2025 MT 271
District Court correctly construed an LLC operating agreement to permit amendment without unanimous consent and correctly joined the LLC as a defendant. However, the Court erroneously ordered the plaintiff to pay costs for deposing a hybrid witness.
LLC member Lindsay challenged an LLC decision by member vote to convert the LLC to a perpetual term entity, arguing that the articles of organization required unanimous consensus for amendment. During proceedings, Lindsay deposed a hybrid witness. Afterward, the court ordered Lindsay to pay professional and attorney fees for the deposition. Lindsay also opposed joinder of the LLC as a defendant, arguing that she was a derivative plaintiff sufficiently representing the LLC’s interests.
On appeal, the Supreme Court affirmed the District Court’s construction of the operating agreement to permit amendment on a majority vote. The Court also agreed that the LLC was properly joined as a defendant in Lindsay’s declaratory judgment action for dissolution in order to assure the entity’s interests were represented. However, the court reversed imposition of deposition fees, holding that, while M. R. Civ. P. 45 provides for additional witness compensation beyond the statutory witness fees, that rule is prospective and must be invoked prior to compliance with a subpoena. Because the hybrid witness sought additional compensation after appearing, the court’s award of fees was not authorized.
Points of Interest: contracts, business law, costs
2025 MT 270
District Court abused discretion in denying father’s motion to amend a parenting plan without a hearing where father’s affidavit offered sufficient cause to warrant further inquiry.
Six years after a no-contact parenting plan was ordered, Father filed a motion to amend, supporting affidavit, and request for hearing claiming changed circumstances. A standing master denied the motion without hearing. Father objected and the district court affirmed there was no change in circumstances, also without a hearing.
The Supreme Court reversed the district court’s summary denial based only on competing parental affidavits and remanded for an evidentiary hearing and best-interests findings. Father’s affidavit presented sufficient cause for an evidentiary hearing to resolve whether his personal and parental improvements and the child’s maturation warranted modification of the parenting plan.
Points of Interest: parenting plan, abuse of discretion, due process
2025 MT 269
A restrictive covenant stating new building placement “should take into consideration” the location of neighboring dwellings created an obligation requiring genuine, good faith consideration of neighboring impacts.
Lots in a homeowners’ association were subject to restrictive covenants which had the intent to maintain a uniform and stable value for the subdivision. Those covenants included specific architectural and setback requirements, as well as a building orientation requirement that placement of new buildings “should take into consideration the location of roads and neighboring dwellings, with allowance for views and solar gains.” Studers purchased an empty lot next to Waddells’ existing home and submitted plans to build a new home. The plan did not depict Waddells’ existing home, and Studers’ proposed structure was placed in a location which would block a large portion of Waddells’ views of the Bridger Mountains. The HOA initially approved the plan but it then reversed itself and demanded Studers submit a revised plan showing the existing home so that the HOA could evaluate the impact on views. The HOA then reversed itself again and allowedthe building to proceed with no changes or submission of a revised plan. Waddells sued, asserting the Covenants were violated by Studers and the HOA. The District Court granted summary judgment in Studers’ favor, finding the Covenants expressed the propriety of taking neighbors into consideration, but did not create an obligation to do so.
The Supreme Court reversed. Reviewing the Covenants as a whole, the Court noted that while “should” ordinarily expresses discretion, its pairing with the phrase “with allowance for views and solar gains,” in the building orientation covenant rendered the term obligatory to the extent of requiring genuine, good faith consideration of neighboring impacts. The Court remanded for a jury trial on whether Studers and the HOA sufficiently considered neighboring impacts.
Points of Interest: covenants, summary judgment
2025 MT 268
Montanans for Nonpartisan Cts. v. Knudsen
Court upheld AG’s determination that proposed ballot initiative violated the separate-vote requirement by failing to allow voters to exercise separate votes on the separate issues of whether judicial elections should be nonpartisan and whether courts created in the future should be required to have elected judges.
Initiative Proponent MNC sought declaratory judgment on original jurisdiction after the AG found MNC’s proposed ballot initiative legally insufficient because it failed to comply with the separate-vote provision of Article XIV, Section 11, of the Montana Constitution. The proposed initiative consisted of two subsections. The first would require judicial elections to remain nonpartisan and the second would require any court created in the future to have elected judges.
The Supreme Court upheld the AG’s determination. Although MNC asserted that the latter provision was merely an “anti-circumvention provision,” the Court agreed with the AG that each provision was a separate amendment requiring a separate vote. A voter may prefer that judges be appointed where permitted by law while concurrently preferring that, if judges are required by law to be elected, such election should occur by a nonpartisan ballot. Combining these amendments into a single measure is the type of “logrolling” Article XIV, Section 11, intends to avoid.
Points of Interest: ballot initiatives
2025 MT 267
Montanans for Nonpartisan Cts. v. Knudsen
Court found AG’s proposed Statement of Purpose and Implication misleading where it implied that requiring nonpartisan judicial elections would change the status quo and further found AG’s proposal to define “nonpartisan” unnecessary. The Court further found proponent’s proposed Statement, which largely recited the initiative’s language verbatim, was statutorily and constitutionally compliant.
Initiative Proponent MNC sought declaratory judgment on original jurisdiction after the AG revised MNC’s proposed Statement of Purpose and Implication for a constitutional initiative that sought to amend the Montana Constitution to require judicial elections to be nonpartisan. The initiative proposed new constitutional language that provides, “Judicial elections shall remain nonpartisan.” MNC’s proposed Statement provided that the initiative “amends the Montana Constitution to require that judicial elections remain nonpartisan.” The AG determined that this proposed statement was legally insufficient because it “does not contain a true reflection of the current text of the Montana Constitution,” which is “silent on the nature of judicial elections,” and further “fails to inform voters what is meant by ‘nonpartisan.’”
The AG revised the statement to provide that the initiative, if passed, “mandates all judicial elections be nonpartisan. A nonpartisan election prohibits labeling candidates on the ballot according to the political party the candidate aligns with including labels like independent.” The Court rejected the AG’s revised statement, concluding that it did not fulfill the requirements of § 13-27-212(1), MCA, because it misleadingly implied that requiring nonpartisan judicial elections would change the status quo even though judicial elections are currently nonpartisan by statute. The Court further rejected the AG’s contention that the statement needed to define “nonpartisan” because Montana has had 90 years of nonpartisan judicial elections without finding it necessary to define the term in statute. The Court further determined that MNC’s proposed statement was statutorily and constitutionally compliant and certified it to the Secretary of State.
Points of Interest: ballot initiatives
2025 MT 264
Surveillance footage alone cannot sufficiently corroborate the testimony of an accomplice under § 46-16-213 unless the footage connects the defendant to the crime charged without the aid and direction of the accomplice’s statements.
Matt was riding as a passenger in the front seat of Gadaire’s vehicle when Gadaire was pulled over for a traffic violation. A search of the vehicle led to the discovery of methamphetamine and drug paraphernalia in the center counsel. Matt and Gadaire were charged with various drug offenses. At Matt’s trial, the State relied on Gadaire’s testimony to establish that Matt had knowledge of the drugs in the vehicle and that Matt was in constructive possession of the drugs. To corroborate Gadaire’s testimony, the State presented surveillance footage of Matt and Gadaire together earlier in the day. The footage showed Gadaire parking next to a vehicle and Gadaire then getting into the other vehicle for several minutes while Matt remained in the front passenger seat of Gadaire’s car. Gadaire testified that this was how he acquired the methamphetamine and Matt saw him return to his own vehicle and place the drugs in the center console.
At the close of the State’s case, Matt moved for a directed verdict on the basis that the State’s evidence was insufficient to support a conviction due to the State’s reliance on Gadaire’s uncorroborated statements. The court denied Matt’s motion and a jury convicted Matt of criminal possession.
The Supreme Court reversed. Without the aid and direction of Gadaire’s testimony, the surveillance footage failed to connect Matt to the crime charged. The only evidence, independent of Gadaire’s testimony, with a tendency to link Matt to the crime was Matt’s proximity to the drugs in the center console. Matt’s presence in the front seat is not sufficient corroboration to justify a conviction premised on accomplice testimony.
Points of Interest: corroboration, witnesses, sufficiency of evidence
2025 MT 263
In re Marriage of Kelly and Camp
Where divorcing spouses did not follow the statutory disclosure process and never exchanged final declarations of disclosure, there is no basis for a trial court to set aside a judgment for perjury in a final disclosure statement under § 40-4-253(5), MCA.
Bridget petitioned to dissolve her marriage to Joe. Bridget and Joe disclosed information about their respective incomes, expenses, and the marital estate’s value and liabilities through discovery rather than through the statutory disclosure process. The parties did not exchange final declarations of disclosure prior to trial as required by § 40-4-253(1), MCA. The District Court entered a judgment that dissolved the marriage, divided the marital estate, and ordered Joe to pay spousal support, child support and the mortgage payments on the marital home that was distributed to Bridget.
Joe moved to set aside the judgment pursuant to § 40-4-253, MCA. Section 40-4-253(5), MCA, authorizes a District Court to set aside a judgment or part of the judgment “if the court discovers, within 5 years from the date of entry of judgment, that a party has committed perjury in the final declaration of disclosure.” The District Court denied Joe’s motion.
The Supreme Court affirmed. The plain language of § 40-4-253(5), MCA, only permits a court to set aside a judgment if a party served a final disclosure statement and the court discovers that a party committed perjury when making the final disclosure statement. The Court recognized construing § 40-4-253(5), MCA, according to the plain language aligned with the purpose of the disclosure statutes, which is to protect parties from having to relitigate settled issues. The Court ultimately concluded that § 40-4-253(5), MCA, did not authorize the District Court to set aside the judgment under the circumstances as Joe conceded that Bridget never made a final disclosure statement.
Points of Interest: dissolution of marriage, marital assets, perjury
2025 MT 260
The justice court violated respondent’s due process in denying him an opportunity to cross-examine order-of-protection petitioner. On appeal, the district court abused its discretion in summarily affirming the justice court on an incomplete and unclear record.
During examination at an order-of-protection hearing, respondent asked his ex-girlfriend if he had ever hurt, harmed, or threatened her. The justice court allowed the witness to not answer and then terminated the questioning. It then granted the order of protection against respondent, which he appealed to district court. On appeal, the district court summarily affirmed the order of protection on a concededly incomplete and unclear justice court record.
The Supreme Court reversed both lower courts. It first held that the justice court had impermissibly denied respondent a meaningful opportunity to cross-examine the petitioner on a material issue—threats of harm and petitioner’s basis for fear—depriving him of due process. Even though the respondent was not statutorily entitled to submit briefing or have a hearing on appeal to district court, the court nonetheless abused its discretion in summarily affirming the order-of-protection where the justice court record was incomplete, unclear, and parts of the hearing were “unintelligible.” The Court remanded to justice court for a new evidentiary hearing.
Points of Interest: witnesses, orders of protection, due process
2025 MT 259
Holographic will that did not satisfy elements of § 72-7-201, MCA, did not create a valid power of appointment.
Corbin’s daughter and sister argued over whether his holographic will disposed of his estate. The daughter said it did not and that her father’s property therefore should pass through intestacy laws. The sister argued that the will created in her a power of appointment over the estate property and that she could therefore decide who would receive the property, including herself. The district court concluded that the will created a valid power under § 72-7-201, MCA.
The Supreme Court disagreed. A power of appointment is a donative power enabling the powerholder to “designate a recipient of an ownership interest in . . . the appointive property." Under § 72-7-201, MCA, a power of appointment exists only if the instrument creating it (1) is valid under applicable law, (2) transfers the appointive property, and (3) manifests the donor's intent to create in a powerholder a power exercisable in favor of a permissible appointee. While the will was a valid holographic will, it did not transfer any estate property or identify any person who was to receive the estate assets. Because the will did not dispose of Corbin’s estate or create a power of appointment, the estate passed through intestacy to his descendants by representation.
Points of Interest: wills or testamentary instruments, estate law, power of appointment
2025 MT 258
Deferred prosecution incorporated into plea agreements are invalid because the statute governing plea agreements does not authorize deferred prosecution agreements as an available outcome.
In 2017, Pein pleaded guilty to possession with intent to distribute dangerous drugs, whereby six other charges related to drug distribution were dismissed and two other related charges were ostensibly resolved by incorporating a deferred prosecution agreement by reference. Pein was sentenced on the single count to a suspended sentence. Pein’s suspended sentence on that count was later revoked and the State revived the prosecution on the deferred charges. Pein was convicted on those two counts.
The Supreme Court vacated Pein’s convictions on the deferred counts and remanded for further proceedings. Because plea agreements involve court approval and final dispositions and deferred prosecution agreements operate outside the purview of the court and contemplate future and thus unresolved future prosecutions, incorporation of a deferred prosecution agreement into a plea agreement is void. Plea agreements only contemplate a guilty plea or dismissal and further limit the prosecution to endorsing or remaining neutral on a defendant’s proposed sentence. Resolutions outside those narrow provisions, such as an agreement deferring prosecution of charged conduct, are not permitted. Applying contract law principles, the Court excised the portion of Pein’s plea agreement which incorporated the deferred prosecution agreement.
Points of Interest: plea agreements, deferred prosecution, contracts
2025 MT 257
District Court committed reversible error by instructing the jury with the result-based definition of knowingly instead of the required conduct-based definition in a SIWOC case because SIWOC requires the State to prove the defendant knowingly engaged in sexual intercourse without consent or with a person incapable of consent.
K.R. drank heavily at multiple bars and then sent an electronic message to Pierce inviting him to “come drink” at a particular bar. K.R. and Pierce then exchanged suggestive message. K.R. texted Pierce that she was drunk while searching for her car, but then drove home safely, carried in groceries, provided her address, left her door unlocked, and had a brief call with Pierce. Sexual intercourse occurred at her home. K.R. testified to a blackout after the bar until waking during sex, saying “stop.” Pierce replied, “you asked for it” and continued. K.R.’s BAC was later determined to be 0.148 and DNA evidence matched Pierce. Witnesses gave mixed accounts of her apparent intoxication post-incident. At trial, the defense emphasized K.R.’s functional behavior and Pierce’s lack of direct knowledge of incapacity. The jury convicted Pierce of SIWOC.
The Supreme Court reversed and remanded for a new trial because the trial court erroneously gave a result-based “knowingly” jury instruction. SIWOC is a conduct-based offense because SIWOC requires proof of awareness that the intercourse was without consent or the victim incapable, not mere awareness of a high probability. The erroneous jury instructions relieved the State of its burden to prove Pierce knew K.R. was incapable of consent, a core disputed element. The evidence conflicted on Pierce’s knowledge: K.R.’s outward functionality supported the defense that he reasonably perceived consent, while her blackout, testimony, and high BAC supported the State’s theory. Given the factual dispute over mental state, the incorrect instruction may have influenced the verdict, affecting Pierce’s substantive due process rights.
Points of Interest: jury instructions, sexual offenses, mental state
2025 MT 256
The trial court abused its discretion when it allowed defendant to appear by video but later denied his request to give testimony.
Anthony was charged with three counts of unlawful use of a computer by accountability. As a condition of his release on bond, the court required that Anthony personally appear for trial. Pretrial, defense counsel made several motions to allow Anthony to appear by video, most of which the trial court either summarily denied or did not address. The trial court asked Anthony for assurance that he would attend trial the following week. Anthony responded affirmatively.
Anthony failed to appear in person at trial, and defense counsel moved to allow his presence by video. The prosecutor agreed, stating that every person has a right to defend themselves. The court allowed Anthony to appear by video. At the close of the City’s case, when defense counsel asked if Anthony could provide testimony, the prosecution objected and the trial court limited Anthony’s participation to watching.
The Supreme Court concluded the trial court abused its discretion when it refused to allow Anthony to testify and remanded the case for a new trial. When the District Court agreed that Anthony could appear for trial by video, it did not indicate that it planned to proceed with Anthony’s trial in absentia under § 46-16-122(1), MCA. Doing so deprived Anthony from seeking a continuance as allowed under the statute because defense counsel reasonably believed that Anthony was not limited to being an observer.
Points of Interest: video testimony, trial in absentia, right to testify
2025 MT 254
French v. Mont. Twentieth Jud. Dist. Ct.
A defendant who appeals from a justice court that is not of record for a trial de novo in a district court has the same right of substitution under § 3-1-804, MCA, as a defendant whose case originated in district court.
French sought supervisory control after the District Court denied his motion to substitute judge in a criminal case. French was convicted in a justice court that is not a court of record and he appealed to District Court for trial de novo. Three days after Judge Larson assumed jurisdiction of the matter, French moved to disqualify him for cause under § 3-1-805, MCA, and alternately moved for substitution under § 3-1-804, MCA. As required by § 3-1-805(1), MCA, Judge Larson referred the disqualification motion to the Supreme Court. The Court determined French’s motion for disqualification for cause was moot because the basis for his complaint—a rescheduled trial date—had been resolved. Upon the Court’s disposition of the disqualification motion, Judge Larson then resumed jurisdiction to rule upon French’s substitution motion.
Judge Larson denied French’s substitution motion, relying on caselaw that provided that defendants had no right to substitution in an appeal from a specific pretrial legal ruling from justice court. However, whether a defendant has the right to substitute a district court judge from a trial de novo on appeal from a justice court that is not a court of record is a matter of first impression. The Court concluded that the substitution rule allows a person appealing from a justice court that is not a court of record the same right to substitute a district court judge as if the case originated there. It therefore granted supervisory control, reversed Judge Larson’s denial, and remanded for further proceedings.
Points of Interest: supervisory control, substitution, trial de novo
2025 MT 253
Police had particularized suspicion to investigate a possible DUI based upon the driver’s erratic driving, witness reports of him passing out, his own admission to huffing, and because his physical appearance was consistent with recent huffing. The defendant had no expectation of privacy in his driveway or in the exterior of his vehicle, which was parked on a public roadway, and he voluntarily gave the officers an empty can of Dust-Off.
Elllis crashed into a street sign in the middle of the day under dry road conditions. He told concerned bystanders he had “passed out.” Ellis then left the scene in his vehicle. Officers arrived at his home and found a vehicle matching witness descriptions. Ellis freely spoke with the officers, admitting he had purchased and subsequently huffed Dust-Off on the drive home. He showed signs of impairment and failed field sobriety tests. A blood test detected the psychoactive ingredient found in Dust-Off. Ellis moved to suppress, alleging the officers lacked particularized suspicion to investigate him for DUI, improper search and seizure, and a violation of Miranda rights. After the motion was denied, Ellis was convicted of DUI.
The Montana Supreme Court affirmed. Officers lawfully expanded the scope of their investigation based on Ellis’ erratic driving, physical appearance consistent with intoxication, and admission to huffing Dust-Off. Officers’ questioning was noncustodial because Ellis was free to end the conversation and he was not restricted in his movement. His vehicle was parked in a public roadway and showed damage consistent with running off the road into a sign. He also appeared relaxed during questioning. Most importantly, Ellis voluntarily admitted to huffing Dust-Off while driving during the course of his conversation with police.
Points of Interest: DUI, particularized suspicion, traffic stops
2025 MT 252
Est. of Mabee v. Wheatland County
Comparative negligence is an appropriate defense in cases involving a jailer-detainee relationship unless the jailer knew or should have known that the detainee was at risk of harm.
Officers arrested and detained Mabee for violating probation conditions. About six hours after Mabee settled into his jail cell, he began to exhibit signs of methamphetamine intoxication. Two hours later, the dispatch officer noticed Mabee appeared lifeless. She attempted to revive him to no avail. The coroner determined Mabee died from a methamphetamine overdose. The County theorized that Mabee concealed a condom containing methamphetamine in his rectum, and the condom ruptured after Mabee entered his cell.
Mabee’s Estate sued for negligence. The County raised comparative negligence as a defense. The Estate objected, arguing it’s improper in cases involving a jailer-detainee relationship. The District Court rejected the Estate’s argument and instructed the jury to apportion liability between the parties. It gave the Estate’s proposed jury instruction explaining that absent “special circumstances,” a jailer is not liable for injuries resulting from the detainee’s intentional conduct. The Estate did not request an instruction that defined “special circumstances.” The jury attributed 95% of the fault to Mabee and 5% to the County. The District Court entered judgment in favor of the County.
