed t o follow the rules and regulations of the parole board, one of which required regular reports t o a probation officer. Montana Administrative Code 5 5 20-3.10(18)-S10150; 20-3.10(6)-S10060 (1) ( f ) . Section 95-3305, R.C.M. 1947, provides that failure t o abide by a condition of probation is grounds for revocation of probation. A failure t o report is sufficient grounds for revocation. People v. McCaster, 19 111.App.3d 824, 313 N.E.2d 308,309 (1974); Moore v. State, 0kla.Cr. 1971, 489 P.2d 1359, 1360. While revoking solely m that ground should be sparingly used, here there was an 8 month period between defendant's failure t o report and ultimate arrest. Moreover, a t the hearing he did not explain h i s failure to report, nor h i s conduct during those 8 months. One of the reasons for requiring a report is t o have a t l e a s t some idea of what defendant had been doing during the interim period. The probation office had no idea. I n f a c t , it did not even know where he was during that time. Section 95-2206(1), R . C . M . 1947, gives the court discretion t o revoke a deferred sentence and w e cannot say that discretion was abused under the above facts. Even though a d i s t r i c t court has the discretionary power t o revoke a deferred sentence, that discretion must be exercised i n such manner that the sentencing judge knows who the defendant is and the charges upon which the s t a t e is seeking t o have a sentence imposed. I n the present case we cannot say with any certainty that the d i s t r i c t judge before he revoked the deferred sentence, knew defendant had pled guilty only t o two counts of robbery. Here, immediately a f t e r the judge revoked the deferred sentence, he sentenced the defendant for misdemeanor t h e f t and felony theft. For misdemeanor theft he sentenced defendant t o the maximum, 6 months i n the county j a i l and a $500 fine. For felony t h e f t he sentenced defendant t o 10 years i n prison. Defendant was never convicted of misdemeanor theft. A charge of felony theft, f i l e d along with the robbery charges, was dismissed. It was only a f t e r a prolonged discussion between defense counsel, the prosecutor, and the judge that the judge realized the only charges before the court were 2 counts of robbery. Defendant was then sentenced t o 10 years on each count of robbery, the sentences t o run concurrently. - 5 - Although the record does not reveal what was i n the judge's mind before he revoked the deferred sentence, w e can only speculate a s t o whether h i s mistaken impression that defendant had been convicted of felony theft and misde- meanor t h e f t influenced h i s decision t o revoke the deferred sentence. Since defendant had been convicted of neither, the order of revocation, and consequently, the sentencing, must be s e t aside. Incorrect o r misunderstood information regarding a de- fendant may be grounds f o r vacating a sentence imposed upon him on the basis of that information. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L ed 1690,1693 (1948); United States ex r e l . Jackson v. Myers, 374 F.2d 707 (3rd C i r . 1967); United States v. Weston, 448 F.2d 626 (9th C i r . 1971) ; United States v. Espinoza, 481 F.2d 553 (5th C i r . 1973); State v. Gowin, 97 Idaho 146, 540 P.2d 808*(1975). I n Townsend the sentencing court considered two dismissed charges against the defendant and two charges of which the defendant had been acquitted. O n setting aside the sentence and remanding for resentencing, the United States Supreme Court stated: "* * * W e are not a t liberty t o assume that items given such emphasis by the sentencing court, did not influence the sentence which the prisoner is now serving. "We believe that on the record before us, it is evident that t h i s uncounseled defendant was e i t h e r overreached by the prosecution's submission of m i s - information t o the court or was prejudiced by the court's own misreading of the record. * * * Conse- quently * * * t h i s prisoner was sentenced on the basis of assumptions concerning h i s criminal record which were materially untrue. Such a result, whether caused by carelessness or design, i s inconsistent with due process of law, and such a conviction cannot stand." 92 L ed 1693." W e recognize that counsel was not present in Townsend, but was present in the instant case, and the i n i t i a l hearing in t h i s case was a revocation hearing, as opposed to a sentencing hearing. However, not much could be done here by counsel to correct an erroneous impression i n the judge's mind that could have existed before his revocation order. The information did not come out u n t i l a f t e r the revocation order. Surely a de- fendant can be prejudiced as much by mistaken assumptions concerning his criminal background when a deferred sentence is revoked, as he can when he i s sentenced, In United States v. Weston, supra, the court stated: "In Townsend v. Burke * * * the Supreme Court made it clear that a sentence cannot be predicated on false information. * * * A rational penal system must have some concern for the probable accuracy of the informational imputs i n the sen- tencing process ." 448 F. 2d 634. In Ryan v. C r i s t , Mont . , 563 P.2d 1145, 34 St,Rep. 342 (1977), this Court held the sentencing court to rigorous standards with regard to the use of information before the court i n a presentence report. Rigorous standards are equally as important when the t r i a l court is passing upon the s t a t e ' s motion to revoke a deferred or suspended sentence. W e hold the t r i a l judge must have, and the record must reflect that he has, substantially correct information concerning the de- fendant before he can affect a defendant's substantial rights by entering an order of revocation. The order of revocation and sentence is set aside and the cause is remanded for further hearing on the s t a t e ' s petition t o revoke. W e Concur:. * - L ' - 6 :A ,.; $ , ' . Chief M t i c e Y Justices.

November 1, 1977

f80ef715-81d4-4793-a54a-ca9939a7673c

Discover Bank v. Ossello

2016 MT 50

DA 15-0301

Montana

Montana Supreme Court

DA 15-0301 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 50 GLOBAL CLIENT SOLUTIONS, LLC, Third-Party Defendant and Appellant, v. SUSAN M. OSSELLO, Defendant, Third-Party Plaintiff and Appellee. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DV-13-289 Honorable Kurt Krueger, Presiding Judge COUNSEL OF RECORD: For Appellant: Brendon J. Rohan, Emma R. Armstrong, Poore, Roth & Robinson, Butte, Montana Richard W. Epstein, Greenspoon Marder, P.A., Fort Lauderdale, Florida For Appellee: A. Clifford Edwards, Triel D. Culver, Edwards, Frickle & Culver, Billings, Montana Submitted on Briefs: November 18, 2015 Decided: March 2, 2016 Filed: __________________________________________ Clerk March 2 2016 Case Number: DA 15-0301 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Global Client Solutions appeals from the District Court’s order denying Global’s motion to dismiss and to compel arbitration. We affirm. ¶2 Global presents issues for review which we restate as follows: Issue 1: Whether the District Court erred in reserving to itself the determination of arbitrability. Issue 2: Whether the District Court erred in determining that the arbitration provision was unconscionable and therefore not enforceable against Ossello. BACKGROUND ¶3 In July 2012 Susan Ossello faced more than $40,000 in unsecured debt that she owed to Bank of America, Discover Bank and Citibank. She received an unsolicited mailing from an entity called World Law, advertising that it could provide her with debt relief services. The solicitation represented that World Law would furnish legal counsel concerning her debt issues; that it would negotiate with her creditors for a reduction of her debt; that it would prevent her from going into bankruptcy; and that under its plan she could be debt free in two to four years. Ossello called a phone number provided in the mailing and talked to a sales agent for World Law.1 ¶4 Ossello alleges that the agent represented that if she enrolled in the debt reduction program, World Law’s attorneys would represent her and contact her creditors to 1 This is an appeal from the denial of a motion to dismiss, so there is no factual record in this case. The facts in this Opinion are taken primarily from the allegations of Ossello’s complaint and the contents of Global’s Dedicated Account Agreement, attached to Global’s motion to dismiss. Ossello’s third-party complaint alleges that Global and World Law acted in concert and are jointly and severally liable for her claims. 3 negotiate reduced settlements of her credit card debts. The agent also told Ossello that these attorneys would represent Ossello if she got sued by a creditor. The agent then sent several form agreements to Ossello by email. She and the agent reviewed the forms over the phone, including a Client Services Agreement on behalf of World Law and a Dedicated Account Agreement on behalf of Global Client Solutions. The agent explained to her how to sign the agreements by entering her name into a box on the computer screen. Ossello electronically signed the agreements. ¶5 Global’s Dedicated Account Agreement (DAA) established a non-interest-bearing account in an undisclosed bank, funded by an automatic monthly withdrawal of $589.29 from Ossello’s existing bank account. The agent represented, and Ossello believed, that Global would use the proceeds in the account to pay her debts as they were negotiated and reduced. In reliance upon the advice of the agent and in a belief that she would benefit from a debt reduction plan, Ossello stopped making payments on her credit card debt. A year later, in September 2013, Discover Bank brought a collection action against her in Montana District Court. ¶6 Ossello contacted World Law or Global about the Discover Bank action. They sent her a form answer denying the material allegations of Discover Bank’s complaint, and directed her to file it pro se. In November 2013 Ossello filed the form answer, which denied that she had ever applied for or received a credit card from Discover Bank; denied that she had any agreement with Discover Bank; and denied that she ever received monthly statements from Discover Bank. Ossello claims that World Law and Global 4 knew that the representations in the answer were not based in fact, and that they never provided her with any material legal services. Ossello contends that World Law and Global never contacted her creditors to obtain any debt reduction for her and that “no payments were ever made to [her] creditors from the Dedicated Account.” ¶7 Ossello obtained an attorney and on June 18, 2014, filed an amended answer to Discover Bank’s complaint, and a third-party complaint against World Law and Global. The complaint alleges that World Law and Global used deceptive and fraudulent representations to solicit her participation in an illegal debt settlement plan. Ossello alleges that World Law and Global misrepresented to her that attorneys were providing her with legal services, and deceptively promised to significantly reduce her debt without ever actually doing so. The counts of the complaint allege claims for violation of the Montana Consumer Debt Management Services Act; violation of the Montana Consumer Protection Act; fraudulent misrepresentation and deceit; negligent misrepresentation; illegality, unconscionability and contract of adhesion; unjust enrichment; unauthorized practice of law; and civil conspiracy. ¶8 World Law failed to appear and defaulted in August 2014. Global, however, filed a motion to compel arbitration and to dismiss the third-party complaint for lack of jurisdiction. ¶9 The Global Dedicated Account Agreement that Ossello received on her computer and signed by email stated that Ossello had “approved certain transactions to be taken in [her] account application.” The DAA gave Global authority to disperse funds from the 5 account based on directions from Ossello or based on instructions from the “Sponsor as defined in [her] account application.” The DAA gave Global the authority to act on the Sponsor’s instructions “without further confirmation” from Ossello. The DAA authorized Global to deduct monthly fees and service charges from Ossello’s money deposited into the account. Global could unilaterally increase those fees and charges “for any increase in the associated costs and expenses.” Global also had the authority to transfer Ossello’s account to another FDIC-insured institution, which was also not otherwise identified. ¶10 Attached to the DAA as Exhibit A was a single-page document entitled Dedicated Account Agreement and Application. That document provides that the “Dedicated Account” is to be administered at a bank selected by Global for the purpose of accumulating funds to “repay [Ossello’s] debts in connection with a debt settlement program . . . sponsored by the organization identified below.” That document further provides that only the applicant “(or Authorized Contact, if any) may authorize deposits to and creditor payments from my Dedicated Account.” The “authorized contact” refers to the Sponsor, but the “World Law” entity is not listed in either document or identified as the “Sponsor.” The application form has a line for the “Sponsor’s” Global Account number but it is left blank, and in a box labeled “Sponsor” the term “Company Code” is listed. 6 ¶11 The Global documents authorize “the Sponsor” to direct disbursement of funds from the account. However, nowhere is the Sponsor, the bank holding the account, or the account number identified. ¶12 The application also contains a schedule of fees and charges. That schedule lists an account maintenance fee of $9.45 and a wire deposit fee of $10.00 as the only monthly fees not related to “disbursement services.” Ossello’s complaint alleged that as of June 2014 Global had deducted $12,502.38 from her bank account and deposited the money into the account. She alleged at the time her third-party complaint was filed, that Global had taken $6567.90 from the account in fees but that she had received no debt relief or actual legal services. She also asserted that according to Global, the account then had a remaining balance of $5712.13. ¶13 The DAA also contained a lengthy arbitration clause. The clause requires arbitration of “any controversy, claim or dispute . . . arising out of or relating to” the Dedicated Account Agreement. The arbitration clause states that it applies to the “breach, termination, enforcement, interpretation or validity [of the Agreement], including the termination of the scope or applicability of this agreement to arbitrate.” It provides that the arbitration would take place either in Oklahoma under the laws of that state, or in the state in which the consumer resides under the laws of that state. It provides that the arbitration would be “administered by the American Arbitration Association (“AAA”) pursuant to its rules and procedures,” before an arbitrator selected by the AAA. It also provides for sharing costs of the arbitration, with the customer’s 7 share being limited to $2000. It explains that binding arbitration means that both parties give up the right to trial by jury, the right to appeal from the ruling in most instances, and the right to conduct extensive discovery. ¶14 The arbitration clause further provides that if a party fails to engage in arbitration, unsuccessfully challenges the award, or fails to comply with the award, the other party is “entitled to costs of suit, including a reasonable attorney’s fee for having to compel arbitration or defend or enforce the award.” Thereby, Global would be entitled to claim from Ossello all its attorney fees in the current case, if it were to prevail. ¶15 Significantly, though the DAA arbitration clause broadly requires both parties to arbitrate “any controversy, claim or dispute . . . relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof,” Global reserved to itself in a separate paragraph of the DAA the right to bring “collection actions” in court against Ossello and require her to pay all costs and attorney fees related thereto. The DAA provides that if Ossello’s bank account had a “negative balance” at any time, and Ossello failed to pay “upon demand,” she was responsible for that deficit and “collection actions may be pursued against you. If any such collection action is undertaken, you agree to pay all court costs and collection fees, including reasonable attorney’s fees to the extent permitted by applicable law.” Therefore, if Ossello’s bank account could not cover Global’s periodic deductions for expenses, Global could sue her in a court of law to collect the deficit, along with its costs and attorney fees. 8 ¶16 The District Court found that Ossello had directly challenged the arbitration clause in the Dedicated Account Agreement by specifically alleging in her third-party complaint that the Agreement was unconscionable and that it wrongfully waived her right to a jury trial.2 Therefore, the District Court concluded that it had jurisdiction to determine the validity of the arbitration clause. The District Court then determined that under Montana law,3 a challenged arbitration clause is treated “as a contract on equal footing with other contracts” and that unconscionability may be determined by inquiring whether the contract is one of adhesion and whether the contract unreasonably favors the drafter. ¶17 The District Court held, in part, that the arbitration clause in Global’s contract was unconscionable and therefore unenforceable. The analysis employed by the District Court considered first whether the contract was a contract of adhesion, and secondly whether the contract unreasonably favored the drafter (Global), citing Kelker v. Geneva-Roth Ventures, 2013 MT 62, ¶ 59, 369 Mont. 254, 303 P.3d 777. The District Court summarized the contentions of each side regarding the terms of the arbitration agreement and determined that it was unconscionable. The District Court cited the context in which the agreement was presented to Ossello (in a phone call by a person who provided assurances that “attorneys” were involved or would be involved to handle everything for her); the fact that the entire transaction with the sales person on the phone 2 Global concedes that Ossello properly raised a challenge to the validity of the arbitration clause. 3 The arbitration clause in the Dedicated Account Agreement provides that the validity and enforceability of the Agreement and issues of arbitrability may be decided under the law of the consumer’s state of residence. 9 consumed only about 15 minutes; that Ossello was not told that she had the right to ask for a change in any provision of the agreement; and that she was not told and did not know that she was agreeing to abide by a form of dispute resolution that required her to forego the right to seek relief in court. ¶18 The District Court determined that the Dedicated Account Agreement was a contract of adhesion because it was drafted by the stronger party and Ossello had only the choice of accepting it or rejecting it without specific negotiation. The District Court concluded that the arbitration clause was unconscionable and not enforceable, and it therefore denied Global’s motion to dismiss and motion to compel arbitration. Global appeals. STANDARD OF REVIEW ¶19 This Court reviews a district court’s decision on a motion to dismiss, de novo. Estate of Big Spring, 2011 MT 109, ¶ 20, 360 Mont. 370, 255 P.3d 121. This Court also reviews de novo a district court’s order concerning a motion to compel arbitration. Kelker, ¶ 9. A motion to dismiss is considered in a light most favorable to the non-moving party and the factual allegations of the non-moving party are taken as true. Kortum-Managhan v. Herbergers, 2009 MT 79, ¶ 12, 349 Mont. 475, 204 P.3d 693. DISCUSSION ¶20 This case involves the intersection of federal and state laws concerning arbitration. The Federal Arbitration Act governs arbitration issues arising from transactions in interstate commerce. Iwen v. U.S. West Direct, 1999 MT 63, ¶ 23, 293 Mont. 512, 977 10 P.2d 989. The FAA was enacted in 1925 to quell “widespread judicial hostility to arbitration agreements.” A T & T Mobility v. Concepcion, 563 U.S. 333, 339, 131 S. Ct. 1740, 1745 (2011). A primary purpose of the FAA is to ensure that arbitration agreements exist upon the “equal footing” as all other contractual provisions. Buckeye Check Cashing v. Cardegna, 546 U.S. 440, 443, 126 S. Ct. 1204, 1207 (2006). Under the FAA: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2. The final clause of the statute is often referred to as the “savings clause,” the effect of which is that the FAA “does not require the enforcement of arbitration agreements” that would be subject to “generally applicable [state law] contract defenses such as fraud, duress, or unconscionability.” Mortensen v. Bresnan, 722 F.3d 1151, 1158 (9th Cir. 2013). However, an arbitration agreement cannot be invalidated by state law defenses that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion, 563 U.S. at 339, 131 S. Ct. at 1746. ¶21 Montana law favors arbitration and the State has adopted the Uniform Arbitration Act, Title 27, chapter 5, MCA. Under Montana law, when parties agree to arbitrate disputes, a district court upon application must order them to proceed to arbitration. Section 27-5-115, MCA. There is a presumption of arbitrability and doubts should be 11 resolved in favor of arbitration. Kalispell Education Assoc. v. Bd. of Trustees, 2011 MT 154, ¶ 18, 361 Mont. 115, 255 P.3d 199. ¶22 The prevailing rule is that whether a particular dispute is subject to arbitration is a threshold issue to be decided by the courts unless the parties explicitly agree to assign that issue itself to arbitration. Bridge Fund Capital v. Fastbucks, 622 F.3d 996, 1000 (9th Cir. 2010). Where a party specifically challenges the validity of the arbitration clause, and not just the entire contract that contains it, then it is the court that determines the validity of the arbitration clause. Buckeye, 546 U.S. at 444, 126 S. Ct. at 2775. ¶23 The initial inquiry when any court is asked to compel arbitration is whether the parties have agreed to arbitrate. Kalispell Education Assoc., ¶ 11. It is a “fundamental principle that arbitration is a matter of contract.” Concepcion, 563 U.S. at 339, 131 S. Ct. at 1746, (citing Rent-A-Center v. Jackson, 561 U.S. 63, 130 S. Ct. 2772 (2010)). An enforceable agreement to arbitrate must therefore have the same elements as any contract: namely, identifiable parties with the capacity to contract; the consent of the parties; a lawful object; and consideration. Section 28-2-102, MCA; Thornton v. Songstad, 263 Mont. 390, 394, 868 P.2d 633, 635 (1994). The consent of the parties requires that there be “mutual assent or a meeting of the minds on all essential terms to form a binding contract.” Keesun Partners v. Ferdig Oil Co., 249 Mont. 331, 337, 816 P.2d 417, 421 (1991). ¶24 With these general principles of arbitration and contract law as a backdrop, we now turn to the issues before the Court. 12 ¶25 Issue 1: Whether the District Court erred in reserving to itself the determination of arbitrability. ¶26 Global raises several arguments in support of its contention that the District Court did not have the authority to determine whether the present dispute was arbitrable. First, Global maintains that Ossello’s claims must go directly to arbitration because she did not specifically challenge the validity of the arbitration clause as required by Buckeye. However, Global also concedes that Ossello challenged the arbitration clause in response to Global’s motion to compel arbitration. This was sufficient to meet Ossello’s obligation to challenge the arbitration clause. Bridge Fund Capital, 622 F.3d at 999. ¶27 Second, Global argues that its arbitration provision contains a “delegation term” that requires an arbitrator and not a court to decide any threshold issues of arbitrability. We begin with the fundamental principle under the FAA that it is the responsibility of the court and not the arbitrator to determine the threshold issue of arbitrability—i.e., the validity of a challenged arbitration clause. Kelker, ¶ 12; Buckeye, 546 U.S. at 444, 126 S. Ct. at 2775. However, the parties to an agreement to arbitrate may agree to a “delegation provision” that assigns to the arbitrator the determination of the initial issues of arbitrability. Rent-A-Center, 561 U.S. at 68, 130 S. Ct. at 2777. The Supreme Court has held that the terms of an enforceable delegation provision must be “clear and unmistakable” on the face of the arbitration agreement. First Options v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 1924 (1995). “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e] evidence that they did so.” Rent-A-Center, 561 U.S. at 68-69, 130 S. Ct. at 2778. 13 ¶28 Global contends that the following language in its arbitration clause constitutes a delegation provision that must be enforced: In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the termination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration. . . . (Emphasis added.)4 Global maintains that this provision evidences Ossello’s agreement to arbitrate arbitrability, preempting the rule of Buckeye and Kelker that enforceability of an arbitration provision is for a court to decide. We disagree. ¶29 There is no “clear and unmistakable” agreement in Global’s language or elsewhere in the facts of this case to arbitrate questions of arbitrability. It is black-letter law that contract language should be interpreted most strongly against the party responsible for the language. Section 28-3-206, MCA; West v. Club at Spanish Peaks, 2008 MT 183, ¶ 53, 343 Mont. 434, 186 P.3d 1228. The fact that Global felt compelled to argue in its brief that the word “termination” in its delegation clause should actually be read as “determination” underscores the lack of clarity in this provision. As written, the language is ambiguous and confusing. It does not clearly delegate to the arbitrator the determination of the scope or applicability of the agreement to arbitrate; rather it delegates to the arbitrator the “termination of the scope or applicability of this agreement to arbitrate.” This language, written by Global, makes no sense and we are unable to 4 In its brief, Global inserts the prefix “de” in front of the italicized “termination” in this language, contending that “determination” was the term intended. There is no “de” in the original language and we decline to allow Global to alter the language that it drafted to suit its purposes on appeal. 14 plainly construe its meaning. The purported delegation provision here therefore falls far short of the required clear and unmistakable standard adopted by the United States Supreme Court. This provision therefore cannot displace the prevailing rule that the validity of the arbitration clause is to be determined by the court. The District Court properly proceeded to determine the enforceability of the arbitration provision. ¶30 Global further argues that Ossello should be precluded from now contesting the enforceability of the delegation clause because she failed to contest it in the District Court. However, at the time that Ossello filed her brief in the District Court in opposition to Global’s motion to compel arbitration, Global had not raised any argument with respect to a delegation provision. To the contrary, Global argued strenuously that the District Court should consider the arbitration requirement on its merits and order Ossello into arbitration. In other words, Global initially argued its position as if there were no delegation provision at issue in the case. It was only after Ossello filed her brief in opposition to Global’s motion to compel arbitration that Global raised the delegation clause argument upon which it now relies. Under these circumstances, we will not conclude that Ossello waived her right to oppose the delegation clause. ¶31 Global next argues that reference in the arbitration clause to the “American Arbitration Association” constitutes a delegation provision. The arbitration clause in the DAA provides that the arbitration be “administered by the American Arbitration Association (“AAA”) pursuant to its rules and procedures. . . . .” (Emphasis added.) Administration of the conduct of arbitration proceedings pursuant to AAA rules suggests 15 implementation of procedural and logistical rules; it declares nothing concerning delegation. There is no language in the arbitration clause that imposes a clearly-defined and unmistakable agreement to supplant the general rule that courts determine arbitrability. ¶32 Global alternatively argues that it is the “general rule” that incorporation of the AAA rules into an arbitration clause constitutes an agreement to arbitrate arbitrability. We cannot agree. The cases cited by Global almost exclusively involve arbitration disputes between sophisticated parties in commercial settings, not dealings between a debt relief organization and a debt-ridden consumer. See, e.g., Oracle America v. Myriad Group, 724 F.3d 1069 (9th Cir. 2013) (dispute between two computer software companies, in which the Court applied the “general rule” on AAA incorporation but “express[ed] no view as to the effect of incorporating arbitration rules into consumer contracts.”). In the present case, the AAA rules are not part of the record and neither the DAA nor Global’s arguments specify which of the multiple sets of commercial or consumer AAA rules are supposedly incorporated here. We cannot therefore conclude that Global’s mere reference to administering an arbitration pursuant to AAA rules constitutes a substantive agreement with Ossello to forego the general rule that arbitrability is to be decided by the court. ¶33 For the foregoing reasons, we reject Global’s argument that the District Court erred in reserving to itself the determination of whether the DAA was subject to 16 arbitration. We next turn to the merits of the enforceability of the arbitration clause against Ossello. ¶34 Issue 2: Whether the District Court erred in determining that the arbitration provision was unconscionable and therefore not enforceable against Ossello. ¶35 For the reasons set forth below, we conclude that Global’s purported right to compel Ossello to arbitrate fails for the fundamental reason that it is unconscionable under Montana contract law. Under Montana law, a contract provision can be unconscionable and therefore unenforceable if “when considered in its context, [it] is unduly oppressive, unconscionable or against public policy.” Iwen, ¶ 27.5 Unconscionability in Montana contract law is a concept adapted from the Uniform Commercial Code, and requires a determination that the contractual term is unreasonably favorable to the drafter, and there is no meaningful choice on the part of the other party but to accept the provision.6 Iwen, ¶ 32 (citing Leibrand v. National Farmers Union, 272 Mont. 1, 898 P.2d 1220 (1995)). ¶36 In Iwen, we addressed whether an arbitration clause contained in a contract for telephone book advertising was binding upon an attorney customer who filed a complaint 5 Iwen also considered, alternatively, whether the disputed contract provision was within the reasonable expectations of the party attacking it. Iwen, ¶ 27. We expressly decide the present case without consideration of Ossello’s reasonable expectations as to the DAA with Global. See Mortensen. 6 Global concedes that the DAA is a contract of adhesion, although preferring to refer to it as a “standard form contract.” Global contends that the law, evidently the FAA, is intended to protect contracts of adhesion because they are now common and essential to business. Montana law will not find an arbitration clause or any other provision unenforceable simply because it is in a contract of adhesion. Day v. CTA, Inc., 2014 MT 119, ¶ 11, 375 Mont. 79, 324 P.3d 1205 (upholding an arbitration clause in a contract between a property owner and an architectural engineering firm). 17 against U.S. West for damages because his paid advertisement was incomplete and his telephone number and address were missing. Iwen, ¶ 7. The arbitration provision obligated the parties to arbitrate “any controversy or claim arising out of or relating to this agreement, or breach thereof,” but provided that any action by the publisher (U.S. West) for the collection of amounts due under the agreement was exempted from the arbitration obligation. This Court found the arbitration clause unreasonably favorable to the drafter because it required the customer to arbitrate all controversies, but allowed the company to sue in a court of law to collect amounts due under the contract from the consumer. Iwen, ¶ 31. We concluded the arbitration provision lacked mutuality of obligation, was one-sided, and contained terms unreasonably favorable to the drafter. We said: Certainly, this does not mean arbitration agreements must contain mutual promises that give the parties identical rights and obligations, or that the parties must be bound in the exact same manner. This simply restates the rule of law that disparities in the rights of the contracting parties must not be so one-sided and unreasonably favorable to the drafter . . . that the agreement becomes unconscionable and oppressive. Iwen, ¶ 32. ¶37 The arbitration provision at issue in this case similarly obligates both parties to arbitrate any controversy or dispute arising out of the DAA, including matters with respect to breach or enforcement of the agreement. See Opinion, ¶ 13. However, a separate provision in the DAA provides that if Ossello’s account has a negative balance at any time, “collection actions may be pursued against you. If any such collection action is undertaken, you agree to pay all court costs and collection fees, including reasonable 18 attorney’s fees, to the extent permitted by applicable law.” Thus, as in Iwen, Ossello is obligated to arbitrate all controversies arising from the breach of the DAA, but if Ossello breaches the agreement, Global has the right to sue her in a court of law and to recover damages plus court costs, collection fees, and attorney fees. As we further observed in ¶ 31 of Iwen, as a practical matter, the only reason that U.S. West would seek a remedy against Iwen would be for an unpaid bill, and for that purpose it had free reign to seek a remedy before a court of law, while Iwen would be forced to seek any and all remedies against U.S. West in arbitration. The same is true here. Global is entitled to sue Ossello in a court of law for breach of the agreement, but she cannot sue it for breach of the agreement. In sum, the obligation to arbitrate is one-sided, not mutual. ¶38 We are mindful that Iwen pre-dates Concepcion and Mortensen. In Concepcion, the Supreme Court concluded that a California state law rule that deemed unconscionable class-action waivers in consumer contracts of adhesion was preempted by the FAA because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Concepcion, 563 U.S. at 352, 131 S. Ct. at 1753 (internal citations omitted). In Mortensen, the Ninth Circuit interpreted Concepcion to mean that “[a]ny general state-law contract defense, based in unconscionability or otherwise, that has a disproportionate effect on arbitration is displaced by the FAA.” Mortensen, 722 F.3d at 1159. Based upon Concepcion and Mortensen, Global maintains here that any generally applicable state rule that stands as an obstacle to the objectives of the FAA is preempted by the Act. We do not agree with this broad statement. 19 ¶39 Notably, several state and federal courts since Concepcion have concluded that lack of mutuality of obligation in an arbitration clause remains an appropriate basis for considering the enforceability of an arbitration clause. See Figueroa v. THI of N.M. at Casa Arena Blanca, LLC, 306 P.3d 480 (N.M. App. 2013) (holding that notwithstanding the pronouncements in Concepcion, an arbitration agreement in which the drafter unreasonably reserved to itself the claims it would most likely bring for the courts while subjecting the weaker party to arbitration of all claims, was unenforceable) (cert. denied by THI of New Mexico at Casa Arena Blanca, LLC v. Figueroa, 133 S. Ct. 2736 (2013)); Brewer v. Mo. Title Loans, 364 S.W.3d 486 (Mo. 2012) (concluding inter alia that Concepcion does not bar a finding that an arbitration clause is unenforceable where a title company reserves its right to obtain its primary remedies through the court system, but requires the party with lesser bargaining power to obtain her only meaningful remedy through individual arbitration) (cert. denied by Mo. Title Loans, Inc. v. Brewer, 133 S. Ct. 191 (2012)); Noohi v. Toll Bros., 708 F.3d 599 (4th Cir. 2013) (affirming district court ruling that an arbitration provision was unenforceable for lack mutuality of consideration because it bound only the purchaser to arbitration) (cert. dismissed by Toll Bros. v. Noohi, 134 S. Ct. 48 (2013)); Lou v. MA Labs., Inc., 2013 U.S. Dist. LEXIS 70665 (N.D. Cal. 2013) (concluding that the lack of mutuality in an arbitration provision renders the clause unconscionable and therefore unenforceable). The fact that the United States Supreme Court has denied certiorari in three of the foregoing cases illustrates that Concepcion has 20 not wholly preempted an unconscionability defense premised upon a lack of mutuality of obligation in actions in which an arbitration clause is challenged. ¶40 As noted, the District Court found inter alia that the arbitration clause in Global’s contract was unconscionable because it unfairly favored the drafter. We agree. This is the same conclusion underpinning our analysis in Iwen. We conclude that the District Court’s finding of unfavorable treatment and unconscionability was correct because the arbitration clause lacked mutuality. As was the case in Iwen, Global retained in the DAA important rights not provided to Ossello. Global had the right to sue Ossello in a court of law at any time the Dedicated Account lacked funds to cover Global’s payment demands or withdrawals. Because virtually the only breach of contract with which Global would be concerned would be lack of payment, Global reserved to itself the right to litigate its primary claim while requiring Ossello to arbitrate any and all claims she might have under the DAA. This arbitration provision unreasonably favors Global to the detriment of Ossello and is therefore unconscionable and unenforceable. ¶41 Concepcion and Mortensen cautioned against courts invoking state law defenses to upend an otherwise valid arbitration clause. That is not what has occurred here. This arbitration clause is invalid not due to a disproportionate application of state law, but rather because Global—like the drafters in the cases noted above—chose to compel arbitration for Ossello while reserving to itself the right to pursue its remedies in a court of law. Such one-sided arbitration clauses do not serve the objectives of the FAA. 21 CONCLUSION ¶42 For the foregoing reasons, we conclude that the District Court did not err in reserving to itself the determination of arbitrability, nor did it err in declaring that the arbitration provision is unconscionable and therefore not enforceable against Ossello. ¶43 Affirmed. /S/ MIKE McGRATH We Concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER Justice Michael E Wheat, concurring. ¶44 I concur with the majority to affirm the District Court’s decision that the arbitration clause in Global’s purported contract was unenforceable against Ossello. I take this opportunity to expand upon the state of the law under the Federal Arbitration Act and the extremely narrow tight rope that state courts are forced to walk when attempting to apply existing state law to cases before them. The issue is long past whether there is a contract of adhesion. Most citizens now regularly participate in contracts of adhesion to provide themselves with goods and services that at least seem to be essential to modern life. ¶45 The elephant in the room is not state hostility toward arbitration. As noted in the majority opinion, Montana has a state arbitration act and Montana courts will uphold and 22 enforce an arbitration requirement when the parties have agreed to it. Kalispell Education Assoc., ¶ 22. If there is any hostility, it is toward those who hide behind the FAA, and behind the court decisions interpreting it, to escape any material consequence of running fraudulent confidence schemes. In the present case, if Ossello proves the material allegations of her complaint, it is clear that she was induced into a fraudulent scheme to take $589.29 from her every month, but to provide little or nothing in return. ¶46 Under the interpretation urged by the Dissent, Ossello would be required to pay up to $2000 to participate in arbitration, while at the same time she would presumably be precluded from raising any of the claims against World Law and Global that she alleges in her complaint. Those claims include fraudulent and negligent misrepresentation, violations of the Montana Consumer Protection Act, violations of the Montana Consumer Debt Management Services Act, unjust enrichment, and the unauthorized practice of law. ¶47 More significantly, within the arbitration process Ossello would be placed in the untenable and inconsistent position of acknowledging that the arbitration provision is binding and valid, but that the contract that includes it is not enforceable because it was induced by fraud and deceit. ¶48 In the face of schemes like this, state courts are told that they cannot consider the merits of the situation; that arbitration clauses are inherently severable from the underlying purported contract; that the victim of the fraud must mount a separate challenge against the arbitration clause itself; that the victim of the fraud must mount a separate challenge to the delegation provision in the arbitration clause; and that a 23 challenge to the arbitration clause must stand or fall upon grounds unique to that clause. State courts are told that they may not determine that there was a unified fraudulent scheme to victimize a consumer, but that they may only consider the arbitration clause in artificial isolation. Further, state courts are told that if they decide too many cases against those who hide behind fraudulently-induced arbitration clauses, their state law will be ignored as being hostile to arbitration. Here, for example, if Ossello proves the material allegations of her complaint, there was a scheme to fraudulently induce here to hand over money to Global every month. ¶49 As the majority opinion properly notes, arbitration is a matter of contract law, and the FAA was enacted to place arbitration on the same footing as all other contractual provisions. Under the express and simple terms of 9 U.S.C. § 2, arbitration clauses are enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” Supposedly, because agreements to arbitrate are contracts, the initial inquiry should be whether the parties have entered a contract to arbitrate. That issue is or should be determined under basic hornbook contract law—identifiable parties with the capacity to contract, their consent to the contract, a lawful object, and consideration. It should go without saying that purported assent to a contract which is induced by fraud is no assent and therefore there can be no contract. But, a state court that so concludes under 9 U.S.C. § 2 risks having the conclusion vacated as evidencing a hostility toward arbitration. ¶50 The plain language of the FAA exception to enforceability of arbitration clauses, “save upon such grounds as exist at law or in equity for the revocation of any contract,” is 24 rendered meaningless under the approach cited by the Dissent. Surely Congress, in enacting the FAA, did not intend to enable con men and charlatans to place themselves and their fraudulent schemes out of the reach of our courts simply by inserting arbitration language or a “delegation” clause into an otherwise fraudulent contract. ¶51 I concur. /S/ MICHAEL E WHEAT Chief Justice Mike McGrath and Justice James Jeremiah Shea join the Concurrence of Justice Michael E Wheat. /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA Justice Laurie McKinnon, dissenting. ¶52 In my opinion, this case is controlled by Rent-A-Center, West, Inc., v. Jackson, 561 U.S. 63, 130 S. Ct. 2772 (2010), and the requirement that a delegation provision contained within an arbitration clause must be specifically challenged as unenforceable. I would further conclude that the specific language of the delegation provision and the DDA’s incorporation of the AAA rules provide “clear and unmistakable” evidence that the question of arbitrability was to be decided by an arbitrator. Finally, while non-mutuality is a defense under state law to a contract, not every degree of non-mutuality renders an agreement unconscionable and unenforceable. Under the 25 provisions of this agreement, I would conclude that the non-mutuality of remedies, if any, did not render the arbitration agreement unenforceable. ¶53 Ossello has not made any challenge to the enforceability of the delegation term that is different from her challenge to the arbitration clause in general. Although Ossello acknowledged Global had moved to compel arbitration and that Global requested “the arbitrator (and not this Court) should decide the arbitration clause is enforceable,” she failed to challenge the delegation clause specifically arguing instead that “she cannot be required to arbitrate anything, not even arbitrability, until a court has made a threshold determination that the parties did, in fact, agree to arbitrate.” Ossello fails to recognize that while the threshold question of arbitrability is for the court to decide, the parties, as they did here, may agree to delegate resolution of that controversy to an arbitrator. Accordingly, “unless [Ossello] challenged the delegation provision specifically, [this Court] must treat it as valid under § 2 [of the Federal Arbitration Act], and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the Agreement as a whole for the arbitrator.”1, 2, 3 Rent-A-Center, 561 U.S. at 72, 130 S. Ct. at 2779. 1 9 U.S.C. § 2, the “primary substantive provision of the Act,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983), provides: A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 2 Under 9 U.S.C. § 3, a party may apply to a federal court for a stay of the trial of an action upon “any issue referable to arbitration . . . .” 3 Under 9 U.S.C. § 4, a party “aggrieved” by the failure of another party to arbitrate may petition a federal court for an order directing that arbitration proceed. Section 4 reads, in part: 26 ¶54 The delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement. The United States Supreme Court has recognized that “parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” Rent-A-Center, 561 U.S. at 67, 130 S. Ct. at 2777. The Court explained that because § 2 states that a “written provision” “to settle by arbitration a controversy” is “valid, irrevocable, and enforceable” without mention of the validity of the contract in which it is contained, a party’s challenge to another provision of the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. Rent-A-Center, 561 U.S. at 69, 130 S. Ct. at 2778. Thus, as a matter of “substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.” Buckeye, 546 U.S. at 445, 126 S. Ct. at 1209. If a specific challenge is not made to the delegation clause, then it must be treated as valid under § 2. ¶55 The Court’s severability analysis in Rent-A-Center stems from its earlier decision in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S. Ct. 1801 (1967), in which the Court held that consideration of a contract revocation defense is generally a matter for the arbitrator, unless the defense is specifically directed to the arbitration clause. Prima Paint, 388 U.S. at 404, 87 S. Ct. at 1806. In Prima Paint, the Court The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. . . . If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. 27 addressed “whether a claim of fraud in the inducement of the entire contract is to be resolved by the federal court, or whether the matter is to be referred to the arbitrators.” Prima Paint, 388 U.S. at 402, 87 S. Ct. at 1805. Guided by § 4 of the FAA, the Court held that “if the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to the ‘making’ of the agreement to arbitrate—the federal court may proceed to adjudicate it.” Prima Paint, 388 U.S. at 402, 87 S. Ct. at 1806. However, consistent with the principle of the FAA that arbitration is a matter of contract, the parties may agree to have the arbitrator decide arbitrability. Thus, in Rent-A-Center, the Court extended its Prima Paint severability analysis and recognized that a delegation of arbitrability is severable from the contract itself and, as a separate and independent provision of the agreement, must be specifically challenged as unenforceable. ¶56 The Court has treated the holding in Prima Paint as a rule of severability: when a party challenges a contract, but not specifically the agreement to arbitrate, the agreement to arbitrate is enforceable apart from the contract. Justice Stevens noted in his dissent in Rent-A-Center that “Prima Paint and its progeny allow a court to pluck from a potentially invalid contract a potentially valid arbitration agreement.” Rent-A-Center, 561 U.S. at 85, 130 S. Ct. at 2786 (Stevens, J., dissenting) (emphasis in original). Rent-A-Center thus added a “new layer” of severability: courts must now sever from a potentially invalid agreement an even narrower provision that refers particular arbitrability disputes to an arbitrator. This new layer of severability is consistent with the principle that “[a]n agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the 28 party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other.” Rent-A-Center, 561 U.S. at 70, 130 S. Ct. at 2777-78. When an arbitration agreement contains a delegation provision and the plaintiff raises a challenge to the contract as a whole, the federal courts may not review his claim because it has been committed to the power of the arbitrator. Instead, the plaintiff must “challenge[ ] the delegation provision specifically.” Rent-A-Center, 561 U.S. at 72, 130 S. Ct. at 2779 (emphasis added).4 ¶57 The challenge Ossello makes is indistinguishable from the challenge made by Jackson and found to be insufficient in Rent-A-Center. Jackson opposed the motion to compel filed by Rent-A-Center on the ground that “the arbitration agreement in question is clearly unenforceable in that it is unconscionable,” Rent-A-Center, 561 U.S. at 66, 130 S. Ct. at 2775; that “the entire arbitration agreement, including the delegation clause, was unconscionable,” Rent-A-Center, 561 U.S. at 73, 130 S. Ct. at 2779 (emphasis added); 4The Court in Rent-A-Center was careful to note that application of the severability rule was required regardless of whether the underlying contract was itself an arbitration agreement. The Court, appearing to respond to the dissent, stated: To be sure this case differs from Prima Paint, Buckeye, and Preston, in that the arbitration provisions sought to be enforced in those cases were contained in contracts unrelated to arbitration—contracts for consulting services, see Prima Paint, check-cashing services, see Buckeye, and “personal management” or “talent agent” services, see Preston. In this case, the underlying contract is itself an arbitration agreement. But that makes no difference. Application of the severability rule does not depend on the substance of the remainder of the contract. Section 2 operates on the specific “written provision” to “settle by arbitration a controversy” that the party seeks to enforce. Accordingly, unless Jackson challenged the delegation provision specifically, we must treat it as valid under § 2, and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the Agreement as a whole for the arbitrator. Rent-A-Center, 561 U.S. at 71-72, 130 S. Ct. at 2779 (internal citations omitted). 29 and that “the arbitration agreement as a whole is substantively unconscionable.” Rent-A-Center, 561 U.S. at 73, 130 S. Ct. at 2779. ¶58 Because Jackson’s opposition only challenged the arbitration agreement as a whole and “none of Jackson’s substantive unconscionability challenges was specific to the delegation provision,” the Court found it unnecessary to consider Jackson’s claim and enforced the agreement as § 2 of the FAA required. Rent-A-Center, 561 U.S. at 73, 130 S. Ct. at 2780. See also Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015); Parnell v. Cashcall, Inc., 804 F.3d 1142 (11th Cir. 2015). ¶59 Ossello makes the same mistake made by the plaintiff in Buckeye and Rent-A-Center. She argues only that the DDA as a whole is illegal, without any argument specifically that the delegation clause is unenforceable. Jackson made a similar argument which was adopted by the Ninth Circuit Court of Appeals: “a party [who] challenges an arbitration agreement as unconscionable, and thus asserts that he could not meaningfully assent to the agreement, [leaves] the threshold question of unconscionability . . . for the court.” Rent-A-Center, 561 U.S. at 67, 130 S. Ct. at 2776. ¶60 However, the Supreme Court considered this argument in Rent-A-Center and specifically rejected it. Accordingly, this Court’s conclusion that Ossello challenged the arbitration clause itself and thus necessarily challenged the delegation provision, Opinion, ¶ 26, is in direct conflict with Rent-A-Center. ¶61 Although I would find that § 2 requires that the delegation clause be enforced because it has not been specifically challenged, I would nonetheless conclude that there is 30 “clear and unmistakable” evidence that the parties agreed to submit the question of arbitrability to an arbitrator. The disputed arbitration clause provides: In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the termination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration. ¶62 At Ossello’s urging, the Court has found an ambiguity because “termination” appears out of place. Global argued there was a clerical error and that it should have read “determination.” Regardless of whether the phrase is “termination” or should be “determination,” the language remains clear and unmistakable—the “enforcement,” “interpretation,” “validity,” and “the scope or applicability of [the] Agreement to arbitrate” shall be determined by arbitration. Any conclusion to the contrary is unsupportable and an attempt to manufacture an ambiguity. This is an express delegation clause which constitutes clear and unmistakable evidence that the parties agreed to submit the question of arbitrability to an arbitrator. ¶63 Additionally, the DDA provides that the “parties agree, the arbitration shall be administered by the American Arbitration Association pursuant to its rules and procedures . . . .” The Commercial Arbitration Rules and Mediation Procedures provide at R-7 that the “arbitrator shall have the power to rule on his or her own jurisdiction, including objections with respect to the existence, scope or validity of the arbitration agreement.”5 Thus, even in the absence of an express delegation clause, the 5 The rule was amended in October of 2013, without any change in substance, and is now codified as R-14. 31 incorporation of the AAA rules operates as a delegation to an arbitrator of the question of arbitrability. While the Court dismisses Global’s argument that the AAA rules were incorporated into the DDA on the basis that Global did not make them a part of the record, Global has provided the Court with a reference cite to the current AAA Consumer Arbitration Rules and Mediation Procedures and specifically quoted for the Court the relevant portion of R-7 regarding jurisdiction of the arbitrator.6 The content of the rules does not appear to be in dispute and may be readily confirmed by visiting the reference cite provided by Global, as many courts have routinely done under similar circumstances. See, e.g., Terminix Int’l Co LP v. Palmer Ranch LtD P’Ship, 432 F.3d 1327, 1332 (11th Cir. 2005) (citing www.adr.org as the source in identifying and quoting specific AAA rules incorporated into the parties’ arbitration agreement for purposes of ascertaining whether parties had clearly and unmistakably agreed that the arbitrator should decide validity of arbitration clause). ¶64 Where an arbitration agreement incorporates rules conferring authority upon an arbitrator to decide gateway questions, courts have found clear and unmistakable evidence that the parties have contracted around the default rule that the court (rather than an arbitrator) must adjudicate objections to the validity of the arbitration agreement. See U.S. Nutraceuticals, LLC v. Cyanotech Corp., 769 F.3d 1308, 1311 (11th Cir. 2014) (“When the parties incorporated into the 2007 contract the rules of the Association, they clearly and unmistakably contracted to submit questions of arbitrability to an 6 Global’s reference cite to the current AAA Consumer Arbitration rules is at p. 39 of their Opening Brief; Global sets forth R-7 at p. 15 of their Opening Brief. 32 arbitrator.”). See also Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir. 2012) (“We agree with most of our sister circuits that the express adoption of [AAA rules into an arbitration agreement] presents clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.”); Terminix Int’l Co LP v. Palmer Ranch LtD P’Ship, 432 F.3d 1327, 1332-33 (11th Cir. 2005) (“By incorporating the AAA Rules, including Rule 8, into their agreement, the parties clearly and unmistakably agreed that the arbitrator should decide whether the arbitration clause is valid. . . . In the ordinary case, we would decide these questions only because they go to the validity of the arbitration clause itself, which is by default an issue for the court, not the arbitrator. Here, however, the parties have contracted around that default rule . . . .”); Southland Health Services, Inc. v. Bank of Vernon, 887 F. Supp. 2d 1158, 1167 (N.D. Ala. 2012) (“The arbitration agreements here clearly demonstrate the parties’ intent to empower the arbitrator with the authority to determine his own jurisdiction. Each agreement states that it is subject to the rules of the AAA. . . . Because the agreements empower the arbitrator to determine jurisdiction, this Court is bound by its obligation to rigorously enforce agreements to arbitrate.”) (citation and internal quotation marks omitted); Knowles v. Community Loans of America, Inc., 2012 U.S. Dist. LEXIS 165321, at *5 (S.D. Ala. Nov. 20, 2012) (“One way to show a clear and unmistakable intent to arbitrate arbitrability is by agreeing that the arbitration will be conducted in accordance with formalized arbitration rules, which rules provide for arbitration of arbitrability.”). 33 ¶65 In Oracle America, Inc. v. Myriad Group A.G., 724 F.3d 1069 (9th Cir. 2013), the Ninth Circuit observed, consistent with the above authority, that “[v]irtually every circuit to have considered the issue has determined that incorporation of the [AAA] arbitration rules constitutes clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.” Oracle, 724 F.3d at 1074. The court found this consensus persuasive in holding that incorporation of the UNCITRAL rules—which contain a jurisdictional provision “almost identical” to the one in the AAA rules—constituted “clear and unmistakable evidence that the parties agreed the arbitrator would decide arbitrability.” Oracle, 724 F.3d at 1074-75. When the question regarding incorporation of the AAA rules arose again in Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015), the court clearly and unambiguously stated: “we hold that incorporation of the AAA rules constitutes clear and unmistakable evidence that contracting parties agreed to arbitrate arbitrability.” Brennan, 796 F.3d at 1130. ¶66 Accordingly, the Court cannot reach any of the arguments regarding mutuality or unconscionability if the DDA reflects the parties’ clear and unmistakable intent to have the arbitrator decide threshold disputes concerning such gateway matters as validity and arbitrability. Global has made a compelling showing that the parties clearly and unmistakably intended to arbitrate the question of arbitrability, both through the text of the delegation clause itself and the express incorporation of the AAA rules empowering the arbitrator to rule on his or her own jurisdiction. The relevant authorities (including 34 Brennan, Oracle, Terminix and its progeny) have consistently and rigorously enforced such provisions—which is precisely what this Court should do as well. ¶67 Finally, the Court has chosen an alternative route to find that the arbitration clause is unenforceable, concluding the remedies are non-mutual and “[s]uch one-sided arbitration clauses do not serve the objectives of the FAA.” Opinion, ¶ 41. In electing this alternative route, the Court has avoided the issue primarily raised by the parties— whether Montana’s “reasonable expectations/fundamental rights” rule, first enunciated in Kortum-Managhan v. Herbergers NBGL, 2009 MT 79, 349 Mont. 475, 204 P.3d 693, disproportionally impacts arbitration agreements and is consequently preempted by the FAA under the reasoning of Concepcion. See Mortenson v. Bresnan Commc’ns LLC, 722 F.3d 1151, 1161 (9th Cir. 2013). I would conclude that Montana’s reasonable expectations/fundamental rights rule is contrary to the FAA as interpreted by Concepcion and conclusively answer that question for litigants and the trial courts. ¶68 Regarding the Court’s alternative pursuit of unenforceability, a lack of mutuality of remedies in a contract is a type of “one-sidedness” that is likely peculiar to arbitration agreements. Thus, care must be taken to consider the admonition in Concepcion that, under the doctrine of preemption, state courts cannot adopt “defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion, 563 U.S. at 339, 131 S. Ct. at 1746. Unconscionability frequently includes a one-sided contract. Therefore, a court must consider all of the circumstances 35 of the particular agreement and refrain from adopting an automatic rule that non-mutuality of remedies renders an arbitration agreement unenforceable. ¶69 The Court finds that the remedies are non-mutual because of the following provision contained within the DDA: Default and Collection of Accounts: If your Account is suspended, cancelled or otherwise terminated for any reason and your Account has a negative balance, you agree to pay the negative balance upon demand, Should you fail to remit the full amount of such negative balance, you shall remain responsible for the deficit and collection actions may be pursued against you. If any such collection action is undertaken, you agree to pay all court costs and collection fees, including reasonable attorney’s fees, to the extent permitted by applicable law. Contrary to the Court’s reasoning and conclusion, this provision does not give Global the right to bypass arbitration. Arbitration is a matter of contract and when construing a contract we must consider the entirety of the agreement. In addition to the provision relating to default and collection, the DDA provides any “controversy,” “claim,” or “dispute” arising out of the DDA must be submitted to arbitration. These several provisions taken together and construed consistently, in the context of the entire agreement, lead to the conclusion that the default and collection provision concern the execution of the arbitration award following arbitration of any dispute. Furthermore, a review of the DDA demonstrates that the Court’s attempt to “carve out” a non-mutual remedy is misplaced: all disputes are to be submitted to arbitration; arbitration applies equally to Ossello and Global; arbitration is to occur in the county in which Ossello resides; the arbitrator must be neutral and independent; the arbitrator must abide by ethical codes; the arbitration must proceed before a national arbitration forum; both 36 parties give up their right to appeal; and the parties share equally the cost of arbitration, unless Ossello’s costs exceed $2,000—in which case Global will pay the excess. ¶70 Considering the DDA in its entirety, I cannot agree with the Court that the non-mutual remedies, to the extent they may even exist, renders this arbitration agreement unenforceable. Indeed, the Court’s focus on complete mutuality and one-sidedness will likely disproportionately affect arbitration agreements in violation of Concepcion. Concepcion makes clear that state courts may apply state common law defenses, to the extent they do not disproportionately affect arbitration agreements. Here, I cannot find that mutuality is so lacking that it necessarily indicates substantive unconscionability; nor is the DDA so lacking in fairness, due to blatant one-sidedness, that it cannot escape being unconscionable. ¶71 I would conclude that Ossello has failed to specifically challenge the delegation provision and that § 2 of the FAA requires that an arbitrator decide the question of arbitrability. Nonetheless, the language of the arbitration clause and the incorporation into the DDA of the AAA rules are clear and unmistakable evidence of the parties’ intent to submit the question of arbitrability to an arbitrator. Finally, I do not agree that this arbitration agreement is unenforceable because it is one-sided and lacking in mutuality. No matter what state law infirmity Ossello raises, whether the arbitration agreement fails for lack of mutuality in remedies, lack of consideration, failure of consideration, fraud in the inducement, unconscionability, or being declared fraudulent and void because Global was not a licensed debt settlement provider, the Supreme Court has held—clearly and 37 repeatedly—that such an infirmity is irrelevant to enforceability. Only a discrete challenge directed specifically at the delegation provision itself and a showing that it is invalid under generally applicable state laws—which do not disproportionately affect arbitration agreements—will render the agreement unenforceable. ¶72 I would reverse the District Court’s judgment denying Global’s motion to compel arbitration and allow an arbitrator to decide the question of arbitrability. To the extent we conclude otherwise, I dissent. /S/ LAURIE McKINNON Justice Jim Rice joins in the dissenting Opinion of Justice McKinnon. /S/ JIM RICE

March 2, 2016

8a25f927-89e9-4fd4-b766-79b7361ff4f4

SCHIELE v SAGER

N/A

13784

Montana

Montana Supreme Court

N o . 13784 I N T H E SUPREME C O U R T O F T H E STATE O F M O N T A N A 1977 LINDA SUE (SAGER) SCHIELE, P e t i t i o n e r and Appellant, -vs- R O B E R T L. SAGER, Respondent and Respondent. Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , Honorable Jack L. Green, Judge presiding. Counsel of record: For Appellant: C h r i s t i a n , McCurdy, Ingraham and Wold, Polson, Montana Donald K. Peterson argued, Polson, Montana For Respondent: Tipp and Hoven, Missoula, Montana Douglas G. S k j e l s e t argued, Missoula, Montana Submitted: September 12, 1977 Decided : m v 9 : : .. Filed: -- .- M r . Justice Gene B. Daly delivered the Opinion of the Court: Petitioner appeals from the f i n a l judgment of the D i s t r i c t Court, Lake County, granting respondent's petition for modifica- tion of the parties' decree of divorce and awarding respondent the care, custody and control of the parties' two minor children. Petitioner and respondent were married a t Kalispell, Montana, on June 27, 1968. Their marriage was dissolved by decree of divorce dated March 28, 1973, i n the District Court, Lake County. Pursuant t o stipulation of the parties the general care, custody and control of the parties' minor children, Richard Lee Sager, age 8 and Sherrie Sue Sager, age 5, was awarded t o their mother, the petitioner. Respondent was granted v i s i t a - tion rights and was ordered t o provide support for the minor children i n the sum of $50 per month per child. Respondent has remained current i n h i s payment of child support. Both parties have remarried. Petitioner resides i n Pablo, Montana, while respondent resides i n Republic, Washington. On July 12, 1976, petitioner f i l e d a petition i n the D i s t r i c t Court, Lake County, seeking an order of the District Court finding respondent i n contempt of the divorce decree's visitation pro- visions and an award of $500 punitive damages. Respondent sub- sequently f i l e d a petition on August 16, 1976, seeking modifica- tion of the divorce decree and an award of the permanent care, custody and control of the minor children. Petitioner similarly f i l e d a petition for modification of the divorce decree on August 18, 1976, seeking a change i n respondent's visitation rights and an increase i n the amount of respondent's contribution t o the support and maintenance of the minor children. The causes were consolidated and heard by the District Court on September 22 and 24, 1976. O n December 8, 1976, the court issued its findings of f a c t , conclusions of law and judgment, holding that due to the domestic conflict associated with peti- tioner's remarriage, the best interests of the minor children dictated that the divorce decree of March 28, 1973, be modified t o award respondent the care, custody and control of the minor children. Petitioner was awarded v i s i t a t i o n rights, no child support was awarded t o either party, and each party was t o assume h i s own attorney fees and costs i n the action. Petitioner f i l e d post-trial motions t o amend the findings of fact and conclusions of law; to a l t e r o r amend the judgment; and an alternative motion for new t r i a l . I n its amended judgment of January 17, 1977, the District Court denied petitioner's motions; affirmed its holding i n the previous judgment; pro- vided for the District Court's continuing jurisdiction i n the matter; and, established a date and procedure for the transfer of the custody of the minor children. O n February 15, 1977, petitioner f i l e d notice of appeal i n the District Court. The court stayed execution of its judgment pending petitioner' s appeal t o t h i s Court. Petitioner presents four issues for review: 1. Whether the District Court abused its discretion by failing t o make findings of f a c t and conclusions of law i n com- pliance with sections 48-332 and 48-339, R.C.M. 1947? 2. Whether the District Court erred when it failed t o cause a record t o be made of the in-chambers interview of the minor children pursuant t o section 48-334(1), R.C.M. 1947? 3 . Whether the District Court abused its discretion when it denied petitioner's request for the appointment of professional personnel pursuant to section 48-335, R . C . M . 1947? 4 . Whether the District Court abused its discretion. in accepting unfounded reputation testimony and making a finding of reputation on the basis of that testimony? Petitioner's first issue considers areas of the Uniform Marriage and Divorce Act, heretofore often before this Court. See: Gianotti v . McCracken, Mont. , 569 P.2d 929, 34 St. Rep. 1087; In re Custody of Dallenger, - Mont . , 568 P. 2d 169, 34 St.Rep. 938; Lee v . Gebhardt, Mont . , 567 P.2d Mont . 466, 34 St.Rep. 810; Ronchetto v . Ronchetto, 7 Mont. , 567 P.2d 456, 34 St.Rep. 797; Groves v . Groves, 567 P.2d 459, 34 St.Rep. 790; Holm v. Holm, - Mon t . - 9 560 P.2d 905, 34 St.Rep. 118. These cases announce the law in Montana governing a petition for change of child custody and modification of a divorce decree. Section 48-339 establishes the "best interest of the child1' test, stated in section 48-332 as the primary consideration controlling any proposed modification of child custody. How- ever, the criteria of the best in-terest test is not put into effect until the petitioning party seeking modification has satisfied the jurisdictional prerequisites announced in section "Modification. ( 1 ) No motion to modify a custody decree may be made earlier than two ( 2 ) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral, or emotional health. " ( 2 ) The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior -- - decree; that a change has occurred in the circum- stances of the child or his custodian, and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pur- suant to the prior decree unless: " ( a ) the custodian agrees to the modification; " ( b ) the child has been integrated into the family of the petitioner with consent of the custodian; or I ' ( c ) the child's present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages to him. " ( 3 ) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment." (Emphasis added.) Although the District Court's findings of fact and conclu- stions of law in the instant case recognize the domestic conflict between petitioner and her present husband, the District Court fails to make a specific finding there has been a change in circumstances in the children's environment since the prior divorce decree which seriously endangers the children's physical, that physical, mental, moral or emotional health and/the harm likely to be caused by a change of environment is outweighed by its advantages to the children. The District Court bases its judg- ment on the best interest of the children and fails to consider the provisions of section 48-339,enacted to preserve the basic policy of custodial continuity. Such modification of a divorce decree's provisions for the custody of children disregards the provisions of the Uniform Marriage and Divorce Act. The second issue raised by petitioner concerns the District Court's failure to cause a record to be made of its in-chambers interview with the minor children. Section 48-334(1), R . C . M . 1947, provides: "Interviews ( 1 ) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case." (Emphasis added.) The language of section 48-334(1) provides for' the District Court's exercise of discretion in determining whether an in- chambers interview ~ 5 t h children is necessary and whether counsel may be present. However, once the District Court determines the in-chambers interview is necessary, section 48-334(1) mandates that a record of the interview be made and that such record be part of the case record. The mandate of the statute was not complied with in the instant case and the court erred in failing to cause a record of the interview to be made. Ronchetto v, Ronchetto, supra. Petitioner's third issue challenges the District Court's failure to seek the advice of professional personnel in making its decision to modify the divorce decree and award custody of the children to respondent, Section 48-334(2) provides : " ( 2 ) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to W - 1 upon request . Counsel may examine as a witness any professional personnel consulted by the court. (Emphasis added.) Section 48-335, provides : "Investigations and reports. ( 1 ) In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child, The investigation and report may be made by the county welfare department." The language of the statutes dictates an exercise of the District Court's discretion in determining whether the findings and/or advice of professional personnel is necessary to a reso- lution of the pending action. This Court has long held the District Court's exercise of discretion ought not be disturbed except upon a clear showing of abuse of discretion. In the Matter of Fish, Mont . , 569 P.2d 924, 34 St.Rep. 1080; Lee v. Gebhardt, supra. Petitioner has failed to demonstrate such an abuse of discretion and we fail to find the District Court abused its discretion when it determined the aid of pro- fessional personnel was not necessary to the resolution of the instant case. Petitioner's final issue attacks the District Court's exercise of discretion in admitting into evidence reputation testimony concerning petitioner's present husband and its reliance upon such testimony in finding he possessed a bad reputation in the community for peacefulness. Petitioner con- tends the District Court erred in admitting such reputation evidence and as a result petitioner incurred substantial pre- judice. Section 48-332 sets forth the relevant factors to be con- gidered in determining child custody: " U custody in accordance with the best interest of the child. The court shall consider all relevant factors including: " ( 1 ) the wishes of the child's parent or parents as to his custody; " ( 2 ) the wishes of the child as to his custodian; I ' ( 3 ) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; " ( 4 ) the child's adjustment to his home, school, and community; and " ( 5 ) the mental and physical health of all indivi- duals involved. " (Emphasis added. ) The counterpart to section 48-332 is section 402 & f the Uniform Marriage and Divorce Act as approved by the National Conference of Commissioners on Uniform State Laws. The language of the two sections is the same except for the last sentence of section 402 which was not adopted by Montana: "* * * The court shall not consider conduct of a proposed custodian that does not effect his rela- tionship to the child." Although Montana chose not to adopt this particular language, case authority has established a precedent moving away from the policy of admitting evidence of misconduct which did not effect the relationship of a custodian with the child. Solie v. Solie, Mont . -s 561 P.2d 443, 34 St.Rep. 142; Foss v. Leifer, Mont . - , 550 P . 2 d 1309, 33 St.Rep. 528; 37 Montana Law Review 119. In the instant case, the admission of reputation evidence concerned petitioner's present husband's violent con- duct in the home and would be relevant as affecting his relationship with the child. The ultimate concern of this Court is the welfare of the minor children. The record in the instant case reveals disabili- ties of both parents seeking permanent custody of the children. Petitioner resides in an atmosphere of domestic conflict while respondent labors under financial indebtedness. Therefore, to protect the interests of the minor children upon rehearing of this matter, we instruct the District Court to appoint independent counsel for the minor children pursuant to section 48-324, R . C . M . 1947. In the Matter of the Guardianship of Gullette, supra; In the Matter of Fish, supra. - 8 - The judgment of the District Court i s vacated. The cause i s remanded for a new hearing to determine permanent custody of the children, consistent with this opini W e Concur: - Chief Justice Mr. Justice Daniel J. Shea deeming himself disqualified took no part in this Opinion.

