2022 MT 28

State v. Lake

The State’s repeated and explicit reference at trial to defendant’s highly inflammatory comments about child sex abuse was unfairly prejudicial under M. R. Evid. 403 and warranted reversal.

It was common knowledge among patrons at Jesters Bar that Lake often made offensive comments about child sex abuse.  After an incident where Lake repeatedly stabbed a fellow patron outside the bar, he told police that the victim had previously slandered him to other patrons.  Prior to Lake’s trial for attempted deliberate homicide, he sought to categorically exclude evidence of a rumor among bar patrons that he was a pervert and a child molester, arguing that the evidence was irrelevant and highly prejudicial.  The District Court denied Lake’s pretrial motion and allowed the State to present evidence of Lake’s prior offensive comments as proof of his motive to retaliate against the victim for the alleged slander, subject to a limiting instruction.  Throughout the trial, the State repeatedly elicited explicit testimony from multiple witnesses regarding Lake’s comments and references to child sex abuse.

On appeal, the Supreme Court determined that the other acts evidence was relevant and admissible as proof of motive under M. R. Evid. 404(b).  However, the evidence of Lake’s comments about child sex abuse was inherently prejudicial and highly inflammatory, and thus where an alternative, more generic, and less explicit form of the same evidence was available, sound judicial discretion counselled exclusion under M. R. Evid. 403.  The Court reversed and remanded for a new trial on the grounds that the District Court did not carefully or sufficiently limit the use of otherwise relevant prior bad acts evidence to avoid its manifestly inherent risk of unfair prejudice.

Points of Interest: Rule 403, Rule 404, evidence


2022 MT 27

In re C.K.

A district court does not abuse its discretion in denying a motion to amend a treatment plan the day of a termination hearing when the requested amendments are covered under the existing treatment plan and a parent has not previously objected, nor does not abuse its discretion in determining a parent is unlikely to change in a reasonable time when the parent fails to engage with services when they are belatedly offered.

The Department removed Child due to concerns of Mother’s drug use and physical neglect.  Child was diagnosed with autism after removal and had substantial needs. Over the next three years, Mother largely addressed her substance abuse issues but failed to engage in parental education classes or with Child’s numerous providers. While the Department referred Mother to a general parenting class, it did not refer her to autism-specific parenting education until 28 months into the case.  A week before the termination hearing, Mother moved to amend her treatment plan to enumerate specific parenting tasks related to raising a child with autism and to provide related services.  The Department argued these tasks were included under the existing parental education component of the plan and Mother had not engaged in the services she was referred to.  The court denied the motion to amend and terminated Mother’s parental rights under § 41‑3‑609(1)(f), MCA.

On appeal, the Supreme Court held the District Court did not abuse its discretion in denying Mother’s motion to amend.  The requirement in a treatment plan “to follow all recommendations” of a provider cannot expand a treatment plan into a completely new area.  Mother’s plan, however, required her to enroll in a parenting program approved by the Department.  The Department first referred her to a general parenting course and later referred her to an autism-specific parenting program.  She did not object when the Department reported at multiple hearings that she still needed to engage in autism-specific education under her existing treatment plan.  The Court also held the District Court did not abuse its discretion in determining Mother was unlikely to change in a reasonable time.  Mother contended the Department did not refer her to an autism-specific parenting program until 28 months into the case.  While the Court found the delay troubling, Mother did not engage in those services in the seven months before the termination hearing even though parent has an obligation to avail herself of services arranged or referred by the Department.

Points of Interest: dependent neglect, treatment plans


2022 MT 26

Yellowstone Disposal, LLC. v. DEQ

A regulatory agency cannot be compelled through a writ of mandamus to issue an operating license or decision on an application without having all the necessary materials to legally take the requested action, even if the agency has exceeded statutory time limits for review.

Yellowstone Disposal applied to the Department of Environmental Quality for a license to operate a landfill in Richland County.  DEQ is subject to specific statutory time limits within which to complete its environmental review under The Montana Environmental Policy Act, § 75-1-208, MCA.  DEQ greatly exceed these time limits.  While Yellowstone was waiting on DEQ to complete its review, Richland County changed its zoning regulations and Yellowstone no longer had permission to build the landfill without a conditional use permit from the County.  DEQ notified Yellowstone that it determined to “stay” further review of the application until the zoning issue was resolved.  Yellowstone petitioned for a writ of mandamus to compel DEQ to issue the license, or alternatively, to decide “one way or another” on its application, citing § 75-1-208(7)(a), MCA.  The statute provides that if an agency has not completed its environmental review within the statutory time limits, it may not withhold a permit without a written finding that issuing the permit would violate legal requirements.  The District Court denied Yellowstone’s petition.

The Supreme Court affirmed and held that Yellowstone did not meet the requirements for the “rare” remedy of mandamus.  A writ of mandamus would require 1) DEQ to have a “clear legal duty” to issue the license or decide on the application; and 2) Yellowstone to have no other adequate legal remedy.  Due to the unresolved zoning issue, DEQ could not legally issue the license and the application did not include all materials required for a legal DEQ decision.  Therefore, DEQ did not have the “clear legal duty” required for mandamus.  Additionally, Yellowstone still had an adequate legal remedy to make DEQ resume its review — obtaining the conditional use permit and, if necessary, appealing DEQ’s ultimate decision administratively and then to the District Court.

Points of Interest: writ of mandamus, administrative law, environmental law


2022 MT 25

Higgins ex rel. E.A. v. Augustine

No abuse of discretion where District Court excluded portions of an expert’s testimony disclosed months after discovery closed when the testimony was not previously disclosed and the party relying on the expert was not diligent in making the expert available for deposition by the opposing party.