The Estate asked the Montana Supreme Court to hold that comparative negligence is barred in all cases involving a jailer-detainee relationship because a detainee depends on their custodian to secure medical care. The Court rejected this argument, reasoning that comparative negligence applies unless the jailer knows or should know the detainee is at risk of harm, giving rise to “special circumstances” that elevate a jailer’s duty of care above a detainee’s duty to protect themselves. Because the Estate had not requested an instruction, the Court did not decide whether the evidence could have supported a finding that such circumstances arose to absolve Mabee of liability and bar the County’s comparative negligence defense. The instructions given afforded the Estate opportunity to argue its theory that the County should have foreseen Mabee’s harm.
Points of Interest: torts, negligence, affirmative defenses
2025 MT 251
District Court erred by not dismissing petition for involuntary commitment when State failed to provide a timely mental health evaluation by a qualified professional person. Respondent did not waive her right to a hearing within five days, and the error was not harmless.
J.L.O.’s involuntary commitment hearing occurred the last day of the statutory five-day window. Beforehand, J.L.O. was examined by an LCSW who was not qualified “professional person” as required by § 53-21-123(1), MCA. Because the State did not provide the evaluation report before the hearing, J.L.O.’s counsel was unaware the LCSW was unqualified and requested a continuance to obtain an independent evaluation. J.L.O.’s counsel later moved to dismiss the petition and rescind the requested continuance. The District Court denied J.L.O.’s motions and appointed a qualified professional person to conduct another examination. At the rescheduled hearing three days after the statutory five-day window expired, counsel renewed J.L.O.’s motion to dismiss and objected to the professional person’s appearance by Zoom under § 53-21-140(5)(b), MCA (2023). Despite J.L.O.’s request for an earlier date, the District Court continued the hearing for another six days. After that hearing, it ordered J.L.O.’s commitment.
On appeal, the Supreme Court reversed the commitment order. The District Court failed to strictly adhere to the procedural safeguards set forth in §§ 53-21-122 and -123, MCA, requiring examination by a professional person and a hearing on the petition within five days. J.L.O. did not waive her right to a hearing within five days, because J.L.O.’s continuance request was caused by the State’s failure to provide the evaluation report before the hearing, as required by § 53-21-123(1), MCA. Nor did J.L.O. waive her right to a timely hearing by exercising her rights to a timely examination by a professional person and to in-person testimony, as these rights are not mutually exclusive. The error was not harmless, because it denied J.L.O. a critically important procedural safeguard and extended J.L.O.’s pre-hearing detention by eight days.
Points of Interest: involuntary commitment, due process, waiver
2025 MT 250
A witness’s status as an expert witness, in and of itself, does not make the witness’s presence in the courtroom essential to the presentation of the party’s case for the purposes of M. R. Evid. 615(3). Allowing an expert witness to testify after violating the exclusion order constituted harmless error.
The District Court issued pre-trial ruling pursuant to M. R. Evid. 615 that excluded all witnesses who may testify from the courtroom during other witnesses’ testimony at Grimshaw’s criminal trial. However, after the State’s blind expert witness remained in the courtroom while Grimshaw’s blind expert witness testified, Grimshaw objected to the State recalling its expert witness in rebuttal. The District Court overruled Grimshaw’s objection, ruling M. R. Evid. 615(3) precluded it from excluding expert witnesses from the courtroom.
The Supreme Court held the District Court erred by ruling M. R. Evid. 615(3) precluded it from excluding the State’s expert witness from the courtroom because Rule 615(3) requires the district court to exclude a witness from the courtroom, including expert witnesses, unless the party proves the witness’s presence in the courtroom is essential to its cause. However, allowing the State’s expert to testify in rebuttal constituted harmless error. M. R. Evid. 615 has little application to expert witnesses who only offer expert testimony because the Rule’s purpose is to prevent witnesses from tailoring their testimony to that of earlier witnesses. Failing to exclude the State’s expert and allowing her to testify on rebuttal did not prejudice Grimshaw because she testified as a blind expert witness to matters in the abstract, not as a fact witness.
Points of Interest: experts, Rule 615, witnesses
2025 MT 249
Although the District Court improperly gave preclusive effect to the Supreme Court’s preliminary injunction decision, it cured its procedural error by addressing the claims in a Rule 59(e) order. The plaintiffs failed to meet their burden under Article V, Section 11(3) of the Montana Constitution to show that the title of a bill regarding vaccination status was misleading or that the act’s subjects were not germane to the title’s stated purpose.
Netzer argued House Bill 702, Section 49-2-312, MCA (2021 Mont. Laws ch. 418), violated multiple provisions of the Montana Constitution, including the clear-title and single-subject rules of Article V, Section 11(3). The District Court denied preliminary injunctive relief, and this Court affirmed.
On remand, the District Court used this Court’s decision on the preliminary injunction to bar Netzer from relitigating his constitutional claims. It concluded so despite the instructions on remand and established case law that preliminary injunction rulings do not decide the merits of a party’s claims. The District Court corrected the procedural deficiency, however, after Netzer identified the error in his brief in support of a M. R. Civ. P. 59(e) motion. The District Court then issued a supplemental order addressing the merits of Netzer’s constitutional claims and effectively cured its procedural error.
On appeal, the Supreme Court found the Bill’s title to be clear and the Bill constitutional because Netzer failed to establish beyond reasonable doubt that the title was misleading to its pertinent purpose: to prohibit discrimination based on vaccination status or possession of an immunity passport. The “hidden” effect Netzer posited was not hidden. It was not a surprise that an employer could not require employees to vaccinate or give them adversarial treatment if they chose otherwise. The prohibition on vaccination mandates for emergency use authorization or any vaccine undergoing safety trials was germane to the title’s broad stated purpose and did not run afoul of the single-subject rule.
Points of Interest: single-subject rule, injunctions, Rule 59(e)
2025 MT 246
Caye v. Mont. Twentieth Jud. Dist. Ct.
A defendant is only entitled to substation of judge under § 3-1-804, MCA, within 10 days after their initial arraignment and the right is not renewed upon subsequent arraignments.
Judge Owen arraigned Caye on an Information in July 2024. In June 2025, the State filed an Amended Information that added felony charges relating to events that occurred after the events charged in the Information. Caye then moved to substitute Judge Owen, who denied the motion as untimely on the basis that Caye needed to have filed the motion within 10 days after his initial arraignment in July 2024.
Caye then petitioned the Supreme Court for a writ of supervisory control, arguing that he had a right to substitute within 10 calendar days of the arraignment on the Amended Information under § 3-1-804(1)(b), MCA, because he had not previously exercised his right to substitution. Taking into account that substitution rule is intended to be exercised at or near the beginning of litigation, the Court concluded that § 3-1-804, MCA, allows a defendant to exercise the right to substitution after the initial arraignment but subsequent arraignments do not again trigger the 10-day opportunity to substitute.
Points of Interest: supervisory control, substitution, timeliness
2025 MT 245
Criminal Destruction of or Tampering with a Communication Device, § 45-6-105, MCA, is not a lesser included offense of Tampering with or Fabricating Physical Evidence, § 45-7-207(1)(a), MCA, because the intent elements of each offense are distinctive.
A jury convicted Carlson of misdemeanor PFMA and felony evidence tampering. The evidence presented at trial indicated that Carlson assaulted Dalke, her ex-boyfriend, and destroyed his phone, which he had used to film her prior to the altercation.
Carlson appealed the felony tampering conviction, arguing that the trial court errored by refusing to instruct the jury on Destruction of a Communication Device as a lesser-included offense.
The Supreme Court disagreed. It determined that the charges contained some of the same elements, but the intent element of Tampering with Evidence requires destruction of evidence in anticipation of a legal proceeding, whereas the intent element of Destruction of a Communication Device requires destruction of the device in an attempt to prohibit the victim from calling for aid. Therefore, Destruction of a Communication Device is not a lesser-included offence of Tampering with Evidence as a matter of law.
Points of Interest: lesser-included offense, elements of offense, jury instructions
2025 MT 240
Regardless of a respondent’s stipulation to allegations of mental incapacity, acknowledgment treatment is acceptable, or desire to avoid a trial, the District Court commits reversible error if it fails in its duty to thoroughly inquire into the respondent’s capacity to waive procedural rights in an involuntary commitment proceeding.
P.G.J., a 70-year-old individual experiencing Bipolar 1 disorder, expressed a desire to avoid trial on the State’s petition to involuntarily commit her after she had multiple detentions by and contacts with law enforcement over a four-month period so that she could be placed in either jail or a hospital to be stabilized. The District Court found she had intelligently waived her rights and ordered her commitment to the Montana State Hospital for 90 days.
The Montana Supreme Court reversed. Under § 53-21-119(1), MCA, a person may waive their rights if capable of making an intentional and knowing decision. Otherwise, counsel or a friend of the respondent acting together may move to waive these rights if a record is made for the reasons for the waiver. However, the District Court did not create such a record in the eight-minute hearing prior to committing P.G.J. to MSH. Thus, the Montana Supreme Court reversed the commitment order to protect P.G.J.’s rights and the integrity of involuntary commitment proceedings.
Points of Interest: involuntary commitment, waiver
2025 MT 239
District Court erred when it concluded the parties’ MOU implied they agreed that an encroaching gate could remain in place because the MOU made no reference to the gate. However, the court did not err in awarding the servient estate owners their attorney fees when the dominant estate owners obstructed finalization of the settlement to negotiate better terms.
This case concerned two easements: a well easement on Schuberts’ property that Toepps used for irrigation and an access easement on the Toepps’ property that the Schuberts use to access their property. Schuberts sought to quiet title to the well easement and Toepps counterclaimed. During litigation, Toepps discovered that Schuberts’ gate on the edge of the access easement encroached onto Toepps’ property.
At the end of a 12-hour mediation, Schuberts’ attorney presented Toepps with legal documents which Toepps declined to sign. After continued negotiations, the parties filed competing motions to enforce the MOU. The MOU did not reference the encroaching gate but resolved the well easement dispute and detailed terms on other issues.
Schuberts did not dispute that their maintenance activities beyond the 10-foot gravel road within the access easement caused damage to the Toepps’ personal property. The Schuberts also sprayed weeds beyond the gravel road even though the Toepps had health concerns regarding their children and animals. The Schuberts performed these activities without notice to the Toepps and despite the Toepps’ request that Schuberts refrain from doing so.
On appeal, the Supreme Court concluded the District Court erred in interpreting the terms of the MOU to imply that the parties agreed the gate could remain in its current location. The District Court’s instructions to the Schuberts to use the access easement strictly for ingress and egress was an appropriate remedy since the Schuberts overburdened the access easement. The District Court did not abuse its discretion in awarding the Toepps attorney fees because it found that Toepps incurred those fees due to Schuberts’ increased demands after agreement was reached at mediation.
Points of Interest: easements and roads, mediation/settlement
2025 MT 238
A reasonable jury could consider a broken jaw to be a “serious bodily injury” for purposes of an aggravated assault count because it may cause a prolonged impairment of function.
During a road rage incident, Burrington assaulted the victim, breaking his jaw. He was charged with Aggravated Assault. Burrington moved for directed verdict, arguing the victim did not suffer a “serious bodily injury.” The District Court denied the motion. Burrington appealed that denial, additionally raising plain error arguments that the court inappropriately commented that Burrington’s wife had previously been involved in a road-rage incident and the prosecutor commented on “lies” during closing argument, neither of which were objected to by Burrington’s counsel.
On the serious bodily injury element of Aggravated Assault, the Supreme Court found a reasonable jury could conclude a broken jaw is a “serious bodily injury” because it caused a prolonged impairment of function. The Court further determined the District Court’s comment, taken in context, was not an inappropriate comment on the credibility of a witness. Considering the context of the cross‑examination and the objection, the court’s comment did not amount to plain error.
Lastly, the County Attorney’s closing argument was not prosecutorial misconduct because the County Attorney invited the jury to make the credibility conclusion. Additionally, the County Attorney was responding to Burrington’s argument that the victim was lying to the jury.
Points of Interest: sufficiency of evidence, jury, elements of offense
2025 MT 237
EQT Chap LLC v. Env’t Health Scis.
The relevant inquiry into the second and third choice of law factors in § 6 Restatement (Second) of Conflict of Laws focuses on which state has the stronger policy interest in having its laws applied to the precise issue involved; since a conflict of laws analysis is fact-intensive, the analysis must be tethered to the specific facts involved and not simply a discussion of how strong each state’s privilege rule is.
Environmental Health Sciences, a national media company headquartered in Bozeman, Montana, produced a documentary on the effects of fracking on Pennsylvanians. In a lawsuit between EQT Chap LLC, a natural gas producer, and a Pennsylvania resident, a Pennsylvania court subpoenaed EHS for communications and material gathered for the documentary, which was then domesticated in Montana. Relying on Restatement (Second) of Conflict of laws § 139, the Montana District Court granted EHS’ motion to quash the subpoena, concluding Montana law controlled despite Pennsylvania’s more significant relationship to the subpoenaed communications.
The Montana Supreme Court reversed. Under the Restatement (Second) of Conflict of Laws § 6 factors the interstate system would be undermined by allowing a Montana-based news organization to shield itself behind Montana’s stronger reporter’s privilege law. The second and third § 6 factors do not weigh in favor of the state which has the broadest privilege because such an analysis ignores the unique facts of the case regardless of where the underlying conduct occurred. Pennsylvania provides less reporter’s privilege but retains a similarly strong interest in policies pertaining to newsgathering and dissemination of information.
The Court declined to apply § 139, reasoning that regardless of whether “forum” implies the state of the underlying litigation or the location of the present dispute, the result is still the same that Pennsylvania’s privilege law is favored. The law of the state with the most significant relationship applies unless application would be contrary to the strong public policy of the forum state; Montana has no such strong public policy.
Points of Interest: conflict of laws, discovery, subpoenas
2025 MT 232
District Court did not prejudice Defendant’s substantial rights by denying a mere presence jury instruction because the given jury instructions accurately stated the law of the case and Defendant could still argue his theory of defense.
In June 2022, Ramirez stayed at an Airbnb in Butte for a week. Under a search warrant, police officers searched the Airbnb and found large amounts of fentanyl and methamphetamine, thousands of dollars in cash, loaded guns, drug scales, and other drug paraphernalia spread throughout the Airbnb, including in Ramirez’s bedroom. The State charged Ramirez with criminal possession with intent to distribute. Ramirez testified in his own defense, arguing he was just visiting friends in Montana, was not a drug dealer, and was unaware of the drugs, cash, and loaded guns found in the Airbnb. Ramirez requested a mere presence jury instruction, which the District Court denied after hearing arguments from each party. A jury convicted Ramirez of criminal possession of dangerous drugs with intent to distribute.
On appeal, Ramirez argued he was entitled to a mere presence jury instruction because it was his primary theory of defense. The Supreme Court rejected this argument, explaining that a district court has wide discretion in formulating jury instructions and will only be reversed when a mistake in jury instructions prejudices a defendant’s substantial rights. Other than Ramirez’s own testimony, there was no support in the record suggesting that Ramirez was merely present. The given jury instructions accurately and correctly stated the law of the case. Ramirez could sufficiently argue his theory of defense under the given jury instructions.
Points of Interest: jury instructions, affirmative defenses, abuse of discretion
2025 MT 231
Beneficiary was entitled to information under § 72-38-813, MCA, to develop her claims that a trustee transaction was affected by a conflict of interest under § 72-38-802, MCA, and the conflicted trustee was subject to removal under § 72-38-706, MCA.
On multi-party cross-motions for summary judgment, the District Court concluded a trustee was not administering the trust under a conflict of interest. The trustee, with her co-trustees, leased trust land to a dude ranch for its operations. The trust was also a partner in the dude ranch. The trustee was also an employee of the dude ranch who lived in employee housing on the ranch, reported directly to ranch partners, and received bonuses and raises since becoming a trustee. Despite this unrefuted evidence, the court found no conflict and therefore, no need for disclosure of partnership financials the trustee refused to provide the beneficiary, setting aside the trust-ranch lease agreement, or the trustee’s removal.
On appeal, the Supreme Court held that the District Court erroneously resolved the conflict-of-interest question as a matter of law on summary judgment. The erroneous no-conflict premise undermined the court’s other conclusions on conflict-based decisions as a matter of law. Although confidential in nature, the ranch partnership’s financial information was reasonable necessary to ascertain the extent of the trustee’s conflict of interest, including whether the trust-ranch lease agreement was made in the ranch’s best interest and to the trust’s detriment. Questions concerning the reasonableness of the lease and whether the trustee was subject to removal could not be resolved on summary judgment and were therefore remanded for further proceedings, with the beneficiary entitled to limited discovery previously denied.
Points of Interest: trusts and estates, summary judgment, conflict of interest
2025 MT 226
District Court did not commit clear error in finding that decedent had a common-law marriage with Appellee. Although the parties presented conflicting evidence at trial, the Court defers to the factfinder’s determinations regarding witness credibility and the weight of their testimony.
Carol Hudson and Doug Nail were in a relationship for over ten years until Carol’s unexpected death in 2018. Doug claimed he was entitled to an elective spousal share of Carol’s estate because he and Carol had a common-law marriage. Carol’s son, AJ, opposed Doug’s claim.
The District Court held a bench trial at which the parties presented starkly conflicting evidence. Doug testified that he and Carol decided to forego a traditional marriage and agreed to be common-law spouses instead. Several of the couple’s friends testified that they viewed Doug and Carol as married. AJ, however, presented evidence that Carol considered herself unmarried and wanted to end the relationship because Doug was taking advantage of her financially. After four days of trial, the District Court entered its findings, conclusions, and order that Doug and Carol were common-law spouses.
On appeal, AJ argued the District Court ignored the evidence he presented at trial and misapprehended the effect of Doug’s evidence. The Supreme Court explained that although the record contained conflicting evidence, the trial court was in the best position to judge the witnesses’ credibility and weigh their testimony. Because the District Court credited the testimony of Doug’s witnesses, substantial evidence supported its determination that Doug and Carol were common-law spouses. The Court affirmed the District Court’s Order in light of the deferential standard of review.
Points of Interest: common law marriage, estate law, weight of evidence
2025 MT 225
District Court erroneously compelled a civil commitment respondent to appear at her trial over her waiver of presence and objection to remote two-way audio-video appearance.
T.W. waived her appearance at trial on the State’s involuntary civil commitment petition. She wanted to watch her trial remotely, but with her volume muted because she feared emotional outbursts. The State, after previously agreeing to T.W.’s identical appearance request at a prior trial where the jury rendered a no-commitment-necessary decision, objected on the grounds that jury observation was necessary to determine to facts at issue under § 53-21-126, MCA. The District Court agreed, allowing T.W. to appear remotely, but with her video and audio on. The court had to mute T.W.’s audio numerous times during trial and the jury was able to see her agitated, moving around the room, unpacking and organizing her belongings, speaking on her phone, displaying her tattoo, crying, and sitting on the floor. The jury found she was suffering a mental disorder and in need of commitment.
On appeal, the Supreme Court held that Montana’s civil commitment statutes are meant to protect respondents’ constitutional rights, including dignity, privacy, and due process. Where T.W. validly waived her right to presence at trial under § 53-21-119, MCA, and objected to two-way audio-video appearance under § 53-21-140(5)(b), MCA, the District Court could not compel her appearance by two-way audio-video against her will.
Points of Interest: involuntary commitment, waiver, right of presence
2025 MT 221
A petition for postconviction relief alleging IAC claims may be dismissed without an evidentiary hearing, pursuant to § 46-21-104(1)(c), MCA, if the petition fails to identify established facts supporting an IAC claim under Strickland.
Two Sheriff’s Deputies were shot, one fatally, after responding to a domestic disturbance involving Jackson. The State relied heavily on the surviving officer’s eyewitness testimony at trial and corroborated it with forensic evidence. Jackson, who allegedly did not recall the shooting due to an alcohol-induced blackout, presented a general denial defense which included testimony from a forensic expert opining the officers’ injuries were the result of friendly fire. The jury convicted Jackson of deliberate homicide and attempted deliberate homicide and sentenced him to life without parole.