November 16, 1977

5b8acd1d-f8a4-41ad-aea4-1dd3b323794f

STATE v COLE JR

N/A

13786

Montana

Montana Supreme Court

No. 13786 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, Plaintiff and Appellant, -vs- FRANK COLE, JR., Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judqe presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Arthur W. Ayers, Jr., argued, County Attorney, Red Lodge, Montana For Respondent : Kampfe and Perhacs, Red Lodge, Montana D. Frank Kampfe argued, Red Lodge, Montana Submitted: September 26, 1977 Decided : ' J C i 2 6 1977 M r . Chief J u s t i c e Paul G. Hatfield delivered the Opinion of the Court. The Carbon County attorney charged defendant with four counts of o f f i c i a l misconduct under section 94-7-401, R.C.M. 1947. Defendant moved t o dismiss the four count Information. The d i s t r i c t court granted t h e motion t o dismiss Count I and denied the dismissal of Counts 11, 111, and I V . The Carbon County attorney appeals the dismissal. O n January 20, 1977, the Carbon County attorney applied t o the d i s t r i c t court f o r leave t o f i l e an Information charging defendant with four counts of o f f i c i a l misconduct while chairman of the Carbon County Board of County Commissioners. The county attorney supported h i s application with an a f f i d a v i t wherein he s e t f o r t h various f a c t s tending t o e s t a b l i s h probable cause f o r believing defendant committed t h e offenses. The court granted leave t o f i l e the Information. Count I of the Information charged t h a t defendant, i n h i s o f f i c i a l capacity, had knowingly performed an a c t which he knew was prohibited by law (section 16-1803, R.C.M. 1947) when he entered i n t o a contract t o purchase road machinery from Allied Equipment Company f o r a sum i n excess of $10,000 without f i r s t publishing a notice c a l l i n g f o r bids. O n February 1 4 , 1977, defendant f i l e d t w o motions t o dismiss. I n the motion e n t i t l e d ''MOTION TO DISMISS" defendant asserted t h a t Count I f a i l e d t o charge an offense because section 16-1803 pertains only t o t h e "county governing body" qnd not t o an individual commissioner, such a s defendant. In h i s motion e n t i t l e d "MOTION TO DISMISS - #2", defendant alleged t h e a f f i - d a v i t s he submitted i n support of t h a t motion showed he did not commit an offense. Defendant and t h e Allied Equipment Company salesman and president swore i n the a f f i d a v i t s accompanying "MOTION TO DISMISS - #2" t h a t no contract had been entered i n t o by defendant with ~llied, as alleged in the Information's Count I . The affiants all asserted that, although defendant had signed an order form, the purpose of the form was to allow the sales- man to order the equipment to county specifications of the equipment might be available when the county accepted equip- ment bids. The affiants stated the form in no way bound Carbon County to the purchase of the machinery. Defendant and the other two county commissioners stated in affidavits that the commissioners published a call for bids in the February 26, March 4 and March 11, 1976, Carbon County News and did not accept Allied Equipment Company's bid until the regular meeting of the commissioners on March 11, 1976. The Carbon County attorney submitted no counter-affi- davits and offered no other proof to rebut the sworn statements in the affidavits submitted by defendant. On March 7, 1977, the district court ordered that Count I of the Information be dis- missed, without setting forth the reasons for the dismissal. The issues on appeal are whether a trial judge may dis- miss a criminal case prior to trial over the objection of the prosecuting attorney, and, if he may, whether the trial judge in this case followed the proper procedure in dismissing Count I . Appellant state of Montana notes that the district court did not specify the basis for its dismissal of Count I, and asserts that either ground for dismissal advanced by defendant was insufficient. The state argues the proscription in section 16-1803(1), R.C.M. 1947, against a county governing body enter- ing into certain contracts without first publishing a notice calling for bids, applied to each county commissioner individually, as well as to the commissioners as a body. Appellant maintains dismissal for the reason that section 16-1803(1) did not apply to defendant as an individual was therefore incorrect. Appellant asserts that neither could the judge dismiss Count I on the basis of the affidavits defendant submitted with his "MOTION TO DISMISS - #2". The affidavits went directly to the general issue to be determined at trial, that of whether defendant had actually entered into an unauthorized contract. The state contends that issue is a question to be decided by the jury at trial and not by the judge prior to trial. As the state notes, section 95-1701, R.C.M. 1947, which sets forth the de- fenses and objections which a defendant may raise before trial, allows motions only for "Any defense or objection which is cap- able of determination without the trial of the general issue * * *." Unlike the defense of entrapment raised by pretrial motion in State ex rel. Hamlin v. ~istrict Court, 163 Mont. 16, 515 P.2d 74 (1973), defendant's defense in his "MOTION TO DISMISS - #2" went squarely to the general issue of existence or nonexistence of a contract, and was, therefore, not authorized by section 95- 1701. The judge could, however, for the reason there were insufficient facts to bring defendant to trial, dismiss Count I of the Information under section 95-1703, R.C.M. 1947, which provides "The court may * * * on its own motion * * * and in furtherance of justice, order an * * * information * * * to be dismissed * * *." The defendant in State ex rel. Forsythe v. Coate, Mont . , 558 P.2d 647, 33 St.Rep.1350 (1976), was also charged with official misconduct, and sought to dismiss the charge. This Court held the district judge in Forsythe had the authority under section 95-1703 to dismiss the indictment where he was thoroughly familiar with the facts underlying the alleged offense. The motion to dismiss by the defendant in Forsythe was in effect a motion requesting the court to exercise its discretion to dismiss a charge "on its own motion" and "in furtherance of justice". See: People v. Benson, 64 Cal.App.3d Supp. 10, 134 Cal.Rptr. 766 (1976). The authority of the court to dismiss an Information under section 95-1703, however, is not unbridled. The court nay only dismiss the Information if dismissal is "in furtherance of justice". Section 95-1703 further requires "the reasons of the dismissal must be set forth in an order entered upon the minutes." If the reasons for dismissal are not set forth, this judge Court has no basis to review whether the trial/exercised his dis- cretion to dismiss within the "in furtherance of justice" standard. The "in furtherance of justice" standard, though not defined in section 95-1703, is not merely verbiage; rather, it requires that the court exercise its discretion to dismiss a criminal charge " * * * in view of the constitutional rights of the defendant and the interests of society * * *". State ex rel. Anderson v . Gile, 119 Mont. 182, 187, 172 P.2d 583 (1946). The California courts, interpreting the California Penal Code, sec- tion 1385, a section virtually identical to section 95-1703, R.C.M. 1947, have stated the factors which a trial court should consider before dismissing a case, either before trial or after a verdict, include weighing the evidence indicative of guilt or innocence, the nature of the crime involved, the length, if any, of the de- fendant's pretrial incarceration, and the possible harassment and burdens imposed upon the defendant by a trial. People v . Superior Court of Marin County, 69 Cal.2d 491, 72 Ca1.Rpt.r. 330, 446 P.2d 138, 147 (1968); People v. Ritchie, 17 Cal.App.3d 1098, 95 Cal.Rptr.462, 466 (1971). Because the trial judge in this case did not set forth the reasons for dismissing Count I, we can only guess as to the rationale for the dismissal. If he dismissed the Count because he felt that an individual commissioner cannot violate section 16-1803, R.C.M. 1947, the rationale advance by defendant in his "MOTION TO DISMISS", the judge was incorrect. An individ- ual commissioner may be criminally liable for official miscon- duct under section 94-7-401(1) ( c ) , R.C.M. 1947, for entering into a contract for the purchase of road equipment in excess of $10,000 cost, without publishing notice calling for bids. Section 94-7-401 (1) (c) states: "(1) A public servant commits the offense of official misconduct when, in his official capacity * * * "(c) with the purpose to obtain advantage for himself or another, he performs an act in excess of his lawful authority * * *." Although it is true, as defendant maintains, that section 16-1803 allows only the county governing body as a unit to enter into such construction contracts, this section merely defines the scope of the commissionerst lawful authority. Any contract made by an individual board member without board approval is "an act in excess of his lawful authority", and a crime under section 94- 7-401 (1) (c) . Defendant maintains that the affidavits he submitted with his "MOTION TO DISMISS - #2" were uncontested by the state, clearly proved defendant had not entered into any contract, and warranted the judge in dismissing Count I "in the furtherance of justice". Defendant asserts the judge was fully cognizant of the attendant facts of this case because the affidavits which defendant submitted with his "MOTION TO DISMISS - #2" were identi- cal to the affidavits he submitted in support of a motion for summary judgment which the judge previously granted in a civil case. Defendant maintains that the affidavits stood uncontroverted by any other evidence in the civil case, were part of the court record, and provided the judge with the basis on which to make an informed judgment to order dismissal of Count I of the criminal Information. If these were the judge's reasons for dismissing Count I, he did not state them in the record. In an order filed March 9, 1977, the judge merely stated that "IT IS ORDERED that said motion to dismiss Count I be, and hereby is, granted." The judge had no authority under section 95-1701 to grant a defen- dant's motion to dismiss based on a defense which went to the general issue to be determined at trial. If the judge wishes to dismiss Count I of the Information on his own motion and in the furtherance of justice, under section 95-1703, he must set forth the reasons for the dismissal in an order entered on the minutes. The order of dismissal is vacated and the case is re- manded to the district court for further proceedings consistent with this opinion. -3 Chief Justice A Justices G-*

October 26, 1977

d3d7acd2-bf7a-4c78-8bd8-614f8362d4b8

YECNY v DAY

N/A

13697

Montana

Montana Supreme Court

No. 13697 IN THE SUPREME COURT OF THE STATE OF MONTAIJA 1977 KENNETH LYNN YECNY and JANE ELLEN YECNY, husband and wife, Plaintiffs and Respondents, LOUIS DAY, JR. and Dorothy L. day, husband and wife, et al., Defendants and Appellants. Appeal from: District Court of the Fifth Judicidl District, Honorable Frank E. Elair, Judge presiding. Counsel of Record: For Appellants: Gilbert & Gilbert, Dillon, Montana Max A. Hansen argued, Dillon, Montana For Respondents: Schulz, Davis & Warren, Dillon, Montana John Warren argued, Dillon, Montana Submitted: September 19, 1977 Decided: NOV 1 5 1977 Filed : j p " : f '4" b I Clerk Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This is an appeal by defendants, Louis Day, Jr. and Dorothy L. Day, husband and wife, from the District Court's order, Madison County, granting plaintiffs' motion for summary judgment on Count I of the amended complaint. Count I1 of the amended complaint is not before this Court. Plaintiffs are purchasing certain real property located in Madison County, Montana, hereinafter referred to the "Yecny property". Due to the location of the property, private land must be crossed to gain access. Plaintiffs have not asked for, nor been given any grant of right-of-way to cross the existing "private lane" to reach their land. The usage of this private lane precipitated the law suit. Plaintiffs filed their complaint alleging that defendants had denied them use of a right-of-way or easement by prescription across the portion of the lane which burdens defendants' property. The complaint was filed December 17, 1974. Following legal proceedings, plaintiffs moved for summary judgment with respect to the first count of their amended complaint. A hear- ing was held on the motion. The evidence presented to the Dis- trict Court consisted of the depositions of the Durhams, plain- tiffs' predecessor in interest, of defendants, and of Fred Winslow, a homesteader familiar with the property in question since 1919; the pleadings; the exhibits; the testimony of the parties; and the oral arguments of counsel. Based upon this evidence, the District court granted plaintiffs' motion for summary judgment. Defendants appeal from this order. The issues raised before this Court are: 1. Did the District Court err in granting plaintiffs' motion for summary judgment on the first count of plaintiffs' amended complaint, and declaring plaintiffs to be the owners of an easement or right-of-way across defendants' property? 2. Did the District Court err in making and entering certain other written findings of fact and conclusions of law, and a judgment, which failed to limit future use to ordinary residential use by one family only, or in some way to limit the burden of the easement? A review of the facts finds that in 1941 Durhams pur- chased a ranch in Madison County containing the Yecny property. At that time, the "private lane" existed, and was fenced on both sides. According to Durhams, they used the lane without per- mission, whenever convenient, and according to their needs. During the Durhams' 30 years of ownership of the Yecny property Mr. Durham did repair work on the lane. Around 1946 Mr. Durham rebuilt a bridge across the lane. In 1972 Mr. Durham caused a caterpillar to improve a portion of the lane. During this period no objection was made of Durhams' use and repair work. In 1963 defendants purchased what is known as the Day property. The "private lane" was in existence and fenced on both sides. A portion of that lane burdened the Day property. In 1974, Durhams sold to plaintiffs the Yecny property. Before plaintiffs purchased the property, defendants had not objected to Durhams' use of the portion of the lane burdening their property. Durhams had never sought, nor received, per- mission for this use. Shortly after plaintiffs took possession, defendants initiated efforts to prevent plaintiffs' use of the lane. Issue 1 . The District Court ruled that the pretrial record dis- closed the absence of any genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. "'We must indulge the presumption that the judgment of the district court is correct and will not be disturbed unless there is a clear preponderance of evidence against it when viewed in the light most favorable to the prevailing party.'" Magelssen v. Mouat, 167 Mont. 374, 382, 538 P.2d 1015 (1975), quoting from Stromberg and Brown v. Seaton Ranch Co., 160 Mont. The initial inquiry of this Court concerns the defen- dants' burden, as the party resisting summary judgment. Where the record discloses no genuine issue of material fact the burden shifts from the moving party. Under that circumstance, the party resisting the motion must come forward with substan- tial evidence raising the issue. Harland v. Anderson, 169 Mont. " * * * Once the burden has shifted, the party opposing the motion is held to a standard of proof about equal to that initially imposed upon the moving party: " ' * * * the party opposing motion must present facts in proper form--conclusions of law will not suffice; and the opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicious.'" Harland, supra. We hold defendants did not meet their burden of proof. Defendants' purported issues of genuine material fact are bold assertions and fail to meet the standards set forth in Harland. Defendants first assert the evidence shows the use of the lane to be by permission. This is a bold assertion. De- fendants did not present evidence demonstrating Durhams' use to be a result of neighborly accomodation and thus not hostile nor adverse. Contrarily, plaintiffs presented the testimony of Mr. Durham, stating he had used the lane without permission since 1941 despite knowing the lane was not county property. Mr. Durham claimedperaveled the lane whenever convenient and maintained the lane by repairing the bridge, fixing the culvert, and removing rocks. There was no evidence that Days or their predecessors ever acted to interrupt Durhams' use of the lane. Additionally, testimony was elicited from the defendants showing the non- permissive use of the lane. In 1971, Mr. Durham drove a caterpillar on the lane and began repairing the lane without asking permission. Defendant Louis Day admitted in his deposition the following: "Q. Mow, when Mr. Durham came in * * * I believe this was about in 1971? A. '71, yes. "Q. * * * and started repairing the road, did he discuss the repairs with you? A. He didn't do anything. I came home from work one day, and he had this big bulldozer right in the middle of the road. "Q. So he didn't ask your permission about * * * A. No. "Q. * * * doing anything to the road? When he started repairing the road, did you then go to him and discuss the repairing with him? A. NO, I did not; I did not." Defendants' assertion is unconvincing that mere use of the lane failed to prove adversity. According to Scott v. Wein- heimer, 140 Mont. 554, 561, 374 P.2d 91 (1962), where the plain- tiffs and their predecessor in interest used such road for 35 years, this use unexplained raises a presumption that it was adverse. The lane in this case was used for 33 years without question. The presumption that Durhams use was adverse was not rebutted. Defendants next assert that the poor condition of the road precluded use and thus prevented establishing the prescrip- tive period. This claim lacks merit. The combined testimonies of Mr. Durham, Mr. Day and Mr. Winslow establish that the lane was used. There was no contradicting evidence showing that the lane could not be used by Durhams. TO establish the existence of an easement by prescription, the plaintiffs must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. Weinheimer, supra at 560. "Continuous and uninterrupted" has been explained as follows: "By 'continuous and uninterrupted use' is meant that the use was not interrupted by the act of the owner of the land, and that the right was not abandoned by the one claiming it. * * *" Kostbade v. Metier, 150 Mont. 139, 143, 432 P.2d 382 (1967). See also Wilson v. Chestnut, 164 Mont. 484, 525 P.2d 24 (1974). Also : "Continuous use does not imply constant use. All that is necessary to obtain title by prescription to a ditch conveying water is that the ditch be used whenever water was needed." Selle v. Storey, 133 Mont. 1, 6, 319 P.2d 218 (1957), citing Hays v. DeAtley, 65 Mont. 558, 212 P. 296 (1923). While Mr. Durham's testimony concerning the exact daily times of use between 1941 and time of selling the land to plaintiffs was hazy, his testimony concerning use since 1941 was uncontra- dicted. Defendants' third assertion attempts to raise an issue of abandonment. This issue was not raised before the District Court and resultantly, precludes consideration by this Court. Johnson v. Johnson, Mont . , 560 P.2d 1331, 34 St.Rep. 101, Issue 2. The District Court did not limit the use of the lane by the Yecnys to ordinary residential use by one family. In order for this Court to disturb the judgment of the District Court, the defendants had the burden to show by a clear preponderance of evidence that the judgment was incorrect. Stromberg & Brown v. Seaton Ranch, supra. This was not done. The uncontested evidence is replete with proof of plaintiffs' predecessors' nonresidential use of the lane. Mr. Durham testified to using the lane to transport livestock, to haul timber, hay and grain, to check irrigation headgates, and to use the lane in any manner for which a rancher might use a road. Accordingly, t h i s Court w i l l not d i s t u r b t h e judgment of t h e d i s t r i c t court. For t h e foregoing reasons, t h e judgment of t h e D i s t r i c t Court i s affirmed. Chief J u s t i c e I' J u s t i c e s L/

November 15, 1977

923bd8ed-488e-4fdc-ae04-e59fb0ef56a6

SIMMONS v CITY OF GLENDIVE

N/A

13623

Montana

Montana Supreme Court

No. 13623 I N THE SUPREME COURT O F THE STATE OF M O N T A N A 1977 VIOLET SIMMONS, P l a i n t i f f and Appellant, -vs- CITY O F GLENDIVE, MONTANA, e t a l . , Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Seventh J u d i c i a l D i s t r i c t , Honorable M. James S o r t e , Judge p r e s i d i n g . Counsel of Record: For Appellant: Calton and Stephens, B i l l i n g s , Montana Robert L. Stephens argued, B i l l i n g s , Montana For Respondents: Richard A. :SZmonton argued, Glendive, Montana J e r r y D. Cook, Glendive, Montana -- Submitted: September 21, 1977 'Tf' *! 2 q v F i l e d : U L L , 1 3 M r . J u s t i c e Daniel J. Shea delivered the Opinion of the Court. P l a i n t i f f Violet Simmons appeals from a judgment entered in the D i s t r i c t Court, Dawson County, i n favor of defendants the City of Glendive, Montana, and several of i t s o f f i c i a l s . P l a i n t i f f brought t h i s action i n 1971, seeking damages f o r alleged wrongful and i l l e g a l termination of water services t o property she owned i n Glendive. A t t h a t time the City of Glendive operated a c i t y water system and supplied and d i s t r i b u t e d water services t o residents within the c i t y . On April 12, 1976, following t r i a l before the court without a jury, the D i s t r i c t Court entered findings of f a c t and conclusions of law i n favor of defendants, hereinafter referred t o a s the City. P l a i n t i f f moved t o s e t aside the findings and conclusions o r a l t e r n a t i v e l y , for a new t r i a l . These motions were denied. Judgment was entered against p l a i n t i f f . This appeal followed. I n 1958, p l a i n t i f f began building a structure a t the r e a r of a l o t she owned i n Glendive. On the front portion of t h i s l o t was a four-plex apartment building owned by p l a i n t i f f comprising Nos. 314, 314 1 1 2 , 316 and 316 112 West Brennan Street. The s t r u c t u r e a t the r e a r of t h i s l o t o r i g i n a l l y was t o be a garage, but a t some point during i t s construction p l a i n t i f f decided t o make it a residence. Water and sewer l i n e s were placed between the City's main l i n e and t h i s structure j u s t a f t e r construction started..The l i n e s were hooked up and the water service became operative some years l a t e r when the s t r u c t u r e was f i r s t used a s a home. P l a i n t i f f thought the house was receiving water from the metered l i n e running i n t o the four-plex- when, i n f a c t , it was receiving unmetered water d i r e c t l y from the City's main l i n e . In 1969 the City discovered the small house was receiving water not paid for, because it was not metered. The mayor then instructed the c i t y meter man t o inform plaintiff she was violating a c i t y ordinance by receiving unmetered water, and t o make arrangements for the installation of a water meter a t the house. While there i s a dispute i n the testimony a s t o what occurred when the meter man attempted t o i n s t a l l the meter, it i s clear p l a i n t i f f refused installation when it was offered. Water service to the small house was cut off on the mayor's order when he learned plaintiff had refused t o allow installation of the water meter. The City then prepared a b i l l for the water plaintiff had received a t the house. It determined water service had been supplied, but not paid for, from September 30, 1959 t o M a y 26, 1969. Plaintiff refused to pay t h i s b i l l claiming she received water a t the small house for only 7 years, rather than the nearly 10 years for which she was billed. Plaintiff remained i n the house a f t e r the termination of its water service. She t e s t i f i e d that for a year and a half she hand carried water t o the small house from the four-plex. Ultimately, p l a i n t i f f attached a hose to an outside spigot of the four-plex, and supplied water t o the small house by means of t h i s hose. She used the hose to provide water t o her house a t various times for several months, beginning i n the summer 1970. I n October 1970, the City discovered plaintiff was supplying water t o her house through the hose. O n October 16, the City water clerk sent p l a i n t i f f a notice by certified mail that the use of the hose to supply water t o her house was a violation of City ordinances and Public Service Commission regulations and water service t o the four-plex would be terminated i f the use of the hose was not discontinued by October 26, 1970. P l a i n t i f f acknow- ledged receipt of t h i s notice. The City l a t e r learned p l a i n t i f f was continuing t o use the hose t o supply water t o her house, and on October 30, 1970, water service t o the four-plex was terminated by the City. Tenants living i n the four-plex moved out within a few days of the termination of i t s water services. P l a i n t i f f re- tained a s e r i e s of lawyers during the following months, but was unable t o g e t water service restored t o the four-plex. I n the spring 1971, p l a i n t i f f discontinued heat and e l e c t r i c i t y a t the four-plex; she t e s t i f i e d t h a t without r e n t a l income these u t i l i - t i e s became too expensive t o maintain. After 1971, p l a i n t i f f made no request t o the City t o restore water service t o the four-plex. She t e s t i f i e d t h a t by then, the water pipes i n the four-plex were damaged and without exten- sive repair could not carry water i f it was restored. P l a i n t i f f brought t h i s action on April 28, 1971, seeking damages f o r l o s t r e n t a l s and various expenses she allegedly incurred a s a conse- quence of the City's termination of water services t o the four- plex. The issue on appeal is whether the evidence shows the City of Glendive, acting a s a public u t i l i t y , exceeded i t s lawful authority i n terminating water services t o p l a i n t i f f ' s four-plex. Resolution of t h i s question turns on the c i t y ' s purpose i n t e r - minating the water services. P l a i n t i f f contends the City turned off the water t o the four- plex f o r the purpose of forcing her t o pay the disputed b i l l f o r unmetered water supplied t o her small house, and t o induce her t o i n s t a l l a meter there. While p l a i n t i f f t e s t i f i e d she knew water service t o the four- plex had been terminated because of her use of the hose t o supply - 4 - water to the small house a f t e r the City had shut off the water t o that structure, she also t e s t i f i e d she was led t o believe water service to the four-plex would be restored i f she paid the dis- puted b i l l . This information allegedly was related t o her a t various times by attorneys she retained i n the course of her efforts t o have t h i s service restored. Plaintiff also t e s t i f i e d the mayor told her directly that she would have t o pay the b i l l t o get the water turned back on a t the four-plex. Further, that the c i t y water clerk told one of her attorneys, who i n turn told p l a i n t i f f , that payment of the b i l l would result i n restoration of service t o the four-plex. Plaintiff argues that i f the City would have restored water service t o the four-plex upon payment of the disputed b i l l for water supplied t o her small house, it follows the City shut. off water t o the four-plex solely t o force such payment. The City concedes i t is without authority t o terminate water services t o a structure for the purpose of forcing the resolution of a collateral dispute not affecting the structure. It contends that the evidence here shows p l a i n t i f f ' s payment of the disputed b i l l was not a condition precedent t o restoration of the four-plex's water, but that the service was terminated because p l a i n t i f f violated certain rules and regulations of the Public Service Commis- sion and Glendive c i t y ordinances by providing water to her house by means of the hose attached t o the four-plex. The mayor t e s t i f i e d that shortly a f t e r service t o the four- plex was terminated, he spoke to plaintiff and informed her that i f she reapplied for service t o the four-plex and removed the hose between it and her house, the City would restore service. The c i t y water clerk t e s t i f i e d the mayor had not instructed him t o require plaintiff t o pay the disputed b i l l a s a prerequisite to acceptance of any application plaintiff might make for restoration of service t o the four-plex. The c i t y public works director also t e s t i f i e d stating that restoration of water service to the four-plex was conditioned only on lai in tiff's discontinu- ance of her use of the hose. The notice sent by the c i t y water clerk to plaintiff two weeks before termination of service t o the four-plex s t a t e . such termination would result, i f plaintiff continued t o supply water t o t o her house by means of the hose connected/the four-plex. There is no mention in t h i s notice of the disputed b i l l , and no indica- tion that p l a i n t i f f ' s failure t o pay it would trigger the shutoff of water to the four-plex. The October 16 notice stated that plaintiff was violating regulations of the Montana Public Service Commission and a City Code by supplying water t o her house with the hose from the four-plex. The relevant rules and regulations of the City of Glendive Water Company, approved by the Public Service Commission of Montana, admitted into evidence and applicable a t the time pertinent provided: "Rule G-1. * * * Service w i l l be furnished to any consumer who fully and truly s e t s forth a l l the purposes for which water may be required and who agrees t o and conforms with a l l rules and regula- tions governing the service * * *.I1 "Rule G-5. N o plumber or other person w i l l be allowed t o make connection with any conduit, pipe o r other fixture connecting therewith or t o connect pipes when they have been disconnected, o r t o turn water off or on, on any premises, without permission from the [water] company .I1 " ~ u l e G-6. Service pipes shall be so arranged that the supply of each separate building, house or premises may be controlled by a separate curb cock, placed within o r near the line of the s t r e e t curb, under rules established by the Water Company o r c i v i l authorities, This curb cock and box must be kept i n repair and easily accessible by the owner of the premises." "Rule G-12. For violation of any of these rules, or for nonpayment of water rent, for either domestic, sprinkling or other purposes, the company has the right to turn off the water without further notice * * *.If "Rule G-13, The foregoing general rules shall be effective for a l l water u t i l i t i e s operating in Montana. * * * "In addition t o the general f l a t r a t e and meter rate rules, a u t i l i t y may adopt, subject t o the approval of the Public Service Commission, other rules t o be designated as special rules, to f i t local conditions. I n case of any apparent conflict in the rules, the general rules shall govern." "Rule M-9. I n no case w i l l the company furnish water from one meter t o two or more houses, whether the same are owned by one person o r not. 11 Glendive City Ordinance Number 418, enacted i n 1928, provides i n part: I I Sec. 2. N o plumber o r other person w i l l be allowed t o make connections with any conduit, pipe, or other fixture connecting therewith, or connect pipes when they have been disconnected, or t o turn water off or on, on any premises without permission of the water department. I1 Sec. 3. Service pipes shall be so arranged that the supply for each separate building or house may be controlled by a separate curb box placed a t the out side of the sidewalk. * * *.I1 Having heard the conflicting testimony a s t o the City's purpose i n terminating service t o the four-plex, the D i s t r i c t Court found the c i t y ' s action was not taken t o force payment of the disputed b i l l . Rather, the action was taken to discourage plaintiff from continuing the practice of supplying water t o the small house from the four-plex, a practice prohibited by the quoted rules and regulations and c i t y ordinance. I n City of Missoula v. Rose, 164 Mont. 90, 92, 519 P.2d 146 (1974), t h i s Court stated: " W e have consistently held that t h i s Court cannot substitute its weighing of the evidence for that of the t r i a l court. When there is a conflict i n the evidence, the findings of the t r i a l court are presumed t o be correct i f supported by the evidence most favorable t o the prevailing party. * * * The f a c t that there was a conflict i n the testimony does not justify a reversal where there i s sufficient evidence t o support the t r i a l court's findings of fact." There was sufficient evidence upon which the District Court could base its finding that termination of water services t o p l a i n t i f f ' s four-plex was not for the purpose of forcing the payment of the b i l l for water previously supplied t o the small house. W e note p l a i n t i f f challenged neither the rules and regula- tions nor t h e i r effect on her use of a hose t o supply water metered a t one residence, t o another unmetered residence. While a u t i l i t y may enforce reasonable regulations by terminating service t o a consumer who violates such regulations, termination should not be seen as a necessarily proper response i n every case. When there are less drastic remedies available, such a s injunc- tive o r other r e l i e f , termination w i l l not be favored. For the reasons s e t forth herein, the judgment i n the instant case i s affirmed. We Concur: Justices.

December 12, 1977

ac88f295-ecdb-4423-9d39-efe8013a37a2

Marriage of Wall

2016 MT 74N

DA 15-0556

Montana

Montana Supreme Court

DA 15-0556 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 74N IN RE THE MARRIAGE OF: KAYLEEN M. WALL, n/k/a NOLAND, Petitioner and Appellee, v. JOHN E. WALL, Respondent and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DR-14-32 Honorable James A. Manley, Presiding Judge COUNSEL OF RECORD: For Appellant: Matthew H. O’Neill, O’Neill Law Office, PLLC, Polson, Montana For Appellee: Lucy Hansen, Judnich Law Office, Missoula, Montana Submitted on Briefs: March 2, 2016 Decided: March 29, 2016 Filed: __________________________________________ Clerk March 29 2016 Case Number: DA 15-0556 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 John E. Wall (John) appeals from two orders, entitled Findings of Facts, Conclusions of Law, and Final Decree (Final Decree) and Final Parenting Plan, entered by the Twentieth Judicial District Court, Lake County. We affirm in part and reverse in part. ¶3 On September 7, 2013, John married Kayleen M. Wall (Kayleen). Kayleen had two children prior to the parties’ marriage. On February 27, 2014, Kayleen obtained an Order of Protection against John from the Tribal Court of the Confederated Salish and Kootenai Tribes that prohibited John from having any contact with her or her children. The Order of Protection was later made permanent. On March 7, 2014, Kayleen filed for dissolution. In June 2014, John and Kayleen’s son, D.J.W., was born. Following a hearing on the parties’ dissolution and parenting plan, the District Court issued its Final Decree and Final Parenting Plan on August 11, 2015. John appeals. ¶4 John raises five issues on appeal. He first claims that the District Court erred in allowing John’s ex-wife, Dawn Burnham (Burnham), to testify. John argues Burnham’s testimony was inadmissible because portions constituted hearsay or were both hearsay and irrelevant. Relevant evidence is generally admissible unless “its probative value is 3 substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M. R. Evid. 402; 403. Evidence is relevant if it has “any tendency” to make the existence of any fact more probable or less probable than it would be without the evidence. M. R. Evid. 401. Hearsay is inadmissible. M. R. Evid. 802. ¶5 Burnham testified about her prior relationship and marriage to John; several instances of John’s emotional and physical abuse against her; an incident where John admitted that he was angry at their child and threw an object, which missed the child and hit the wall, causing a hole in the sheetrock; John’s relinquishment of his parental rights to he and Burnham’s child; and an allegation of child abuse she made against John that caused Child Protective Services to investigate him. Burnham testified that their son apologized for causing the hole in the wall. When prompted that it was not his fault John had thrown something at the wall, the son told Burnham it was John throwing him and his head, not an object, that caused the hole in the sheetrock. It was after this incident that Burnham called Child Protective Services and made an allegation of child abuse against John. This testimony garnered seven objections based on hearsay and one on relevance. The District Court stated, “I’m going to allow the witness to testify to what the child said to her for the limited purpose of explaining what actions [Burnham] took and why.” ¶6 Burnham’s testimony regarding her prior relationship and marriage to John did not constitute hearsay. In general, Burnham testified based upon her personal knowledge 4 about her relationship with John, their child, and their family dynamics. Burnham’s testimony regarding the incident where John allegedly threw their son into a wall and the resulting child abuse investigation was relevant to the parenting proceeding focused on developing a parenting plan for John and Kayleen’s minor child. As explained by the District Court, Burnham’s testimony regarding what their son told her about the wall incident was offered and accepted by the court, not to prove the truth of the matter asserted—that John actually threw their son into a wall—but for the limited purpose of explaining why Burnham called Child Protective Services. Because the purpose of the statement was not to prove the truth of the matter asserted, it was not hearsay, and was admissible because of its relevance. The District Court did not err in allowing Burnham’s testimony. We affirm the District Court on this issue. ¶7 The second issue John raises on appeal is whether the District Court erred in allowing Kayleen’s pastor, Lawrence Nicholas (Nicholas), to testify. John claims that Nicholas’ testimony was prohibited under §§ 26-1-804, -813 and 40-4-303, MCA, and M. R. Evid. 802. Section 26-1-804, MCA, provides that a member of the clergy or priest may not, without consent of the person confessing, be examined as to any confession made to them. Section 26-1-813(2)(a), MCA, provides that, except if consented to in writing by both parties, mediation discussions are confidential. Section 40-4-303, MCA, provides mediation proceedings are subject to confidentiality and privileges provisions of § 26-1-813, MCA. Hearsay is inadmissible. M. R. Evid. 802. ¶8 Nicholas testified that he knew Kayleen because she attends his church and that he met John through Kayleen. He testified he had known Kayleen for three or more years, 5 had performed John and Kayleen’s marriage ceremony, and later held one marital counseling session with them. John objected to Nicholas’ testimony on the grounds of pastor privilege, mediator privilege, and hearsay. Nicholas testified that before John came to the session, he found out that Kayleen was afraid of John, John drank, and got angry when he drank. Nicholas testified that John arrived late and appeared very angry. Nicholas testified that “because [John] was that angry,” he was concerned he might need to “jump in between both of them.” Nicholas testified that John left the session early, Nicholas heard him peeling out of the church’s gravel parking lot, and that he had not seen or spoken to John since. When Kayleen’s attorney asked Nicholas, “if Kayleen told you that she was afraid of John, based upon that meeting would you believe that her fears are justified?” Nicholas answered, “Yeah.” ¶9 Section 26-1-804, MCA, does not apply and did not prohibit Nicholas’ testimony because Nicholas did not testify as to any confession John made to Nicholas. Sections 26-1-804, -813, MCA, do not apply and did not prohibit Nicholas’ testimony because Nicholas did not testify as to any confidential discussions made during mediation. The rule against hearsay does not apply and did not prohibit Nicholas’ testimony because Nicholas testified about his personal observation of the parties’ behavior and actions, and not specific statements made or offered for their truth. The District Court did not err in allowing Nicholas’ testimony. We affirm the District Court on this issue. ¶10 The third issue John raises on appeal is whether the District Court erred by requiring John to have supervised visitation with D.J.W. in its Final Parenting Plan. John contends that the District Court lacked substantial evidence and failed to make a finding 6 required under § 40-4-218(2), MCA. “[I]f the court finds that in the absence of the order the child’s physical health would be endangered or the child’s emotional development significantly impaired, the court may order supervised visitation by the noncustodial parent.” Section 40-4-218(2), MCA. This provision does not require the court make a specific finding or that it be included in the parenting plan. We review a district court’s factual findings pertaining to a parenting plan to determine if they are clearly erroneous. In re Marriage of Anderson, 2014 MT 111, ¶ 11, 374 Mont. 526, 323 P.3d 895 (citation omitted). A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the evidence convinces us that the district court made a mistake. Anderson, ¶ 11 (citation omitted). ¶11 In the Final Parenting Plan, the District Court found D.J.W. would primarily reside with Kayleen, the custodial parent, and that John would have supervised visitation with D.J.W. two Saturdays per month. In making its determination, the District Court recognized that John’s “chemical dependency . . . is a factor;” that “physical abuse and the threat of physical abuse by [John] against [Kayleen] and her children is a factor;” and that a “Permanent Restraining Order, Cause No. 14-060-TPO, has been issued in the Tribal Court of the Confederated Salish and Kootenai Tribes prohibiting [John] from any contact with [Kayleen] or her children.” The Final Parenting Plan stated, there “are circumstances which warrant a limit or restraint on access to [D.J.W.] by [John.]” It also stated that the Final Parenting Plan would be reviewed annually and be modifiable when necessary to serve D.J.W.’s needs. When the Final Parenting Plan was ordered, John had 7 not met D.J.W. or requested to do so. The District Court did not err in granting John supervised visitation because substantial evidence supported a finding that, without supervised visits, D.J.W.’s physical health would be endangered or his emotional development significantly impaired. We affirm the District Court on this issue. ¶12 The fourth issue John raises on appeal is whether the District Court erred in permitting the prevailing party to recover attorney fees in future modifications to the Final Parenting Plan. Section 40-4-110, MCA, governs costs associated with proceedings involving marriage, termination of marriage, child custody, and support. That section reads, in pertinent part: The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 [Marriage] and 4 [Termination of Marriage, Child Custody, Support] and for professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. Section 40-4-110(1), MCA. The Final Parenting Plan states that “[s]hould Court action occur, the prevailing party shall be awarded attorney fees.” This provision in the Final Parenting Plan is impermissible because it conflicts with § 40-4-110(1), MCA, in that it does not require or allow the District Court to consider the financial resources of both parties before awarding attorney fees. The District Court erred in including such a provision in the Final Parenting Plan, which is inconsistent with the requirements of § 40-4-110(1), MCA. We reverse the District Court on this issue and remand with instructions to vacate this provision of the Final Parenting Plan. 8 ¶13 The fifth issue John raises on appeal is whether the District Court erred by failing to include, in its Final Decree, a requirement that Kayleen reimburse John for $500 worth of hay John fed to Kayleen’s cattle. Kayleen concedes this issue, stating the “District Court record is clear, that Kayleen did not object to paying Appellant $500.00 for a hay credit.” This issue is not contested. The District Court erred by failing to include a requirement that Kayleen reimburse John for $500 worth of hay. We reverse the District Court on this issue and remand with instructions to credit John with $500. ¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no issues of first impression and does not establish new precedent or modify existing precedent. ¶15 Affirmed in part, reversed in part, and remanded for modification of the Final Parenting Plan and Final Decree consistent with this Opinion. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ JIM RICE

March 29, 2016

14a0c07f-94cb-4b21-abfb-17ed7a7dd240

STATE v STEWART

N/A

12990

Montana

Montana Supreme Court

No. 12990 I N T H E SUPREME C O U R T O F T H E STATE O F M O N T A N A STATE O F M O N T A N A , P l a i n t i f f and Respondent, ANDRA PHILLIP STEWART, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Hon. Robert S. K e l l e r , Judge p r e s i d i n g . Counsel of Record: For Appellant: Moses, Kampfe, T o l l i v e r and Wright, B i l l i n g s , Montana Charles F. Moses argued, B i l l i n g s , Montana For Respondent : Hon. Michael Greely, Attorney General, argued, Helena, Montana J. Fred Bourdeau, County Attorney, argued, Great F a l l s , Montana Submitted: January 24, 1977 -, F i l e d : J f C 7.' - , , - Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant Andra Phillip Stewart appeals from a conviction of aggravated kidnapping under section 94-5d303, R.C.M. 1947, fol- lowing trial in the District Court, Cascade County. In early January, 1974, defendant, an airman stationed at Malmstrom Air Force Base near Great Falls, Montana, was involved in a court-martial hearing at that installation. On January 9, after spending the afternoon at Malmstrom's legal office, defendant met Larry Vample, also an airman at the Base, and the two men went to the Base recreation center. They stayed there for a few minutes, then drove in Vample's car to the apartment of Billy Naray Evans in Great Falls. Vample later left Evans' apartment in his car, and defendant and Evans drove to Darrell Sloan's apartment, where they met Vample, Sloan, and three other airmen. ' The men discussed defendant's court-martial. Defendant told them someone had informed on him and others living off the Base in Great Falls. John K. Walsh, Jr., an airman who lived in defendant's barracks, was mentioned as a possible informant. They agreed to confront Walsh and to force him to tell them whether he had informed, and if he had, what he had said. Before leaving for the Base, Evans obtained a syringe from one of the other airmen and filled it with battery acid, with the apparent intention of using this device to threaten Walsh. They arrived at Malmstrom sometime between 9:00 and 9:30 p.m. While the others waited in his barracks room, defendant went to get Walsh. Defendant returned with Walsh, and asked him if he had been an informant. Walsh denied he had informed on anyone, and bolted for the door. He was stopped, a scuffle ensued, and Walsh was knocked to the floor and grabbed by several people. Evans then tried to inject the battery acid into Walsh's leg, but the needle broke and the attempt was unsuccessful. .' 'I' I b One of the men threatened Walsh with a gun, telling him to be quiet. Walsh finally was subdued. By this time, the only per- sons left in defendant's room were Evans, Vample, Walsh, and defend- ant. His mouth taped and his bod-y wrapped in a blanket, Walsh was carried out of the barracks, placed in Vample's automobile, and taken to the Giant Springs recreation area near Great Falls. There Walsh was removed from the vehicle and shot--once in the chest and three times in the head. His body was thrown over the bank of the Missouri River, where it was found three days later by a fisherman. There was a direct conflict in testimony at the trial con- cerning who was present and who did the shooting when John Walsh, Jr. was killed. Evans and Vample testified they, together with defendant, took Walsh to Giant Springs and defendant shot and killed Walsh. Defendant testified he abandoned the enterprise as Walsh was being taken from the barracks by Evans and Vample, and he was not present when Walsh was shot. Defendant subsequently was arrested and charged by Informa- tion, filed in the District Court, Cascade County, on three felony counts: one court of deliberate homicide, in violation of section 94-5-102, R.C.M. 1947, and two counts of aggravated kidnapping, in violation of section 94-5-303, R.C.M. 1947. Defendant plead not guilty to each of the counts of the Information. Trial by jury began on September 9, 1974. At the conclusion of the state's case, the trial court granted defendant's motion to dismiss the third count, which alleged defendant kidnapped Walsh for the purpose of interfering with a governmental investiga- tion. On September 19, 1974, defendant was found not guilty of the deliberate homicide count, and guilty of the remaining count of aggravated kidnapping. Defendant appeals from the conviction and from the 100 year sentence imposed thereon. Defendant presents twelve issues for review: 1. Whether the District Court had jurisdict.ion over this kidnapping offense which occurred on a United States Air Force Base. 2. Whether defendant's motion for a change of venue should have been granted. 3. Whether Air Force personnel and Blacks were spectacularly and purposely excluded from the assessment roll which made up the jury panel list. 4. Whether testimony and evidence obtained by the use of a dog is admissible. 5. Whether the District Court erred when it refused defend- ant the right to cross-examine a prosecution witness as to his mili- tary rank. 6. Whether the District Court erred when it refused to allow testimony as to items seized under a search warrant. 7. Whether a prosecution witness was erroneously permitted to testify as to a self-serving and hearsay statement. 8. Whether a prosecution witness was erroneously permitted to testify as to his conclusion. 9. Whether the District Court erroneously answered a jury question after the case was submitted to the jury. 10. Whether the kidnapping punishment statute which requires the sentencing judge to make a finding of fact and base his sentence thereon is unconstitutional. 11. Whether the 100 year sentence was error. 12. Whether the District Court improperly retried the case by personally interviewing witnesses after the jury verdict and then making determinations of fact as a part of the sentencing procedure. Issue 1. Defendant contends the District Court was without jurisdiction over the kidnapping offense because the crime took place on a United States Air Force Base. In State ex rel. Parker v . District Court, 147 Mont. 151, 155, 410 P.2d 459 (1966), this Court held that where the federal government purchases land from the state, the state reserves criminal jurisdiction over such lan?. after its purchase. Defendant recognizes Parker, but contends 1) it is erroneous, and 2) it is no longer controlling as the law has since been changed and the state now has no such jurisdiction. We affirm our holding in Parker. The state may reserve criminal jurisdiction over land conveyed to the federal government. State v. Rindal, 146 Mont. 64, 67, 404 P.2d 327 (1965). The next question of Issue 1 is whether section 95-304, R.C.M. 1947, the general statute for criminal jurisdiction, enacted after Parker, divests the state of jurisdiction over a crime com- mitted on a federal military base located in Montana. In relevant part, section 95-304 provides: "(a) A person is subject to prosecution in this state for an offense which he commits * * * if: "(1) The offense is committed either wholly or partly within the state * * * "(d) This state includes the land and water and the air space above such land and water with re- spect to which the state has legislative juris- diction. " Defendant argues that since Montana first must have legis-, lative jurisdiction over the Air Force Base before it can claim criminal jurisdiction, under section 95-304, the state may not try the kidnapping in the present case. We do not think this statute can be so narrowly interpreted. The Revised Commission Comment concerning section 95-304 states: "The purpose of this section is to establish a broad grant of jurisdiction for all crimes. "Subsection (d) claims for the state of Montana the maximum territorial jurisdiction compatible with federal claims." There is nothing in the language of section 95-304 indicating legis- lative intent to restrict jurisdiction this state had previously exercised over crimes committed on land purchased by the federal government. We hold the District Court did have jurisdiction. Issue 2 . Defendant contends the trial court should have granted his motion for change of venue because of the anti-Black attitude alleged to exist in Great Falls, the trial site. Defendant and the other airmen involved in the incident are Blacks. The vic- tim was Caucasian. Defendant did not move for change of venue until the eve of trial. One witness called in support at the hearing on defend- ant's motion was Air Force Captain Theron R. Jones, Chief of Social Activities at Malmstrom. The main thrust of his testimony was that there is, in his opinion, a kind of "unconscious bias" against Blacks in Great Falls. He explained that by "unconscious bias", he meant the local population would tend to judge a Black person to be a troublemaker. A Black himself, Capt. Jones conceded he had not had any problems personally, but indicated other Blacks experi- enced this "unconscious bias". During the hearing, this exchange took place: "THE COURT: Do you think going out of this county would change unconscious bias? "THE WITNESS: [Jones] Not in the State of Montana, no. "MR. WRIGHT: [counsel for defendant] Your Honor, I personally think * * * I asked the Captain if he thought Airman Stewart would get a fair trial here, and I believe your answer was * * * "THE WITNESS: My answer is no. "THE COURT: By the same token, you don't think he would get any fairer a trial anywhere else in the State as far as you know? "THE WITNESS: As far as I know." Captain Jones stated this "unconscious bias" probably existed through-. out the state of Montana and that i t . also existed in other states where he had been stationed. The only other evidence on this point was presented by the same witness, who testified to some vague proh- lems created in the community by Black Air Force personnel dating local white, Indian, and Chicana girls. A clear abuse by the District Judge in denying a change of venue is required to support reversal of his denial. State v. Logan, 156 Mont. 48, 58, 473 P.2d 833 (1970). Neither in the original hearing on this motion nor on appeal has defendant shown he could not receive a fair trial in Cascade County. There is simply no evidentiary basis in the record to show the trial court abused its discretion in denying a change in venue. Issue 3. Defendant contends he was denied a fair trial because Air Force personnel and Blacks were excluded from the assess- ment roll which made up the jury panel list. There is no dispute that no Black Air Force personnel were included in the jury panel list. A fair cross section of the community must be represented on such a panel to fulfill the Sixth Amendment" guaranty of an impartial jury trial in criminal prosecutions. While a defendant is not entitled to a jury of any particular composition, the jury panel "must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L ed 2d 690, 703 (1975). The jury panel in the instant case came from the Cascade County assessor's list of qualified taxpayers, a method of selection that is not per se unconstitutional. Leggroan v. Smith, 498 F.2d 168, 170 (10th Cir. 1974). Defendant argues this method is uncon- stitutional here becauseitsuse results in the exclusion of a sub- stantial percentage of the Air Force personnel at Malmstrom from the county's jury panel. The record discloses Air Force personnel constitute approxi-. mately 15 percent of the population of Cascade County, and that approximately 10 percent of all Air Force personnel at Malmstrom are Black. The assessor's list of taxpayers, however, includes only about 20 percent of the Air Force personnel who live in the county. The questions is--Does this variation between the percentage of Air Force personnel in the county and the percentage of their representation on the jury panel, as taken from the assessment roll, reflect a constitutional infirmity in the selection method. We hold that it does not. Under the Soldiers' and Sailors' ! Relief Act, 50 U.S.C.' S574, enacted in 1940, military personnel may not be required to pay taxes in the state in which they are stationed if they retain residence elsewhere. Cascade County allows Air Force personnel to exempt themselves from this taxation by the signing of an affidavit stating that the affiant is a nonresident. The effect of this voluntary exemption is to keep those who so elect off of the assessment roll, and consequently, off of the county's jury panel list. Here, at the time of trial, state law required that a juror be a resident of this state for one year. Section 93-1301, R.C.M. 1947 (repealed 1975). One year residency requirements for jurors have been upheld as constitutional. United States v. Ross, 468 F.2d 1213, 1216 (9th Cir. 1972), cert. denied 410 U.S. 989, 93 S.Ct. 1500, 36 L ed 2d 188; United States v. Perry, 480 F.2d 147, 148 (5th Cir. 1973) . By signing the affidavit of nonresidency required for exemption from taxation, military personnel established exemption from jury duty in the state. The latter effect was incidental; the purpose of the exemption affidavit was to facilitate compliance with federal law respecting the status of military personnel as taxpayers in the state where they are stationed. Nonresidency is sufficient grounds for the exclusion from the jury panel list of the majority of Air Force personnel living in Cascade County on temporary assignment, and defendant's conviction therefore is not invalid. Since over 95 percent of the Black population of Cascade County is Air Force personnel, it follows that, if most of them choose to take the exemption from taxation, only a small percentage of the jury panel list will be Blacks. The number of Black Air Force personnel remaining for inclusion in the jury panel equals approximately .35 percent of the county's total population. All Blacks in Cascade County constitute approximately 1.65 percent of the county's population; the variation between the percentage of Blacks in the county and those qualified to be on the jury panel list thus is about 1.4 percent. Defendant cites no authority to the effect that such a small variation shows systematic exclusion of a distinctive community group. Issue 4. Defendant contends the trial court improperly allowed testimony as to evidence obtained through the use of dogs during the search of the Giant Springs area. Keith Wolverton, a Cascade County deputy sheriff, and other sheriff's department per- sonnel brought several dogs to the area after the victim's body was discovered there. The dogs located a pool of blood in the snow, and after examination the sheriff's deputies recovered two bullets in or near the blood. Defendant argues that under State v. Storm, 125 Mont. 346, 238 P.2d 1161 (1951), testimony given by Deputy Wolverton relating to the recovery of this evidence should not have been permitted. In Storm, bloodhounds allegedly followed a scent from a foot or knee- print found near the site of a fatal shooting which ultimately led them to the defendant's house. The handler testified that his dogs' behavior would tend to incriminate the defendant. The purpose of the testimony was to link the defendant to the crime, and it was the only evidence. Storm is clearly distinguishable from the present case. Here, dogs were not used to track and locate the defendant, and the testimony allowed did not tend to identify defendant as having been in the area searched with the aid of the dogs. The testimony objected to here was not that of a dog or other dumb animal as interpreted by his handler. It was that of an investigating officer, whose tools included specially trained dogs. Defendant was afforded ample oppor- tunity on cross-examination to question the relevance of the evi- dence recovered with the aid of the dogs, and Deputy Wolverton's testimony concerning this recovery is not "bloodhound testimony" found to be incompetent in Storm. The testimony was properly allowed. Issue 5. Defendant contends the trial court erred in re- fusing his inquiry as to the military rank of a prosecution witness, Robert L u s ~ , Jr. Lusk, a special agent of the Air Force Office of Special Investigations, testified on direct examination that the victim, Walsh, had provided him with information concerning criminal investigations Lusk's office was carrying out at Malmstrom. In his testimony, Lusk identified the victim's body in a photograph as Walsh. In his voir dire of the witness, defense counsel asked Lusk what his military rank was. Lusk replied that his rank was privi- leged. During the in-chambers discussion that followed, defense counsel contended the question as to Lusk's rank was related to the second count of aggravated kidnapping, the charge involving defend- ant's alleged interference with the performance of a governmental investigation. In chambers, the witness stated that nondisclosure of his military rank was necessary to insure cooperation from military personnel being investigated. It was the Air Force's belief that personnel of a lower rank than the investigator would be intimidated, and that personnel of a higher rank might intimidate a lower ranking investigator. The trial court ruled Lusk's rank was irrelevant, and since the purpose of Lusk's direct testimony was to identify the victim, inquiry into the witness' rank exceeded the scope of direct examination. Defendant has shown no prejudice as a result of the trial court's ruling. Whatever inquiries defendant may have made concerning the third count were rendered moot by the trial court's granting of defendant's motion to dismiss that count at the close of the state's case. Issue 6. Defendant contends the trial court improperly refused to allow testimony as to items seized under a search warrant. Cascade County Deputy Sheriff William Fargo testified on direct examination that he searched defendant's barracks room and recovered a note and some masking tape. On cross-examination, he stated a rug and sheets from defendant's bed were also recovered, and that the other officer present seized other items. Deputy Fargo also testified a complete inventory of all items seized was filed as a return on the search warrant with the issuing court. When defense counsel asked how many items were taken, the state objected on the grounds the best evidence would be the search warrant and return thereon, and the trial court sustained the objec- tion. Defendant has not shown how he was prejudiced by this ruling, and the fact the witness testified on recross-examination as to the other items seized eliminates any possibility of prejudicial error. Issue 7. Defendant contends a prosecution witness was improperly allowed to make a self-serving and hearsay statement. The witness, Air Force Captain Robert Stewart, was brought to 14almstrom to try defendant's court-martial. On cross-examination, defense counsel asked the witness if he had made formal application to call John Walsh, Jr., as a witness in the court martial pro- ceedings. Captain Stewart testified he hadmade no such applica- tion, and the Air Force Office of Special Investigations had refused to officially release Walsh's name. On redirect examination, the witness was asked if he had attempted or had been precluded from making formal application for Walsh as a witness. This question triggered defendant's objection, and the trial court's overruling of the objection, here specified as error. The witness' answer, that he had been precluded from calling Walsh in the sense that the Office of Special Investigations would not release Walsh's name, was not prejudicial to the defense. There was no error in allowing the question. Issue 8. Defendant contends the trial court should not have permitted a prosecution witness to testify that he knew of no reason why Billy Naray Evans would shoot John Walsh, Jr. Defendant argues the question called for a conclusion and therefore, the trial court should have sustained his objection to the question. Defendant has shown no prejudice from this question or its answer with respect to the kidnapping charge. The question went to the prosecution's attempt to prove defendant guilty of the deliberate homicide charge, of which he was found innocent. There was no prejudicial error in permitting the witness to reply to the question. Issue 9. Defendant contends the trial court erroneously answered a jury request after the matter was submitted to the jury. The record discloses this was submitted, in writing, to the trial court : "There have been two charges of kidnapping. They dropped one charge. Could you specify the charge and boundary of the charge that was dropped? We the jury feel that one charge that was dropped is the one inside. The other we feel is the one with the car to Giant Springs." Defendant and his counsel were given the opportunity to read the request. Defendant argued the only proper response would be to supply the jury with a copy of the dismissed third count. Over defendant's objection, the trial court gave the jury a written answer which stated that the Information alleged two counts of aggravated kidnapping; set forth both counts verbatim from the Information; and, concluded by stating that Count I11 had been dis- missed. Defendant contends the answer, as given, placed undue empha- sis on the remaining kidnapping count and therefore impcoperly indicated to the jury how it should view the evidence. This con- tention is without merit. The original instructions did not set out the Information under which defendant was charged. The instructions did state defendant was charged with deliberate homicide and aggravated kid- napping, and indicated what those charges entailed. The response to the jury's request given by the trial court was no more than an additional, warranted instruction as to the law applicable to the case. Under section 95-1913(d), R.C.M. 1947, a trial court may give additional instructions after the case has been submitted to the jury. In State v. Hawkins, 165 Mont. 456, 460, 529 P.2d 1377 (1975), this Court held it is in the discretion of the trial court whether or not to give additional instructions when such a request is made. There was no abuse of discretion in the present case. Issue 10. Defendant challenges the constitutionality of section 94-5-303(2), R.C.M. 1947, the aggravated kidnapping punish- ment statute. This sub-section, before amendment in 1977, provided: "(2) A person convicted of the offense of aggravated kidnapping shall be punished by death as provided in section 94-5-304, or be impri- soned in the state prison for any term not to exceed one hundred (100) years unless he has voluntarily released the victim, alive, in a safe place, and not suffering from serious bodily injury, in which event he shall be im- prisoned in the state prison for any term not to exceed ten (10) years. " Defendant asserts this statute is unconstitutional because it requires the trial court to make a finding of fact, thereby violating defendant's right to have all facts submitted to and determined by the jury. The existence of every fact necessary to constitute the crime charged must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L ed 2d 368, 375 (1970). Initially, the question is whether an accused's voluntary release of or failure to release his victim in a safe place, alive and not suffering from serious bodily injury, has any bearing on his guilt or innocence of the crime of aggravated kidnapping. Clearly it does not. Section 94-5-303(1), R.C.M. 1947, provides : "(1) A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation, or by using or threatening to use physical force, with any of the following purposes: "(a) to hold for ransom or reward, or as a shield or hostage; or "(b) to facilitate commission of any felony or flight thereafter; or "(c) to inflict bodily injury on or to ter- rorize the victim or another; or "(d) to interfere with the performance of any governmental or political function; or "(e) to hold another in a condition of involun- tary servitude." The intent to restrain and the restraint, for any of the enumerated purposes, are the facts the jury must determine to establish an accused's guilt of aggravated kidnapping. No additional facts need be proved in order to constitute the crime. The next question of Issue 1-0 is whether defendant's right to a jury trial includes the right to have the jury determine facts that relate only to the severity of punishment, once guilt has been established. In Patterson v. New York, U.S. , 97 S.Ct. 2318, 53 L ed 2d 281 (decided June 17, 1977), the United States Supreme Court held that a state may require a defendant to prove mitigating cir- cumstances of severe emotional distress as an affirmative defense to a second degree murder charge. The challenge there turned on the defendant's contention that due process required the state prove beyond a reasonable doubt that he had not acted under the influence of severe emotional distress. The Court found the mitigating factor was a separate issue, neither presumed nor inferred to be an ele- ment of the crime from the statutory definition of the offense, and the state therefore did not have the burden of proving it. In language relevant to the present case, Justice Powell in his dissent in Patterson stated: " * * * The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punish- ment alone is not enough. It must also be shown that in the Anglo-American legal tradition the factor in question historically has held that level of importance. * * *" 53 L ed 2d 302. Here, we are concerned with a statute having a bifurcated sentencing provision rather than a statute that separately allocates the burden of proof, as in Patterson. However, the present case and Patterson, both, focus on the status of a fact neither by tra- dition nor by statute a necessary element of the crime charged. The majority decision and Justice Powell's dissent in Patterson indicate that when the presence or absence of such a fact determines only the severity of punishment, it need not be proved by the state beyond a reasonable doubt. The release or nonrelease of a kidnapper's victim is such a fact, and it is within the power of the state to allow the trial court, rather than the jury, to make this factual determination. Issue 11. Defendant next contends the 100 year sentence imposed by the trial court was error. Defendant argues that since the jury acquitted him on the deliberate homicide charge, it neces- sarily follows it found he had not accompanied the victim to Giant Springs. Defend-ant asserts his abandonment of the enterprise at the barracks exit limits his punishment under the applicable statute to a maximum of 10 years. Section 94-5-303(2) provides a maximum sentence of 10 years for a person convicted of aggravated kidnapping when the accused voluntarily released the victim, alive, in a safe place, and not suffering from serious bodily injury. Defendant maintains that under the facts of the present case, as found by the jury, he did voluntarily release John Walsh, Jr. alive and not suffering from bodily injury in a safe place, the Malmstrom Air Force Base barracks where defendant and Walsh lived. Even assuming that Walsh was alive and not seriously injured when defendant claims to have left him with Vample and Evans, it cannot be said defendant released Walsh in a "safe place". It defies logic to say that a location is, as a matter of law, "safe" for a person who there was struck by a lamp, threatened with a gun, assaulted with a syringe filled with battery acid, bound, gagged and wrapped in a blanket. This was not a release in a "safe place" as would entitle defendant to receive the benefit of the lesser sentence, and there was no inconsistency in sentencing this defendant to the greater sentence, even if he had no further participation in the events that culminated in Walsh's death. Issue 12. In his final issue defendant challenges the methods employed by the trial court in conducting its own presentence investigation following defendant's conviction. The record shows thatatvarious times and places between September 19, 1974, when the jury returned its verdict, and October 15, 1974, the date of the presentence hearing, the trial judge personally interviewed several persons who testified at the trial. The day after the trial concluded, the trial judge interviewed witness Jimmy Lee Thomas at Malmstrom. On the night before the hearing on defendant's bail request, the trial judge interviewed witnesses Billy Naray Evans and Larry Vample at the Cascade County jail. On the day of the bail hearing, the trial judge interviewed witness Hiram McDonald at an undisclosed location. Also interviewed, at times and places not appearing in the record, were witnesses Fay McRoberts and Marion Johnson, Jr. No record was made of any of these interviews, and no notice was given to defendant or his counsel of the trial court's intent to conduct the interviews. When defense counsel learned of the trial court's actions in this regard, during an in-chambers discus- sion just prior to the opening of the presentence hearing, he moved the trial judge to disqualify himself from the sentencing of defend- ant. The motion was denied, and the question here is whether it was proper for the trial court to act as the sentencing judge in light of his out-of-court interviewing of several witnesses. Defendant argues the trial judge should have disqualified himself. He relies primarily on Kuhl v. District Court, 139 Mont. 536, 366 P.2d 347 (1961), and State v. Simtob, 154 Mont. 286, 462 P.2d 873 (1969). In both cases this Court held that the reliance on information privately received by a sentencing judge is an abuse of the judge's sentencing discretion. However, neither case is controlling here. In Kuhl, the Court was interpreting sentencing statutes, sections 94-7813 and 94-7814, R.C.M. 1947, repealed in 1967, and replaced by sections 95-2203, 95-2204, and 95-2205, R.C.M. 1947. The statutes are considerably different. In Simtob, the Court was interpreting a provision of the Dangerous Drug Act (section 54-133, R.C.M. 1947) which provides that a first-time offender under 21 is presumptively entitled to a deferred imposition of sentence. The trial court relied on private information and sentenced defend- ant to a prison term. Defendant had no opportunity to meet this information. Relying on Kuhl, this Court held use of this privately received information to be improper. In the present case, the controlling statutes are sections 95-2203, 95-2204, and 95-2205, R.C.M. 1947. Section 95-2203 pro- vides that a presentencing investigation be prepared by a probation officer, when a defendant has been convicted of a crime which may result in a sentence of one year or more. Under section 95-2204, the probation officer is directed to inquire into, among other things, the circumstances of the offense. Section 95-2205 grants the sentencing judge the discretion to make the report, in full or in part, available to the defendant and to allow cross-examination of those who gave information included in the report. The effect of these statutes on the question of whether a sentencing judge may receive and adopt information from sources other than the testimony of witnesses in open court was considered by this Court in State v. Orsborn, Mont . , 555 P.2d 509, 33 St.Rep. 935, 939 (1976). There, we held that when a defendant is protected against a sentence predicated on misinformation, there is no due process violation when presentence information comes from a source not subject to cross-examination in court. Orsborn, supra. The specific protections found to have been present in Orsborn included: 1) defendant was represented by counsel at the time the sentencing information was made known to him; 2) the defendant had the opportunity to rebut the information; and 3) the defendant chose to affirm the accuracy of the information. Orsborn, - however, cannot be read to mean that in every case in which a sen- tencing judge goes beyond the confines of a presentencing investi- gation report, the sole question is whether or not subsequent pro- ceedings afford the defendant an opportunity to correct inaccuracies in the judge's information. When, as in the present case, the sentencing judge becomes a private fact gatherer, he thereby oversteps his legitimate role as a fact finder in the sentencing procedure. Whether or not the defendant is "protected" from misinformation is irrelevant. There is no doubt the trial judge's primary motivation in conducting the interviews was to get the "full story" of the killing of John Walsh, Jr. The trial judge stated he was "satisfied the bulk of these witnesses there have a lot more to say than what we heard at this trial". The interviews were designed, at least in part, to find what was left out of their testim.ony. The trial judge characterized his discretion as a sentencing judge as being limited only by the requirement that "anything I use be presented in open Court, so that there is no sand bagging." While the court's sincere efforts at full disclosure of and granting access to the sources of his presentence information are laudable, they cannot remove the prejudice to defendant that attached the moment the trial judge began his informal and private retrial of the case. A sentencing judge may not conduct his own presentence investigation by privately interviewing persons he believes to know more than they have told. By doing this, he becomes a fact gatherer as well as a fact finder, and thereby subjects a defendant to an impossible burden. Realistically, there is no way a defendant can dislodge from a judge's mind, the results of his own personal investigation. It is only natural that a judge has at least a subconscious bias supporting the techniques used and the results of his own investigation. The judge, by this process, has unwittingly become intimately connected with the accusatory process. In this case, for example, cross-examination of the witnesses whom the judge had privately interviewed, would only serve to make the co11.rt guardian of those conclusions he adduced from his personal investi- gation. Moreover, assuming a witness had not told the truth to the trial judge during the private investigation, it is unlikely such witness would, on the witness stand, admit that he had on a previous occasion, lied to the very judge hearing his testimony. We must not forget that the presence of a judge in a role as a private investigator, can be intimidating, if not coercive. This is not to say the trial court cannot acquire more information as to the circumstances of a crime. We only hold that if it is his desire to do so, he must delegate that responsibility to other officials. They can gather the information and put it in a report to be made available to the defense. At the presentencing hearing, if anything in the report is contested, these officials may then be cross-examined as to the investigation and the results of their investigation. Here, it would be an impossible burden to suggest that the defendant if he desired, could cross-examine the trial judge as to the methods he employed, and the results of his private investigation. Here, because the trial judge became so intimately involved in the presentence fact gathering process, it is clear he should have disqualified himself from sentencing the defendant. His failure to do so requires the sentence be vacated. In so holding, we emphasize that we reaffirm our adherence to the sentencing policy stated in Orsborn, supra, quoting from Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. " I * * * Highly relevant--if not essential--to [the sentencing judge's] selection of an appro- priate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly appli- cable to the trial.'" However, the United States Supreme Court also stated in Williams, supra: " * * * Leaving a sentencing judge free to avail himself of out-of-court information * * * does secure to him a broad discretionary power, one susceptible of abuse. * * *" (Emphasis added.) 93 L.Ed. 1344. It is clear that in this case this sentencing discretion was abused. We affirm the defendant's conviction; vacate the sentence imposed; and, We Concur: remand for resentencinq. ('J2AcbA , : ~~~ Justices