Higgins sued Augustine for medical malpractice for an injury that occurred during the circumcision of her newborn son.  Higgins provided a one-paragraph expert disclosure, broadly asserting the surgical procedure was not performed correctly, causing the injury.  In her complaint and discovery responses, the only particular means by which Higgins asserted the surgery was not performed correctly was the failure to properly secure the baby for surgery.  Augustine sought to depose Higgins’s expert for months.  Higgins did not make her expert available until four months after the close of discovery and a week before the pretrial motions deadline.  At the deposition, Higgins’s expert disclosed the injury could have occurred with the use of improper scissors or using the proper scissors incorrectly.  Augustine moved to exclude the newly disclosed scissors opinions.  The district court granted the motion.  A jury found for Augustine.

On appeal, the Supreme Court held the District Court did not abuse its discretion in excluding the late disclosed portions of the expert’s opinion under the totality of the circumstances.  The court recognized that it is not uncommon for an expert to make more thorough and detailed disclosure during the expert’s deposition.  But Higgins never identified the failure to correctly use scissors as how the surgery had been improperly performed, either in her complaint, her answers to interrogatories, or in her M. R. Civ. P. 26 expert disclosure.  Augustine diligently sought to depose Higgins’s expert, but Higgins failed to make her expert available until four months after discovery had closed and only a week before pretrial motions were due.  Under the circumstances, the court did not abuse its discretion in excluding the newly disclosed portions of the expert’s testimony.

Points of Interest: experts, discovery, evidence


2022 MT 24

Associated Press v. Usher

A number of Republican members of the House Judiciary Committee, but not enough to constitute a quorum of the Committee, did not violate the constitutional right to public access when they met privately during a committee recess.

During the 2021 Legislative session, a group of Republican members of the House Judiciary Committee denied Associated Press (AP) reporters access to a meeting they held privately during a committee recess. The committee chair deliberately convened the conversation with less than a quorum of the committee’s membership so that it would not constitute an official public meeting under the open meeting laws. The AP sued, arguing that this was a violation of the constitutional “right to know.”  The District Court dismissed the AP’s lawsuit.

On appeal, the Montana Supreme Court upheld the dismissal.  Article II, Section 9, of the Montana Constitution guarantees the public a right to observe the deliberations of governmental bodies. Section 2-3-202, MCA, defines such deliberations for certain bodies as only those comprising a “quorum of the constituent membership.”  The statutory definition of a meeting could control the unofficial character of the gathering. In the context of informal conversations among legislators, the well-established quorum rule remains an effective means of bounding when the constitutional right applies.

Points of Interest: constitutional law, right to know, Art. II(9)


2022 MT 19

Twin Creeks Farm & Ranch, LLC v. Petrolia Irrigation Dist.

Claimant failed to rebut evidence that water use on some irrigated acreage had been abandoned in the mid-20th century. The correct priority for renewed use on that acreage is the date of resumption, as if it was a new water appropriation, rather than the earlier date of the abandoned claim. 

Twin Creeks Farm & Ranch owns property in Petroleum County with water rights tied to a 1903 claim. They assert rights to flow sufficient to irrigate 210 acres, the amount under irrigation in 1982 when the claim was re-filed after the creation of the Water Court. Desert Land Act patents demonstrate that the initial claimants may have irrigated around 150 acres on the property. During the Water Court’s adjudication of this basin, Petrolia Irrigation District (PID) objected to Twin Creek’s claim, arguing that most of these water rights should receive a priority date later than 1903. PID submitted evidence that only a small portion was irrigated between 1948 and 1968. This 20-year period raises a presumption of abandonment.

Twin Creeks attempted to rebut that presumption by presenting expert testimony interpreting 1948 and 1954 aerial photos of the area. Twin Creeks also referenced materials from a 1971 Water Resource Survey. The Water Court found Twin Creeks’ evidence insufficient and held that the acreage had been abandoned; it thus granted Twin Creeks an implied claim dating to 1968, when the evidence demonstrated expanded irrigation.

On appeal, the Supreme Court affirmed the Water Court, finding its interpretation of the testimony and the Water Resource Survey materials accurate. The Supreme Court disagreed with Twin Creeks’ assertion that water use expanded in 1968 could still be tied to the original 1903 priority date, noting that reassertion of rights to an abandoned appropriation operates as a new appropriation, with a claim vesting on the date of the resumed use.

Points of Interest: water law, priority date, abandonment


2022 MT 18

State v. Quiroz

In a case that turned on the victim’s credibility, defense counsel provided ineffective assistance by failing to object to statistical testimony regarding the frequency of false reporting in sexual assault and rape cases.  The jury’s split verdict indicated that counsel’s deficient performance, which was specific to sexual assault and rape cases, did not prejudice the defendant with respect to his convictions for aggravated kidnapping or assault with a weapon.

Helena police arrested Quiroz after his on-again, off-again girlfriend alleged he had detained and abused her over the previous day and night.  A jury convicted Quiroz of five offenses—aggravated kidnapping, assault with a weapon (knife), partner or family member assault, sexual intercourse without consent, and criminal possession of dangerous drugs—and acquitted him of two others—assault with a weapon (hammer) and strangulation of a partner or family member.

At trial, the State solicited expert testimony that only a small proportion of sexual assault reports are false, and the percentage of false reports is “much, much, much lower” when the victim and perpetrator are dating.  Defense counsel did not object, despite longstanding Montana law holding that expert testimony regarding the statistical frequency of false accusations in sexual assault or rape cases is inadmissible as an improper comment on the credibility of the victim. 