Jackson petitioned for postconviction relief, alleging ineffective assistance of counsel premised on, among other things, counsel’s alleged failure to hire and rely upon a qualified forensic expert and counsel’s alleged failure to present a coherent defense theory throughout trial. The District Court concluded the petition failed to meet the requirements of § 46-21-104(1)(c), MCA, and denied it without an evidentiary hearing.
The Supreme Court affirmed. Under Strickland and § 46-21-104(1)(c), a petition for postconviction relief based upon an IAC claim must identify established facts showing (1) counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that the result at trial would have been different had counsel’s performance not been deficient. Jackson’s unsupported allegations failed to overcome the presumption that counsel’s conduct fell within a range of acceptable professional assistance. Although Jackson’s petition was accompanied by an alternative report conducted by a forensic expert, the report failed to undermine the State’s overwhelming evidence of Jackon’s guilt. Jackson also failed to show the alternative report, prepared in 2018, would have been available for his 2004 trial.
Points of Interest: postconviction relief, ineffective assistance of counsel, burden of proof
2025 MT 220
Fahrnow v. E-5 Oilfield Servs.
District Court erred in granting summary judgment to E-5 because a factual dispute exists regarding the drivers’ comparative negligence. Even when one party violates a traffic statute, the factfinder must weigh the evidence and assign liability to each party.
Fahrnow sued E-5 for negligence after a hot-oil truck driven by E-5’s employee struck Fahrnow and injured him. The hot-oil truck struck Fahrnow while he was walking in the road back to his truck after another driver crashed into it just minutes earlier. The parties both moved for summary judgment. Fahrnow argued the driver of the E-5 truck failed to avoid him and was driving too fast for conditions. E-5 argued that Fahrnow was not entitled to recover because Fahrnow violated multiple traffic statutes, and his own negligence precluded his recovery. The District Court agreed with E-5’s analysis and granted summary judgment in its favor.
The Supreme Court reversed and remanded for trial. Montana precedent holds that even if a party violates a traffic statute, the factfinder must weigh the negligence of the parties and assign liability to each. Here, neither party was entitled to summary judgment because the factfinder must determine whether and how much E-5’s conduct contributed to Fahrnow’s injuries.
Fahrnow also filed two discovery motions with the District Court: a motion seeking default judgment against E-5 for its alleged failure to preserve evidence, and a motion to compel E-5’s response to a discovery request involving expert qualifications. The District Court ruled in favor of E-5 on all motions. The Supreme Court concluded the District Court did not abuse its discretion in resolving the discovery disputes because default judgment was a disproportionate remedy for any loss of evidence in this case, and Fahrnow already possessed sufficient information about the parties’ experts and therefore his request sought cumulative discovery.
Points of Interest: summary judgment, discovery, negligence
2025 MT 219
Servient landowners failed to prove extinguishment of their neighbors’ irrigation ditch easement by abandonment or reverse adverse possession; prevailing-party easement owners were entitled to costs and attorney fees under § 70-17-112, MCA.
When Overman filled in an irrigation ditch traversing her property that historically served her neighbors, Apecellas initiated an action for declaratory judgment of their easement rights and ditch interference under § 70-17-112, MCA. Overman claimed that Apecellas’ predecessors in interest abandoned the easement or Overman reverse adverse possessed it by cutting off use. The District Court concluded that Overman failed to prove her extinguishment claims. Overman challenged this ruling on appeal, and the court’s conclusion that Apecellas were the prevailing party on their statutory interference claim and entitled to costs and fees.
The Supreme Court held that, on appeal, Overman had the burden on her abandonment claim to prove by clear and convincing evidence that Apecellas or their predecessors in interest stopped using and intentionally abandoned their easement. Contrary evidence established that the dominant landowners continuously used water from the ditch and never acted to intentionally abandon the easement. On her reverse adverse possession claim, Overman had to prove by clear and convincing evidence her conduct to extinguish the easement was open, notorious, exclusive, continuous, uninterrupted, and adverse for five years. Overman failed to prove all elements where contrary evidence established that she permitted Apecellas and their predecessors in interest to continuously receive water through the ditch. Finally, neither the District Court’s limiting the scope of the ditch easement to the size of a carrying pipe, nor Apecellas abandoning separate tort claims, constituted a win for Overman precluding Apecellas’ § 70-17-112, MCA, prevailing-party status.
Points of Interest: property, easements and roads, abandonment
2025 MT 218
Defendant’s failure to pay restitution was not a probation violation barring street time credit on revocation under § 46-18-203(7)(b), MCA, where the State presented no evidence of a payment schedule or supervised repayment, as required under §§ 46-18-241 and -244, MCA.
At sentencing on revocation, Powell argued he was entitled to street time credit for an 883-day period of no record probation violations. The State argued Powell had failed to pay restitution since 2020 and, therefore, even without specific record violations during that timeframe, he was nevertheless in continuing non-compliance and not entitled to street time credit. The District Court agreed and denied any street time credit on revocation.
On appeal, the Supreme Court examined Montana’s restitution statutes, noting that §§ 46-18-241 and -244, MCA, obligate the State to supervise restitution payments and establish a repayment schedule when a defendant is under State supervision. Where there was no evidence that Powell’s probation officer followed these statutory commands, there was no evidence of a specific, identifiable probation violation for nonpayment. Without record evidence of a violation, the State failed to establish that Powell was not entitled to street time credit. The Court reversed and instructed that Powell receive 883 days street time credit on remand.
Points of Interest: restitution, revocation, probation and parole
2025 MT 215
Where trial court was on notice that defendant had limited financial means and was still paying off a fine from a previous conviction, it erred in imposing a fine and fees without inquiring into the defendant’s ability to pay.
A jury convicted Post of DUI, third offense, and driving with a suspended license. At the sentencing hearing, Post’s counsel asserted that Post was on a limited income, he was on disability and social security, and he was still paying off the fine from his second DUI conviction. However, the District Court did not inquire into Post’s financial ability to pay the associated fines and required him to pay a $3,000 fine and a $250 public defender fee. In the court’s written judgment, it imposed an additional $60 in fees on top of the orally pronounced sentence.
After Post appealed, the State conceded that the $60 in additional fees imposed in the written judgment should be stricken because those fees were not included in the trial court’s oral pronouncement of sentence. The Supreme Court reversed the District Court’s imposition of a $3,000 fine and $250 public defender fee and remanded the matter for resentencing. The trial court imposed the fine and fee in spite of being on notice about Post’s financial constraints and it failed to inquire into Post’s ability to pay.
Points of Interest: fines and surcharges, ability to pay, sentencing
2025 MT 213
A finding of irretrievable breakdown in a marriage does not support a decree of invalidity, which can only be supported by finding that the marriage was entered into under the circumstances provided in § 40-1-402, MCA.
Anderson filed a petition for Declaration of Invalidity and Consent to Entry of Decree of Invalidity, seeking to have his marriage to Ruffatto declared invalid. The petition was drafted by Ruffatto and alleged she had entered into the marriage under duress and fraud. However, Ruffatto did not sign the petition. Rather, the only signature was Anderson’s on the Consent to Entry of Decree of Invalidity, in which Anderson attested to Ruffatto’s statements as being true and the marriage being invalid as against public policy. The District Court subsequently declared the marriage invalid on the basis that it was irretrievably broken. Ruffatto appealed, arguing that she never signed the petition and the court failed to adequately consider her interests.
The Supreme Court reversed and remanded to the District Court to strike the unsigned petition and dismiss the cause. A finding of irretrievable breakdown is not a circumstance supporting a declaration of invalidity under § 40-1-402, MCA. Further, the record fails to support a circumstance under which the marriage could be declared invalid under § 40-1-402, MCA. Anderson cannot rely on the statements Ruffatto set forth in her petition because it is unsigned and he fails to set forth any facts supporting invalidity in his Consent to Entry of Decree of Invalidity.
Points of Interest: family law, invalidity of marriage, sufficiency of evidence
2025 MT 212
District Court erred in terminating Father’s parental rights where Father was not properly served and was never advised of his right to counsel.
A.K.M. and R.J.M.’s grandparents petitioned to terminate Father’s parental rights and adopt the children. They mailed him a copy of their petition at Montana State Prison. Father did not respond, so the District Court set a hearing and “cc’d” notice to Father at the prison. At the hearing, no one testified. Instead, the court adopted the petition allegations as true and terminated Father’s parental rights.
On appeal, the Supreme Court vacated the termination and remanded for further proceeding. Father was not served with proper notice of termination proceedings under § 42-2-605, MCA. That statute requires notice coupled with a warning that failure to appear at termination proceedings constitutes a waiver of interest in custody. Failure to properly serve Father violated due process. Also, Father was not advised of his right to counsel as an indigent parent in termination proceedings, another constitutional violation.
Points of Interest: notice, third-party parenting, parental rights
2025 MT 211
Attorney fees award was improper because the court failed to apply the law governing attorney’s fees in dissolution proceedings or to ground the award in substantial record evidence.
Salois petitioned for a dissolution of marriage to Armstrong. In its Decree, the District Court divided the marital estate, adopted a parenting plan, and ordered Armstrong to pay child support, spousal maintenance, and attorney fees. At trial, Salois had testified that she still owed $2,000 to her attorney and that she could be responsible for her own fees. Armstrong testified that his parents had paid his attorney fees. Without citing legal authority, the District Court concluded, “[Salois] should be granted her attorney’s fees. [Armstrong] should be responsible for his attorney’s fees.”
The Supreme Court held the District Court abused its discretion in granting Salois attorney fees. A District Court in a dissolution case must find that a fee award is necessary, reasonable, and based on competent evidence. The Decree did not address these factors or any other reasons why an award of attorney fees would be proper. Without citation to law or fact, the Supreme Court was unable to determine on what basis the District Court awarded its attorney fees. Substantial record evidence did not support the District Court’s findings and conclusion to award attorney fees. Because Armstrong could not pay his own fees, the court erred as to a material fact when it concluded that he also could pay Salois’ fees.
Points of Interest: attorney fees, dissolution
2025 MT 210
A jury may not disregard uncontradicted, credible, non-opinion evidence of pain and suffering. A corporation can not ratify an agent’s conduct absent acceptance of benefits from the act.
Kevin Frost kidnapped his estranged wife, Sherri, during contentious divorce proceedings. After she was freed, Sherri sued Kevin for damages, including medical expenses and pain and suffering. She also sued Kevin’s employer, the family ranch, who paid for some of the costs associated with criminal proceedings against Kevin. She presented evidence of $25,392.15 in medical expenses related to the kidnapping as well as uncontroverted evidence she experienced pain and suffering. At trial, the jury returned a verdict for $20,000, $60,000 below even Kevin’s suggested minimum amount and below the proven medical expenses. The court granted Sherri a new trial on damages and dismissed the ranch from the proceedings.
The Supreme Court affirmed. The jury’s award ignored uncontroverted evidence of pain and suffering, despite no dispute as to causation. Thus, the District Court correctly granted Sherri’s motion for a new trial. Second, the court correctly determined that Kevin was not acting as an agent of his family’s ranch when he kidnapped Sherri, making the Ranch’s ratification of any of Kevin’s actions impossible. The Court remanded the matter for a new trial on damages only.
Points of Interest: evidence, jury, agency
2025 MT 209
A restitution award was reversed and remanded for a determination of whether a homicide victim’s mother was a “victim” under the restitution statutes when appearing as an agent of her business which employed the deceased.
LaForge was convicted of murdering Brett Ness. Prior to sentencing, the victim’s mother submitted a victim’s affidavit claiming $72,000 in lost income due to Brett’s death. At the sentencing hearing, the victim’s mother explained that Brett worked for a log home restoration business she partially owned, and Brett’s death caused the company to either lose or reschedule three or four restoration jobs. She testified that $72,000 was the amount she and her husband would have shared with their business partner had the jobs not been lost, but was unsure whether the jobs had been canceled or rescheduled. LaForge objected to the loss of income claim, asserting there was not sufficient verification of a $72,000 loss. The District Court imposed the full $72,000 amount in restitution, finding the victim’s mother was “a representative of the company” who had sufficient knowledge to talk about the lost jobs and that Brett’s death “would be expected to result in a loss of income to the company.”
On appeal, the Supreme Court reversed the $72,000 restitution award and remanded for a determination of whether the victim’s mother, when appearing as a representative of the company, could be considered a “victim” under the restitution statutes. The Court noted the mother’s business, which employed Brett, could only “be considered a victim eligible to recover its pecuniary losses if it is determined that business could bring and win a civil case against LaForge for Brett’s death” and that typically an employer has no civil cause against a third-party tortfeasor for lost profits based on the tortfeasor injuring the employee during off duty hours in activities not related in any manner to the employee’s employment.
Points of Interest: sentencing, restitution
2025 MT 204
A probation home visit is not a search that requires reasonable cause, therefore a court properly denied a motion to suppress evidence obtained during a probation home visit to probationer’s apartment.
Manyhides received a three-year probation sentence after pleading guilty to a prior offense in 2020. Her probation conditions required her to allow officers to visit her residence. In 2022, two probation officers conducted a home visit at Manyhides’s apartment. During a safety walkthrough, an officer observed baggies commonly used to contain methamphetamine on Manyhides’ bedroom nightstand. The officer then searched Manyhides’ purse and discovered paraphernalia. The State charged Manyhides with two drug possession offenses.
Manyhides moved to suppress the paraphernalia discovered during the home visit, arguing that the probation officers violated her constitutional rights by searching her apartment without a warrant. The District Court denied her motion, citing Montana precedent that a probation home visit is not a search.
On appeal, Manyhides argued that the visit evolved into a search when a probation officer entered her bedroom. Manyhides asked the Supreme Court to establish a rule that confines the scope of a home visit to areas generally accessible to guests. The Court rejected Manyhides’s proposed rule, and affirmed the District Court’s denial of her motion to suppress, reasoning that Manyhides’ proposal departed from Montana’s well-established law and created an unworkable standard for probation officers to follow.
Points of Interest: probation and parole, search and seizure, suppression
2025 MT 203
Allied Waste Servs., of North Am., LLC v. LH Residential LLC
A court does not necessarily have to consider the ascertainability of class members before certifying a class action, and it may certify a breach of contract class action even though the nature of the alleged breach remained uncertain.
Republic constituted the sole waste management service provider in Missoula County. Crestview’s contract with Republic stated that Republic would provide Crestview a specific size of dumpster. However, half of Republic’s fleet of dumpsters were undersized. Republic thus provided Crestview with undersized dumpsters and it also charged overage fees for the undersized dumpsters.
Crestview alleged Republic breached its contract by (1) providing undersized dumpsters and (2) providing undersized dumpsters and charging an overage fee. The District Court certified a breach of contract class, concluding Crestview had presented sufficient evidence to meet the requirements of M. R. Civ. P. 23(a) and (b)(3).
On appeal, the parties disputed whether common questions predominated. The Supreme Court determined common questions predominated over whether Republic provided undersized dumpsters but that a narrower class might be needed if the breach occurred because customers received undersized dumpsters and were charged overage fees. Neither party had asked the District Court to determine Republic’s contractual responsibilities, leaving the proper theory of breach unresolved. The District Court did not abuse its discretion by concluding that common questions predominated over individual questions although the nature of the alleged breach remained uncertain.
Republic also contended the District Court erred by not determining whether the class members would be ascertainable pursuant to Rule 23(b)(3). The Court held the District Court did not have to determine whether the class members were ascertainable before certifying the class because district courts have broad discretion to use Rule 23 to ensure class actions proceed efficiently.
Points of Interest: breach of contract, class action, Rule 23
2025 MT 202
District Court erred in failing to award defendant credit for time served when it resentenced him upon revocation, but it did not err in denying him any “street time” credit because he was not in full compliance with his probation conditions.
The District Court revoked Shewalter’s suspended sentence and resentenced him to a five-year suspended sentence. After Shewalter was revoked a second time, upon resentencing, the District Court did not award him any credit for time served and further refused to grant Shewalter credit for “street time” because he not been in compliance with the terms of his probation.
On appeal, the Supreme Court reversed in part. Montana law requires that a sentencing court must grant a defendant credit for time served and the District Court therefore erred in failing to award Shewalter this credit. However, the District Court did not err in denying Shewalter credit for “street time. Shewalter was not entitled to this credit because he was not in “full compliance” with probation conditions.
Points of Interest: revocation, elapsed time credit, credit for time served
2025 MT 201
In re Marriage of Rehbein & Paddock
District Court did not abuse its discretion by amending the pleadings after trial to consider a third-party parental right when the pleadings raised only the presumptive parentage statute. District Court did not err in concluding spouse had proved elements to establish third-party parental interest, as substantial evidence supported its findings.
During Rehbein and Paddock’s marriage, Rehbein gave birth to A.M.R. and M.J.R., and Paddock engaged in all aspects of their care. After the couple separated, they coordinated custody exchanges and Paddock regularly cared for the children. In April 2022, Rehbein filed for dissolution and claimed no children. Paddock’s counterpetition asserted that A.M.R. and M.J.R. were children of their marriage and requested a parenting plan. Paddock later petitioned for a determination of parentage under § 40-6-105, MCA, the presumptive parentage statute.
At a bench trial, the parties and witnesses testified about the parties’ conduct, their relationships with each other and with the children, and the children’s best interests. Rehbein’s post-trial brief argued the District Court could not consider a parental interest on grounds besides the presumptive parentage statute, the sole relief requested by Paddock’s pleadings. The court determined that by presenting evidence related to the third-party parental interest statutory elements, the parties consented to trying the issue, and the court amended the pleadings. The court found Rehbein had consistently engaged in conduct contrary to the parent-child relationship, Paddock had established a child-parent relationship with both children, and a continued relationship with Paddock was in the children’s best interests. Having proved these statutory conditions, Paddock received a third-party parental interest.
The Supreme Court affirmed. The District Court correctly amended the pleadings, as Rehbein was not prejudiced by surprise. At trial, Rehbein could address the third-party parental interest claim on the merits and present evidence refuting it. The District Court did not err by granting Paddock a third-party parental interest in the children, because its detailed findings of fact and conclusions of law were supported by the record and addressed the necessary factors under § 40-4-228, MCA.
Points of Interest: dissolution, parenting plan, third-party parenting
2025 MT 200
Where the record was silent as to why defense counsel did not pursue a justifiable use of force defense or request a jury instruction on a lesser-included offense of mitigated deliberate homicide, appellant’s IAC claim was not reviewable on direct appeal because there were plausible strategic reasons trial counsel may have made those decisions.
Arvidson was target shooting at night at his rural home. Neighbors, alarmed by bullets whizzing overhead, called 911, prompting officers and later a SWAT team in an armored vehicle to respond. When SWAT fired a less-lethal foam round that struck Arvidson, he retreated inside and fired seven rifle rounds at the armored vehicle, hitting it twice. While barricaded, he called dispatch claiming he was returning fire because someone was trying to kill him and his family. At trial, his attorney argued Arvidson didn’t know it was law enforcement and hadn’t shot at the armored vehicle. Arvidson was convicted of attempted deliberate homicide and related charges. Arvidson appeals his conviction for attempted deliberate homicide, arguing that his trial counsel was ineffective by failing to pursue a justifiable use of force defense and request a lesser-included instruction on attempted mitigated deliberate homicide.
The Court held that Arvidson’s ineffective assistance of counsel claims related to failing to pursue justifiable use of force or request a mitigated deliberate homicide instruction could not be decided on direct appeal because the record was silent as to why counsel made those choices. An ineffective assistance of counsel claim can be decided on direct appeal if the record clearly shows why counsel acted or failed to act. When the record is silent or ambiguous about counsel’s reasoning, the claim is not record-based. The Court noted several plausible strategic reasons counsel might have avoided a justifiable use of force defense or a mitigated deliberate homicide instruction, so no conclusion of ineffectiveness was possible on the existing trial record.