December 14, 1977

eb927822-79cb-49c3-87e3-6d577e5877b5

POEPPEL v FISHER

N/A

13461

Montana

Montana Supreme Court

No. 13461 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 RICHARD 0. POEPPEL, Plaintiff and Respondent, -vs- VIRGIL FISHER, Defendant and Appellant. Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellant: Murphy, Robinson, Heckathorn and Phillips, Kalispell, Montana James I. Heckathorn argued, Kalispell, Montana For Respondent: Morrison, Hedman and ~rieweiler, Whitefish, Montana Terry ~ r i e w ~ i l e r argued, Whitefish, Montana - Submitted: September 28, 1977 Decided: OEC 16 l g r Filed : r~ka: ~ ' 3 Kt-( M r . Justice Gene B . Daly delivered the Opinion of the Court. Defendant Virgil Fisher appeals from the f i n a l judgment of the District Court, Flathead County, s i t t i n g with a jury. Plain- t i f f Richard 0. Poeppel brought t h i s c i v i l action against defendant seeking money damages for assault and battery. The jury returned a verdict i n p l a i n t i f f ' s favor, awarding $5,000 damages. This cause of action a r i s e s out of an altercation that occurred on April 20, 1972, i n the Central School, Whitefish, Montana. P l a i n t i f f , a school teacher, alleged he was attacked and struck by defendant, a fellow school teacher, a f t e r p l a i n t i f f had physically ejected a student from h i s classroom. Plaintiff f i l e d a timely complaint i n the District Court. B y stipulation of the parties, adjudication of p l a i n t i f f ' s claim was stayed pending f i n a l determination and appeal of the cause e n t i t l e d Reliance Insurance Co. v. Virgil Fisher, Richard 0. Poeppel and Horace Mann Insurance Lo., 164 Mont. 278, 521 P.2d 193. This Court's decision i n that cause released both insurance companies from any duty to defend o r t o pay any damages that might be awarded i n the present action. Defendant subsequently f i l e d an answer to p l a i n t i f f ' s amended complaint and a demand for jury t r i a l . Pursuant t o Rule 16, M.R.Civ.P., the District Court ordered a p r e t r i a l conference and the preparation of p r e t r i a l orders. O n February 1 7 , 1976, the District Court issued i t s p r e t r i a l order presenting, among other things, these issues of fact and law t o be litigated a t t r i a l : Issues of Fact. 1. Whether the conduct of defendant was provoked by. the plaintiff . 2. Whether plaintiff was beating a child and defendant came t o the child's rescue. - 2 - 3. Whether the plaintiff threatened defendant and defendant was acting i n self -defense. 4. Whether defendant's attack was malicious and wanton. 5. The nature and extent of p l a i n t i f f ' s injuries. Issues of Law. 1. The applicability of self-defense or the defense of another t o the instant case. 2. Whether punitive damages a r e applicable in t h i s situation. The District Court then ordered: "IT I S HEREBY ORDERED that t h i s p r e t r i a l order s h a l l supersede and supplement the pleadings and govern the course of the t r i a l i n t h i s cause, unless modified t o prevent manifest injustice. "IT IS F U R T H E R ORDERED that a l l pleadings herein s h a l l be amended to conform t o t h i s p r e t r i a l order." The matter was tried before the District Court on April 12, 1976. O n April 14, 1976, the jury returned its verdict finding i n favor of plaintiff and assessing p l a i n t i f f ' s damages i n the amount of $5,000. The jury found plaintiff was not entitled t o exemplary or punitive damages. Defendant subsequently f i l e d a motion for entry of judgment for defendant. Defendant based h i s motion on the contention that plaintiff was not entitled t o recover from defendant as a matter of law since section 92-204, R.C.M. 1947 (subsequently amended and repealed by section 92-204.1, R.C.M. 1947; approved March 29, 1973; Section 2, Chapter 493, Laws 1973) provided i n pertinent part: "* * * Further provided, that whenever such employee shall receive an injury while performing the duties of h i s employment and such injury or injuries, so received by such employee, are caused by the inten- tional and malicious a c t o r omission of a servant or employee of h i s employer, then such employee, o r i n case of h i s death, h i s heirs or personal representatives, shall i n addition t o the right t o receive compensation under the Workmen's Compensation Act, have a right t o prosecute any cause of action he may have for damages against such servants or employees of h i s employer, causing such injury. In the event said employee s h a l l prosecute an action for damages for or on account of such injuries so received, he shall not be deprived of h i s right t o receive compensation but such compensation shall be received by him i n addition to and independent of h i s right t o bring action for such damages * * * . I ' Plaintiff filed a memorandum i n opposition to defendant's motion f o r entry of judgment contending that defendant's post- t r i a l motion for judgment notwithstandtng the verdict,l should be denied since it was based upon an affirmative defense, injury by a fellow servant, which was never plead nor proved a t t r i a l . Plaintiff further f i l e d a post-trial motion and memorandum i n support of additur. Defendant f i l e d objections and a motion t o s t r i k e p l a i n t i f f ' s memorandum of costs on the ground p l a i n t i f f was untimely i n f i l i n g h i s memorandum of costs and disbursements. The District Court denied a l l post-trial motions and judgment on the verdict was f i l e d June 22, 1976. Notice of entry of judgment was f i l e d June 24, 1976. Defendant deposited a sum of money i n the amount of judgment with the clerk of the District Court as supersedeas bond and the District Court entered an order staying execution of judgment pending appeal t o t h i s Court. The following issues are presented for review: 1. Whether plaintiff may recover actual damages by jury verdict i n a third party action against a fellow employee for assault and battery when the jury was not instructed on the provisions of section 92-204, R.C.M. 1947, and did not find the tortfeasor acted with malice? 2. Whether plaintiff must claim his costs within five days of a jury verdict? 3 . Whether defendant brought t h i s appeal without substan- t i a l o r reasonable grounds, thereby e n t i t l i n g plaintiff t o recover damages pursuant t o Rule 32, M.R.App.Civ.P.? I n resolving the f i r s t issue, defendant contends the jury's failure t o award exemplary or punitive damages t o plaintiff is a bar t o p l a i n t i f f ' s recovery of actual damages since section 92-204, R.C.M. 1947, provided plaintiff could recover damass from a coemployee causing injury t o plaintiff only when such injuries were caused by the intentional and malicious a c t of the coemployee. In the instant case, the jury's failure to award exemplary or punitive damages is not a bar to the award of actual or compensa- tory damages. Exemplary or punitive damages a r e awarded a t the discretion of the jury, even though fraud o r malice i s shown, and are not recoverable as a matter of right. The sufficiency of the p l a i n t i f f ' s allegation and cause of action is determined independent of p l a i n t i f f ' s claim for exemplary or punitive damages. Spackman v. Ralph M. Parsons Co., 147 Mont. 500, 414 P.2d 918 (1966); Gilham v. Devereaux, 67 Mont. 75, 214 P. 606 (1923), reversed i n part i n Fauver v. Wilkoske, 123 Mont. 228, 239, 211 P.2d 420 (1949); 22 Am Jur 2d, Damages $ 5 240,241. Therefore, the jury's failure t o award exemplary or punitive damages i n the instant case i s not equivalent to a finding of no malice. Furthermore, it is a well accepted proposition of law that malice i n law i s implied where defendant's conduct is unjustifiable. Fauver v. Wilkoske, 123 Mont. 228, 211 P.2d 420 (1949); Cashin v. Northern Pac. R.Co., 96 Mont. 92, 28 P.2d 862 (1934); Moelleur v. Moelleur, 55 Mont. 30, 173 P. 419 (1918). The jury's finding in favor of plaintiff and assessing damages a t the sum of $5,000 is equivalent t o a finding that defendant committed the alleged assault and battery, absent justifiable excuse, privilege o r defense. Such an assault and battery is an intentional, unjustified a c t and malice i n law is implied. The jury's failure t o award exemplary or punitive damages only implies that the a c t complained of was not found to be i n the s p i r i t of mischief o r criminal indifference t o c i v i l obligations, but an intentional, unlawful, injurious a c t was the basis for the jury's award of actual or compensatory damages p l a i n t i f f ' s favor. Defendant's second issue concerns the timeliness of p l a i n t i f f ' s submission of a memorandum of costs and disburse- ments. Section 93-8619, R.C.M. 1947, i s controlling: "The party i n whose favor judgment is rendered, and who claims h i s costs, must deliver t o the clerk, and serve upon the adverse party, within five days a f t e r the verdict or notice of the decision of the court o r referee or, i f the entry of the judgment on the verdict or decision be stayed, then before such entry is made, a memorandum of the items of h i s costs and necessary disbursements i n the action or proceeding, which memorandum must be verified by the oath of the party, o r h i s attorney or agent, or by the clerk of h i s attorney, stating that to the best of h i s knowledge and belief the items a r e correct, and that the dis- bursenents have been necessarily incurred i n the action or proceeding. A party dissatisfied with the costs claimed may, within five days a f t e r notice of f i l i n g of the b i l l of costs, f i l e and serve a notice of a motion t o have the same taxed by the court i n which the judgment was rendered, o r by the judge thereof a t chambers." Here, the jury verdict for plaintiff was announced and f i l e d on April 14, 1976. O n April 20, 1976, defendant f i l e d h i s motion for entry of judgment for defendant. Plaintiff filed h i s memorandum of costs and disbursements, and other post-trial motions on April 26, 1976. O n M a y 4, 1976, the District Court issued its order denying a l l post-trial motions. O n May 6, 1976, defendant f i l e d h i s objections and motion t o s t r i k e memorandum of costs with supporting brief. The District Court denied defendant's motion t o s t r i k e p l a i n t i f f ' s memorandum of costs and disbursements on June 21, 1976. O n June 22, 1976, judgment on the jury verdict was f i l e d and notice of entry of judgment was f i l e d on June 24, This Court has held t h a t the f i v e day period allowed f o r f i l i n g of a memorandum of costs and disbursements "is computed from t h e day the court enters judgment, not from the day the court o r a l l y announces i t s decision." Davis v. Trobough, 139 Mont. 322, 326, 363 P.2d 727 (1961). The D i s t r i c t Court's ruling on post-trkal'motions delayed entry of judgment u n t i l June 24, 1976. P l a i n t i f f f i l e d h i s memorandum of costs and disbursements p r i o r t o entry of judgment, on April 26, 1976, and such f i l i n g was timely. Defendant's t h i r d issue i s p l a i n t i f f ' s claim f o r damages i n accord with Rule 32, M.R.App.Civ.P. W e f a i l t o find sub- t h a t s t a n t i a l evidencelthis appeal was taken without s u b s t a n t i a l o r reasonable grounds o r only f o r purposes of delay. Therefore, damages under Rule 32, M.R.App.Civ.P., a r e denied. The j udgmen t the D i s t r i c t Court i s affirmed. / J u s t i c e W e Concur: A Chief J u s t i c e I Justices.

December 16, 1977

adf278b2-cc31-4e70-a0ac-5c4a98f4ab02

CITY OF LIVINGSTON v MONT COUNCIL

N/A

13648

Montana

Montana Supreme Court

No. 13648 IN THE SUPREME: COURT OF THE STATE OF MONTANA 1977 THE CITY OF LIVINGSTON et al., Petitioners, MONTANA COUNCIL NO. 9, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al., Respondents. Appeal from: District Court of the Sixth Judicial District, Honorable Jack D . Shanstrom, Judge presiding. Counsel of Record: For Petitioners: Alexander, Kuenning, Miller and Ugrin, Great Falls, Montana Neil Ugrin argued, Great Falls, Montana For Respondents: Byron L. Robb argued, Livingston, Montana Submitted: October 4, 1977 Decided : NljV - ; 0 1571 . -- ? ; i f * n - ? A Filed: . , I ; - ' Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Montana Council No. 9, American Federation of State, County and Municipal Employees brought an unfair labor practice charge against respondent City of Livingston. The Board of Personnel Appeals hearing examiner found that the city did commit an unfair labor practice. The Board of Personnel Appeals affirm- ed its hearing examiner. The city sought judicial review in the District Court under the Administrative Procedure Act. The District Court reversed the Board of Personnel Appeals and appel- lants appeal from that District Court ruling. Respondent City of Livingston (the City) entered into a written collective bargaining agreement with its employees on January 2, 1973. Paragraph X of the agreement dealt with discharge or suspension and stated in pertinent part: "1. After an employee has attained seniority he will not be disciplined or discharged without first being given a hearing by the employer and the Local Committee." Appellant Kenneth Dyer had attained seniority as a city employee. In September, 1973, he was reduced from full-time to half-time employee status pursuant to City Superintendent Bulletin No. 27. In October, 1973, Dyer requested a hearing to review his reduction to half-time status. The grievance committee held a nearing in October, 1973, with Dyer present, but no decision was reached. In February, 1974, Dyer asked for another review of his half-time status. A city councilman told Dyer it was unnecessary for Dyer to attend the hearing. Dyer did not attend the February 4, 1974 hearing. At the February 4, 1974 hearing, evidence was introduced, but since Dyer was not present he could not contest it. Council- man Gilbert testified that "Had he been there, he probably would have contested it vociferously". City Superintendent Tom Sharp issued "Bulletin No. 31", which was a written statement of the committee's conclusions, and delivered a copy to Dyer. The bulletin announced Dyer was: " * * * placed on one-half month work basis for the second one-half of each month (the first one- half work was not affected by the previous bulle- tin), subject to the following conditions: * * * "5. Before being placed full time, permanent, with the Water Dept., he will become licensed by the Montana State Board of Certification for Water Operators, treatment and distribution. "6. Acceptance of this placement by Ken Dyer is construed as his acceptance of these conditions * * *. "ANY VIOLATION OF ANY CONDITION SET FORTH WILL BE CAUSE FOR IbIMEDIATE TEF@lINATIOM OF CITY EMPLOYMENT." Dyer had twice previously failed a written water operator's test. He failed a third time in April, 1974, and was discharged effective July 15, 1974. Subsequent to his dismissal, he took a written test, his fourth, and also an oral water operator's test, but he failed both. In December, 1974, almost six months after Dyer's losing his job, the union requested a grievance committee hearing on Dyer's discharge, pursuant to the collec- tive bargaining agreement. The city refused to hold a hearing. The issue presented on appeal is whether the city's failure to provide Dyer a dismissal hearing constituted an unfair labor practice. By failing to grant Dyer a grievance hearing, the city breached its collective bargaining agreement, and thereby committed an unfair labor practice in violation of section 59- 1605 (1) (a), R.C.M. 1947. That section provides in part: "It is an unfair labor practice for a public employer to: "(a) interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 59-1603 of this act;" Section 59-1603(1) provides: "Public employees shall have * * * the right * * * to bargain collectively * * *." The phrase "to bargain collectively" is defined in sec- tion 59-1605 (3) as: " * * * the performance of the mutual obligation of the public employer * * * and the representatives of the exclusive representative to * * * negotiate in good faith with respect to * * * conditions of employment, or the negotiation of an agreement, or any question arising thereunder. * * *" (Emphasis added. ) Thus, by statute, the duty to bargain "in good faith" continues during the entire course of the contract. The Supreme Court has held that "Collective bargaining is a continuing process. Among other things it involves * * * protection of employee rights already secured by contract." Conley v . Gibson, 355 U.S. 41, 2 L Ed 2d 80, 85, 78 S.Ct. 99 (1957). The processing of grievances in grievance hearings is collective bargaining. Tirnkin Roller Bearing Co. v. National Labor Rel. Bd., 161 F.2d 949, 954 (6th Cir. 1947). In Ostrofsky v. United Steel- workers of America, 171 F.Supp. 782, 790 (D. Md. 1959), aff'd., 273 F.2d 614 (4th Cir. 1960), cert. den., 363 U.S. 849, 4 L Ed 2d 1732, 80 S.Ct. 1628, (1950), the court stated: " * * * the employer had the same duty to bargain collectively over grievances as over the terms of the agreement." Under Montana's Collective Bargaining Act for Public Employees a failure to hold a grievance hearing as provided in the contract is an unfair labor practice for failure to bargain in good faith. Paragraph X., the discharge provision previously quoted, clearly requires that an employee with seniority, such as appel- lant Dyer, be given a "hearing" before he is discharged. In Grant v . Michaels, 94 Mont. 452, 461, 23 P.2d 266 (1933), this Court defined "hearing" as being " * * * synonymous with 'trial' and includes the reception of evidence and arguments thereon * * *." In Bd. of Trustees, Etc. v . Super. of Pub. Inst., Mont. I 557 P.2d 1048, 1050 (1976), this Court, in declaring a dismissal of a teacher to be improper, stated: " * * * where dismissal must be for good cause and regulated by statute, that one is entitled, in common justice, to an opportunity to meet the charges before being dismissed. (Citing cases.) "The opportunity to meet the charges before being dismissed under them necessarily includes notice of the charges against him, for without such notice the opportunity would be meaningless. The notice need not meet the formal requirements of a crim- inal indictment, however, it must be sufficiently detailed to inform the teacher of the charges against him, so he is reasonably able to formulate a defense." In this case, the grievance which Dyer brought related solely to his reduction to one-half time status. At the grievance committee meeting, which he did not attend, evidence was produced and conclusions made which related to his dismissal, which, osten- sibly, was not even in issue. The record does not contain any evidence whatsoever that Dyer was ever given any notice of an intent to discharge him until he received his notice of termina- tion on July l, 1974. Respondent City of Livingston presents three arguments for upholding the District Court's decision that a dismissal hearing was unnecessary. None of these arguments is convincing. It is not, as respondent contends, indisputable that appellant must be discharged due to his failure to pass the water operator's test. Bulletin 31, issued after the second "half-time status" meeting (at which appellant was not present) stated only that appellant's failure to pass the test would preclude him from being placed on full-time, permanent status. This was not one of the enumerated conditions of employment, the breach of which would cause appel- lant Dyer's immediate termination of employment with the city. The city also argues that petitioner Kenneth Dyer had a long history of incompetence and discipline problems on the job, and that ample facts justifying Dyer's discharge were adduced by the grievance committee at the two previous meetings concerning Dyer's half-time status. Respondent states that there is nothing for the grievance committee to consider at a discharge hearing except the same data it received before. Because "The law neither does nor requires idle acts", section 49-124, R.C.M. 1947, re- spondent argues that it should not be required to hold a dismissal hearing. The provision in the collective bargaining agreement requiring a "hearing" prior to dismissal was obviously contemplated by the parties to insure that an employee would not be discharged without due process. Observance of due process standards in a hearing has never been declared by this Court to be an "idle act". "'While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary stan- dards of due process.'" Goldberg v . Kelly, 397 U.S. 254, 25 L Ed 2d 287, 295 , 90 S.Ct. 1011 (1970), quoting Kelly v. Wyman, 294 F.Supp. 893, 901 (1968). The city's final argument is that "the traditional judicial definition of a hearing cannot and should not be imposed on a group of laymen acting as such a [grievance] committee." This is undoubtedly true. Due process does not always mandate a judicial trial with lawyers and court reporters, but merely requires a hearing appropriate to the nature of the case and the interests of the parties involved. Mont. St. university v. Ransier, 167 Mont. 149, 536 P.2d 187. "Once it is determined that due process applies, the question remains what process is due," Morrissey v. Brewer, 408 U.S. 471, 33 L Ed 2d 484, 494, 92 Sect. 2593 (1972). At a minimum, however, a grievance committee must give t~ an employee with seniority notice of the dismissal hearing and an opportunity to be heard, so that he may defend against the charges. See Goss v, Lopez, 419 U.S. 565, 42 L Ed 2d 725, 737, 95 S.Ct. 729 (1975); Dohany v . Rogers, 281 U.S. 362, 74 L Ed 904, 912, 50 S.Ct. 299 (1930). - 6 - In this case, the two committee meetings were officially conducted solely to discuss the matter of Dyer's reduction to half-time status. Dyer received no notice and could therefore prepare no defense to the matter of his discharge. The discharge bulletin was issued from the second meeting, a committee meeting at which Dyer was not even present to present his side of the case. For the term "hearing" in the collective bargaining agree- ment to have any meaning, this employee must at least have notice of the alleged work violations, an opportunity to appear and present evidence in his own behalf, a right to cross-examine adverse wit- nesses, and a written report of the conclusions and rationale of the grievance committee. These procedures are mandated by the collective bargaining agreement which requires a hearing, as well as by "common justice". Board of Trustees v. Superintendent of Public Instruction, supra. The decision of the District Court is reversed and the order of the Board of Personnel Appeals, finding that the city committed an unfair labor practice by not granting appellant Dyer a dismissal hearing, is affirmed. '7 We concur: Chief Justice 0 Justices fl

November 10, 1977

9fc35bf1-ac03-40f4-9fa9-ab0c7663eead

HAGERMAN v GALEN STATE HOSPITAL

N/A

13548

Montana

Montana Supreme Court

No. 13548 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 JOANN HAGERPWN , Claimant and Appellant, GALEN STATE HOSPITAL, Employer and STATE COMPENSATION INSURANCE FUND, Insurer, Defendants and Respondents. Appeal from: Workers' Compensation Court Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Scanlon and Connors, Anaconda, Montana Jack Scanlon argued, Anaconda, Montana For Respondents: Andrew J. Utick argued, Helena, Montana Submitted: September 27, 1977 Decided: OCT 2 5 1 9 n Filed : jc 1 & 3 !!dl1 M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court: This appeal a r i s e s from findings of f a c t , conclusions of law and judgment of the workers' compensation court. Two issues a r e presented for t h i s Court's consideration: 1. Did the workers' compensation court e r r i n f a i l i n g t o find the claimant provided a reasonable immediate economic benefit t o the employer i n necessarily having t o commute t o and from work, a distance of 25 miles a t her own expense? 2. Was the claimant acting within the scope of employ- ment i n commuting t o and from work a t her own expense when no r e s i d e n t i a l f a c i l i t i e s a r e available t o employees a t the employer's place of employment? Claimant Joann Hagerman, a nurses' aide a t Galen S t a t e Hospital, was injured i n an automobile accident on her way t o work on March 24, 1975. Claimant lived i n Anaconda, Montana some 12 112 miles from the hospital and commuted d a i l y t o and from work. She alleged there was inadequate housing a t the hospital to cover employees and living away from the i n s t i t u t i o n was a necessity. Out of some 304 employees, only 30 l i v e a t the hospital complex and the r e s t l i v e i n the Anaconda, Butte and Deer Lodge areas. A t the time of the accident there was no union contract provision for paying employees t r a v e l pay, nor was there any mass t r a n s i t system for the employees. Most employees e i t h e r drove t o work or participated i n c a r pools. The only pro- vision i n the employees' contract for t r a v e l pay was f o r an emergency ''call out". Claimant was not on a " c a l l out" on the day of the accident. It was a routine workday. 'The issues on appeal a r e directed a t whether the i n j u r i e s sustained by claimant in the accident a r e com- prnsable by reason of her employment, e n t i t l i n g her t o workers' compensation benefits? Claimant argues McMillen v. McKee and Company, 166 Mont. A00, 533 P.2d 1095 (1975); Ellingson v. Crick Co., Lb6 Mont. 431, 533 P.2d 1100 (1975); and Guarascio v. I n d u s t r i a l Accident Board, 140 Mont. 497, 374 P.2d 84. (1962); are controlling. W e disagree. Each of the c i t e d cases turned upon contracts t h a t gave the employee t r a v e l time i n one form o r another, and therefore do not apply. Here, claimant had no r i g h t t o any type of t r a v e l pay under her contractual agreement except f o r emergency " c a l l out". She was not performing work within the course of her employment when injured. Throughout the years t h i s State has had workers' com- pensation, t h i s Court has considered a number of cases where i n j u r i e s were sustained going to or coming from work and has found no recovery unless employee t r a v e l pay was covered under the employment contract or t h a t t r a v e l allowance was f o r t r a v e l f o r the special benefit of the employer. Nicholson v. Roundup Coal Min. Co., 79 Mont. 358, 257 P. 270 (1927) ; Herberson v. Great F a l l s Wood & Coal Co., 83 Mont. 527, 273 P. 294 (1929); Landeen v. Toole County Refining Co., 85 Mont. 41, 277 P. 615 (1929); Murray Hospital v. Angrove, 92 Mont. 101, 10 P.2d 577 (1932); Griffin v. I n d u s t r i a l Acc. Fund, 1 1 1 Mont. 110, 106 P.2d 346 (1940); McMillen v. McKee and Company, supra ; Guarascio v. Ind. Acc . B d . , supra. Unless transportation i s made a part of the employment contract or t r a v e l t o and from work i s recognized by l e g i s - l a t i v e enactment or contract, any i n j u r i e s suffered i n such rravel are outside the course and scope of the employment. The decision of the workers' compensation court i s affirmed. ~ J s t i c e / W e Concur: ~ h x f J u s t i c e

October 25, 1977

2fb61ea9-0cf6-43f0-b7ec-9de958c70ee7

STATE v MURPHY

N/A

13647

Montana

Montana Supreme Court

No. 13647 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- KEVIN MURPHY, Defendant and Appellant. Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Stimatz and Engel, Butte, Montana Joseph Engel argued, Butte, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Dennis Moreen argued, Assistant Attorney General, Helena, Montana John G . Winston, County Attorney, Butte, Montana Submitted: September 27, 1977 Decided: 8CT 2 5 1977 Filed: 9CT 2 5 r s r Clerk M r . Chief Justice Paul G. Hatf ield delivered the Opinion of the Court: Defendant Kevin Murphy was charged and convicted of burglary i n the d i s t r i c t court, Silver B o w County. From the jury verdict and subsequent sentence, defendant appeals. O n May 3, 1976, a t approximately 2:15 a.m., two witnesses heard a noise which aroused their attention. They looked out from their second floor apartment, located across the s t r e e t from Len's Food Store in Butte, Montana, and saw an individual kicking the door window a t Len's. The door window was sub- sequently kicked out and various items, including Olympia and Lucky Lager beer, were taken from the store. During the break i n one individual on the s t r e e t answered back t o the witnesses' shouts from the second floor apartment. Defendant was recognized by one of the witnesses as being near Len's a t the time the store was broken into. Also, an individual was seen running from the store and dropped a can or bottle out of h i s hand. By the time one witness was able t o dress and move t o the s t r e e t , the police had arrived. They pursued two individuals running down the s t r e e t and while i n pursuit the police observed the two throw items into a yard. One suspect was identified a s defendant. m e n arrested defendant had five cans of Olympia beer i n h i s possession. Officer Albert Johnson, who apprehended defendant t e s t i f i e d a t t r i a l that he believed others were involved in the break i n but were not apprehended. Defendant did not take the stand. Mike McMeekin, arrested who with defendant andplead guilty t o the burglary, t e s t i f i e d an Indian named Randy kicked i n the door glass, ran into the store, grabbed some beer and ran out. McMeekin further t e s t i f i e d t h a t while Randy was kicking the door, "these guys came out from across the s t r e e t and started yelling a t usff and he, McMeekin, swore a t them. A t t r i a l the prosecution was not able t o establish that defendant actually entered the building. O n appeal defendant presents but one issue for t h i s Court's review: Did the t r i a l court e r r i n giving i t s Instructions Nos. 17 and 18 regarding defendant's l i a b i l i t y a s an aider and abettDr without charging him as an aider and abettor i n the Information? The instructions i n question read: "Instruction No. 1 7 "A person is legally accountable for the conduct of another, when, e i t h e r before or during the commission of an offense, and with the purpose t o promote or f a c i l i t a t e such commission, he s o l i c i t s , aids, abets, agrees or attempts t o aid, such other person i n the planning or commission of the offense .I1 "Instruction No. 18 "You a r e instructed that a l l persons concerned i n the commission of a crime, whether it be a felony or a misdemeanor, or whether they directly commit the a c t constituting the offense or aid and abet in i t s commission, are principals i n any crime a s committed. And in t h i s case, i f you believe from the evidence that the Defendant did not directly commit the crime charged i n the Information, yet i f you do believe from the evidence, beyond a reasonable doubt, that he was present, knowing, aiding and abetting i n i t s commission, you should find him guilty." Defendant contends it is clear the crime charged i n the Information is only burglary i n violation of section 94-6-204(1), R.C.M. 1947. It i s not clear that defendant was charged with accountability for burglary of others under the provisions of section 94-2-106 or section 94-2-107, R.C.M. 1947. That the failure of the s t a t e t o list the additional charges upon which the jury was instructed in Instructions Nos. 17 and 18 constitutes a failure t o fully apprise defendant of the charges against him and resulted in surprise t o him when the prosecution sought these instructions. Further, t h i s failure precluded defendant from being apprised of the specific charge against him and the chance t o be heard on the issues caused by the charge. Defendant's contentions f a i l . F i r s t , the t r i a l court did not e r r in giving Instructions Nos. 17 and 18, which instructed the jury as t o "aiding and abetting". The instructions are not challenged as an incorrect statement of the law, but rather the challege is based upon the failure of the s t a t e t o specifically charge the defendant with accountability in the Information. Prior t o Montana's new criminal code, section 94-6423, R.C.M. 1947, and interpreting case State v. Zadick, 148 Mont. 296, 419 P.2d 749 (1966), correctly stated the law. On January 1, 1974, sections 94-2-106 through 94-2-108, R.C.M. 1947, replaced section 94-6423. The Criminal Law Study Commission stated i n its comments that section 94-2-107 accepts the approach of section 94-6423 and endeavors t o develop it i n f u l l . Section 94-2-107 is substantially the same a s the source, section 5-2, Chapter 38 of the I l l i n o i s Criminal Code. Under I l l i n o i s case law interpreting section 5-2, an indictment need not distinguish an a c t performed by the accused himself and the a c t of another for which he is legally accountable. People _ .J- v. Nicholls, 43 I11.2d 91, 245 M.E.2d 771,777 (1969), cert.den. 396 U.S. 1016, 90 S.Ct. 578, 24 L ed 2d 507 (1970). Montana follows. the rule of statutory construction where i n adopting a statute from a s i s t e r s t a t e , the court adopts the construction placed upon it by the highest court of the s t a t e from which it is adopted. State ex r e l . Phil Mankin v. Wilson Mont . 9 - - 9 P.2d , 34 St.Rep. 1075 (1977). Defendant further argues he was surprised and precluded from knowing specifically the charges against him by the s t a t e ' s failure t o list the additional charges i n Instruction Nos. 17 and 18. The court record contains defendant's proposed instruction Nos. 17, 18, 19 and 20. The t r i a l transcript reveals the t r i a l judge refused these proposed instructions. This Court wonders how counsel for defendant can so boldly claim surprise. The t r i a l transcript and court record r e f l e c t the fact defendant was not surprised. A l l four of defendant's proposed instructions pertain to "aiding and abetting". Addi- tionally, the s t a t e claims from the outset of the t r i a l , on voir dire and i n the opening statement, section 94-2-107(3) was argued. Under section 94-2-107(3) a person is legally accountable for the conduct of another when: "(3) either before or during the commission of an offense and with the purpose t o promote or f a c i l i t a t e such commission, he s o l i c i t s , aids, abets, agrees t o attempt t o aid, such other person i n the planning or commission of the offense. * * *" While the record is clear that no surprise existed, t h i s Court does not condone the method used by the s t a t e i n charging the defendant. I f the s t a t e planned t o charge the defendant with aiding and abetting, in proper practice it should have-done so from the onset. Second, the giving of Instructions Nos. 1 7 and 18 are not reviewable by t h i s Court. Section 95-1910(d), R.C.M. 1947, s t a t e s the respective parties s h a l l specify and s t a t e the particular ground on which an instruction is objected to. A general objection is not sufficient. Defense counsel failed t o object t o the giving of Instruction No. 17. Failure t o object precludes the defendant from assigning error t o such instruction on appeal. State v. Holt, 121 Mont. 459, 463, 194 P.2d 651.(1948); State v. B e s t , 161 Mont. 20, 24, 503 P.2d 997 (1972). Defense counsel did object t o Instruction No. 18, but only on the basis that it was repetitive of No. 17. I n de- fendant's brief on appeal he alleges a different reason for the instruction being improper. Only valid objections made a t the t i m e of the settlement of instructions may be considered by t h i s Court on appeal. State v. Best, supra. The judgment is af firmed. W e Concur: I

October 25, 1977

3d0a5b65-66bf-42d5-9ef2-ddfc6a20036e

GAMBLES v PERDUE

N/A

13750

Montana

Montana Supreme Court

No. 13750 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 GAMBLES, a corporation, Plaintiff and Appellant, -vs- JOHN M . PERDUE, Defendant and Respondent. Appeal from: District Court of Eighteenth Judicial District, Hon. W . W . Lessley, Judge presiding. Counsel of Record: For Appellant: Landoe, Gary & Planalp, Bozeman, Montana For Respondent: William E. Gilbert, Bozeman, Montana Submitted on Appellant's brief Submitted: September 6, 1977 Decided: i j ~ c 2 8 1 9 3 . . -? -,:j+[j Filed: ~ ~ , z : , - . -' - Mr. Justice Frank I. Haswell delivered the Opinion of the Court. A retail store sued a purchaser to recover an indebtedness under two written installment contracts covering the purchase and installation of carpeting in the purchaser's residence. After execution of the contracts and installation of the carpeting, the purchaser's wife secured a divorce, was awarded the residence wherein the carpeting was installed, and was made solely respon- sible for all indebtedness on the property. Following a nonjury trial, the district court, Gallatin County, denied relief to the retail store, entering judgment for the purchaser on the grounds that all proper parties were not before the court. The retail store appeals. This appeal is prosecuted on the basis of an agreed state- ment of the case in lieu of the usual record on appeal. The agreed facts disclose that on March 1, 1974 and 'again on November 24, 1974, John Perdue, defendant, entered into separate retail installment contracts with Gambles, the plaintiff, covering the purchase and installation of carpeting in his residence. At the time these contracts were executed defendant was married to Anna Perdue. On February 1, 1976, defendant owed plaintiff a balance of $309.56 under the contracts, exclusive of attorney fees and costs provided for therein. On February 10, 1976, defendant and his wife were divorced. Under the terms of the decree, Anna was awarded the marital res- idence in which the carpeting had been installed "subject to the indebtedness owing". On October 12, 1976, plaintiff sued defendant for the balance owing on the installment contracts in the justice court of Gallatin County. Following trial, plaintiff's complaint was dismissed. Thereafter plaintiff appealed to the district court, Gallatin County. Plaintiff filed an amended complaint seeking recovery of the balance owing on the contracts, finance charges, attorney fees and costs. Defendant's answer was a general denial and an affirmative defense that he was not responsible for the contractual debt because the property in the contracts had been awarded to Anna in the divorce decree. On January 3, 1977 the district court heard the case without a jury. Plaintiff and defendant stipulated that there was no dispute as to the signing of the contracts nor to the facts of the divorce decree. On January 12, 1977 the district court entered findings of fact, conclusions of law and judgment to the effect that plain- tiff take nothing by its complaint and judgment be awarded to defendant as all proper parties were not before the court. Plain- tiff now appeals from this judgment. The parties by written stipulation have submitted this appeal for decision without oral argument on the basis of appellant's brief, the agreed statement of fact, and the district court file. The sole issue on appeal as stated by appellant is whether all of the proper parties were before the district court. Plaintiff's argument before the district court was that plaintiff and defendant were the only contracting parties and no privity of contract existed between plaintiff and any other parties; that the divorce decree could not affect plaintiff's property rights because plaintiff was not a party to the divorce proceedings; and the contracts contained a nontransferability clause. Defendants argument to the district court was that the divorce court had the equitable power to transfer defendant's property to Anna; that the indebtedness on the residence including the carpeting contracts were transferred to Anna; and therefore plaintiff's remedy was against Anna, and not against defendant. In this case Gambles sued John Perdue for an indebtedness he assumed by written contract. Gambles sought a personal judg- ment against him for this indebtedness. The only contracting parties were Gambles and John Perdue. The general rule applicable here is that the obligation of the contracts is limited to the contracting parties: "As a general thing, the obligation of contracts is limited to the parties making them, and, ordinarily, only those who are parties to contracts are liable for their breach. Parties to a contract cannot thereby impose any liability on one who, under its terms, is a stranger to the contract, and, in any event, in order to bind a third person contractually, an expression of assent by such person is necessary." 17 Am Jur 2d, Contracts, S 294. Again, in Thompson v. Lincoln Ins. Co. (1943), 114 Mont. 521, 530, 138 P.2d 951, where decedent's administrators sued the assignee of an executory contract, this Court stated: " * * * It is elementary law that a contract binds no one but the contracting parties. * * *" Also see: Hyink v . Low Line Irrigation Co. (1922), 62 Mont. 401, 205 P. 236. It is axiomatic that the contracting obligee cannot be deprived of recourse against the contracting obligor by a substitution of debtors without the former's consent. Thus John Perdue remained liable to Gambles for the indebtedness under the installment contracts notwithstanding the provisions of the divorce decree. We hold that all proper parties were before the district court. Anna was not a proper party because she was not a party to the installment contracts. Gambles sought no relief against Anna nor any relief involving repossession of the carpeting, only a personal judgment for the contractual indebtedness against John. John did not file a third party complaint against Anna to determine the respective obligations between themselves. Under such circumstances Gambles cannot be deprived of its remedy against John by reason of a collateral occurrence to which it was not a party. The transfer of the indebtedness from John to Anna in the divorce decree bound only the parties to it, John and Anna; just as the contractual indebtedness of John to Gambles bound only the parties to the contract, John and Gambles. The findings of fact, conclusions of law and judgment of the district court arevacated. The case is remanded to the district court with directions to determine the amount of John Perdue's obligation to Gambles under the terms of the installment contract and to enter findings of fact, conclusions of law and judgment in favor of Gambles accordingly. Justice Wd2-& ------------ ustices

December 28, 1977

56a54e25-0e46-4b09-afd0-c989e7faee9c

MONT READY MIXED v BRD OF LABOR

N/A

13727

Montana

Montana Supreme Court

No. 13727 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 MONTANA READY MIXED CONCRETE ASSOCIATION, a corporation, Plaintiff and Appellant, BOARD OF LABOR APPEALS, et al., Defendants and Respondents. Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Burton and Waite, Great Falls, Montana Leslie S. Waite I11 argued, Great Falls, Montana For Respondents: Moody Brickett argued, Helena, Montana Hilley and Loring, Great Falls, Montana Emilie S. Loring argued, Great Falls, Montana McKittrick and Duffy, Great Falls, Montana D. Patrick McKittrick argued, Great Falls, Montana Submitted: December 2, 1977 Decided: DEC 2 $ 1 g n Filed : 6Ec q : i j 4 a " . Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This case concerns the administrative proceeding and deci- sion of the Board of Labor Appeals and certain claimants represented by the Joint Council of Teamsters #23 and Local Union No. 400, and their employers who are members of the !Montana Ready Mixed Concrete Association. The administrative proceedings were held during the year 1972. The appeal tribunal on April 14, 1975, found that the claimants were disqualified from receiving unemployment benefits. An appeal was made to the Board of Labor Appeals, and after hearing the matter, the Board on September 22, 1975, reversed the decision of the appeal tribunal and found that the claimants were entitled to unemployment compensation benefits. Thereafter, the employer filed a petition for review of the Board's decision in the District Court of the 1st Judicial District, Lewis and Clark County. On January 31, 1977, the District Court issued its opinion sustaining the decision of the Board and denying the employer's petition for judicial review. From this decision this appeal is taken. In this case the Montana Ready Mixed Concrete Association, hereinafter referred to as the employer, had an agreement with the Joint Council of Teamsters #23 and International Union of Operating Engineers, Local No. 400, hereinafter referred to as the employees. This agreement covered wages, hours, and working conditions. The expiration date of this agreement was February 29, 1972. Prior to the expiration of the agreement, the employees, through their unions, opened the agreement for renegotiation. On March 1, 1972, negotiations were resumed. In the afternoon the employer notified the employees that their last proposal was not acceptable and resubmitted its last proposal as its final offer. At the conclusion of this meeting the employees' unions agreed to take the employer's last offer to its members for a vote. The employer stated its members would lock up their plants on Monday, March 6, 1972, unless it received notice of acceptance of its pro- posal by noon, Sunday, March 5, 1972. The employer's offer was thereafter rejected. On Monday, March 6, the employer closed its plants, and the employees who reported for work were not allowed to work. Employment was withheld from them until March 16, 1972, when a settlement was negotiated and the plants reopened. The focal question is whether an impasse had been reached during the 1972 negotiations between the parties which would exclude the employees from unemployment compensation benefits. The unions deny this and insist that there had been only three negotiating sessions, that there had been movement by both sides, and that there was no evi- dence that continued negotiations, as requested by the unions, would have been unsuccessful. The employer filed another suit in Federal Court entitled "Montana Ready Mix and Concrete Productions Assoc. v. The State of Montana et al." In that case, the employer claimed the Board of Labor Appeals had interfered with the employer's collective bargaining rights and sought to enjoin the Board from enforcing its decision. U. S. District Judge Russell E. Smith granted judg- ment to the State of Montana, holding that the Montana Unemployment Compensation Law, as written, is neutral and does not in any way impinge on the collective bargaining process. The issues presented for review are: 1. Whether the Board and District Court erred in inter- preting the Montana Unemployment Disqualification Law? 2. Whether the Board's decision improperly intruded upon and interfered with the employer's federally protected right to bargain collectively and to engage in a lockout? This appeal centers around the Montana Unemployment Compen- sation Law Section, which is section 87-106, R.C.M. 1947. Subsection (d) provided as follows in 1972: "87-106. Disqualification for benefits. An indi- vidual shall be disqualified for benefits-- "(d) For any week with respect to which the commission finds that his total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which he is or was last employed, provided that this subsection shall not apply if it is shown to the satisfaction of the commission that-- "(1) He is not participating in or financing or directly interested in the labor dispute which caused the stop- page of work; and "(2) He does not belong to a grade or class of workers of which immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are parti- cipating in or financing or directly interested in the dispute; "Provided, that if in any case separate branches of work which are commonly conductecl as separate businesses in separate premises are conducted in separate depart- ments of the same premises, each such department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment, or other premises; provided, further, that if the commission, upon inves- tigation, shall find that such labor dispute is caused by the failure or refusal of any employer to conform to the provisions of any law of the state wherein the labor dispute occurs or of the United States pertaining to collective bargaining, hours, wages or other condi- tions of work, such labor dispute shall not render the workers ineligible for benefits." The labor dispute disqualification is a two step procedure. First, if the commission finds that unemployment is due to a labor dispute where the claimant was last employed, the claimant is dis- qualified. Secondly, the disqualification is removed if the com- mission finds that the employee is not participating or directly interested and he does not belong to the grade or class of workers who are participating. The Montana Unemployment Compensation Act does not define "labor dispute". The employer insists that the employees were "locked out" and that a "lockout" is automatically a labor dispute. The language of the statute lends no help. There- fore, this Court must determine whether it was the intent of the legislature in enacting section 87-106(d), R.C.M. 1947, that this section apply where the employer locks out the employees. The vital question is whether the unemployment was caused by a labor dispute. The word "lockout" is meaningless unless it is applied to the circumstances of the case. The Board of Labor Appeals held that the claimants were not unemployed because of a "labor dispute". In Ross v. Review Board of ~ndiana Employme~t Security Division, (1nd.App. 1961), 172 N.E.2d 442, 448, the court, in upholding an award of unemployment compensation benefits, held: " * * * The existence of differences between labor and management does not ipso facto con- stitute a labor dispute causing a stoppage of work. * * *" The court went on to say: " * * * While labor may use the strike and management may use the lockout, neither can use the Employment Act as a weapon, that is, in the case of management as a weapon to disqualify workers from unemployment benefits, and in the case of labor in using the strike and at the same time hoping to avoid disqualification for unemploy- ment benefits." In the instant case the record is unclear as to the state of the negotiations at the time of the lockout. The record shows that negotiations between the employer and the bargaining agents of the employees were in progress all the time prior to the closing of the plants. After attempts to consummate a new contract, the employer decided a labor dispute existed and closed the plants, thus arriving at a lockout status. We conclude that good faith negotiations between representa- tives of management and labor, where the facts show that the bar- gaining is in a fluid state and no impasse has occurred, gives neither party the right to declare a labor dispute. To hold other- wise would be to defeat the purpose of the law. Such an interpre- tation would defeat the objective of contract negotiations in all industries. To promote the general welfare it is necessary to encourage good faith collective bargaining at all times. If we were to interpret every difference of opinion between employer and employee as a labor dispute, we can perceive a situation where no one could receive unemployment benefits and labor-management rela- tions would be in chaos. However, in this case it is disputed whether or not bargain- ing was in a fluid state or whether an impasse had in fact been reached. To be sure, there was argument and wrangling between the negotiators over the terms of the proposed new contract. The true reason for the lockout at the employer's businesses is not clear from the record. However, it does not seem that the lockout was used to improve the bargaining power of the employer and therefore, we will give the employer the benefit of the doubt and hold that in this case the lockout arose from a labor dispute. Since this Court finds that the lockout arose from a "labor dispute", it becomes necessary to determine whether the disquali- fication section was intended by the legislature to apply to the factual situation presented by this case. Section 87-102, R.C.M. 1947, sets out clearly the public policy behind the unemployment compensation act. This section states: "Declaration of state public policy. As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appro- priate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employ- ment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining pur- chasing power and limiting the serious social con- sequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure under the police powers of the state for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own." (Emphasis added.) This section declares a legislative purpose of providing for payment of benefits to persons unemployed through no fault of their own. In this case, the employer contends the employees par- ticipated in the labor dispute through their representative unions and that they were interested in the outcome of the lockout and therefore section 87-106(d) mandates their disqualification. Both subsections (1) and ( 2 ) provide for the disqualification where the employee is directly interested in the labor dispute. The respondents contend that they were not participants in the lockout, they were victims of it. In reviewing the negotiations prior to the lockout, it is apparent that the employees had not threatened the employer with a strike or a work slowdown. The lockout was not brought on by the action of the employees except for the fact that they voted to reject the employer's last offer. It appears as though no demands had been made except for those ordinarily incident to any negotiating procedure. There was no testimony that a strike vote had ever been taken or was even contemplated by the employees. The employees' representative unions were willing to continue negotiations and so informed the employer prior to the lockout. Where an employer lockout has resulted in disqualification from benefits there have been additional facts, not present in this case, showing voluntary action on the part of the employees precipitating the employer's action. It would be difficult for reasonable minds to reach the conclusion that the lockout was pre- cipitated by the union or the employees in view of the fact that the unions' attitude was that of negotiating any differences which the employees had through the collective bargaining process and the action of the employees seeking to return to work and being refused employment by the employer. The employees involved were unemployed through no fault of their own. The ~istrict Court was correct in sustaining the administrative decision of the ~ o a r d of Labor Appeals granting them unemployment compensation. Employer further contends that the disqualification statute, although neutral on its face, was improperly applied in this case and therefore interfered with the employer's federally protected right to bargain collectively and to engage in a lockout. The many cases cited by the employer involving federal preemption and conflict with state law do not deal with this problem, but rather with state action which interferes with federal regulation of labor relations. The employer has cited none, and we can find no case which holds as a matter of law that the preemption doctrine is applicable to the situation here. The case of Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L ed 2d 1 (1974) is distinguishable on the facts and does not support employer's position. In McCorkle the U. S. Supreme Court declared that it was the intent of Congress to make maintenance of government neutrality contingent on treating otherwise eligible strikers no differently from nonstrikers in the receipt of public assistance. It is important to note that this case dealt with employees who were on strike. It did not deal with employees who were ready, willing, able and available for work who had been precluded from performing their job by a lockout. In McCorkle-the Court found no merit in the contention that eligibility of strikers for public assistance frustrates national labor policy of free collective bargaining by altering relative economic strength of parties. Here, we find that the decision of the Board, affirmed by the District Court, does not interfere or intrude upon federal labor policy. The decision of the District Court is affirmed. Justice We Concur: L . . Justice ~ n g - in

December 20, 1977

0d1ffc65-b43b-46b6-8bef-205bee6f18f2

UNITED CAMPGROUND U S A v STEVE

N/A

13666

Montana

Montana Supreme Court

No. 13666 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 UNITED CAMPGROUIJDS, U.S.A., a corporation, Plaintiff and Appellant, LESLIE B. STEVENSON, Defendant and Respondent. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: J. David Penwell, Bozeman, Montana For Respondent : Joseph W. Sabol, Bozeman, Montana Submitted on briefs. Submitted: September 26, 1977 Decided : NOv 2 9 1577 7 . , ';;I Filed: & , G Mr. Justice Gene B. Daly delivered the Opinion of the Court. This action by United Campgrounds, U . S . A . , a Nevada corporation, against Leslie B. Stevenson, a resident of Bozeman, Montana, was brought in the District Court, Gallatin County, for damages for breach of contract and termination of a franchise agreement. It was tried to the District Court sitting without a jury. The court found in favor of Stevenson, awarded attorney fees, terminated the contract, and dismissed the claim. United appeals. On July 17, 1971, a franchise agreement was executed between United and Stevenson for the operation by Stevenson of a United Campground franchise at Bozeman, Montana. There- after, on December 1, 1971, the parties entered into a sign lease agreement for the lease of a sign owned and furnished by United for use by Stevenson at the campground. In December 1971, Stevenson purchased land near bozeman and started a campground in early 1972. The franchise agreement provided that 3 % of the annual registration fees at the campground was to be paid to United for educational and supervisory services. An additional sum of 4 % of the annual registration fees was to be paid for the use of the trade name and trademark "UNITED CAMPGROUNDS". Stevenson was also to pay United the sum of $500 per year as an advertising payment for promoting and advert is ing the "UNITED CAMPGROUNDS" trade name. Specifically, the franchise agreement required the payment by Stevenson to United of the sum of $7,500. This sum consti- tuted compensation to United for work performed and services rendered in connection with setting up the campground. This sum of money was paid to United. In addition to the franchise agreement United and Stevenson entered into a lease agreement for the lease of an advertising sign. Steventon was to pay the sum of $350 per year as rental for the use of the sign. This sign lease was a separate agreement. However, the sign rental was required by the franchise agreement which in Article V, Paragraph 1, Section S , states: "1. DUTIES OF FRANCHISEE: Franchisee agrees : " * * * '1 s . To lease or purchase a standard lighted sign from Franchisor * * *." All payments were duly made by Stevenson to United until the beginning of 1974, at which time all payments ceased with no payments made since then. The franchise agreement is explicit as to the duties of United as the franchisor, and likewise, insofar as the duties of Stevenson as the franchisee. The District Court, after hearing testimony and examining the evidence and proof, found that United as franchisor had not met its duty to Stevenson as franchisee in that: 1 . United did not send a competent, qualified and experienced location advisor to Stevenson's territory to advise Stevenson. 2 . United did not furnish paper goods, sales aids, advertising materials or other items printed with United's trade- mark or trade name to Stevenson. 3 . . United did not provide Stevenson with one week of basic operational training in an actual operating campground. 4 . United did not instruct or advise Stevenson with regard to the leasing of equipment and rental of facilities or equipment for the operation of his campground. 5 . United did not assist Stevenson in developing sources of income from new and different types of facilities related to overnight campting. 6. United failed, neglected and refused during the years 1974 and 1975, to maintain the trade name and business of "United Campgrounds, U . S . A . " in such a manner as to signify a high standard of excellence in management and operation. United I I did not publish, advertise, promote and develop United Camp- grounds, U . S . A . " trade name and public image. United did not make available to Stevenson paper goods, sales aids, advertising materials; did not publish during the years 1974 and 1975, a directory in content, scope or accuracy to facilitate and pro- mote Stevenson's business. The court further found United's- failures to perform materially impaired and jeopardized Stevenson's business and were material breaches of the covenants, and were conditions precedent of the franchise agreement. United's first issue for review is whether the District Court erred in failing to rule on the evidence that a separate sign lease had been entered into between the parties and no payment had been made by the franchisee after December 1973, nor had the sign been returned to the franchisor? As heretofore noted, Article V of the franchise agreement imposes the obligation upon Stevenson to lease or purchase a sign from United. The sign agreement is of a lesser consequence in relation to the entire agreement than the segment relating to advertising and use of United's name. The obligation here is no different than the other payments relating to trade name and other advertising material. It has its own method of execution based on the purchase or lease option, but like all other obligations has its genesis in the franchise agreement and is a part thereof. Therefore, lack of specific reference beyond the franchise agreement is not reversible error. United's final issue is whether the District Court was correct in construing the obligations of the franchisor as conditions precedent. Section 58-206, R . C . M . 1947, states: "A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed." This Court in Atlantic-Pacific Oil Co. v . Gas Development Co., 105 Mont. 1, 15, 69 P.2d 750 (1937), dealt at length with a "condition precedent" and held that a condition precedent is not a question of phrase or form, but one of the intent of the parties. Here, Stevenson contends the franchise agreement demonstrates it was the intent of the parties to create all obligations on the part of Stevenson, dependent upon performance of obligations by United. His contention is evidenced by the franchise agreement itself, reciting at length the rights of United for any breach of an obligation by Stevenson. Yet, no- where within the agreement is there any provision concerning the rights of Stevenson for a failure by United to perform the obligations imposed upon United. The termination clause contained in the franchise agreement is very specific -- the agreement may be terminated when either a ten year period has expired or the franchisee is in breach of the agreement. However, no provision is made in the franchise agreement which allows for the termination of the agreement for breach thereof by the franchisor, United. United on the other hand maintains that each party's per- formance was equally dependent and ran concurrently, contending that conditions precedent are not favored and the courts will not construe stipulations to be such, unless required to do so by plain, unambiguous language or by necessary implica- tion. 17 Am Jur 2d, Contracts, 5321, p . 752. The District Court decided these duties of the franchisor by necessary implication were conditions precedent. The District Court held Stevenson failed to establish damages, yet the court did feel that United had substantially failed in many of its obligations as a franchisor. Therefore, if this franchise agreement was to be construed as imposing upon United covenants or concurrent duties, this would leave Stevenson without an adequate remedy for a breach of these obligations by United. The judgment of the District Court is affirmed. i Chief Sustice

November 29, 1977

321fab91-9954-486a-adbe-c50a7cfbe539

MATTER OF DONEY

N/A

13813

Montana

Montana Supreme Court

No. 13813 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN THE MATTER OF THE GUARDIANSHIP OF DeAUNA D. DONEY and TERRENCE R. DONEY, Minors. Appeal from: District Court of the Eighteenth Judicial District, Honorable Frank E . Blair, Judge presiding. Counsel of Record: For Appellant: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Gregory Morgan argued, Bozeman, Montana For Respondent: Bolinger and Wellcome, Bozeman, Montana H . A. Bolinger argued, Bozeman, Montana Submitted: September 16, 1977 Decided: O C T 1 4 1 9 n -, - - A Filed: LI. - < l h n Clerk Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Petitioner, Waide Lewis Doney, appeals from an order of the district court, Gallatin County, denying his petition to terminate respondent's guardianship of petitioner's two minor children, and maintaining custody of the children in respon- dent "until the further or other order of the court". Petitioner is the natural father of DeAuna Doney, born March 13, 1974, and Terrence Doney, born July 17, 1975, Petitioner married the children's mother,Leah Doney, on October 26, 1969. Leah Doney was killed in an auto accident on September 28, 1976. Petitioner testified that he was confused after his wife's death and determined that it would be best for the children if they stayed with Leila Wallace, his deceased wife's sister, for about two months while he composed himself and prepared to take the children into his home. On October 8, 1976, petitioner met with respondent Leila Wallace, respondent's brother and her lawyer, and signed guardianship papers, giving his consent to give tem- porary custody of the children to Leila Wallace. Petitioner was not represented by counsel at this meeting. The stated under- standing of petitioner, respondent, and respondent's lawyer was that petitioner would consent to the guardianship for the sole purpose of allowing respondent Leila Wallace to authorize hospi- tal and medical care for the children in petitioner's absence. Petitioner told respondent's lawyer that he did not want to give up his custodial rights and that it would not be more than two months before he would be ready to make a home for the children. On October 12, 1976, the district court appointed respondent as guardian of the children. Petitioner married his present wife, Janice, on February 3, 1977. Prior to their marriage they visited the children at respondent Leila Wallace's home in mid-October, early November, and late November, 1976. On their final visit, petitioner re- quested custody of the children and respondent refused. On January 14, 1977, petitioner filed a motion to show cause why the guardianship should not be terminated. At the hearing on the motion to show cause, respondent presented no evidence to show that the children were dependent and neglected (section 10-1301, R.C.M. 1947) while in the custody of petitioner. Respondent did present evidence that petitioner was $4,500 in debt, that petitioner had contemplated bankruptcy, that petitioner and his present wife had lived together before his former wife's death, and that petitioner and his wife lived in a one-bedroom house that would be quite cramped with the addition of two children. Petitioner presented evidence that he and his wife loved and wanted to raise the children, that he earned $800 per month, that they planned to either build another bedroom onto the house or move to a larger home, that his little girl felt much affec- tion and love for him, and that respondent Leila Wallace was try- ing to make the children think that she and her husband were their true parents. The judge refused to terminate the guardianship. He based his decision on petitioner's "disgraceful relationship * * * absent benefit of clergy or civil rite" with his present wife before their marriage, petitioner's failure to substantially contribute to his children's support after September, 1975 (refuted by the evidence at the hearing), and on the good care that the children received while in respondent's custody. The court further noted that it did not deem Waide Doney to be a fit and proper custodian. Pe- titioner appealed the district court's ruling to this Court. The issue presented on appeal is whether a natural parent may be deprived of custody of his children absent a finding of dependency, abuse or neglect. Surrender of custody of a minor child by a parent is pre- sumed to be temporary unless the contrary is made to appear. State ex rel. Lessley v . District Court, 132 Mont. 357, 318 P.2d 571 (1957). There is no evidence in this case to rebut that presumption. Rather, it is undisputed that petitioner signed the guardianship papers solely to allow respondent to consent to the children's medical care. Petitioner stated that he thought that he would be ready to take custody of the children within two months of his wife's death. This he attempted to do, but respon- dent refused to return custody of the children to petitioner. The order of the district court, though couched in tem- porary custody and temporary guardianship terms, is tantamount to a permanent custody order. The district court based its order on findings that petitioner had in the past failed to substantially support his children, that petitioner had carried on a disgraceful extramarital affair, that respondent provided a good home. None of these are factors which petitioner can in the future change. The court further found petitioner "not a fit and proper person" to have custody of the children. At the most, the evidence revealed petitioner to be financially troubled, but genuinely concerned about providing a stable and loving home for his children. Where a child has allegedly been abused or neglected by his natural parent, the state has a clear duty to protect the child by means of a judicial hearing to determine whether the youth is in fact abused or neglected. There are, however, few invasions by the state into the privacy of the individual that are more extreme than that of depriving a natural parent of the cus- tody of his children. For this reason, the legislature carefully enunciated the procedures the state must follow and the findings which the court must make before custody of a child may legally be taken from his natural parent. A judicial hearing and finding of dependency and neglect under Title 10, Chapter 13, R.C.M. 1947, or judicial finding of willful abandonment or willful nonsupport under section 61-205, R.C.M. 1947, are the exclusive means by which a natural parent may be involuntarily deprived of custody of his children. In the absence of such showing, the natural parent is legally entitled to the custody of his minor children. Section 61-105, R.C.M. 1947. This careful protection of parental rights is not merely a matter of legislative grace, but is constitutionally required. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L ed 2d 551 (1972). " * * * The integrity of the family unit has found pro- tection in the Due Process Clause of the Fourteenth Amendment, Meyer v . Nebraska, supra at 399, 67 L.Ed at 1045, the Equal Pro- tection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra at 541, 86 L.Ed at 1660, and the Ninth Amendment, Griswold v . Connecticut, 381 U.S. 479, 496, 14 L Ed 2d 510, 522, 85 S.Ct. 1678 (1965) (Goldberg, J., concurring)." Stanley, 31 L ed 2d at 559. The judgment of the district court in this case must be reversed, and custody of the children returned to petitioner, since there was no showing under Title 10, Chapter 13 that the children were abused or neglected. Nor may the district court indefinitely deprive petitioner of the custody of his children by means of the subterfuge of a guardianship which has outlived the purposes for which it was created. Respondent argues that the best interests of the children dictate that she, rather than the children's natural father, re- tain custody. Respondent cites Foss v. Leifer, Mont . - c 550 P.2d 1309, 1311, 33 St.Rep. 528 (1976) for the proposition that " * * * the lodestar of the district court in exercise of its discretion is the welfare and best interests of the child, and not the parent." This "best interests of the child" test, however, is used only after a showing of dependency or abuse or neglect by the natural parent, as defined in section 10-1301, R.C.M. 1947, or in custody disputes between two natural parents. In re Declaring Fish a Dependent and Neglected Child, Mont . I P.2d , 34 St.Rep. 1080 (1977); Henderson v . Henderson, Mont . - 1 - P.2d , 34 St.Rep. 942, (1977); See, August v. Burns, 79 Mont. 198, 255 P. 737 (1927). Without the required statutory showing that petitioner had abused or neglected his children, the district court under the facts of this case had no jurisdiction deprive the natural father their custody. The state is entirely powerless to deprive a natural parent of the custody of his minor children merely because a district judge or a state agency might feel that a nonparent has more financial resources or pursues a "preferable" lifestyle. "Manifestly, the expression 'welfare of the child' was never intended to penalize a parent because he may not be financially able to pro- vide his child with the comforts and advantages which more fortunate parents may provide for their children. All the law requires is that the parent be honest and respectable, with disposition and capacity to maintain and edu- cate his child." Ex Parte Bourquin, 88 Mont. 118, 124, 290 P. 250 (1930). The judgment of the district court is reversed and custody of the children is ordered to be returned to petitioner. We concur: Chief Justice 0 4 ' Justices /