On appeal, Quiroz argued that his counsel’s failure to object to the statistical testimony prejudiced his defense as to his convictions for aggravated kidnapping, assault with a knife, and sexual intercourse without consent.  The Supreme Court held that because there is a reasonable probability the inadmissible evidence swayed the jury to convict Quiroz of sexual intercourse without consent, counsel’s deficient performance undermined the Court’s confidence in the verdict and Quiroz’s conviction for sexual intercourse without consent was reversed and remanded for a new trial. 

However, Quiroz’s convictions for aggravated assault and assault with a weapon (knife) were affirmed.  Quiroz presented no basis by which the Court could conclude the statistical testimony swayed the jury enough to convict Quiroz for some, but not all, of the remaining offenses.  The split verdict indicated that the jury considered the evidence as it pertained to the elements of each charge individually and on its own merits.

Points of Interest: experts, ineffective assistance of counsel, verdicts


2022 MT 13

Rafes v. McMillan

Montana’s reciprocal attorney fee statute only applies when the dispute arises out of a contract with a provision expressly providing for the right of one party to receive attorney fees. 

Rafes, an individual, and Bairstow, a limited liability company managed by Rafes, sued McMillan for alleged construction defects.  In their Complaint, Rafes and Bairstow requested attorney fees under § 70-19-428, MCA, which provides attorney fees for the prevailing party in a construction defect suit.  In his Answer, McMillan requested attorney fees as a reciprocal right under the same statute.  Rafes and Bairstow were initially represented by an attorney, but the attorney withdrew.  McMillan prevailed on all claims at trial and the District Court awarded him attorney fees as a reciprocal right under § 70-19-428, MCA.  Rafes filed multiple motions on behalf of himself and Bairstow, including a motion to remove Bairstow as co-plaintiff, which the District Court ignored. 

On appeal, Rafes argued he was not legally responsible for McMillan’s attorney fees and that the District Court should have granted his motion to remove Bairstow.  The Supreme Court reversed McMillan’s attorney fee award because Rafes and McMillan had an oral agreement for construction work that contained no provision for attorney fees.  In order for § 28-3-704, MCA, to apply and make the right reciprocal, the contract itself must contain an express right to attorney fees.  A statutory right, such as that in § 70-19-428, MCA, is insufficient.  The Court remanded the case for the district court to consider whether McMillan was entitled to attorney fees under the equitable Foy exception, which grants attorney fees when a prevailing defendant was forced into defending against a frivolous suit.  The Court affirmed the District Court’s decision to not remove Bairstow because although Rafes should not have represented a separate entity as a non-attorney, he also could not bring an appeal on Bairstow’s behalf. 

Points of Interest: attorney fees, contracts, non-attorneys


2022 MT 12

Morley v. Morley

An objection to a referees’ report in a partition action which is not supported by sufficient evidence does not entitle a party to an evidentiary hearing.

Three siblings each inherited an undivided one-third interest in real property, including a cabin on approximately 53 acres of land, after their mother’s death.  The siblings entered into an operating agreement and managed the property together for a couple of years, before exploring options to buy out the interest of the others.  When they could not come to acceptable terms, one sibling filed a partition action and sought to be awarded his one-third interest in the property by receiving a portion of the property which did not contain the cabin.  The parties obtained several appraisals and the District Court appointed three referees to file a report recommending how the property should be divided.  The parties provided the referees with the appraisals and the referees toured the property before filing their report, which recommended dividing the property into two parcels— a 43-acre parcel of only land which would go to the sibling who filed the partition action, and a 10-acre property containing the cabin which would go to the other two siblings.  The two siblings who received the cabin and 10 acres of land filed an objection to the referees’ report which was accompanied by exhibits, including some of the appraisals given to the referees.  The court determined the two siblings did not present a “substantiated objection” and denied their request for an evidentiary hearing.

On appeal, the Supreme Court affirmed the District Court’s denial of an evidentiary hearing.  The two siblings who objected to the referees’ report did not present sufficient evidence to qualify as a “substantiated objection” and require an evidentiary hearing, as they merely presented documents already expressly considered by the referees and the arguments of their counsel. 

Points of Interest: property, sufficiency of evidence, partition


2022 MT 11

State v. Wilson

District Court did not abuse its discretion in ruling that a developmentally disabled witness was not competent to testify in reliance on a doctor’s report, excluding improper character evidence, and permitting the State to call a rebuttal witness who was not sequestered.

Wilson admitted he stole merchandise from a thrift store but denied committing burglary.  He claimed that F.Z., a developmentally disabled employee of the store, gave him permission to enter the store after hours to clean.  The State challenged F.Z.’s competency to testify and submitted a court-ordered evaluation from F.Z.’s doctor indicating F.Z. was incapable of distinguishing between truth and lies.  The court found the report convincing and excluded F.Z. from testifying although it did not examine F.Z.

At trial, Wilson called a motel manager to testify that Wilson shoveled snow for the motel for $2 in 2017, to show he regularly performed odd jobs, but the court excluded the testimony as improper character evidence.  However, the court permitted the thrift store director to testify as a rebuttal witness over Wilson’s objection even though the court had entered an order sequestering witnesses and the director was present in the courtroom during trial. 

On appeal, the Supreme Court affirmed the evidentiary rulings.  It was not an abuse of discretion to disqualify F.Z. as a witness without examining him; courts may disqualify witnesses who are incapable of understanding their duty to tell the truth, and here the court had a recent, detailed report from a doctor opining that F.Z. was not capable of understanding this duty.  Second, the court did not err in excluding the motel manager’s testimony.  Even if Wilson’s tendency to work odd jobs was pertinent to the case, he was not permitted to introduce it through a specific instance of conduct because this did not establish a defense to any element of burglary.  Third, the court did not abuse its discretion by permitting the thrift store’s director to testify as a rebuttal witness.  Although the trial court did not rely on the statute that exempts victims from sequestration orders, the director of the thrift store qualified as a victim representative.