Points of Interest: JUOF, IAC, jury instructions
2025 MT 199
An LLC member was properly dissociated upon a unanimous vote by the other members when continuing to conduct business with him cause the other members to violate their fiduciary duties. The calculation of a dissociated member’s distributional interest must consider the “going concern value” of the business.
Hebert cofounded Shield Arms LLC, a company that manufactures firearms and firearm components, with two business partners. He began displaying troubling behavior, making baseless accusations against business partners, and making the company’s sole employee fearful. As a result, vendors began to withdraw from business agreements with Shield Arms. The members voted unanimously to dissociate him. Hebert sued, challenging his dissociation, the valuation of his share of the company, and other aspects of the end of the business relationship. The District Court granted Shield Arms summary judgment, determining Hebert’s behavior was sufficiently damaging to the business as to implicate and interfere with the other members’ fiduciary duties should they continue to do business with Hebert. The court also blessed the valuation of the buyout of Hebert’s interests.
The Supreme Court affirmed in part and reversed in part. Hebert’s behavior was “contrary to the law,” including fiduciary duties of an LLC member, and thus dissociation was proper because it would be unlawful to continue working with him. However, the valuation of his distributional interest did not consider the “going concern value” of the business. Hebert’s challenge to an order denying his extension of discovery deadlines was successful, as some of the sought-after evidence might prove relevant to a proper valuation of his interest in Shield Arms.
Points of Interest: business law, summary judgment, discovery
2025 MT 198
The District Court correctly determined that the tax payment provision of the settlement agreement was ambiguous because the provision was ambiguous whether read in the context of the whole agreement or when interpreted broadly.
A settlement agreement (MOU) required Seaman to satisfy Gabert’s claims by liquidating his assets but allowed Seaman to retain proceeds that equaled the value of his homestead exemption. The MOU assigned a receiver to liquidate Seaman’s assets. The MOU required the receiver to “[p]ay all required taxes relating to the Property” but it did not obligate the receiver to complete Seaman’s tax returns.
Gabert moved to establish a designated settlement fund to collect the settlement. Seaman objected, arguing the proposed fund conflicted with the MOU because the fund prevented the receiver from using the sale proceeds to pay the capital gains taxes Seaman would incur. The District Court issued an order that established the fund but it required the receiver to withhold sale proceeds to pay Seaman’s tax liability based on its interpretation of the phrase “[p]ay all required taxes related to the Property.”
The District Court struck the provision that required the receiver to reserve proceeds to pay Seaman’s capital gains taxes pursuant to Gabert’s M. R. Civ. P. 59(e) motion. It reasoned it had manifestly erred because the MOU’s tax payment provision was ambiguous rather than unambiguous.
The Supreme Court held the District Court correctly determined the MOU’s tax payment provision was ambiguous. A reasonable person could interpret the MOU to require the receiver to distribute the sale proceeds subject only to reserving enough funds to satisfy Seaman’s homestead exemption, not his capital gains liability. The Court considered the broader interpretation asserted by Seaman but determined it did not render the tax payment provision unambiguous because requiring the receiver to reserve enough proceeds to pay Seaman’s tax liabilities would expand the receiver’s obligations to Seaman beyond those expressly listed and did not reconcile how the receiver satisfies the competing interests it owes to Gabert.
Points of Interest: settlement agreements, contracts, tax law
2025 MT 195
A requested preliminary injunction to prevent an allegedly ineligible elected official from being sworn into office does not automatically become moot once the swearing in occurs.
After being appointed interim sheriff of Big Horn County, Middlestead ran in the November 2024 election to retain his position. In June 2024, Bartel filed a complaint alleging Middlestead was ineligible for the office. Middlestead was elected sheriff while Bartel’s lawsuit was pending. Bartel requested a preliminary injunction barring Middlestead from being sworn in, but the swearing in occurred before the District Court acted. The court denied the preliminary injunction, and Bartel appealed.
The Supreme Court held that Bartel’s request for a preliminary injunction was not mooted by Middlestead’s swearing in. Even though the District Court could not grant the specific injunctive relief Bartel sought, it could still order Middlestead’s removal if he was ultimately deemed ineligible to serve as Big Horn County Sheriff.
The Supreme Court further upheld the District Court’s denial of the preliminary injunction. The District Court applied the correct preliminary injunction standard—the factors in § 27-19-201(1), MCA—to determine whether to issue a preliminary injunction. The District Court did not abuse its discretion by determining it needed a more complete record before deciding whether Bartel’s allegations warranted an injunction. The Supreme Court rejected Bartel’s argument that §§ 13-35-108 and 13-36-206, MCA, demonstrate the Legislature’s intent that all election-related injunctions satisfy the public interest and irreparable harm factors of the preliminary injunction standard. Thus the District Court did not abuse its discretion by considering whether the preliminary injunction was in the public interest or by determining that Bartel’s showing of harm was too speculative to satisfy the standard. Finally, Bartel had sufficient opportunity at the preliminary injunction hearing to support his request, and he can present additional evidence regarding his underlying complaint on remand.
Points of Interest: elections, preliminary injunction
2025 MT 194
Johnson v. State Farm Mut. Auto. Ins. Co.
An insured did not have standing to assert a made whole claim because the made whole doctrine does not apply to the attorney fees an insured incurs from pursuing uninsured losses.
Johnson and Vanmeter were involved in an automobile accident. Johnson’s State Farm policy covered Johnson’s property losses except for certain property State Farm deemed uninsured. Vanameter’s insurer, GEICO, paid State Farm for Johnson’s insured property damage once State Farm subrogated.
Johnson settled her claim against Vanmeter for less than GEICO’s policy limit. GEICO paid Johnson the value of the uninsured property but did not cover Johnson’s attorney fees. Johnson sued State Farm, alleging it violated the made whole doctrine because State Farm subrogated before Johnson recovered the attorney fees she incurred pursuing Vanmeter.
The District Court held Johnson did not suffer an injury because State Farm’s subrogation did not impair her ability to collect the attorney fees she incurred, explaining the American Rule would have prevented Johnson from recovering the attorney fees from Vanmeter and that Johnson settled for less than GEICO’s policy limit so State Farm’s actions did not reduce the amount of funds available to Johnson.
The Supreme Court determined the District Court misapplied the made whole doctrine but affirmed the court’s conclusion. The American Rule does not allow an insurer to subrogate before the insured has recovered its attorney fees because the made whole doctrine constitutes an equitable device that ensures an insured recovers its total loss, including attorney fees. Johnson settling for less than GEICO’s policy limit did not preclude her from being made whole because an insured’s made whole rights “does not depend on the third-party’s policy limits or available resources.” Johnson did not suffer an injury from State Farm’s subrogation because the “cost and attorney fees [Johnson] incurred in recovering [the value of the uninsured property] were not subject to the made whole doctrine.”
Points of Interest: insurance, subrogation, attorney fees
2025 MT 193
District Court erred in denying a motion to suppress evidence discovered in vehicle that deputy lacked probable cause to seize.
A call for service indicated increased activity at a house known as a situs of drug activities, which indicated a possible drug distribution event. An off‑duty officer spotted Brueggeman leaving the location, and forwarded this information to a Sheriff’s Deputy. The deputy pulled Brueggeman over a short while later, on the suspicion she was transporting drugs she received during the distribution event. After questioning Brueggeman for 10 minutes, the deputy seized the vehicle and the purse inside the vehicle. Inside the purse, there was a small amount of methamphetamine.
Brueggeman moved to suppress the evidence, and the trial court denied her motion. Brueggeman then pled guilty and appealed to the Montana Supreme Court. The Supreme Court reversed the district court decision.
The Court found the officer had reasonable suspicion to inquire into possible drug activity. Brueggeman left a site known for its drug activity, which experienced unusual activity shortly before her departure, and was reported to be there by credible sources. However, the deputy lacked probable cause to seize the vehicle because the officer’s justifications for prolonging the stop did not cumulatively produce sufficient evidence for a reasonable person to believe the defendant was engaged in illegal activity or that her vehicle contained contraband. The District Court’s findings that Brueggeman was evasive, nonresponsive, or antagonistic to the officer’s questions were clearly erroneous because they were contradicted by the body cam footage. Brueggeman’s refusal to consent to a search was not a hostile act. The remaining facts were insufficient to support probable cause to search.
Points of Interest: search and seizure, suppression, probable cause
2025 MT 190
Holcomb was not entitled to a justifiable use of force instruction when evidence at trial did not show that he reasonably believed he was in imminent danger of serious bodily injury or death.
The State charged Holcomb with deliberate homicide, alleging he killed Fellers during a party near Fairfield. Defense counsel requested a justifiable use of force instruction at trial, asserting during closing argument that Fellers assaulted Holcomb then pursued him with a truck. The District Court refused this instruction. The jury returned a guilty verdict after a five-day trial.
On appeal, Holcomb argued the District Court erred in refusing his jury instruction. Holcomb contended that evidence of a bullet hole in the truck, the presence of two rifles in the truck, testimony from other witnesses that they heard multiple gunshots, and calls he made after the shooting in which he sounded frightened established that he reasonably believed he was in imminent danger of serious bodily injury or death. Witness testimony and his counsel’s closing statements, Holcomb asserted, showed Fellers assaulted him before pursuing him out into a field.
The Supreme Court upheld the District Court’s determination because the record did not support Holcomb’s assertion that Fellers assaulted him. The only witness to testify about this said he could not remember. Counsel’s closing argument does not constitute evidence and could not establish that Fellers assaulted Holcomb. Holcomb’s additional claims were unsupported by the record.
Points of Interest: jury instructions, JUOF, sufficiency of evidence
2025 MT 189
Even though the State untimely filed notice of its intent to charge Defendant as a persistent felony offender, the Court affirmed Defendant’s PFO sentence because Defendant had ample opportunity to object to PFO treatment and suffered no prejudice by the untimely filing.
The State arrested Anderson for numerous orders of protection violations and was to complete an omnibus order compliant with the PFO-Notice statute by 5:00 pm on August 31, 2022. The PFO-Notice statute requires the State to give notice of intent to seek PFO status at or before a defendant’s omnibus hearing. At 5:02 pm on August 31, the State emailed defense counsel and the District Court notice of its intent to charge Anderson as a PFO. The next day, the State filed the notice in District Court, but the filing lacked an addendum specifying which of Anderson’s prior convictions the State would use to support PFO status, as required by the statute. A week later, the State filed the addendum.
Several months later, Anderson pleaded guilty to some of the charges in exchange for the State to not seek PFO status at sentencing. Anderson was released but promptly violated conditions of his plea agreement. At sentencing, Anderson argued against PFO treatment because the State untimely filed notice of its intent to seek such treatment.
Affirming Anderson’s treatment as a PFO, the Supreme Court explained that it will not overturn a district court’s decision to impose PFO status when the State untimely files its notice of intent to seek such a status as long as a defendant had ample opportunity to object and the defendant was not prejudiced by the untimely filing. Although the State was a week late in filing a completed notice of intent to treat Anderson as a PFO, Anderson accepted a plea agreement two months after the State provided such notice. The plea agreement acknowledged the State’s option to charge Anderson as a PFO.
Points of Interest: PFO, timeliness, prejudice
2025 MT 188
Because injuries plaintiff sustained during a guided horseback ride were due to inherent risks of riding a horse, the District Court properly granted defendant summary judgment on liability under the Equine Activities Act.
Girasole brought negligence claims against Paws Up Ranch after sustaining injuries when his horse stumbled during a ride guided by a Paws Up wrangler. The District Court granted summary judgment in favor of Paws Up, reasoning that the horse’s stumble was an inherent risk under Montana’s Equine Activities Act. The Equine Activities Act proscribes liability for equine activity providers when a participant’s injury is caused by an inherent risk of horseback riding.
On appeal, Girasole argued that questions of material fact precluded summary judgment. He alleged his saddle was off-center; the wrangler took the group on an ill-defined trail; the wrangler rode beside rather than in front of the group; and the wrangler failed to offer him assistance when his horse repeatedly turned its head towards the barn. Girasole’s expert testified that the wrangler’s actions fell below the standard of care. These alleged facts, Gerard asserted, made his horse’s stumble foreseeable and created a triable issue of fact.
Citing Montana precedent that saddle slipping is an inherent risk and Girasole’s expert’s testimony that saddle cinching is an imprecise science, the Supreme Court reasoned that it was an inherent risk Girasole’s saddle might slip. Girasole failed to offer evidence that the wrangler riding beside him increased the risk or made it foreseeable that his horse would stumble. The horse’s behavior on an unfamiliar trail also was an inherent risk as defined in the Act. The Court found Girasole’s sworn testimony contradicted his assertion that he repeatedly warned the wrangler his horse was agitated. Viewing the evidence in a light most favorable to Girasole, the Court concluded Girasole’s injury resulted from inherent risks of horseback riding and the evidence did not raise a genuine issue of material fact for trial.
Points of Interest: torts, summary judgment, foreseeability
2025 MT 187
District Court properly conditioned commencement of parenting time on Husband’s obtaining chemical dependency and mental health evaluations. Court also equitably awarded Wife the marital business.
Evidence developed during dissolution proceedings established that Husband had significant alcohol abuse and anger management issues and mismanaged the marital business, including by repeatedly violating court orders regarding business spending during proceedings. Accordingly, the District Court conditioned the start of a step-up parenting plan on Husband’s obtaining mental health and chemical dependency evaluations. The court awarded Wife the marital engineering business because her premarital home secured the business loans and Husband was not financially able to refinance and secure the loans on his own.
On appeal, Husband claimed that conditioning parenting time on his obtaining the court-ordered evaluations violated his parental rights. He also claimed the District Court illegally awarded Wife the marital business because she was not a licensed professional engineer. The Supreme Court disagreed, holding the District Court did not abuse its discretion in protecting the two-year-old child’s best interests under § 40-4-212, MCA, by requiring Husband to receive professional evaluations prior to beginning the court-ordered parenting plan. The Court also held that awarding the marital business to Wife did not violate any Montana law and was, instead, an equitable award under § 40-4-202, MCA, due to Wife’s premarital home securing the business loans.
Points of Interest: family law, parenting plan
2025 MT 186
Prosecutor breached plea agreement by recommending a parole eligibility restriction beyond the terms of the agreement, and District Court’s reliance on the recommendation affected the fairness of the sentencing decision.
Walton was charged with eight counts of various offenses, including Sexual Abuse of Children Under 12 and Incest. Walton signed a plea agreement in which he pled guilty to all counts and waived certain constitutional rights. In exchange, the State agreed to recommend specific terms of incarceration for each offense. The plea agreement was silent as to restrictions on parole eligibility. The plea agreement provided, “Defendant can argue for any legal sentence,” but made no such allowance for the State.
At the sentencing hearing, the State recommended that Walton receive an additional fifteen-year parole restriction beyond the statutory minimum restrictions. Walton did not object, but requested no parole restriction. The District Court granted the State’s request.
On appeal, the Supreme Court exercised plain error review to consider the prosecutor’s conduct. The Court determined the prosecutor breached the plea agreement by requesting a parole restriction outside the terms of the agreement, thus undermining the specific sentence for which Walton had bargained. Because the District Court explicitly predicated its decision to restrict Walton’s parole eligibility on the State’s recommendation, the breach affected the fairness of the ultimate sentencing decision. The Court remanded the case for a new sentencing hearing before a new sentencing judge.
Points of Interest: plea agreements, plain error review, sentencing
2025 MT 185
The State did not violate its Brady obligations concerning federal benefits received by the state’s witness. While cross-jurisdictional knowledge may be imputed to a state prosecutor from the federal prosecutor, the record did not demonstrate the necessary facts for constructive knowledge.
The State charged Temple with felony distribution of dangerous drugs. The prosecution called seven witnesses at trial. One testified she was currently detained on federal charges, but the AUSA had not offered any deals for her testimony. Following Temple’s conviction, appellate counsel worked to obtain sealed federal documents showing that—following Temple’s trial—the federal court granted the witness a sentence reduction for assistance in various cases, including Temple’s. On a petition for postconviction relief, Temple alleged the State violated its obligations under Brady and Napue. The District Court denied the petition, reasoning there was no showing of an agreement with the witness and the State did not possess information related to her federal case.
The Supreme Court affirmed. If a witness testifies at trial based upon a promise or expectation that the prosecutor will seek a reduction in their sentence, that is a motivation for testifying that may be used to impeach the witness’s credibility—subject to Brady disclosure. But this petition nonetheless failed because there was insufficient evidence that the State suppressed evidence of any expectation by the witness. Prosecutors are responsible for all information within their offices or possessed by anyone working on behalf of the office, regardless of the prosecutor’s actual knowledge. While there may be a case where cross‑jurisdiction constructive knowledge could be imputed from a federal prosecutor to a state prosecutor, the record here did not show any expectation of a benefit in the witness’s federal case could be imputed to the county attorney. The evidence also was not material, and the petition failed for this reason as well. For similar reasons, the State did not violate its Napue obligations to correct testimony that it should know to be false.
Points of Interest: Brady violations, witnesses, postconviction relief
2025 MT 184
Monarch Heating & Cooling, LLC v. Petra, Inc.
District Court did not err in denying defendant’s motion to compel arbitration where defendant had convinced plaintiff to move to set aside a default judgment without revealing that defendant intended to compel arbitration.
Petra failed to respond to Monarch’s Complaint after Monarch served Petra in May 2024, resulting in a default judgment. Monarch agreed to file a joint motion to set aside the default judgment at Petra’s request, which the District Court granted. Petra did not disclose that it intended to compel arbitration.
Petra filed an Answer in August 2024 that asserted counterclaims but did not assert arbitration as an affirmative defense. Petra filed an Amended Answer in September 2024 that listed arbitration as an affirmative defense. Petra subsequently moved to compel arbitration. The District Court denied Petra’s motion, reasoning Petra waived its right to compel arbitration by acting inconsistently with that right.
The Supreme Court affirmed. Petra argued on appeal that Mont. Pub. Emps. Ass’n v. City of Bozeman, 2015 MT 69 and Downey v. Christensen, 251 Mont. 386 (1992) indicate the District Court erred in concluding Petra acted inconsistently with its right to arbitration. The Court distinguished MPEA because Petra did not assert its right to arbitrate until six months after Monarch served the Complaint whereas the party in MPEA immediately sought to compel arbitration. Downey is distinguishable because Petra obtained Monarch’s consent to set aside the default without disclosing its intent to compel arbitration and Petra did not assert arbitration as an affirmative defense in its Answer.
Compelling arbitration would prejudice Monarch because, among the time and money Monarch had spent responding to Petra’s counterclaim, Monarch lost a tactical advantage by stipulating to setting aside the default under the impression Petra intended to litigate rather than compel arbitration.
Points of Interest: arbitration, default judgment, affirmative defenses
2025 MT 183
Under § 46-14-311, MCA, a court must independently evaluate whether a defendant is unable to appreciate the criminality of their behavior or otherwise conform their behavior to the law. “Appreciate” means more than knowing an act is illegal and requires a deeper understanding of the legal, moral, and societal implications of one’s actions.
Lloyd Barrus and his son, Marshall, sped past a police officer who gave chase. While Lloyd drove, Marshall fired a rifle from the backseat and wounded the officer. Lloyd returned to the disabled police car and Marshall fatally shot the officer. The two then led police on a 120-mile chase and disabled two pursuing police vehicles, before stopping near Drummond. There, Marshall was killed while shooting at officers and Lloyd surrendered.
The State charged Lloyd with one count of accountability for deliberate homicide for the death and two counts of accountability for attempted deliberate homicide for the two disabled vehicles. Lloyd was convicted and sought a sentence in the custody of the Department of Public Health and Human Services, rather than the Department of Corrections, pursuant to § 46-14-311, MCA. The District Court held an evidentiary hearing. One expert testified that Barrus met the requirements for DPHHS commitment. The other assessed Barrus as having “appreciated” his actions, thus meriting a DOC commitment. The court weighed the competing evidence as well as evidence from the trial and determined Barrus could appreciate the criminality of his conduct. Barrus was sentenced to three terms of life imprisonment in DOC custody.