October 14, 1977

d407315e-e2cd-4882-a166-efe648f7c2d0

STATE v LENON

N/A

13595

Montana

Montana Supreme Court

No. 13595 I N THE S U P R E M E COURT OF THE STATE O F MONTANA 1977 THE STATE O F MONTANA, P l a i n t i f f and Respondent, -vs- ALBERT F. LENON, Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t , Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellant: Hash, J e l l i s o n & O'Brien, K a l i s p e l l , Montana James B a r t l e t t argued, K a l i s p e l l , Montana For Respondent: Hon. l4ike Greely, Attorney General, Helena, lbntana J. Mayo Ashley argued, A s s i s t a n t Attorney General, Helena, Montana P a t r i c k Springer, County Attorney, K a l i s p e l l , Montana Submitted: September 2 1 , 1977 DecidedGT 26 1 x x m 2s 191. Filed. M r . Chief J u s t i c e Paul G. Hatfield delivered t h e Opinion of t h e Court. Defendant appeals from a conviction of possession of dangerous drugs. The s t a t e charged defendant i n d i s t r i c t court, Flathead County, with t h e offense of felony possession of dangerous drugs. O n January 28, 1976, Honorable Robert C. Sykes, a f t e r a hearing, denied defendant's motion t o suppress h i s confession. O n April 20, 1976, defendant was found g u i l t y of t h i s offense a t a jury t r i a l . O n June 2, 1976, t h e c o u r t entered judgment, sentenced defendant t o f i v e years imprisonment, and then suspended t h e sentence. O n June 21, 1976, t h e court denied defendant's a l t e r - n a t i v e motions f o r a c q u i t t a l o r f o r a new t r i a l . The f a c t s brought o u t a t t h e t r i a l which are relevant t o t h i s appeal a r e a s follows: O n June 11, 1975, K a l i s p e l l p o l i c e o f f i c e r s obtained a warrant t o search a Kalispell house. The o f f i c e r s executed t h e warrant s h o r t l y before midnight on Friday, June 13, 1975. A s they approached t h e house, they observed an individual, 8 t o 10 f e e t i n f r o n t of them, approaching t h e house on t h e f r o n t walk. The o f f i c e r s , fearing t h a t t h e individual would alert the occupants of the house a s t o the imminent search, pursued t h e individual i n t o t h e house. Policeman Donald Hossack t e s t i f i e d t h a t , from the l i g h t i n t h e house foyer, he could i d e n t i f y t h e individual by h i s height, type and c o l o r of s h i r t , h a i r color and length, build and type of jeans. The individual had a bundle o r bag under h i s arm, and s i l h o u e t t e d i n t h e house l i g h t , it appeared t o be a brown paper bag. The o f f i c e r s entered t h e house four t o s i x seconds a f t e r t h e individual did. Upon t h e i r e n t r y , t h e o f f i c e r s came face- to-face with defendant, who matched t h e appearance of t h e individ- u a l they saw e n t e r t h e house with t h e bag o r bundle. Directly behind defendant, about t h r e e o r four s t e p s up the stairway, was a brown paper bag. The o f f i c e r s i n t h e i r search, seized various drug paraphernalia and marijuana i n t h e u p s t a i r s rooms. The brown paper bag d i r e c t l y behind defendant contained 16 " l i d s " of marijuana, weighing approximately one ounce per l i d . The police o f f i c e r s wrote an inventory of t h e i t e m s seized, which they l e f t a t t h e house, and returned t h e search warrant and an inventory of t h e seized i t e m s t o t h e court. The p o l i c e o f f i c e r s , however, f a i l e d t o make a r e t u r n of t h e brown paper bag of marijuana t o t h e c o u r t which issued t h e search warrant. The o f f i c e r s then a r r e s t e d defendant and t h e two people who were t h e subjects of t h e search warrant. Defendant and t h e two o t h e r a r r e s t e e s were read t h e i r Miranda r i g h t s and then transported t o t h e Kalispell City j a i l f o r booking purposes. A t t h e p o l i c e s t a t i o n t h e o f f i c e r s gave defendant a form p r i n t e d with t h e Miranda warnings. Defendant signed t h a t form. The Booking procedure w a s completed sometime between 2:30 and 3:00 a.m. on Saturday, June 1 4 , 1975, a t t h e Flathead County j a i l . Shortly before 9:00 a.m. on Saturday, June 1 4 , 1975, Officer Hossack m e t i n t h e j a i l with defendant. The o f f i c e r d i d not remember whether he gave defendant a verbal Miranda warning a t t h e i r 9:00 a.m. meeting, although he has a notation i n h i s records saying t h a t he did. The o f f i c e r gave defendant a "volun- t a r y statement" form with a Miranda-like warning printed a t t h e top. Defendant then, i n h i s own handwriting, wrote t h a t he had taken a sack containing marijuana i n t o t h e house on t h e n i g h t he w a s a r r e s t e d . N o lawyer was present a t t h e confession. Officer Hossack t e s t i f i e d t h a t he d i d not know i f i n f a c t defendant knew he d i d not have t o make a statement, d i d not know whether defendant knew he could have a lawyer present, and d i d not know whether defendant knew h i s statement could be used a g a i n s t him i n a court of law. The o f f i c e r d i d state, though, that he read defendant the top part of the "voluntary statement" form which listed defendant's right to an attorney and his right to remain silent. Officer Hossack, who had been a "friendly acquaintance" of defendant for ten to fifteen years, assured defendant that he would bring him before a judge and get him admitted to bail as soon as possible. The justice of the peace was out of town and defendant did not have his initial appearance until the morning of Monday, June 16, 1975. The officer testified that " * * * for my own clarification and for a better case * * *" he thought he told defendant to add in a statement that the sack was brown colored. Defendant did write this into the confession and signed it at the bottom. Defendant raises the following issues on appeal: 1 . Did the police have probable cause to arrest defen- dant? 2. Did the "then existing circumstances" require de- fendant's immediate arrest, as contemplated in section 95-608(d), R.C.M. 1947? 3 . Was defendant's confession voluntarily given? 4. Did the officers' failure to present defendant be- fore a magistrate before interrogation render the confession in- admissible? 5. Did Officer Hossackls statement at trial that he was looking specifically for the brown paper bag before he went into the house constitute reversible error? 6. Did the police officers' failure to make a return of the brown paper bag of marijuana, render the seized evidence inadmissible under section 95-712, R.C.M. 1947? Defendant states that "good faith and mere suspicion" by policemen as to a suspect's commission of an offense is insufficient to establish probable cause to arrest. The mere fact that a defendant is on the premises where the policemen have reason to believe there are drugs will not justify an arrest. State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193 (1969). There must be a showing of some connection with illegal or criminal activity by a defendant on the premises be- fore there is probable cause to arrest him. State v. Hull, 158 Mont. 6, 487 P.2d 1314 (1971). Defendant argues that there were insufficient facts to connect him with the brown paper bag of marijuana at the time of the arrest. At most, the facts gathered by the peace officers at the moment of arrest, gave reason for them to be suspicious of the defendant. Defendant is indubitably correct in his assertion that "mere suspicion" is not the equivalent of probable cause to arrest. State v. Lahr, Mont . , 560 P.2d 527, 34 St.Rep. 90 (1977). A peace officer may legally arrest a person without a warrant, however, when he "believes on reasonable grounds that the person is committing an offense * * *". Section 95-608(d), R.C.M. 1947. The "reasonable grounds" requirement of section 95-608(d) is synonymous with "probable cause". State v. Fetters & Lean, 165 Mont. 117, 526 P.2d 122 (1974). "Probable cause to arrest without a warrant exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reason- able caution in the belief that an offense has been or is being committed." State v. Hill, Mont . 550 P.2d 390, 33 St. Rep. 496 (1976). Defendant matched the physical appearance as to cloth- ing, statute, build and hairstyle of the individual that the officers saw enter the house immediately before them; the individual who entered the house carried a brown sack; the officers con- fronted defendant immediately upon entering the house; the officers discovered a brown paper bag full of marijuana on the steps directly behind defendant. In this case the "facts and circumstances within the [officers'] knowledge" could reason- ably have led them to no other belief than that defendant was committing the offense of possession of dangerous drugs. Defendant next contends that, because the police officers knew defendant to be a reputable Flathead County businessman with no prior criminal record, the existing circumstances did not require his immediate arrest. Section 95-608(d), R.C.M. 1947, allows a warrantless arrest only when the officer reason- ably believes the suspect is committing an offense or " * * * that the person has committed an offense and the existing circum- stances require his immediate arrest." Defendant claims that the police thus had the statutory duty to present facts estab- lishing probable cause to a neutral magistrate who could then judge the sufficiency of the probable cause to arrest. Defendant's reasoning on this point is specious. Sec- tion 95-608(d) provides for two distinct situations. Where an officer reasonably believes that a person had in the past commit- ted an offense, he may arrest the suspect without a warrant only where the existing circumstances require his immediate arrest. Where, however, the peace officer reasonably believes that an individual is presently committing an offense, he may arrest that person at that time, whether or not the existing circumstances require the arrest. Defendant herein was charged with the offense of possession of dangerous drugs, and at the moment of his arrest the officers could reasonably believe that defendant was committing that possessory offense by virtue of his similarity in appearance to the person they had just seen enter the house with the brown bag, and due to the fact that the brown bag of marijuana was directly behind defendant on the stairs. See People v. Berry, 17 I11.2d 247, 161 N.E.2d 315 (1959), overruled in part on other grnds.; People v. Watkins, 19111.2d 11, 166 N.E.2d 433 (1960). If a defendant's confession is involuntary, it violates his Fifth and Fourteenth Amendment privilege against self- incrimination and may not be used as evidence at his criminal trial without violating his Fourteenth Amendment right to due process of law. Brown v. Mississippi, 297 U.S. 278, 80 L Ed 682, 56 S.Ct. 461 (1936). Voluntariness is the underlying test of admissibility of statements, admissions or confessions. Brown v. Illinois, 422 U.S. 590, 45 L Ed 2d 416, 95 S.Ct. 2254 (1975); State v. Zachmeier, 151 Mont. 256, 441 P.2d 737 (1968). The question of voluntariness largely depends upon the facts of each case, no single fact being dispositive. Brown v. Illinois, 45 L Ed 2d at 427; State v. Chappel, 149 Mont. 114, 423 P.2d 47 (1967). The determination of voluntariness, rather, depends upon the "totality of circumstances". Clewis v. Texas, 386 U.S. 707, 18 L Ed 2d 423, 87 S.Ct. 1338 (1967). The trial judge, at the January 28, 1975 hearing on defendant's m~tion to suppress, determined that defendant had voluntarily given his written confession to the offense of posses- sion of dangerous drugs. The issue of the voluntariness of a confession is largely a factual determination, addressed to the discretion of the trial court. State v. White, 146 Mont. 226, 405 P.2d 761 (1965), cert. den. 384 U.S. 1023, 16 L Ed 2d 1026, 86 S.Ct. 1955 (1966). The trial court's judgment as to volun- tariness of a confession will not be reversed on appeal unless it is clearly against the weight of the evidence, State v. Smith, 164 Mont. 334, 523 P.2d 1395 (1974); State v . Rossell, 113 Mont. 457, 127 P.2d 379 (1942). Defendant argues that several factors created a "totality of circumstances" under which his confession was involuntary. Defendant asserts that because Officer Hossack testified that he may have instructed defendant to add to his confession the state- ment that the sack (which he had previously admitted having car- ried into the house) was a grocery sack of brown color, the con- fession was derived from the officer's and not from defendant's thought processes. Defendant maintains that he confessed due to hope of leniency through subservience to the directions of the police officer, and that the officer had incorrectly informed him that the other two suspects arrested on the night of the search had already confessed. Finally, defendant points out that the interrogating officer testified that he did not remember whether he orally read defendant his Miranda rights on the morning of the confession and did not know whether defendant understood his rights. We cannot overemphasize our strong condemnation of police practices wherein an officer instructs a suspect to add certain words to his confession "for a better case" or wherein a police officer misinforms a defendant as to other arrestees having given confessions, as is alleged here. We cannot, however, upon a re- view of the entire record, state that the totality of the cir- cumstances was such as to overbear defendant's will and create "' * * * any fair risk of a false confession?'" State v. Robuck, 126 Mont. 302, 308, 248 P.2d 817 (1952), citing from State v. Sherman, 35 Mont. 512, 90 P, 981, 119 Am.St.Rep. 869, The evidence at trial indicated that there was an atmos- phere of cordiality between defendant and Officer Hossack at the time of interrogation. This is in marked contrast to the physical brutality in Brown v. Mississippi, 297 U.S. 278, 80 L Ed 2d 682, 56 S.Ct. 461 (1936) or the mental coercion in Payne v. ~rkansas, 356 U.S. 560, 2 L Ed 2d 975, 78 S.Ct. 844 (1958) which led to forced, involuntary, and therefore, inadmissible confessions. Rather than making threats, the officer in this case merely asked defendant if he would make a statement. The officer testified that he made no promises contingent upon defendant's giving a confession, and defendant, who chose not to take the stand, presented no evidence to rebut the officer's assertion. Nor was there any other evidence of coercion in this case. Defendant is an adult male and successful businessman who presumably could well comprehend the import of his actions. The police did not subject defendant to the "third degree". Rather, the interrogation began at 9:00 a.m. and defendant wrote and signed his confession by 9:lO a.m. The officer's suggestion that defendant add the sentence that the sack he carried into the house "was a grocery sack of brown color" is not, under the facts of this case, sufficient to show that the confession was involuntary. In the absence of coercive circumstances, the key is whether a defendant voluntarily sees the facts as the officer reflects them. See United States v. Del Porte, 357 F.Supp. 969 (S.D. N.Y. 1973), aff'd sub nom., United States v. St. Jean, 483 F.2d 1399 (2nd Cir. 1973). In this case, defendant in his confession had already admitted that he had carried a sack con- taining marijuana into the house. The additional sentence, written at the officer's suggestion, merely described the color of that sack. Despite the voluntary character of defendant's confession under traditional principles, defendant's confession would have to be excluded if the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L Ed 2d 694, 86 S.Ct. 1602 (1966) were not met by the police officers. Under Miranda, a defendant, prior to in-custody interrogation, must be apprised that he has the right to remain silent; that anything he does say may be used as evidence against him in a court of law; that he has the right to consult a lawyer and have the lawyer present with him during interroga- tion; and that, if he is indigent, he may obtain court appointed counsel. In interpreting Miranda, the Supreme Court has stated that: " * * * unless law enforcement officers give certain specified warnings before question- ing a person in custody, * * * any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the state- ment may in fact be wholly voluntary. See Michigan v. Tucker, 417 U.S. 433, 41 L Ed 2d 182, 94 S.Ct. 2357." Michigan v. Mosley, 423 U.S. 96, 46 L Ed 2d 313, 319, 96 S.Ct. 321 (1975). See also, Doyle v. Ohio, 426 U.S. 610, 49 L Ed 2d 91, 96 S.Ct. Defendant states that Officer EIossackls statement at trial that he did not remember whether he gave defendant a verbal ~iranda warning on the morning of defendant's confession, should alone vitiate the confession. Defendant also points to the officer's testimony that he did not know whether defendant in fact appreciated all his rights. Defendant's contention is with- out merit. The police verbally advised defendant of his Miranda rights at the time of defendant's arrest. When the police trans- ported defendant to the police station, they again gave defen- dant his Miranda warning, this time on a printed form which de- fendant signed. Finally, defendant wrote his confession on a form upon which the Miranda warning was printed. Defendant does not claim that either of the two Miranda warnings given to him on the night of his arrest were in any way insufficient. He merely claims that the confession should be suppressed because the interrogating officer failed to couple the written warning with a verbal warning the next morning when defendant confessed. In this case, the time between the first verbal Miranda warning and the confession was less than nine hours. Such a brief time lapse between the verbal warning and the confession did not by itself, under the facts of this case, create a duty to verbally repeat those warnings. United States v. Hopkins, 433 F.2d 1041, (5th Cir. 1970) cert.den., 401 U.S. 1013, 28 L Ed 2d 550, 91 S. Ct. 1252 (1971). Rather, defendant gave every indication that he understood his rights when he told Officer Hossack on the morning of the confession that he did not want to call a lawyer. Under the "totality of the circumstances", defendant understood his rights, confessed voluntarily, and there was no need to repeat the Miranda warning. See, Comment, - The Need to Repeat Miranda Warnings at Subsequent Interrogations, 12 Washburn L.J. 222 (1973). The issue in this case is whether defendant fact understood his rights, and not, as defendant claims, whether the interrogating police officer thought that defendant understood his rights. The ultimate responsibility for resolving this issue lies not with the interrogating officer, but with the courts. Miranda, 16 L Ed 2d at 730, n. 55. We find that the requirements of Miranda were met, that defendant voluntarily confessed and that the trial judge properly admitted the written confession into evidence at trial. Defendant also claims that his confession should have been suppressed because of what he asserts was "unnecessary delay" between the time he was arrested and the time he was brought before a judge for his initial appearance. Section 95-901(b), R.C.M. 1947, provides: "Any person making an arrest without a warrant shall take the arrested person without unneces- sary delay before the nearest or most accessible judge in the same county and a complaint, stat- ing the charges against the arrested person, shall be filed forthwith." Defendant was arrested sometime around midnight, Friday, June 13, 1975, confessed a t 9:00 a.m., Saturday, June 1 4 , 1975, and w a s brought f o r h i s i n i t i a l appearance on Monday morning, June 16, 1975. Officer Hossack t e s t i f i e d t h a t he t r i e d several times t o telephone t h e j u s t i c e of t h e peace before he learned t h a t t h e j u s t i c e w a s o u t of town f o r t h e weekend. W e disapprove of t h e police procedure used i n t h i s case. I n addition t o t h e j u s t i c e of t h e peace before whom defendant was brought, Flathead County has one o t h e r j u s t i c e of t h e peace and t h e eleventh j u d i c i a l d i s t r i c t of which Flathead County is a p a r t , has two d i s t r i c t court judges. The t e s t i f y i n g o f f i c e r f a i l e d t o show t h a t t h e p o l i c e t r i e d t o contact any of these judges t o arrange an i n i t i a l appearance. I n t h e proper case, unexcused delay might lead t o protracted confinement of a defen- dant, contribute t o prompting a confession, and warrant t h e sup- pression of t h e confession. This, however, i s not such a case. Defendant f a i l e d t o prove t h a t h i s f a i l u r e t o be presented before a magistrate u n t i l t h e Monday morning a f t e r h i s Friday night a r r e s t c o n s t i t u t e d "unnecessary delay", since t h e j u s t i c e of t h e peace was o u t of town u n t i l Monday, and t h e r e was no evi- dence t h a t t h e r e was any o t h e r judge a v a i l a b l e i n t h e county over t h e weekend. See S t a t e v. Benbo, - Mont . - I - P.2d t NO. 13491 (Mont. f i l e d October 26, 1977.). Defendant's f i f t h contention of e r r o r i s t h a t , because Officer Hossack t e s t i f i e d a t t h e suppression hearing t h a t he had no p r i o r knowledge of t h e contents of t h e brown paper bag, it was r e v e r s i b l e e r r o r f o r him t o t e s t i f y a t t r i a l t h a t he was s p e c i f i - c a l l y looking f o r t h e brown paper bag before he entered t h e house t o execute t h e search warrant. It i s d i f f i c u l t t o a s c e r t a i n t h e inconsistency between Officer Hossack's statement a t t h e suppression hearing and h i s testimony a t t r i a l . Although it is t r u e t h a t he d i d not know the contents of the bag at the time the individual carried it into the house, the officer certainly could still be looking for the bag as he entered so that he could check its contents. Furthermore, defendant showed no prejudice from the statement and failed to object to the statement at trial. Ob- jections first raised on appeal will not be considered by this Court. State v . Armstrong, Mont. , 562 P.2d 1129, 34 St.Rep. 213 (1977); State v . Braden, 163 Mont. 124, 515 P.2d 692 (1973). Section 95-712, R.C.M. 1947, requires police officers to make a return of the search warrant and all things seized to the judge who issued the warrant. In this case, the police returned the warrant and an inventory of the items seized to the judge. The "things seized" however, were not returned. De- fendant asserts that the failure of the officers to make a return to the judge of the brown paper bag of marijuana per se rendered that item inadmissible as evidence at trial. The Illinois Supreme Court, in interpreting its return of seized evidence statute, the section from which 95-717 was taken has stated that " * * * faili~re to comply with statutory requirements concerning the steps to be taken after the warrant has been served does not render the search warrant or the search conducted pursuant thereto invalid * * *." People v. Hawthorne, 45 I11.2d 176, 258 N.E.2d 319, 322 (1970), cert. den., 400 U.S. 878, 27 L Ed 2d 115, 91 S.Ct. 119 (1970). Defendant has the burden of affirmatively showing that an irregularity in the search and seizure affected his substantial rights. Section 95-717, R.C.M. 1947; State v. Watkins, 156 Mont. 456, 481 P.2d 689 (1971). Defendant in this instance failed to demonstrate any prejudice to his substantial rights by the officers' failure to make a return of the brown paper bag of marijuana. The judgment of the district court is affirmed. Chief J u s t i c e We concur: .............................

October 26, 1977

f8b48c51-a8a0-4447-b8f2-54ec3a9b6fbb

MORSE v MORSE

N/A

13364

Montana

Montana Supreme Court

No. 13364 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 WILLIAM R. MORSE, Plaintiff and Appellant, -vs- BETTY J. MORSE, Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable M. James Sorte, Jud-qe presiding. Counsel of Record. : For Appellant: Anderson, Symmes, Forbes, Peete and Brown, Billings, Montana Weymouth D. Symmes argued, Billings, Montana For Respondent: Hon. Michael Greely, Attorney General, Helena, Montana Allen B . Chronister, Assistant Attorney General, appeared, Helena, Montana Berger, Anderson, Sinclair and Murphy, Billings, Montana Arnold A. Berger argued, Billings, Montana Submitted: January 25, 1977 Decided : Z\dQV 1 6 1377' NQV I E 1 g n Filed: M r . Justice Daniel J. Shea delivered the Opinion of the Court: The husband appeals from a judgment of the District Court, Stillwater County, awarding certain property t o the wife i n a property distribution decree following dissolution of marriage. The husband raises several issues relating t o the Uniform Marriage and Divorce A c t and further claims the court failed t o consider several factors i n making its award of the marital pro- perty. One of the issues under the Uniform Marriage and Divorce A c t i s h i s claim that the court did not consider the wife's inheritance a s a marital asset. Because the District Court was not specific i n its disposition of the inheritance, w e are compelled t o reverse and remarid for a hearing on the disposi- tion of the inheritance. A s t o h i s remaining contentions, we find no error. F i r s t , w e w i l l discuss the various other issues raised by the husband, and discuss l a s t the issue of the wife's $200,000 inheritance. Both the husband and wife were granted a divorce by the court on October 23, 1974. A t r i a l on property disposition was held December 9 and 10, 1975. The court issued findings of f a c t , conclusions of law and order apportioning the marital property on January 19, 1976. The husband contends the correct law under which the court divided the property was that which existed a t the time the t r i a l was held on that matter, and hence prior t o the effective date of the Uniform Marriage and Divorce Act i n Montana, January 1, 1976. However, section 48-341, R.C.M.1947, of that Act, states: "(2) This act applies t o a l l pending actions and proceedings commenced prior t o its effective date with respect t o issues on which a judgment has not been entered * * * "(4) I n any action o r proceeding i n which an appeal was pending o r a new t r i a l was ordered prior t o the effective date of t h i s a c t , the law i n effect a t the time o f , t h e order sustaining the appeal or the new t r i a l governs the appeal, the new t r i a l , and any subsequent t r i a l or appeal." Here, the t r i a l court did not enter judgment on the property division u n t i l January 19, 1976, eighteen days a f t e r the effective date of the Uniform Marriage and Divorce Act. Section 48-341(4) of that Act specifies the exclusive circumstances under which an action would f a l l under pre-existing law--cases i n which a judgment has already been entered o r a new t r i a l ordered. Sub- section (4) plainly does not apply t o t h i s case as a judgment had not been entered when the Uniform Marriage and Divorce A c t went into effect. W e might add, however, that i n the area of property division, the Uniform Marriage and Divorce Act provisions a r e similar t o case law predating that Act. Biegalke v. Biegalke, Mont . , 564 P.2d 987, 34 St.Rep. 401, 405 (1977). Therefore the husband l o s t no substantial rights by coming under the Uniform Marriage and Di.vorce Act. The basis for dividing property upon dissolution of marriage is set out i n section 48-321, R.C.M. 1947. It provides i n relevant part that the court: "* * * without regard t o marital misconduct, s h a l l * * * finally equitably apportion between the parties the property and assets belonging t o either o r both however and whenever acquired, and whether the t i t l e thereto is i n the name of the husband o r wife o r both. * * *'' (Emphasis supplied.) The statute also sets out factors which the court must consider i n the apportionment of the property, including: "* * * amount and sources of income * * * needs of each of the parties [and] whether the apportion- ment is i n l i e u of o r i n addition t o maintenance * * * * I t Concerning property acquired by either spouse before marriage o r by g i f t , bequest, devise o r descent, the s t a t u t e provides the court shall: 'I* * * consider thos3contributions of the other spouse t o the marriage * * * the extent t o which such contributions have facilitated the maintenance of t h i s property and whether o r not the property disposition serves as an alternative t o maintenance arrangements. I I The husband asks t h i s Court t o disregard the specific language of the statute prohibiting consideration of marital misconduct i n distributing marital property, The s t a t u t e ex- pressly forbids a consideration of marital misconduct i n appor- tioning the marital estate. Since the intent is clear we take the s t a t u t e a s we find it. I n the Matter of West Great Falls Flood Control and Drainage District, 159 Mont. 277, 287, 496 P.2d 1143 (1972). It is equally clear that the husband would fare no better under the law pre-existing the Uniform Marriage and Divorce Act. Before that Act, "fault" was considered only i n the context of a party's right t o alimony and could not be the basis for depriving either party of property interests upon divorce. Johnson v. Johnson, 137 Mont, 11, 17, 349 P.2d 310 (1960). The husband also contends that the wife quitclaimed certain property to him before the dissolution of the marriage and accordingly, the court should not consider that property a s part of the marital estate. H e claims it was the intent of the wife to deliver the property t o him and t h i s was manifested by the execution, delivery, and filing of the deeds. However, section 48-321 provides that a district court may equitably divide pro- perty "however and whenever acquired" and therefore the question of title is not controlling. This was also the law before the enactment of the Uniform Marriage and Divorce Act. LaPlant v . LaPlant, Mont . , 551 P.2d 1014, 33 St.Rep. 580 (1976); Downs v. Downs, Mont . , 551 P.2d 1025, 33 St.Rep. 576 (1976); Cook v . Cook, 159 Mont. 98, 102,103, 495 P.2d 591 ( 1 9 7 2 ) . The husband contends the prospective assets and liabilities of the parties should be considered in a property division. While it is true that section 48-321 requires the court, among other things, to consider "the opportunity of each for future acquisi- tion of capital assets and income", here there was no sufficient foundation established for the reasonable likelihood of acquiring future assets. As to future debts or liabilities of the parties, such evidence is normally too speculative, and in this case there was no reliable evidence by which the court could determine future liabilities. For the same reason, we cannot consider the possibility the wife will receive an inheritance from her mother sometime in the future. Because of the ambiguity of the District Court's findings on .the wife's inheritance of $200,000 before the dissolution of the marriage, we are compelled to remand the cause for a hearing and specific findings. I t is clear under section 48-321, "property and assets belonging to either or both however and whenever acquiredl',that the $200,000 inheritance was properly an asset of the marital estate at the time of dissolution. The husband contends gnce the wife was awarded the entire $200,000 inheritance, that he should have received a corresponding benefit from the remainder of the marital property. I n h i s findings the t r i a l judge noted that the wife did have an inheritance of $200,000. However, the judge failed t o dispose of that inheritance i n any way which would clearly show h i s intent. The order of distribution l i s t e d certain property awarded t o the wife, and the remainder t o the husband. Since the wife was not specifically awarded the $200,000, it could be argued the husband was t o receive the $200,000 inheritance of the wife. But there is no evidence the husband asked for a l l o r any portion of the wife's inheritance. Neither i s there any indication from the evidence, findings and conclusions that the court intended t o award a l l o r any portion of the wife's inheritance t o the husband. Moreover, on appeal t o t h i s Court both parties t r e a t the inheritance a s having been awarded t o the wife. The confusion indicated by the record and the position of the parties can only be resolved by a rehearing on the issue of the inheritance. W e s t r e s s here that, as i n a l l decrees of property distribution, there is no definite formula that must be followed and each case must be treated on an individual basis. Biegalke v. Biegalke , supra. The wife contends the decree should be modified so that property awarded to her can be taken from the husband's indirect control. This is a matter for the D i s t r i c t Court t o consider upon remand of t h i s case, and it need not be discussed here. The wife also contends the judgment should be s e t aside because the record did not disclose the true net worth of the husband. She did not cross-appeal on t h i s issue, but raised it for the f i r s t time i n her brief on appeal. Accordingly, she is precluded from raising t h i s issue on appeal. Johnstone v. Svejkovsky, Mont , - - 9 554 P.2d 1329, 33 St.Rep. 954 (1976); Spencer v. Robertson, 151Mont. 507, 511, 455 P.2d 48 (1968). W e vacate the judgment of the district court and remand it for further proceedings consistent with this Opinion. W e Concur: Justices. M r . Justice John Conway Harrison concurring i n part and dissenting in part: This Court i n Bdegalke v. Biegalke, - Mont. , 564 P. 2d 987, 34 St.Rep. 401 (1977), established i n Montana that i n cases, such as the instant one, the provisions of Chapter 3, T i t l e 48, sections 48-301 through 48-341, R.C.M. 1947, Montana's Uniform Marriage and Divorce Act, apply. However, i n apportioning the property of the parties here, under the provisions of section 48-321, I disagree with the majority. Here, under the facts u n t i l 1964, when the wife moved t o England, away from the marital domicile, such a division would, i n m y opinion, have been j u s t , for up t o that time both equally contributed t o the acquisition of the property. A s I view the evidence, it was the defendant wife who wanted the English exper- ience, and it was the plaintiff husband who reluctantly went along with her demands. It was plaintiff husband who had t o purchase the home i n England and maintain h i s family there. From 1964 t o 1972, with the exception of quarterly v i s i t s , and because of the wife's insistence on living i n England, p l a i n t i f f ' s children grew up without h i s close supervision and guidance and he was denied the joy and satisfaction of seeing t h e i r daily development for some eight years. Under these facts one would assume the children would be i n support of their mother, but here, because of her conduct, she has l o s t the support of a l l five children. They have returned from England t o the family home i n Absarokee and support their father's position i n these proceedings. H e has become both father and mother t o them and it i s t o him they have looked t o for f i s c a l and emotional support these l a s t s i x years. Even under the findings of the t r i a l court, it was found that a f t e r moving t o England the wife contributed l i t t l e or nothing t o plaintiff father's earning capacity. During the marriage the parties accumulated the following property : 1. Family dwelling in Absarokee, with garage (average appraised value) 2. Law off ice building 3. Morse apartments 4. Rumaino acreage 5. Airplane and hanger 6. Contract proceeds (total) 7. Morse-Edmonds-Henrickson contract 8. Pickup and vehicles (agreed value) 9. Home furniture (plaintiff' s estimate) 10. Notes and mortgages receivable 11. Value due on lumber 12. Accounts receivable (excluding those with doubtful collection possibilities) 13. Insurance (cash surrender value) 14. Savings Account - Livingston, Montana 15. Checking Account 16. Bank account - Red Lodge 17. Morse Apartments Account 18. Bonds (including $2,500 belonging t o wife a t time of marriage) 19. Library and equipment - law office 20. Morse Apartments - furniture, fixtures 21. P l a i n t i f f ' s apartment furniture 22. Wife's inheritance from father, L.B. Kratz The l i a b i l i t i e s of the parties consist primarily of outstanding mortgages: 1. Federal Land Bank Mortgage $25,207 2. U.S. Bank, Red Lodge 37,195 3. Estimated back tax l i a b i l i t y - IRS (1971-1975) 54,000. In June 1972, defendant returned t o Montana and took up residence with her parents. The divorce proceedings commenced shortly thereafter. Within two years, but prior to the divorce, her father died leaving her approximately $200,000 and in addition she received $9,740 as executrix of the estate. She occupies the family home and has f u l l use of two family automobiles. While speculative i n amount, she w i l l inherit a substantial estate from her mother who is 82 years old. I n spite of the above facts, the t r i a l court made t h i s distribution of property: "A. TO THE D E F E N D A N T : (1) Family dwelling .... together with the attached shed o r .garage . . . (2) A l l furniture and personal property located i n the family home other than that, claimed by the third party intervenor, and p l a i n t i f f ' s business records. (3) The Morse Apartments ... (4) The furniture and fixtures i n the Morse Apartments. (5) A l l of the money's payable and a l l right, t i t l e and interest of the plaintiff i n and t o the property described as the Morse-Edmonds-Hendrickson Contract, the sum being $15,360.83, o r , i n the alternative, a cash payment of $15,360.83. (6) One half of the United States Savings Bonds ( i f and when found). "B. TO THE PLAINTIFF: (1) A l l of the property of the parties not awarded t o defendant as evidenced from the exhibits and the testimony and brought out during the course of the t r i a l . (2) The Plaintiff s h a l l pay a l l outstanding indebtedness on the mortgages that secure a loan on any property that was awarded t o the defendant herein." Considering the facts of the instant case, such a distribu- tion of property i s , i n m y opinion, an inequitable distribution t o the wife. N o mention i s made by the t r i a l court of the $200,000 plus inheritance i n the court' s disposition formula contained i n i t s conclusion of law. Totaling the values of the properties taken by the respective parties i n such case, would yield t h i s result: TO THE HUSBAND $173,482 ( t o t a l value) less 62,400 (Outstanding mortgage l i a b i l i t i e s ) 111,082 l e s s 24;000 (conservative estimate of predivorce tax l i a b i l i t y ) $ 87,082. The husband received no house o r living arrangements other than the a b i l i t y t o rent an apartment owned by the wife by virtue of the decree. H e is, as is apparent, responsible for a l l of the l i a b i l i t i e s of the marriage, a factor t o be considered under the express language of section 48-321. TO THE WIFE $81,621 plus 200,000 (inheritance funds) plus 9,700 (executrix fee) $291,321 In addition, the wife received the family home, which she now rents t o others, despite the court having found as a f a c t that she i s entitled t o the use and occupancy of the Kratz home. Section 48-321 i s a s t a t u t e of broad applicability. It speaks of consideration of " a l l property however and whenever acquired" and expressly refers t o inheritances. Other factors t o be balanced, which would find applicability i n t h i s case are: amount and sources of income, needs of the parties, and oppor- tunities for future acquisitions of capital. Other courts have held that, due t o a . s h o r t term marriage or other l i k e circumstances, a spouse seeking apportionment of a large sum either brought into the marriage o r acquired early i n the marriage by the other spouse, whether by inheritance o r otherwise, does not have the same "interest1' i n the sum a s i n cases where the marriage is of long duration. Here, the marriage lasted approximately 29 years. To deny the husband a share of the wife's inheritance would stand on the same footing a s denying the wife a share of a large sum i n windfall profits from the husband's business or investments acquired just prior t o the divorce. - I1 - To consider inheritances per se as being beyond the language o r intent of section 48-321, would be, in a sense, t o cause Montana t o become a de f a c t o community property s t a t e i n t h i s regard. In m y opinion, t h i s i s not the intent of section 48-321. Here, while the husband has a better future earning poten- t i a l than the wife for obvious reasons a fact which must be weighed i n the balance, the wife does have a strong potential for future acquisition of capital. Both are factors which relate t o the future needs of the parties. The t r i a l judge i n h i s findings of f a c t recognized the wife stands t o receive large sums from her mother upon her death. The mother is presently 82 and i n very poor health. The facts indicate a strong likelihood of such inheritance, due t o the fact M r . and Mrs. Kratz maintained a joint w i l l . I find the holding i n Smyth v. Smyth, (Okla.1947), 179 P.2d 923, persuasive here. There the court said: "'Next t o the fortune of which he i s already possessed, consideration should be given t o * * * future prospects and probable acquisition of wealth from any source whatever.* * * ' I ' See also: Smith v.'Smith, (Okla.1957), 311 P.2d 229; Kessinger v. Kessinger, 360 Mich. 528, 104 N.W.2d 192 (1960). I n addition, I find the t r i a l court's decision t o saddle p l a i n t i f f husband with the obligation of a l l the pre-existing tax l i a b i l i t i e s t o be inequitable. Both owe the obligation, both have the a b i l i t y t o pay the obligation, and both should share i n payment. Considering the e n t i r e record here, I would reverse due t o what, but ion. i n m y opinion, an unconscionable property d i s t r i - e " - t Justice . L I

November 16, 1977

fa3e5730-b045-498f-9ce2-f6589f061f0a

State v. D. Banks

2016 MT 65N

DA 15-0288

Montana

Montana Supreme Court

DA 15-0288 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 65N STATE OF MONTANA, Plaintiff and Appellee, v. DANIEL BANKS, Defendant and Appellant. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Beaverhead, Cause No. DC 13-3557 Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD: For Appellant: Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Jed C. Fitch, Beaverhead County Attorney, Mike Gee, Deputy County Attorney, Dillon, Montana Submitted on Briefs: February 24, 2016 Decided: March 15, 2016 Filed: __________________________________________ Clerk March 15 2016 Case Number: DA 15-0288 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Daniel Banks (Banks) appeals from an order denying his motion to suppress, issued by the Fifth Judicial District Court, Beaverhead County. Banks challenges the sufficiency of probable cause underlying a search warrant authorizing a search of his vehicle. We affirm the District Court’s denial of his motion. ¶3 Banks had his first of two encounters with law enforcement on November 26, 2013, when an Idaho state trooper stopped his vehicle while traveling on Interstate 15. After stopping Banks for expired registration and no front license plate, and allowing Banks to continue to his destination, the patrolman contacted Beaverhead County Undersheriff Bill Knox (Knox). The patrolman passed on to Knox that he had stopped Banks in a blue Chevrolet truck, and that the truck was not registered in Banks’ name. The patrolman further stated that Banks had admitted to smoking marijuana the day before, that Banks had been evasive when questioned, and that the patrolman suspected that Banks was transporting drugs, based on his training and experience. Knox encountered Banks driving a blue truck on I-15, and followed him for approximately eight miles. During that time, Knox confirmed with dispatch that the license plate on the truck was expired, and also observed Banks driving erratically, crossing traffic lines on 3 both sides of the road and varying his speed. Knox pulled Banks over and asked Banks if he was under the influence of drugs or alcohol. Banks stated he was not. Another officer at the scene asked Banks if there were drugs in the car, and Banks initially denied that there were. Upon being asked a second time, Banks admitted that he had a prescription for Oxycodone in the driver’s side door pocket, and opened the door to show the pill bottle to the officers. The other officer also observed two loose yellow capsules that appeared to be prescription drug capsules. Banks was arrested for suspicion of Driving Under the Influence, and Knox applied for a warrant to conduct a search of Banks’ truck. ¶4 Knox’s affidavit in support of the search warrant application reiterated the above mentioned facts, but also included Knox’s statement that dispatch had run a criminal background check on Banks while Knox was following him, revealing that Banks had “criminal convictions for Possession of Dangerous Drugs without a Prescription.” The search warrant was granted, and the search revealed 273 grams of marijuana stored in individual sandwich bags, a digital scale, pawn shop receipts, and numerous Western Union wire transfer receipts in the truck. Banks was charged with felony Criminal Possession with Intent to Distribute and Criminal Possession of Drug Paraphernalia, a misdemeanor. He filed a motion to suppress, arguing that the search warrant lacked sufficient probable cause. ¶5 At the evidentiary hearing on the motion, Knox testified that he had been mistaken when stating in his affidavit that Banks had previous drug possession convictions, as later investigation revealed that Banks had only been arrested on those charges, with no formal disposition. The District Court orally denied Banks’ motion to suppress, reasoning that, 4 even after excising the false information regarding the previous convictions, the application still demonstrated probable cause. Banks pled guilty to an amended charge, Criminal Possession of Dangerous Drugs, but reserved his right to appeal the denial of the motion to suppress, and subsequently filed an appeal to this Court. ¶6 “This Court assesses the totality of the circumstances to determine whether a search warrant is based upon probable cause.” Muir v. Bilderback, 2015 MT 180, ¶ 12, 379 Mont. 459, 353 P.3d 473 (citing State v. Barnaby, 2006 MT 203, ¶ 29, 333 Mont. 220, 142 P.3d 809). “Under the totality of the circumstances test, the issuing judicial officer must make a practical, common sense determination, given all the evidence contained in the application for a search warrant, whether a fair probability exists that contraband or evidence of a crime will be found in a particular place.” Barnaby, ¶ 29 (citation omitted). “A determination of probable cause does not require facts sufficient to make a showing of criminal activity, rather, the issuing judicial officer must only determine that there exists a probability of criminal activity. Probable cause must be determined solely from the information contained within the four corners of the search warrant application.” Barnaby, ¶ 30 (citing State v. Rinehart, 262 Mont. 204, 210, 864 P.2d 1219, 1222 (1993)). ¶7 This Court has held that “when the issuance of a search warrant is based in part on illegal information, the reviewing court shall excise the illegally obtained information from the application for search warrant and review the remaining information de novo to determine whether probable cause supported the issuance of a search warrant.” State v. Kuneff, 1998 MT 287, ¶ 19, 291 Mont. 474, 970 P.2d 556. Because the statement of 5 Banks’ previous convictions for criminal possession of dangerous drugs was later found to be untrue, the District Court properly excised that particular statement and reviewed only the remaining information contained in the application and accompanying affidavit. ¶8 In State v. Frasure, 2004 MT 242, ¶ 17, 323 Mont. 1, 97 P.3d 1101, we affirmed a district court’s finding of sufficient probable cause to search a vehicle. We specifically cited facts that supported a finding of adequate probable cause: the defendant’s nervousness and accelerated speech, evidence of drug use found on the defendant’s person, and the officers’ prior knowledge of the defendant’s history with illegal drugs. In the present case, several similar factors exist: Banks had been evasive while interacting with the Idaho patrolman and gave inconsistent answers to Montana law enforcement concerning drugs in the truck, and both Knox and the other officer observed the prescription bottle and pill capsules in the truck. Further, the District Court pointed out that Banks had admitted to smoking marijuana the previous day, and that Banks’ erratic driving behaviors were “consistent with and reasonably authorize an inference that the person had consumed drugs of one sort or another . . . .” The District Court, after excising the false information regarding Banks’ convictions, properly determined that the remaining facts contained in the application for the search warrant supported probable cause. See Kuneff, ¶ 19; Frasure, ¶ 17. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law. We find no clear error in the District Court’s findings, and it correctly applied the applicable law. 6 ¶10 Affirmed. /S/ JIM RICE We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ PATRICIA COTTER

March 15, 2016

5c49d4bc-fba5-464b-addd-b558bc224e16

CROMWELL v CROMWELL

N/A

13711

Montana

Montana Supreme Court

No. 13711 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 CARLEY R. CROMWELL, Petitioner and Appellant, GARDNER CROMWELL, Respondent and Respondent. Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Garlington, Lohn and Robinson, Missoula, Montana Larry Riley argued, Missoula, Montana For Respondent: Mulroney, Delaney, Dalby and Mudd, Missoula, Montana Dexter L. Delaney argued, Missoula, Montana Submitted: September 22, 1977 Filed : M r . Justice Gene B. Daly delivered the Opinion of the Court. Appellant Carley R. Cromwell brought t h i s action t o dissolve her marriage t o Gardner Cromwell, The cause was t r i e d before the Hon. E . Gardner Brownlee, d i s t r i c t judge, Missoula County, who on November 30, 1976, handed down a f i n a l decree, Appellant claimed the right t o receive a portion of the jointly acquired property of the parties, together with attorney fees and support. The court, having heard the evidence, decreed the marriage be dissolved and assets of the parties be divided i n t h i s manner: 1. To the petitioner, Carley Cromwell: a. The family home, together with a l l items of personal property contained therein. b. The parties' interest i n property located i n Hawaii. 2. To the respondent, Gardner Cromwell: a. The retirement and other pension benefits which he had b u i l t up during h i s years as a law professor a t the University of Montana. From t h i s property settlement Carley Cromwell appeals. The only issue on appeal is whether the d i s t r i c t court erred i n i t s property division and maintenance (alimony) award, A d i s t r i c t court has f a r reaching discretion in resolving property divisions, and its judgment w i l l not be altered unless there is a clear abuse of that discretion. Eschenburg v. Eschenburg, Mont . , 557 P.2d 1014, 33 St.Rep. 1198 (1976). I n Roe v. Roe, M o n t . , 556 P.2d 1246, 33 St.Rep. 863, 866 (1976), quoting from Porter v. Porter, 155 Mont. 451, 457, 473 P.2d 538 (1970), t h i s Court stated: "'* * * I n determinirg whether the t r i a l court abused its discretion, the question i s not whether the reviewing court agrees with the t r i a l court, but, rather, did the t r i a l court i n the exercise of its discretion a c t a r b i t r a r i l y without the em- ployment.~£ conscientious judgment o r exceed the bounds of reason, in view of a l l the circumstances, ignoring recognized principles resulting i n sub- s t a n t i a l injustice. "' 33 St.Rep. 866. Section 48-321, R.C.M. 1947, of the Montana Uniform Marriage and Divorce Act, provides in part: 'I* * * the court * * * s h a l l * * * equitably appor- tion between the parties the property and assets belonging t o e i t h e r o r both however and whenever acquired, and whether the t i t l e thereto is in the name of the husband or wife or both. I n making apportionment the court shall consider the duration of the marriage * * * the age, health, station, occupation, amount and sources of income, vocational s k i l l s , employability, estate, l i a b i l i t i e s and the needs of each of the parties * * * and the opportunity of each for future acquisition of capital assets and income. The court s h a l l also consider the contribu- tion o r dissipation of value of the respective estates, and the contribution of a spouse as a home- maker or t o the family unit. * * * the court s h a l l consider those contributions of the other spouse t o the marriage, including the nonmone tary contribution of a homemaker * * *.I1 Section 48-322, R.C.M. 1947, provides the court may grant maintenance t o a spouse i f it finds the spouse seeking mainten- ance : a. Lacks sufficient property t o provide for her reason- able needs, and b. is unable t o support herself through appropriate employment. Section 48-322 further provides the maintenance order s h a l l be i n such amounts and for such periods of time as the court deems just, and the court shall consider a l l relevant factors including: a. The financial resources of the party seeking mainten- ance, including marital property apportioned to her, and her a b i l i t y to meet her needs independently; b. The time necessary to acquire sufficient education or training t o enable the party seeking maintenance to find appropriate employment; c. The standard of living established during the marriage; d. The duration of the marriage; e. The age, and the physical and emotional condition of the spouse seeking maintenance; and f. The a b i l i t y of the spouse from w h o m maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. It is important here to review what transpired a t the d i s t r i c t court level. There had been an agreed property settle- ment submitted to the court. The d i s t r i c t court judge from the beginning told the parties that he did not believe i n alimony. Counsel for Carley Cromwell pointed out to the judge that i n making a reasonable division of the assets, there had to be a recognition that the most valuable asset of the marriage was the job, education and training of Gardner Cromwell. The court replied there was no reason why Carley Cromwell could not use her training as a nurse and went on to state he was not going t o give her the right t o have any money from her husband. Carley Cromwell tried to amend her petition under Rule 34, Montana Rules of Civil Procedure, to increase the amount of alimony which she was asking. I n response t o t h i s attempt t o amend, the judge stated: "I don't know what type of testimony you want t o put in, I have already told you a s a matter of law that I a m not interested i n alimony. I ' m going t o t r y t o adjust it some other way. I f I do make an Order, it w i l l not be alimony, it w i l l be that the Property Settlement Agreement is short by exact number of dollars that the wife should receive from the husband * * *. That' s the way I intend t o do it. N o w apparently you are not satisfied with m y belief on t h i s point so there is going t o be an appeal. I suggest we have the shortest record possible so that you can appeal on whether o r not t h i s interpretation on the law on m y part is proper o r not. I t It is readily apparent from the d i s t r i c t court record that the t r i a l court judge i n h i s exercise of discretion over the property settlement abused h i s discretion when he ignored the mandates contained i n sections 48-321 and 48-322, R.C.M. 1947, and that the record reveals he refused t o con- sider the needs of appellant for some financial assistance during the transition from housewife t o a single person. The judgment of dissolution of marriage is affirmed. The judgment pertaining t o the property settlement of the parties i s reversed and remanded for a proper hearing t o de- termine property division, taking into account the appropriate law. In view of the length of time that Carley Cromell has gone with no support, it is further ordered the d i s t r i c t court hold a hearing on temporary support within a period of 30 days a f t e r remittitur issues and i n the event t h i s has not been done within the time s e t forth, it i s hereby ordered that Carley Cromell s h a l l be awarded the sum of $500 per month a s tem- porary support from date of remittitur and s h a l l continue u n t i l a reasonable amount has been established by the d i s t r i c t court. - 5 - Remittitur shall issue immediately with this Opinion. / u s t ice We Concur: f 1 , I , / . - ' - - i ,/ x: < . * d . Chief Justice

November 1, 1977

4db8b4ff-90f2-4a24-b23e-9e78c39575b9

RAMSEY v DUNCAN BAIER

N/A

13695

Montana

Montana Supreme Court

No. 13695 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 CHRIS W. RAMSEY I Claimant and Respondent, -vs- WILLARD DUNCAN and RONALD G. BAIER, Employer and ARGONAUT NORTHWEST INSURANCE COMPANY, Defendant and Appellant. Appeal from: Workers' Compensation Court Honorable William E . Hunt, Judge presiding. Counsel of Record: For Appellant: Andrew J. Utick argued, Helena, Montana For Respondent : Hoven and Brault, Missoula, Montana Vernon Hoven argued, llissoula, Montana Submitted: September 23, 1977 ~ecided: NOV 10 1 9 ~ Filed: o"Jo\I 'i Q :"- -. . . Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Appellant, a Plan I1 insurer under the Montana Workers' Compensation Act, appeals from an award of indemnity benefits to respondent by the Workers' Compensation Court. The Workers' Compensation Court awarded respondent indemnity benefits in the amount of $60 a week for 180 weeks for a 90 percent permanent partial disability of his right hand. Following denial of its application for rehearing, the Plan I1 insurer appeals to this Court. On June 9, 1975, respondent sustained an injury to his right hand while employed by Trapper Manufacturing Company of Kalispell as a "finish man" in the construction of pickup campers. Respondent's right thumb, index finger and second finger were severed by a table saw while he was apparently trying to free some material that had become jammed in the saw. The injury was promptly reported, a claim was timely filed, appellant as Trapper's insurer accepted liability, and temporary total benefits were commenced. Respondent was initially treated by Dr. G. W . Ingham in Kalispell who referred him to Dr. Gerald Olmsted of Spokane. Dr. Olmsted managed to reimplant respondent's thumb after shortening it approximately 1/2 inch. Attempts to save the other two severed fingers failed. Respondent was treated by Drs. Ingham and Olmsted throughout his healing period. On January 5, 1976, the healing period had ended. By a report dated January 26, 1976, Dr. Olmsted rated respondent's disability as 55 percent as compared to the loss of his entire right hand. Based on Dr. Olmsted's report, appellant made an offer of $6,600 as a lump sum settlement of respondent's claim. This offer was rejected by respondent. Respondent later was evaluated by Dr. Ingham at appel- lant's request. Dr. Ingham rated respondent's disability at 66 percent as compared to the loss of the entire right hand. Based on Dr. Ingham's report, appellant increased its offer of settlement to $7,920. This offer was also rejected by respon- dent who demanded payment for total loss of the hand. The medical ratings of Dr. Olmsted and Dr. Ingham are the only ratings contained in the record. At the close of the hearing before the Workers' Compensation Court both parties stipulated to the medical reports contained in the file and that both parties would rely on them. In the meantime respondent returned to work on July 21, 1976. He did not attempt to return to Trapper Manufacturing because of what he termed "unsafe working conditions". Respon- dent's first job upon returning to work was as an unskilled laborer. At the date of the Workers' Compensation Court hearing, respondent was working as an unskilled laborer for a plywood man- ufacturing firm. His hourly wage was $1.07 higher per hour than his wage at Trapper Manufacturing Company at the time of the accident. Respondent testified that as a result of the accident he has experienced a loss of sensitivity in the reimplanted thumb, and a loss of grip in the entire right hand along with a general loss of manual dexterity. The effect of the accident has been to greatly reduce the number of activities which re- spondent can perform with his right hand and to reduce the speed at which he can perform other activities. In this regard, he testified that he was still able to use some of the hand tools he used in his job at Trapper Manufacturing Company, but that such use would be at such a slow pace as to be unacceptable to a manufacturing concern. The sole issue on appeal is the sufficiency of the evidence to support the Workers' Compensation Court award of 180 weeks of compensation for a 90 percent permanent partial disability to respondent's right hand. The appropriate test to be applied in reviewing Workers' Compensation Court decisions was recently discussed in Skrukrud v. Gallatin Laundry Co., Inc., Mont. , 557 P.2d 278, 280, 33 St. Rep. 1191, 1194 (1976), where we stated: " * * * workers' court decisions will not be overturned if there is substantial evidence to support its findings and conclusions." Appellant urges that error was committed in awarding a 90 percent disability where the only medical impairment ratings were 55 and 66 percent disability. We disagree Many factors in addition to medical impairment ratings may be properly considered by the court in determining a claim- ant's disability. For this reason, impairment ratings do not conclusively establish limits on compensation awards in all cases; rather, such medical impairment ratings by physicians are simply expert opinion evidence constituting but one item of evidence to be considered along with other evidence presented. Brurud v . Judge Moving & Storage Co., Inc., Mont. , 563 P.2d 558, 34 St. Rep. 260 (1977). In this case we hold that the Workers' Compensation Court had sufficient evidence to justify an award of 90 percent perma- nent partial disability on respondent's right hand. Where, as here, an indemnity award is made under section 92-709, R.C.M. 1947 (the specific injury statute) such award is to compensate for possible loss of earning capacity in the future without regard to present earnings. McAlear v. Arthur G. McKee & Co., Mont . , 558 P.2d 1134, 33 St.Rep. 1337 (1976); Jones v. Glacier General Assurance Co., 145 Mont. 326, 400 P.2d 888. In addition to the medical impairment ratings by the doctors, the Workers' Compensation Court had before it: (1) respondent's testimony as to his loss of grip and sensation in his right hand; ( 2 ) respondent's work history as a skilled carpenter prior to the accident and the fact that he is now relegated to unskilled labor; and (3) the doctors' reports concerning respondent's specific medical problems including the damage to his hand and the loss of range of motion of his fingers. The judgment of the Workers' Compensation Court is affirmed. Justice Chief Justice Y Justices

November 10, 1977

949ddd5a-8d82-46e7-8e6a-ff1828df1f72

ARCHER v LaMARCH CREEK RANCH

N/A

13494

Montana

Montana Supreme Court

No. 13494 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 RAMON ARCHER, Plaintiff and Respondent, LarJIARCH CREEK RANCH OF MONTANA., d/b/a Sundance Lodge, Defendant and Appellant, DAVID CHRISTENSEN, Intervenor and Appellant. Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Keller, Judge presiding. Counsel of Record: For Appellant: Greg J. Skakles argued, Anaconda, Montana For Respondent : Hash, Jellison and O'Brien, Kalispell, Montana Kenneth E. O'Brien argued, Kalispell, Montana Submitted: September 21, 1977 M r . J u s t i c e Frank I. Haswell delivered t h e Opinion of t h e Court. David Christensen appeals from t h e denial of h i s motion t o intervene and t h e e n t r y of d e f a u l t judgment a g a i n s t defendant LaMarch Creek Ranch. W e a f f i r m t h e judgment. P l a i n t i f f , Ramon Archer, commenced t h i s a c t i o n f o r fore- closure of a promissory note on March 1 4 , 1973. The complaint alleged t h a t defendant executed and delivered a promissory note t o p l a i n t i f f i n t h e amount of $13,876.98. The complaint f u r t h e r alleged t h a t t h e note w a s p a s t due and no payment had been received. Personal service w a s had on Robert Cope, president of LaMarch Creek Ranch, a Montana corporation. O n J u l y 25, 1973, a motion t o dismiss was submitted on behalf of defendant. The motion was denied and defendant was given twenty days i n which t o f u r t h e r plead. An answer i n t h e form of a general d e n i a l was submitted on March 7, 1974. Four affirmative defenses w e r e contained t h e r e i n . T r i a l was s e t f o r June 23, 1975. A t t h e beginning of t h e t r i a l without jury, counsel f o r defendant made a motion t o i n t e r - vene on behalf of Christensen. A t t h a t time counsel s t a t e d t h a t he w a s no longer representing defendant and t h a t t h e i n t e r v e n e r ' s case would b a s i c a l l y c o n s i s t of t h e four affirmative defenses found i n t h e answer previously f i l e d on behalf of defendant. Counsel f u r t h e r s t a t e d he was without a u t h o r i t y t o appeal i n be- half of defendant. The motion t o intervene was taken under advise- ment and t r i a l w a s had. Christensen was allowed t o introduce both o r a l and documentary evidence concerning t h e four affirmative defenses. O n May 7, 1976, the D i s t r i c t Court entered findings of f a c t , conclusions of law and judgment which denied Christensen's motion t o intervene and entered d e f a u l t a g a i n s t defendant i n t h e amount of $13,876.98 plus c o s t s and attorney fees. The cogent facts leading up to the filing of this action are as follows: On June 30, 1971, a stock purchase agreement was executed wherein plaintiff acquired 100 shares of stock in defendant corporation. The total purchase price was $10,000. Robert Cope, the president of defendant corporation, was listed as the seller. Christensen was also listed as a purchaser of stock and was a signatory to the stock purchase agreement. The purchase agreement provided that if Christensen or plaintiff wished to sell any or all of their stock, the defendant must purchase it. The stock certificates were endorsed to that end. In November, 1972, plaintiff met with Cope in order to discuss the repurchase of his stock by the corporation. There- after, on November 22, Cope, as president of defendant corpor- ation, executed a promissory note to plaintiff in the amount of $13,876.98. This sum was full compensation for the repurchase of plaintiff's stock, back salary and earned interest. The note was payable on or before January 1, 1973; no payments have been made on the note. Christensen apparently learned of the promissory note in January, 1973. At that time he was a stockholder, director and secretary of defendant corporation. Christensen took no action to rescind the note or intervene on behalf of defendant until the day of the district court hearing. Four issues are before this Court on appeal; 1. Whether the District Court erred in denying Chris- tensen's motion to intervene. 2. Whether the District Court erred in entering default judgment against defendant. 3. Whether the affirmative defenses raised by Christensen were effective. 4. Whether the District Court erred in refusing to admit defendant's exhibits A and D and in refusing to allow Chris- tensen to testify concerning the solvency of defendant. Christensen alleges error in the District Court's refusal to allow him to intervene in this matter. We disagree. Chris- tensen's motion to intervene was made for the first time at the beginning of trial. The District Court judge took the motion under advisement and did not rule until all evidence had been presented. Christensen was allowed to fully present his defense. He was given the opportunity to present evidence on each of the four defenses upon which he relied. After hearing all the evi- dence, the judge correctly denied Christensen's motion to inter- vene on the basis of untimeliness. This party cannot claim he was denied the opportunity to be heard. There is no doubt that Christensen was dilatory in his attempt to intervene. He first learned of the note involved herein in January, 1973. The record is barren of any attempt by Christensen to assert his claimed rights until June, 1975. In effect, Christensen sat on his claimed right for some two and one-half years. Under these circumstances it is clear that Christensen, by his failure to act, waived his right to contest the validity of the note and is now estopped from doing so. The notion that one may waive a right by inaction is far from novel in this jurisdiction. In Northwestern Fire and Marine Insurance Co. v. Pollard, 74 Mont. 142, 149, 238 P. 594, it is stated : " * * * waiver is a voluntary relinquishment or renunciation of some right, a foregoing or giving UP of some benefit or advantage, which, but for such waiver, a party would have enjoyed. It may be proved by express declarations * * * or by a course of acts and conduct, or by so neqlectinq and failinq to act, as to induce the belief that it was his intention and purpose to waive." (Emphasis added.) See also Farmers Elevator Company of Reserve v. Anderson, Mont. , 552 P.2d 63, 33 St.Rep. 614. Christensen's second alleged error requires little discussion. Rule 55(a), M.R.Civ.P., governs default judgments and provides in pertinent part: "When a party against whom a judgment for affirm- ative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or other- wise, the clerk shall enter his default." (Emphasis supplied.) The record clearly reflects that defendant failed to appear at trial. Counsel for Christensen, who had previously represented defendant, specifically stated that he was not authorized to appear on behalf of defendant. No one having appeared on behalf of defendant at the trial, the District Court had no alternative but to grant plaintiff's motion for default j udgment . The answer originally filed on behalf of defendant con- tained four affirmative defenses. The affirmative defenses al- leged that: (1) the promissory note was given without sufficient consideration; (2) the repurchase of the stock by means of a promissory note was a violation of the statutory requirement that such purchases be made with "surplus" funds; (3) the repur- chase of stock rendered the corporation insolvent; and (4) the president lacked the authority to execute the promissory note on behalf of the corporation. These defenses substantially comprised Christensen's case and he alleged that these defenses were effec- tive and the court erred in entering judgment against defendant. An analysis of each of the above affirmative defenses convinces us that the District Court ruled correctly. As to the first defense of lack of consideration, we find an abundance of substantial evidence supporting the District Court decision. The rule in this jurisdiction is that a written instrument is pre- sumptive evidence of a good and sufficient consideration and the burden of attacking the sufficiency of such consideration is on the party seeking to invalidate the instrument. Section 13- 510, R.C.M. 1947; Bielenberg v. Higgins, 85 Mont. 69, 227 P. 636. The record herein does not reflect even a scintilla of evidence tending to prove a lack of good and sufficient consid- eration for the note. Christensen, in his second affirmative defense, alleges that the purchase of the stock by use of the promissory note was void as a violation of section 15-2205, R.C.M. 1947. In essence this statute prohibits the use of funds other than "surplus" funds for the repurchase of stock. Christensen concludes that no "surplus" funds were available at the time of the purchase and the transaction is therefore void. The burden of proving an affirmative defense rests on the defendant. Baker National Bank v. Lestar, 153 Mont. 45, 453 P.2d 774. We find absolutely no proof that surplus funds were not available at the time the note was executed. In the absence of such proof in the record, we have no alternative but to deny the defense. For a third affirmative defense, Christensen alleges that the repurchase of the stock occurred at a time when the corpor- ation was insolvent, a violation of section 15-2260, R.C.M. 1947. Insolvency is defined as the " * * * inability of a corporation to pay its debts as they become due in the usual course of its business." Section 15-2202(n), R.C.M. 1947. The district court found that the defendant corporation was not insolvent on the date of the execution of the note. We agree. Again Christensen has not met his burden of proving the affirmative defense and we have no alternative but to deny the defense. Christensen's final affirmative defense concerns his claim that the president lacked the authority to execute the note on behalf of the corporation. Absolutely no evidence is found in the record to support this contention. The note was ad- mitted without objection as to foundation by Christensen's attorney. Hence the final affirmative defense must fail for lack of proof. The final issue concerns the admissibility of certain items of evidence sought to be introduced by Christensen. The first item, Exhibit A, was a copy of the stock purchase agree- ment involved herein. Objection was made on the basis of relevancy and foundation. We have stated that generally " * * * whatever naturally and logically tends to establish a fact in issue is relevant, and that which fails to qualify in this respect is not relevant." 1 Jones on Evidence, 5th Ed., section 151, page 270; Brion v. Brown, 135 Mont. 356, 340 P.2d 539. The record reflects that the repurchase of plaintiff's stock was not made pursuant to the stock purchase agreement. The District Court concluded, and we agree, that the stock purchase agreement was not relevant to establish any fact in issue. The second item of evidence in question was Exhibit D which was an income statement for the period 12/1/72 to 1/31/73. Objec- tion was made on the basis of relevancy by plaintiff. This state- ment showed the defendant corporation operated at a loss during this period. This exhibit was offered by christensen in an attempt to prove that the corporation was insolvent. The District Court correctly ruled that this statement was irrelevant. An income statement, standing alone, does not prove insolvency of a corpor- ation. The final item of evidence was the refusal of the court to allow Christensen to answer the question, "And could you please describe briefly what the financial situation of the corporation was at that time?" A best evidence objection was made and sustained. The corporate records would be t h e b e s t evidence of the f i n a n c i a l condition of the corporation. N o attempt w a s made t o explain t h e absence of these records. The r u l i n g of the D i s t r i c t Court i s therefore c o r r e c t . W e affirm the D i s t r i c t Court judgment i n i t s e n t i r e t y . J u s t i c e Chief ~ u s t i c e /"\

November 10, 1977

fcf81bb9-b4cd-4f77-9090-71f45ca7520d

BOND v ST REGIS PAPER CO

N/A

13639

Montana

Montana Supreme Court

No. 13639 IN THE SUPREP?E COURT OF THE STATE OF MONTANA 1977 LESLIE A . BOND, Claimant and Respondent, -vs- ST. REGIS PAPER COMPANY, Employer, and ST. REGIS PAPER COMPANY, Defendant and Appellant. Appeal from: Workers' Compensation Court, William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Warden, Walterskirchen and Christiansen, Kalispell, Montana Merritt N. Warden argued, Kalispell, Montana For Respondent : Joe Roberts argued, Libby, Montana Submitted: October 6, 1977 Decided : NQV - 4 1977 \I . - 2 -:-- A Filed: Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Employer, St. Regis Paper Company, enrolled under Plan I of the Workers' Compensation Act, appeals from a Workers' Compensation Court award to claimant of temporary total disabil- ity benefits, medical costs and attorney fees. The employer hired claimant in 1973 to perform tasks requiring physical labor. In August, 1975, claimant's left wrist was injured during work. Upon consulting a doctor, claim- ant was advised that he had tendonitis and to rest the wrist for a few days. Following, in October, 1975, the same wrist was again injured during work. X-rays were taken revealing an old, un-united fracture in the left wrist. Claimant was referred to a bone specialist who advised that the wrist needed surgical treatment. Bone grafting was done in November, 1975. Claimant did not return to regular work until June, 1976. In December, 1975 claimant filed a Workers' Compensation claim. The claim was denied by the employer. A hearing was then held before the Workers' Compensation Court and compensation was awarded to claimant. From this award employer appeals. Employer raises this issue on appeal: Was the Workers' Compensation Court justified in adopt- ing conclusions of law to the effect that the claimant's injuries aggravated a pre-existing condition, that claimant was entitled to compensation benefits by reason thereof, that claimant was entitled to payment of medical costs incident to bone grafting procedures for a pre-existing condition, and to attorney fees and costs? Employer argues that the incidents of August and October, 1975, were not of such a nature and severity as to cause injuries to claimant which made the bone grafting necessary or medically advisable. The main question, therefore, is whether any medical evidence exists to support the findings of the trial court that aggravation of a pre-existing injury occurred. Employer contends there was no medical testimony to that effect. The loss of time from work and the medical expenses incurred from the bone graft were not job related, and were not proximately caused by the incidents of August and October, 1975. We disagree. The function of this Court is to determine whether there is substantial evidence to support the findings and conclusions of the Workerst Compensation Court. Flansburg v. Pack River Co., Mont . , 561 P.2d 1329, 34 St.Rep. 183 (1977); Kimball v. Continental Oil Co., Mont . , 550 P.2d 912, 33 St.Rep. 517, (1976). This Court will not substitute its judgment for that of the trial court as to the weight of the evidence on ques- tions of fact. Brurud v. Judge Moving & Storage Co., Inc., Em- ployer and Transportation Insurance Co., Mont . , 563 P.2d 558, 34 St.Rep. 260 (1977). Where there is substantial evidence to support the findings of the Workerst Compensation Court, this Court will not overturn the decision. Skrukrud v. Gallatin Laundry CO., Inc., Mont . , 557 P.2d 278, 33 St.Rep. 1191 (1976). In the case at hand the supporting evidence consists in part of the following: (1) Claimant was hired in 1973 to perform physical labor. From the commencement of employment and continuing for 13 months, claimant worked pulling wet, heavy lumber off the green chain. (2) Claimant was then transferred into the sawmill where he performed a variety of jobs requiring physical labor. While working in the mill, the incidents of August and October, 1975, occurred. Following the incidents claimant consulted medical experts for alleviation of pain in his wrist. (3) Witness, Gary Seybald, testified working alongside claimant for 15 months and that claimant performed his job without difficulty before the incidents. (4) Witness Seybald also testified knowing claimant's activities outside the job. These activities included various physical tasks which were performed without difficulty before the incidents. Following the incidents claimant was not able to handle the same physical labors. (5) Witness Robin Swimley testified claimant neither had problems with work nor complained about his wrist prior to the incident in August, 1975. (6) The summarized testimony of co-workers Haines and Snyder likewise substantiates claimant's job performance. (7) Medical evidence was given by Dr. Nerud that bone grafting was needed. Dr. Nerud stated that it was a definite possibility that the old un-united fracture was aggravated by the incidents at the mill. In the case at hand it is undisputed that claimant had a long standing un-united fracture of the left wrist. There is evidence that claimant performed the physical labors required of him up until the time of the injuries. There is evidence that the incidents of August and October, 1975 caused aggravation to claimant's wrist. It is well established in Montana that an employer takes his employee subject to the employee's physical condition at the time of employment. Birnie v. U.S. Gypsum Co., 134 Mont. 39, 328 P.2d 133 (1958); Peitz v. Industrial Accident Board, 127 Mont. 316, 264 P.2d 709 (1953). An employee who suffers from a pre-existing condition is entitled to compensation if the condition was aggravated by an industrial injury. Rumsey v. Cardinal Petroleum, 166 Mont. 17, 530 P.2d 433 (1975); Weakley v. Cook, 126 Mont. 332, 249 P.2d 926 (1952). While no medical testimony was presented at the hearing held before the Workers' Compensation judge, there were medical reports and opinions contained in the file before the court. It is not an abuse of discretion for the Workers' Compensation judge to consider the contents of the reports. Brurud v. Judge Moving & Storage Co., Inc., supra. Based upon what the Workers Compensation judge had at his disposal, the contents of claimant's file containing medical reports and opinions, the testimony of witnesses and claimant, there was sufficient evidence to support his findings. The order of the Workers' Compensation Court is affirmed. ,- ---7 Chief Justice 1 i We concur:

November 3, 1977

7744d769-ee05-447f-ae41-e042573c3aa4

IN RE MARTEN

N/A

13833

Montana

Montana Supreme Court

No. 13833 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 IN RE: EUGENE H. MARTEN ORIGINAL PROCEEDING: Counsel of Record: For Appellant: William Hutchison argued, Helena, Montana William J. Miele, Miles City, Montana For Respondent : Honorable A. B. Martin argued, District Judge, Miles City, Montana Submitted: June 10, 1977 4 1 t7 1 , Filed: M r . Justice Gene B. Daly delivered the Opinion of the Court: This is an original proceeding by a 17 year old male youth seeking a w r i t of habeas corpus, supervisory control, or other appropriate r e l i e f t o t e s t the legality of pro- ceedings leading t o h i s detention over a weekend in M a y 1977, in the juvenile part of the Custer County j a i l i n Miles City, Montana. The thrust of the youth's petition is that he was unlaw- fully incarcerated i n that: (1) H e was denied the assistance of counsel, and (2) he was incarcerated in j a i l by failure of the Youth Court judge t o follow the statutory procedures and requirements of the Montana Youth Court Act. The principal facts concerning the youth are contained i n the report of Donald P. Wright, youth probation officer of the Sixteenth Judicial ~ i s t r i c t , t o the d i s t r i c t court and s e t out verbatim here: " A t approximately 12:00 Noon, on the 20th day of May, 1977, Gene Marten, a 9outh under the age of eighteen years, was referred to m e charged with being i n possession of stolen property, 94-6-302(3C), of the Revised Code of Montana, 1947 a s amended, by the Rose- bud County Sheriff's Department. 11 Gene is a seventeen year old youth who is living with the Lovells in Forsyth. This home is not a licensed foster home. H i s father, Eugene Marten, whose l a s t 'known residence was in Great Falls, Montana, is unavailable and I have not been able t o contact him t o date. I contacted the Cascade County Probation Office and they were unable t o contact M r . Marten, however, they did talk t o the boy's grandparents, who stated that they believed that M r . Marten had l e f t Great Falls. "Mr. Dan Lovell stated that Gene's father was going t o be coming through the town of Forsyth sometime over t h i s weekend, and that M r . Marten was going t o stop by the Lovell residence while i n Forsyth. 11 Gene Marten was under the supervision of the Children's Services Office i n Rosebud County u n t i l approximately one month ago. Presently, he has no legal guardian i n Forsyth and the whereabouts of h i s father are unknown. "I believe and it is m y opinion that it is i n Gene Marten's best interests t o be held in custody u n t i l such time as a hearing can be held before the District Judge of the 16th Judicial District Youth Court. "At noon today, when Gene was referred to m y office, there was no available space i n the juvenile portion of the Rosebud County j a i l . The county attorney, John Forsyth, and District Judge A . B . Coa te were tied up i n a jury t r i a l and I transported Gene Marten t o Miles City, Montana under the authority of the Montana Youth Court Act, Section 10-1212, t o be placed i n the juvenile portion of the Custer County j a i l pending a petition being f i l e d and a subsequent hearing before the District Youth Court Judge." Following the youth's transfer t o Miles City, the Youth Court judge, the Hon. A.B. Martin, held a hearing, a transcript of which is before t h i s Court. In the middle of t h i s hearing, an attorney from Montana Legal Services appeared and requested the right "to say something". The following is a verbatim transcript of what occurred following the appearance of the Legal Services attorney a t the hearing: "MR. MIELE: Your Honor, i f I could say something please. "THE COURT : Well, I ' m going t o make an order and then 1'11 l e t you say it. "MR. PIIELE: I ' d l i k e t o say it before the order, because I ' m sure i t ' s relevant. "THE COURT : I 'm going to run this and then you can say whatever you want to. N o w you prepare t h i s order, J i m , and it w i l l be t o t h i s effect. "The Honorable Alfred B. Coate, presiding Youth Court Judge of Rosebud County, being elsewhere occupied on judicial business, the written report and sworn testimony of Don Wright, Juvenile Probation Officer of Rosebud County, has submitted t o the undersigned Youth Court Judge of the Sixteenth Judicial District of Miles City, Montana, and it appearing from said report that the -- and the testimony submitted, that "1. There is probable cause t o believe that said juvenile has committed the offense of being i n posses- sion of stolen property. "2. That the parents of said child cannot be reached a t the present time, and that there is no home or institution i n which said youth can temporarily be detained pending further proceedings, "Now Therefore it is Ordered that Donald P. Wright, a Juvenile Officer, may take custody of said juvenile and detain him i n the Custer County j a i l , pending the f i l i n g of a formal petition by the County Attorney of Rosebud County. Such detention not t o exceed five days, and the County Attorney shall forthwith f i l e said formal petition. "It Is Further Ordered, that J. Dennis Corbin, attorney of Miles City, Montana, be appointed a s said youth's attorney, who w i l l as soon as reasonably possible, contact said youth and attend t o the protection of h i s legal rights. "MR. MIELE: May I make a statement on the record? "THE COURT: A l l right. "MR. MIELE: F i r s t of a l l , Gene contacted m y office yesterday i n regard t o the representation of Gene, and I have stated t o him that I would represent him. Second of a l l , i n regard t o the statement that there is no available home, I don't think that i s entirely accurate. W e have a worker here from the Child Abuse Project i n Rosebud County, who could s t a t e that the child has been living i n a family home, that the child has been there for some period of t i m e , and that the person who i s i n charge of that home, is ready, willing and able t o come forward and give assurances i n accordance with RCM 10-1213, that the child w i l l be present i n court on Monday, or whatever time is s e t for the hearing. Another matter which I don't know i f i t ' s legal, but I question the ethics of it, is the fact that I talked t o M r . Wright t h i s morning, or t h i s afternoon and told him that I was looking into the fact that the boy was i n j a i l , and that I would be i n touch with him t h i s afternoon, and that there is a good chance that I would bring a habeas corpus petition before t h i s court to have the boy l e t out, and I just question the ethics of him coming up here without notifying me when he knows that I was representing the boy. "THE COURT: He advised m e that you had talked with him, so I know about that, and I have appointed an attorney for him, and i f you want t o t a l k t o h i s attorney go ahead. "MR. MIELE: Is the Court interested i n hearing any of the testimony that w e can offer? "THE COURT: No, I ' m not. That's it, the order is signed. You prepare that order forthwith and you w i l l see that he gets a copy. "MR. WRIGHT : Yes, Your Honor. "THE COURT: And you make a copy of the minutes and send it over, i f you can, with Don Wright when he returns, and then we'll l e t Judge Coate handle this thing, and I imagine it w i l l be handled Monday. "MR. WRIGHT: Yes, Your Honor. "THE COURT : And i f anyone else wants to appear, we'll l e t Judge Coate handle it. "MR. WRIGHT: Your Honor, the home that the boy has been staying in, is not a licensed foster home, and the same portion of the youth court statute stated by M r . Miele, also states that the boy shall or w i l l be held in a home authorized by the Court, i f there is no parents or guardian present, and this was not a licensed foster home. "MR. MIELE: I might point out 10-1212, where it states that i f the child has no parent, guardian or other person able t o provide supervision and care for him and return him to the court when required, and I don't see any requirement of a licensed home. "THE COURT: Well you seem to overlook the fact that the Juvenile Court and the Juvenile Officers are attending t o the interest of t h i s child, as well a s that of society. Furthermore, the Court has taken the necessary action to protect the legal rights of t h i s boy, and I think that is a l l that is necessary." O n M a y 23, 1977, Montana Legal Services Association filed an original proceeding in this Court for a w r i t of habeas corpus, supervisory control or other appropriate relief accompanied by affidavits of Daniel Lovell, Eugene Herman Marten, the youth involved, Marsha McDede and William J. Miele, the Legal Services attorney, together with a brief in support of the petition. This Court ordered an adversary hearing. Prior to the adversary hearing, Judge Martin filed his response t o the peti- tion which w e set forth verbatim: "The response ordered by the Supreme Court t o the petition for w r i t of habeas corpus or other appropriate r e l i e f f i l e d in the above entitled matter i s herewith submitted in narrative form without argu- ment. What is said is m y recollection of events leading up t o the peremptory order for temporary deten- tion of the youth. "Mr. Donald Wright who is the resident juvenile officer of Rosebud County came t o m y office on Friday afternoon, M a y 20, 1977, explaining that he had a problem which Judge Coate or the County Attorney could not a c t upon because they were presently occupied with a jury t r i a l . To the best of m y recollection M r . Wright gave the following background. he father and mather of the Marten boy had been divorced in Idaho. The father had been awarded custody of the children but had subsequently been deprived by court order of the two younger children because of abuse and neglect. In some manner not clear t o me, Eugene Marten was taken under the wing of a federal agency which M r . Wright referred to as 'Childrens Service.' I had never heard of t h i s agency and was advised that it was a federally funded agency which was being tested i n selected communities throughout the United States . Apparently it duplicates or augments the service pro- vided by the State of Montana for abused and neglected children, but acts independently from the Montana De- partment of Social and Rehabilitation Services. I note from affidavits of petitioner that the o f f i c i a l t i t l e of the agency i s '~osebud County Northern Cheyenne Child Abuse and Neglect Project . ' "The Marten youth was placed in a foster home by the Agency in Forsyth, Montana, but declined t o follow the rules and regulations imposed by that home. Be- cause of the differences he was having with h i s foster parents, he moved into a home of a friend by the name of Dan Lovell. This move was given the a f t e r the fact blessing of the agency. It was during t h i s period of h i s residency that the stolen t i r e s and wheels were found i n h i s possession. M r . Wright, i n m y opinion, rightfully took the position that with the apparent criminal violation, the juvenile probation department should take control of the situation. It was also h i s position that the Lovell home w a s not a licensed foster home and under the circumstances described by him, was not a suitable home for detention of the boy pending further investigation and hearing on the youth's detention. It was t o t h i s home that M r . Miele believed the youth should be returned. "Mr. Wright made an e f f o r t t o contact the youth's father. H e had called the juvenile probation office in Great Falls, who i n turn contacted the youth's grand- parents who did not know where the father was, but believed he had gone 'somewhere east' looking for a job. "With t h i s information I directed M r . Wright t o f i l e a written report stating i n substance what he had related, together with a request t o f i l e a petition alleging juvenile delinquency. H e was then t o return with the youth and give o r a l t e s t i - mony. This was done but during the course of the testimony, M r . Miele came striding into the office with a t r a i n of attendants who stood i n the doorway while M r . Miele gave the appearance of wanting t o interrupt. I said nothing and as M r . Miele lis- tened he started shaking h i s head, pulling h i s beard, turning one direction, then the other, and looking back a t the people behind him whose smiles implied they understood M r . Miele ' s dilemma. " M y i r r i t a t i o n with t h i s display was aggravated by accounts of previous confrontations that M r . Miele had had with the juvenile probation officers. A s related by M r . Butz, M r . Miele, on one occasion stormed uninvited into the juvenile probation off ice and in an imperious manner issued ultimatums as t o what the officers could or could not do. This con- frontation reached the point that they were ready t o bodily eject M r . Miele from the office. "On another occasion M r . Wright was attempting t o explain t o M r . Miele, M r . Wright's handling of a certain juvenile. M r . Miele insolently swung around and s a t with h i s back t o M r . Wright. "I have the greatest confidence in M r . Wright. He is not combative and goes about h i s work i n a quiet and thorough manner. I f M r . Miele would appear as a friend, rather than a dictator, the court and its juvenile officers would respond accordingly. "I observed when the Marten youth appeared that he was a mature 17 year old youth. The juvenile detention quarters of the Custer County J a i l was constructed about three years ago and adequate quarters are available for the detention and supervision of juveniles. After ordering that he be confined, I directed M r . Wright to see that the court appointed counsel was immediately put i n touch with the boy, which I a m advised was prmptly done. "Considering the t o t a l i t y of the circumstances, the court and its juvenile officers acted within the s p i r i t and the l e t t e r of the law." Accompanying the d i s t r i c t court's response was the affidavit of the youth probation officer, with a copy of h i s report t o the court attached. Another affidavit of the youth, together with a copy of Judge Coate's order transferring the case t o Lewis and Clark County was attached. Petitioner s e t s forth two issues for t h i s Court's con- sideration: 1. Did the Youth Court e r r i n denying the assistance of available counsel t o the youth i n the predetention hearing before Judge Martin? 2. Did the Youth Court f a i l t o follow the statutory requirements and procedures of the Montana Youth Court Act i n ordering the prehearing detention of Eugene Marten in the Custer County j a i l ? A t the outset, we are confronted with a contention the issues raised in t h i s proceeding are moot a s the youth i s no longer incarcerated and is living with the Love11 family in Forsyth. While it may be true a w r i t of habeas corpus is no longer available t o t e s t the legality of the youth's confine- ment, the application for supervisory control t o t e s t the legality of the proceedings leading t o such confinement i s by no means moot. To deny review is tantamount t o depriving petitioner of the rfght t o any r e l i e f . In h i s f i r s t issue petitioner alleges the Youth Court erred in denying the assistance of available counsel t o him i n a predetention hearing. H e directs our attention t o one of the express purposes of the Montana Youth Court Act: " (4) t o provide judicial procedures i n which the parties are assured a f a i r hearing and recog- nition and enforcement of their constitutional and statutory rights." Section 10-1202(4), R.C.M. 1947. W e hold the facts of t h i s case do not demonstrate a violation of t h i s statute. I n i t i a l l y , there is considerable doubt as t o the status of William J. Miele, the Legal Services attorney, i n representing the youth a t the time he appeared during the progress of the hearing before the Youth Court judge. The affidavit of the youth probation officer indi- cates that upon taking the youth into custody, the youth stated that he was not represented by counsel i n response t o a question by the youth probation officer. The affidavit of M r . Miele indicates that on the day before the youth was taken into custody, the youth contacted him and asked him t o represent him i f criminal charges were f i l e d against him for possession of stolen property and "I told Eugene that I would do so i f he was unable t o obtain another attorney." (Emphasis added.) It appears from the affidavit of Daniel Love11 that he was the moving force behind securing M r . Miele's services i n representing the youth. While it is true there are other affidavits and statements that indicate M r . Miele was repre- senting the youth, they do no more than create some doubt as t o M r . Miele's status a t the time he entered the hearing then i n progress. Under the facts here, w e hold there was no proven violation of the Montana Youth Court Act. W e perceive no requirement i n the Act that a predetention hearing be held under a l l circum- stances. The Act simply requires the following circumstances t o e x i s t t o authorize detention: "A youth taken into custody s h a l l not be detained prior t o the hearing on the petition except when: h i s detention or care i s required t o protect the person or property of others or of the youth; he may abscond or be removed from the jurisdiction of the court; he has no parent, guardian, o r other person able t o provide supervision and care for him and return him t o the court when required; or an order for h i s detention has been made by the court pursuant t o t h i s act." Section 10-1212, R.C.M. 1947. These requirements were clearly met by information developed from the youth probation officer under oath and h i s written report t o the court followed by an order of the Youth Court for the youth's detention. The second issue for review is whether the Youth Court failed t o follow the statutory procedures and requirements of the Montana Youth Court Act in holding the youth i n detention over the weekend prior t o hearing the charges against him. Petitioner points out the declared purpose of the Youth Court Act is t o retain the youth in a family environment whenever possible, separating the youth from h i s parents only for the welfare of the youth or the safety and protection of the community. Section 10-1202(3), R.C.M. 1947. Petitioner also points out that t h i s Court has heretofore s e t out the following c r i t e r i a for separating a youth from h i s family enviranmnt: (1) necessary for the welfare of the youth, or (2) the safety or protection of the community. I n the Matter of Zip Geary, Mont . , 562 P.2d 821, 34 St.Rep. 218 (1977). I n our view, Geary is distinguishable and inapplicable on the basis that there, unlike here, the youth was being separated from h i s parents. Additionally, here the d i s t r i c t court made an express finding "there i s no home o r institution in which said youth can be temporarily detained pending further proceedings" and the youth probation officer ' s report indicated the youth, i n h i s opinion, might abscond i f not detained. In summary, we are of the opinion the Montana Youth Court Act does not require a judge t o hold a predetention hearing i n every case; that the judge did so here is a matter within h i s discretion. While it can be argued that the Youth Court judge should have listened t o Miele prior t o entry of the order for prehearing detention, it appears that i n view of M r . Miele's questionable status a s the youth's attorney the Youth Court judge was not compelled t o do so. The pre- detention hearing developed a strong factual basis for de- tention of the youth i n the juvenile f a c i l i t y in the Custer County j a i l under section 10-1212, R.C.M. 1947. W e hold the Youth Court judge did not violate the provisions of the Montana Youth Court Act i n ordering detention of the youth under the circumstances involved i n t h i s case. This opinion shall cats:: a declaratory judgment concerning the rights and remedies of the petitioner under the circumstances of t h i s case. W e Concur: - &ie f Jus ti Justices. Mr. Justice Daniel J. Shea dissenting: As an abstract conclusion, I agree with the basic conclusion of the majority that the Youth Court is not required to give a youth a predetention hearing under all circumstances. But I cannot accept this conclusion applying to the facts of this case. In this case the Youth Court did hold a predetention hearing. However, it was devoid of those procedural rights which usually go with a hearing. In essence, all the Youth Court did was accept the affidavit of the probation officer and his testimony concerning the youth and used this as a basis for jailing the youth for a period of not to exceed five days pending further juvenile proceedings. The probation officer was not cross-examined, the youth was denied the right to have anyone testify in his behalf, and he was effectively denied the right to an attorney at the hearing. The effect of this Court's decision is two-fold. First, a Youth Court is not required to hold a hearing. Second, even if a Youth Court does hold a hear- ing, there are no procedural requirements to make it a meaningful hearing. Once the Youth Court judge chose to hold a predetention hearing, he committed himself, I believe, to holding a meaningful hearing. This would include the right of the youth to call wit- nesses in his behalf, to cross-examine witnesses, and to have a lawyer represent him. Concerning the right to an attorney, the majority opinion makes much of the fact that the status of Mr. Miele as the youth's attorney was in doubt. The majority states the youth told the pro- bation officer he did not have an attorney and that attorney Miele himself never directly represented to the court that he represented the Marten youth. If there was doubt, it was doubt caused by the probation officer and the court. The probation officer knew attorney Miele was involved in the case and could well be representing the Marten youth. While still in Forsyth (Rosebud County), attorney Miele called the proba- tion officer and told him he might be filing a habeas corpus petition in an attempt to get the youth released. Shortly thereafter, without notifying the attorney, the probation officer took the youth to Miles City (Custer County) some 45 miles from Forsyth. The probation officer might have had the best of intentions toward the youth in taking him to Miles City, but he should have notified the attorney of his intentions. When the attorney learned that the youth had been taken to Miles City, he was understandably concerned, and he, along with a social worker, immediately drove to Miles City. When they arrived they met an antagonistic judge and probation officer who had no intention of letting the attorney or social worker par- ticipate in the hearing. The record clearly shows the court was not interested in what attorney Miele or the social worker had to say concerning whether the Marten youth could safely be released from custody pending the filing of a juvenile delinquency petition. These peo- ple traveled more than 45 miles, absolutely to no avail. When attorney Miele asked to be heard the least the Youth Court could have done was to stop proceedings to allow a determina- tion of whether attorney Miele was authorized to and did in fact represent the Marten youth. Furthermore, the Youth Court could then also have been informed that the social worker was available to testify to the home situation of the Marten youth and that there was a home where the youth could stay pending further proceedings on a delinquency petition. Concerning the attitude of attorney Miele, this Court relies on the response filed in this Court to the youth's petition for a writ of supervisory control. I fail to see that it has any value in proving that Miele's attitude was wrong. The trial judge's statements in this regard show that any information he had concerning attorney Miele was hearsay evidence related to him through the pro- bation officers. While the record shows that attorney Miele and the probation officers have had previous confrontations, there is no way we can conclude that attorney Miele was in the wrong. Is it possible that the real problem is the attitude not of attorney Miele but that of the Youth Court and probation officer? Could it be that the court and probation officers would allow attorney Miele to represent youths only if he did it their way? In summary I do not feel that this Court should put its stamp of approval on the hearing that was conducted in this case.

November 1, 1977

78574ac2-4c13-48a4-829c-d3f014e6142b

HOLLIDAY LAND LIVESTOCK v PIERCE

N/A

13746

Montana

Montana Supreme Court

November 7, 1977

1d7c935d-ee1a-4747-be45-f55e899fb039

Boushie v. Windsor

2016 MT 172N

DA 15-0776

Montana

Montana Supreme Court

DA 15-0776 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 172N SEAN BOUSHIE, Petitioner and Appellee, v. WILLIAM M. WINDSOR, Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR-14-503 Honorable James A. Haynes, Presiding Judge COUNSEL OF RECORD: For Appellant: William M. Windsor, Self-Represented, Madison, South Dakota For Appellee: Sean M. Boushie, Self-Represented, Missoula, Montana Submitted on Briefs: May 25, 2016 Decided: July 12, 2016 Filed: __________________________________________ Clerk 07/12/2016 Case Number: DA 15-0776 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 William Michael Windsor appeals part of an order from the Fourth Judicial District Court, Missoula County, denying Windsor’s M. R. Civ. P. 60(b) motion to set aside a temporary restraining order against him. We affirm. ¶3 Windsor’s long and tortured history with the Appellee, Sean Boushie, began in 2012 with an online dispute. We chronicled some of Windsor’s activities in Boushie v. Windsor, 2014 MT 153, ¶ 4, 375 Mont. 301, 328 P.3d 631 (2014 Opinion): [I]n 2013, Windsor drove [from] Georgia to Montana, where he sought a [Temporary Order of Protection] against Boushie. In fact, the District Court found that he filed four separate petitions for protective orders against Boushie; and filed approximately six police reports about Boushie over nineteen months. All of the petitions for protective orders were denied and no charges have been pressed related to the police reports. Windsor also repeatedly drove past Boushie’s residence; showed up at Boushie’s workplace at the University of Montana, where he videotaped Boushie’s vehicle . . . [and created a website] where he posted false and defamatory information about Boushie and his wife. Boushie, ¶ 4. We affirmed the District Court’s order upholding the Missoula Municipal Court’s decision to grant Boushie a Temporary Order of Protection (TOP) against Windsor. Boushie, ¶ 17. 3 ¶4 Windsor has since been arrested twice for violating the TOP five times and failing to appear in court. On February 20, 2015, the District Court granted Boushie’s motion to dismiss the TOP, reasoning that a no contact order from Windsor’s criminal proceedings was sufficient to protect Boushie and his wife. On November 12, 2015, Windsor filed a M. R. Civ. P. 60(b) motion to have the TOP declared void or invalid, and to have it set aside—despite Boushie voluntarily dismissing the TOP nine months earlier. On November 16, 2015, the District Court entered an Order Closing File. The Order stated, in part: The Temporary Order of Protection (“TOP”) issued on August 23, 2013 by the Missoula Municipal Court Judge was DISMISSED on February 12, 2015. [Windsor’s Rule 60(b) motion is denied, and] . . . [t]his cause is ORDERED CLOSED. Windsor appeals. ¶5 We review a district court’s denial of a M. R. Civ. P. 60(b)(4) motion de novo. Essex Ins. Co. v. Moose’s Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451. Under M. R. Civ. P. 60(b)(4), a party may move a court to relieve the party from a final judgment, order, or proceeding, if found void. ¶6 Windsor presents five arguments contending that the District Court wrongfully denied his M. R. Civ. P. 60(b)(4) Motion. Boushie refutes Windsor’s arguments and requests this Court to: (1) require Windsor to obtain the signature of a licensed attorney to accompany any of Windsor’s future attempts to file a motion or action; and (2) award Boushie $5,000 in sanctions against Windsor, pursuant to M. R. App. P. 19(5). 4 ¶7 First, Windsor argues that the District Court wrongly determined the case was already closed when he filed his M. R. Civ. P. 60(b) motion on November 12, 2015. The District Court did not determine the case was closed when Windsor filed his motion. The District Court instead pointed out that the TOP—which Windsor was attempting to void—was dismissed on February 12, 2015. The District Court then ordered the case closed in the same order on November 16, 2015. This argument is without merit. ¶8 Second, Windsor argues that the District Court’s “inherent power” obligated it to act on the M. R. Civ. P. 60(b) Motion. However, except for vague citations mentioning “inherent power,” Windsor fails to cite any authority to support his contention that such power obligates a Court to review a TOP that has already been dismissed. This argument is without merit. ¶9 Third, Windsor argues that the District Court’s inaction violates Windsor’s due process rights. Windsor fails to cite any authority or facts in support of this argument other than to generally aver to the U.S. and Montana Constitutions. This argument is without merit. ¶10 Fourth, Windsor argues that the District Court should have considered his M. R. Civ. P. 60(b) motion because the petition for a TOP was dismissed, not the TOP itself. Windsor fails to support this argument with any citation to relevant law or to the record. See M. R. App. P. 12(1)(d) (requiring appellants to cite the portions of the record at which material facts appear); M. R. App. P. 12(1)(g) (requiring appellants to cite the authorities relied on). This argument is without merit. 5 ¶11 Finally, Windsor argues the TOP’s validity is ripe for review because voiding the TOP would directly affect his criminal case regarding his TOP violations. Windsor’s challenge to the TOP in this regard is barred by the doctrine of issue preclusion. Issue preclusion “bars the reopening of an issue that has been litigated and resolved in a prior suit,” Kullick v. Skyline Homeowners Assn., 2003 MT 137, ¶ 18, 316 Mont. 146, 69 P.3d 225, and prevents litigants from “incessantly waging piecemeal, collateral attacks against judgments,” Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281, 130 P.3d 1267. Issue preclusion bars relitigation of an issue if four elements are met: (1) an identical issue was previously raised in prior adjudication; (2) a final judgment on the merits was issued in the prior adjudication; (3) the party against whom issue preclusion is asserted was a party in the prior adjudication; and (4) the party against whom issue preclusion is asserted must have been afforded a full and fair opportunity to litigate any issues which may be barred. Baltrusch, ¶ 18. ¶12 In this case, all four elements of issue preclusion are satisfied. First, the issue of the TOP’s validity was previously adjudicated in Boushie when we held the District Court did not abuse its discretion in affirming the Municipal Court’s grant of the TOP and its conditions. Boushie, ¶ 14. Second, we decided the TOP issue on the merits. Boushie, ¶¶ 11-14. Third, Windsor was a party to the prior adjudication. Finally, the Municipal Court, the District Court, and this Court have provided Windsor with a full and fair opportunity to litigate the legitimacy of the TOP. The TOP’s validity was litigated and resolved in Boushie. In our 2014 Opinion, we explicitly detailed why the TOP was 6 valid. Just because Windsor incurred criminal liability by ignoring that opinion does not provide a basis to relitigate the merits of the TOP now. ¶13 Having dismissed Windsor’s arguments as wholly without merit, we turn to Boushie’s request to determine whether Windsor’s appeal is frivolous or vexatious, and if so, whether it rises to a sanctionable action. M. R. App. P. 19(5) provides this Court authority to award sanctions to a prevailing party in a frivolous or vexatious appeal. M. R. App. P. 19(5) allows this Court to sanction in the form of a “monetary or non-monetary penalty as the supreme court deems proper under the circumstances.” See e.g., Guill v. Guill, 2014 MT 316, 377 Mont. 216, 339 P.3d 81; Hartsoe v. Tucker, 2013 MT 256, 371 Mont. 539, 309 P.3d 39; Grenz v. Fire & Cas. of Conn., 2001 MT 8, 304 Mont. 83, 18 P.3d 994. ¶14 In Guill, we found an ex-husband appellant to be a vexatious litigant. We then awarded the ex-wife appellee her costs and fees, and restricted the ex-husband’s ability to file any case in any Montana court regarding the ex-wife without first obtaining the relevant district court’s approval. Guill, ¶ 21. This was not the ex-husband’s first appeal to this Court, and we stated in the Opinion addressing his previous appeal that “we would tolerate no further efforts by him to delay [his ex-wife’s] receipt of her fair share of the marital estate.” Guill, ¶ 20 (citing Guill v. Guill, 2013 MT 262N, ¶ 8). ¶15 In Hartsoe, we imposed sanctions “tailored to prevent future harassment with frivolous claims” by an appellant who continued to file groundless and burdensome litigation amounting “to an abuse of our court system.” Hartsoe, ¶ 16. The Plaintiff in Hartsoe filed 24 lawsuits, 19 of which were against state government employees. 7 Hartsoe, ¶ 15. Therefore, we tailored the sanction to enjoin him from filing anything in a Montana Court against any current or former judicial officer without the District Court’s approval. Hartsoe, ¶ 17. ¶16 In Grenz, the appellant ignored this Court’s previous Opinion regarding his case, and continued to harass the appellee through litigation in this Court and in the Workers’ Compensation Court. Grenz, ¶¶ 2-5; see also Grenz v. Fire and Cas. of Conn., 260 Mont. 60, 61, 857 P.2d 730, 731 (1993). We sanctioned the appellant $,1000 and enjoined him from filing any further civil appeals in this Court until the sanction was paid. Grenz, ¶18. ¶17 In this case, Windsor not only tried to relitigate the TOP’s validity after it had already been challenged and upheld on appeal, he then appealed the District Court’s ruling to this Court yet again. In our 2014 Opinion, we affirmed the District Court’s decision to declare Windsor a vexatious litigant and impose sanctions because of his “proclivity for filing voluminous lawsuits of questionable merit.” Boushie, ¶ 21. We relied on the District Court’s findings that: Windsor had previously been deemed a vexatious litigant by the U.S. District Court for the Northern District of Georgia and that Windsor ran several websites aimed at harassing and threatening particular individuals, including Boushie. The court further discussed the burden to clerical and judicial resources caused by Windsor’s “voluminous frivolous filings”—the extent and nature of which are easily confirmed from review of the record. Boushie, ¶ 20. Our 2014 Opinion also approved all but one of the District Court’s sanctions for Boushie because the District Court adequately weighed the Motta factors we adopted for district courts. Boushie, ¶¶ 19, 21 (citing Motta v. Granite County 8 Comm’rs, 2013 MT 172, ¶¶ 17, 22, 370 Mont. 469, 304 P.3d 720). Those sanctions included restrictions on Windsor’s access to the courts, in the form of requiring him to seek court approval before filing future lawsuits or administrative proceedings. However, we reversed the District Court’s decision requiring Windsor to post a $50,000 bond for any action he files that named judges or court employees because it was not “sufficiently closely tailored to fit the specific vice encountered.” Boushie, ¶ 21. Windsor had never filed an action naming a judge or court employee. Boushie, ¶ 21. ¶18 We see fit to join the multiple courts classifying Windsor as a vexatious litigant, and so declare him to be a vexatious litigant. Pursuant to M. R. App. P. 19(5) we impose sanctions—consistent with our precedents in Guill, Hartsoe, and Grenz—which are tailored to both penalize Windsor with a monetary fine and restrict Windsor from further abusing Montana courts with his frivolous filings. We order that Windsor shall pay a $1,000 sanction. Windsor shall immediately pay the $1,000 sanction into the Clerk of the District Court, who shall transmit that amount to Boushie. This order shall be enforceable as a judgment against Windsor in the stated amount. ¶19 Furthermore, we order that Windsor shall not initiate any further proceedings regarding Boushie in any Court or administrative body in the State of Montana until Windsor has: (1) obtained the signature of an attorney—actively licensed and in good standing with the State Bar of Montana—attesting that any pleading Windsor seeks to file complies with M. R. Civ. P. 11; and (2) satisfied the monetary sanction imposed herein. Unless Windsor has satisfied both criteria, the Court or administrative body shall summarily reject Windsor’s pleading. 9 ¶20 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court’s interpretation and application of the law were correct, and we affirm its denial of Windsor’s M. R. Civ. P. 60(b) Motion. We declare Windsor a vexatious litigant and impose sanctions as set forth in ¶¶ 18-19. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON

July 12, 2016

6b8bbbbf-b3e6-40d3-a547-4a7aa58a0b11

ST PAUL MERCURY INS CO v JEEP C

N/A

13601

Montana

Montana Supreme Court

No. 13601 IN THE SUPREME COURT OF THE STATE OF MONTANA ST. PAUL MERCURY INSURANCE COMPANY, Plaintiff and Appellant, -vs- JEEP CORPORATION AND AMERICAN MOTORS SALES CORPORATION, Defendants and Respondents. Appeal from: District Court of the Sixth Judicial District, Honorable VJ. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Berg, Angel, Andriolo & Morgan, Bozeman, Montana Gregory 0. Morgan argued, Bozeman, Montana For Respondents: Corette, Smith and Dean, Butte, Montana Dolphy 0 . Pohlman argued, Butte, Montana Submitted: October 4, 1977 Decided : OEC 1 2 1$n Filed: OEC 12 lxv Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff brought this action in District Court as the subrogee of Jack Shanstrom to recover monies paid to its insured for fire damage in the engine compartment of his 1970 Jeep Wagoneer. At the close of plaintiff's case, defendants were granted a directed verdict. Plaintiff appeals. Judge and Mrs. Jack Shanstrom purchased a 1970 Jeep Wagoneer in the fall, 1970. The Jeep was purchased secondhand from Gateway Motors in Livingston, Montana, and had been driven 14,000 to 16,000 miles. Defendants are the manufacturer and dis- tributor of the automobile. On July 16, 1971, a fire occurred in the Jeep while it was being driven by Mrs. Shanstrom. At that time the Shanstroms had owned the Jeep for approximately six months and the vehicle odometer registered 26,342.4 miles. Mrs. Shanstrom testified that the fire occurred while the Jeep was being driven on a high- way west of Livingston. She testified that she became aware of the fire by observing smoke coming through the dash and by seeing the paint bubbling on the hood and smoke coming from the engine compartment. The fire was extinguished by a passerby; no personal injuries were suffered. No evidence of irregularity in the oper- ation of the Jeep was noted prior to the fire. The Jeep was towed directly to Gateway Motors where it had been purchased. At the trial, Me1 Clendenin, the service manager at Gateway Motors, testified as plaintiff's expert witness. Clendenin testified that the fire had destroyed everything under the hood except the actual engine block. He concluded that the fire started at or near the carburetor while the engine was in operation and that gasoline was the fuel for the fire. He further concluded that a spark outside the engine caused the gasoline to ignite. The testimony reflected that the Jeep had been subjected to normal service procedures during the time the Shanstroms owned it, but there was no evidence that any major repairs or modifi- cations had been performed. Mrs. Shanstrom and Clendenin were the only witnesses called by plaintiff at trial. Upon resting of plaintiff's case, defendants made a motion for directed verdict on the basis of appellant's failure of proof. The motion was granted and this appeal followed. The sole issue upon appeal is whether the District Court erred in granting defendants' motion for directed verdict. Appellant's case before the District Court was based up- on three legal theories: (1) Breach of implied warranty of mer- R.C.M. 1947; chantability under section 87A-2-314,7(2) strict liability in tort; and (3) the doctrine of res ipsa loquitur. Plaintiff con- tends that sufficient evidence is present in the record to allow the case to go to the jury on any of the three legal theories. We disagree. On motion for a directed verdict the evidence must be viewed from a standpoint most favorable to plaintiff and every fact must be deemed proved which the evidence tends to prove. No case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence. Solich v. Hale, 150 Mont. 358, 435 P.2d 883 (1967); Teesdale v. Anschutz Drilling Co., 138 Mont. 427, 357 P.2d 4 (1960); Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49 (1935). In reviewing a directed verdict the issue is whether there are only questions of law. LaVelle v. Kenneally, 165 Mont. 418, 529 P.2d (1974). This, however, does not relieve plaintiff of the burden of producing evidence in support of each element essential to its recovery. See Nixon v. Huttinga, 163 Mont. 499, 518 P.2d 263 (1974). The crux of this case is a determination of whether plaintiff's evidence proved all the requisite elements of one or all of its theories of recovery. In Barich v. Ottenstror, Mont . , 550 P.2d 395, 397, 33 St.Rep. 481 (1976), we recently quoted Professor Prosser in Law of Torts 4th ed., S 103, p . 671, and stated: "'The proof required of a plaintiff seeking to recover for injuries from an unsafe product is very largely the same, whether his cause of action rests upon negligence, warranty, or strict lia- bility in tort. "'On any of the three bases of liability, the plaintiff has the initial burden of establish- ing three things. The first is that he has been injured by the product. * * * The second is that the injury occurred because the product was de- fective, unreasonably unsafe. * * * The third is that the defect existed when the product left the hands of the particular defendant.'" We have carefully scrutinized the record in this matter and the conclusion that plaintiff failed to prove his case is inescapable. Plaintiff has not proven that the defect that caused the fire existed when the Jeep left the hands of the defendants. Mr. Clendenin, plaintiff's expert witness, testified on cross- examination as follows: "Q. And if something had not been maintained properly, such as part of the fuel line or this rubber hosing, maybe there was a damage to it, a cut in it, that could have caused this fuel source, and that would have been something not at all in- volved when this Jeep left the hands of the manu- facturer back in Detroit or wherever the Jeep was made, isn't that right? A. If it was physical damage to a line or hose or something, yes. " Q . Just normal wear and tear could possibly cause that? A. That's right." Mr. Clendenin further testified: "Q. Okay, In fact, you don't know, and I don't even know if anyone knows, that the parts that were on this engine at the time of the fire were the orig- inal parts to the Jeep, you don't know that, do you? A. I couldn't tell you that! "Q. But that wrong that we are talking about, you can't say was a defect when it left the hands of either the manufacturer or the seller, that is the American Motors Sales Corporation, can you? A. No, I can't." supra, In Barich v. Ottenstror,/p. 398, we stated: "It is a well established rule in products liability cases that a manufacturer or seller is not liable for product caused injuries in the absence of proof that the instrumentality in question was defective or dangerous at the time the defendant was in posses- sion or control of it, or when such product left defendant's possession and control. Richardson v. Farmers Union Oil Co., 131 Mont. 535, 312 P.2d 134; American Radiator & Standard Sanitary Corp. v. Fix, 200 F.2d 529; Northern v. General Motors Corp., 2 Utah 2d 9, 268 P.2d 981. In Restatement of Torts 2d 5 402A, this concept to strict liability situations appears in Comment g, p. 351: "'The burden of proof that the product was in a defec- tive condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.' "The law does not presume that a product was defec- tive at the time it was under the control of a manu- facturer or distributor, from a mere showing that a product may have been defective at the time of the accident. Maryland Cas. Co. v. Independent Metal Products Co., 8 Cir., 203 F.2d 838." See also, Brandenburger v. Toyota, 162 Mont. 506, 513 P.2d 268. The judgment of the District Court is affirmed. c $ k f $ d f Justicg, 1 ) Justice

December 12, 1977

337e50af-7074-4aca-879a-dd04230ad6c4

State v. C. Johnson

2016 MT 26N

DA 15-0099

Montana

Montana Supreme Court

DA 15-0099 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 26N STATE OF MONTANA, Plaintiff and Appellee, v. CHRISTOPHER R. JOHNSON, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 14-469 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Mac Bloom, Deputy County Attorney, Missoula, Montana Submitted on Briefs: December 30, 2015 Decided: February 2, 2016 Filed: __________________________________________ Clerk February 2 2016 Case Number: DA 15-0099 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Christopher R. Johnson was convicted in the Fourth Judicial District Court of driving while intoxicated (DWI). He challenges the District Court’s jurisdiction and appeals the court’s orders denying his motions to dismiss for lack of a speedy trial and to suppress the evidence of his intoxication. We affirm. ¶3 Missoula County Deputy Sheriff Ross Jessop arrested Johnson on April 17, 2014, for DWI and transported him to the Missoula County Detention Facility (MCDF). Jessop read Johnson the implied consent advisory form and asked him to submit a breath sample. Johnson refused. After more discussion, Jessop asked if Johnson would provide a blood sample and Johnson readily agreed. Jessop took Johnson to St. Patrick’s Hospital where Johnson’s blood was collected. Later that same day, Johnson entered a not guilty plea in the Missoula County Justice Court. Johnson’s blood test results indicated that Johnson’s blood alcohol level at the time of the test was .12. On August 26, 2014, the Justice Court granted Johnson’s motion to suppress evidence of his intoxication, finding that Jessop had not followed proper procedure under § 61-8-402, MCA (the implied consent law). The State appealed the Justice Court’s ruling to the District Court in 3 accordance with § 46-20-103, MCA, seeking a trial de novo. The District Court assumed jurisdiction of the case. ¶4 Johnson filed multiple motions in District Court, including a motion to dismiss for violation of his right to a speedy trial, a motion to suppress the blood test evidence against him, and a motion to dismiss for lack of jurisdiction. The District Court denied all of these motions in December 2014 and January 2015. ¶5 Following a jury trial conducted on February 6, 2015, the jury found Johnson guilty of driving while intoxicated. In addition to various fines, fees, and a requirement to complete ACT class1, the court sentenced him to six months at MCDF, with all but one day suspended. Johnson appeals arguing the District Court lacked jurisdiction to review the case and that the court erred when it denied his motions to dismiss and suppress. ¶6 Johnson first argues that the District Court lacked jurisdiction to accept the State’s appeal from the Justice Court’s suppression order. Relying on State v. Strizich, 286 Mont. 1, 952 P.2d 1365 (1997), he asserts that the Justice Court’s order was an evidentiary ruling rather than an order of suppression and that an order declaring evidence inadmissible is not entitled to de novo review. The State acknowledges that it may not appeal decisions excluding evidence based upon the Rules of Evidence, but asserts that the order in the case at bar is a suppression order that is appealable by the State under § 46-20-103(2)(e), MCA. 1 ACT (Assessment, Course, Treatment) is a program designed to help persons convicted of driving under the influence or while intoxicated. 4 ¶7 Section 46-20-103(2)(e), MCA, provides that the State may appeal from any court order or judgment the substantive effect of which results in suppressing evidence. The District Court noted that Johnson’s “motion to suppress” and supporting brief to the Justice Court did not seek to have the evidence excluded based upon a rule of evidence; rather, it sought to have it suppressed based upon alleged statutory and constitutional violations by law enforcement. The Justice Court agreed with Johnson and granted the motion to suppress, and the District Court on review concluded the order was a suppression order and that it therefore had jurisdiction over the appeal. ¶8 In Strizich, we concluded that an order excluding from evidence the results of a field preliminary alcohol screening test was not a suppression order, but rather was an order ruling the evidence inadmissible under the rules of evidence. In reviewing extra-jurisdictional cases distinguishing between suppression and inadmissibility, we quoted State v. Dwyer, 847 S.W.2d 102 (Mo. Ct. App. 1992): The “suppression” of evidence is not the same thing as the exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained. Strizich, 286 Mont. at 8, 952 P.2d at 1369. See also State v. Willis, 2008 MT 293, ¶ 18, 345 Mont. 402, 192 P.3d 691 (“[O]rders ‘suppressing evidence’ do not include pretrial orders that exclude evidence based on the Rules of Evidence, such as relevancy, probative value, or statutory inadmissibility.”). ¶9 In this case, the Justice Court ordered suppression of the blood test evidence because Jessop failed to properly follow the procedure set out in § 61-8-402, MCA. 5 While the Justice Court erred in interpreting the statute and suppressing the evidence, the order nonetheless constituted a suppression order appealable under § 46-20-103(2)(e), MCA. The District Court did not err in accepting jurisdiction over the appeal. ¶10 Johnson also asserts the District Court erred in denying his motion to dismiss for lack of a speedy trial because the District Court did not bring him to trial for misdemeanor DWI before October 17, 2014, i.e., six months after his April 17, 2014 arrest, in accordance with § 46-13-401(2), MCA. ¶11 Section 46-13-401(2), MCA, provides: After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months. ¶12 We review a district court’s denial of a motion to dismiss misdemeanor charges for violation of the speedy trial statute to determine whether the district court’s interpretation of the statute was correct. State v. Bullock, 272 Mont. 361, 368, 901 P.2d 61, 66 (1995). ¶13 We addressed a similar situation in State v. Sunford, 244 Mont. 411, 796 P.2d 1084 (1990), where we stated “The six-month rule contained in § 46-13-201(2), MCA (renumbered § 46-13-401, MCA, Code Commissioner, 1991), does not apply in circumstances where the defendant is tried in justice court and the judgment is appealed for trial de novo in district court.” Sunford, 244 Mont. at 415, 796 P.2d at 1086. ¶14 We revisited this ruling in Bullock, where we explained that “So long as the justice court jurisdiction is exhausted within six months by some action which authorizes appeal 6 de novo to the district court, § 46-13-401(2), MCA, has been satisfied.” Bullock, 272 Mont. at 369, 901 P.2d at 67. Here, the jurisdiction of the Justice Court was exhausted within 6 months, as that court issued its suppression order approximately four months after Johnson’s arrest. We have determined that the Justice Court’s suppression order authorized an appeal de novo to the District Court. Thus, the misdemeanor speedy trial statute has been satisfied, and Bullock squarely applies. The District Court did not err in denying Johnson’s motion to dismiss for lack of a speedy trial. ¶15 Lastly, Johnson argues that the District Court erred when it denied his motion to suppress the evidence of his intoxication based upon the arresting officer’s failure to comply with § 61-8-402, MCA. ¶16 Johnson maintains that under this statute as soon as he refused to take the breath test Jessop was required to seize his license and was not allowed to ask that he consent to a blood test. The District Court determined that Jessop lawfully exercised discretion in affording Johnson an opportunity to provide a blood test given Johnson’s distrust of the Intoxilyzer. We agree. Section 61-8-402(2)(b), MCA, expressly provides that law enforcement may exercise discretion in determining the test or tests to be administered. As noted by the District Court, there is no language in the statute prohibiting an officer from offering a defendant an alternate method of providing evidence. Section 1-2-101, MCA, expressly provides that “In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. . . .” The District Court did not misinterpret the statute. 7 ¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. In the opinion of the Court, this case presents questions clearly controlled by settled law. ¶18 Affirmed. /S/ PATRICIA COTTER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JIM RICE

February 2, 2016

6db1fc9a-3b00-4e5a-ac74-a1dd603a607d

McGEE v BURLINGTON NORTHERN INC

N/A

13462

Montana

Montana Supreme Court

No. 1 3 4 6 2 IPJ THE SUPREME COURT O F THE STATE O F MONTANA 1977 DONALD R. McGEE, P l a i n t i f f and Respondent, BURLINGTON N O R T H E R N I N C . , a c o r p o r a t i o n , Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Ilonorable N a t A l l e n , Judge p r e s i d i n g . Counsel of Record: For Appellant: Gough, Shanahan, Johnson and Waterman, Helena, Montana C o r d e l l Johnson argued, Helena, Montana For Respondent: Hoyt and Bottomly, Great F a l l s , Montana John C. Hoyt argued, Great F a l l s , Montana Submitted: October 7 , 1977 Decided: NOV 1 5 1 C J n dUV 1 , 5 / / F i l e d : M r , Justice John Conway Harrison delivered the Opinion of the Court : This is the second appeal t o t h i s Court of an action for damages i n i t i a ted by Donald R. McGee against Burlington Northern, Inc,, as a result of injuries sustained i n an accident occurring on November 4, 1971. The f i r s t jury t r i a l resulted i n a verdict for plaintiff McGee i n the amount of $525,000, That verdict was appealed by defendant and t h i s Court held defendant was negligent as a matter of law, but remanded the case for r e t r i a l on the issues of damages and contributory negligence. McGee v. Burlington Northern, Inc., 167 Mont. 485, 540 P. 2d 298 (1975). P l a i n t i f f t s petition for rehearing was denied by t h i s Court on September 12, 1975. P l a i n t i f f t s subsequent petition t o the United States Supreme Court for a w r i t of c e r t i o r a r i was denied. McGee v. Burlington Northern, Inc., 423 U.S. 1074, 96 S.Ct. 857, 47 L ed 2d 83(1976). Retrial of the cause before a jury began April 27, 1976 in the District Court, Cascade County. Following t r i a l , the jury returned a verdict for plaintiff in the amount of $618,000. Judg- ment was entered. Defendant's motion for a new t r i a l was denied. Defendant appeals from the judgment. The facts developed a t r e t r i a l are: O n the evening of November 4 , 1971, p l a i n t i f f was a member of the t r a i n crew engaged in yard switching a t the station of Omak, Washington. Plaintiff was the "swingman" i n charge of carrying out the orders contained i n the switching list. The remainder of the crew was composed of a conductor, an engineer, a flagman responsible for stopping and making f a s t those cats which were switched onto a different t r a c t , and a head brakeman, who operated the switching mechanisms. Just prior t o the accident, the switch engine was on the main line, facing east. A boxcar was coupled i n front of the engine, and a chip car coupled directly t o the front of the boxcar. Plaintiff determined that t o successfully accomplish the switch, it would be necessary to "kick" the chip car upgrade, along the main line. The switch would then be thrown, such that the engine and the boxcar could proceed off the main line and onto the passing track. It was dark, and switching was being accomplished by way of railroad lantern signals. Plaintiff f i r s t gave a "kick" sign to the engineer. A s the engine moved forward, p l a i n t i f f attempted t o pull the lever which would release the coupling mechanism and, when the engine stopped, send the chip car up the main line. The pin i n the coupling mechanism did not pull, so the engine was stopped. Plaintiff then applied some different pressures and was eventually successful i n pulling the pin. The pin, however, did not remain i n the "up" position. During the second attempt t o "kick" the car, p l a i n t i f f was forced t o run alongside the car while holding the lever i n the "up" position. The car was "kicked" along the main l i n e t o a point where the flagman "chopped" the wheels t o prevent it from rolling back down the grade. The engine and boxcar were positioned such that the frontwheels of the boxcar were directly over the switch points. Plaintiff t e s t i f i e d he was unaware of t h i s fact. There is a conflict in the evidence as t o what signal p l a i n t i f f then gave t o the engineer. Plaintiff t e s t i f i e d he gave "a l i t t l e backup sign." The engineer t e s t i f i e d that the next signal he received was a "come ahead" sign. According t o p l a i n t i f f , he then told the head brakeman the engine and boxcar were to be moved onto the passing track, and the brakeman acknowledged verbally. The brakeman failed t o recall the exchange, but was aware the engine and boxcar were t o move onto the passing track. H e could not throw the switch, however, because of the positioning of the front wheels of the boxcar. In any event, plaintiff began walking east along the south side of the main line and called t o the flagman, " W e are going to pull the pass.'' The flagman raised and lowered h i s lantern i n acknowledgement. P l a i n t i f f , interpreting t h i s according t o railroad signal movements a s a "come ahead" signal, relayed it t o the engineer. The flagman was, a t that time, walking down the passing track, out of the sight of the engineer. After relaying the signal, plaintiff was standing along the south side of the main line, facing east, away from the oncoming t r a i n movement, and was studying the switch list b'y the light of h i s lantern. A s he became aware the boxcar was passing him, he was struck from behind by a s t e e l door handle protruding from the side of the boxcar. Plaintiff was forced t o the ground and sustained serious injuries t o h i s back, neck and l e f t knee as a result, There were no direct witnesses t o the accident it- self. Plaintiff has been unable t o work since the accident. Retrial was before the District &urt of Cascade County, the Hon. Nat Allen presiding. Defendant admitted l i a b i l i t y on the case and the t r i a l proceeded on the issues of damages under the Federal Employers Liability Act (FELA) and the Federal Safety Appliance Act (FsAA), and contributory negligence. Following deliberation, the jury returned a verdict for plaintiff i n the amount of $618,000 and judgment was entered thereon. The District Court denied defendant's subsequent motion for a new t r i a l . This appeal followed. The issues presented for review are: 1. Did counsel for plaintiff i n f i n a l argument, i n effect, improperly urge the jury t o assess punitive damages against defendant? 2. Did the t r i a l ' c o u r t e r r in submitting the issue of a FSAA violation t o the jury? 3. Did the t r i a l court e r r in giving and refusing certain instructions? 4 . Did the t r i a l court e r r in permitting p l a i n t i f f t o introduce into evidence, over objection, a surveillance report compiled by defendant? 5. Did the t r i a l court e r r in allowing improper febuttal testimony offered by p l a i n t i f f ? 6. Was the verdict excessive, as a result of passion o r prejudice? Issue 1. Defendant Burlington Northern argues the closing statement of p l a i n t i f f ' s counsel contained statements which, i n effect , were arguments for punitive damages, impermissible under the holding of t h i s Court i n the f i r s t McGee appeal. The jury, it i s maintained, was incensed and prejudiced as a result. The record indicates the remarks complained of were: "* * * H o w can the railroad be encouraged t o do these things right? H o w can they be encouraged not t o allow rules violations? H o w can they be encouraged t o protect t h e i r men? Well, one way is by your verdict i n t h i s case. "The railroad is not cheap when it comes to spending money on such things a s surveillance -- surveillance of one of i t s own employees, that it injured through its own gross and wilful and rotten negligence * * *." Defendant objected, on the ground the argument went t o punitive damages, an impermissible element of damages i n a F E U case, citing as authority the f i r s t McGee opinion. The objection was overruled. Defendant's subsequent motion for a mistrial on t h i s basis was denied. Following the courts ruling, t h i s exchange be- tween the court and defense counsel occurred: "THE COURT: No. The Court thinks you' r e being completely -- you're misconstruing what he said completely. H e never used the word 'punitive' o r any synonym thereof i n h i s argument, did he? "MR. JOHNSON: No, he didn't, Your Honor. ''THE COURT: And the Jury would f a i l t o recognize your motion i f they heard it i n front of the jury as being applicable t o the facts. "Your motion i s denied." This Court recently considered the effect of insertion of the element of punitive damages into the t r i a l of a FELA action. Torchia v. Burlington Northern, Inc . , Mont . 9 568 P.2d 558, 34 St.Rep. 1011 (1977). I n Torchia, we held that offered evidence, argument and instructions relating to punitive damages or the concept of "gross and willful negligence", while having no place i n a F E L A action, were not a ground for reversal, a s the evidence failed t o establish conduct which would have supported an award of punitive damages, and the jury failed t o award them. Upon a review of the instant record, it is clear the element of punitive damages, apart from the possible connotations of counsel's statements s e t forth above, was wholly absent a t the r e t r i a l . This issue we specifically met i n Torchia, adversely t o the defendant's position. H i l l v. Chappel Bros. of Montana,Inc., 93 Mont. 92, 18 P.2d 1106 (1932). Issue 2. Defendant also maintains that the t r i a l court should have granted its motion for a directed verdict on the issue of the alleged F S A A violation. The core of its argument is that there was no showing that the automatic coupler was defective by F S A A standards, o r that there existed a causal relationship between the alleged defect and plaintiff ' s injury, both elements being required under cases interpreting the perti- nent provision of the FSAA, 45 U.S.C. 5 2 . During the course of t r i a l , plaintiff attempted t o show that the automatic coupler mechanism between the boxcar and the chip car was defective, i n that it would not remain uncoupled during normal switching operations. Such failure was alleged to have made necessary the second "kick" and caused the wheels of the boxcar t o come t o r e s t on the switch points, such that the engine proceeded along the wrong track, eventually leading t o p l a i n t i f f ' s injury. Defendant produced a witness i n its case-in-chief, one Orville Busch, who participated in an inspection of the car in- volved i n the accident. H i s duties, as an employee of defendant, were t o inspect and repair freight and passenger cars and deter- mine whether the cars satisfied F S A A standards. Busch t e s t i f i e d that, upon h i s inspection, the coupler worked properly and no portions of the mechanism were bent, broken o r missing. H e concluded the coupler was nondefective and, therefore, did not violate the FSAA. However, upon cross-examination, Busch indicated that where there is no abnormal condition affecting the automatic coupler mechanism, primarily its being under "stress" a t the time of the attempted release, it is a violation of the F S A A i f it f a i l s t o uncouple. Throughout the t r i a l , however, it was emphasized by p l a i n t i f f that the coupler was not under s t r e s s but, rather, under compression, as the cars were being pushed, not pulled, by the engine. The relevant section of the FSAA, 45 W . S . C . 9 2 , provides: "Automatic couplers. It shall be unlawful foy any common carrier engaged i n interstate commerce by railroad t o haul o r permit t o be hauled or used on its line any car used i n moving interstate t r a f f i c not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." The principal p=@se i n the enactment of 45 U.S.C. 42 was t o eliminate the various risks attendant to manual coupling and uncoupling of railroad cars, which required the employees t o go between the ends of the cars. Gentle v. Western & A.R.R., 305 U.S. 654, 59 S.Ct. 252, 83 L ed 424 (1939). The safety require- ments of the a c t have been held t o apply t o uncoupling operations as well a s coupling operations. Louisville & N.R.Co. v. United States, 98 C.C.A. 664, 174 F. 1021 (Ala.1909); Phillips v. Chesapeake & 0. Ry. Co., C.A. Va. 1973, 475 F.2d 22. The duty of the railroad t o provide automatic couplers which both couple and uncouple properly is absolute, without regard t o negligence o r the normal efficiency of the couplers. Affolder v. N e w York C. & St.L.R.Co., 339 U.S. 96, 70 S.Ct. 509, 94 L ed 683 (1950). The fact the coupler functioned properly before o r a f t e r the incident i n question i s immaterial. Carter v. Atlanta & St. A.B .Ry.Co., 338 U.S. 430, 70 S.Ct. 226, 94 L ed 236 (1949) ; Phillips v. Chesapeake & O.Ry. Co., supra. By the weight of authority, an injured employee must, as a prerequisite t o recovery, demonstrate that the violation of the F S A A was a proximate cause of h i s injury. Cobb v. Union Ry. Co., 318 F.2d 33 (C.A. Tenn. 1963), cert.den. 375 u.S. 945, 84 S . C t . 352, 1 1 L ed 2d 275 (1963). Here, p l a i n t i f f ' s testimony clearly indicated the coupling device was nonoperative a t the time of the incident, forcing him t o hold the lever in an "up" position while running along the side of the car. Based upon the cited authority above, t h i s i n i t s e l f was a violation of the FSAA. The fact the coupler appeared non- defective upon inspection by witness Busch is immaterial. Further, it i s evident the coupling mechanism was not under "stress" o r other abnormal condition a t the time of the attempted kick, There- fore, we conclude there was sufficient evidence of a F S A A viola- tion t o submit the issue to the jury. It was also uncontroverted that had the coupler operated correctly, the boxcar bearing the handle which struck p l a i n t i f f would have stopped well short of the switch points upon the f i r s t kick operation. The boxcar would then have proceeded up the passing track, and p l a i n t i f f would have escaped injury, despite the protruding door handle. This, we find was a sufficient showing of proximate cause. The issue of the alleged F S A A violation was therefore properly submitted t o the jury and we refuse t o disturb any findings or conclusions drawn by the jury i n t h i s regard, Issue 3. Defendant argues thatwrious errors allegedly committed by the t r i a l court i n giving and refusing certain in- structions constitute grounds for reversal. W e disagree. Defendant contends the t r i a l court erred in refusing t o give its proposed instruction No. 19 on the ground that it was repeti- tious of courts Instruction No, 18. Defendant ' s proposed ins truc- tion No. 19 reads : "In order for you t o find i n favor of plaintiff McGee on h i s claim of a Safety Applicance Act violation, plaintiff must establish by a preponderance of the evidence not only that there was a violation of the Safety Appliance Act, but also that the violation caused h i s injury i n whole or i n part. I f the injury resulted from some other cause, then you must find for defendant on the Safety Appliance Act feature." Court's Instruction No. 18 states: "You are instructed that plaintiff McGee also claims that defendant railroad violated a law of the United States known a s the Safety Appliance Act as explained t o you more fully i n other instructions. Plaintiff McGee claims that h i s injuries resulted i n whole or i n part from that violation. "Defendant has also denied that it committed any Safety Appliance Act violation. "Defendant also claims that even i f it did violate any of the provisions of the Safety Appliance Act, p l a i n t i f f McGee's injuries did not result in whole o r in part from the violation. "These conflicting claims and denials present issues that you must decide." A s previously stated, recovery for a F S A A violation i s predicated upon a showing of: (1) A violation of the a c t , and (2) injury proximately caused thereby. These elements appear i n both instructions, although phrased differently. When two analogous instructions are, a s here, offered, the trial court is vested with the discretion t o give the instruction representing the best statement of the law t o the jury. Demaree v. Safeway Stores, Inc., 162 Mont. 47, 508 P.2d 570 (1973). Insofar as defendant's offered instruction appears t o l i m i t the concept of "proximate cause" to one of "sole cause'' it was confusing, misleading and an incorrect statement of the law. Such instructions were properly refused. Long v. Byers, 142 Mont. The t r i a l court also refused defendant's proposed instruc- tion No. 2 5 A concerning the impact of income taxes upon the damage award. Defendant aserts i t s proposed instruction was based upon the authority of the recent F E L A case of Burlington Northern Inc. v. Boxberger, 9th C i r . 1975, 529 F.2d 284, and its refusal was error. I n rejecting the instruction, the t r i a l court was i n accord with the majority of decisions on the point. See: Torchia v. Burlington Northern, Inc., supra. W e reaffirm our prior boldin'g_;"- that future income tax l i a b i l i t y i s an improper con- sideration i n formulating an award for loss of future earnings. Bracy v. Great Northern Ry. Co., 136 Mont. 65, 343 P.2d 848 (1959). Defendant further argues the t r i a l court erroneously gave an instruction which constituted a comment on the .evidence, in effect directing the jury t o find for p l a i n t i f f on the issue of the F S A A violation. The instruction in question, given as Court's Instruction No. 20 states: "The Safety Appliance Act imposes an absolute duty, not based on negligence, upon the railroad to provide its cars with an uncoupling device which operates e f f i - ciently a t the time of the accident. I f you should find from the evidence that plaintiff operated the uncoupling device i n the usually accepted and customary manner and the uncoupler failed t o immediately respond i n an e f f i - cient manner, the railroad was i n violation of the Safety Appliance Act. It is no defense that the railroad had no knowledge of a particular defect i n the uncoupling device a s the railroad i s charged with knowledge of the defect a s though it actually had it. It i s immaterial that no defect was found i n the uncoupling device. "It is immaterial that the uncoupler functioned properly before o r a f t e r the accident. "If you should find that the railroad violated the Safety Appliance Act, then you may not reduce p l a i n t i f f ' s damages on account of any contributory negligence on the part of p l a i n t i f f . "Should you find a violation of the Safety Appliance Act, the only further question insofar a s the Safety Appliance Act i s concerned is did the violation play any part, no matter how small, i n producing the injury." Defendant's objection t o t h i s instruction is without merit. The instruction i s a correct restatement of a l l relevant rules emerging from accepted case authorities. Plaintiff submitted t o the jury evidence tending t o prove an actionable F S A A violation and was entitled t o an instruction adaptable t o h i s theory of the case. Williams v. Montana National Bank of Bozeman, 167 Mont. 24, 534 P.2d 1247 (1975); Meinecke v. Skaggs, 123 Mont. 308, 213 P.2d 237 (1949). The t r i a l court also gave, as Court's Instruction No. 4, an instruction concerning p l a i n t i f f ' s use of ordinary care t o avoid known dangerous conditions tortiously created by defendant. Defendant argues the instruction is an incorrect statement of the law, confusing, and inapplicable t o the facts of the case. The instruction refers t o contributory negligence, poten- t i a l l y a t issue i n the instant case. Plaintiff steadfastly maintained h i s absolute lack of f a u l t i n bringing about the injury. The instruction is i n accord with the theory a s advanced by p l a i n t i f f . The giving of such instruction is not reversible error, absent a showing that the jury was misled by it. O'Brien v. Great Northern Ry. Co., 145 Mont. 13, 400 P.2d 634 (1965). Issue 4. During p l a i n t i f f ' s case, the t r i a l court permitted introduction, over objection, of the body of a surveillance report compiled by defendant's claims department. The report had been properly discovered and was considered by p l a i n t i f f t o be helpful t o h i s case. Defendant had, i n advance of t r i a l , sought a motion in limine t o prevent introduction of the report. The motion was denied. Defendant now puts forward t h i s permitted introduction a s error. Defendant maintains the sole purpose for the report is its use f o r possible impeachment of a p l a i n t i f f ' s t r i a l testimony concerning h i s injuries, i n a personal injury o r related action. Defendant urges the report i n t h i s case, containing no potential impeachment material, should hot have been admitted into evidence. W e cannot sustain such a position. - 12 - Certainly, an essential issue of p l a i n t i f f ' s case was whether he was injured and, i f so, t o what extent. Here, t h a t de- fendant engaged in surveillance, a common practice i n similar actions, indicates that defendant hoped t o demonstrate the contrary. Evidence may be both relevant and irrelevant, depending upon the purpose for which it is offered, and the f a c t o r facts it is t o prove. Here, plaintiff offered the surveillance report, properly discovered, a s proof of the fact and extent of h i s injuries. Section 93-401-27, R.C.M. 1947, provides, i n part: 'I* * * evidence may be given upon a t r i a l of the following facts : "1. The precise fact i n dispute. "15. Any other facts from which the facts i n issue are presumed o r are logically inferable. "16. Such facts as serve t o show the credibility of a witness * * *.I1 The report was clearly relevant t o p l a i n t i f f ' s proof of injuries under subsections 1 and 15, section 93-401-27. W e find it was admissible, t o the same extent it would have been admissible had the results been favorable t o defendant and the report offered t o impeach p l a i n t i f f ' s credibility under subsection 16, section 93-401-27. Issue 5. Defendant next contends the t r i a l court erroneously permitted improper rebuttal testimony by p l a i n t i f f ' s witness i n the f i e l d of economics. Counsel for defendant was permitted, by stipulation, t o read into the record during the course of defendant's case, figures concerning the average income tax t o which p l a i n t i f f ' s annual income would be subject. O n rebuttal, p l a i n t i f f was allowed t o introduce testimony from an economics expert regarding the impact of income taxes. Counsel for p l a i n t i f f was permitted, over objection, t o question the witness concerning the future earnings of a hypothetical railroad employee i n the position of p l a i n t i f f , for purposes of foundation. Plaintiff had not introduced similar testimony i n h i s case-in-chief. Defendant's argument i n t h i s regard is that, having limited its testimony t o matters involving the effect of income taxation alone, p l a i n t i f f ' s rebuttal testimony should have been restricted t o rebutting some portion of defendant's offered evidence. It i s argued the permitted testimony f a r exceeded the scope of the direct testimony introduced by defendant. Admission of rebuttal evidence is a matter resting largely within the discretion of the t r i a l court. Only when it is shown that such discretion has been abused, w i l l the decision be reviewed. State Highway Commission v. Ostwalt, 153 Mont. 83, 454 P.2d 605 (1969); Morrison v. City of Butte, 150 Mont. 106, 431 P.2d 79 (1967). The generally accepted test for determining whether certain rebuttal evidence i s proper is whether it tends t o counteract new matters offered by the adverse party. Gustafson v. Northern Pacific Ry. Co., 137 Mont. 154, 351 P. 2d 212 (1960). Here the subject of the e f f e c t of income taxation upon p l a i n t i f f ' s earning capacity was f i r s t developed by defendant, during the course of its case. W e hold the subject of p l a i n t i f f ' s earnings and potential tax l i a b i l i t y was sufficiently "opened up" and that the testimony offered by p l a i n t i f f on rebuttal was proper. W e find no abuse of discretion on the part of the t r i a l court in admitting such testimony. Issue 6. Finally, defendant contends the verdict should be overturned by t h i s Court as being excessive, resulting from passion o r prejudice. It i s submitted the cumulative effect of the numerous alleged t r i a l errors engendered an atomosphere of prejudice against defendant and, further, there i s no credible evidence i n the record t o support a verdict as large a s $618,000. The proper standard for determining whether the evidence presented by a plaintiff i n a F E L A action is sufficient t o support a verdict is set forth in Torchia v. Burlington Northern, Inc., supra, quoted from Lavender v. Kurn, 327 U.S. 645, 66 S. C t . 740, 90 L ed 916,923 (1946): ' I ' * * * Only where there is a complete absence of probative facts t o support the conclusion reached does a reversible error appear. But where * * * there is an evidentiary basis for the jury's verdict, the jury is free t o discard o r disbelieve whatever facts are inconsistent with its conclusion. And the appellate court' s function is exhaus ted when that evidentiary basis becomes apparent * * *. '" 34 St.Rep. 1016; 568 P.2d 563. The FEU standard outlined above is no less applicable t o F S A A actions o r a combined action under both acts, as here. W e have, i n t h i s opinion, determined there was sufficient admissible evidence of a F S A A violation and resulting damage for submission of the issue t o the jury. P l a i n t i f f ' s evidence of the F E L A violation was uncontradicted a s was h i s evidence concerning the various items of damage, including pain and suffering. None of the damage figures so introduced were con- tested by defendant during the t r i a l . W e can discern no basis on defendant's f i n a l issue t o disturb the verdict of the jury. The judgment entered upon t -,verdict i s affirmed. t , ,\\ W e Concur: Hon. u a m e s Sorte, District Judge, s i t t i n g ~ O L M ~ . Chief Justice Paul G. Hatfield.