Points of Interest: evidence, witnesses, character evidence


 2022 MT 10

State v. Burnett

A 466-day delay between arrest and trial did not violate Appellant’s to a speedy trial.  The admission of a jail phone call, the testimony of one witness, and the testimony of Appellant constituted sufficient evidence to support Appellant’s perjury conviction. 

On April 26, 2018, Burnett was charged with fourteen counts of assault on a minor, two counts of endangering the welfare of a child, and one count of perjury.  The perjury charge concerned whether Burnett lied about using a taser on her daughter.  Due to the volume of evidence, plea negotiations, and the availability of the parties, Burnett did not go to trial until August 5, 2019.  At trial, Burnett’s former roommate, Nicholas Conlan, testified to witnessing Burnett tase her daughter.  The State introduced a jail phone call between Burnett and her father where Burnett admitted to pressing the taser against her daughter.  The District Court found Burnett guilty of nine counts of assault on a minor and one count of perjury.  Burnett was acquitted of an assault on a minor charge that alleged she tased her daughter.

On appeal, Burnett argued the delay between her charges and trial violated her constitutional right to a speedy trial.  Burnett also argued Conlan’s testimony and the jail phone call was insufficient to convict her of perjury.  The Supreme Court affirmed her conviction.  Concerning Burnett’s speedy trial right, the Court concluded the length of the delay weighed against the State.  The delay was institutional in nature and weighed less heavily, and Burnett demonstrated neither her desire to go to trial nor any prejudice to her caused by the delay. 

The Court concluded Conlan’s testimony was corroborated by the jail phone call in which Burnett admitting using a taser.  Burnett’s acquittal on the assault on a minor charge did not mean the State failed to introduce sufficient evidence that Burnett perjured herself.

Points of Interest: perjury, speedy trial


2022 MT 9

Fouts v. Montana Eighth Judicial Dist. Court

District Court exceeded its authority or abused its discretion when it found DPHHS in contempt for failing to admit an individual adjudged unfit to proceed and imposed a $500 fine for each day DPHHS did not admit the individual.

The District Court adjudicated a defendant unfit to proceed and ordered the individual immediately transported and committed to the custody of Montana Department of Public Health and Human Services for treatment pursuant to § 46-14-221(2)-(3), MCA.  However, Montana State Hospital advised that it had no bed-space available and the individual was not transported.  Following a motion by the Cascade County Attorney, the court issued a contempt/show cause order against DPHHS.  At the subsequent hearing, the parties provided no evidence, though DPHHS’s counsel made unsworn representations that the individual was on a waitlist and those ahead of her on the list were “displaying at least equally troubling psychotic behavior.”  In subsequent written Order, the District Court found it “undisputed that [DPHHS] has the power to admit” the individual “now” and held DPHHS in contempt, imposing a cascading fine of $500 for each day DPHHS did not admit her.  DPHHS petitioned for certiorari before the Supreme Court, contesting the contempt order and sanction.

The Supreme Court reversed the Contempt Order, holding that the District Court’s finding that DPHHS had the power to immediately admit the individual for treatment was not based on substantial evidence and was therefore erroneous.  Because inability to comply with a court order constitutes a complete defense to contempt, the erroneous finding was material and the order either exceeded the District Court’s authority or abused its discretion.  Furthermore, the cascading $500 per day sanction violated the civil contempt sanction limit set by § 3-1-520, MCA.

Points of Interest: contempt, sanctions, sufficiency of evidence


2022 MT 5

State v. Mosby

Section 46-14-222, MCA, creates a mechanism to resume a dismissed criminal case if a defendant who lacked fitness to stand trial regains fitness, but it also calls for a discretionary consideration of the justness of doing so.  Resuming criminal jurisdiction after the defendant spent over a decade in civil commitment was an abuse of discretion. 

In 2005, the State charged Mosby with sexual assault and indecent exposure following an incident in a locker room. Mosby had demonstrated life-long mental and behavioral issues, and at the time, he resided in a group home under community supervision. His attorneys sought an assessment of his fitness to stand trial, and following psychological reports, the District Court dismissed his case. The State opened a civil commitment proceeding, and Mosby was sent to the Montana Developmental Center.

Mosby’s MDC commitment was continually renewed for over a decade. For a recommitment hearing in 2017, Mosby submitted a psychological report that raised doubts about his developmental disability status; with this evidence to counter the recommendation of the MDC screening team, Mosby hoped the court might find him able to return to a community treatment setting. The State, however, used the report as the basis for a new motion in the long-dismissed criminal case. The State asked the District Court to revisit Mosby’s fitness to stand trial in that case.

The District Court permitted the criminal case to go forward, and Mosby pled guilty while preserving his objections for appeal. On appeal, he argued that the District Court lacked authority to revive the dismissed criminal case under Montana’s laws on fitness to stand trial. In its ruling, the Supreme Court held that the laws permit District Courts to resume cases when criminal defendants regain fitness, but in this case, doing so was an abuse of the District Court’s discretion.

Points of Interest: fitness to proceed, resumption of prosecution


2022 MT 4

State v. Peoples

(1) Tip from probationer’s wife was sufficient to justify warrantless home search pursuant to the probationary search exception; (2) officers’ entry did not establish that manner of search was constitutionally unreasonable; and (3) exclusionary rule was inapplicable where the subsequent manner of search was not the cause of the prior-occurring evidentiary discovery.