The Supreme Court affirmed. The District Court properly conducted an independent evaluation of Lloyd’s mental condition and considered all relevant evidence. Because Lloyd exhibited strategic driving skills enabling Marshall’s aim on responding officers, took evasive actions during the pursuit, and acknowledged the legal consequences of his actions once apprehended, Barrus demonstrated more than mere awareness that his actions were illegal but that he had transgressed moral and societal norms. The District Court thus did not abuse its discretion in sentencing him to DOC custody.
Points of Interest: competency, involuntary commitment, criminal law
2025 MT 180
An insurer assigning a policy to another insurer can constitute the cancellation of an insurance policy in violation of § 33-15-1103(1), MCA.
Victory issued workers’ compensation insurance policies to several businesses. Victory sold its book of business to another Clear Spring and notified its insureds that their Victory workers’ compensation insurance policies would upgrade to a Clear Spring policy. The Victory policies were subsequently rewritten as Clear Spring policies.
The Commissioner of Securities and Insurance filed a notice of proposed agency action alleging Victory unlawfully canceled its workers’ compensation insurance policies. A Hearing Examiner concluded Victory’s assignment violated § 33-15-1103(1), MCA. It also concluded Victory’s notice to its policyholders contained a misrepresentation in violation of § 33-18-202(1), MCA, because it did not explain the policies were terminated and rewritten by Clear Spring. The CSI issued a final decision adopting the Hearing Examiner’s order.
The Supreme Court affirmed. Section 33-15-1103(1), MCA, states “[a]n insurer may not cancel an insurance policy[.]” The Court rejected Victory’s argument that a cancellation did not occur because assigning the policies to Clear Spring did not cause the policies to lapse. Assigning an insurance policy to another insurer can constitute a cancellation in violation of § 33-15-1103(1), MCA, because the purpose of Title 33, Chapter 15 is to maintain a competitive, transparent marketplace that allows customers to choose policies without facing unexpected changes. Through this lens, Victory’s assignment to Clear Spring materially changed the policies because Clear Spring became the insurer. The Hearing Examiner did not err by concluding Victory’s notice to its insureds violated § 33-18-202(1), MCA, in light of its interpretation of § 33-15-1103(1), MCA.
Points of Interest: insurance, insurance policies, workers’ compensation
2025 MT 179
Although District Court erred by implementing an emergency interim third-party parenting plan prior to adjudicating the third-party parenting rights of the petitioners, the error was not subject to reversal on appeal where the court later granted the petitioners third-party parenting rights.
The Taylors petitioned for dissolution in 2019, while Rebeccah lived in Kalispell and Joshua resided in Alaska. The district court adopted their proposed parenting plan, which provided D.C.S. would reside with Rebeccah in Kalispell and Joshua would only parent him when he visited Montana. In 2022, D.C.S. began living with Rebeccah’s father and stepmother (the Scotts) after Rebeccah and her partner exhibited troubling behavior. The Scotts alleged Rebeccah was unable to parent D.C.S. and that Joshua had not had meaningful contact with D.C.S. since 2016.
In 2023, Rebeccah moved D.C.S. to North Dakota. The Scotts then petitioned for third-party parenting rights and an emergency interim third-party parenting plan. The District Court granted the emergency interim plan prior to adjudicating whether the Scotts had a parental interest in D.C.S. Over Rebeccah’s objection, the court ultimately granted the Scotts third-party parenting and awarded them primary custody of D.C.S.
On appeal, the Supreme Court agreed with Rebeccah that the District Court erred in granting the Scotts emergency interim parenting prior to adjudicating whether they had a parental interest in D.C.S., but it denied her relief from the final custody order because the issues around the interim plan became moot upon the District Court granting the Scotts a third-party parenting interest. Although Rebeccah also requested plain error review of factual findings the District Court made that she did not challenge, the Court refused to reweigh the evidence.
Points of Interest: parenting plan, third-party parenting, parental interest
2025 MT 178
A court can take judicial notice of previous abuse and neglect proceedings that are substantially the same, and abuse or neglect may be deemed “chronic” even if the children are young.
Parents had their parental rights to their oldest two children terminated due to domestic violence, drug use, abuse and neglect, and unsuitable living conditions. Mother later gave birth to twins, one of whom had drug withdrawals at birth. A CPS went to the home after reports of yelling and infants crying. After no one answered the door, police served a search warrant. Parents were in the home with a sex offender who was the twins’ caretaker. The twins’ playpen was broken and hazardous, their diapers were overflowing, and the CPS could not located correctly sized clothing for them. Police observed mildewed laundry, broken glass, and crushed pills on the floor. The twins had not received medical care since being discharged from the hospital at birth, and the CPS noted developmental delays. DPHHS petition for removal, termination of parental rights, and an order that reasonable efforts were not required due to DPHHS’s previous involvement with Parents’ older children on substantially the same reasons.
The District Court terminated Parents’ parental rights, finding clear and convincing evidence of chronic and severe neglect, that the conditions were unlikely to change, and that no reasonable efforts to preserve the parent-child relationship were needed.
On appeal, the Supreme Court affirmed, concluding the District Court’s determination was supported by substantial evidence. The court was free to take judicial notice of the previous children’s termination proceedings to inform the case at issue. Even though the twins were young, the neglect was correctly ruled “chronic” as it occurred since birth. Lastly, DPHHS did not have to make reasonable efforts and thus did not violate Father’s due process rights.
Points of Interest: judicial notice, dependent neglect, aggravated circumstances
2025 MT 177
Wife was entitled to discovery and a hearing on her motion to modify child support under § 40-4-208(2)(b)(i), MCA, when she showed changed circumstances warranted review of a prior support award.
In 2024, Wife sought modification of a 2018 child support award, alleging that a 65% decrease in her annual income after expiration of spousal maintenance, a severely debilitating car accident, and underinsurance of the couple’s special needs child constituted changed circumstances warranting review and modification of child support. Wife also alleged that Husband’s income had increased, which he denied, and sought discovery of his finances. The District Court, without allowing discovery or holding an evidentiary hearing, summarily denied Wife’s motion.
The Supreme Court reversed on appeal, explaining that § 40-4-208(2)(b)(i), MCA, is a two-part inquiry: changed circumstances and resulting unconscionability of the existing support award. Wife met her threshold burden to show changed circumstances and was therefore entitled to discover and develop the evidence necessary to show unconscionability under the statute. The Court remanded for discovery and an evidentiary hearing on Wife’s motion.
Points of Interest: child support, discovery, changed circumstances
2025 MT 176
Court did not err in denying motion to suppress evidence found in defendant’s backpack because the officer had reasonable particularized suspicion of criminal drug activity to justify his initial stop of the defendant.
An officer, patrolling a parking lot where he routinely observed criminal drug activity, spotted a car that matched the description of one reported stolen. He observed three men in the car hunched over, one of whom he believed had an arrest warrant out. The men first froze when they saw the officer, then exited the vehicle. The officer took one man into custody on his warrant, and asked the others, including Songer, for identification. Songer denied that a backpack was his, but then continuously touched it. The officer searched the backpack pursuant to a valid probationary search and found evidence of two crimes. Songer moved to suppress that evidence. During the litigation, Songer requested new counsel, stating the relationship had broken down. The District Court denied his motion. A jury convicted Songer on all counts for drug charges and attempted deliberate homicide. Songer appealed, arguing the court erred by denying his motion to suppress because there was no particularized suspicion for the original stop, and that the court erred by denying his motion for new counsel.
The Montana Supreme Court affirmed the denial of the motion to suppress because the initial stop was validly based on particularized suspicion of illegal drug activity, supported by the totality of the circumstances. Songer did not challenge the expansion of the initial stop nor the probationary search of the backpack, but only the particularized suspicion for the initial stop. The District Court correctly denied Songer’s motion for new counsel, because Songer failed to show sufficient good cause.
Points of Interest: particularized suspicion, search and seizure, suppression
2025 MT 175
In requiring a delinquent youth to register as a sexual offender, a district court must properly consider all relevant evidence, including the Psychosexual Evaluation, the nature of the offenses committed, and community safety.
After B.J.B., a delinquent youth, admitted to two counts of felony sexual assault and two counts of felony incest for offenses committed against his two younger half-siblings, the District Court ordered him to register as a sexual offender for life. In its dispositional order, the court noted the Psychosexual Evaluation designated B.J.B. a “Level 2” with a moderate risk of reoffending and public safety as justification for lifetime registration. However, both the Psychosexual Evaluator and the juvenile probation officer recommended against registration.
The Supreme Court affirmed. Section 41-5-513, MCA, exempts juvenile offenders from registration unless the District Court makes specific findings supporting registration. Here, the District Court did not abuse its discretion because it made appropriate findings. The “Level 2” designation and “moderate risk to reoffend” supported the lifetime registration requirement and the District Court articulated its public safety concerns on the record. The Court was not persuaded by B.J.B.’s argument that the District Court had disregarded the expert opinions of the evaluator and the probation officer because the District Court had considered those expert opinions within the context of its statutory obligations to protect the public’s best interest.
Points of Interest: juvenile offender, SVORA, sexual offenses
2025 MT 174
A non-lawyer cannot represent a defendant in a criminal proceeding, and a Justice of the Peace acting in their official capacity enjoys absolute judicial immunity from a collateral suit against them.
Skurdal is a Sovereign Citizen who sought to represent his friend, Trow, during Trow’s misdemeanor DUI trial. During the initial appearance in Justice Court, JP Walker ordered Skurdal to vacate Trow’s table and sit in the gallery, as Skurdal is not an attorney. Skurdal later sued Walker. The District Court granted Walker’s motion to dismiss, ruling she was protected by absolute immunity.
On appeal, the Supreme Court affirmed that a non-lawyer may not represent a criminal defendant. It further affirmed the District Court’s ruling that Walker was immune for her actions in court. The Court rejected Skurdal’s argument that Justices of the Peace need to take out bond before assuming office. “Justices’ courts” are “county entities” under § 2-9-701, MCA, and are covered by a blanket bond covering all county officers. Additionally, Justices of the Peace need not file bond before assuming office, and failure to file the bond does not create a vacancy in the office. Lastly, the use of a name in all capital letters is a purely typographical convention that does not affect any substantive rights. The Court further held that a district court is obligated to rule on the merits of absolute immunity first. If the district court finds the defendant is immune from suit, the court should dismiss the case: any amendment would be futile.
Points of Interest: self-representation, unauthorized practice of law, immunity
2025 MT 171
The mandatory minimum sentences for multiple-offense DUIs in Montana is not facially unconstitutional under any set of facts, nor does it qualify as cruel and unusual punishment.
Alford was pulled over for a speeding violation. The officer noticed slurred speech and obtained his BAC level, which was .155, nearly twice the legal limit. Because Alford had 3 previous DUIs, he was charged with a fourth or subsequent offense felony DUI. Alford entered a plea agreement, which recommended sentencing in accordance with the statutorily mandated minimum sentence. Prior to sentencing, the Montana Supreme Court released Gibbons, which held that statutorily mandated minimum fines for multiple DUI offenses were facially unconstitutional. Alford argued that the mandatory minimum sentence is cruel and unusual punishment and urged the court to adopt the same logic used in Gibbons as related to fines to the sentencing structure here. The District Court followed Gibbons’ rationale related to mandatory fines but concluded that the sentence was not unconstitutional. Alford appealed.
The Supreme Court affirmed. The statutory minimum sentence of thirteen months for multiple-offense DUI’s is not facially unconstitutional nor cruel and unusual punishment. The requirement is not so grossly disproportionate to the real risk posed by impaired drivers such that it shocks the conscience.
Points of Interest: DUI, sentencing, cruel and unusual punishment
2025 MT 170
District Court did not err when it denied a tribe’s motion to transfer the proceedings to tribal court because the birthfather objected to the transfer. Furthermore, Mother did not receive ineffective assistance of counsel because she failed to maintain contact.
J.B., an enrolled member of the Fort Belknap Indian Community, was adjudicated a youth in need of care after she was removed from her family’s care. ICWA applied to the dependent-neglect proceedings, which over the next three years. Mother rarely attended the hearings and her appointed counsel repeatedly told the court that he had been unable to reach Mother and could not take positions on the issues before the court.
The Tribes intervened in the proceedings and moved to transfer the case to Fort Belknap Tribal Court. Father filed an objection to the transfer but did not appear at the transfer hearing. Based on Father’s objection, the District Court denied transfer. The court ultimately terminated Mother’s parental rights, concluding the Department had met its burden under ICWA.
Mother appealed, arguing that the District Court erred in denying the Tribes’ transfer motion and that she received ineffective assistance of counsel. Relying on federal law and other courts’ interpretations, the Montana Supreme Court held that Father’s objection operated as a veto to the Tribes’ transfer motion. Furthermore, Mother did not receive ineffective assistance of counsel because she failed to maintain contact with her counsel or appear at hearings.
Points of Interest: MICWA/ICWA, dependent neglect, IAC
2025 MT 169
Res judicata and the law of the case doctrine do not bar the Court from correcting a facially illegal sentence.
In 2003, Keech was sentenced to a 20-year DOC commitment, with 16 years suspended, for a Lewis & Clark County offense. In 2008, he committed new offenses in Yellowstone County. He was sentenced to a 5-year DOC commitment in that case, which was to run concurrent to the Lewis & Clark sentence. Based on the new offenses, the State also petitioned to revoke the Lewis & Clark sentence. In 2009, Keech’s suspended Lewis & Clark sentence was revoked and he was sentenced to a 16-year DOC commitment, with 11 years suspended. The revocation sentence was silent on whether it was concurrent with or consecutive to the Yellowstone sentence, so the DOC ran it consecutively to the Yellowstone cause. Keech filed a habeas petition in 2011, asserting the sentences should have merged and not run consecutively. In Keech I, the Supreme Court denied the petition. In 2018 and 2019, the State again petitioned to revoke Keech’s suspended sentence. Keech again filed a habeas petition regarding the Lewis & Clark sentence running consecutively to the Yellowstone sentence. In Keech III, the Court again denied the petition. The District Court revoked Keech’s suspended sentence in 2023, and sentenced him to an 11-year DOC commitment, with 6 years suspended, and granted Keech 62 days of credit for time served.
On appeal, the Supreme Court determined both Keech I and Keech III were wrongly decided because the Lewis & Clark revocation sentence should have run concurrently with the Yellowstone sentence, not consecutively to it. Although the State contended review of that issue was barred by res judicata and/or the law of the case doctrine, the Court determined justice demanded a correction to a facially illegal sentence. The Court then addressed time Keech had spent incarcerated during the previous years and remanded to the District Court to amend its judgment and grant an additional 2,200 days of credit for time served Keech was entitled to based on the Lewis & Clark revocation sentence running concurrently with the Yellowstone sentence.
Points of Interest: res judicata, law of the case, credit for time served
2025 MT 168
Twenty-one day delay in charging Defendant incarcerated for DUI that was also a probation violation was not unreasonable. Mandatory minimum fine on DUI was unconstitutional under Gibbons without an ability-to-pay inquiry.
Vaska was arrested for DUI and then released by the court after his initial appearance. However, he remained in jail because the DUI was also a violation of his probation on a separate offense. The State charged him with felony DUI 21 days later. After a jury verdict, the court imposed the mandatory minimum fine required by § 61-8-731, MCA (2019).
On appeal, the Supreme Court held that the delay in charging was not unreasonable because it was within the 30-day timeframe prescribed by § 46-11-203, MCA, for filing of an information upon finding of probable cause. Imposition of the mandatory minimum fine, however, was reversible error under Gibbons because the court did not conduct an ability-to-pay inquiry under § 46-18-231, MCA, prior to imposition. The Supreme Court declined the State’s request to overrule Gibbons.
Points of Interest: DUI, fines and surcharges, ability to pay
2025 MT 163
Wood v. Mont. Twentieth Jud. Dist. Ct.
Double jeopardy does not preclude a second prosecution for deliberate homicide under a theory of direct liability when defendant’s first conviction was reversed and remanded for a new trial because the State presented insufficient evidence to convict defendant of deliberate homicide by accountability, and the general verdict form did not specify upon which theory the jury found defendant guilty.
The State charged Wood with deliberate homicide and proceeded to a jury trial, asserting two alternative theories of guilt: direct liability or accountability. At the close of evidence, Wood moved for dismissal, arguing the State presented insufficient evidence to convict under either theory. The District Court denied the motion and instructed the jury on both theories. Over Wood’s objection, the jury received a general verdict form that did not differentiate between the two theories, and the jury returned a guilty verdict. On appeal, the Montana Supreme Court reversed and remanded for a new trial because there was insufficient evidence to submit the accountability theory to the jury. Upon remand, Wood moved to dismiss with prejudice, claiming a second trial violated double jeopardy. The District Court denied the motion. Wood then petitioned for a writ of supervisory control.
The Supreme Court affirmed the District Court’s ruling. Reversal in Wood I was predicated on the lack of evidence proving the accountability theory and the Court held that any attempt to retry Wood under the accountability theory would violate double jeopardy. However, the Court determined retrial for deliberate homicide by direct liability did not violate double jeopardy. Wood I expressly and exclusively reviewed the sufficiency of the accountability evidence and only concerned the second element of accountability, which is unique to that theory. Thus, double jeopardy does not prohibit retrial for a previously asserted and undisturbed theory of liability when the initial conviction was reversed due to insufficient evidence of an alternative theory of guilt.
Points of Interest: accountability, double jeopardy, new trial
2025 MT 162
A District Court may refuse to transfer jurisdiction over a child custody case when there is no pending proceeding in the other state.
Mother and Father were parents of a minor child, A.V.R. In 2017, Father filed a Petition to Establish Parenting Plan with the Flathead County District Court. At the time, Father lived in Washington, while Mother and A.V.R. lived in Kalispell. In 2018, the final parenting plan determined that A.V.R. would remain with Mother. Father would gradually see his parenting time with A.V.R. increase, with plans for Father to eventually relocate to Kalispell. In March 2019, Father moved to amend parenting plan, requesting a long-distance parenting plan because he would be unable to move to Montana. Litigation continued without a final amended parenting plan until 2024, when Mother notified the court that she had relocated to North Carolina, successfully filed an action there seeking emergency custody of A.V.R., and asked a North Carolina court to accept jurisdiction. The District Court then issued an order requiring reunification therapy between A.V.R. and Father in Washington. After conferring with the Montana Judge, the North Carolina court dismissed the action in favor of the Montana court maintaining jurisdiction. The Montana court then issued an order reaffirming its continued jurisdiction. Mother appealed.
The Supreme Court affirmed. Because the North Carolina court had dismissed Mother’s pending action there and the Montana proceedings, started prior to any filing with a North Carolina court, remained pending, the District Court did not abuse its discretion by refusing to transfer jurisdiction. Absent a relevant action pending in North Carolina, the District Court retained exclusive, continuing jurisdiction.
Points of Interest: jurisdiction, UCCJEA, child custody
2025 MT 161
Where a landowner made it clear that they would not abide by restrictive covenants without a court order, a district court did not abuse its discretion by awarding attorney fees to a prevailing landowner in the resulting declaratory judgment action.
The Extremes purchased a home and land near St. Regis which contained a large shop that had historically been used for a sawmill accessory production business. The business had moved and the land was subdivided years prior to the Extremes’ purchase. As part of the subdivision process, the home/land became subject to restrictive covenants which, among other things, prohibited the use of the land for commercial purposes. After the Extremes moved in, they began violating numerous covenants, including starting a commercial towing and diesel repair business out of the shop. Sloway Cabin, LLC, who owned the other parcel of the subdivision, sent a letter to the Extremes informing them of the covenant violations, which they threw “directly in the trash.” Sloway thereafter filed a declaratory judgment action seeking to enjoin the Extremes from violating the restrictive covenants. Sloway prevailed and the District Court ordered the Extremes to pay Sloway’s attorney fees.
On appeal, the Supreme Court affirmed. In an action for a declaratory judgment, § 27-8-313, MCA, may provide a statutory basis for awarding attorney fees as supplemental relief, if such an award is determined to be necessary and proper and the equities support an award. The Extremes repeatedly made clear that they believed the covenants did not apply to them and they refused to stop violating them, making Sloway’s declaratory judgment action and court involvement the only way to stop the violations. Due to the Extremes’ conduct, the equities supported an award of attorney fees under the facts of this case.