November 15, 1977

12fb7bfa-8ab9-4e88-9e64-1f42bdd89acd

JOHNSON v SULLIVAN

N/A

13659

Montana

Montana Supreme Court

No. 13659 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 SANDRA S. JOHNSON, Plaintiff and Appellant, -vs- ROBERT E. SULLIVAN et al., Defendants and Respondents. Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding Counsel of Record: For Appellant: William George Harris argued, Missoula, Montana For Respondents: George L. Mitchell argued, Missoula, Montana Submitted: June 22, 1977 Decided : ?.!riv 1 6 1977 f - i Filed: ' - . Clerk Mr. Justice Daniel J. Shea delivered the Opinion of the Court. plaintiff Sandra S. Johnson appeals from a judgment of the ~istrict Court, Missoula County, upholding her exclusion from the School of Law of the University of Montana for failure to meet academic standards. By her action plaintiff sought readmission to the law school, the removal from her academic record of a grade of F received in a Constitutional Law course, and to have her cumulative grade point average computed without regard to this failing grade. Defendants, hereinafter referred to as the University are: Robert E. Sullivan, Dean of the School of Law of the University of Montana; Richard C. Bowers, President of the University of Montana; and Lawrence K. Pettit, Commissioner of Higher Education of the State of Montana. Following trial of the cause without a jury, the District Court entered judgment denying the relief sought and rescinding a restraining order and injunction pendente lite under which plaintiff had been permitted to attend classes. Plaintiff entered the University of Montana School of Law in the fall of 1973, and successfully completed her first two semesters of study. She received a grade of F in the Constitutional Law course and grades of D in two other courses taken during her third semester, and consequently, was deficient by eleven grade points at the end of that semester. Plaintiff was excluded from the law school under the applicable exclusionary rule which provides that students with a deficiency of six or more grade points at the end of their third semester are not allowed to continue their law studies. Plaintiff's second petition for readmission subsequent to that exclu- sion was granted by the law school faculty, and she returned for the next academic year. At the end of that year, her academic performance was deficient by eight grade points. plaintiff was excluded again, in this instance for failure to meet the law school requirement that a student have a cumulative grade point average of 2.0, which is a zero grade point deficiency, at the completion of the fourth semester. Plaintiff again petitioned for readmission. The petition was denied. She then brought this action and obtained a restraining order and injunction pendente lite permitting her to attend third- year classes. Following entry of judgment against her in the District Court, plaintiff appealed and obtained a stay of judgment and a res- toration of the injunction pending determination of the merits on appeal. The central issue on appeal is whether the practices, poli- cies, rules and procedures under which the fitness of a student to continue the study of law is appraised, as applied to plaintiff, violate Constitutional requirements of due process and equal protec- tion and section 93-2002, R.C.M. 1947. Plaintiff's argument with respect to this issue is based on her contention that the method by which the University computed her cumulative grade point average is unfair and unreasonable. The University computes a student's cumulative grade point average by dividing the number of grade points earned by the number of credits undertaken. For the purpose of this determination, four grade points are assigned for each credit of A, three grade points for each credit of B, two grade points for each credit of C, one grade point for each credit of D, and zero grade points for each credit of F. Under the general University rule, the last grade received in a repeated course replaces the prior grade. If a student repeats a course for which he or she initially received a grade of F, the student's cumulative grade point average reflects only the last grade earned; the failing grade is not applied to the computation of the student's cumulative grade point average. In the School of Law, however, a student's cumulative grade point average is computed on the basis of all courses for which a student has registered and received a grade. If a grade of F is received in a law school course and the course is repeated, both the initial F and the last grade received are included in the computation of the student's cumulative grade point average. In effect, the law school averages both grades received in a repeated course, while other schools and departments of the University generally do not. Plaintiff received her failing grade in Constitutional Law, a course required for graduation from the School of Law. By law school regulation, she therefore was required to repeat the course. In the repeated course, as in all courses taken during the academic year following her readmission, plaintiff received a passing grade. Her cumulative grade point average, however, remained below the 2.0 required of law students at the end of their fourth semester. This deficiency can be attributed to the continuing application of the failing grade to plaintiff's cumulative grade point average. Plaintiff first contends this method of computing a student's cumulative grade point average, as applied to her, violates due pro- cess requirements and denies a fair and equal application of the academic requirements for graduation. The test for determining whether due process requirements are met was set forth by this Court in Milk Control Board v. Rehberg, 141 Mont. 149, 155, 376 P.2d 508 (1962). Quoting the United States Supreme Court in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469 (1934), this Court stated: " * * * '[Tlhe guaranty of due process * * * demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.' * * * " In the present case, the question is whether it is unreasonable, arbitrary, or capricious for the University to include both grades received for a repeated course in its computation of a law student's cumulative grade point average. Resolution of this question turns on the relation between that method of computation and the objectives the University has in determining a grade point average. The immediate objective of any method of computing a grade point average is to provide an accurate, easily understood measure of academic performance. As it relates to the law school's exclu- sionary rule, a student's grade point average is used as an indication of his or her presumed fitness to continue the study of law. If a student's grade point average falls below a set standard, University rules authorize the law school to exclude the student from further study . Because of this state's "diploma privilege", graduates of the School of Law may be admitted to practice on motion; they are not necessarily required to take and pass the state's bar examination. Graduation from the School of Law, therefore, virtually guarantees admission to practice. Ultimately, then, the object of measuring aca- demic performance and allowing or precluding a law student's continued study on the basis of that performance is to assure that graduates of the School of Law are qualified to enter practice. The University argues that its method of computing law stu- dents' cumulative grade point averages is reasonably related to the objectives of determining first, academic competence, and ultimately, in light of the "diploma privilege", the probability of professional competance. At the trial of the present case, Robert E. Sullivan, Dean of the School of Law, testified the rule requiring the applica- tion of both grades received for a repeated course "goes to the determination of a capacity and capability of a person to become a lawyer." He also testified that the law school faculty, in promul- gating this rule, considered that a repeater would have the benefit of having taken the course before, and would have a competitive ad- vantage over students taking the course for the first time. It was the law school faculty's judgment that capacity in a repeated course would be more accurately reflected by an averaging of the grades received than by disregarding the first grade. Plaintiff concedes that the School of Law is responsible for ensuring that its graduates are qualified and competent to serve the courts and people of this state. She contends the rule by which both grades received in a repeated course were applied in the computation of her cumulative grade point average bears no reasonable relation to the law school's goal of meeting this responsibility. Plaintiff asserts that she has established competence in Constitutional Law by receiving a grade of C for the course in her second attempt. She argues that only the passing grade should be treated as indicative of her competence in Constitutional Law. This argument is based for the most part on plaintiff's interpretation of the effect of the law school's acceptance of her second petition for readmission following her first exclusion. The law school rule on readmission at that time stated: "A student excluded on the basis of substandard academic performance shall not be readmitted, except in extraordinary cases when satisfactory showing is made to the faculty, by written petition, that the substandard performance was the result of unusual circumstances beyond the control of the student, that such circumstances no longer exist, and that the student has the capability and desire to perform satisfactory work." The "unusual circumstances" that existed during the semester in which plaintiff received the failing grade were complications due to pregnancy. These circumstances were detailed in plaintiff's successful petition for readmission. Plaintiff argues that by granting that petition, the law school faculty impliedly found the failing grade to be invalid. The University contends the granting of a petition for re- admission does not have this effect. Facts adduced at trial indicate the law school faculty has no means by which they can determine whether circumstances alleged in such a petition actually existed or whether the student's substandard performance was related to those circum- stances. Taking the petition at face value, and examining the aca- demic record of the student, the law school faculty decides by ma- jority vote simply whether the student merits another opportunity. Plaintiff would have this Court declare the first grade she received in Constitutional Law is invalid and the University, there- fore, should be precluded, on due process grounds, from using that first grade in the measurement of her academic compete-nce. This we decline to do. In Connelly v. University of Vermont and State Agricultural College, 244 F.Supp. 156 (D. Vermont 1965), a third year medical student alleged he had been arbitrarily given a failing grade in a required course in an action seeking readmission following his dis- missal for academic deficiency. The court held that the question of the arbitrariness of the university's action was a factual determina- tion, and accordingly denied the university's motion to dismiss. In language relevant to the present case, at 160 of 244 F.Supp., that court discussed the boundaries of such a claim: "The effect of these decisions [concerning student dismissals for failure to attain a proper standard of scholarship] is to give the school authorities absolute discretion in determining whether a student has been delinquent in his studies, and to place the burden on the student of showing that his dismissal was motivated by arbitrariness, capriciousness, or bad faith. The reason for this rule is that in matters of scholarship, the school authorities are uniquely qualified by training and experience to judge the qualifications of a student, and efficiency of instruction depends in no small degree upon the school faculty's freedom from interference from other noneducational tribunals. It is only when the school authorities abuse this discretion that a court may interfere with their decision to dismiss a student." (Bracketed material added.) There is no dispute that plaintiff was apprised of the rule requiring the inclusion of the first grade received for a repeated course in the computation of her cumulative grade point average. The applicable general University catalog and law school bulletin explic- itly provide that the first grade received in a repeated course re- mains on the student's record "for all purposes". There is also no dispute that the University applied this method in its computations of the cumulative grade point averages of all students in the School of Law. Plaintiff has shown neither arbitrary action on the part of the University with respect to its promulgation of the rule itself nor arbitrariness in the University's application of the rule in its measurement of her academic performance. This state's "diploma privilege" does not divest the Univer- sity of its discretion to set standards for the measurement of aca- demic competence. Absent a showing that these standards were arbi- trarily or capriciously set or applied, this Court will not find them to be unrelated to the ultimate object of ensuring that graduates of the School of Law are qualified to enter practice. Plaintiff next contends the differing methods used by the University in computing cumulative grade point averages of law stu- dents and students in other disciplines reflect a classification that violates equal protection guarantees. Clearly, a law student is treated differently than other University students in this respect; the University does not dispute the effect of the differing rules is to classify students according to their field of study. However, the existence of a classification does not of itself constitute a denial of equal protection. Great Falls Nat. Bank v. McCormick, 152 Mont. 319, 323, 448 P.2d 991 (1968). When, as in the present case, the classification is neither based on a "suspect criterion" such as race, wealth, nationality, or alienage, nor affects a "fundamental right" such as the right to vote, the right of interstate travel, or the right to freedom of speech, the 'rational basis" test is applied to determine its con- stitutionality. In Montana Land Title Assoc. v. First American Title, 167 Mont. 471, 475, 476, 539 P.2d 711 (1975), this Court stated: " * * * While reasonable classification is permitted without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the things in re- spect to which such classification is imposed; such classification cannot be arbitrarily made without any substantial basis. * * *" As the Supreme Court of Washington stated in DeFunis v. Odegaard, 82 " * * * the question is whether the classification is reasonably related to a legitimate public purpose. And, in applying this 'rational basis' test, ' [A] discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)." There are many practical differences between the School of Law and other schools and departments of the University; for example, instruction methods and examination procedures differ, as do atten- dance policies and requirements for class preparation. The different methods used in the computation of cumulative grade point averages of law students is not the only dissimilarity which reflects the distinction between law students and students in other graduate or undergraduate areas of study. It is not unreasonable to classify students in this manner. The study of law is substantively different from the study of English, or forestry, or pharmacy. The use of different methods to measure academic performance among the various schools and departments of the University indicates this difference has been recognized. There is no classification of students within the law school with respect to the computation of their cumulative grade point averages; all law students who repeat a course have the first grade received in that course included in the computation. There is no denial of equal protection in measuring the academic performance of law students by a method that is not employed by other schools and departments of the University. Plaintiff's final contention is that even if the University's method of computing her cumulative grade point average is found to be valid, and her academic record accordingly is unchanged, it was arbitrary and capricious for the law school faculty to deny her peti- tion for readmission. Plaintiff does not challenge the exclusionary standard, which provides that law students must have a 2.0 cumulative grade point average at the completion of their fourthsemester. She asserts that she should have been readmitted despite her failure to meet this standard. Plaintiff argues that since other students with an academic deficiency have been readmitted, her exclusion on that basis is unfair. Certainly, not all petitions for readmission are granted. Plaintiff does not argue that the law school faculty should be required to either grant or deny all such petitions. She neither presented nor offered any proof that would tend to show her petition was not given the same consideration that is given to the petitions of other students similarly excluded. Absent any showing of discriminatory or arbitrary treatment by the faculty in their review of her petition for readmission, we must conclude that her contention is groundless and her petition was properly denied. For the reasons set forth above, the judgment of the District Court is affirmed. Chief Justice A

November 16, 1977

fee9c660-72e8-4f12-841a-0eef5cbcb781

SIKORSKI v OLIN ROLIN MFG INC

N/A

13378

Montana

Montana Supreme Court

No. 13378 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 EDWARD R e SIKORSKI, Plaintiff and Respondent, RAY OLIN and ROLIN MFG., INC., Defendants and Appellants. Appeal from: District Court of the Sixteenth Judicial District, Honorable Alfred B. Coate, Judge presiding. Counsel of Record: For Appellants: Denzil R . Young argued, Baker, Montana For Respondent: Gene Huntley argued, Baker, Montana Submitted: May 6, 1977 Decided: f F,' ! $ . [ Filed: -. i : * LI"' ' \ - Clerk M r . Justice Daniel J. Shea delivered the Opinion of the Court. Defendants Ray Olin and Rolin Mfg.,Inc. appeal from a Fallon County jury verdict and judgment i n favor of p l a i n t i f f Edward R. Sikorski, i n the amount of $10,000 for breach of a sales representative .contract. Edward Sikorski f i l e d s u i t against Ray Olin as the manager of Rolin Mfg.,Inc. alleging a breach of contract. Defendants answered by admitting the existence of a contractual relationship but denying any l i a b i l i t y for a breach. Discovery consisted of Sikorski' s deposition of Olin and interrogatories answered by Sikorski. O n the day of t r i a l , the t r i a l court allowed Sikorski to amend one answer t o the interrogatories t o reflect the f u l l extent of the asserted agreement. Following t r i a l , the jury returned a verdict for $10,000 in favor of Sikorski and against Olin and Rolin Mfg., Inc. (hereinafter referred t o as Olin and Rolin or Olin). Olin and Rolin appeal. This Court on appeal i s asked t o consider numerous ques- tions regarding the t r i a l of t h i s matter. In substance, these questions constitute but two arguable issues: (1) Whether the d i s t r i c t court erred i n permitting Sikorski t o amend the previously answered interrogatories, and (2) Whether the evidence offered by Sikorskiwas sufficient t o support the jury's award of $10,000 damages. The facts are: Sikorski alleged in h i s complaint and provided evidence a t t r i a l that in January 1971, Olin and Rolin agreed Sikorski would become a sales representative for Rolin in the sale of machinery and equipment produced by Rolin. Sikorski maintained the contract was t o extend for one year and he was to receive a s compensation therefor 7% of dealer costs f o r a l l s a l e s up t o $60,000 and 8% f o r a l l sales exceeding t h a t amount. A t t r i a l , Sikorski t e s t i f i e d he was t o receive a 5% commission on improvements he might make, based on wholesale prices of the improved equipment. Sikorski alleged f u l l performance on h i s p a r t , consisting of numerous demonstrations of the machinery and arrangements f o r dealer distribution. He t e s t i f i e d t h a t over a period of four months, he spent approximately 75% of h i s time i n performing under the agreement. Sikorski's testimony a t t r i a l t h a t he should have received $3,750 f o r h i s e f f o r t s i n t h i s regard was received without objection. Also, received without objection, was proof t h a t Sikorski had devised improvements for c e r t a i n functions of the machinery and he should have realized therefrom a $2,000 commission. He t e s t i f i e d had he been allowed t o per- form, he would have realized an estimated $4,800 i n commissions by the end of the f i r s t year. This, too, was received without objection. I n support of the estimate, Sikorski offered uncontroverted testimony he arranged f o r the s a l e of a large amount of equipment, which Rolin refused t o deliver. Sikorski argued he was never i n f a c t "terminakd" a s s a l e s representative by Rolin but rather t h a t he himself ceased performance i n June 1971, when Rolin refused t o deliver requested machinery and delegated h i s sales t e r r i t o r y t o another agent. Rolin, on the other hand, contended the terms of the contract were those embodied i n a l e t t e r sent by Olin t o Sikorski, received by Sikorski i n March 1971. The l e t t e r purported t o l i m i t the length of the contract t o three months, subject t o extension t o one year. Under i t s terms, Sikorski was t o receive a 7% com- mission on sales up t o $60,000 and 8% for amounts i n excess of $60,000. It was Olin' and4 Rolihl s position i n t h e i r answer t o sikorskit s complaint that Sikorski had made no sales and earned no commis- sions and therefore was not damaged because he failed t o perform. However, Olin, in h i s testimony in h i s deposition and as an adverse,wttness a t t r i a l , recanted and admitted a sale. Olin and Rolin's first contention is that they were surprised and prejudiced when the t r i a l court permitted Sikorski t o amend an answer t o h i s own-interrogatories on the day of t r i a l . They claim Sikorski was allowed t o interject what, i n effect, constituted a "new contract" by comparison t o the con- t r a c t as pled and as disclosed by prior discovery. It i s main- tained the "new contract" created new issues, and therefore Sikorski's proof a t t r i a l should have been limited t o those damages, i f any, occasioned by breach of the originally disclosed contract. However, the record consisting of the pleadings, answers t o interrogatories and Olin's testimony through deposition and a t t r i a l , establish that Olin and Rolin were well aware of the broader contractual terms upon which Sikorski intended t o rely a t t r i a l . Moreover, it is noteworthy Rolin did not request a continuance, on the ground of such alleged surprise or undue advantage, Rule 33, M.R.Civ.P. authorizes use of interrogatories for the purpose of p r e t r i a l discovery from an adverse party. This rule i s liberally construed t o make a l l relevant facts avail- able t o parties i n advance of t r i a l , and t o reduce the possibili- t i e s of surprise and unfair advantage. Wolfe v. Northern Pacific Ry. Co., 147 Mont, 29, 409 P.2d 528 (1966). However, failure t o properly answer certain interroga- tories w i l l not be deemed i n every case t o effect censure of material which should rightfully be developed i n a t r i a l on the merits. A detailed statement of the applicable rule and corresponding reasoning appears in Wolfe v. Northern Pacific Ry. C o . , supra: "* * * Even though under Rule 37 sanctions may be imposed upon a party who f a i l s t o comply with the discovery requirements of the rules, and specifically upon a party who f a i l s t o properly answer h i s interrogatories, necessarily it must l i e within the authority of the t r i a l judge t o determine from the circumstances of each case what constitutes compliance and non- compliance and to determine what sanctions, i f any, are t o be imposed. A s t r i c t rule of exclusion could i n many instances defeat the desired goal of a decision on the merits, Such a misfortune, we f e e l , may be avoided i f w e heavily rely upon the watchful eye of the t r i a l judge whose vision normally i s focused upon the delicate balance which weighs the server's right t o demand answers t o h i s interrogatories and the extent of the adverse party's compliance. I n interpreting these rules we w i l l reverse the t r i a l judge only when h i s judgment may materially affect the substantial rights of the appellant and allow a possible miscarriage of justice." 147 Mont. 29, 40-41. W e note, in reviewing the claims of surprise and unfair advantage, that Sikorski's complaint s e t s forth the same precise contractual terms a s to duration and remuneration for sales as were subjected t o proof a t t r i a l . Moreover, testimony of Olin established he had made certain contractual promises t o Sikorski, specifically regarding compensation for improve- ments. It i s clear the central issues of the case were formulated well in advance of t r i a l , and Olin and Rolin had knowledge of a l l facts responsive t o ~ i k o r s k i ' s claims a t t r i a l . Hence, any surprise or prejudice t o Olin and Rolin i n t h i s regard was minimal, a t most. Moreover, by not requesting a continuance a f t e r the t r i a l judge granted the r i g h t t o amend the interrogatory, Olin and Rolin waived any rfght t o claim e r r o r on appeal. Spencer v. Robertson, 151 Mont. 507, 445 P.2d 48 (1968); 17 C. J.S. Continuances 5 13. The action of the t r i a l judge, i n permitting the amend- ment t o the single interrogatory answer, was proper and should be sustained. Olin andtRolin were afforded every opportunity, through cross-examination, t o t e s t the c r e d i b i l i t y of Sikorski's version of the contract. W e find no miscarriage of j u s t i c e by permitting the amendment. Since Olin and Rolin a l s o f a i l e d t o obj'ect t o almost a l l of the evidence introduced by Sikorski, t h i s Court's function on review, except where there w i l l be a manifest miscarriage of j u s t i c e , is extremely limited. Here, the jury returned a general verdict i n favor of Sikorski i n the amount of $20,000. Items of damage s p e c i f i c a l l y offered by Sikorski, by h i s testimony, included these amounts: 1.$3,750 f o r the value of time expended i n performance of the contract; 2. $4,800 f o r loss of s a l e s commissions which would have been received but f o r the breach; and 3. $2,000 f o r loss of commissions on inventions. The law controlling the award of damages i n such cases was placed before the jury i n the form of instructions from the court. The instructions, takenfrom sections 17-301 and 17-302, R.C.M. 1947, were: Instruction No. 12. "For the breach of an obligation a r i s i n g from contract, the measure of damages, i s the amount which w i l l compensate the party aggrieved f o r a l l the detriment proximately caused thereby, o r which, i n the ordinary course of things, would be l i k e l y t o r e s u l t therefrom." Instruction No. 11. "No damages can be recovered for a breach of contract which are not clearly ascertainable i n their nature and origin." See Lovely v. Burroughs Corp., 165 Mont. 209, 527 P.2d 557 (1974) . Plainly, the damages alleged by Sikorski relate t o the failure on the part of Olin and Rolin t o supply equipment and machinery for resale, and premature termination of the con- tractual relationship with Sikorski. There i s no real question a s t o proximate causation of damages. Rather,it i s stressed the offered proof of damages was overly speculative and therefore an improper basis for the present damage award. Olin and Rolin concede damages t o the extent of the value of time invested by Sikorski i n performance of the contract i n the amount of $3,750. However, the striking fact that emerges from a review of the record is that counsel for Olin and Rolin wholly failed t o object t o Sikorski's evidence on the other items of damage and the method of computing those damages. It is elementary that unless a party urging error has made timely objection to evidence or testimony a t the t r i a l level, it w i l l hot be considered by t h i s Court on appeal. In re Stevenson, 167 Mont. 220, 538 P.2d 5 (1975); Berdine v. Sanders County, 164 Mont. 206, 520 P.2d 650 (1974); ~ o e h l e r v. Sanders, 146 Mont. 158, 404 P.2d 885 (1965). While the computations offered may have been subject t o the objection that they were speculative i n nature,we refuse to consider the matter for the f i r s t time on appeal. W e have said, i n prior cases, that any award of damages i s necessarily grounded, t o some degree, upon conjecture and surmise. However, the question.of damages i s clearly one t o be determined by the intelligence and common sense of the jury. Waltee v. Petrolane, Inc., 162 Mont. 317, 511 P.2d 975 (1973). W e find the evidence, admitted without objection, is s u f f i c i e n t t o support the jury verdict. W e affirm the judgment of the d i s t r i c t court. Justices.

September 8, 1977

ec5b983a-5b82-49c0-a039-822b231795e9

SCHUMACHER v CITY OF BOZEMAN

N/A

13672

Montana

Montana Supreme Court

No. 13672 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 DOUGLAS L. SCHUIVIACHER, M.D., et al., Plaintiffs and Appellants, THE CITY OF BOZEMAN, et al., Defendants and Respondents. Appeal from: District Court of the Eighteenth Judicial District, Honorable peter:% Meloy, Judge presiding. Counsel of Record: For Appellants: McKinley Anderson argued, Bozeman, Montana Drysdale, McLean & Screnar, Bozeman, Montana James J. Screnar argued, Bozeman, Montana Bennett and Bennett, Bozeman, Montana Lyman Bennett I11 argued, Bozeman, Montana For Respondents: Berg, Angel, Andriolo & Morgan, Bozeman, Montana Ben E. Berg Jr. argued, Bozeman, Montana -- SPV - 13 a:-:? Filed: - I Submitted: October 4, 1977 Decided :Bm) Clerk M r . Justice Gene B. Daly delivered the Opinion of the Court. In the District Court, County of Gallatin, plaintiffs sought 1) a w r i t of prohibition t o restrain the City of Bozeman from any further action in Special Improvement District No. 565 to establish an off-street parking f a c i l i t y i n the downtown area of Bozeman; 2) an injunction enjdning the City from selling special improvement d i s t r i c t bonds or assessing property in Special Improvement District No. 565; and 3) a judgment declaring invalid the proceedings of the City of Bozeman in the creation of Special Improvement District No. 565. The proceedings undertaken by the City of Bozeman i n the creation of Special Improvement District No. 565 for the purpose of establishing off-street parking f a c i l i t i e s i n the downtown area may be chronologically summarieed: 1. On June 16, 1976, the City Commission by Resolution No. 1795 announced its intention to create Special Improvement District No. 565 for the purpose of establishing an off-street parking f a c i l i t y i n downtown Bozeman; designated the boundaries of the d i s t r i c t ; and, estimated the cost a t $750,000. 2. O n the same day, June 16, 1976, the City Commission also provisionally passed Ordinanee No. 962, setting forth a proposed formula for the assessment of property to finance the off-street parking facility. A t the time of the adoption of the ordinance, the City Commission designated July 7, 1976, as the t i m e for hearing protests against the proposed formula. 3. On July 30, 1976, the City Commission amended its original resolution of intention to create Special Improvement District No. 565 by Resolution No. 1802 and-designateed July 21, 1976, a s the time for hearing protests against the creation of Special Improvement District No. 565. Notices of the t i m e and place of hearing were published and mailed a s required by sections 11-2204 and 11-2205, R.C.M. 1947. 4. O n July 7 and again on July 21, 1976, the City Coannission held hearings on the proposed formula. They were attended by both proponents and opponents. A s a result of the hearings the formula was amended t o include the definition of "park" and a s amended was finally passed and adopted on July 21, 1976. 5. Thereafter, on July 28, 1976, Resolution No. 1808 creating Special Improvement District No. 565 was passed and adopted by the City Commission. 6. O n August 18, 1976, p l a i n t i f f s f i l e d t h e i r complaint and the court issued a temporary restraining order and a w r i t of prohibition, scheduling both for hearing on August 31, 1976. On the l a t t e r date hearing was held, evidence introduced and thereafter on September 27, 1976, the court made findings of fact and conclusions of law i n favor of defendants and judgment was entered on that day quashing the w r i t of prohibition, dissolving the injunction and dismissing the action. From that f i n a l judgment, p l a i n t i f f s appeal. Appellants pres'ent a number of issues for review by t h i s Court which will be treated i n order: F i r s t . Appellants allege the City did not have jurisdiction t o create Special Improvement District (SID) 565, because 30 days had not elapsed a f t e r the adoption of Ordinance No. 962 when the City passed Resolution No. 1808 creating SID 565. This 30 day requirement is found i n section 11-1106, R.C.M. 1947. - 3 - This section is not applicable because it does not apply t o special improvement d i s t r i c t s but only applies t o matters of general legislation~on which a l l electors whether taxpayers or not, may vote. Carlson v. City of Helena, 39 Mont. 82, 113, 102 P. 39 (1909). Second. Appellants allege Ordinance No. 962 adopting a formula for assessment of off-streeting parking improvements, violates both the due process and the equal protection clauses of the Uniked-States and the 1972 Montana Constitutions, because: (a) The notice of hearing was defective. (b) The formula is inequitable. (c) The city unlawfully delegated authority t o determine the formula for assessment. The formula had one very minor error which was corrected i n the course of the hearing by the addition to the ordinance formula of the l e t t e r "P=existing parking" when the ordinance was finally adopted. This did not make the notice of the hearing defective. A t the outset w e recognize it is fundamental t o assessments for special improvements that the assessment be in proportion to the benefits conferred hy the improvement. Smith v. City of Bozeman, 144 Mont. 528, 398 P.2d 462 (1965). The formula for assessment adopted by the City Commission includes a l l s i x factors required by section 11-2224(1)(d), R.C.M. 1947, but is divided basically into four components, being area, distance, demand and assessed value. To support their claim that the formula is discriminatory, appellants refer t o four separate property comparisons drawn from a computer calculation of 172 separately evaluated properties within the proposed SID 565. W e note here that the computer layouts are not assessments made or t o be made by the City of Bozeman under the adopted f o m l a , but rather are estimates of cost comparisons made in a study conducted by the Parking Commission of the City of Bozeman. Judicial review of benefits o r detriments to the property owners is premature u n t i l the actual assessments have been levied, and u n t i l then no constitutional question a s to the validity of the formula of assessment can be raised or con- sidered by the court. Murphy v. City of Bismarck, N.D. 1961, 109 N.W.2d 635. Appellants claim the assessment formula was conceived by an unlawful delegation of commission powers. The studies relating to a downtown parking f a c i l i t y were commenced by the Parking Commission of the City of Bozeman i n 1974. The original study was financed through the City by a $10,000 appropriation. The.Downtown Development Association continued the study and advanced an additional $10,000, From the joint efforts of these two entities, a formula was devised and estimates made a s to the approximate cost of the f a c i l i t y t o a l l properties i n the proposed district. A l l of this information was submitted to the City Commission jointly by the two organizations by a l e t t e r dated M a y 26, 1976. Thus, although the factual information for explaining the application of the formula was gathered by both the City Parking Commission and the Downtown Development Associa- tion, the formula for assessment did not become effective u n t i l a f t e r hearing by the City Commission and the final adoption by the City Commission. 2 McQuillin, Municipal Corporations, 3rd ed, 510.41, p. 856, summarizes the law on delegation: "* * * Thus, the council may create committees or other bodies t o investigate given methods, to procure in- formation, to make reports and recoamendations, the committee may be given authority t o employ private consultants, but the council alone must finally deter- mine every subject committed to its discretion and judgment. " And further i n 4 McQuillin, 3rd ed., Municipal Corporations, 513.51, p. 573, it is stated: "While it is true that the council may not delegate its power to a committee, when it r a t i - f i e s the act of the committee in due form it becomes the act of the council.'' Third. Appellants contend the determination by the City C o d s s i o n that single family residences and churches would not be specifically benefited by a downtown parking f a c i l i t y was arbitrarily a violation of the equal protection and due process clauses of the United States and Montana Constitutions. The record discloses no evidence was offered showing that churches and single family residences would be benefited by the off-street parking f a c i l i t y and therefore should be assessed. Jenner v. City Council of City of Covina, 164 C.A.2d 490, 331 P.2d 176;181 (1958), is almost identical on the facts and issues presented here. In Jenner the parking d i s t r i c t consisted of 161 parcels, two were churches and 72 were residential. Testimony before the assessing board and i n court indicated these properties would not be benefited. The t r i a l court found the omission of the residential property from the d i s t r i c t was not arbitrary, unreasonable or an abuse of discretion. On appeal, the 8uperior Court of Los Angeles County, held the evidence supported the findings that the d i s t r i c t was properly formed; that the assessments were i n keeping with the benefits; and the statute was not unconsti- tutional on the ground that it permitted docal authorities t o omit property from the d i s t r i c t . ,The District Court of Appeal of California affirmed saying: "Absent a showing of fraud or mistake, the deter- mination of the City Council that certain property would not be benefited by the creation of the parking d i s t r i c t is conclusive. * * * In Larsen v. City and County of San Francisco, 182 Cal. 1, a t page 14, 186 P. 757, a t page 763, i n an analogous situation, the court stated that 'under the principles established i n this s t a t e and elsewhere, t h i s f i n a l decision of the supervisors a s to the property benefited * * * is con- clusive, unless attacked on the ground of fraud or m i s - take.' A n examination of the record f a i l s to disclose any fraud, mistake or arbitrary action on the part of the City Council i n fixing the boundaries of the district." 331 P.2d 181. The clear rationale of 'these cases is that i f reasonable men might disagree as to whether single family residences and churches w i l l or w i l l not be specially benefited by an off-street parking f a c i l i t y , then i n the absence of a clear showing of fraud or mistake, the determination of the City Commission that such property w i l l not be specially benefited is conclusive. 14 McQuillin, Municipal Corporations, 3rd ed., 538.186. Fourth. Appellants contend an off-street parking f a c i l i t y i n downtown Bozeman is a general government benefit rather than a special benefit t o the properties within the special improvement d i s t r i c t . Appellants c i t e no cases supporting their contention. There is authority directly on point and specifically deciding that a downtown parking f a c i l i t y is a special benefit t o the property i n the vicinity of the facility. In Northern Pacific Railway Co. v. City of Grand Forks, N.D. 1955, 73 N.W.2d 348, 350, the North + Dakota Court answered the same contention: "The constitutional question is general in nature and resolves into the question of whether i n any circumstances the special assessment de- vice can be used to defray the cost of a public off street parking l o t without doing violence to the Constitution. A n affirmative answer t o this question depends upon whether property, i n the vicinity of the parking l o t , which has been constituted a special assessment d i s t r i c t , derives a special benefit from the improvement i n addi- tion to the general benefit in which the whole c i t y shares. " W e have no doubt but that property i n the vicinity of a parking l o t derives special benefit therefrom. Particularly is this true i n the case of a congested business d i s t r i c t which had its development before automobiles and trucks had become the great convenience and problem that they are today. In recent years there has been a trend toward a decentralization, evidenced by the removal of many businesses from congested areas t o outlying d i s t r i c t s where parking l o t s for customers were available. It i s generally acknowledged and logically so, that the provision of parking space _in the vicinity of a congested mercantile area, by making it conveniently accessible to trade, tends to reverse t h i s trend and thus stabilize business i n the area. This is a special benefit sufficient to justify special assessments .'I 73 N.W.2d 350. Fifth. Appellants contend the method of the measurement of distance i n the d i s t r i c t is i n error and cannot stand. This argument is apparently based on the idea that the formula f a i l s t o properly account for distance because it measures distance on a straight line rather than the actual walking distance. In I this respect the statute, section 1 - 2 2 1 , R.C.M. 1947, does not specify the means of measuring distance and therefore it would seem the City has the liberty of selecting the most common, uniform, standard and shortest distance between two points, i.e. the straight line, rather than the circuitous and meandering routes suggested by appellants. I f the City had selected appel- lants' method of measuring it woudd seem t o impose a more d i f f i - cult problem on the City Cornmission to apportion the assessment to attain equity of benefit. Sixth. Appellants question the statutory authority of the City to purchase an off-street parking facility. They rely on section 11-2201, R.C.M. 1947, to support their position. ~ e ' f i n d no support for that proposition when the section is read a s a whole with particular reference to the f i r s t paragraph which states i n part: "* * * the c i t y counsel of each municipality * * * is hereby invested with jurisdiction t o acquire private property for right of way * * * under the proceedings hereinafter described." (Emphasis added.) Subparagraph (4)(a) of section 11-2201 specifically authorizes formation of special improvement d i s t r i c t s for off-street parking f a c i l i t i e s . Finally, subparagraph (4) (e) of section 11-2201, states: "(e) A n improvement d i s t r i c t formed for the purposes - - of establishing a pedestrian mall or off-street parking may be financed i n accordance with the provisions of section 11-2214, R.C.M. 1947, and/or i n accordance with the methods of financing s e t forth for the construction of water or sewer systems a s s e t forth i n section 11-2218, R.C.M. 1947." (Emphasis added.) With no ambiguity the statute authorizes the acquisition of private property, and purchase is not excluded, for special improvement d i s t r i c t s for the purposes specifically authorized. Finally, financing is authorized by assessment or revenue bond sales. Seventh. The most serious matter we are asked to review concerns the voting participation on the special improvement d i s t r i c t i n question by Commissioner Taylor, who is alleged to have a financial interest in the d i s t r i c t parking. Prior to the creation of the SID, Commissioner Taylor purchased business property within the boundaries of the SID with intent t o remodel for office use. On April 20, 1976, Taylor applied for a building permit and was denied because he only provided for 51 off-street parking stalls instead of the 191 required by the area zoning. Taylor appealed to the Board of Adjustment and hearing was had and appeal denied on May 4, 1976. Taylor applied again after the resolution to form the SID was passed and upon which he voted. He was again denied because of the 51 off-street parking stalls and the present- requirement for 183 stalls. Taylor again appealed to the Board of Adjustment. We note here there is nothing in the record to indicate what transpired at the hearing on appeal before the Board of Adjust- ment. A variance was approved for 8 8 off-street parking stalls for Commissioner Taylor. The question is whether the voting participation of Commissioner Taylor, disqualified because of his interest, voids the entire proceedings even though his vote was not needed to constitute the required number to pass SID No. 565 and there were no dissents. Generally a city councilman may not vote on an issue in which he has a direct or indirect interest. Not every interest of a councilman is considered to disqualify him; each instance is necessarily a factual question. For example, it is generally held that the fact a councilman has an interest in property within a proposed special improvement district does not disqualify him from acting on the formation of the district. 4 McQuillin, Municipal Corporations, 3rd ed., 913.35a. The tests of disqualification are variously stated, in some instances by statute. In 4 McQuillin, Municipal Corporations, 3rd ed., $13.35, p . 529, it is stated that disqualification is warranted: "* * * whenever a public official, by reason of his personal interest in a matter, is placed in a situation of temptation to serve his own pur- poses, to the prejudice of those for whom the law authorizes him to act. I t Taylor would not be disqualified from voting on whether to create a special improvement district solely because he owned property within the district. However, here, Taylor had an appeal before the local Board of Adjustment requeeting a variance from the number of off-street parking stalls he would have to provide for his business property. The difference between the number of required stalls and the number he proposed in his building permit was substantial--- approximately 183 stalls required as opposed to 51 proposed. The resolutions creating the special improvement district to finance building additional off-street parking were passed in June and July, 1976. Whether these resolutions actually had any effect on the Board of Adjustment's August 4, 1976 decision to grant Taylor the variance is unknown. The variance, however, saved him substantial additional expenditure. As a city commissioner, Taylor is entrusted with certain duties and responsibilities to carry out the governing func- tions of the city. His position places him on a different level of review regarding his business transactions, than would be that of the ordinary citizen. All courts that have considered the issue are agreed if a disqualified commissioner's vote was necessary to constitute the number required for passage, such a vote renders the entire proceeding void. Not all jurisdictions, however, are agreed as to what effect a vote by a disqualified commissioner has on the proceedings where his vote is not necessary to pass the issue. Some jurisdictions hold that such a vote has no effect on the validity of the proceedings. Others hold that such a proceeding is - void, while still others hold that it is only voidable. 62 C . J . S . Municipal Corporations $402. Although we have not previously dealt with this question, the legislature has passed statutes governing city councilmen and connnissioners in an analogous situation. No city councilman nor commissioner may be interested, directly or indirectly, in any contract with the city. Sections 11-3127 and 11-3214, R . C . M . 1947. Section 11-3214 also provides the commission may declare void any contract in which a commissioner is or may be interested. New York, New Jersey and Iowa hold that a vote cast by a commission member who is disqualified renders the proceedinq either void or voidable, even though the disqualified membeh vote was not needed to pass the issue. Baker v . Marley, 8 N . Y . 2d 365, 208 N . Y . S . 2 d 449, 170 N . E . 2 d 900 (1960); Aldom v . Borough of Roseland, 42 N.J.Super. 495, 127 A . 2 d 190, 197 ( 1 9 5 6 ) ; Wilson v . Iowa City, Iowa 1969, 165 N . W . 2 d 813, 820. These decisions do not clearly distinguish between whether the action of the comission is void or merely voidable. Often such a decision is governed by statute. See: Section 11-3214, R . C . M . 1947. Numerous reasons are given for declaring such action void or voidable. Pyatt v . Mayor & Council of Borough of Dunellen, 9 N . J . 548, 89 A . 2 d 1, 5 (1952), states: ' ' P u b l i c policy forbids the sustaining of munici- pal action founded upon the vote of a member of the municipal governing body in any matter before it which directly or immediately af f ects him individually ." Other courts hold that when a municipal body passes on resolutions and ordinances, it acts in a quasi-judicial manner. If any of the council members who participated as a quasi-judge were at the time disqualified by reason of private interest at variance with the impartial performance of his public duty, such proceedings are void. Aldom v . Borough of Roseland, supra; Pyatt v . Mayor & Council of Borough of Dunellen, supra. The bias of the interested person taints the action of the whole body. Pyatt v . Mayor & Council of Borough of Dunellen, supra. In Piggott v . Borough of Hopewell, 22 N.J.Super.106, 91 A.2d 667, 670 ( 1 9 5 2 ) , this was found to be so for two reasons: "'First, the participation of the disqualified member in the discussion may have influenced the opinion of the other members; and, secondly, such participation may cast suspicion on the impartiality of the decision. [Citing cases.] It being impossible to determine whether the virus of self-interest affected the result, it must needs be assumed that it dominated the body's deliberations, and that the judgment was its product. 111 The cases which have held the vote of a disqualified commissioner does not vitiate the proceedings where his vote was not needed to pass the issue have rejected the two factors considered in Piggott. See: Singewald v . Minneapolis Gas Company, 274 Minn. 556, 142 N . W . 2 d 739 (1966); Eways v. Reading Parking Authority, 385 Pa. 592, 124 A . 2 d 92 (1956); Marshall v . Ellwood City Borough, 189 Pa. 348, 41 A . 994 ( 1 8 9 9 ) . The rationale behind Eways and Marshall is that the "illegal1' vote does not affect the "legal1' votes. The Marshall court downplays the influence the "illegal" voter may have on the "legal" voters, particularly when there is a large group of voters and only one illegal voter. As our discussion reveals there seems to be no question on the issue of Commissioner Taylor being disqualified under the circumstances that existed. There is also no question that h i s vote was not required to pass the ordinance which opens the proceedings t o a wide range of opinion a s t o validity, as here- to£ ore discussed. Although Montana has not treated t h i s matter judicially, the legislature has spoken through its enactment of section 1 1 - & & £ , R.C.M. 1947, which i s legally and ethically analogous t o the instant situation and permits a c i t y commission o r council to examine the facts, and, i f so moved, to void the transaction. A s heretofore stated, w e are lacking facts i n the record before us to make determinations beyond the legal finding that the City Commission or Council could i n i t i a l l y examine the trans- action and make a finding. However, i n case of refusal to act by the Commission or Council or an adverse finding to the petitioners, there would be the customary recourse t o the courts. The judgment of the d i s t r i c t cou W e Concur]:

November 9, 1977

979ce6b6-23d7-466f-bc1b-32cb7c981c01

TORCHIA v BURLINGTON NORTHERN IN

N/A

13097

Montana

Montana Supreme Court

No. 13097 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1977 H E L E N TORCHIA, i n d i v i d u a l l y and a s a personal r e p r e s e n t a t i v e , P l a i n t i f f and Appellant, BURLINGTON NORTHERN, INC. a corporation, Defendant and Respondent and Cross Appellant. Appeal-from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Hon. Paul G. Hatfield, Judge presiding. Counsel of Record: For Appellant: Gough, Booth, Shanahan and Johnson, Helena, Montana Cordell Johnson argued, Helena, Montana For Respondent : Hoyt and Bottomly, Great F a l l s , Montana John C. Hoyt argued and Richard V. Bottomly argued, Great F a l l s , Montana Submitted: June 6 , I977 Filed: '_?I" I I ; f E & m , . # : ~ ' ~ ~ ~ i ~ - ~ - #+'* . Clerk Hon. M. James Sorte, District Judge, delivered the Opinion of the Court: This i s a wrongful death action f i l e d i n the d i s t r i c t court, Cascade County, under the Federal ~mployers' Liability Act, 45 U.S.C. $51 e t u s e q . (FELA). Plaintiff Helen Torchia a s personal representative of the estate of decedent Gennaro Torchia, and on behalf of t h e i r children, sued defendant Burlington Northern, Inc. for damages occasioned by the death of her husband Gennaro Torchia. Gennaro Torchia, a Burlington Northern fireman, was killed in a head-on collision between two railroad trains. In her complaint p l a i n t i f f alleged negligence under the FELA and prayed for compensatory damages. She also, individually and as personal representative of the minor children, alleged willful and wanton conduct and prayed for punitive damages. In i t s amended answer, defendant admitted 1 i a b i l i t y " f o r negli- gence under the FELA. The t r i a l court denied defendant's motion t o strike those allegations from the complaint which had reference t o punitive damages. The case was tried t o a jury on the issues of compensatory damages and conduct which would form the basis for an award of punitive damages. The jury returned a verdict for p l a i n t i f f for compensatory damages only, in the amount of $580,000. The jury found the facts did not justify an award of punitive damages. Defendant appeals from the judgment entered on the jury verdict. Plaintiff crossappeals from an order denying her motion for a new t r i a l on the issue of punitive damages. The facts of t h i s care are: A t approximately 11:45 p.m. on May 11, 1971, a t a point near Sheffels on the Burlington Northern line between Great Falls and Havre, there was a head-on collision between two trains. Four of defendant's employees were killed and several others injured. One of those killed was p l a i n t i f f ' s husband, Gennaro Torchia. The movement of trains between Great Falls and Havre i s controlled out of the dispatcher's office i n Havre. Trains are operated over t h i s segment of the track by t r a i n orders and clearances. The Havre to Great Falls route consists of but one track, Thus, the orders and clearances are significant i n controlling t r a i n movements where a "meet" i s anticipated between trains traveling i n opposite directions. A dispatcher issues various orders t o the operators a t various stations on the line. The orders are communicated from the dispatcher to the operator by telephone. The operator then copies the orders on t r a i n order forms. The orders are then read back t o the dispatcher to insure the copied orders are correct. It is also the responsibility of the dispatcher t o issue clearances which are communicated t o and copied by the operator in the same manner as are t r a i n orders. A t r a i n i s not allowed t o move over a track which i s controlled by t r a i n orders and clearances unless a proper clearance i s issued for the t r a i n move- ment. Typically, orders and clearances are not issued u n t i l the t r a i n has been "called", that is, assembled and ready for de- parture. Generally, the conductor in charge of the t r a i n and crew picks up the orders and clearances from the operator. When it becomes necessary t o issue a second order and clearance on a given t r a i n movement, the f i r s t orders and clearance are taken up and destroyed. - 3 - I n 1971 it was and had been for many years the practice in Havre for the operator t o place copies of the completed clearances and orders on the t r a i n register desk i n the Havre Relay Office. There was no procedure whereby it could be deter- mined when the orders were actually picked up by the conductor. In t h i s case Dispatcher Newel1 was on s h i f t from 7:30 a.m. u n t i l 3:30 p.m. on May 11, 1971. H e issued orders and a clear- ance a t 3:08 p.m. for the Havre to Great Falls train, designated as "Extra 2013 West." Newel1 expected the t r a i n would be called momentarily. Operator Wirtzberger then placed the clearance and orders on the t r a i n register desk. A t that time Newel1 was unaware a t r a i n was being assembled i n Great Falls destined for Havre, also t o leave on May 11. Newel1 turned over h i s dispatching d i s t r i c t to Dispatcher McMaster a t 3:30 p.m. Pursuant t o the then operative "staggered shift" work system, McMaster who was on duty dispatching another d i s t r i c t was ,in addition, given responsibility for Newell's d i s t r i c t u n t i l 4:30 p.m. Newel1 explained t o McMaster that he had cleared the Havre to Great Falls train. The clearance i s reflected i n the clearance record kept by the dispatcher. There was no dispatching activity during the hour McMaster had responsi- b i l i t y for the d i s t r i c t so no further entries were made in the dispatcher's book. A t the end of h i s s h i f t McMaster merely initialed the record book and passed it on t o Dispatcher Magnuson. There i s a dispute i n the evidence as t o whether McMaster verbally informed Magnuson the Havre t o Great Falls t r a i n was cleared when the dispatching d i s t r i c t was turned over t o him. McMaster t e s t i f i e d he informed Magnuson of the clearance. Magnu- son t e s t i f i e d no such statements were made. However, there i s no dispute the records McMaster turned over t o Magnuson clearly indicated the t r a i n had been cleared a t 3:08 p.m. by Newell. Magnuson, during h i s dispatching s h i f t , was informed that a t r a i n would soon be leaving Great Falls bound for Havre. To arrange for a "meet" between the respective trains whereby one would take a side track as the other passed by, Magnuson issued a second order and clearance a t 8:18 p.m. The second order and clearance were communicated t o Operator Porter, who prepared them and placed them on the t r a i n register desk. Sometime between the time Operator Wirtzberger placed the f i r s t order and clearance on the t r a i n register desk and the time the second order and clearance were placed on the desk, Conductor Freeburg, conductor for "Extra 2013 West", came into the Havre Relay Office and picked up the f i r s t orders and clear- ance. H e was not seen picking up the orders and clearance by any dispatcher or operator. P l a i n t i f f ' s husband, Gennaro Torchia, was a member of the crew of the Great Falls to Havre train. Under the second orders issued t o that t r a i n , but unknown to Conductor-Freeburg of "Extra 2013 West" and i t s crew, it was to proceed t o Portage: where a "meet" would take place. The Havre t o Great Falls t r a i n was t o wait a t Portage t o permit the Great Falls t o Havre t r a i n t o take the siding. The Havre t o Great Falls t r a i n passed the siding a t Portage without stopping and, shortly beyond Sheffels, the head-on c o l l i - sion between the two trains occurred. Gennaro Torchia was killed instantly. A t the time of h i s death he was 49 years of age. Additional pertinent facts w i l l appear l a t e r i n t h i s opinion. Defendant raises numerous points of error on appeal. For t h i s opinion we w i l l discuss eight determinative issues: 1. Whether punitive damages are recoverable i n an action under the FELA? 2. Whether thetverdict should be s e t aside as being excessive and based on passion or prejudice? 3. Whether the voir dire examination by counsel for plaintiff was improper? 4. Whether admission of evidence pertaining t o future railroad retirement benefits was error? 5. Whether the t r i a l court erred i n admitting certain t e s t i - mony given by p l a i n t i f f ' s expert witness i n the area of economics? 6. Whether a potential witness for defendant, whose name was not listed on the p r e t r i a l order, should have been permitted t o t e s t i f y ? 7. Whether the t r i a l court erred i n selection of instructions and form of verdict? 8. Whether admission into evidence of a portion of the Federal Railroad Administration Accident report was prejudicial error? Issue 1. A major contention of defendant i s that punitive damages should not have been an issue i n the case, and evidence and proposed instructions related thereto should not have been permitted. Defendant asserts such issue should have been removed upon i t s motion t o strike. Defendant alleges punitive damages are not allowable under the FEU, and allowing plaintiff t o intro- duce proof not only of l i a b i l i t y , but also on the question of punitive damages was prejudicial and resulted i n an excessive award as a result of passion and prejudice on the part of the jury. A s noted, defendant admitted i t s l i a b i l i t y for ordinary negligence. A t the outset w e reject defendant's theory that upon such an admission, p l a i n t i f f ' s case must be limited solely t o the issue of damages. Under the facts of t h i s case p l a i n t i f f could prove her case as she wishes subject, of course, t o the ordinary control and discretion exercised by the t r i a l judge. Whether or not evidence of punitive damages&as a proper place i n an action under the FELA, the jury here refused t o allow such damages to plaintiff. In view of the evidence pre- sented by plaintiff and the result reached by the jury, the presence of the element of punitive damages did not prejudice defendant i n t h i s case. S l i f e r v. Yorath, 52 Mont. 129, 155 P. 1113; Martin v. Corscadden, 34 Mont. 308, 86 P. 33. Further, the same reasoning applies with reference t o the alleged error i n the giving of instructions on willful and wanton misconduct and other matters relative t o punitive damages. The salient fact remains the jury refused t o award such damages and, i n f a c t , specifically found there was no evidence of conduct which would form the basis for punitive damages. Defendant suffered no prejudice as a result. H i l l v. Chappel Bros. of Montana, Inc., 93 Mont.92, 18 P.2d 1106. Issue 2. Was the jury verdict excessive and based upon passion and prejudice? Defendant asserts there must be substantial evidence i n the record upon which the jury award can be predicated, citing Montana cases. While there was more than substantial evidence i n the record to justify the jury's award, nevertheless t h i s is not the applicable standard under the Federal Employers' Liability Act. In Resner v. The N.P.Railway, 161 Mont. 177, 505 P.2d 86 (1973), t h i s Court quoted the standard as s e t out i n Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L ed 916, 923, a Federal Employers' Liability Act case. There the United States Supreme Court said: I 1 I It i s no answer t o say that the jury's verdict involved speculation and conjecture. Whenever facts are i n dispute o r the evidence i s such that f a i r - minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is t o s e t t l e the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts t o support the conclusion reached does a reversible error appear. But where * * * there is an evidentiary basis for the jury's verdict, the jury i s free t o discard or disbelieve whatever facts a r e in- consistent with its conclusions. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference o r f e e l that an- other conclusion is more reasonable. ' (Emphasis added. )" 161 Mont. 183. P l a i n t i f f ' s evidence of damages was almost entirely uncon- tradicted. Through the testimony of various witnesses, plaintiff e l i c i t e d facts and figures which, when projected into the future and discounted t o present value, would reasonably support a ver- d i c t such as was rendered i n t h i s case. The t r i a l judge agreed the verdict was not unjust and a new t r i a l was not granted t o defendant. W e refuse t o disturb the findings of the jury, Issue 3. This issue involves alleged improper voir d i r e examination of prospective jurors by counsel for plaintiff. Nothing a t a l l appears i n the record suggestive of the statements attributed t o counsel. The law is clear that unless there is a record of the alleged error, t h i s Court w i l l not consider the matter. Kipp v. Willoughby, 1 6 1 Mont. 432, 506 P.2d 1365; Nissen v. Western Construction Equipment Co., 133 Mont. 143, 320 P.2d 997, Defendant's argument i n t h i s regard is without merit. Issue 4. Did the t r i a l court e r r in allowing the testimony of p l a i n t i f f ' s witness, Judith Kirkness, an employee of the United States Railroad Retirement Board, concerning retirement benefits? The core of defendant's argument i s that the witness was asked t o make certain assumptions, while the facts forming the basis for such assumptions were not of record o r i n evidence. The record shows that, a t some time i n advance of t r i a l , defense counsel verbally stipulated t o the evidence to be e l i c i t e d from witness Kirkness. In f a c t , he had so stipulated i n a previous F E L A action. However, immediately before the instant t r i a l , defense counsel informed counsel for p l a i n t i f f Burlington Northern had assigned a Minnesota attorney to direct the case for defendant and a s a result the prior stipulation was no longer valid. H e then suggested p l a i n t i f f c a l l Judy Kirkness a s a witness. W e note a t t h i s point that such tactics on the part of the new counsel are strongly disapproved by t h i s Court. The proposed evidence and the procedure t o be employed i n developing it was discussed i n chambers and fully considered by the t r i a l judge. The witness was t o determine the amount of benefits Gennaro Torchia would have been entitled t o upon retirement from the railroad. The factors to be considered i n arriving a t such a computation are the employee's age, marital status, length of employment, r a t e of compensation, and length of military service. These facts pertaining t o Gennaro Torchia, were substantially in evidence and presented i n a correct fashion to the witness for her determination. The resulting testimony was properly admitted as it was based upon evidence before the court. Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263; Burns v. Fisher, 132 Mont. 26, 313 P.2d 1044. Issue 5. Defendant alleges e r r o r i n the admission by the t r i a l court of testimony of p l a i n t i f f ' s economic expert, D r . George P. Heliker, on the issue of economic l o s s suffered a s a r e s u l t of the death of Gennaro Torchia. It is argued the expert opinions were speculative on future inflationary trends, i n forecasting loss of earnings, i n forecasting future earnings without considering the impact of income taxes thereon, and i n forecasting l o s s of future Railroad Retirement Benefits. Proof of the present value of a future economic l o s s i s necessarily uncertain t o a degree. Any determination of factors such a s growth i n the s i z e of the t o t a l labor force, output per madhour, wage trends and inflationary patterns i s admittedly grounded i n probabilities. However, t h i s does not mean the amount of a future l o s s is not provable. Such losses a r e b e s t proved through employment of economic and s t a t i s t i c a l d i s c i p l i n e s , applied t o the very factors l i s t e d above, a s t h i s Court has recognized i n numerous p r i o r decisions. Where, a s here, the testimony of a s p e c i a l i s t presents a jury with a reasonable basis upon which t o estimate, with some degree of c e r t a i n t y , the probable future losses occasioned by t h e death of decedent, such testimony should be admitted. Resner v. The N.P. Railway, supra; Krohmer v. Dahl, 145 Mont. 491, 402 P.2d 979. See Lavender v. Kurn, supra, f o r a general discussion of trends in- volving speculation and conjecture i n ascertaining damages i n FELA actions. Defendant was aware, p r e t r i a l , t h a t p l a i n t i f f intended t o call D r . Heliker t o t e s t i f y t o precisely those matters defendant now disputes. The opportunity t o contest the accuracy of such testimony, through i t s own expert testimony, was available t o defendant. However, it chose not t o c a l l an expert witness on these matters. - 10 - Issue 6. Did the t r i a l court e r r i n excluding t h e t e s t i - mony of defendant's proposed witness S. M. Smiland, with respect t o insurance benefits, wages, damages, etc.? W e emphasize here t h a t considerable p r e t r i a l discovery and discussion was had i n t h i s case, during which the i d e n t i t i e s of a l l witnesses were disclosed and l i s t e d i n the p r e t r i a l order. However, the name of S.M. Smiland f i r s t appears following p l a i n t i f f ' s case-in-chief. There i s no record p l a i n t i f f knew witness Smiland, o r t h a t he was present i n Great F a l l s during a portion of the t r i a l . He was never introduced t o p l a i n t i f f and p l a i n t i f f was afforded no opportunity t o t a l k t o Smiland before h i s proposed testimony was t o begin. Under the circum- stances, it was c e r t a i n l y within the discretion of the t r i a l judge t o allow o r disallow the witness t o t e s t i f y . Sanders v. Mount Haggin Livestock Co., supra. Issue 7. This issue concerns instructions given and refused by the t r i a l court. Court's instructions No. 14 and No. 20 were objected t o by defendant on the grounds a decedent f a t h e r ' s comfort, pro- tection, society, education and companionship a r e not proper elements of damage recoverable under the FELA. Instruction No. 14 provides i n p a r t : "You may a l s o consider and award such sum a s you may determine represents the pecuniary value of any l o s s , i f any, sustained by the widow and the family by reason of being deprived of Gennaro Torchia's comfort, protection, society, education and companion- ship. I n considering such pecuniary l o s s , you may consider the age and l i f e expectancy of the wife and family i n r e l a t i o n t o the age of the decedent, the disposition of the deceased, whether it was kindly, affectionate, o r otherwise, the degree of intimacy existing between the deceased and h i s family, t h e i r s t a t i o n i n l i f e , and such other f a c t s shown by the evidence which may throw l i g h t upon such loss which the h e i r s reasonably might have expected t o receive from the deceased, had he lived. * * *'I Instruction No. 20 states: "You are instructed that: "You have heretofore been instructed on damages which may be allowed t o wife and family for the death of Gennaro Torchia. One of the elements of such damage is the pecuniary value of the society, comfort, care, companionship, protection and education the wife and family have l o s t by reason of h i s death. I f you find from the evidence that the deceased did provide society, comfort, care, companionship, protection and education, which went t o the moral or physical training and well-being of the widow and family, t h i s loss i f it has ,pecuriiary o r .financial value, may be measured and compensated. * * *'I It i s true damages under the F E L A are measured by and limited t o the pecuniary loss sustained by the survivors as a result of the death of the employee. Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L ed 906; Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L ed 417. Recovery i s authorized only t o the extent the survivors are shown t o have been deprived of a reasonable expectation of financial benefits, assistance or support. Mellon v. Goodyear, supra; See Anno: 67 ALR2d 745,746. However, the pecuniary value associated with the loss of parental care, guidance and education the decedent would expectably have given h i s minor children, i s recoverable under the FELA. Norfolk & Western R. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L ed 392; Michigan Central R. Co. v. Vreeland, supra. I n determining the extent of contribution which i s reasonable to be anticipated by the beneficiaries, the jury may properly consider evidence the decedent was industrious, t h r i f t y , kind and faithful t o h i s family. Allendorf v. Elgin, Joliet & Eastern R. Co., 8 I11.2d 164, 133 N.~.2d 288, 79 A L R ~ ~ 241, cert. den. 352 U.S.833, 77 S.Ct. 49, 1 L ed 2d 53, reh.den. 352 U.S. 937, 77 S.Ct. 219, 1 L ed 2d 170. Contained within the court's instructions No. 14 and No. 20 is language having the effect of limiting recovery t o the pecuniary value of losses sustained. Further, the language speaks t o limiting losses t o Chose which the survivors reason- ably might have expected to receive from decedent, had he lived. P l a i n t i f f ' s evidence pertaining to the extent of the loss of parental care, guidance and education was ample and uncontra- dicted, a s was the evidence demonstrating the decedent was in- dustrious, t h r i f t y , kind and faithful to h i s family. Thus, while there may have been minor variations i n the instructions from the accepted measure of damages in FELA actions, they cannot be said t o have prejudiced the defendant. The instructions were not totally confined t o an FELA death action, there being variations but on those variations no evidence was adduced a t t r i a l . W e find no prejudice. Defendant also objects to the giving of court's instruction No. 19, which provides: "You are instructed that: "In considering the loss of contribution t o the family from future earnings of decedent you are instructed that you should f i r s t reduce future earnings to present value using a reasonable r a t e of discount for t h i s purpose. The evidence a s t o annual inflation which has an effect on depreciating the value of a dollar should also be considered a s to what extent such depreciation offsets the interest that could be earned on an award of future earnings. I n addition, you may consider wage increases the deceased might have expected t o receive i n arriving a t deceased's true loss of future earnings and earning capacity." A s previously pointed out, t h i s Court approves of considera- tion by the jury of the fact of inflation i n arriving a t an award for loss of future earnings, where the evidence a s t o annual inflation and related matters i s presented, as here, i n a competent manner. Resner v. The.N.P. Railway, supra. The t r i a l court refused defendant's proposed instruction No. 8 a s being duplicitous.' W e find it t o have been properly refused by the t r i a l court. The court a l s o refused t o give defendant's proposed instruc- tions No, 14, No. 15 and No. 16, on consideration of the impact of income taxes on damage awards. I n so doing, the t r i a l court was i n accord with the weight of authority, Future income t a x l i a b i l i t y is not a proper consideration i n an award f o r loss of future earnings. Bracy v. Great Northern Ry. Co., 136 Mont. 65, 343 P.2d 848. Defendant r e l i e s on Burlington Northern, Inc. v. Boxberger, 529 F.2d 284 (1975), f o r the proposition t h a t future tax l i a b i l i t y should be considered i n making a damage award. A careful reading of Boxberger, however, discloses t h a t it is an admitted departure from the majority position. The court therein s t a t e d rhat an instruction on the e f f e c t of future income t a x l i a b i l i t y is proper when competent evidence i s brought forth a t t r i a l showing the l i k e l y amount of tax. Defendant here has made no such showing. , A further objection raised by defendant was t o the form of the verdict approved by the t r i a l court i n t h a t it includes items of compensatory damage not contemplated under t h e FELA, The same reasoning employed regarding defendant's objection t o c o u r t ' s instructions No. 14 and No. 20 i s no l e s s applicable i n t h i s instance. Defendant was not prejudiced by the form of verdict in t h i s case. Issue 8. This issue concerns the propriety of admission i n evidence of conclusions contained i n the Federal Railroad Adminis- t r a t i o n Report of its investigation of the t r a i n wreck of May 11, 1971. 45 U.S.C.541 s t a t e s : "Neither the report required by section 38 of t h i s t i t l e nor any report of the investigation provided f o r i n section 40 of t h i s t i t l e nor any p a r t thereof s h a l l be admitted a s evidence o r used f o r any purpose i n any s u i t o r action f o r damages growing out of any matter mentioned i n said report o r investigation ." During t r i a l counsel f o r p l a i n t i f f read i n t o the record, before the jury, a verbatim copy of c e r t a i n conclusions contained i n the accident report, which were incorporated into the complaint. Counsel was a l s o permitted, over objection, t o read t o the jury an interrogatory t o defendant and the amended answer thereto. The answer a l s o contained accident report conclusions. I n neither case was the report i t s e l f made a p a r t of t h e record. A t no time was the jury informed the statements being read were taken from the accident report o r based on findings of the Federal Railroad Administration. This Court does not condone such a method of bringing poten- t i a l l y objectionable material before the jury. However, here the e r r o r , i f any, was harmless. The manifest purpose of the prohibi- t i v e l e g i s l a t i o n is the prevention of the use i n evidence of a report which, being issued by a federal agency, has the outward appearance of being conclusive on the f a c t s . The e v i l t o be avoided i s the undue weight the jury would give to the report, denominated a s such, over other evidence produced a t the t r i a l . Here, it was defendant's own answer t o the interrogatory, produced a t t r i a l , which was the vehicle f o r introduction in evidence of c e r t a i n of the report conclusions. W e cannot see how t h i s procedure, given the other evidence produced i n t h i s p a r t i c u l a r case, prejudiced defendant i n a substantial manner. The judgment entered upon the verdict of the jury i s affirmed. on.. J ~ ~ H M . ~ o r t F , D i s t r i c t w* Judge, s l t t i n g f o r M r . Chief J u s t i c e Paul G. Hatfield. We Concur: / i Justices.