Acting on a tip from Peoples’s wife that Peoples—who had a long history of substance abuse—was using again, Peoples’s probation officer, with other law enforcement officers, conducted a search of Peoples’s apartment.  When Peoples did not answer the door after law enforcement knocked and announced their presence, the party obtained a key from the property management and entered with guns briefly drawn.  They found Peoples seated naked on his bed and suspected methamphetamine and paraphernalia in plain sight.  Peoples remained seated, naked and handcuffed, for nearly 30 minutes while law enforcement searched his apartment.  The record suggested that some of the officers were motivated by a suspicion, ultimately disproven, that Peoples might have been the perpetrator in an unrelated homicide.  The District Court denied Peoples’s motion to suppress the methamphetamine evidence during revocation proceedings.

The Supreme Court affirmed, finding that the probation officer had the necessary level of suspicion of a violation to support a probationary home search pursuant to the probationary search exception to the warrant requirement.  Allegations of pretextual motives by other law enforcement agents were immaterial.  Similarly, the manner in which the officers initially entered the apartment was not constitutionally unreasonable.  The remedy of exclusion was not appropriate for Peoples’s allegations that the manner of his subsequent detention—handcuffed naked on his bed for nearly 30 minutes while officers searched his apartment—was constitutionally unreasonable.  Even if Peoples’s constitutional rights were violated, that violation was not the cause-in-fact of the evidentiary discovery, which occurred immediately upon entry of the home.  Because Peoples established no constitutional violation that caused the discovery of the evidence at hand, the exclusionary rule was not applicable.

Points of Interest: search and seizure, warrantless entry, warrantless searches


2022 MT 3

State v. Gardner

Section 61-9-221(1), MCA, does not prohibit momentary flashing of one’s high beams to warn other drivers.  A mistake of law can give rise to particularized suspicion to justify a traffic stop under the Fourth Amendment.

Gardner moved the court to suppress evidence of DUI because the officer lacked particularized suspicion to initiate the traffic stop.  The officer testified the sole reason for initiating the stop was Gardner’s flashing of his high beams at the officer’s vehicle when the vehicles were closer than 1000 feet, which the officer believed violated § 61‑9‑221(1), MCA.  Gardner testified he momentarily flashed his high beams at the oncoming vehicle to warn the driver he had forgotten to dim his high beams.  The lower courts denied Gardner’s motion to suppress the evidence.

On appeal, Gardner argued the officer was mistaken that § 61-9-221(1), MCA, prohibits momentary flashing of one’s high beams and an officer’s mistake of law could not give rise to particularized suspicion.  The Supreme Court explained the United States Supreme Court held in Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530 (2014), that a mistake of law can give rise to particularized suspicion under the Fourth Amendment if the mistake was objectively reasonable.  Section 61‑9-221(1), MCA, requires the “use” of low beams when within 1000 feet of an oncoming vehicle.  The word “use” in the statute means the application or employment of something, especially a long-continued employment as distinguished from a merely temporary or occasional employment.  Based on the plain language, the Court concluded § 61-9-221(1), MCA, does not prohibit the momentary flashing of one’s high beams to warn an oncoming driver.  The officer’s mistake of law was not reasonable because the statute was not ambiguous and did not require “hard interpretive work.”  The Court reversed and remanded the case for the trial court to suppress the evidence gathered during the traffic stop.

Points of Interest: 4th  Amendment, suppression, traffic stops


2022 MT 2

State v. Rossbach

District Court did not abuse its discretion in denying Defendant’s motion to continue trial or in allowing the State to keep a jailed defense witness shackled and in jail clothing, and Defendant was properly sentenced as a persistent felony offender.

Rossbach’s first trial resulted in a mistrial.  His second trial was scheduled during his counsel’s pre-planned vacation.  Rossbach sought a continuance, which the District Court denied because it would have resulted in additional days of incarceration, other felony trials were scheduled on Rossbach’s “ideal” trial date, no speedy trial waiver had been filed, and defense counsel had caused some delay.

At his second trial, Rossbach called an inmate witness to testify.  Thirty minutes before trial, Rossbach’s counsel moved to allow the witness to testify in street clothing and unshackled.  The State raised security concerns and the court denied the motion after hearing argument, balancing possible prejudice to Rossbach against the security concerns.  Upon conviction, Rossbach challenged his PFO designation, arguing that his release from a sentence on revocation was not a release from “other commitment imposed as the result of a previous felony conviction” under § 46-1-202(18), MCA. 

On appeal, the Supreme Court determined the District Court did not abuse its discretion in denying Rossbach’s motion to continue trial.  It further determined the court did not abuse in allowing Rossbach’s witness to testify in jail clothing and shackles.  However, while no absolute rule requires that witnesses testify in street clothing and free from restraints, courts should not routinely require witnesses to appear in jail clothing or shackles.  Finally, the Court held that Rossbach’s release following the revocation of his suspended sentence was an “other commitment” under § 46-1-202(18), MCA, and § 46-18-502(2)(b)(ii), MCA, and therefore the PFO designation could stand.  The Court also rejected Rossbach’s argument that his imprisonment was a result of the revocation of his suspended sentence, rather than of the felony itself.

Points of Interest: continuance, witnesses, PFO


2022 MT 1

Rolan v. New West

An insurer was not equitably estopped from enforcing the policy’s lower limit of liability six years into litigation.  The “Loss” exclusion provision in its policy did not exclude the class’s damages for the insured’s violation of Montana’s made-whole doctrine.