Points of Interest: declaratory judgment, attorney fees, covenants
2025 MT 160
The available record supported the District Court’s ruling that the Board of County Commissioners abandoned a county road in 1916 based on a curative statute applicable at that time. The District Court properly considered the issue on a writ of review.
Sayers filed a complaint with the District Court in 2021, seeking a declaration that a disputed portion of Lippard Road is a public road. Chouteau County responded that the disputed portion was abandoned by the Board of County Commissioners and a writ of review was the proper avenue to determine the Board’s abandonment decision. Reviewing a stipulated record, the District Court concluded that the Board abandoned the disputed portion in 1916 because a curative statute addressed procedural deficiencies lacking in the record. Sayers appealed, arguing the Board’s determination lacked jurisdiction and the District Court erred in determining the case as a writ of review.
The Supreme Court affirmed. When determining whether a Board exceeded its jurisdiction in abandoning a county road, the proper avenue is a writ of review. The District Court properly conducted a limited review of the evidence in its findings of fact. The statutes governing the alleged road abandonment here were those in effect in 1915. The statutes required an appointment of viewers and a viewers’ report, and the record failed to evidence these requirements. But a curative statute then in effect addressed these deficiencies. The record supported the Board’s decision to abandon the disputed portion. Recent cases analyzing the statutory requirements for road abandonment were distinguishable given the lack of a curative statute in those cases and the amount of time (over 100 years) since the abandonment decision. The record is over 100 years old and, taken as a whole, supported the Board’s decision to abandon the portion of road that Sayers disputed.
Points of Interest: easements and roads, abandonment, declaratory judgment
2025 MT 159
Genuine dispute of material fact precluded summary judgment where one party, with a personal familiarity with the deceased’s signature, was qualified to testify as a lay witness against the other party’s proffered handwriting expert.
Before David Wolfe died, he drafted a will which purported to leave his property to his daughter Wendy. Wendy then moved onto the property. David’s brother, Philip, produced a notarized beneficiary deed purporting to convey the property to him upon David’s death. Wendy sued to quiet title, alleging Philip had obtained the deed through either fraud by forging David’s signature or through undue influence over David, who suffered a series of physical ailments during his final years which forced him to heavily rely on friends and family to meet his basic needs. In support of her first claim, Wendy submitted affidavits from other family members who claimed David was suspicious of Philip and adamant Wendy inherit his property. She also challenged the validity of David’s signature based on her own lifelong familiarity with David’s handwriting. Philip counter-claimed, presenting affidavits from other family members and neighbors attesting to David’s belief that Wendy should not inherit the property due to her drug use. Philip also presented an affidavit from the notary who witnessed David sign the deed and a report from a handwriting expert regarding the validity of David’s signature. The District Court granted summary judgment to Philip.
The Supreme Court reversed. Summary judgment is inappropriate when a genuine dispute of material facts exists. Wendy implicated several of the factors of undue influence beyond mere speculation. Furthermore, the trial court improperly weighed the evidence presented regarding the validity of David’s signature. Wendy was qualified to testify as a lay witness, and challenges to the sufficiency or credibility of her evidence were most appropriate for cross-examination, not summary judgment.
Points of Interest: estate law, summary judgment, witnesses
2025 MT 158
Guardian Tax Mt., LLC v. Tasey
Property owner substantially complied with the redemption statute when she mailed payment believing it would arrive before the statutory deadline. Strict technical compliance requirement does not apply to a property owner attempting to redeem their property.
Tasey stopped paying property taxes in 2017, believing she did not need to do so while her application for an elderly tax credit program was pending. In 2018, the county issued a tax lien against her property and set an August 2, 2021 deadline for redemption. Tasey mailed a personal check for the full amount of delinquent taxes on July 30, 2021, believing USPS would deliver the check by the deadline. The county did not receive or process the check until August 3, 2021. It rejected the payment and issued a tax deed to Guardian Tax. Guardian Tax then sued to quiet title and moved for summary judgment, which the district court granted.
The Supreme Court reversed. The strict compliance standard applies to a party seeking to obtain a tax deed, but the substantial compliance standard applies to the party seeking to redeem their property. Tasey substantially complied with the redemption statutes when she mailed the check with the good faith belief it would arrive before the deadline. Furthermore, there was no prejudice to Guardian Tax because the quiet title proceedings had not yet begun when the county received Tasey’s payment.
Points of Interest: tax law, redemption, tax deeds
2025 MT 156
Supreme Court remanded matter to District Court with instructions to explain its reasoning where the court granted a motion to dismiss without specifying the grounds for its ruling.
An out‑of‑state divorce proceeding and amendment to a parenting plan went sour, and Del Duca (the father) filed a suit in Montana alleging Skydancer (the mother) intentionally and negligently inflicted emotional distress against him. Skydancer moved to dismiss. Subsequently, Del Duca filed for leave to amend his complaint. District Court granted the motion to dismiss and denied the motion to amend, but did not provide any findings of fact or conclusions of law.
On appeal, Del Duca raised several issues, including arguing that the District Court erred in failing to explain its reasoning in granting Skydancer’s motion to dismiss.
The Supreme Court remanded the case to the District Court to explain its reasoning. The Court relied on M. R. Civ. P. 52(a)(3), which requires that courts, when ruling on a motion under M. R. Civ. P. 12 or 56, to specify grounds for its rulings “with sufficient particularity as to apprise the parties and any appellate court of the rationale underlying the ruling.” Furthermore, the District Court’s failure to specify its grounds for granting the motion to dismiss left the Court unable to determine if the court abused its discretion in denying Del Duca’s motion for leave to amend his complaint.
Points of Interest: dismissal, abuse of discretion, Rule 52
2025 MT 155
A restrictive covenant prohibiting commercial use of property and mandating “residential country living” unambiguously prohibited using a property for short-term rental operations.
R&R purchased a home on five acres in a subdivision subject to restrictive covenants near Whitefish with the intent of using the property for short-term vacation rentals. The subdivision’s restrictive covenants prohibited commercial activity, with limited exceptions for agricultural purposes, and required properties to be used for “country residential purposes.” Brandt and other neighbors sued to stop R&R’s short-term rental operations. The District Court granted summary judgment to Brandt, concluding short-term rentals violated the covenants. However, the court denied Brandt’s request for attorney fees.
The Supreme Court affirmed. Distinguishing this case from Craig Tracts Homeowner’s Ass’n, Inc. v. Brown Drake, LLC, 2020 MT 305, which considered “residential use” an ambiguous term, the Court reasoned that reading the commercial prohibition together with the residential living covenant showed a clear intent to prohibit short-term rentals. The commercial operation of a short-term rental was more akin to an apartment, which the covenants specifically prohibited. The property’s paying guests were not “living” on the property within the meaning of “country residential living.” The Court also affirmed the District Court’s denial of attorney fees, reasoning that assessing such fees against a party who litigated potentially ambiguous covenants would be unfair.
Points of Interest: covenants, attorney fees, contracts
2025 MT 150
After a jury invalidated a deed and awarded damages, the District Court properly exercised its equitable powers when it rescinded the sales contract and vacated the damages award.
In 2020, Helviks signed an agreement to sell their family ranch to Tuscanos for $500,000, to be paid in $25,000 instalments twice yearly until paid off. The Agreement reserved a life estate for Helviks and required Tuscanos to assist Helviks with end-of-life issues. Tuscanos had Helviks sign what Helviks believed was a quitclaim deed but was actually a gift deed transferring the ranch without consideration. Tuscanos then used the gift deed to obtain a $402,206 mortgage on the property but never made payments to Helviks. Helviks contacted Conner, their stepdaughter, who assisted Helviks in bringing their suit, and Tuscanos filed a third-party complaint against Conner.
After a jury invalidated the gift deed, found Tuscanos had breached their agreement with Helviks, and awarded damages, the District Court rescinded the agreement, vacated the damages award, and quieted title in Helviks’ favor. The court also granted summary judgment in Conner’s favor because Tuscanos had not alleged damages on their tortious interference claim against her.
On appeal, Tuscanos argued the District Court erred by rescinding the agreement pursuant to its equitable powers because the jury had found that there were adequate remedies at law. Tuscanos further argued the District Court erred by granting summary judgment to Conner because its ruling was based on finding there was no contract.
The Supreme Court affirmed. The agreement constituted a grantor-support agreement because it conveyed the property to Tuscanos in exchange for future support and maintenance. The law permitted the rescission of a grantor-support agreement at equity based on non-performance. The District Court properly granted summary judgment on the tortious interference claim because Tuscanos failed to allege damages resulting from Conner’s alleged interference.
Points of Interest: equity, remedies, contracts
2025 MT 149
Court did not abuse its discretion by approving settlement agreements entered into by an Estate’s Special Administrator because the terms of the agreements were reasonable and in the best interests of the Estate and its beneficiaries.
Ian Elliot, representing himself, had initiated extensive litigation concerning the estate of his mother and the management and dissolution of a partnership in which they were involved. When Ian died in 2021, some litigation remained pending. The probate court appointed a Special Administrator to act on behalf of Ian’s Estate. Citing the complexity, likely expense, and dubious merit of the claims in the pending actions, the Special Administrator petitioned the District Court to approve settlement agreements as to all the claims. Three beneficiaries of Ian’s Estate objected to settling the claims. After a hearing where the court heard testimony from the objectors, other beneficiaries who supported the settlements, and the Special Administrator, the court approved the settlement agreements.
The Objectors, proceeding pro se, argued the probate court did not have subject matter jurisdiction to approve the settlement of claims proceeding in courts of general jurisdiction. The Objectors also argued the approval of the agreements cannot be effective because the agreements arose from “illegal” conduct. The Special Administrator argued he acted in accordance with statutorily granted powers.
The Supreme Court affirmed. The District Court sitting in probate had subject matter jurisdiction to approve the settlement agreements. The probate court correctly analyzed the agreements’ reasonableness by applying the factors used in a class action proceeding. Although Ian may have desired to prosecute his cases, his intent does not control whether the Special Administrator, who is duty bound to act in the best interest of all the beneficiaries and the Estate, has the power to settle claims pursued by and against the Estate.
Points of Interest: probate, subject matter jurisdiction, settlement agreements
2025 MT 148
Stephenson v. Lone Peak Preserve, LLC
A preliminary injunction that enjoined a property owner from placing objects over disputed alleged easements persevered the status quo and was not an abuse of discretion.
Stephenson and Lone Peak own adjacent properties. Lone Peak currently crosses Stephenson’s property to access its own property. Stephenson filed claims disputing the easement’s validity and alleging trespass. Lone Peak counterclaimed alleging valid easements over the property, trespass, and interference with the easements. Stephenson then began placing various objects within the disputed areas on his property. Lone Peak filed a motion for a preliminary injunction requesting the court to enjoin Stephenson from installing more structures and to require that he remove the existing obstructions. Following an evidentiary hearing, the District Court granted Lone Peak’s motion for a preliminary injunction. Applying the four factors of a preliminary injunction analysis, it reasoned that Lone Peak had shown a prima facie case that two easements existed over Stephenson’s property and that he had unreasonably interfered with them. Stephenson appealed, arguing in part that the injunction failed to preserve the status quo.
The Supreme Court affirmed. Preliminary injunctions are meant to preserve the status quo until a resolution on the merits. The status quo is the last peaceable condition that preceded the pending controversy. Here, that was Lone Peak’s use of the disputed areas without structures installed by Stephenson after litigation commenced. Although the injunction required that Stephenson take action, it was not a mandatory injunction as contemplated in Mercer v. Department of Public Health and Human Services. The District Court did not manifestly abuse its discretion in granting the preliminary injunction. Ample evidence, including the certificates of survey, the warranty deeds and a 2013 Easement Agreement signed by Stephenson, supported its findings. Additional evidence supported the court’s findings that Stephenson’s actions precluded Lone Peak’s guests from accessing the property and presented concerns for emergency vehicle access. The court properly applied each factor and did not misapprehend the effect of the evidence.
Points of Interest: property, preliminary injunction, status quo
2025 MT 147
Drawings made by the complaining witnesses during their pretrial forensic interviews were not testimonial in nature and could be reviewed by the jury during deliberations because they lacked intelligible communicative content. Any error in allowing the jury to review the testimonial drawings made during trial was harmless.
Walks was charged with committing sexual offenses against two children. The victims drew rudimentary pictures depicting the incidents during their pretrial forensic interviews. During their trial testimony, the victims were unable to recall much of what they had disclosed. K.P. remembered one incident, and she drew a circle on an anatomical diagram to identify where she was touched. When asked what touched her, she drew a hand, which she orally identified as belonging to Walks. Excerpts of the recorded forensic interviews and the pre-trial drawings were introduced through the interviewing counselor’s testimony. Walks objected to giving the jury unrestricted access to the drawings during deliberations, arguing the drawings were testimonial in nature. The District Court allowed the drawings to be taken into the jury room pursuant to § 46‑16‑504, MCA.
The Supreme Court affirmed. The forensic interview drawings were not testimonial because they lacked appreciable recorded communications, and without the accompanying testimony, the drawings themselves did not clearly identify Walks as the perpetrator or communicate what crimes were committed. The forensic interview drawings were simple and ambiguous; one consisted of a few boxes and circles. Unlike the police body camera footage analyzed in prior decisions, the forensic interview drawings lacked independent testimonial characteristics. Although the State conceded the trial drawings were testimonial, the error of allowing the jury access to those drawings was harmless because the interview recordings and testimony at trial were sufficiently compelling such that there was no reasonable possibility the error contributed to Walks’ conviction.
Points of Interest: sexual offenses, evidence, harmless error
2025 MT 146
The probate court lacked subject matter jurisdiction to adjudicate equitable claims of ownership over real property held by a decedent’s estate.
Rosemary Colver executed the Land Trust, naming her five children as beneficiaries and two of them as co-trustees. In 2010, Rosemary and her husband, Richard, purchased land in Sanders County as a joint tenants. Richard later conveyed his interest to Rosemary. Rosemary died testate in 2017. The Sanders County Property was distributed in accordance with her Will, and the Estate was closed in 2018. In 2023, Rosemary’s daughter, Gretchen, petitioned to reopen probate to correct what she alleged was an erroneous distribution of the Sanders County Property. Gretchen argued Rosemary’s Will devised a life estate interest in the property to Gretchen, which was omitted in the deed of distribution.
In response, the Land Trust filed a separate petition, arguing that Gretchen could not have a life estate in the Sanders County Property because the Land Trust was the equitable owner. According to the Land Trust, Rosemary used a loan from the trust to buy Richard’s interest, and Rosemary agreed to transfer the property to the Land Trust during her lifetime to repay the loan. Because Rosemary never transferred the property, the Land Trust requested the probate court determine the Land Trust owned the Sanders County Property and impose a constructive trust on the Estate. The probate court ruled that the Land Trust did not own the property and that Gretchen had a valid life estate interest.
The Supreme Court reversed and remanded for dismissal of the Land Trust’s petition. The probate court lacked subject matter jurisdiction to adjudicate the Land Trust’s claim because the Land Trust sought to enforce Rosemary’s alleged promise to transfer the property during her lifetime, which was an equitable ownership claim and not a creditor claim. The Court affirmed the probate court’s ruling that validated Gretchen’s life estate interest because the Will unambiguously established a life estate in favor of Gretchen.
Points of Interest: probate, subject matter jurisdiction, property
2025 MT 145
No ineffective assistance of counsel where defendant could not show that counsel’s failure to investigate a potential witness prejudiced the outcome.
Post conviction, Ragner alleged his trial counsel gave constitutionally ineffective assistance because he failed to interview a potential witness. Ragner had visited this witness the day after having sexual intercourse with a highly intoxicated victim, and the witness observed markings on Ragner that could have supported Ragner’s claim that sex was consensual. The District Court concluded counsel’s failure to interview the witness constituted ineffective assistance of counsel and granted post-conviction relief.
The Supreme Court disagreed, holding that Ragner failed to show prejudice under Strickland. While counsel’s performance was unreasonable, counsel’s conduct was not prejudicial because the witness’s testimony would not reasonably have led to a different trial outcome in light of overwhelming State’s evidence of non-consent.
Points of Interest: ineffective assistance of counsel, prejudice, postconviction relief
2025 MT 144
Defendant was not prejudiced by trial court’s erroneous refusal to admit evidence of victim’s propensity for violence for the purpose of showing he was likely the initial aggressor.
Donahue was charged with assault with weapon after pulling a gun on Joshlin in a bar. Joshlin testified Donahue “snapped” and pulled a gun on him after being told he could not continue the evening’s festivities with Joshlin and his friends. Donahue testified he pulled his gun on Joshlin after Joshlin threatened to kill him. Donahue sought to admit evidence of Joshlin’s posturing to law enforcement about being a fighter, which the District Court did not allow because Donahue did not know about Joshlin’s violent character prior to the altercation.
On appeal, Donahue clarified he wanted to offer the evidence not to show that he acted reasonably, but to show Joshlin was likely the initial aggressor. The Supreme Court affirmed for a different reason. The Court discussed case law showing there are two different purposes for offering evidence of the victim’s propensity for violence. It then cautioned attorneys and parties to carefully distinguish the purpose for which they hope to introduce the evidence. In this case, the trial court erred in not admitting this evidence after Donahue laid a sufficient foundation by introducing conflicting evidence of who was the initial aggressor in the confrontation. However, the error was not prejudicial and did not warrant reversal because Donahue presented other evidence introducing the same facts.
Points of Interest: criminal law, evidence, harmless error
2025 MT 143
A private dispute within a private residence does not constitute disorderly conduct if it does not spill out into the public sphere where it might “disturb the peace.”
After drinking and arguing all evening, Baertsch kicked in the front door of his girlfriend’s house and called her offensive names while inside. The State charged Baertsch with burglary for unlawfully entering the home and committing the offense of disorderly conduct therein. The charged variant of disorderly conduct alleged that Baertsch “disturbed the peace” by using “threatening, profane, or abusive language” while inside after kicking in the door.
Baertsch appealed his burglary conviction on the grounds that the State failed to prove he committed disorderly conduct without evidence that he disturbed the public peace. The Supreme Court agreed and vacated the burglary conviction. Although the State proved that Baertsch used “threatening, profane, or abusive language” inside his girlfriend’s home, it failed to offer any evidence that using that language disturbed the peace. Disorderly conduct must cause or have the realistic potential to cause disruption of the public order. A private dispute in a private residence that does not spill out into the public sphere cannot “disturb the peace” under the disorderly conduct statute.
Points of Interest: criminal law, charges, elements of offense
2025 MT 142
Section § 45-5-625(4)(a), MCA (2021), carries a mandatory sentencing enhancement in situations where the child victim is 12 years of age or younger. However, when the “victim” is an adult undercover officer posing as a child, there is no child victim and the sentencing enhancement does not apply.
Schultz plead guilty to one count of Attempted Sexual Abuse of Children under § 45-5-625(1)(h), MCA (2021). Schultz had met a homeland security undercover agent posing as an adult woman online who was offering a 12-year-old girl and a 14-year-old girl for sexual services. When he arrived at the hotel according to the plans he had made, law enforcement arrested him. He moved to strike the sentencing enhancement on the basis that, in the absence of an actual “victim” under the age of 14, the enhancement did not apply. The District Court disagreed and applied the enhancement to Schultz’s sentence.
The Supreme Court reversed and remanded for resentencing. Because the Legislature used different language in different parts of § 45-5-625, MCA, including distinguishing “a child” in proscribing certain conduct and “a victim” in outlining the penalties for that conduct, the Legislature intended different effects of the language. The ordinary meaning of “victim” refers to one “who has been harmed,” which does not apply when the “victim” is a fictional or simulated person. Accordingly, the Legislature did not intend for the sentencing enhancement provided for in § 45-5-625(4)(a), MCA (2021), to apply in situations with a fictional victim.
Points of Interest: sentencing, sentence enhancements, sexual offenses
2025 MT 140
Kratzer v. Hardy Construction Co.
When bound by a valid contract, a proposed modification of the contract does not on its own constitute a waiver of those terms. If no modification is agreed to, the original contract terms remain in effect.