August 31, 1977

cb06ba40-7265-4d2c-b71a-4b55614ce1d9

STATE EX REL SULLIVAN v STATE

N/A

13752

Montana

Montana Supreme Court

No. 13752 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 STATE ex rel. ROBERT E. SULLIVAN, Relator and Appellant, STATE OF MONTANA, TEACHERS' RETIREMENT BOARD, et al., Respondents and Respondents. Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Boone, Karlberg and Haddon, Missoula, Montana Sam E. Haddon argued, Missoula, Montana For Respondent: J. Michael Young argued, Helena, Montana For Amicus Curiae: Louis Forsell argued, Helena, Montana Submitted: September 29, 1977 r \ r W 3 5 1gz Decided : Clerk Mr. Chief Justice Paul G . Hatfield delivered the Opinion of the Court : Appellant appeals from an order of the District Court, Lewis and Clark County, dismissing his petition for judicial review and affirming a decision of the Montana Teachers' Retirement Board denying him retirement credit for out-of-state teaching service. Appellant, Robert E. Sullivan, is Dean of the University of Montana School of Law. He was previously employed as a faculty member of Notre Dame University from September 1947 to September 1954. In 1954, he moved directly from Notre Dame University to the University of Montana School of Law faculty. In 1976, while a member of the Montana Teachers' Retirement System, appel- lant applied for seven years credit in the retirement system on the basis of his Notre Dame teaching service, He tendered back contribution payments as required by section 75-2705(9), R . C . M . 1947, to respondent Montana Teachers' Retirement Board (herein- after referred to as the B o a r d ) . At an April 12, 1976, meeting, the Board denied appellant's application and thereafter returned his cashier's check for back retirement contribution payments. The Board based its denial on its decision that section 75-2705(9), R . C . M . 1947, in effect in 1954 when appellant became a member of the Montana Teachers' Retirement System, allowed retirement credit only for teaching service in out-of-state public schools, to the exclusion of service performed in out-of -state private schools such as Notre Dame University. Appellant then brought an action in district court to require the Board to allow him to purchase credit toward retirement benefits in the Teachers' Retirement System for his out-of-state teaching service. Counsel stipulated the case be submitted for final decision on the law question as if it were a judicial review of the ~oard's denial of teaching credit. The District Court issued a "MEMORANDUM OPINION AND ORDER" dismissing the petition for judicial review and affirming the decision of the Board. The determinative issue presented on appeal is whether section 75-2705(9), R . C . M . 1947, as applicable in 1954 when appellant became a member of the Montana Teachers' Retirement System, allows a member to receive credit for teaching in out- of-state private schools. In Montana, retirement benefits in the teachers ' retire- ment system are a matter of contract right. The terms of the teachers' retirement benefit contract in Montana are determined by the controlling provisions of the teachers' retirement system statute in effect at the time the teacher becomes a member of the Montana Teachers' Retirement System. "These sections of the statute become part of the teacher's contract." Clarke v . Ireland, 122 Mont. 191, 199¶ 199 P.2d 965 ( 1 9 4 8 ) . When appellant joined the Montana Teachers' Retirement System in 1954, section 75-2705(9), R . C . M . 1947, set forth the conditions by which a teacher entering the system could receive credit for out-ofistate teaching service. That portion of section 75-2705(9), as it was in effect in 1954, relevant to this appeal, provided : "Any teacher who has become employed as a teacher in Montana * * * may receive credit for service for out-of-state teaching employment provided * * * [he makes certain contributions required by the statute] .I' (Bracketed material paraphrased.) Section 75-2705(9) controls this case, because no other section of the Monthna Teachers' Retirement Act, as it was in effect in 1954, spoke to creditable service for out-of-state teaching. On its face section 75-2705(9) appears to be perfectly clear. To receive credit in the Montana Teachers' Retirement System for out-of -state teaching service, section 75-2705 ( 9 ) merely required that the applicant teacher, who has become employed as a teacher in Montana, has performed out-of-state teaching service and made the required contributions into the retirement fund. Appellant, as Dean of the law school, is a teacher in Montana who performed out-of-state teaching service at Notre Dame University and made the statutorily required contributions into the retirement fund. Respondents assert the legislative intent behind section 75-2705(9) can be determined only by examining the teachers' retire- ment act in its entirety. Respondents contend that,in passing the act, the Montana legislature established a benefit for public school teachers with no regard for teachers in private institutions. The definitions of "teacher", "service", "employer", and "member- R . C . M . 1947, ship" in section 75-2701/a11 spoke to public school employees. Respondents conclude the section 75-2701(4) definition of teacher as "* * * any teacher in the public elementary and high schools of the state, and the university of Montana * * * " must be used to define what "teacher" may qualify for out-of -state teaching credit under section 7 5 - 2 7 0 5 ( 9 ) . Respondents conclude that appellant cannot meet the statutory definition of "teacher" for his service at Notre Dame University. We disagree. Respondents are correct in 'their assertion that the teachers' retirement act must be cons trued as a whole. Because the legisla- ture did not pass section 75-2705(9) apart from the remainder of the act, this Court cannot literally construe that section in a manner inconsistent with the legislative intent expressed through- out the teachers' retirement act. "* * * legislative intent cannot be determined from the wording of any particular section or sentence, but rather must come from a considera- tion of the Act a s a whole." State ex rel. Jones v. Giles, 168 Mont. 130, 134, 541 P. 2d 355 (1975). However, examining the act a s a whole a s it was i n 1954, w e cannot say that the pervasive intent of the legislature was t o preclude retirement system members from receiving credit for out-of-state teaching service i n private schools. The statute was undoubtedly enacted for the purpose of benefiting Montana public school teachers to the exclusion of private school teachers. N o teacher i n a private school could ever meet the statutory definition of "teacher" in section 75-2701(4) and qualify for benefits i n the retirement system u n t i l he became a teacher i n ' the public schools of t h i s state. Once an individual became a Montana public school teacher, section 75-2705(9) controlled whether he received credit for out-of-state teaching service. To qualify for out-of-state teaching service credit, section 75-2705(9) required the applicant t o be "Any teacher who has become employed a s a teacher i n Montana * * *". (Emphasis added.) Teachers covered by the statute were teachers i n the public schools "of the state". Section 75-2701(4). The second use of the term "teacher" i n section 75-2705 (9) was clearly used i n its statutory sense. One must be employed as a public school teacher in Montana before he was eligible for out-of-state retire- ment credit in the Montana ~ e a c h e r s ' Retirement System. Just as clearly, however, the f i r s t use of the word "teacher" i n section 75-2705(9) could not have been used a s statutorily defined without rendering the section a nullity. Before becoming employed as a teacher i n t h i s state, no individual could meet the statutory definition of "teacher" because he is not then a teacher of the state of Montana. N o out-of-state credit could be given any teacher, public or private, if the statutory defini- tion were applied to the first use of the word "teacher". The first use of the word "teacher" in section 75-2705(9) must be the commonly understood definition--that is, one who teaches or instructs others--since a meaning different from the statutory definition "* * * is plainly required by the content . " Section 75- 2701,R.C.M. 1947. Respondents argue that interpreting section 75-2705(9) as allowing retirement credit for out-of-state teaching service in public and private schools alike "would create a grave disparity in the benefits afforded teachers transferring into the Montana [public] school sys tem from private schools'' within Montana. No section of the act allowed creditable service for other than public school teaching within the state of Montana. The legislature did not incorporate into the act a section expressing legislative policy. We do not have the benefit of the legislative debate which preceded enactment of the statute. We can, therefore, only hypothesize as to the legislative intent for the enactment of section 7 5 - 2 7 0 5 ( 9 ) . Logically, it would seem that a subsection which provided retirement credit for out-of-state teaching service was enacted to attract qualified teachers from outside the state into the Montana public school system. See: Driggs v. Utah State Teachers Retirement Board, 105 Utah 417, 142 P.2d 657, 663 ( 1 9 4 3 ) . That purpose would indeed best be served by providing attractive retirement benefits to qualified out-of- state private school and public school teachers alike. Out-of-state teachers entering the state public school system did not have this opportunity to purchase retirement credit for their out-of-state teaching service until the legislature amended the teachers' retirement act in 1949 with the addition of section 7 5 - 2 7 0 5 ( 9 ) . Whether by oversight or by design, the act was not further amended to provide Montana private school teachers with a similar opportunity to purchase retirement credit when they entered the state public school system. It is irrelevant what value judgment we place on the equities of the resultant distinc- tion between the opportunities for private in-state and private out-of-state teachers to purchase retirement credit for their private school teaching service when they enter the Montana Teachers' Retirement System. It is this Court's function to ascertain the legislative intent behind section 75-2705(9) and not to substitute therefor our own discretion or conception of what might have been more equitable. General Finance Co. v. Powell, 112 Mont. 535, 540, 118 P.2d 751 ( 1 9 4 1 ) . Rather, the benefits under the teachers' retirement plan are determined by the express provisions of the statute. The plain meaning of section 75-2705(9) was to pro- vide credit for out-of-state teaching service, without distinc- tion between out-of-state service in public or in private schools. Respondents argue that, despite its apparent plain meaning, the fact that section 75-2705(9) did not expressly refer to private school service creates an ambiguity as to whether the legislature intended the subsection to allow retirement credit for out-of-state private school teaching. Respondents assert that unsuccessful House Bills No. 301 and No. 589, introduced in the 1975 legislature to allow retirement credit for teaching in private schools, signified that the legislature at least impliedly approved respondent Board's interpretation of section 7 5 - 2 7 0 5 ( 9 ) . Respondents claim the Board has consistently interpreted section 75-2705 ( 9 ) as disallowing credit for out-of -state private school teaching, and that this Court should respect t h i s interpretation of an act which the Board has been empowered t o enforce and administer. These arguments of respondents are likewise without merit. The successful house b i l l s were introduced i n 1975, i n an attempt to amend not section 75-2705(9), but i t s replacement section 75-6213, R.C.M. 1947. The l a t t e r section enacted i n 1971, expressly l i m i t s retirement credit for out-of-state teaching t o service i n public schools, and is therefore substantially different from its predecessor section 75-2705(9). It is illogical to assume the failure of the b i l l s indicated legisla- tive approval of the Board's interpretation of section 75-2705(9), rather than merely ill-fated attempts t o amend the then existing law, section 75-6213. Even assuming the Board has consistently interpreted section 75-2705(9) to disallow retirement credit for private out-of-state teaching service, this Court is not bound by that administrative interpretation. State v. Toomey, 135 Mont. 35, 44, 335 P.2d 1051 (1.958). While.it is true the Board's construc- tion of the statute is entitled to respectful consideration by this Court: It* * * It is likewise true that when such practice is erronerously * * * established it is without per- suasive effect." State ex rel.City of Butte v. Healy, 105 Mont. 227, 233, 70 P.2d 437 (1937). In t h i s case, the Board's interpretation of a statute con- trary t o the plain meaning of i t s terms w i l l not be adopted by t h i s Court. Section 75-2705(9), R.C.M. 1947, as i n effect i n 1954, allowed any teacher i n the Montana State Teachers' Retire- ment System t o receive credit for "out-of-state teaching employ- ment." The legislature did not r e s t r i c t the credit t o public out-of-state teaching service, and w e w i l l not now judicially create such a restriction. "* * * Where the language of a statute is plain, unambiguous, direct and certain, the statute speaks for i t s e l f and there is nothing l e f t for the court to construe. [Citing cases. ] The function of the court i s simply t o ascertain and declare what i n terms or in substance is contained in the statute and not to insert what has been omitted." Dunphy v. Anaconda Co., 151 Mont. 76, 80, 438 P.2d 660 (1968). Appellant met each and a l l of the section 75-2705(9) re- quirements,to purchase retirement credit. F i r s t , he is a "teacher". Second, he has been "employed as a teacher in Montana". Third, he performed "out-of-state teaching employ- ment". Fourth, he made the contributions to the retirement fund which were required by statute. N o other requirements were present i n section 75-2705(9) and none can be implied. The order of the d i s t r i c t court is reversed and the Board is ordered to accept appellant's contributions into the retirement fund and to give appellant retirement credit for his out-of-state teaching service. W e Concur: n

November 15, 1977

66e85e4e-22b8-44a6-aa8a-f32a498bc2ec

IN RE GORE

N/A

13615

Montana

Montana Supreme Court

No. 13615 I N T H E SUPREME COURT O F T H E STATE O F M O N T A N A JERRY WAYNE GORE, RHONDA GAIL GORE, and FVILLIAM ROY GORE, 11, Youths i n Need of Care. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l District, Honorable R. D. McPhillips, Judge p r e s i d i n g . Counsel of Record: For Appellant: Howard F. S t r a u s e argued, Great F a l l s , Montana For Respondent: J. Fred Bourdeau, County Attorney, Great F a l l s , Montana C a r r o l l Blend, Deputy County Attorney, argued, Great F a l l s , Montana Thomas Mahan argued, Helena, Montana ~ c . 1 b6 F i l e d : , Submitted: September 12, 1977 Decided: OCT 26 19TI ./. Clerk Mr. Chief Justice Paul G . Hatfield delivered the Opinion of the Court. This is an appeal by the natural parents of three minor children from a judgment of the district court, Cascade County, the Honorable R. D. McPhillips presiding. Permanent custody of the children with the right to consent to adoption was awarded to the Department of Social & Rehabilitation Services (SRS) of the State of Montana. The stipulation of facts presented to the district court on July 8, 1976,provides a summary of the case: 1. In July, 1974, while the father was stationed at Glasgow Air Force Base, Glasgow, Montana, a social worker was contacted in regard to the hospitalized mother. 2 . On September 2, 1974, the mother gave birth to their third child. In late September and early October, the baby was treated by physicians in Glasgow and Great Falls for pyloric stenosis and hydrocephalism. 3. On October 18, 1974, the district court of the seven- teenth judicial district, Judge Thomas Dignan presiding, found the two older children to be dependent and neglected and ordered the award of temporary custody to SRS, pending filing of a petition for permanent transfer of custody. 4. On October 28, 1974, SRS petitioned the district court for a declaration of dependency and neglect of the two older children and the award of permanent custody to SRS. The hearing on the petition was held on December 13, 1974. On the same day the judge issued an order stating: (a) that the father was to be transferred on January 6, 1975, to Malmstron Air Force Base, Great Falls, Montana; (b) that the children were dependent and neglected and awarded custody to SRS until the father was transferred to Malmstrom; (c) that the parents obtain day care services for the children for at least six months; (d) that the parents obtain counseling from the Mental Health Center or military facilities in Great Falls; and (e) that the parents cooperate with SRS in Cascade County in regard to the children's care, health and welfare. 5. On December 11, 1975, a Cascade County social worker petitioned the district court for custody of the three children and a declaration of dependency and neglect. 6. On January 26, 1976, a hearing was held on the peti- tion. An order followed on January 29, 1976, stating: (a) that the father's duties prevented him from caring for and controlling the children; (b) that the mother had had a nervous breakdown and was unable to care for and control the children without strain upon her and them; (c) that the parents have shown deep love and affection for the children which the children reciprocated; (d) that the children are dependent and neglected and awarded custody to SRS until further hearing; (e) that the two older children are to be evaluated by a competent mental health professional; (f) that the parents obtain counseling; and (g) that SRS make recommenda- tions of the means and ways by which the children could be returned to their parents and work with the parents to that end. 7. On April 7, 1976, the parents petitioned for the return of the children to their custody. On June 2, 1976, SRS petitioned for permanent custody and authority to assent to adop- tion of the children. A hearing was held July 11, 1976, on the petition de- claring the children youths in need of care. At that hearing five witnesses testified for the SRS and six witnesses testi- fied for the parents. Based on the testimony at the hearing, and the stipulated facts, the district court issued findings of fact and conclusions of law on August 4, 1976. The district court concluded that the children were dependent and neglected children and granted the petition awarding permanent custody, includ- ing the right to consent to adoption to SRS. From this judgment the parents appeal. Two issues are raised on appeal: 1 . Did the district court abuse its discretion when it granted SRS's petition for permanent custody and authority to consent to adoption? 2 . Were the natural parents of the children denied their right to due process when their children were removed with- out a petition for custody being filed within 48 hours of such r emova 1 ? The attention of this Court is first focused on the district court order of December 13, 1974. Apparently, evidence existed to justify declaring the children dependent and neglected and to award custody to SRS. Custody of the children was return- ed to the parents on the condition that they comply with the order of December 13, 1974. Just one year later, a Cascade County social worker again petitioned the district court for custody of their children. Following extensive hearings, the district court, Cascade County, awarded permanent custody to SRS. The end result of the judicial proceedings finds two different district court judges declaring the children to be dependent and neglected. This Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the deter- mination by the district court will be made. Foss v. Leifer, Mont . , 550 p.2d 1309, 33 St.Rep. 528 (1976). Due to this pre- sumption of correctness, the district court's findings will not be disturbed unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion. Solie v. Solie, - Mont. - , 561 P.2d 443, 34 St.Rep. 142 (1977). The parents did not dispute the 1974 findings, nor the prerequisites required of them to regain custody of their children. The record shows that the parents were either unable, or unwilling, to comply with the 1974 court order. While the parents were ordered to obtain mental counseling, the records reveal that the mother received no counseling and that the father attended only one counseling session at Malmstrom Air Force Base. Counsel for the parents argues that the parents were not finan- cially able to obtain counseling. No evidence is found demon- strating the parents' efforts to obtain assistance or reduced counseling rates due to their financial status. The parents' un- willingness to obtain counseling was again repeated following the court order of January 29, 1976. This order, for the second time, required the parents to obtain counseling. The record gives testimony of four mental health professionals. Dr. Jones, a clinical psychologist, testified that the father was resentful and defiant. While being tested, he voiced distaste for having to undertake the tests. The mother cancelled her appointment either because she could not or would not come to see the doctor. At a later date, Dr. Jones had to fit the mother into his schedule. The father was able to bring the mother in at that time on account of her being in the right frame of mind. Dr. Haire, a clinical psychologist, testified that the father was not tested because he was so bitter. The doctor could not test without absolutely insisting, and this he did not want to do. The mother was not seen by Dr. Haire since she refused to come in. Mr. Hiber, a mental health professional, reported doing a court ordered evaluation of both parents. While the parents expressed interest in continuing treatment with Mr. Hiber, they did not embark on a counseling program following Mr. ~iber's report. Mr. Hiber was also unaware of any participation by the parents in any ongoing treatment program. The fourth mental health professional, Dr. Shubat, did not interview nor test the parents. The 1974 order required the parents to cooperate with SRS in Cascade County. Testimony of a Cascade County social worker reveals that the 2arents placed their children in a day care center as required. The father frequently visited the SRS office to discuss the situation. The mother also came at times, but during discussion of what was expected of the parents, she walked out. The parents were given information and telephone numbers of the mental health clinic. No efforts to obtain counsel- ing were known by SRS. During a hearing in July, 1976, testimony was given that the father had become violent in the SRS office. The father did not physically injure anyone, but he did threaten to do so and slammed chairs against the wall. No purpose would be served by a further extended dis- cussion of the evidence before this Court. In 1974 the district court placed a burden on the parents to comply with the court order to regain custody of their children. The parents failed to show that they complied. On August 4, 1976, the district court, after hearing oral testimony and considering medical reports, made as a finding of fact that the parents had enotional problems requiring professional assistance and though ordered to obtain assistance, they had failed to acquire such help. The parents had the burden to show that the district court's finding in 1976 was not supported by credible evidence and amounted to a clear abuse of discretion. This was not done. Two times the parents were ordered to obtain mental counseling, but nowhere is there evidence that any counseling was obtained nor any ongoing program taken. This Court will not hold the children hostage for the good behavior of the parents. The parents were ordered to obtain help but refused to seek this help, even after 21 months of proceedings before the courts. The parents were ordered twice to comply, but finally in August, 1976, the district court ruled that time had run out and it would not be in the children's best interest to allow the parents to continue to raise them, The children's rights also merit consideration by this Court. The children were adjudged dependent and neglected twice. This finding is the jurisdictional prerequisite for any court ordered transfer of custody. In the Matter of ~eclaring Heather Marie Fish a Dependent and Neglected Child, Mont . - 1 - P.2d , 34 St.Rep. 1080 (1977). Once there is a showing of dependency or abuse or neglect by the natural parents as defined by section 10-1301, R.C.M. 1947, the "best interests of the child" test is the appropriate basis for determining custody. In re Guardianship of Doney, Mont . - 1 - P.2d , 34 St.Rep. (No. 13813, filed October 14, 1977); Henderson v. Henderson, Mont . - 1 - P.2d , 34 St.Rep. 942 (1977). The entire thrust of the child psychologist testimony was that the children were mentally disabled. Disagreement exist- ed as to whether the mental deficiencies were caused by organic, genetic problems or the environment the children were being raised in. Nevertheless, the record is clear that the children needed help. Dr. Shubat so states: " * * * both children are children that are in need of special educqtion. They are also in need of special help now, today, emotionally and educationally." Section 10-1300(1), R.C.M. 1947, states that the de- clared policy of Montana is: "(1) to ensure that all youth are afforded an adequate physical and emotional environment to promote normal development," Abuse or neglect is defined in section 10-1301(2), R.C.M. 1947, as: (2) 'Abuse' or 'neglect' means: "(a) The commission or omission of any act or acts which materially affect the normal physical or emotional development of a youth, any exces- sive physical injury, sexual assault or failure to thrive, taking into account the age and medi- cal history of the youth, shall be presumptive of 'material affect' and nonaccidental; or "(b) The commission or omission of any act or acts by any person in the status of parent, guardian or custodian who thereby and by reason of physical or mental incapacity or other cause, refuses, or with state and private aid and assis- tance is unable to discharge the duties and re- sponsibilities for proper and necessary subsis- tence, education, medical or any other care neces- sary for his physical, moral and emotional well- being. " Children have the right under the "best interest test" to receive normal physical and emotional development. By looking at the totality of the circumstances the court may determine what is the child's "best interest". In the case at hand the parents are not capable of pro- viding for the special needs of their children. The parents failed to demonstrate their desire or ability to seek help. Their children are shown to need special help for normal physical and emotional development. This Court has been called on before to decide what is the "best interest" for the children where the natural parents are involved. In In re Declaring Olson Dependent, 164 Mont. 431, 434, 524 P.2d 779 (1974)) this Court in quoting from In re Bad Yellow Hair, 162 Mont. 107, 509 P.2d 9 (1973) stated: " ' * * * The children's best interest and wel- fare, not that of the natural mother, is the paramount consideration [citing cases]. We are mindful that ordinarily a child's interests and welfare will best be served by retaining custody in the natural parents. However, the circum- stances of the individual case may require a different result. ' " See also: In the Matter of Burgdorf & Berry, Mont. - ' 551 P.2d 656, 33 St.Rep. 605 (1976); Foss v. Leifer, Mont . I There is ample evidence to warrant the removal of these children from their parents. The district court correctly follow- ed the dictates of the Montana statute. As this Court stated be- fore in Olson, 164 Mont. at 435: " * * * It may be that it would be to the best interests of the mother for her to retain these children, but certainly, based upon the evidence presented, it would not be in the best interests of the children. This Court has repeatedly pointed out--the primary consideration is the best interests of the children." Issue number two has no merit due to the particular facts of this case. The parents did not object to the late filing of the petition under section 10-1309, R.C.M. 1947, until several hearings and approximately six months later. The parents were no strangers to court proceedings and workings of SRS as a result of the prior child custody hearing. The district court was in the best position to weigh the evidence of the parents as to the prej- udicial effect of filing the petition ten days late. Bauer v. Chaussee, Mont. , 567 P.2d 448, 34 St.Rep. 778 (1977); Mont . Olson v. Westfork Properties, Inc., , 557 P.2d 821, 33 St. Rep. 1133 (1976). While issue two is not a controlling issue, this Court strongly condemns the negligent disregard of section 10-1309 by the SRS and county attorney. By statute, a petition shall be filed within 48 hours following the emergency removal and placing of a youth in a protective facility. SRS failed to comply in this case. SRS was acting under the guise of the law when it removed the children. SRS therefore has a duty to strictly adhere to the requirements of that same law. Removal of children from their parents is an area too sensitive to allow any abuse or noncompliance of the law. The extensive publicity given this case has brought another serious matter to the attention of this Court. The names of the parties in this action have been purposely deleted. This Court directs that in this and in future cases under section 10-1300 et. seq., all names of parties involved shall be removed to avoid publicity of the minor parties involved, in both the district and Supreme Courts We concur:

October 26, 1977

74514487-6eb5-43f3-85a9-bd7653234d8d

STEWART v BOARD OF CO COMMISSIONE

N/A

13766

Montana

Montana Supreme Court

No. 13766 IN THE SUFREME COURT OF THE: STATE OF MONTANA 1977 BENITO STEWART and ANGELA STEWART, husband and wife, Respondents and Plaintiffs, -vs- BOARD OF COUNTY COPMISSIONERS OF BIG HORN COUNTY, MONTFJ~A, Appellant and Defendant. MARY BROKEN ROPE, Appellant and Plaintiff, -vs- BOARD OF COUNTY COBLMISSIONERS OF BIG HORN COUNTY, MONTANA, Respondent and Plaintiff, -vs- MARY ELIZABETH TOBACCO, Appellant and Plaintiff -vs- BOARD OF COUNTY COMMISSIONERS OF BIG HORN COUNTY, MONTANA, Respondent and Defendant. Appeal from: District Court of the Thirteenth Judicial District, Honorable Leonard H. Lanqen, Judge presiding. Counsel of Record: For Appellants: Hon. Mike Greely, Attorney General, Helena, Montana Mike McCarter, Assistant Attorney General, argued, Helena, Montana James E. Seykora, County Attorney, argued, Hardin, Montana For Respondents: Edwin Dyer argued, Hardin, Montana William D. Hutchinson argued, Helena, Montana Submitted: December 5, 1977 Mr. Justice Frank I. Haswell delivered the Opinion of the Court. These three cases were consolidated on appeal because they involve the same issues. The plaintiffs brought suit to have certain tax deed sales declared null and void and to exercise their alleged statutory preferential right of repurchase. The defendant Board of County Commissioners appeal from the District Court's decision in Stewart, and the plaintiffs in Broken Rope and Tobacco appeal from the decisions for the defendant Board in those cases. Benito and Angela Stewart, husband and wife, owned certain real property in Wyola, Montana. The Stewarts fell delinquent in their real property taxes, and on March 3, 1975, Big Horn County acquired the property by tax deed. On April 9, 1975, this property was sold at public auction to Mr. and Mrs. Gilbert Harris. Mary Broken Rope owned certain real property located in Crow Agency, Montana, and Mary Elizabeth Tobacco owned certain real property located in Wyola, Montana. They also fell delinquent in their real property taxes. On June 30, 1975, Big Horn County ac- quired these properties by tax deed and on November 17, 1975, it offered them for sale at public auction. Daniel and Carlene Old Elk purchased the Broken Rope property under a contract of sale dated November 18, 1975, and Clarence and Violet Englert purchased the Tobacco property at the November 17, 1975 public sale. The plaintiffs in all these cases filed similar complaints against the Board of County Commissioners alleging that the Board did not comply with section 84-4190, R.C.M. 1947, the statute govern- ing the procedure for sale of county tax deed lands, and that there- fore the sales of these particular properties were null and void. Section 84-4190 requires the Board to determine the fair market value of the property for sale, to state that value in the ~otice of Sale, and to make no sale of the property for less than that value. The plaintiffs allege that this statute requires the Board to make an objective determination of the fair market value of the properties according to certain accepted methods of determining fair market value but that the Board failed in this respect because the Notices of Sale placed an "unreasonably low value" upon their properties. They further allege that once the sales are set aside, they should be allowed to exercise their statutory right of repur- chase under section 84-4190 and that they stand "ready, willing and able" to exercise this right. In all three cases, the defendant Board filed motions to dismiss for failure to state a claim for relief. These motions were subsequently denied. The Board then answered the complaints and alleged the following affirmative defenses: (1) Section 84-4190 states that the Board of County Commissioners shall determine and fix the fair market value of the properties to be sold, thus leaving the entire appraisal value in the discretion of the Board; (2) the complaints failed to state a claim for relief; and (3) the applicable statute of limitations barred the action. In the Stewart and Broken Rope cases, interrogatories and answers were filed indicating the procedure the Board followed in establishing the fair market value of the properties. In all three cases, the parties stipulated as to the appraised values contained in the Notices for Sale and the amount of the taxes, penalties and interest due at the time of the taking of the tax deed by Big Horn County on all properties offered for sale at the April 9, 1975 and November 17, 1975 public sales. The plaintiffs contend that the answers to interrogatories and the stipulations demonstrate that the Board established the fair market value of these properties merely by rounding off to the nearest whole number the amounts owed on the properties for taxes, penalties and interest and that such method of establishing the fair market value was arbitrary. Both parties in the three cases moved for summary judgment. After briefs were submitted and oral argument heard, the District Court entered judgment in favor of the Stewarts in Stewart, and in favor of the Board in Broken Rope and in Tobacco. The losing parties appealed. Both sides have raised numerous issues on appeal regarding the action taken in the District Court. In addition the Board asserts for the first time on appeal several procedural issues including whether the plaintiffs lack standing to challenge the method by which the Board determined the fair market value of the properties in question. Because we feel the standing issue must be decided adversely to the plaintiffs, we will not discuss the other issues which the parties have raised. The concept of standing arises from two different doctrines: (1) Discretionary doctrines aimed at prudently managing judicial review of the legality of public acts, 13 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 83531 at 176; and (2) doctrines of constitutional limitation in the federal courts drawn from the "cases and controversies" definition of federal judicial power in Article 111, United States Constitution and in the Montana courts drawn from the "cases at law and in equity" definition of state judicial power in Article VII, 1972 Montana Constitution. Prior Montana cases which have dealt with the issue of standing have considered it in the context of challenges to the constitutionality of legislative enactments, Chovanak v. Matthews (1948), 120 Mont. 520, 188 P.2d 582, and in the context of taxpayer and elector suits, State ex rel. Mitchell v. District Court (19541, 128 Mont. 325, 275 P.2d 642; Holtz v. Babcock (1963), 143 Mont. 341, 389 P.2d 869, reh-den. (1964), 143 Mont. 371, 390 P.2d 801; and State ex rel. Conrad v. Managhan (1971), 157 Mont. 335, 485 P.2d 948. From these cases we synthesize that the issue presented for review must represent a "case" or "controversy" within the judicial cognizance of the state sovereignty. Additionally, the following minimum criteria are necessary to establish standing to sue a governmental entity: (1) The complaining party must clearly allege past, present or threatened injury to a property or civil right; and ( 2 ) the alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complaining party. What injury to a property or civil right have the plaintiffs alleged? In their brief, the plaintiffs argue that section 84-4190 requires the Board to appraise and sell tax deed properties at their fair market value, not an arbitrarily selected lower value, "in order to protect the interest of the taxpayers of the County as a whole." Apparently, their theory is that properties sold for less than their fair market value will decrease county revenues thereby eventually increasing county taxes. The plaintiffs, however, do not allege in their complaints that they are taxpayers of Big Horn County and therefore, have elected not to base their standing on a taxpayer status. Instead, they allege that the injury they will suffer if the tax deed sales are declared valid is to deprive them of their pre- ferential right to repurchase their properties under section 84-4190. This right allows them to repurchase their properties by paying only the taxes, penalties and interest due instead of paying the property's fair market value as determined by the Board of County Commissioners. The preferential right of repurchase in section 84-4190 is not an absolute right, but a defeasible right. This right vested in the former owners of tax deed property is defeated if he does not pay the taxes, penalties and interest due " * * * before the time fixed for the first offering of said property for sale * * *." Section 84-4190, R.C.M. 1947. Although one of the tax deed properties involved in these cases was offered for sale and sold on April 9, 1975, and the property in the other two cases was offered for sale and sold on or about November 17, 1975, the plaintiffs apparently at no time have attempted to make the required payments. In their complaints, they allege only that they stand "ready, willing and able" to exercise their preferential rights of repurchase. Plain- tiffs have not alleged in their complaints that they have complied with the provisions of section 84-4190 by making tender of the taxes, penalties and interest due on their properties before the respective first offerings of their property for sale. Due to their own inac- tion, the preferential right granted them by section 84-4190 no longer exists. Having lost their preferential right to repurchase, the plaintiffs have alleged no injury to a property or civil right. We therefore hold that they lack standing to sue the Board of County Commissioners for alleged improper procedure in the tax deed sales of their former properties. Plaintiffs argue that if this Court were to declare the tax deed sales null and void for failure of the Board of County Comrnis- sioners to follow proper statutory procedure in the sale of the property, they would still he able to exercise their preferential right of repurchase "before the time fixed for the first offering" of the property for sale. This contention cannot withstand an examination of the legislative history of section 84-4190. The original predecessor of the preferential right of repur- chase provision in section 84-4190 was first enacted in 1933. The history of amendments to this section demonstrates that the legis- lature has constantly narrowed the time frame within which the preferential right may be exercised. As initially enacted in 1933, and then re-enacted in 1939, the statute provided that the taxpayer could exercise the right "at any time before such sale". 1933 Mont. Laws (~xtra.), Ch. 33, S1; 1939 Mont. Laws, Ch. 181, S1. This Court held that under this language if the property was offered for sale but not sold, the taxpayer could still exercise his preferential right of repurchase. State ex rel. Johnson v. Garfield Co. (1944), 116 Mont. 300, 151 P.2d 481. In 1941, the legislature amended the statute to read that the taxpayer could exercise the right "at any time before the date fixed for such sale". 1941 Mont. Laws, Ch. 171, S1. Under this language even though the property had been offered for sale but not sold, the taxpayer was precluded from later exer- cising his preferential right of repurchase. Beckman Bros. v. Weir (19471, 120 Mont. 305, 184 P.2d 347. The 1941 amendment left unresolved the situations where the Board set one date for the sale but because no sale was made, it later set a second date for the sale, or as in the instant case where the sale is made but is later declared null and void. The 1945 amend- ment resolves these situations. The legislature amended the statute to its present form; the taxpayer could exercise his preferential right of repurchase "at any time before the time fixed for the first offering of said property for sale." 1945 Mont. Laws, Ch. 144, S1. The clear emphasis of this language is on the time fixed for the first offering of the property for sale, not on whether the sale was actually consummated or whether it was later set aside. The legislative amendments to this statute evince an intent to fix a pre- cise time at which the taxpayer's right to repurchase is defeated. That time is at the "first offering" of the property for sale, not at the first completed sale or at the first unchallenged sale. A first offering of the properties for sale was made on April 9, 1975 for one of the properties and on November 17, 1975 for the other properties. The plaintiffs did not allege in their com- plaints that they tendered payment before those respective dates. Under no set of facts that they have alleged have they shown injury to themselves for which this Court may grant relief. Plaintiffs argue that the defendant Board is raising the issue of standing for the first time on appeal and that under the rule in LaBonte v. Mutual Fire & Lightening Ins. Co. (1925), 75 Mont. 1, 241 P. 631, the Board is now precluded from raising this defense. The question raised in LaBonte, however, was whether the plaintiff was the real party in interest, not whether the plaintiff had standing to sue. The concepts of "standing to sue" and "real party in interest" are very different. 6 right & Miller, Federal Practice & Procedure: Civil 81542. Objections to standing cannot be waived and may be raised by the court sua sponte. United States v. Storer Broadcasting Co. (19561, 351 U.S. 192, 197, 76 S.Ct. 763, 100 L.Ed. 1081; 6 Wright & Eliller, Federal Practice & Procedure: Civil 81542 at 642-43. The judgment in Stewart is reversed and the judgments in Broken Rope and Tobacco are affirmed. - T - & ? . p 4 Justice We Concur: > Justices

December 30, 1977

e55a216b-a7e1-4f63-a8b0-52c0b18149c1

COUNTY OF BLAINE v MOORE ST JAM

N/A

13578

Montana

Montana Supreme Court

No. 13578 I N T H E SUPREME COURT O F T H E STATE O F M O N T A N A C O U N T Y O F BLAINE, STATE O F M O N T A N A , P e t i t i o n = and Appellant, EDWIN S. M O O R E and ST. JAMES C O M M U N I T Y HOSPITAL, Respondent and Respondent. Appeal from: D i s t r i c t Court o f t h e Twelfth J u d i c i a l D i s t r i c t , Honorable B. W. Thomas, Judge p r e s i d i n g . Counsel of Record: For Appellant: Solem and MacKenzie, Chinook, Montana S t u a r t C. MacKenzie argued, Chinook, Montana For Respondent: C o r e t t e , Smith and Dean, B u t t e , Montana Gerald R. Allen argued, Butte, Montana , , 6 - . : - >. F i l e d : I Submitted: June 1, 1977 Decided: SEP i/i ;CJT~, Mr. Justice Gene B. Daly delivered the Opinion of the Court. The County of Blaine, State of Montana, appeals from the final judgment and order of the district court, Blaine County. The district court affirmed the administrative decisions of the Department of Social and Rehabilitation Services (SRS) which ordered Blaine County, as the county of financial respon- sibility, to pay approximately $30,000 in medical debts incurred by Edwin S. Moore and his wife. Edwin S. Moore and his wife, Marlene Moore, were married March 9, 1969. Prior to moving to Montana in the early fall, 1969, Mr. Moore was employed in a teaching position in Oklahoma. Moore is of Indian descent from the Creek Tribe in Oklahoma. Marlene Moore is an enrolled member of the Fort Belknap Indian Reservation. Upon their marriage the Moores took up residence on the ranch of Marlene's parents located at Lodgepole, Montana, in Blaine County. In February, 1970, Moores moved to Denver, Colorado, where he was employed as an iron worker on construction jobs until December, 1972. Marlene returned to her parents' ranch on Decem- ber 24, 1972 and Moore joined her the following day. The Moores resided on the ranch at Lodgepole until September, 1973 when they moved to Havre in Hill County. Both attended Northern Montana College and resided in a married student housing unit. The Moores returned to the ranch at Lodgepole on weekends and over Christmas vacation. In April, 1974, Moores moved out of the married student housing unit and transported all their personal property back to the ranch at Lodgepole. Neither of the Moores attended classes during spring quarter, but during the summer, 1974, Moore commuted from the ranch at Lodgepole to Northern Montana College. In September, 1974, Moore obtained employment as an Indian counsellor with the Anaconda Public School System. The Moores moved to Anaconda, Deer Lodge County. Moore was assisted in obtain- ing this employment by the Employment Assistance Office of the Bureau of Indian Affairs, Fort Belknap Indian Reservation. The Bureau of Indian Affairs paid the Moores' moving expenses and provided an initial subsistance allowance. On August 2, 1974, when the Moores filed the Application for Economic Assistance with the Bureau of Indian Affairs, Marlene also filled out a statement of medical history stating that she was pregnant. On September 27, 1974, Marlene was admitted to Community Hospital in Anaconda where she gave birth to a baby girl. She was released from Community Hospital on October 3, 1974. Com- plications from the pregnancy required that she be readmitted to Community Hospital on October 7, 1974. She was transferred, under emergency conditions, to St. James Community Hospital, Butte, Montana, Silver Bow County, on October 23, 1974. Marlene was not released from St. James Community Hospital until December 28, 1974. In the meantime, Moore had been suspended from his employment with the Anaconda Public School System. The Moores returned to Lodgepole and have resided there since her release. The Moores have incurred medical expenses of approximately $30,000 and are without funds to pay these medical debts. Marlene was insured under the Blue Cross of Montana health care plan provided by Moore's employer. However, benefits for obstetrical care or complications of pregnancy are available only if child birth occurs after nine months of continuous family membership. The Moores failed to satisfy the waiting period. On October 8, 1974, Donald Martin, Service Unit Director of the Fort Belknap Public Health Service, denied Indian Health Service coverage for maternity care to Mrs. Moore on the ground "our contract medical care funds are limited to only those persons who are permanent residents of this service unit delivery system area. " The Moores subsequently filed in Deer Lodge County an Application for General Assistance County Medical Benefits. The welfare department, Deer Lodge County, on the basis of the application submitted, determined that Blaine County was the place of Moores' residence. Deer Lodge County forwarded the application to Blaine County by letter dated December 10, 1974. Blaine County denied Moores' application on March 7, 1975, on the grounds the Public Health Service was the resource responsible for satisfying the medical debts of the Moores and Mr. Moore's income exceeded Blaine County's standard for determining eligibility for general assistance. On April 14, 1975, Moore requested a fair hearing before a hearings officer of the Department of Social and Rehabilitation Services, State of Montana, because of Blaine County's denial of county medical assistance. Additionally, on April 15, 1975, St. James Community Hospital requested a fair hearing for Moore. On June 19, 1975, a hearing on the matter was held in Blaine County, Chinook, Montana. Moores were not present at the hearing. Blaine County objected to SRS granting a fair hearing to St. James Community Hospital on the grounds St. James Community Hospital lacked standing to request a fair hearing and the hospital failed to obtain written authorization to act on behalf of the Moores. Blaine County sought a continuance of the fair hearing on the ground the Moores failed to satisfy residency requirements, a condition precedent for submitting to Blaine County an Application for General Assistance County Medical Benefits. The hearings officer denied Blaine County's motions and proceeded with the hearing while allowing Blaine County to introduce evidence regard- ing the issue of Moores' residence. On July 1, 1975, the SRS hearings officer issued Fair Hearing Decision No. 163, which concluded as a matter of law: "Mr. and Mrs. Moore must be classified as indigent persons entitled to medical aid and hospitalization, who were unable to provide such necessities for themselves because of a catastrophic misfortune resulting in a medical debt of approximately $30,000.00. Section 71- 308, R.C.M. 1947, indicatels that 'Medical aid and hospitalization for persons unable to provide such necessities for themselves are hereby declared to be the legal and financial duty and responsibility of the Board of County Commissioners.' In this particular case, Hill County becomes the county of financial responsibility * * *." The hearings officer ordered: "That Blaine County be upheld in their denial of General Assistance County Medical to Edwin and Marlene Moore since the county of financial responsibility is Hill County and that the Hill County Board of Commissioners be directed to pay Mr. and Mrs. Moore's medical claims resulting in approximately $30,000.00." The hearings officer based his order on the finding that the Moores, while residing in the married student housing unit at Northern Montana College in Hill County, were residents of Hill County pursuant to the provisions of section 71-302.2, R.C.M. On July 9, 1975, St. James Community Hospital appealed from Fair Hearing Decision No. 163 so far as it related to the finding that Moore was a resident of Hill County for purposes of determining eligibility to receive aid. Hill County also filed an appeal claiming Hill County was not notified of the fair hearing, as required by section 82-4209, R.C.M. 1947; Hill County was denied due process of law; and Moore was a resident of Blaine County. On August 29, 1975, the Board of Social and Rehabilitation Appeals issued its decision holding: "1. St. James Community Hospital is properly a party to the action; "2. That Mr. Moore does not now have, nor is it reasonably expected that he will have in the fore- seeable future, resources which will enable him to pay the medical debts relating to his wife's illness; "3. That a separate hearing be held to determine residence and the county of financial responsibility and that all parties involved be present and be given an opportunity to be heard. Based upon the information presented at the hearing, the ~earings Officer shall determine the county of residence." On October 2, 1975, Blaine and Hill Counties petitioned the district court, Blaine County, for review of the findings of the hearings officer in Fair Hearing Decision No. 163 and review of the administrative order and decision of the Board of Social and Rehabilitation Appeals. St. James Community Hospital moved to dismiss the petition on the ground Blaine and Hill Counties had failed to exhaust all administrative remedies available to them. On November 10, 1975, the district court issued an order dismissing Blaine and Hill counties' petition for review of administrative proceedings on the grounds a final de- cision on all issues before the administrative agency had not been rendered and the appeal of the petitioners was premature. A rehearing of Fair Hearing Decision No. 163 was held in Blaine County, Chinook, Montana on November 18, 1975. As re- quested by the Board of Social and Rehabilitation Appeals in their decision of August 29, 1975, the rehearing was limited to a deter- mination of the Moores' county of residence and the county of financial responsibility. Moores were present at the rehearing. St. James Community Hospital presented a written authorization, signed by Moores, allowing St. James Community Hospital to act in behalf of the Moores, in connection with the rehearing. The authorization was dated November 18, 1975. On November 20, 1975, the SRS hearings officer issued re- hearing of Fair Decision No. 163 which concluded as a matter of law: "In conclusion, Mr. and Mrs. Moore are residents of Blaine County. When returning to Montana from Colorado, they became new residents of the State beginning December 24, 1972. From this date on, they considered Blaine County as their residence until actually moving to Anaconda, Montana, in September 1974. However, the Moores, for welfare purposes, would remain residents of Blaine County, even though residing in Deer Lodge County, for up to one (1) year but, in this case, they chose to return to Blaine County in December 1974." The hearings officer ordered: "That the original order of July 1, 1975, upholding Blaine County's action to deny General Assistance County Medical and directing Hill County to pay Mr. and Mrs. Moore's medical claims be hereby amended and it is hereto ordered that Blaine County is the county of financial responsibility based on evidence of residency provided by Mr. and Mrs. P4oore at the rehearing held on November 18, 1975. Blaine County is, therefore, the county of financial responsibility and is directed to pay Mr. and Mrs. Moore's medical debts incurred during the time in question of approximately $30,000.00." Blaine County appealed the rehearing of Fair Hearing Decision No. 163 to the Board of Social and Rehabilitation Appeals. The Board issued its decision on January 28, 1976, affirming the revised order of the hearings officer. On February 27, 1976, Blaine County filed a petition in the district court, Blaine County, seeking judicial review of the SRS administrative proceedings, pursuant to section 82-4217, R.C.M. 1947. The district court, after hearing oral arguments, review- ing and considering the administrative proceedings and briefs of counsel, affirmed the administrative decisions of SRS, having failed to find a basis for reversal or modification of those ad- ministrative decisions under the provisions of section 82-4217, R.C.M. 1947. Judgment was accordingly entered for respondents on July 13, 1976. Blaine County appeals to this Court from the final order and judgment of the district court, Blaine County. Blaine County raises the following issues for review: 1 . Whether the hearings officer erred when he denied Blaine County's motions for dismissal or continuance in Fair Hearing No. 163 when the claimants (Moores) failed to appear? 2. Whether the hearings officer and the Board of Social and Rehabilitation Appeals erred when they concluded St. James Community Hospital was a proper party which had standing to pursue the Moores' claim for county medical benefits and had standing to appeal Fair Hearing Decision No. 163? 3. Whether the hearings officer erred in failing to find the Indian Health Service the resource responsible for satisfying the medical debts of the Moores? 4. Whether the Board of Social and Rehabilitation Appeals erred in limiting the scope of rehearing of Fair Hearing Decision No. 163 to a determination of the Moores' county of residence? 5. Whether the hearings officer, Board of Social and Rehabilitation Appeals and district court erred in finding Blaine County the resource financially responsible for paying the medical debts of the Moores? The first two issues raised by Blaine County challenge St. James Community Hospital's standing as a proper party to pur- sue the Moores' claim for county medical benefits. The depart- mental rules of the Montana Department of Social and Rehabilita- tion Service provide: "46-2.2(2)-P240 CONTESTED CASES, REPRESENTATION (1) A claimant may be represented by legal counsel, or by a relative, friend, or other spokesman, or he may represent himself. A departmental employee may not represent a claimant. "(2) In the discretion of the Fair Hearing Officer, a hospital, nursing home, physician or other vendor may act in a representational capacity for the pur- poses of requesting a fair hearing and acting as spokesman for a claimant where a hardship exists which impedes the obtainability of a written authorization from the claimant to act in such a capacity." Although St. James Community Hospital obtained written authorization from the Moores in time for the rehearing, the hospital lacked such written authorization at the time of the initial fair hearing. Two months lapsed between the date St. James Community Hospital petitioned for a fair hearing and the date of the fair hearing. The hospital contends it made good faith efforts to contact Moore in Lodgepole, but were unsuccess- ful in obtaining a response. The good faith efforts of the hospital are supported by evidence that the Blaine County Welfare Department was also unsuccessful in contacting Moore. Once the hospital did obtain written authorization on November 18, 1975, Moore ratified all previous actions of the hospital in the Moores' behalf and authorized the hospital to further pursue the Moores' claim. Blaine County contends the absence of the Moores at the fair hearing is fatal to any force or effect given the hearings officer's findings of fact and conclusions of law and decision. In support of its argument Blaine County cites the SRS departmental rules, MAC 46-2.2 (2) -P2040 (6) , which provides: "(6) A hearing may otherwise be considered as concluded when the claimant or authorized repre- sentative withdraws his request for a fair hear- ing in writing or fails to attend a properly noticed hearing without good cause. The hearing officer shall inform the claimant by letter of the date his claim shall become a closed issue as a result of said failure to attend. A second hearing may be scheduled at the discretion of the hearing officer for good cause. A hearing may also be concluded by stipulation, consent order, or settlement." We believe this departmental rule must be read in conjunc- tion with MAC 46-2.2(2)-P240(2) which places in the discretion of the fair hearings officer the determination of whether a hospital may act in a representational capacity for purposes of requesting a fair hearing and acting as spokesman for the claimant. In the instant case the hearings officer concluded there was justifica- tion for the hospital's failing to obtain written authorization from the claimant in time for the fair hearing. We fail to find substantial evidence which would indicate the hearings officer abused his discretion in arriving at this determination. This Court held in Montana Deaconess Hospital v. Lewis and Clark County, 149 Mont. 206, 210, 425 P.2d 316, a hospital has standing, as a real party in interest, to bring a cause of action to collect county welfare medical benefits for emergency medical care rendered by the hospital for an individual eligible to receive county welfare medical assistance. In Montana Deaconess Hospital v. Lewis and Clark County we stated: " * * * If hospitals were to reject admission of emergency cases until the legal settlement is established, or until one who is responsible accepts the obligation to care for such indigent, much harm could result." Similarly, much harm could result if hospitals, under the facts of the present case, could be denied a vehicle for recovering the costs expended for emergency medical care merely because a claim- ant fails to appear at a fair hearing. We conclude the hearings officer in the instant case did not abuse his discretion when he determined the hospital was a proper party which had standing to request a fair hearing and pursue the Moores' claim for county welfare medical assistance in the Moores' absence. Nor did the Board of Social and Rehabilitation Appeals err when it determined the hospital had standing to appeal Fair Hearing Decision No. 163. The third issue raised by Blaine County challenges the hearings officer's failure to find the Indian Health Service the resource responsible for satisfying the medical debts of the Moores. Blaine County contends the Moores should be denied county welfare assistance since the Indian Health Service is responsible for providing the Moores medical care. Blaine County refers to specific provisions of the Bureau of Indian Affairs manual, which purportedly provides maternity care benefits up to eleven months after relocation when the claimant receives relocation assistance from the Bureau of Indian Affairs, and the existence of past and pending federal cases which address the issue of the Indian Health Service "responsibility to provide medical care to 'off- reservation Indians.'" MAC 46-2.10(18)-S11490 provides: "(a) Third party includes an individual, insti- tution, corporation, public or private agency who is or may be liable to pay all or part of the medical cost of injury, disease or disability of an applicant or recipient of medical assistance. " (b) Referrals shall be made to the Legal Unit, Department of Social and Rehabilitation Services, P. 0 . Box 1723, Helena, Montana 59601, for exam- ination. The Legal Unit shall make referrals to the Department of Revenue for recovery.'' (Emphasis added. ) The evidence clearly establishes that the Indian Health Service refuses to give medical assistance to the Moores. 42 CFR 36.12 indicates there may be regulatory justification for the Indian Health Service's denial of medical assistance to the Moores : "836.12 Persons to whom services will be provided. "(a) In general. (1) Services will be made avail- able, as medically indicated, to persons of Indian descent belonging to the Indian community served by the local facilities and program, and non-Indian wives of such persons. "(2) Generally, an individual may be regarded as within the scope of the Indian health and medical service program if he is regarded as an Indian by the community in which he lives as evidenced by such factors as tribal membership, enrollment, residence on tax-exempt land, ownership of restricted property, active participation in tribal affairs, or other relevant factors in keeping with general Bureau of Indian Affairs practices in the juris- diction. " (b) Doubtful cases. (1) In case of doubt as to whether an individual applying for care is within the scope of the program, the Medical Officer in Charge shall obtain from the appropriate Bureau of Indian Affairs officials in the jurisdic- tion information pertinent to his determination of the individual's continuing relationship to the Indian population group served by the local program. "(2) If the applicant's condition is such that immediate care and treatment are necessary, ser- vices shall be provided pending identification as an Indian beneficiary. "(c) Priorities when funds, facilities, or personnel are insufficient to provide the indicated volume of services. Priorities for care and treatment, as among individuals who are within the scope of the program, will be determined on the basis of relative medical need and access to other arrangements for obtaining the necessary care." (Emphasis added.) In any event, we fail to find merit in Blaine County's argument that the Moores must litigate a potential right to federal resources prior to seeking county welfare medical assistance. Upon being denied federal assistance, the Moores elected to apply for county welfare medical assistance and under the circumstances they are entitled to such assistance. The fourth and fifth issues raised by Blaine County con- cern the problem of determining the Moore's residence as it applied to the finding that Blaine County was the county of financial responsibility for purposes of paying the medical debts of the Moores. It should be noted that BlaireCounty does not contest SRS's finding that the Moores are indigent persons entitled to county welfare medical assistance. See State ex rel. Hendrickson v. Gallatin County, 165 Mont. 135, 526 P.2d 354; Saint Patrick Hospital v. Powell County, 156 Mont. 153, 477 P.2d 340. The difficulty arises when one attempts to determine the county of financial responsibility under Montana's statutory scheme. Section 71-305, R.C.M. 1947, in pertinent part provides: "Medical aid and hospitalization. (1) Medical aid and hospitalization for nonresidents within the county and county residents unable to provide such necessities for themselves are the legal and financial duty and responsibility of the board of county commissioners, except as otherwise provided in other parts of this act, payable from the county poor fund." MAC 46-2.10(38)-S101970 provides: "46-2.10(38)-S101970 COUNTY RESIDENCY (1) For determination of applicant's county residency requirements, reference is made to R.C.M. 1947, Section 71-302.2." Finally, section 71-302.2, R.C.M. 1947, sets forth the criteria to be utilized in determining the county of financial responsi- bility on the basis of the claimant's residency: "Residency requirements. Any person otherwise qualified who makes his home in the state of Montana with the intent to become a resident shall be eligible for general relief. Upon the filing of his application in the county of residence, his assistance shall be paid entirely from state funds until he has resided for one (1) continuous year in the state of Montana, at which time he shall become a financial responsibility of the county in which he resides at the expiration of the one (1) year period. A person who leaves the state of Montana with the intent to reside in another state, and later returns to reside in the state of Montana, shall be deemed a new resident for the purposes of this act. If a recipient moves from his original county of residence to reside in another county, he shall continue to be a financial responsibility of the original county of residence for one (1) year from the date of his change of residence. If during this one (1) year period, the individual resides in several counties, he shall become a financial responsibility of the county in which he resides at the expiration of the one (1) year period. County medical assistance under section 71-308 shall not be entitled to be paid from state funds. " The plain and clear meaning of the language in section 71-302.2, R.C.M. 1947, indicates the county of financial responsi- bility is that county in which the claimant resides at the end of one year continuous residence in Montana. The statutory lang- uage would infer that a person, otherwise qualified, who makes his permanent home in the state of Montana with the intent to be- come a resident, may migrate from county to county within Montana and, at the end of the one year period, the county where the per- son is found is the county of financial responsibility for the purpose of paying county welfare medical benefits. Furthermore, if the new resident continues his migration after the one year period, the "original county of residence" continues to be finan- cially responsible for county welfare benefits for one year from the date of the new residents change of county residence. The effect of section 71-302.2, R.C.M. 1947, and the complications arising out of the present fact situation are best demonstrated by a chart depicting the Moores' migration patterns. Date I n i t i a t i n g Date Terminating S i t u s of Residence Approximate period Residence Residence of Residence Dec. 24, 1972 Sept. 23, 1973 Lodgepole, Blaine 9 months County Sept. 24, 1973 A p r i l 23, 1974 Havre, H i l l 7 months County A p r i l 24, 1974 Sept. ?, 1974 Lodgepole, Blaine 5 months County Sept. ?, 1974 Dec. 28, 1974 Anaconda, Deer 3 months Lodge County Dec. 29, 1974 present Lodgepole, Blaine County At the end of the Ploores' year of residence in Montana, subsequent to returning from Colorado, the Moores were residing at Havre, in Hill County, attending Northern Montana College and living in the married couples housing unit. Under a strict interpretation of section 71-302.2, one would conclude that Hill County is the county of financial responsibility. However, a presumption arises that the county wherein a college or uni- versity lies is not the resident county of the attendant students. Generally, students travel from the residence of their parents, attending college only during the academic year, and return to their parents' residence on weekends, holidays and summer breaks. For this reason, it is customary to look to the parents' residence in order to determine the residence of the student. Otherwise, the county in which the college lies would be unduly burdened with providing for the social welfare of students. As oftentimes occurs, the facts of the present case do not readily fall within the guidelines of the presumption. The Moores are not of the tender age often associated with college students. Furthermore, there is an absence of the parental ties often associated with the student leaving his parents' home to attend college. Therefore, we must look closer to determine the county having the most significant contacts with the Moores. The Moores resided in Blaine County for nine months prior to their attending Northern Montana College. During the Moore's stay in Hill County, they returned to Blaine County on weekends and holidays to aid Mrs. Moore's parents by helping with the work on their ranch. Upon leaving Hill County, the Moores returned to Blaine County, and resided on the ranch while continuing to help with the work. Moore then commuted to Northern Montana Col- lege where he continued his course work during the summer, 1974. Moore testified that he at all times considered Lodgepole to be the situs of his permanent residence. The facts clearly indicate that Blaine County was the county having the most significant contacts with the Moores. Under such an analyses Blaine County is the county of financial respon- sibility for purposes of providing county medical welfare assis- tance to the Moores. We conclude the hearings officer and Board of Social and Rehabilitation Appeals did not err in limiting the scope of rehearing of Fair Hearing Decision No. 163 to a deter- mination of the Moores' county of residence since that was the sole issue being legitimately contested at the time. Nor did the hearings officer, Board of Social and Rehabilitation ,?Appeals and district court err in finding Blaine County the county financially responsible for providing county welfare medical assistance to the Moores. The order and judgment of the district court, affirming the administrative decisions of SRS are affirmed, consistent with this opinion. ------------ Justice Chief Justice n Justices / '