Allied insured New West who in turn insured Rolan and the class she represents (Plaintiffs).  Allied assumed New West’s defense and sent a reservation of rights letter asserting the policy had both a $1 million “each Claim” limit and a $3 million aggregate limit.  The letter also asserted coverage was excluded for New West’s willful violations of law.  Allied confirmed with New West the only coverage exclusion would be the willful acts exclusion.  Six years into litigation, Allied raised that the $1 million “each Claim” limit applied, rather than the $3 million claim.  It also asserted that the settlement reached between Plaintiffs and New West impermissibly included damages that were excluded under its “Loss” provision.  The District Court ruled Allied was equitably estopped from raising a new coverage defense six years into the litigation.  It also held the “Loss” provision did not exclude the settlement recovery between New West and Plaintiffs.

On appeal, the Supreme Court concluded that the District Court erred in ruling Allied was equitably estopped from enforcing the $1 million limit of liability.  New West did not show clear and convincing evidence that Allied made any material representations of fact, an essential element of equitable estoppel.  Allied’s reservation of rights letter and other communications between the two sophisticated insurance companies were sufficient to reserve Allied’s right to raise the issue later in litigation.  Further, the policy limit was not a defense to coverage but rather a limit to the scope of Allied’s indemnity obligation.  Second, the “Loss” definition in Allied’s policy, while excluding direct damages owing under contract, do not include damages caused by New West’s violation of the made-whole doctrine—a doctrine that does not stem from contract, but common law.

Points of Interest: estoppel, insurance policies, contracts


2021 MT 1

State v. Felde

Because § 45-5-625(1)(e), MCA, allows prosecution and conviction for each instance of possession of child pornography, a conviction for each image possessed where Defendant possessed multiple images does not violate § 46-11-410(2)(a), MCA.

Felde was charged with 49 counts of sexual abuse of children, possession of child pornography, based on his possession of 49 separate and distinct digital images.  He pled guilty to four counts, preserving appeal of his challenge to all but the first.  He argued that § 46-11-410(2)(a), MCA, prohibits multiple convictions for possession of child pornography based on each individual image when the images were discovered on a single day on a single device; he contended these charges constitute included offenses.

The Supreme Court affirmed, concluding that the plain language of § 45-5-625(1)(e), MCA, prohibited possession of each and every image of child pornography, thereby the State may charge and prosecute, and a defendant may be convicted of, each and every image possessed. 

Points of Interest: criminal law, multiple charges


2021 MT 2

In re D.A.D.

Section 41-3-609(4)(c), MCA, does not provide a stand-alone ground for termination of parental rights, but long-term incarceration can relieve the Department of the need to provide a treatment plan and can support a finding that the conduct or condition of the parent is unlikely to change within a reasonable time for termination pursuant to § 41‑3‑609(1)(f), MCA.

Mother’s children were removed from her care numerous times.  The fourth removal resulted from Mother’s arrest while she possessed three pounds of methamphetamine.  She was sentenced to 48 months in federal prison, followed by five years of probation.  The Department sought termination under §§ 41-3-609(1)(d) and -423(2)(a), MCA, alleging Mother subjected the children to chronic, severe neglect or, alternatively, under §§ 41-3-609(1)(f) and (4)(c), MCA, alleging Mother is incarcerated for more than one year and reunification is not in children’s best interests.  The District Court made findings to support termination under both theories.

On appeal, Mother argued she received ineffective assistance when her counsel stipulated to the Department’s request that no reunification services be provided, because counsel effectively stipulated that she had subjected the children to chronic, severe neglect and the Department could proceed to termination on that finding alone.  The Supreme Court held Mother was not prejudiced by any error on counsel’s part because the District Court made findings to support termination under §§ 41-3-609(1)(f) and (4)(c), MCA, which did not rely on a finding that Mother subjected the children to severe, chronic neglect.

Points of Interest: dependent neglect, ineffective assistance of counsel


2021 MT 3

In re Expungement of Misdemeanor Records of Dickey

(1) In a petition for expungement of misdemeanor records, petitioner was required to provide more than a cursory petition with a general demand for expungement of all misdemeanors and (2) a speeding violation is not a “misdemeanor” for purposes of expungement jurisdiction.

Dickey petitioned for expungement of his “misdemeanor criminal record(s)” under the Misdemeanor Expungement Clarification Act.  The petition did not refer to any specific misdemeanor and contained no supporting documentation regarding his criminal record or rehabilitation.  The Eleventh Judicial District Court initially granted the petition.   However, it later vacated its order and dismissed the matter without prejudice after the City of Bozeman filed a request for reconsideration alleging Dickey had delayed serving the City with a copy of the petition, venue was improper in the Eleventh District, and Dickey had not met the requisite burden of proof.  The City listed four infractions from its records, which included “DUI alcohol and drugs.”  The only listed offense in the Eleventh District was “Speeding, over 25 MPH.”

On appeal, the Supreme Court held that applicable provisions of the Rules of Civil Procedure and Expungement Clarification Act required Dickey to identify the offenses for which he was requesting expungement, appropriately serve copies to offices that prosecuted an offense for which he sought expungement, bear the burden of proof demonstrating entitlement to expungement for specified offenses, and provide more than a general demand that all misdemeanors be expunged.  Jurisdiction was not proper in the Eleventh District because speeding is not a criminal misdemeanor and Dickey had not otherwise established that the Eleventh District was a “judicial district in which [he] was convicted of a misdemeanor for which expungement is sought” pursuant to § 46-18-1105, MCA.

Points of Interest: expungement, jurisdiction


2021 MT 4

City of Missoula v. Pope

The Montana Incentives and Interventions Grid (MIIG) applies only to DOC, which supervises felony offenders, and the MIIG provisions in § 46-18-203, MCA, affect only revocations of felony sentences.