Kratzer and Hardy entered into a subcontract, whereby Kratzer would complete work for Hardy’s project, and payment would become payable 30 days after Hardy received final payment for the project. The subcontract’s original terms specified that, prior to final payment, Kratzer must submit signed releases and waivers from all of his subcontractors. Kratzer’s work took longer than expected and Hardy disputed some requested change orders on the final pay application. Hardy responded that, if Kratzer signed a release and waiver, it would pay Kratzer $81,153 and the subcontract would be complete. The subcontract had no requirement for Kratzer to submit a final release himself. Hardy received final payment for the project, and over 30 days passed. Kratzer did not agree to sign a release and demanded payment plus interest for the delay in payment. Hardy argued that payment was not due because the subcontract contained a condition precedent to payment, namely that Kratzer must submit signed releases from all of his subcontractors, which he had not done. Both parties moved for summary judgment.
The District Court granted Kratzer’s motion, ruling that Hardy waived the condition precedent when it requested a signed release from Kratzer which the subcontract did not require, and final payment was therefore late. The court awarded Kratzer the total price plus interest. Hardy appealed.
The Supreme Court reversed, holding that the payment provision specified that payment would become payable 30 days after Hardy received payment for the project, but payment was only due upon completion of the unambiguous condition precedent. By unsuccessfully proposing a modification whereby Kratzer could submit his own signed release, Hardy did not waive the original requirements of the subcontract. Therefore, Hardy was only required to perform, by tendering payment, once Kratzer completed the remaining condition precedent.
Points of Interest: contracts
2025 MT 139
District Court did not err when it declined to treat Mother’s questions about transferring custody proceedings to tribal court as a motion to transfer under MICWA.
At a youth in need of care adjudicatory hearing, Mother asked the District Court “how” she could transfer her case “to the Rez.” The court and Department counsel advised that she could have her attorney file a motion to initiate transfer to tribal court, but that the process was not automatic and required the tribal court’s acceptance of jurisdiction. Mother never moved to transfer her case to tribal court and neither did the child’s tribe.
On appeal, Mother claimed the District Court erroneously failed to treat her question as a request to transfer and then failed to immediately transfer proceedings to tribal court. The Supreme Court described § 41-3-1310, MCA, Montana’s ICWA, which sets out the procedure for transfer to tribal court jurisdiction when the Indian child does not reside on the child’s tribe’s reservation. Section 41-3-1310, MCA, requires a state court to initiate transfer upon motion of the parent or child’s tribe, and then provides for parental or “good cause” objections to transfer and the opportunity to be heard on those objections. Finally, the state court retains concurrent jurisdiction to adjudicate all but a final decision in the custody proceedings until the tribal court formally accepts jurisdiction. Mother’s question about how to transfer her case was not a formal or informal motion to transfer, and therefore the District Court did not err in declining to treat it as such.
Points of Interest: MICWA/ICWA, dependent neglect, jurisdiction
2025 MT 138
District Court erred by not advising defendant of his rights and permitting withdrawal of guilty plea after it rejected his § 46-12-211(1)(b), MCA, binding plea agreement.
Warr initially pleaded guilty to felony assault on a peace officer pursuant to a § 46-12-211(1)(b), MCA, binding plea agreement. The agreement also provided that the mental impairment exception to the mandatory minimum sentence would apply. At sentencing, the District Court rejected the plea agreement and permitted the defendant to withdraw his plea pursuant to § 46-12-211(4), MCA. The defendant later re-entered a guilty plea under the same agreement. However, at sentencing, after rejecting the plea agreement and application of the mental impairment exception, the District Court did not permit the defendant to withdraw his plea.
On appeal, the Supreme Court held that the District Court correctly concluded the mental impairment exception did not apply due to Warr’s voluntarily intoxicated state at the time of the offense. However, the District Court failed to advise the defendant of his right to withdraw his prior plea and permit withdrawal upon rejecting the binding plea agreement under § 46-12-211(4), MCA. The requirements of § 46-12-211(4), MCA, apply each time a sentencing court rejects a § 46-12-211(1)(a) or (b), MCA, plea agreement.
Points of Interest: plea agreements, sentencing, withdrawal of plea
2025 MT 137
Upper Missouri Waterkeeper v. DNRC
District Court abused its discretion in denying attorney fees under UDJA where the equities in all except one of the non-exclusive factors tests favored the prevailing litigant.
A ranch applied to create a subdivision in Broadwater County. With the application for each phase of the development, it submitted a “predetermination letter” DNRC stating that the appropriation met the legal requirements for filing of an exempt water right. Upper Missouri Waterkeeper and seven county residents sued Broadwater County and DNRC alleging the defendants violated the Subdivision and Platting Act and requesting declaratory judgment for DNRC’s misinterpretation of the Water Use Act. The District Court granted Upper Missouri partial summary judgment, finding violations of both subdivision and water permitting laws. Upper Missouri requested attorney fees under the WUA, the UDJA, and the Private Attorney General Doctrine. The court denied the fees request; Upper Missouri appealed.
On appeal, Upper Missouri argued it was entitled to fees because the predetermination letters constituted a final decision under the WUA’s attorney fees provision. The Supreme Court held that because DNRC issued the letters as part of the subdivision review process—not as part of a water rights permitting process—Upper Missouri was not entitled to fees under the WUA.
Considering fees under the UDJA, the Court noted the District Court’s finding that the equities supported an award because Upper Missouri was not similarly situated to a state agency, county government, and local ranch. Despite determining that equities weighed strongly in favor of an award, the court denied fees under a single factor—possession—of the non-exclusive factors test. After concluding the other factors favored an award, the Court held that DNRC did not need to possess a tangible object the plaintiffs desired for the possession factor to weigh in Upper Missouri’s favor and concluded the District Court abused its discretion in denying fees because the equities and all non-exclusive factors weighed in favor of an award.
Points of Interest: attorney fees, UDJA, abuse of discretion
2025 MT 136
District Court did not err when it determined that a defendant was not entitled to credit for time served at Recovery Centers of Montana because the defendant was not ordered to attend treatment at RCM as required by § 46-18-403(1)(b), MCA.
Welzel was charged with Assault with a Weapon; at his change-of-plea hearing, the parties stipulated to his release pending sentencing because Welzel had a bed date at RCM to start substance use treatment. The District Court ordered Welzel be released on his own recognizance, the Order Setting Bail and Conditions of Release required him to reside either at his father’s house or at RCM. Welzel then attended treatment at RCM for 30 days. At sentencing, Welzel received some credit for time served, but it did not include his time in RCM.
On appeal, Welzel argued the time he spent at RCM constituted time spent in a residential treatment facility under the order of a court pursuant to § 46-18-403(1)(b), MCA, and he was thus entitled to credit for that period. The State argued he was not under the order of the court because the Order Setting Bail and Conditions of Release did not require him to attend treatment.
The Supreme Court affirmed, holding that Welzel was not under the order of the court to attend treatment at RCM. The District Court did not order Welzel to attend treatment, nor did it require him to reside at RCM or impose consequences for failure to do so.
Points of Interest: sentencing, credit for time served, conditions of release
2025 MT 134
District Court did not have subject matter jurisdiction to hear an interlocutory appeal of a case already dismissed by the Montana Tax Appeals Board.
Hawkins appealed a county tax board decision affirming the valuation of property to the Montana Tax Appeals Board. While that decision was pending, Hawkins brought an interlocutory appeal to the District Court, which dismissed the appeal because the property at issue was owned by a trust and not represented by a lawyer. MTAB ordered Hawkins to prove she was a trustee of the trust or it would dismiss the case. Hawkins provided no proof and instead filed an affidavit alleging MTAB was biased and should recuse. MTAB then dismissed the case, finding the affidavit baseless. The District Court granted Hawkins’s motion to substitute herself for the trust in the interlocutory appeal. MTAB then moved to dismiss, arguing the District Court was deprived of subject matter jurisdiction for the interlocutory appeal because the underlying tax appeal had been dismissed. The District Court agreed and dismissed the case. Hawkins appealed.
The Supreme Court affirmed. MTAB has authority to rule on affidavits alleging bias and it did so here. Furthermore, the affidavit was baseless. Because MTAB was not disqualified from hearing the case, it had the ability to dismiss Hawkins’s appeal. Thus, when the District Court accepted Hawkins’s interlocutory appeal, there was no underlying case and the District Court did not have a statutory basis to review Hawkins’s issues. The District Court properly dismissed Hawkins’s appeal for lack of subject matter jurisdiction.
Points of Interest: administrative law, subject matter jurisdiction, self representation
2025 MT 133
Defendant’s due process rights were not violated when a District Court permitted the State to read a victim impact statement at sentencing that contained no factual assertions Defendant alleged were false.
Jacob was charged with Felony Indecent Exposure in connection with exposing himself to a minor. In January, Jacob executed a plea agreement agreeing to an Alford plea in exchange for a 10-year sentence with 6 years suspended. However, he later rejected the plea agreement at the change-of-plea hearing. In March, Jacob entered an Alford plea under a new agreement where the State agreed not to seek more than 20 years. At sentencing, the State requested to read a victim impact statement from the victim’s father. Jacob objected, claiming he had not received a copy. The District Court permitted the statement to be read over Jacob’s objections. The statement included the effects the crime had on the victim’s father’s life as well as his speculation about what might have happened to his daughter if she had not fled from Jacob. The District Court sentenced Jacob to 15 years at MSP and required him to complete sex offender treatment before parole eligibility.
The Supreme Court affirmed, holding that due process protects a defendant against a sentence predicated on misinformation but does not prevent the expression of non-fact opinions or facts the defendant does not contend are false. The father’s statements did not contain any factual assertions that amounted to misinformation because Jacob did not allege the father had lied about the effect on his life and the father’s speculations about what might have happened were not facts.
Points of Interest: due process, sentencing
2025 MT 132
Defendant’s absence from in-chambers discussion regarding newly discovered evidence was error, but error was harmless where he was later informed about discussions, ratified a trial continuance, and the evidence was not admitted at trial.
Prior to trial, evidence came to light that Foster had made certain incriminating admissions to a jail cellmate. Counsel for the parties discussed this evidence in-chambers, without Foster present. The court granted a continuance for further investigation, which Foster ratified. The State did not present this evidence at trial. On appeal, Foster claimed this discussion outside his presence violated his federal and state constitutional rights.
The Supreme Court agreed that the in-chambers meeting was a critical phase of the proceedings and it was error for the defendant to not be present. However, it was not reversible error because Foster was immediately informed of the discussions, he ratified the resulting trial continuance, and the evidence was never admitted at trial.
Points of Interest: right of presence, harmless error
2025 MT 131
In re Grandparent-Grandchild Visitation of A.L.U.
A district court did not err in determining the presumption in favor of the fit adoptive parents’ wishes for a grandchild to have no contact with her grandmother had been rebutted where hearing testimony revealed that the reasons for denying contact were pretextual.
A.L.U. was two when her father murdered her mother and was sent to prison. The Department placed A.L.U. with her paternal grandparents, the Uhrichs, who eventually adopted her. Prior to adoption, A.L.U. was visiting her maternal grandmother, Sharline, weekly. After adopting A.L.U., the Uhrichs abruptly cut off all contact between A.L.U. and Sharline. Sharline petitioned for grandparent-grandchild visitation. All parties agreed the Uhrichs were fit parents pursuant to § 40-9-102(2), MCA, and therefore a presumption in favor of their wishes for A.L.U. to not see Sharline attached under § 40-9-102(4), MCA. The District Court received a GAL report and took the testimony of 13 witnesses at a hearing before determining the presumption in favor of the Uhrichs’ wishes had been rebutted and granted Sharline’s petition for visitation.
On appeal, the Supreme Court affirmed. Although the Uhrichs were fit parents and entitled to a presumption in favor of their wishes, the testimony at the hearing revealed their reasons for denying A.L.U. contact were pretextual—“unreliable hearsay, irrelevant as to alleged conduct many years in the past, and based on obvious personal grudges.” The District Court correctly determined, by clear and convincing evidence, the presumption in favor of the Uhrichs had been rebutted and contact with Sharline was in A.L.U.’s best interest.
Points of Interest: family law, grandparents’ rights, weight of evidence
2025 MT 130
When a workers’ compensation insurer pays all the benefits claimed without reservation of rights, a claimant lacks standing to appeal the benefit determination. However, a statutory penalty is required when calculations of benefits are unreasonable and delays the injured worker’s receipt of correct benefits.
On November 11, 2022, Perea suffered a knee injury while working at Truss Works, Inc. Following his injury, Perea continued working at a second job, Life in Bloom, and later took a third job at The Block. AmTrust, the workers’ compensation insurer, accepted Perea’s claim but disputes arose over the calculation of Perea’s benefits. Perea petitioned the Workers Compensation Court arguing that AmTrust miscalculated his Average Weekly Wage for Temporary Total Disability and Temporary Partial Disability benefits, failed to include wages from Life in Bloom during certain periods, and improperly applied statutory limitations. AmTrust paid Perea the full amount of benefits he claimed but reserved the right to seek recoupment. The WCC denied cross-motions for summary judgment, established compensation rates for three distinct periods, and rejected Perea’s claims for penalties, attorney’s fees, and costs, citing the novelty of the legal issues.
On appeal the Supreme Court reversed and remanded. The Court held that Perea lacked standing to raise all but his penalty argument because AmTrust’s argument on appeal that he lacked standing indicated it had waived its reservation of rights. This waiver meant that Perea had been paid in full under his own calculations, removing any controversy from the case. Section 39-71-2907, MCA, permits the WCC to assess a penalty against an insurer where the insurer unreasonably delays or denies payment. Because AmTrust’s calculations of Perea’s TTD benefits for Period #3 were unreasonable and delayed Perea from receiving his correct benefits, Perea was entitled to a penalty pursuant to § 39-71-2907, MCA.
Points of Interest: workers’ compensation, sanctions, standing
2025 MT 129
Particularized suspicion justifying an investigative stop can, when combined with an officer’s training and experience, be justified by a driver making a wide turn onto a highway, inconsistent speeds, weaving within the lane, the presence of bars in the area, and the time of day. The trial court was best positioned to assess the officer’s credibility against alleged discrepancies in the dashcam footage.
Corporal Richter observed Matthews make a slow, wide turn onto a road. Matthews proceeded to swerve within the lane, nearly strayed into the path of an oncoming vehicle, drove unusually slow before accelerating, and otherwise failed to maintain speed in an area near several bars at approximately 10:30 PM. Richter initiated a traffic stop and cited Matthews for driving under the influence. Matthews argued the dash cam footage from Ricthter’s police car contradicted his claims. The trial court disagreed, and found Richter’s testimony explaining her particularized suspicion was not undermined by perceived discrepancies in the video evidence.
The Supreme Court affirmed. Deferring to the trial court’s fact-finding role to weigh the credibility of Richter’s testimony against any perceived discrepancies in the video, the Court found no clear error in the trial court’s factual findings. While reasonable minds may disagree as to whether Matthew’s driving fell within the scope of acceptable driving behavior, for others it may reveal obvious impairment. Thus, the testimony of Richter, trained in impaired driving behavior and the officer who initiated the stop, proved persuasive in interpreting the behaviors in the dashcam footage.
Points of Interest: Terry stop, particularized suspicion, credibility
2025 MT 126
District Court abused its discretion by dismissing a complaint without imposing sanctions because the motion to voluntarily dismiss was made on the eve of trial and the defense had extensively prepared. District Court did not abuse its discretion by denying the Estate’s request for treble damages under the Montana Consumer Protection Act because the jury award sufficiently vindicate the statute’s purpose.
Reilly entered into a contract to purchase the home of Harris, a developmentally disabled adult, for $84,000 less than the appraised value. Upon Harris’s death, Reilly sued Harris’s Estate for specific performance. The Friday before trial, Reilly moved to voluntarily dismiss his complaint. In the motion, Reilly represented that the Estate did not object to his motion. The District Court granted the motion, but that evening the Estate filed an objection, noting it had received Reilly’s motion that day.
After trial on the Estate’s counterclaims, the jury awarded $28,900 in compensatory damages and $45,000 in punitive damages. The Estate requested treble damages under the Montana Consumer Protection Act, but the District Court ruled the Estate lacked standing to bring a CPA claim because it had not proven that Reilly was a consumer in the real estate transaction and treble damages were not necessary to effectuate the CPA’s purpose.
On appeal, the Supreme Court affirmed in part and reversed in part. The District Court abused its discretion in dismissing Reilly’s complaint without imposing sanctions because it failed to consider the late timing of the dismissal and the Estate’s extensive preparation in defending against the complaint. Although the CPA’s consumer requirement was not jurisdictional, the District Court did not abuse its discretion in denying treble damages and attorney fees under the CPA because the jury award of damages was sufficient to further the CPA’s purposes.
Points of Interest: sanctions, abuse of discretion, consumer protection
2025 MT 125
Trial court’s evidentiary rulings in class action suit did not constitute abuse of discretion or affect former University students’ substantial rights to a fair trial.
Former University of Montana students brought class action claims against the University for its handling of student loan reimbursement payments. Students alleged the University’s contract with a third party to issue reimbursements violated the University’s fiduciary duty to Students; violated Students’ right to privacy; and unjustly enriched the University.
After a jury verdict in the University’s favor, Students appealed several rulings related to their breach of fiduciary duty claim. Based on the class definition, the Montana Supreme Court first held the trial court did not err in allowing the University to present evidence or argument about Students’ careless banking practices. Students further argued the University’s expert impermissibly testified to improper legal conclusions. The Court held the expert focused on the University’s compliance with federal regulations and broadly testified it met the standard of care at the time. Relying in part on the trial court’s jury instructions, which did not instruct on the federal regulations, the Court held the testimony did not go to whether the University violated its fiduciary duty to Students—the ultimate issue of law in the case.
Students contended that when the University argued to the jury that it did “nothing illegal,” it prejudiced Students’ right to a fair trial. However, the trial court’s orders in limine did not prohibit the University from making this argument, nor did the University introduce prohibited facts or rely on personal experience to testify to a party’s credibility, which could have warranted reversal. The University’s closing argument therefore did not prejudice Students’ right to a fair trial.
Last, Students argued that admission of a chart comparing Higher One’s fees to those of other banks affected their substantial rights. Because the trial court admitted other evidence establishing the same facts and the chart played an insignificant role in the University’s case, admission of the chart did not affect Students’ substantial rights.
Points of Interest: class action, jury instructions, fiduciary duties
2025 MT 124
California’s DUI statute is sufficiently similar to Montana’s DUI statute to support a felony DUI charge because the “place of offense” element in California’s DUI statute is sufficiently similar to that in Montana law.
Lapointe was arrested for DUI after failing field sobriety tests and a breathalyzer test indicated a BAC of .203. After conducting a records check, the State determined Lapointe had several prior DUI convictions in California. Based on this, the State charged Lapointe with Felony Driving Under the Influence of Alcohol (fourth or subsequent offense) in violation of §§ 61-8-401(a) and -731(1), MCA (2019).
Lapointe moved to dismiss the felony charge, arguing that California’s DUI statute, California Vehicle Code § 23152, was not sufficiently similar to § 61-8-401(a), MCA (2019), as required by § 61-8-734, MCA (2019), so his California convictions should not count as prior convictions. Lapointe argued that because a person can be convicted under California Vehicle Code § 23152 of DUI for driving under the influence of alcohol on restricted access private property, but that same conduct would not result in a conviction under § 61-8-401(a), MCA, the statutes were not sufficiently similar. The District Court denied Lapointe’s motion, determining the statutes were sufficiently similar to support the enhancement.
The Supreme Court affirmed, holding the similarity requirement of § 61-8-734, MCA (2019), does not require the relevant offenses to be identical. Although California’s statute applies more broadly to private property, the vast majority of California convictions would have resulted in convictions under Montana law, rendering the place of offense elements sufficiently similar to support a felony enhancement.
Points of Interest: DUI, sentence enhancements, statutory interpretation
2025 MT 123
Evasive driving, irregular parking, an attempt to leave upon law enforcement’s arrival, and the officer’s observation of a lighter strike from within the vehicle provided sufficient particularized suspicion for a Terry stop.