September 14, 1977

657dd710-b250-4e01-bb96-6485521d4eef

STATE v SCANLON

N/A

13476

Montana

Montana Supreme Court

No. 13476 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, Plaintiff and Appellant, JACK M. SCANLON, Defend-ant and Respondent. Appeal from: District Court of the First Judicial District, Honorable Gordon R.Bennett, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Robert Keller, Special Assistant Attorney General, argued, Helena, Montana For Respondent : Donald Garrity argued, Helena, Montana Submitted: February 23, 1977 Decided AUF 2 4 1677 Filed: - . ~ w s J . & ~ R N E ~ clerk Mr. Justice Daniel J. Shea delivered the Opinion of the Court. This case involves proceedings before a grand jury in Lewis and Clark County in which the defendant was indicted on 18 counts of perjury relating to his testimony before the grand jury as to how his clients who had industrial accident claims came to him. In State v. Scanlon, 33 St.Rep. 1355 (December 30, 19761, this Court affirmed the dismissal of 16 of the 18 counts by the district court, but ordered a trial on two of the counts (counts 9 and 10). Thereafter, defendant petitioned for a rehearing, and the state petitioned for a rehearing, the thrust of both was that the defend- ant and the state requested a dismissal of all 18 counts of perjury. This Court granted the petitions for rehearing. As part of the grand jury investigation into the handling of industrial accident claims by the Industrial Accident Board and by attorneys in Montana, the grand jury called defendant to testify as to how the attorney-client relationship was initiated. The purpose of this inquiry was to determine if there were leaks from the Industrial Accident Board to certain lawyers in Montana con- cerning persons in Montana who had filed industrial accident claims with the Board. The focus was whether anyone within the Industrial Accident Board either referred claimants to the defendant or whether they provided him with names of claimants who would be potential clients. When he was first called to testify before the grand jury, defendant refused to answer questions asked him, asserting his right against self-incrimination. Thereafter, in an effort to find how defendant acquired his clients, the grand jury granted immunity against prosecution to the defendant except prosecution for con- tempt and perjury. For two days defendant testified before the grand jury, and denied he solicited his clients and explained how they became his clients. As a result of this testimony the grand jury indicted defendant on 18 counts of perjury. The district court dismissed each of the 18 counts based either on lack of direct evidence as to the falsity of the statement, lack of corroboration as to the falsity of the statement, or lack of materiality. Several of the counts against defendant arose out of trans- actions where defendant testified the clients were referred to him by an uncle and aunt, Mr. and Mrs. Richard Mullins, or by Mr. and Mrs. Herman Myers, long-time family friends. At the time of his testimony before the grand jury, all of these persons had died. The clients who appeared before the grand jury denied ever knowing any of the people named. The district court dismissed these counts for lack of direct evidence as to the falsity. These dismissals were proper. These counts were not supported by direct evidence of the falsity of the defendant's statements. This appeal concerns the evidentiary standard required for the proof of perjury, which essentially revolves around three statutes. Section 94-7-202(7), R.C.M. 1947, provides: "No person shall be convicted of an offense under this section where proof of falsity rests solely upon the testimony of a single person other than the defendant." Section 93-401-1, R.C.M. 1947, provides: "The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason." Section 93-1401-2, R.C.M. 1947, provides: "Perjury and treason must be proved by testimony of more than one witness; treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corrob- orating circumstances." (Emphasis added.) The basis for unusually stringent evidence requirements is set out in an article in 19 UCLA Law Review 638, 642, 643 entitled "Perjury and Related Offenses Under the Proposed California Criminal Code." That same article points out at p. 645, that Tentative Draft No. 6 of the Model Penal Code on this point reads: "Corroboration. Proof of guilt beyond a reasonable doubt shall suffice for conviction under this section as in other criminal cases, without special require- ment of two witnesses or corroborating circumstances. "[Alternate, rejected by the council: No person shall be convicted of an offense under this Section where proof of falsity rests solely upon contradic- tion by testimony of a person other than the de- fendant. ] " The official draft of the Model Penal Code, which served as the basis for section 94-7-202(7), R.C.M. 1947, used the alternate provision. In Montana Criminal Code, 1973, Annotated, Prof. William F. Crowley - Editor, at page 293 the annotator points out: "The common law rule that falsehood be established by two witnesses is adopted in part by subsection (7). At the common law this rule was adopted to deal with the problem of an oath against an oath. The modern rationale is a policy determination based on a balancing of the need for protection of wit- ness and the need to maintain the sanctions for false testimony. In adopting the requirement of more than one witness Montana has followed the majority of states in affording additional protec- tion to the witness at the possible cost of being unable to convict an apparent perjurer. * * * " As noted above, the standard of proof required in Montana under the new code section 94-7-202(7), R.C.M. 1947, requires that the proof of the falsity of a statement must be more than the contradiction testimony of a person other than the defendant. The legislature recently made this policy determination and despite the contrary rule urged by the state, this is the rule in Montana. The exact requirements of this evidentiary rule in perjury cases are apparent from an examination of the California cases interpreting the section of the California Civil Code, identical to Montana's section 93-1401-2, R.C.M. 1947. In an article entitled "Proof of Perjury: The Two Witness Requirement", 35 Southern Cali- fornia Law Review 86, 97, it is stated: "In summary, the California attitude is, and remains, that direct testimony of at least one witness must always be introduced to prove the falsity of the statement set forth in the indictment; circumstantial evidence alone will not support a perjury conviction." In People v. Roubus, 53 Cal.Rptr. 281, 417 P.2d 865, 866, 867, the California Supreme Court, sitting In Bank, outlined this evidentiary requirement: "Perjury must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances. * * * This statutory provision has been interpreted as prescribing not only the amount but also the kind of evidence necessary to support a perjury conviction. * * * Direct, as distinguished from circumstantial, evidence of the falsity of the defendant's testimony by at least one witness is generally required. * * * This does not mean that there must be a denial in the very words of the defendant's testimony * * * but that there must be testimony by at least one witness furnishing direct evidence of facts contrary to, or absolutely incom- patible or physically inconsistent with, that sworn to by the accused * * *.Evidence that establishes facts from which the falsity of an alleged perjured state- ment may or may not be inferred is insufficient under the direct evidence rule.* * * "The rule requiring proof of falsity by direct evi- dence has been criticized. * * * However, this re- quirement was early established in this state by decisions construing our statutory provision. It is noteworthy that a majority of jurisdictions which apply the rule that falsity must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances, hold that circumstantial evidence alone is generally insufficient to establish falsity. " An early Montana case indicated this is the law in Montana as well. In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, it is said: "'It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a conviction of perjury. It is sufficient if, in addition to one directly opposing witness, corroborating circumstances suf- ficient to turn the scale and overcome the oath of the defendant and the legal presumption of his in- nocence are proved.'" The Court in Gibbs approved this instruction as to proof of per j ury : " ' * * * that such act of perjury has been estab- lished to your satisfaction beyond a reasonable - doubt by more than one witness, or that the testi- mony of such witness has been corroborated upon that point by other facts and circumstances proved on the trial. In other words, the direct evidence of one witness alone is not sufficient to convict of the crime of perjury, unless corroborated by other facts and circumstances proved on the trial.'" In Gibbs the Court was construing the then equivalent code section to section 93-401-1, R.C.M. 1947. Section 93-1401-2 had not been enacted at that time. In State v. Jackson, 88 Mont. 420, 293 P. 309, the Court cited Gibbs as authority of the requirement that perjury must be proved by the testimony of two witnesses, or one witness and corroborating circumstances indicating that this was the law even prior to the passage of section 93-1401-2, R.C.M. 1947. A subsidiary question to be determined regards the nature of the corroborating circumstances that must be proved. The rule in California, that the state argues we should adopt, is stated in People v. Casanova, 54 Cal.App. 439, 202 P. 45, 47: "* * * The statute respecting the quantum of evidence necessary in perjury cases will be satisfied, if there be the testimony of one witness to facts that are absolutely incompatible with the innocence of the accused, corroborated by circumstances which, of themselves and inde- pendently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused is guilty as charged." See also: People v. Pustau, 39 C.A.2d 407, 103 P.2d 224, 228. In Gibbs the Court said that "corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence" are all that is required. In People v. Todd, 9 C.A.2d 237, 49 P.2d 611, 614, it is pointed out: "It is also well settled that motive and design to commit a crime, if proved, may be considered a guilty circumstance * * * and consequently may serve legally as corroborative evidence; and in this be- half it has been repeatedly held that where, as here, it is claimed that several offenses have been committed as part of one scheme or plan, all of the same general character, tending to the same common end, evidence thereof may be received to show the process or motive and design to commit the particular offense with which the accused is charged, and as tending to show logically that the particular offense for which he is being tried was part of such common scheme." The second issue involves the requirement that the alleged perjured statement be material. The Nontana statute, section 94-7- 202 (3), R.C.M. 1947, provides: "Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material in a given factual situation is a question of law." The Commission Comment points out: "The proposed definition of 'materiality' in sub- section (3) does not differ substantially from that given by prior law." In State v. Hall, 88 Mont. 297, 304, 292 P. 734, the Court said: " * * * Also it may be conceded that the general rule is that anything so connected with the matter at issue as to have a legitimate tendency to prove or disprove some material issue by giving weight or probability to, or detracting from, the testimony of a witness, is material * * * and that, if evi- dence is circumstantially material, it is sufficient to sustain a perjury charge." The test for materiality as set out by the statute is not particularly difficult to meet, it requires only that in the actual factual situ- ation involved would it be reasonable to find that the defendant's statement, if believed, could have altered the course of the inves- tigation. The grand jury statute, section 95-1408(c), R.C.M. 1947, provides : "The grand jury shall find an indictment when all the evidence before it, taken together, if unex- plained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury." While it is the right of the grand jury to return an indictment, it is, nevertheless, the duty of the courts to determine if there was t h e r e q u i r e d minimum evidence t o prove each o f t h e elements o f t h e of t h e charge o f p e r j u r y . Both s i d e s conceded h e r e t h a t t h e r e was no more evidence which could go b e f o r e a t r i a l jury t h a n what t h e grand j u r y had a l r e a d y heard. Accordingly, t h i s is n o t a s i t u a t i o n where t h e indictment i s f a u l t y but where t h e defendant can be re- i n d i c t e d . Rather, it is a s i t u a t i o n where i f t h e indictment is f a u l t y , t h e defendant cannot again be i n d i c t e d because t h e r e i s no o t h e r evidence t o p r e s e n t t o t h e grand jury. T h i s Court has c a r e f u l l y reviewed a l l counts and conclude t h a t a l l counts were p r o p e r l y dismissed. Sixteen o f t h e 1 8 counts w e r e s i t u a t i o n s where t h e y w e r e n o t supported by d i r e c t evidence o f t h e f a l s i t y of d e f e n d a n t ' s statements. However, counts 9 and 10 deserve more a t t e n t i o n i n d i s c u s s i n g o u r reasons f o r t h e i r d i s m i s s a l . The two charges a r e summarized a s follows: A summary of count 9 charges t h a t Jack M. Scanlon, f a l s e l y t e s t i f i e d t h a t Grace A. Rieker f i r s t contacted him on t h e telephone, when i n t r u t h and f a c t he knew t h a t he had i n s t i g a t e d t h e telephone conversation with claimant f o r t h e purpose of i n i t i a t i n g a c l i e n t - a t t o r n e y r e l a t i o n s h i p ; and t h a t he s o t e s t i f i e d t o d e c e i v e and f r u s t r a t e t h e grand jury i n its i n v e s t i g a t i o n c o n t r a r y t o s e c t i o n 94-7-202, R.C.M. 1947. A summary of count 1 0 charges t h a t defendant f a l s e l y testi- f i e d t h a t p r i o r t o t h e telephone c a l l from claimant he had never heard of t h e claimant nor t h e f a c t t h a t she was i n j u r e d , w h i l e i n t r u t h and f a c t he knew t h e claimant and t h a t she had been i n j u r e d p r i o r t o e v e r t a l k i n g t o h e r , and he s o t e s t i f i e d f o r t h e purpose of deceiving and f r u s t r a t i n g t h e grand jury c o n t r a r y t o s e c t i o n 94-7-202, R.C.M. 1947. The g i s t of count 9 i s t h e c o n t r a d i c t o r y s t a t e m e n t s of a t - torney Scanlon and Rieker a s t o who c a l l e d t h e o t h e r f i r s t . Scanlon claims she c a l l e d him f i r s t and she claims t h a t Scanlon called her first. A determination must be made whether attorney Scanlon's testimony, if false, was material to the grand jury investigation; that is, would it be reasonable to find that the defendant's statement, if believed, could have altered the course of the investigation. Section 94-7-202(3), R.C.M. 1947, provides that I' * * * Whether a falsification is material in a given factual situation is a question of law." Accordingly, we must determine if the testimony was material. We conclude that it was not. The focus of the grand jury inquiry was to determine if there were any personnel within the Industrial Accident Board who were leaking information concerning claimants' cases to certain attorneys. The testimony elicited from Mr. and Mrs. Rieker and from attorney Scanlon must be weighed in light of this inquiry; Was anyone within the Industrial Accident Board referring claimants to attorney Scanlon, or were they providing him with the names of potential clients? The testimony centers around Mrs. Rieker, a secretary- receptionist at the Boulder River School in Boulder; Ron Fuller, the principal of Jefferson County High School in Boulder; and attorney Scanlon. Fuller and Scanlon are close personal friends dating back to high school days. Fuller and Mrs. Rieker were casual acquaintances in Boulder. Mrs. Rieker's industrial accident claim occurred at the school when she slipped on the steps and sustained back or neck injuries. Fuller had no connection with the Industrial Accident Board which handled claims sustained by injured workers. Mrs. Rieker testified that it was Ron Fuller, and him alone, who twice suggested that she obtain a lawyer to handle her claim. On the first occasion she claims Fuller told her she should see a lawyer, and he would help her get one. On the second contact made by Fuller she claims that Fuller telephoned her and asked her if she would like to talk to attorney Scanlon who was with Fuller at the time. She claims she did talk to Scanlon and he later came over to her house to discuss her case. There was no evidence that Mrs. Rieker became a client of Scanlon as a result of inside contacts Scanlon had with the Industrial Accident Board. There was no evidence that personnel of the Indus- trial Accident Board were referring possible clients to Scanlon or providing him with the names of potential clients. After Mrs. Rieker testified that it was Fuller who furnished the contact with attorney Scanlon, there was simply no evidence that personnel of the Indus- trial Accident Board had leaked information concerning Mrs. Rieker to attorney Scanlon. However, when Scanlon was later called before the grand jury, they wanted to know who had first done the contacting. Did P l r s . Rieker contact attorney Scanlon first or did Scanlon contact her first? Regardless of the answer given to this question by Scanlon, it would not have affected the outcome of the proceedings or misled the grand jury in its investigation into possible leaks from the Industrial Accident Board. If they chose to believe Mrs. Rieker, they could conclude that Fuller telephoned her on behalf of attorney Scanlon and then put Scanlon on the phone to talk to her about her accident claim. If they chose to believe Scanlon they could con- ' clude that Mrs. Rieker went to him on her own volition and that he could not recall how she happened to call him as an attorney. either conclusion suggests a leak to Scanlon from the Industrial ~ccident Board. It is clear that Scanlon's testimony was not material to the grand jury's inquiry. Count 9 must be dismissed for yet another reason. Mrs. Rieker's testimony that attorney Scanlon called her first was not corroborated by admissible evidence. There was only the direct testimony of Mrs. Rieker that Scanlon called her first. The only attempted corroboration was testimony from Mrs. Rieker's husband that his wife told him that attorney Scanlon had called. It is manifest that section 93-1401-2, R.C.M. 1947, which sets out the requirement of corroboration, contemplates only admissible corrob- oration. Here, the testimony was not admissible because it was hearsay and because it attempted to obtain corroboration from the same witness who was the source of the direct evidence. In State v. Newman, 162 Mont. 450, 457, 513 P.2d 258, we defined hearsay as follows: " * * * 'Hearsay' is testimony or evidence of someone's words or conduct outside the court, when offered in court to prove the truth of the thing being asserted, and thus resting for its value upon the credibility of the out-of-court asserter." Here, the state attempted to use the statement made by Mrs. Rieker to her husband to prove that Scanlon had actually called Mrs. Rieker on the telephone. Its credibility rested not on Mr. Rieker but on Mrs. Rieker. This plainly is hearsay. The vice of this kind of evidence is even more apparent when considered in relation to the kind of proof needed for a prima facie case of perjury. To allow the testimony of Mr. Rieker as corrobora- tion would be to fly in the face of Montana statutes requiring cor- roboration. Section 93-401-1, R.C.M. 1947, provides that the direct testimony of one person is not sufficient to prove the crime of per- jury. Section 93-1401-2, R.C.M. 1947, requires that " * * * per jury [must be proved] by the testimony of two witnesses, or one witness and corroborating circumstances." (Emphasis and bracketed material added.) Mrs. Rieker was the only person who testified directly that attorney Scanlon had called her first and so there was a need for corroborating circumstances. To be admissible, the corroborative evidence must be inde- pendent of the testimony of the same witness who is the source of the direct evidence. See, for example, United States v. Freedman, 445 F.2d 1220 (2ndCir.1971); United States v. Thompson, 379 F.2d 625 (6th Cir. 1967) and United States v. Rose, 215 F.2d 617 (3rd Cir. 1954), which cases engraft a requirement of corroboration onto the federal perjury statute. Here, the grand jury had to rely on the direct testimony of Mrs. Rieker that attorney Scanlon had called her first, but also, for corroboration, it had to rely on her indirect testimony by virtue of her husband testifying to what she told him. What Mrs. Rieker told her husband is not corroboration under the perjury statute. For these reasons count 9 must be dismissed. Count 10 concerns the nature of the proof required for a charge of perjury, specifically, the requirement of direct evidence. The gist of count 10 concerns a conflict as to whether attorney claim Scanlon knew of Mrs. Rieker's compensation/before the first time he talked to her about the case. Scanlon claims he did not; Mrs. Rieker claims he did. Regardless of who is right, there is no direct evi- dence as required by section 93-1401-2 to establish a prima facie case. The only evidence concerning attorney Scanlon's prior knowl- edge of Mrs. Rieker's claim came from Mr. and Mrs. Rieker. They testified Scanlon told them he knew of Mrs. Rieker's claim before he talked to her on the telephone. However, this is not direct evi- dence. Rather, under section 93-301-10, R.C.M. 1947, it is indirect evidence. That section provides: "Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact from which the fact in dispute is inferred." Under this statute any statement made to them by Scanlon is in the nature of an admission and, therefore, is indirect evidence of the fact sought to be proved. The result is that there is no direct evidence to sustain a prima facie case of perjury as required by sections 93-401-1 and 93-1401-2, R.C.M. 1947. There being no direct evidence, count 10 must also be dismissed. Defendant has raised other issues in his petition for rehear- ing, but in light of our holding, we find no need to discuss them. Counts 9 and 10 are ordered dismissed and the dismissal order of the district court is affirmed in its entirety. , / W ~ A A , Justice fl We Concur: ,- -3 Justices Mr. Justice John Conway Harrison dissenting: I dissent. As the author of the earlier 4-1 opinion of this Court from which this rehearing was granted, I find no reason to change that opinion. Two recent opinions of the United States Supreme Court considering perjury before a grand jury are of import in considera- tion of the instant case. Both were decided on May 23, 1977: United States v. Wong, No. 74-635, 45 LW 4464; United States v. Washington, No. 74-1106, 45 LW 4465. In Wong, the Court reversed the suppression of testimony of a Chinese woman of limited education given to a grand jury con- cerning illegal gambling and obstruction of state and local law enforcement. Referring to its holding in United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L ed 2d 212, the Court, in Wong, noted: " * * * the Fifth Amendment privilege does not con- done perjury. It grants a privilege to remain silent without risking contempt, but it 'doesnot endow the per- son who testified with a license to commit perjury.' Glickstein v. United States, 222 U.S. 139, 142 (1911). The failure to provide a warning of the privilege, in addition to the oath to tell the truth, does not call for a different result. The contention is that warn- ings inform the witness of the availability of the privilege and thus eliminates the claimed dilemma of self-incrimination or perjury. Cf. Garner v. United States, 424 U.S. 648, 657-658 (1976). However, in United States v. Knox, 396 U.S. 77 (1969), the Court held that even the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury. * * * " In Washington, the Court overruled a lower court's judgment granting a motion to suppress grand jury testimony and quashing an indictment on the ground that it was based on evidence obtained in violation of Fifth Amendment privileges against self-incrimination. The Court held: " * * * But this Court has not decided that the grand jury setting presents coercive elements which compel witnesses to incriminate themselves. Nor have we decided whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses; moreover, we have no occasion to decide these matters today, for even assuming that the grand jury setting exerts some pressures on witnesses generally or on those who may later be indicted, the comprehensive warnings respondent received in this case plainly satisfied any possible claim to warnings. Accordingly, re- spondent's grand jury testimony may properly be used against him * * *." Further, in Washington, as in the instant case, the defendant argued that having to invoke the Fifth Amendment before the grand jury placed him at a disadvantage in the eyes of the grand jury. This argument entirely overlooks the fact that the grand jury's historic role is as an investigative body; it is not an arbiter of guilt or innocence. Moreover, it is well settled that invocation of Fifth Amendment privilege in a grand jury proceeding is not admis- sible in a criminal trial, where guilt or innocence is actually at stake. United States v. Wong, supra. The same holding and reasoning should, in my opinion, be applied here. This is a case that in my opinion should have been tried to a jury. They, not this Court, should have decided the fact question. / Mr. Justice Daniel J. Shea commenting on the dissent: Since writing this opinion a dissent has been prepared and filed. I strongly support the right and the need for dissenting opinions, but it seems to be that it should be responsive to the facts and law of the case. This case does not concern itself in any form with the sup- pression of testimony before a grand jury, and therefore, the Wong case and the Washington case cited, quoted and discussed in the dis- sent are simply not applicable. And, neither does the invocation of the Fifth Amendment, as in the Washington case, have anything to do with the facts or law of this case, except perhaps as a procedural and historical aside. It should be noted that the dissenter wrote the original majority opinion in this case dismissing 16 of the 18 counts, but ordering a trial on counts 9 and 10. In the original opinion, the facts were not applied to the law of perjury, and that is the reason for the original mistake on counts 9 and 10. Specifically, the test of materiality was never applied to the facts of count 9. And, neither in count 9 was the requirement of corroboration applied to the facts, i.e., the corroborating evidence must be admissible evi- dence and not hearsay as in this case, and the corroborating evidence must be independent of the direct evidence. In count 10 the direct evidence requirement for proof of perjury was not applied to the facts of count 10. The true test of the validity of this dissent, can, I believe, be summarized as follows: If the dissent would reverse the district court, then on what counts and for what legal reasons? On these matters the dissent is silent.

August 24, 1977

7e31aaff-7918-44d4-a551-c27ab098f5ce

JENSEN v ZOOK CONST CO ARGONAU

N/A

13671

Montana

Montana Supreme Court

No. 13671 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 HARLEN JENSEN, Claimant and Respondent, ZOOK BROTHERS CONSTRUCTION CO., Employer, and ARGONAUT INSURANCE COMPANY, Defendant and Appellant. Appeal from: Workers' Compensation Court Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appellant, Harris, Jackson & Utick, Helena, Montana Aridrew J. Utick argued, Helena, Montana For Respondent: Harrison, Loendorf & Poston, Helena, Montana Jerome T. Loendorf argued, Helena, Montana Submitted: June 7, 1977 Decided: ' . , Filed: 6- ' j . . -/ - - _ I - -&- Clerk M r . Justice Gene B. Daly delivered the Opinion of the Court. Defendant-insurer, Argonaut Insurance Company appeals from the findings of f a c t and conclusions of law, order and judgment of the workers' compensation court. The workers' compensation court ruled insurer was liable t o claimant for compensation benefits due as the result of claimant's industrial injury . On August 28, 1974, claimant suffered an industrial injury i n the course of h i s employment with Zook Brothers Construction Co. A n examining physician described the injury as a severe crushing injury t o the l e f t hand. Ckimant incurred the injury when he was i n the process of greasing a backhoe, one of claimant's duties as an o i l e r on heavy equipment. The backhoe operator moved the backhoe bucket,cruaking claimant's hand. The insurer accepted l i a b i l i t y for claimant's injury and made compensation payments t o claimant for temporary t o t a l dis- a b i l i t y during the period August 28, 1974, through October 3, 1975, pursuant t o section 92-701.1,R.G.M. 1947. Claimant's disability status was changed t o permanent p a r t i a l disability and disability benefits were paid during the period October 4, 1975 through March 26, 1976. By l e t t e r dated October 10, 1975, insurer invited claimant t o discuss a f i n a l settlement of the claim; the parties failed t o reach any agreement on settlement of the claim. By l e t t e r dated M a y 24, 1976, insurer advised claimant it had paid a l l benefits which claimant was entitled t o under the Montana Workers' Compensation Act. O n June 14, 1976 claimant f i l e d a petition for hearing with the workers' compensation court alleging claimant was t o t a l l y disabled as a result of h i s indus- t r i a l injury of August 28, 1974, and was wrongfully refused com- pensation benefits. Claimant sought a ruling of the workers' compensation court ordering that: "1. Claimant continues t o be totally disabled a s a result of his industrial injury of January 1, 1976. "2. That Defendant insurer wrongfully refused t o reinstate by-weekly compensation and i n accordance with Section 92-701.1, R.C.M. 1947, the Claimant is en- t i t l e d to temporary t o t a l disability payments a t the weekly rate provided by law, rectroactive t o March 26, 1976, and is entitled to weekly temporary t o t a l disability payments a s long a s Claimant continues t o be temporarily totally disabled a s a result of h i s industrial injury. "3. Claimant is entitled t o that amount of compensation which represents the difference betwken the rate of compensation he was paid and the rate he should have been paid between August 28, 1974 and March 26, 1976. 4 The Defendant has unreasonably refused to reinstate compensation payments, and in accordance with Section 92-849, R.C.M. 1947, Claimant is entitled to an increased award of ten (10) per cent in accrued weekly compensation benefits. "5. In accordance with Section 92-616, R.C.M. 1947, the insurer shall pay reasonable costs and attorneys fees." (Emphasis added.) Hearing was held before the workers' compensation court on August 31, 1976. On November 15, 1976, the workers' compensa- tion court issued its findings of fact and conclusions of law and order holding: " C O N C L U S I O N S OF LAW ' 1 That the claimant Harlen Jensen, was injured in the course of his employment with the Zook Brothers Construction Company on the 28th day of August, 1974. "2. That the claimant is totally disabled within the meaning of the Workers' Compensation Law. "3. That the Defendant, Argonaut Insurance Company, is liable to the claimant for a l l compensation provided by the Workers' Compensation laws of the state of Montana, which are due as a result of the injuries received by claimant on August 28, 1974. "4. That claimant is entitled to the payment of reasonable attorneys' fees and for costs expended i n the course of the workers' Compensation hearing and prep- atattons for the same." (Emphasis added.) On December 6, 1976, the insurer petitioned the workers' compensation court for rehearing. Insurer' s petition for re- hearing was denied and judgment was entered for claimant on Deceinber 9, 1976. The workers' compensation caurt's judgment adopted the court's conclusions of law, set out heretofore, and set claimant's attorney fees and costs at $937.50. On December 10, 1976, the Division of Workers' Compensation issued a memorandum. It reads in pertinent part: "The impairment rating as given by the attending physician of 5% has been paid out. There is no indication whether the Judge in his conclusion No. 2 refers to temporary total disability or permanent total disability, nor does it refer to any specific amount of compensation. Under the circumstances, I am unable to request the carrier to make any payments until we have some clarification as to what should have been ordered." Insurer appeals directly to this Court, from the final judgment of the workers' compensation court, pursuant to section 9 2 - 8 5 2 ( 2 ) , R . C . M . 1947. McAlear v . Arthur G . McKee & Co., Mont. , 558 P . 2 d 1134, 33 St.Rep. 1337; Skrukrud v . Gallatin Laundry Co., Inc., - Mont . , 557 P . 2 d 278, 33 St.Rep. 1191. The insurer presents two issues on review: 1 . Whether the findings of fact and conclusions of law and order,and judgment of the workers' compensation court are intelligible and capable of comprehension? 2 . If the first issue is resolved in the affirmative, whether there is substantial evidence to support the findings of the workers' compensation court? The law is clear in Montana that the findings and decision of the workers' compensation court are presumed to be correct and if supported by credible evidence, must be affirmed. McAlear v. Arthur G . McKee & Co., supra; Skrukrud v . Gallatin Laundry G o . , Inc., supra; Miller v . City of Billings, Mont . 3 555 P . 2 d 747, 33 St.Rep. 984. . The initial obstacle confronting this Court is determining the meaning of the conclusions of law and judgment of the workers' compensation court. The issues which confronted the workers' compensation court were: 1 . Whethet claimant is presently disabled, within the meaning of the Montana Workers' Compensation Act? 2 . If claimant is found to be disabled, whether claimant's disability is total or partial, permanent or temporary? 3. To what amount of compensation is claimant entitled? The workers' compensation court concluded "claimant is totally disabled within the meaning of the Workers ' Compensation Law" and insurer "is liable to the claimant for all compensation provided by the Workers' Compensation laws of the state of Montana". Such a holding is incomplete and fails to provide this Court with a final judgment capable of being reviewed on appeal. We refrain from considering the second issue on appeal-- there is whether/substantial evidence to support the findings of the workers' compensation court, until its decision is clarified. The cause is remanded to the workers' compensation court for clarification, consistent with & We concur: " 7 I 1 , /. .i , / & Chief Justice Justices.

August 31, 1977

19a5382c-8cee-4726-859b-36fd8b96e01d

GIANOTTI v MCCRACKEN

N/A

13720

Montana

Montana Supreme Court

No. 13720 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 ERNEST F. GIANOTTI, Plaintiff and Appellant, ALICE L. McCRACKEN, formerly ALICE L. GIANOTTI, Defendant and Respondent. Appeal from: District Court of the Eighth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: John M. McCarvel argued, Great Falls, Montana For Respondent : Church, Harris, Johnson and Williams, Great Falls, Montana Douglas Allen argued, Great Falls, Montana Submitted: September 16, 1977 Decided :SeP 2. Filed: - Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by the father of two minor children from an order of the district court, Chouteau County, modifying the decree of divorce between the father and mother as to custody of the children and the amount of child support payments. The marriage of Ernest F. Gianotti and Alice L . McCracken (formerly Alice L. Gianotti), was terminated by a decree of divorce dated May 30, 1974, and approved and incorporated a "SEPARATION AGREEMENT" between them. The agreement provided custody of the two minor children to be split equally between the parties on a rotating six month per year basis. It further provided Ernest F. Gianotti pay child support to Alice L . McCracken in the amount of $100 per month per child. The instant case arises essentially upon the petition of Alice McCracken for modification of the divorce decree, as to custody of the children and the amount of monthly support payments. A full evidentiary hearing was held on October 19, 1976. Following submission of proposed findings of fact and conclusions of law by the parties, the district court, Hon. Nat Allen pre- siding, on December 6, 1976, issued an order modifying the divorce decree, awarding full custody of the children to Alice McCracken and increasing the amount of the monthly child support payments to $150 per month per child. From that order, Ernest F. Gianotti appeals. The instant action began as one for divorce. A decree of divorce was entered on May 30, 1974, incorporating the terms of a separation agreement between the parties, parents of two minor daughters, ages 14 and 11 respectively at the time of the modification hearing. Under the terms of the separation agree- ment, each parent was entitled to six months physical custody per year, during which time that parent was to use and occupy the family residence in Great Falls. During the period of the mother's custody, the father was to pay $100 per month per child to the mother as support for the children. It further provided : " * * * In the event that either of the parties shall remarry, the parties shall mutually agree upon a new and separate custody arrangement for the children, if so desired, and in the event the parties are unable to agree upon a proper custody arrangement at that time, then a court having jurisdiction of the parties shall make such a determination upon petition properly noticed and hearing had." The mother took custody of the children and occupied the family residence beginning June 1, 1976. She remarried on October 1, 1976, becoming Alice L. McCracken. She and her hus- band immediately made arrangements to purchase a new home and moved in on October 15, 1976, when possession became available. Shortly thereafter, the hearing on her petition for modifica- tion of the divorce decree was held. Testimony revealed each party to be a fit and proper parent. At the close of the hearing, the district judge inter- viewed the children in chambers, away from the influence of either parent or counsel (no record was taken of this interview as required by statute). In the court's findings of fact and conclusions of law, dated December 6, 1976, the court specifically found: "6. By reason of the foregoing and by reason of the age, attitudes, physical and emotional needs, and present situation of Christine M. Gianotti and Lisa Gianotti, a substantial change of circumstances has occurred which render the former child custody visitation and support provisions of the Decree and Separation Agreement impractical and contrary to the welfare, needs and best interests of these minor children. To transfer custody of the children from their mother to their father or to require them to move each six month period would be detrimental to the welfare of the girls and contrary to their best interests. "7. * * * These girls are at an age where they require the sort of training, guidance and assistance that only a mother can effectively provide; and the Court is satisfied that they will be much happier in the custody of their mother and that their general welfare and best interests require that she be awarded their custody * * * . I ' The district court then ordered custody be and remain permanently in the mother, subject to full, free and unhampered rights of visitation, and further ordered the amount of monthly child support be increased from $100 to $150 per month per child. This appeal involves two inquiries: (1) Did the district court abuse its discretion by modifying the provisions of the divorce decree pertaining to custody? (2) Did the district court abuse its discretion by increasing the amount of child support payments? Appellant father argues the recent remarriage of re- spondent mother is an insufficient change in circumstances of the children or custodian to warrant modification of the custody provisions of the divorce decree. It is maintained modification upon such grounds, without a finding that the present custodial arrangement "seriously endangers" the welfare of the children, constitutes an abuse of discretion. Appellant further argues it was an abuse of discretion to increase the amount of child sup- port payments because there was a marked failure of proof of circumstances so changed as to mandate such an increase. Respondent, on the other hand, contends the district court properly awarded custody to her on the basis of the best interests of the children and, in so doing, correctly recognized a significant change in circumstances. In addition, she submits it was well within the discretion of the district court to in- crease the support payments to reflect a reasonable amount under the circumstances. There is no question the court had jurisdiction to hear and make a proper determination, as such power is grounded in the terms of the separation agreement, as adopted by the divorce decree. However, here there was a contract agreed upon at the time of the separation which the court did not fully consider. In any event, it is well settled, in Montana, the court's jurisdiction in matters of custody is of a continuing nature. Foss v. Leifer, Mont. , 550 P.2d 1309, 33 St.Rep. 528 (1976); Libra v. Libra, 154 Mont. 222, 462 P.2d 178 (1969); Barbour v . Barbour, 134 Mont. 317, 330 P.2d 1093 (1958). The relevant law regarding modification of custody decrees is set forth in the Montana Uniform Marriage and Divorce Act, section 48-339, R.C.M. 1947. This section provides in part: "(2) The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interest of the child. In applying these standards, the court shall retain the custodian appointed pursuant to the prior decree unless: "(a) the custodian agrees to the modification; "(b) the child has been integrated into the family of the petitioner with consent of the custodian; or "(c) the child's present environment endangers seriously his physical, mental, moral or emotional health, and the harm likely to be caused by a change of environment is outweighed by its ad- vantages to him." Appellant urges reversal of the modification order by arguing that none of the above three preconditions to modification were satisfied, therefore, the present custodial arrangement should be maintained. It is clear no change in custody may ultimately be made unless subsections (a) , (b) or (c) of section 48-339 (2) are satisfied. Here, we are concerned only with subsection C c ) . Recent decisions of this Court mandate strict compliance with the requirements of subsection (c). In re Custody of Dallenger, Mont . - I - P.2d , 34 St.Rep. 938 (1977); Holm v. Holm, Mont . , 560 P.2d 905, 34 St.Rep. 118 (1977); Foss v . Leifer, Mont. , 550 P.2d 1309, 33 St-Rep. 528 (1976). The district court focused on the "welfare" and "best interests" of the children, as the basis for change in custody. Such findings do not satisfy the requirements of section 48-339(2)(c). A change of custody order based thereon cannot be permitted to stand. A finding the present custody arrangement "endangers seriously" the welfare of the children is the threshold to any court ordered change of custody and, as such, is jurisdictional. In In re Custody of Dallenger, supra, this Court stated: " * * * the subsections to section 48-339(2) are jurisdictional prerequisites to modification which were placed there to serve the basic policy behind the entire section, the policy of custodial con- tinuity. To allow these crucial issues to be resolved merely by references to the best interests of the children would seriously weaken the statute." 34 St.Rep. 941. Section 48-339(2) makes plain the "best interests" and "change of circumstances" tests are, in the last analysis, primary considerations in proposed custody modifications. However, a dis- trict court is powerless to entertain such considerations if it has not found at the outset the child's welfare to be "endangered seriously" by the present custody arrangement. We hold the district court failed to adhere to the proper statutory standards as outlined and, in so doing, abused itsdiscretion. Further, the district court abused its discretion by in- creasing child support payments under the circumstances of this case. Montana's Uniform Marriage and Divorce Act, section 48- 330, R.C.M. 1947, requires: "(1) * * * the provisions of any decree respecting maintenance or support may be modified by a court only as to installments accruing subsequent to the motion for modification and either: "(a) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; or "(b) upon written consent of the parties. * * *" In this case there was no written consent of the parties to increased child support. Moreover in the record, there is a complete absence of facts which pertain to an increased need for child support. The sole evidence introduced on the point was a statement elicited from appellant on cross-examination, that he was presently making less money than at the time of divorce. There was no showing the previously established child support of $100 per child per month is in any manner unconscionable under the present state of facts. The district court made no specific finding of changed circumstances in this regard. There was no finding of an increased need for support, nor an increased abil- ity on the part of appellant to contribute to the support of his children. We reverse that portion of the modification order re- quiring appellant to pay an increase in child support. The order modifying the custody and support provisions of the divorce decree is reversed. The cause is remanded for an immediate rehearing. Evidence is to be received and findings made by the district court in accordance with the law. hied JUS tice / ) Justices C/

September 30, 1977

e52b81d7-097d-49a5-9b96-952efcc1cbc3

STATE v WILSON

N/A

13714

Montana

Montana Supreme Court

No. 13714 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF MONTANA, on the Relation of PHIL MANKIN, Petitioner, THE HONORABLE ROBERT H. WILSON, District Judge of the Thirteenth Judicial District of the State of Montana, in and for the County of Yellowstone, Respondent. ORIGINAL PROCEEDING: Counsel of Record: For Petitioner: Berger, Anderson, Sinclair and Murphy, Billings, Montana Richard Anderson argued, Billings, Montana For Respondent: Harold Hanser, County Attorney, Billings, Montana K. Kent Koolen argued, Deputy County Attorney, Billings, Montana Submitted: June 8, 1977 Decided: SEp 2 2 3977 - Filed: c - c - t - - I L zr , Clerk Mr. chief Justice Paul G. Hatfield delivered the Opinion of the Court. Petitioner, Phil Mankin, seeks a writ of supervisory control from this Court to require the presiding judge in Crim- inal Cause No. 10081, in the district court, Yellowstone County, to grant petitioner's motion to suppress evidence. Petitioner was charged with the crime of burglary of a residence. A pretrial motion was filed to suppress evidence con- sisting of shoes, wrenches, gloves and any other clothing or personal possessions allegedly taken from petitioner without a warrant in violation of his rights. An agreed statement of facts was submitted to the district court for its consideration, supple- menting other testimony and evidence presented at the formal hear- ing on the motion to suppress. The district court denied the motion. From this denial, petitioner seeks a writ of supervisory control or other appropriate writ from this Court. The facts are not generally in dispute. On June 13, 1976, petitioner was arrested in connection with thefts from cars. Shortly after petitioner's arrest, a burglary was reported of a residence located within the same vicinity as the alleged thefts. The petitioner was held in custody on the initial arrest for theft from cars, pending further investigation of both that crime and the house burglary. On the day of petitioner's arrest articles of clothing were taken from his person. On the following day, petitioner was released from custody without charges filed. Petitioner's shoes and other personal possessions were retained by the police and submitted to the F.B.I. laboratory for comparative analysis with footprints found during the investigation of the house burglary. Four months later, upon receipt of the F.B.I. report, petitioner was charged with the burglary of the residence. Petitioner moves to suppress this evidence on the grounds the state violated section 95-714, R.C.M. 1947. Petitioner does not contend that his initial arrest was unlawful. Where a lawful arrest occurs, section 95-701, R.C.M. 1947, allows the search of a person and seizure of articles incident to that lawful arrest. According to the Revised Commis- sion comment to section 95-714: "Any 'taking' by a police officer amounts to a seizing." Petitioner's shoes were taken from him at the time of his arrest. This taking constituted a lawful seizure. Since the seizure was lawful, the question before this Court is whether the retaining of the property by the police was a mere technical error under section 95-714. The state contends the failure to comply with section 95- 714, constitutes a mere technical error which does not compel the catastrophic consequences of suppression of the evidence. Conversely, petitioner contends that noncompliance with section 95-714 must result in suppression of property lawfully seized. The following portion of section 95-714 is relied on to support this contention: " * * * If the person arrested is released without a charge being preferred against him, all instru- ments, articles or things seized from him, other than contraband shall be returned to him upon release. " Section 95-714 gives as its source the Illinois Code of Criminal Procedure, Chap. 38, Section 108-2; a statute essentially identi- cal to our own. The Illinois court in construing section 108-2 has rejected the same argument as that raised by petitioner. In People v. Pruitt, 16 Ill.App.3d 930, 307 N.E.2d 142, 151, cert. denied 419 U.S. 968, 95 S.Ct. 232, 42 L Ed 2d 184 (1974), the Illinois court stated: "Nevertheless, the defendant contends the clothes and the hair sweepings should have been suppressed because the police violated I11.Rev.Stat. (1971) Ch. 38, Sec. 108-2 when the police did not return these items upon the defendant's release that same night. * * * "Defendant claims that this section has a basis in the Fourth Amendment and represents a legislative codification of it; and that the items retained in violation of this section must be suppressed under the exclusionary rule. "The seizure and retention of these items did not constitute a violation of defendant's Fourth Amendment rights. As stated previously, the defendant was validly arrested and the items were validly seized. The retention of these items after defendant was released was valid because the items could be easily destroyed. * * * " * * * Therefore, at most, only the retention of the defendant's clothing violated the language of the Statute. As such retention was only a violation of a statutory right and not a consti- tutional one, the clothing is not subject to the exclusionary rule of evidence and did not require suppression." The Illinois court reiterated this holding in People v. Tompkins, 24 Ill.App.3d 470, 321 N.E.2d 326, 327 (1974), where the facts are essentially the same as petitioner's case. The court in Tompkins stated: "The State contends that the failure to comply with section 108-2 constitutes a mere technical error which does not compel a suppression of the evidence. We agree. * * * "Section 108-2 must be read in conjunction with section 108-14 of the same statute which states : "'No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused. ' "The aforementioned statute was applied in People v. Smith, 50 I11.2d 229, 278 N.E.2d 73, wherein the defendant unsuccessfully urged the suppression of evidence based on a violation of section 108-2. The court held that a failure to comply with a statutory direction to furnish an inventory of seized materials pursuant to a warrantless search will not, in the absence of prejudice, invalidate an otherwise proper search and seizure." The Illinois court above referred to 111.Rev.Stat. Section 108-14. This section is the source of our own section 95-717, R.C.M. 1947, which mandates against suppression of evidence on the basis of irregularities in the proceedings, where the irregular- ities do not affect the substantial rights of the accused. Montana follows the rule of statutory construction where, in borrowing a statute from another state, the legislature borrows the construction placed upon it by the highest court of the state from which it is borrowed. Dunham v. Southside National Bank of Missoula, 169 Mont. 466, 548 P.2d 1383, 33 St.Rep. 372 (1976). While this Court will consider the construction placed on the bor- rowed statute, such construction is not binding upon this Court. State ex rel. Dept. of Highways v. Hy-Grade Auto Court, 169 Mont. 340, 546 P.2d 1050, 33 St.Rep. 222 (1976). In the case at hand, we accept the construction placed upon the statute by the Illinois court and adopt it for our own. Accordingly, petitioner's writ for supervisory control or other applicable writ is denied. Chief Justice 1 ................................. Justices f l r . Justice Daniel J. Shea dissenting: I would grant the petition for writ of supervisory control and suppress use of the shoes as evidence. The majority states that "petitioner's shoes were taken from him at the time of the arrest." But, they were not taken to hold as evidence. They were taken along with all his clothes and belongings on his person as part of the standard booking procedures used when a person is arrested and taken to jail. His clothes and shoes were not "seized" at that time. At the time defendant was booked he was under arrest only for car burglary, and his clothes (including his shoes) were taken from him before he was ever a suspect in the burglary of the house. It was later that the police checked the footprints outside the house and comparing them with defendant's shoes, determined that he might be linked to the house burglary. Until his release from jail, defendant's clothes and shoes were in the lawful custody of the police. Upon his release, if the police wanted to keep the shoes for further investigation of the house burglary, they should have applied to the district court for an order impounding the shoes. In not doing so, and in refusing to return defendant's shoes to him upon this release from jail, they violated section 95-714, R.C.M. 1947. The statute is rendered meaningless if the police are not compelled to either obtain a court order impounding a defendant's clothes or personal belongings, or to return them to the defendant upon his release from jail. Sup- pressing the evidence is the only meaningful way of assuring com- pliance with that statute.

September 22, 1977

e1d1e6f4-b8e2-4108-86c6-7d7cc8105bab

SCHUMACHER v EMPIRE STEEL MANUFACT

N/A

13497

Montana

Montana Supreme Court

P J c h . 13497 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 HARVEY SCFUMACHER, Claimant and Appellant, EMPIRE STEEL MAPJUFACTURING COMPANY, Employer, and EMPLOYERS MUTUAL LIABILITY INSURAPJCE COMPANY OF WISCONSIPJ , Defendant and Respondent. Appeal from: Workers' compensation Court Eonorable William E. Eunt, Judge presiding Counsel of Record: For Appellant: Kelly and Foley, Billings, Montana William T. Kelly argued, Billings, Montana For Respondent : Crowley, Haughey, Hanson, Gallagher and Toole, Billings, Montana Bruce Toole argued, Billings, Montana --- -- -. - --. -. . Submitted: September 13, 1977 Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. Appellant appeals a ruling of the workers' compensation court terminating his disability benefits under the Workers' Compensation Act. On July 26, 1972, appellant Harvey Schumacher, while working for respondent Empire Steel Manufacturing Co., injured himself when he attempted to lift a heavy steel sheet above his head. As a result of injuries to the left side of his neck, left shoulder and arm, the workers'compensation court, at a September, 1973 hearing, found that the proper amount of compen- sation was $78 per week for appellant's temporary total disability and $55 per week for his permanent partial disability. In October, 1974, respondent insurance carrier petitioned the workers' compen- sation court for a further determination of appellant's injuries. After a hearing on May 4, 1976, the workers' compensation court judge found appellant was no longer disabled and ordered that his compensation be terminated as of June 4, 1976. The judge, in his findings of fact and conclusions of law, did not address the issue of whether appellant should be reimbursed by respondents for psychiatric treatment which appellant had obtained without the approval of the workers' compensation board or respondents. The judge based his decision to terminate appellant's disability benefits on the fact there was little evidence appellant suffered from any continuing physical injury. The workers' com- pensation judge considered the testimony of a neurologist and a clinical psychologist, each of whom had examined and treated appellant. The physicians testified that much of appellant's suffering was due to his psychosomatic personality and that this psychological problem was worsening. Both doctors testified appellant was suffering from hypochondriacal neurosis, and that, at least in appellant's mind, the pain he was experiencing from his work-related injury was very real and continuing. The psychologist stated that appellant needed psychotherapy and that schooling would be in appellant's best interests, both to retrain him and to assist in the control of his hypochondriacal neurosis. The two doctors testified that the quickest route to psychological rehabilitation would be a final settlement so that appellant could put the entire matter behind him. The following issues are presented on appeal: 1 . Did the evidence support the workers' compensation court's decision to terminate appellant's benefits? 2 . Must respondents pay the bill of/$sychiatrist who treated appellant where such treatment was not approved by the insurance carrier, employer, or the workers' compensation board? 3. Are respondents required to pay appellant's attorney fees? Appellant's claim is compensable and the workers'compen- sation court's decision to terminate benefits is reversed. Whether appellant still suffers physical injury is debatable. It is undisputed, however, that appellant has continuing psychological problems from his injury. Montana law has long held that neurosis resulting from a work related injury is compensable under the Act. Legowik v. Montgomery Ward, 157 Mont. 436, 486 P.2d 867 (1971); O'Neil v. Industrial Accident Board, 107 Mont. 176, 81 P.2d 688 (1938). There was testimony that appellant had psychological problems prior to his injury, but it is well established that an employer takes his employee subject to the employee's physical and, logically, emotional condition at the time of his employment. Birnie v . U. S. Gypsum Co., 134 Mont. 39, 328 P.2d 133 (1958); Peitz v. Industrial ~ccident Board, 127 Mont. 316, 264 P.2d 709 (1953). An employee who suffers from a pre-existing condition is entitled to compensation if the condition was aggravated by an industrial injury. Rumsey v . Cardinal Petroleum, 166 Mont. 17, 530 P.2d 433 (1975); Weakley v. Cook, 126 Mont. 332, 249 P.2d 926 (1952). Respondents' argument that the court furthered appel- lant's best interests by terminating his benefits, thereby put- ting the matter behind him, is an imaginative one. Imaginative, but not too convincing. A final lump sum settlement in lieu of weekly payments, as authorized by section 92-715, R.C.M. 1947, would serve the same purpose of "putting the matter behind" appel- lant, while allowing him to obtain necessary educational retrain- ing and medical care, and is hereby ordered in this case. See Legowik v. Montgomery Ward, supra. Respondents' argument in their brief that section 92-706, R.C.M. 1947, requires board approval of a claimant's medical care is equally meritless. The section reads: " * * * the employer or insurer * * * shall furnish reasonable services by a physician or surgeon, reasonable hospital services and medicines when needed, and such other treat- ment approved by the board * * *." The statute, by its express language, requires an insurer or employer to pay for reasonable physician services and reason- able and necessary hospital and medical services, without any mention of board approval. It is only "other treatment", not specifically mentioned, which must have prior board approval. The issue here, is not, as respondents contend, whether there was board approval of the psychiatric care. The issue is whether such physician services were "reasonable" given the nature of appellant's sickness and the treatment he had already received. This was an issue the workers' compensation court apparently did not consider. It is undisputed that appellant suffered from psycholog- ical disorders. There is nothing in the record to show that treatment of appellant's psychiatric problems by a psychiatrist was anything but "reasonable services by a physician" within the meaning of section 92-706. Respondent insurance carrier therefore is required under the statute to pay for the cost of the psy- chiatric treatment. The final issue on appeal is whether appellant is, by statute, entitled to attorney fees if his claim, after being denied, is later found to be cornpensable on appeal. Section 92- 616, R.C.M. 1947, allows a claimant to recover reasonable costs and attorney fees after a successful appeal. McMillen v. Arthur G. McKee & Co., Mont. ___, 533 P.2d 1095 (1975). This section is triggered only when " * * * the insurer denies the claim for compensation." In this case, the workers' compensation court judge, and not the insurer, denied appellant's claim. The in- surer paid every benefit it was required to pay to appellant under the Act up to and until the workers' compensation court judge, after the hearing, issued his finding that appellant was no longer disabled and no longer entitled to workers' compensation benefits. Section 92-616 is meant to penalize an insurance carrier which cavalierly terminates a claimant's benefits, without the prior approval of the workers1 compensation court. In this case, however, respondent insurance carrier was entitled to rely on the opinion of the workers' compensation court judge and need not bear the cost of appellant's appeal. This case is affirmed in part and reversed in part, and remanded to the workers' compensation court for a determination of the amount of the lump sum payment which is properly payable to appellant. Chief We concur: Justices

October 18, 1977

e0b87e35-863c-4262-ac73-2340029b7118

LOCAL 8 v CITY OF GREAT FALLS

N/A

13616

Montana

Montana Supreme Court

No. 13616 I N T H E SUPREME COURT O F T H E STATE O F M O N T A N A 1977 L O C A L # 8 INTERNATIONAL ASSOCIATION O F FIRE FIGHTERS, P l a i n t i f f and Appellant, -vs- CITY O F G R E A T FALLS, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , Honorable R. J. Nelson, Judge p r e s i d i n g . Counsel of Record: For Appellant: McKittrick and Duffy, Great F a l l s , Montana Joseph Duffy argued, Great F a l l s , Montana For Respondent : Howard Burton and L e s l i e S. Waite, Great F a l l s , Montana L e s l i e S. Waite argued, Great F a l l s , Montana Submitted: June 2 , 1977 Decided: AUG 3 0 7 9 7 7 Clerk M r . Justice Frank I. Haswell delivered the Opinion of the Court, This i s an appeal from an order entered by the d i s t r i c t court, Cascade County, dismissing two counts of a complaint f i l e d by Local /,8, International Association of Firefighters against the City of Great Falls. Local /I8 brought the action for declaratory judgment t o determine the rights of the parties with respect t o longevity pay of firemen employed by the City. Counts I and I1 of Local #8's complaint were dismissed by the d i s t r i c t court for failure t o s t a t e a cause of action under which relief could be granted. Count 111, concerning an un- related matter, is s t i l l pending for t r i a l . Local /I8 i s a labor organization and the certified collective bargaining agent for firemen employed by the 'city. The City is a municipal corporation and i s the employer bargaining agent for collective bargaining purposes. The City and Local /I8 entered into numerous collective bargaining agreements which cover a l l years material t o t h i s case. These agreements cover a l l matters of wages, hours and working conditions affecting the firemen. Since 1937, section 11-1932, R.C.M. 1947 (and i t s predeces- sors) has established minimum wages t o be paid t o firemen employed by f i r s t class c i t i e s such as Great Falls. I n 1957, section 11-1932 was amended t o provide for a higher minimum wage and also longe- vity pay. A fireman thereafter was entitled t o a minimum salary equal t o the statutory base wage plus 1% of the base wage for each year he served up t o 20 years. Thus, i n 1957, when the statutory base wage was $350, a fireman who had served for one year was entitled to a minimum salary of $353.50 ($350.00 + 1% of $350.00 = $353.50). It i s important t o note the 1 % longevity pay was a percentage of the statutory minimum base wage rather than of the actual wage being received by the employee. Thus, i f the employee's actual wage was higher than the statutory minimum wage, section 11-1932 had no effect upon h i s actual salary. Subsequent amendments to section 11-1932 i n succeeding years increased the statutory base wage. A 1975 amendment of section 11-1932 allowed accumulation of longevity beyond 20 years and increased the minimum salary t o $700. Likewise, the collective bargaining agreement executed by the firemen and the City provided for an increase i n salary for the firemen. A t a l l times relevant herein the salary paid by the City t o each fireman exceeded the statutory base salary paus longevity pay. In 1956, the Council of the City of Great Falls passed Resolution No. 4973 dealing with longevity pay for firemen. The Resolution granted longevity pay of 1% per year of service (up t o a maximum of 5%) to those firemen who served more than 20 years. This longevity pay is calculated by computing a percentage of the actual wage received by the fireman rather + than the statutory minimum wage. The purpose and intent of the Resolution is clearly stated in its opening paragraph, which reads : "THAT WHEREAS it i s deemed wise by the Council t o reward faithful Firemen and Policemen who have served said City a f u l l period of a t l e a s t 20 years by an increase of pay so as t o induce a longer tenure of service by the same * * *." This Resolution continued in f u l l force and effect for some I t ' . . t ' ', . - L , . twenty years and was incorporated i n the collective bargaining agreements executed by the parties during t h i s period. Several firemen have served the f u l l period and have become entitled t o the additional longevity pay. These long-tenured firemen have been paid longevity pay by the City i n accordance with the Resolution. - 3 - I n May 1975 the City Commission passed Resolution No. 6759 which repealed Resolution No. 4973 effective July 1, 1975. The stated reason for the repeal of the longevity pay resolution was t o eliminate "double compensation for firemen and policemen" i n light of the 1975 legislative action removing the 20 year l i m i - tation on longevity pay for firemen and policemen. A t the time the City repealed Resolution No, 4973, there was an existing collective bargaining agreement in effect. There were no negotiations with the firemen or Local /,8 t o delete the 20 year longevity provision from the contract. O n August 7, 1975, Local /I8 made formal protest t o the City of the repeal of the longevity pay provision. O n August 21, the City denied and rejected the protest. O n o r about September8 the parties agreed the issues relative t o t h i s case should be pursued through the courts t o determine the rights of the parties. It was agreed the signing of a new collective bargaining agreement in September 1976 would not constitute a waiver of protests and disputes relative t o the repeal of the longevity pay provision. Four issues are before t h i s Court upon appeal: 1 . Whether the City, by virtue of Resolution No. 4973 created contractual rights enuring to the benefit of i t s firemen. 2. Whether the repeal of Resolution No. 4973 was an unconstitutional breach of the collective bargaining agreement then i n effect. 3. Whether the repeal of Resolution No. 4973 was necessary t o eliminate double compensation to the firemen. 4. Whether the dismissal by the d i s t r i c t court of Counts I and I1 of p l a i n t i f f ' s complaint was error. The f i r s t issue concerns the question of whether a contract was created for the benefit of the firemen by the c i t y ' s adoption of Resolution No. 4973 concerning longevity pay. A companion question t o be answered in u C S Q Z " ~ ~ ? ~ ;*is' d-ssue is--whether the City had the authority t o repeal the ordinance i n light of the possible contract created? This precise issue i s a matter of f i r s t impression i n t h i s jurisdiction. The parties c i t e Bartels v. Miles City, 145 Mont. 116, 399 P.2d 768 (1965); State ex rel. Evans v. Fire Dept. Relief Assn., 138 Mont. 172, 355 P.2d 670 (1960); and Clarke v. Ireland, 122 Mont. 191, 199 P.2d 965 (1948), as controlling precedent in regard t o t h i s issue. This line of authority i s clearly dis- tinguishable from the instant case. I n a l l these cases, the employees had contributed moneys into a fund of a certain nature with the expectation of receiving a benefit therefrom. Such i s not the case here and therefore, w e do not rely on these cases. W e further hold that Stephens v. City of Billings, 148 Mont. 372, 422 P.2d 342 (1967) i s not controlling. In Stephens w e held that a seniority rule enacted by a c i t y ordinance could be repealed and no vested contract right was created for the benefit of certain c i t y employees. The fact situations i n Stephens and the instant case are admittedly similar; however, the seniority rule, a s adopted by the ordinance, expressly provided for alteration by appropriate action of the c i t y council. For t h i s reason, S tephens is distinguishable. The long standing general rule i s that the body which enacted an ordinance has the power t o repeal such ordinance. Wright v. City of Florence, 229 S.C. 419, 93 S.E.2d 215 (1956); City Council of Charleston v. Wentworth Street Baptist Church, 4 Strob. 306 (S.C. 1850). A specific grant of authority is not necessary t o repeal ordinances as the general rule implies that power unless otherwise provided. Wright v. City of Florence, supra; 6 McQuillin, Mun.Corp. (3rd Ed.), $ 21-10. This area of law i s summarized i n 6 McQuillin~Mun.Corp.(3rd "The power of repeal extends, generally speaking, t o a l l ordinances. Indeed, a municipal corporation cannot abridge i t s own legislative powers by the passage of irrevocable ordinances. The members of i t s legislative body are trustees for the public, and the nature and limited tenure of t h e i r office impress the ordinances enacted by them with l i a b i l i t y t o change. One council may not by an ordinance bind i t s e l f or i t s successors so as to prevent free legislation in matters of municipal government. Accordingly, i n the absence of a valid provision t o the contrary, a municipal council or assembly having the power t o legislate on, or exercise discretionary o r regulatory authority over, any given subject may exercise that power a t w i l l by enacting o r repealing an ordinance in relation t o the subject, Thus, the power of repeal extends to legislative enactments and, a f o r t i o r i , t o ordinances of an administrative character, a s , for example, an ordinance fixing the f i s c a l year of a municipal corporation. The power does not extend, how- ever, t o authorize impairment of a contract or deprivation of property without due process of law." I n addition to the limitation upon the right of repeal which impairs a contract or deprives one of property without due process of law, a third exception i s generally recognized. This exception exists where an ordinance has been enacted under a narrow limited grant of authority t o do a single designated thing i n the manner and a t the time prescribed by the legislature. In effect, no right of repeal exists a s t o an ordinance that constitutes the exercise of municipal power which is exhausted by i t s single exercise. Clearly an implied contract between the City and Local /I8 was created by Resolution No. 4973. A n offer t o pay longevity was made by the resolution. This offer was accepted by the firemen as evidenced by both the many years of diligent service provided and the incorporation of t h i s provision into subsequent collec- tive bargaining agreements. The stated purpose of the resolution was "to induce a longer tenure of service" by the firemen. That purpose was accomplished. During the 20 year period that followed passage of the resolution, numerous firemen attained the required 20 years of service and became entitled t o the increased pay. Any contention that firemen were not induced t o serve longer terms by the longevity provision is simply not correct. Once the determination is made that a contract was created by Resolution No. 4973, the next question that must be answered is the effect of the repeal of the resolution. A virtually identical issue was discussed i n CYty of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945). In that case an ordinance was passed creating a c i v i l service system for c i t y employees. Several years l a t e r the c i v i l service ordinance was repealed by a second ordinance. Thereafter, the ordinance repealing the c i v i l service ordinance was repealed; The c i t y filed a declaratory judgment action t o determine the status of c i t y employees who were hird or employed by the c i t y during t h i s period. The Kentucky Court of Appeals found that a contract was created by the original c i v i l service ordinance. The rights acquired by c i t y employees who were employed during the operative l i f e of the c i v i l service ordinance could not be affected by the subsequent lawful repeal of the ordinance. In C i t y of Owensboro the court stated: "* * * Consequently, the repealing ordinance annulled, abrogated, and put an end t o the Civil Service Ordinance. It must be admitted, however, that the repeal of it * * * did not and could not affect the vested rights and the inviolable contract of the employees who became such, and qualified hnder the Civil Service Ordinance within its operative life." 109 S.W.2d 1008. Similar r e s u l t s were reached by t h e Kentucky courts i n Hopwood v. City of Paducah, (Ky.1968), 424 S.W.2d 134; R i t t e v. City of Covington, 308 Ky. 792, 215 S.W.2d 980 (1948). W e find t h i s authority persuasive i n the instant case and therefore hold the repeal of Resolution No. 4973 by the City was effective. However, t h i s repeal has absolutely no e f f e c t on the vested contract r i g h t s t o longevity acquired by Great F a l l s firemen during the operative l i f e of the ordinance. A l l firemen who commenced employment a s Great F a l l s firemen o r served i n such a capacity during the e f f e c t i v e period of the ordinance have a vested contractual r i g h t . I n i t s second issue Local #8 complains the City's repeal of Resolution No. 4973 is an unconstitutional enactment which has the e f f e c t of impairing the obligations of the contract between the City and Local #8. Resolution No. 4973 has been incorporated by reference i n t o a l l collective bargaining agree- ments between the p a r t i e s including the one i n e f f e c t a t the time the resolution was repealed. A r t . 11, Section 31, 1972 Montana Constitution s t a t e s t h a t no "law impairing the obligation of contracts * * * s h a l l be passed by the legislature." Constitutional provisions pro- h i b i t i n g the impairment of contractual obligations apply t o municipal ordinances and resolutions. 16 C. J.S. Constitutional Law, $278, p. 1280, s t a t e s : "Ordinances and resolutions passed by the municipal subdivisions of a s t a t e i n pursuance of delegated l e g i s l a t i v e authority of the s t a t e a r e laws within the meaning of constitutional provisions and void i f they impair the obligations of contracts." * *" By repealing Resolution No. 4973, incorporated i n t o the contract between the City and Local #8, the City has attempted t o change the terms of t h i s contract. Such a change v i o l a t e s the foregoing constitutional provision a s well a s the Consti- tution of the United States. This contract between a union and a governmental e n t i t y i s e n t i t l e d t o the same protection of t h e federal and Montana Constitutions t h a t is afforded a contract between individuals. S t a t e ex r e l . Evans v. F i r e Dept. Relief Assn., supra; Clarke v. Ireland, supra; S t a t e ex rel. S t a t e Savings Bank v. Barret, 25 Mont. 112, 63 P. 1030 (1901). W e therefore hold the resolution repealing Resolution No. 4973 i s unconstitutional a s applied t o firemen covered by the contract i n e f f e c t a t the time of the repeal. Appellant's t h i r d issue deals with t h e City's contention the repeal of Resolution No. 4973 was necessary t o eliminate double compensation f o r firemen i n l i g h t of the 1975 l e g i s l a t i v e action removing the 20 year limitation on longevity pay f o r f i r e - men. This i s a f a l s e issue i n t h i s case. The f a c t s c l e a r l y show firemen employed by the City of Great F a l l s have a t a l l times been paid i n excess of the statutory minimum plus longevity. Therefore, a change i n the length of the longevity allowed by s t a t u t e has no e f f e c t on firemen involved herein. Appellant's f i n a l issue deals with the propriety of the dismissal of Counts I and I1 of appellant's complaint. The standard f o r reviewing rulings on motions t o dismiss was recently discussed i n Hasbrouck v. Krsul, 168 Mont. 270, 272, 541 P.2d 1197 (1975), where t h i s Court stated: "In judging the correctness of t h a t order, we apply the s t r i c t standard f o r Federal Rule 12, a f t e r which ~ o n t a n a ' s Rule 12, M.R.Civ.P. was patterned. I n Conley v. Gibson, 355 U.S. 41, 45,46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80,84, it is said: " * * a complaint should not be dismissed for f a i l u r e t o s t a t e a claim unless it appears beyond doubt t h a t the p l a i n t i f f can prove no s e t of f a c t s i n support of h i s claim which would e n t i t l e him t o r e l i e f . "I Further discussion i s found i n Duffy v. Butte Teachers Union, 168 Mont. 246, 252, 541 P.2d 1199 (1975), where t h e Court said: "A motion t o dismiss f o r f a i l u r e t o s t a t e a claim upon which r e l i e f can be granted, Rule 12(b)(6), M.R. Civ.P., i s equivalent t o a demurrer under former c i v i l procedure. Payne v. Mountain States Tel. and Tel. Co., 142 Mont. 406, 409, 385 P.2d 100. A motion t o dismiss admits t o a l l f a c t s well pleaded and i n considering the motion the material allegations of the pleading attacked a r e taken a s true. Deich v. Deich, 136 Mont. 566, 585; 323 P.2d 35. Where a complaint s t a t e s f a c t s s u f f i c i e n t t o c o n s t i t u t e a cause of action upon any theory, then the motion t o dismiss must be overruled. Magelo v. Roundup Coal Mining Co., 109 Mont . 293, 300, 96 P. 2d 932. However, when a complaint alleges f a c t s and, assuming the f a c t s a r e t r u e , there s t i l l is no claim f o r r e l i e f s t a t e d under any theory, a motion t o dismiss must be granted." 168 Mont. 252. W e expressly refuse t o r u l e upon the merits of this case. However with the foregoing standard f o r review i n mind, we hold the d i s t r i c t court erred when it dismissed Counts I and I1 of appellant's complaint. Counts I and I1 a r e simply claims f o r r e l i e f on the basis of a contract between the City and the firemen. Resolution of appellant's previous issues makes it , P abundantly c l e a r appellant's complaint is not so defective a s t o appear beyond a doubt t h a t appellant can prove no s e t of f a c t s i n support of i t s claim which would e n t i t l e it t o r e l i e f . W e reverse* the ruling of the d i s t r i c t court dismissing Counts I and I1 of the complaint and remand t h i s matter f o r t r i a l on the merits. Justice. ............................................. M r . Chief Justice Paul G. Hatifield did not participate in this case.

August 30, 1977