The City of Missoula Municipal Court imposed a twelve-month deferred imposition of sentence on Pope and placed her on misdemeanor probation.  Following a violation of a condition of her sentence, the City petitioned for revocation. The Municipal Court revoked and reimposed her suspended sentence after Pope admitted to using intoxicants.  Pope moved to dismiss a petition to revoke sentence.  The Municipal Court denied the petition, and the Fourth Judicial District Court affirmed. 

In 2017, the Montana Legislature passed several criminal justice reform bills, one of which required the DOC to adopt the MIIG.  Another bill, SB 63, modified the process by which a defendant’s probation or suspended sentence is revoked.  Together, the MIIG and SB 63 split probation and parole violations into two categories: compliance and non‑compliance violations.  Non-compliance violations include a new criminal offense, possession of a firearm, harassing a victim or someone close to a victim, absconding, and failure to complete sex offender treatment.  A violation of any other condition is a compliance violation. Prior to 2017, a court could revoke a suspended sentence upon a finding that an offender violated one or more term or condition of her suspended sentence, regardless of whether the offense was a misdemeanor or a felony. 

On appeal, Pope argued that a court lacks authority to revoke a misdemeanor suspended sentence for compliance violations unless the petition shows that alternatives to revocation have been exhausted.  Examining the statutory scheme in context, the Supreme Court held the MIIG is used only in DOC’s supervision of felons.  The Legislature did not intend the MIIG procedures to apply to misdemeanor revocation, and therefore, the Municipal Court acted within its authority when it revoked Pope’s suspended sentence.

Points of Interest: MIIG, revocation, compliance violations


2021 MT 8

State v. Keefe

District Court erred by failing to consider an offender’s rehabilitation progress in the years since his crime before resentencing him to life without the possibility of parole for a triple homicide he committed while a juvenile.

In 1985, Keefe, then 17, broke into a house to commit a burglary.  Once inside, he shot and killed three members of the McKay family.  Keefe was tried as an adult, convicted, and sentenced to three consecutive life terms, plus an additional 50 years, at the Montana State Prison, without the possibility of parole.  In 2017, Keefe petitioned for postconviction relief in light of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718 (2016), which held that mandatory life without parole sentences for juvenile offenders were unconstitutional “for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’”  The Montana Supreme Court held Miller and Montgomery applied to discretionary sentences in Montana in Steilman v. Michael, 2017 MT 310, 389 Mont. 512, 407 P.3d 313.  In 2019, the District Court held a resentencing hearing, at which a psychiatrist and two former MSP employees testified to the rehabilitation progress Keefe had made.  The District Court refused to consider evidence of post-offense rehabilitation and resentenced Keefe to life without the possibility of parole.

On appeal, the Supreme Court held the District Court violated Keefe’s constitutional rights by failing to consider post-offense evidence of Keefe’s rehabilitation and remanded for resentencing.  Agreeing with the Ninth Circuit’s decision in United States v. Briones, 929 F.3d 1057 (9th Cir. 2019), the Court held that a court must consider post-offense evidence of rehabilitation when resentencing a juvenile serving life without parole.  The Court further held that the resentencing judge must determine whether Keefe was “irreparably corrupt” and “permanently incorrigible.”

Points of Interest: sentencing, constitutional law, juvenile offender


2021 MT 12

State v. Mercier

Trial court erred by allowing two-way video testimony by a State witness over Defendant’s objection.  The error was not harmless because no other evidence was presented to substantiate the tampering charge.

Mercier was tried on charges of deliberate homicide and tampering with physical evidence.  Over his objection, a Homeland Security special agent in Colorado provided foundational testimony via two-way videoconferencing regarding the recovery of data from the victim’s cellphone, which was found submerged in water at the crime scene.  After being convicted on both charges, Mercier appealed the trial court’s decision to allow the video testimony.

The Supreme Court concluded the court erred by allowing the video testimony.  A criminal defendant’s Sixth Amendment right to confront witnesses can only be displaced if use of video technology is necessary and reliable, regardless of the nature of the testimony. The cost-saving measures posited by the State did not satisfy the necessity prong.  Since this testimony was the only evidence presented regarding the tampering with physical evidence charge, the use of the testimony was not harmless and that conviction was set aside.  However, the cellphone presented only cumulative evidence regarding the deliberate homicide conviction and was therefore harmless as to that count, allowing that conviction to stand.

Points of Interest: cumulative evidence, right of confrontation, video testimony


2021 MT 13

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Mont. Twentieth Judicial Dist. Court

Claim preclusion does not apply to continued proceedings before the District Court upon remand, rather the proper doctrine to apply is law of the case.

After the Supreme Court reversed and vacated the District Court’s summary judgment order on the issue of negligence per se, Nunez sought to revive an alternate theory of common law negligence, which she had not pursued at the jury trial.  After the District Court granted her motion to revive the claim, Watchtower sought a writ of supervisory control, arguing the motion was barred by claim preclusion and Rule 15(b). 

The Supreme Court denied the writ because it determined the District Court was not operating under a mistake of law.  The Court clarified that the doctrine of claim preclusion does not apply to continued proceedings in the same case before the District Court upon remand from an appeal, rather the doctrine of law of the case would apply.  The law of the case did not prevent the revival of the claim because the issue of common law negligence had not been resolved either before the District Court or the Supreme Court.  The Court also determined Rule 15(b), which restricts amendments during and after trial did not apply after the Supreme Court effectively vacated the jury verdict on appeal.  Under Rule 15(a), the District Court has discretion to allow leave to amend pleadings “when justice so requires.”  The Court concluded the District Court, while not required to allow leave to amend under the circumstances, was within its discretion to allow the amendment.

Points of Interest: claim preclusion, supervisory control, law of the case


2021 MT 14

Mont. Indep. Living Project, Inc. v. City of Helena

Section 49-2-301, MCA, does not allow non-human entities to file retaliation claims under the Montana Human Rights Act.

The Montana Independent Living Project, Inc., requested funding from the City of Helena for a transportation project.  Shortly after a committee that provides non-binding recommendations to the City ranked this funding request as the top transportation priority, MILP and its CEO Robert Maffit filed an unrelated discrimination complaint against the City with the Montana Human Rights Bureau.  The City then lowered the priority of MILP’s funding request. 

MILP filed a retaliation complaint with the HRB, alleging the City retaliated against MILP when, as a direct consequence of MILP’s and Maffit’s initial discrimination complaint, the City re-prioritized its funding request.  The HRB concluded MILP, as a corporation, did not have standing to file a retaliation complaint under § 49-2-301, MCA.  The District Court dismissed MILP’s subsequent action, concluding the HRB’s ruling was correct. 

The Supreme Court affirmed, concluding the District Court was correct when it held that § 49-2-301, MCA, does not allow non-human entities to file retaliation claims under the Montana Human Rights Act.  Because it defines a prohibited discriminatory practice to include retaliation against an individual, the plain language of the statute allows only an “individual,” a natural human person, to seek redress for retaliation.

Points of Interest: human rights, administrative law, retaliation



2021 MT 15

State v. Quinlan

Specific instances of conduct of a witness attacking or supporting witness credibility may only be inquired into on cross-examination if permitted by the court and probative of veracity.

The State charged Quinlan with incest and moved in limine to prohibit him from introducing evidence of specific instances of conduct challenging the victim’s veracity.  The District Court prohibited further questioning on specific instances of lying and limited Quinlan to questions of the victim’s reputation for truthfulness, finding the offered specific instances of conduct irrelevant and prejudicial.  During testimony, the victim denied the individual instances of lying.  Quinlan was found guilty. 

On appeal, Quinlan challenged the District Court’s evidentiary ruling.  This Court affirmed the District Court, reasoning that a witness’s denial of lying did not permit Quinlan to prove the lie by extrinsic evidence, as prohibited by the District Court’s discretion.  M. R. Evid. 604(b) generally prohibits introducing extrinsic evidence of specific instances of conduct to attack or support credibility, but the rule permits inquiry on cross-examination into those specific instances of conduct if probative of veracity and permitted in the discretion of the court.  The District Court did not abuse its discretion in limiting Quinlan’s questioning because the specific instances were irrelevant and prejudicial.

Points of Interest: evidence, credibility, Rule 604


2021 MT 24

State v. Krause

For purposes of § 61-8-101(1), MCA, a person is “on a way of this state open to the public” when a member of the public is parked in a parking space that is accessed by public roads, near a public intersection, near a public park, and there is nothing physically preventing the public from using the space or roads within a public housing complex. 

A prosecutor's question to a witness about whether they understand the penalties of perjury is not “intimidation” nor does it interfere with a defendant’s right to present witnesses when the witness stands by the testimony. 

Krause was found behind the wheel of a car in a parking space at Parkdale public housing near Cole’s apartment.  The car had a sticker authorizing it to park at Parkdale.  A sign informed the public that this lot was for tenants only.  Cole testified that she had unlocked the car for the defendant to “sleep it off” after he showed up intoxicated at her home. She unlocked the car from her apartment and saw the lights flash when she unlocked it.  However, police found a key fob on the driver’s seat.  

Krause was charged with DUI.  At trial, the prosecutor asked Cole: “Do you understand what the penalties are for perjury?”  Cole stood by her testimony.

Defense counsel moved to dismiss for insufficient evidence, arguing the State had not proven Krause had been on “a way of this state open to the public.”  Counsel also moved for a mistrial, arguing that asking Cole about perjury was intended to, and did, intimidate her and went beyond legitimately attacking her credibility.  The district court denied both motions and the jury found Krause guilty of DUI. 

On appeal, the Supreme Court affirmed, finding sufficient evidence for the jury to conclude Krause was in a vehicle “on a way of this state open to the public” because the space was next to a public street, near an intersection with another public road, near a public park, and readily accessible to the public.  Nothing prevented the public from parking in the lot other than a warning sign.  Furthermore, Krause was a member of the public who did not live at Parkdale. 

The Court concluded the prosecutor’s question was “toward the outer edge of zealous advocacy,” but the prosecutor did not invade the province of the jury.  Even assuming the question constituted misconduct, the question had no effect on Cole’s testimony and therefore did not impact Krause’s defense.

Points of Interest: prosecutorial misconduct, sufficiency of evidence


2021 MT 281

State v. Tipton

Defendant’s trial counsel provided ineffective assistance of counsel by failing to identify that the State’s charging documents amounted to ex post facto application of the Montana Criminal Code.  The remedy was not to acquit the Defendant for insufficient of evidence, but to remand for corrected charging documents and a new trial.

Defendant was charged with three counts of sexual misconduct against three minors.  Count I was based on a statute that went into effect in October 2015 while one of the alleged incidents occurred in July 2015.  Count II and Count III were based on conduct that occurred prior to the effective date of the statute under which the charges were brought.  Trial counsel failed to identify the ex post facto application of the law for all three counts. The jury convicted defendant on all three counts.

On appeal, the Supreme Court concluded that it was impossible to determine whether the July 2015 or 2016 incident led the jury to convict defendant of Count I.  Counsel committed ineffective assistance of counsel for which there was no reasonable justification by failing to recognize that, as to the 2015 allegation, defendant was being prosecuted under a statute that did not apply and carried a substantially more severe penalty.  The correct remedy for the ex post facto application for Counts II and III was a new trial due to defective charging documents, not acquittal based on insufficient evidence.

Points of Interest: ineffective assistance of counsel, ex post facto