Detective Holzer had been looking for a Volkswagen since it was stopped by Border Patrol. The Volkswagen was observed leaving a gas station before pulling abruptly into another gas station and parking before returning to the highway again and making a serious of odd turns. Upon observing a lighter strike, Holzer initiated a stop, and when the driver rolled down the window Holzer smelt burnt methamphetamine and marijuana. Holzer called for a canine unit, which alerted to the presence of drugs in the vehicle.
Herzog moved to suppress, arguing Holzer lacked sufficiently particularized suspicion to initiate the stop. The District Court denied Herzog’s motion, determining that Holzer’s particularized suspicion for making contact was that the Volkswagen’s occupants were in possession of dangerous drugs.
The Court affirmed the District Court’s denial of the motion to suppress on state and federal constitutional grounds, holding that under the totality of the circumstances, including evasive driving, irregular parking, and attempted departure upon the Detectives arrival, combined with the Detectives observation of a lighter spark, provided sufficient particularized suspicion to justify the Terry stop.
Points of Interest: particularized suspicion, suppression, Terry stop
2025 MT 122
Although the District Court correctly found particularized suspicion existed to expand a traffic stop into a drug investigation because the detective had specific knowledge about drug activity at Hunt’s apartment and observed her vehicle there shortly before the stop, the court erred by allowing the State’s rebuttal witness to testify about Hunt’s prior bad acts when the defense did not open the door.
A detective observed a sedan with no license plates parked outside of an apartment. The detective testified that, prior to this time, he received information about drug-related activities occurring at the apartment.
A short time later, the detective initiated a traffic stop the vehicle for driving without license plates. The detective observed that Hunt, the driver, seemed to be in a hurry, her eyes were red and glassy, and she gave inconsistent statements. The detective searched the vehicle with Hunt’s consent, but after he opened her purse and saw a square package, she withdrew her consent. The detective called for a canine unit and drugs were found in the package.
The District Court denied Hunt’s motion to suppress the drugs. At trial, the State asked Hunt on cross-examination whether she had sold drugs before, and Hunt answered no. Over Hunt’s objection, the court allowed the State to call a rebuttal witness. The witness testified Hunt sold her drugs many times.
On appeal, the Supreme Court affirmed the denial of Hunt’s suppression motion because the detective had specific knowledge about drug activity at Hunt’s apartment, observed her vehicle there shortly before the stop, and Hunt’s general nervousness and inconsistent statements provided particularized suspicion that Hunt had drugs in her vehicle. However, the Court reversed and remanded for a new trial because the District Court abused its discretion by allowing the rebuttal witness to testify about Hunt’s prior bad acts when the defense did not open the door and the evidence prejudiced Hunt.
Points of Interest: traffic stops, particularized suspicion, prior bad acts
2025 MT 120
Planned Parenthood of Mont. v. State
Three bills regulating abortion are unconstitutional because they infringe on privacy rights guaranteed by Armstrong v. State without being narrowly tailored to the compelling interest of a medically acknowledged bona fide health risk.
The 2021 Montana Legislature passed three laws that (1) prohibited abortions after 20 weeks’ gestational age except to prevent the mother’s death or serious risk of substantial and irreversible physical impairment of a major bodily function (excluding psychological or emotional conditions); (2) imposed multiple restrictions on medication abortions, including banning telehealth authorization for the procedure; and (3) required providers to offer patients the opportunity to view two forms of ultrasound and listen to a fetal heart tone before an abortion and required the patient to sign a form, created by the State, reflecting their choice. The form would then be retained in the patient’s medical records. The District Court concluded these laws were unconstitutional. The State appealed.
The Supreme Court affirmed. It reaffirmed Armstrong v. State, 1999 MT 261, which protects a woman’s right to a pre-viability abortion in consultation with her medical provider. Montana’s privacy guarantee, which includes an individual’s right to personal autonomy, is based on independent state grounds and is not affected by the United States Supreme Court’s recent decision overturning Roe v. Wade.
Because each of the three laws invades the right of a person to make medical judgments affecting their bodily integrity and health in partnership with a chosen health care provider, it is the State’s burden to show that the laws are justified by a compelling state interest and are narrowly tailored to achieve only that compelling interest. The Court determined each of the challenged laws failed to meet that standard, either because the State had not demonstrated that the law addressed a medically acknowledged bona fide (actual) health risk to the mother or because the law was not tailored narrowly to achieve only that interest.
Points of Interest: right to privacy, constitutional rights, burden of proof
2025 MT 119
Cascade Cnty. v. Mont. Petro. Tank Release Comp. Bd.
Writ of mandamus was correctly issued where administrative board had clear statutory duty to examine a claim for reimbursement filed by a county.
Cascade County found petroleum contamination under a County shop complex in 1996 and notified DEQ. DEQ then provided the County with a remediation plan, which was completed in 2008. Upon completion, the County submitted receipts to the Board for compensation, but they exceeded the statutory maximum for a single release, so the Board denied them. In 2014, the County filed four additional applications for eligibility for reimbursement with the Board, and the parties agreed the statutory maximum had been paid for remediation on the single release number designated by DEQ in 1999. However, the Board rejected the other three applications because DEQ had classified all four contaminations under a single release number.
The County sought judicial review of the Board’s decision, seeking compensation for the other three releases. The District Court ruled that the site contained four individual releases, thus entitling the County to reimbursement. However, the Board still refused to review the County’s reimbursement claims because the County did not submit them in the manner Board regulations required. The County then sought a writ of mandate, which the District Court denied on the basis that the Board did not have a clear legal duty to review the County’s claims which failed to conform to the Board’s requirements.
The Supreme Court reversed and remanded. Under § 75-311-309(2), MCA (1995), the Board has a clear legal duty to review each claim received from the County and make a determination of their eligibility. Refusing to do so on the basis of nonconformity amounts to an exercise of no discretion. Without a review, the County has no available remedy at law. Therefore, mandamus compels the Board to decide on the eligibility of the submitted claims.
Points of Interest: writ of mandamus, duty, administrative law
2025 MT 116
A district court did not abuse its discretion by terminating Mother’s parental rights when she failed to complete her court-ordered treatment plan, even though the court did not terminate Father’s parental rights at the same time.
The Department removed Child due to physical neglect and Mother’s drug use. The District Court ordered Mother to complete a treatment plan requiring her to resolve substance use, domestic violence issues, and income instability. Mother failed to complete the treatment plan—repeatedly relapsing on drugs, being evicted from her apartment, and maintaining a relationship with her girlfriend marred by domestic violence—and the Department petitioned for termination of her parental rights. The Department also petitioned to terminate Father’s parental rights. After a contested termination hearing, the District Court issued an order terminating Mother’s parental rights but denying the Department’s petition to terminate Father’s parental rights.
On appeal, the Supreme Court affirmed. Mother failed to complete her treatment plan and did not contest the District Court’s factual findings as to her parenting struggles. The record and evidence presented supported the District Court’s termination of Mother’s parental rights under § 41-3-609(1)(f), MCA, and her parental rights are separate and distinct from Father’s parental rights. The District Court was not required to deny the petition to terminate Mother’s rights simply because it denied the petition to terminate Father’s parental rights.
Points of Interest: dependent neglect, parental rights
2025 MT 115
District Court did not commit plain error when, during sentencing for conspiracy to escape, it referenced Defendant’s wish to escape U.S. jurisdiction and fight in what Defendant considered a holy war. Defendant was not entitled to credit for time served when he was never detained for his attempted escape.
DeMarie attempted to escape from MSP, and he wished to travel overseas and fight for Russia in the Russia-Ukraine War. He was transferred to secure housing days before his planned escape. After his transfer, he called his accomplice and asked the accomplice to delete a secret Facebook account DeMarie made on his contraband cell phone, to which he no longer had access. Eventually, the State discovered the phone, the Facebook account, and the details of DeMarie’s escape plan. DeMarie was convicted of conspiracy to escape, and conspiracy to tamper with evidence. During sentencing, DeMarie stated the war in Ukraine is a holy war and he believes Ukraine is committing genocide against Russians.
The District Court, during sentencing, highlighted that it was not sentencing DeMarie for religious or political beliefs, and compared DeMarie’s attempt to a walkaway from prerelease. In doing so, the court referred to DeMarie’s wish to evade the jurisdiction of the state, and go overseas to fight in a war and commit acts of violence. The court did not grant DeMarie pretrial credit on his sentence for the time he spent in prison.
The Supreme Court affirmed. First, the Court declined to invoke plain error review for an as-applied challenge, highlighting that the District Court did not consider DeMarie’s religious beliefs. Second, the Court concluded sufficient evidence supported the conviction for conspiracy to tamper with evidence. Furthermore, DeMarie was not entitled to pretrial credit for time served when he was held on his prior prison sentence and not held on his new charges.
Points of Interest: sentencing, plain error, credit for time served
2025 MT 114
The Department engaged in sufficient active efforts by providing Mother with resources for 32 months, and good cause existed to deviate from ICWA’s placement preferences where the child required highly specialized behavioral services.
The Department removed P.E.W. from her Mother’s care due to allegations of neglect and abuse. P.E.W. was adjudicated a Y.I.N.C. and recognized as an Indian Child under ICWA. At first, P.E.W. resided with her grandmother, but allegations of abuse from her grandmother’s boyfriend prompted her placement in a non-Native American foster home. Over the course of 32 months, the Department attempted to get Mother to comply with her court-ordered treatment plan by providing access to resources, drug testing, and financial assistance, with one CPS worker even helping Mother do her laundry. Mother continuously relapsed and was unable to secure stable housing. During the same time, P.E.W. exhibited behavioral issues that were difficult for foster placements to handle. P.E.W. was placed at Shodair briefly before moving to a placement that was willing to work with her escalating behaviors. P.E.W.’s Tribe took the position that terminating parental rights was appropriate but offered no alternative kinship placement. The District Court terminated Mother’s parental rights, finding good cause to deviate from ICWA’s placement preferences due to P.E.W.’s extensive behavioral needs.
The Supreme Court affirmed, holding the Department went above and beyond to reunify Mother and P.E.W., provide resources for the family, and engage in active efforts under ICWA. The Tribe favored termination of parental rights and provided no alternative placement options, therefore P.E.W.’s need for permanency in a home that was willing to work through her behavioral needs provided good cause for deviating from ICWA placement preferences.
Points of Interest: dependent neglect, MICWA/ICWA, active efforts
2025 MT 113
A ski resort did not have a legal duty to install and/or maintain fencing to catch a skier who fell off a beginner run.
Mullee is an expert-level skier who had been skiing at Whitefish Mountain Resort since the 1970s. In 2019, after realizing he forgot his phone, he was skiing a beginner-level trail back to his vehicle. The trail went through a tunnel before turning to the right. On the left side of the trail, WMR had a practice of maintaining a snow fence as a visual aid to remind skiers to follow the trail to the right. Mullee had skied past this snow fence over a hundred times in the past. This time, he lost control coming out of the tunnel and went over the left edge of the trail, falling down a steep embankment and severely injuring his pelvis on a rock. He sued, asserting WMR had a duty to maintain a fence which would catch an out-of-control skier at the location due to the danger of the rocks below. The District Court granted summary judgment in favor of WMR, determining the Montana Skier Responsibility Act barred the claim as an inherent risk of skiing and there was no common law duty to maintain “catch” fencing.
On appeal, the Supreme Court affirmed. WMR had no legal duty to install and maintain fencing capable of catching out-of-control skiers at the location of Mullee’s accident as there was nothing in the record to indicate this area was any more dangerous than the innumerable other natural hazards found on WMR’s 3000 acres. Because WMR did not have a duty to catch Mullee when he lost control and fell, summary judgment on his negligence claim in favor of WMR was appropriate.
Points of Interest: negligence, duty, summary judgment
2025 MT 112
Mont. Env’t Info. Ctr. v. Office of the Governor
A plaintiff who vindicates their right to know under Article II, Section 9, of the Montana Constitution, is due a presumption in favor of awarding attorney’s fees so long as they acted reasonably in bringing and maintaining the litigation.
MEIC made a public records request to the Governor’s Office seeking information related to mining and environmental regulation. After the Office delayed responding, MEIC sought to compel production of the documents via a writ of mandamus. In defense, the Office asserted a “pending litigation exception” related to separate ongoing litigation between MEIC and the Department of Environmental Quality. The district court deemed the Governor’s argument absurd and granted the writ of mandamus. MEIC then moved for attorney’s fees. Despite MEIC’s win on the merits, the court denied attorney’s fees, concluding the Governor’s Office had not acted in bad faith and that the burden should not be spread among taxpayers.
On appeal, the Supreme Court noted that the essentially unfettered discretion district courts enjoy in right-to-know attorney fees decisions allows for constitutionally dissonant results. In light of decades of calls for additional guidance in the exercise of this discretion, the Court announced a new guiding principle: plaintiffs who successfully vindicate their right to know receive a presumption towards an award of attorney’s fees. The presumption is rebuttable if the plaintiffs acted unreasonably in maintaining or bringing the litigation. This rule is not a meaningful curtailment of district courts’ discretion, but rather provides additional guidance meant to further governmental accountability and accessible litigation.
Points of Interest: constitutional law, attorney fees, right to know
2025 MT 111
Neither disorderly conduct nor assault are lesser-included offenses of intimidation.
Dellar was receiving dialysis treatment when he began experiencing symptoms of PTSD, resulting in profane outbursts that escalated after he was told to quiet down. After attempts to deescalate, he stated that he was going to beat the technician’s head into the ground as she was in the process of removing his needles. Dellar was charged with felony intimidation. At trial, he moved for a directed verdict based on insufficient evidence after the State presented testimony from three dialysis center workers, arguing that his statements could not be tied to a specific threat. The district court denied this motion. The district court also denied his request to instruct on disorderly conduct as a lesser-included offense. The jury found Dellar guilty of felony intimidation.
On appeal, Dellar again argued that his statement could not be tied to the statutorily required purpose of causing another to perform or omit performance of an act; that the jury should have been instructed on disorderly conduct; and that he received ineffective assistance of counsel based on counsel’s failure to request assault as a lesser-included offense instruction. The Supreme Court held that it was reasonably inferable that the statement about beating the worker’s head into the ground was tied to removal of the needles such that the question correctly went to the jury. Furthermore, disorderly conduct is not a lesser-included offense of intimidation because it is possible to convey a threat without disturbing the peace. Finally, Dellar did not receive ineffective assistance of counsel; because assault is not a lesser-included offense of intimidation, it was not possible to discern from the record why his counsel did not advance the argument and the claim was therefore not appropriate for direct appeal.
Points of Interest: lesser-included offense, ineffective assistance of counsel, preservation of issues
2025 MT 110
A police officer’s use of a flashlight at night to look inside of a vehicle did not violate the plain view doctrine.
Roberts, age 18, attended a graduation dance at the county fairgrounds, where deputies tested attendees for underage drinking. After testing negative for alcohol, Roberts walked through the parking lot to his mother’s vehicle, which he had driven to the dance. An officer was checking the parking lot to ensure no one avoided alcohol testing. The officer asked Roberts for consent to search the vehicle, but Roberts declined. It was dark, and the officer shined a flashlight into the vehicle’s back window and saw a marijuana smoking device. The officer seized the vehicle and, during a subsequent search, uncovered alcoholic beverages, marijuana, and other drug paraphernalia. Roberts ultimately convicted of two misdemeanor counts of Underage Possession of an Intoxicating Substance in Justice Court.
Roberts appealed to District Court and moved to suppress evidence and to dismiss based on double jeopardy. The District Court denied both motions. On appeal to the Supreme Court, Roberts argued the marijuana smoking device was not in plain view because the officer was not lawfully present at the fairgrounds and relied on a flashlight to assist him in seeing the object. Roberts also argued he should not have been charged with two misdemeanors when the discovery of drug paraphernalia and alcohol originated from the same transaction.
The Court affirmed, holding that the officer lawfully observed the smoking device in plain view when he illuminated the vehicle’s interior using a flashlight. Roberts’s conviction of two counts of UPIS, one for alcohol and the other for marijuana, did not violate the multiple conviction statute because alcohol and marijuana are separate and distinct intoxicating substances.
Points of Interest: search and seizure, plain view, double jeopardy
2025 MT 109
Although police lacked particularized suspicion to expand a traffic stop into a drug investigation, the District Court did not err in finding that a defendant’s consent to answer additional questioning was voluntary.
Detective Monaco stopped Summers for speeding. Detective Monaco alleged that Summers appeared nervous and was slow to pull over. Dispatch informed Detective Monaco that Summers had a history of drug use and possession. After Detective Monaco confirmed that Summers had a valid driver’s license, vehicle registration, and proof of insurance, he returned her documents and issued her a warning for speeding. He then asked if Summers would mind answering additional questions. Summers stated: “Go ahead.” After further questioning, Detective Monaco requested consent to search the vehicle. Summers agreed and disclosed that she was on parole. Detective Monaco obtained consent to search the vehicle from parole. The search yielded drugs and drug paraphernalia. Summers moved to suppress this evidence, but the District Court concluded that Detective Monaco had particularized suspicion and Summers consented to the additional questioning.
The Supreme Court affirmed. A driver’s nervousness, an unspecified prior history of drug use, and the officer’s assertion that the driver failed to pull over quickly enough are insufficient to show particularized suspicion of illegal drug activity and Detective Monaco thus lacked particularized suspicion to search the vehicle. Furthermore, the District Court improperly used facts obtained after the traffic stop concluded in denying the motion to suppress. However, the court’s finding that Summers consented to the additional questioning was not clearly erroneous. A traffic stop that transitions into a drug investigation based on consent poses the risk that the prior seizure clouds a person’s understanding of when they are no longer subject to the officer’s authority. However, in this case, the court did not misapprehend the effect of the evidence. The record reflects that after Detective Monaco issued the warning and returned Summers’s papers, she agreed to further questioning.
Points of Interest: traffic stops, particularized suspicion, consent to search
2025 MT 107
It is an abuse of discretion to reimpose an original adult sentence on a criminally convicted youth following a CCYA sentence review hearing when the CCYA was not followed.
When he was 16, Knowles committed deliberate homicide during a drug robbery gone wrong. He was charged in District Court as an adult and pled guilty. At age 17, he was sentenced as an adult to 60 years at MSP. The District Court’s judgment failed to reflect that Knowles was a criminally convicted youth subject to the Criminally Convicted Youth Act. Knowles appealed. In 2019, the Supreme Court dismissed the appeal pursuant to a stipulation between Knowles and the State. The Court’s order directed the District Court to amend its judgment to reflect and apply the CCYA provisions. The District Court did not receive the order or amend its judgment until over two years later. Although Knowles had already turned 22 and the CCYA had not been followed for over four years since his original sentencing as an adult, the court held a CCYA sentence review hearing, determined Knowles had not been substantially rehabilitated, and reimposed the original adult sentence.
On appeal, the Supreme Court reversed the reimposition of the original adult sentence and remanded to allow the District Court and DOC to follow the rehabilitative provisions of the CCYA for up to two years. Because Knowles, a criminally convicted youth, had not received the benefit of the rehabilitative CCYA provisions for years following his sentencing, it was a substantial injustice and an abuse of discretion for the District Court to make the express determination to reimpose the original adult sentence. The Supreme Court ordered the District Court and DOC to follow the CCYA provisions for two years, at which time the court must review Knowles’s sentence and determine whether he has demonstrated substantial rehabilitation.
Points of Interest: sentencing, minors, abuse of discretion
2025 MT 106
A 511-day delay did not violate Defendant’s constitutional right to a speedy trial because the District Court was obligated to ensure Defendant was fit to proceed and Defendant did not demonstrate prejudice.
Gysler was charged with felony assault on a peace officer. Due to competency concerns from the State and District Court, the court ordered Gysler to undergo a competency evaluation at Montana State Hospital. Gysler’s counsel objected, arguing that Gysler was competent. Gysler was committed to MSH for evaluation and found fit to proceed. The week before trial, Gysler moved to dismiss for violation of his right to a speedy trial, which the court denied. Following a jury conviction, Gysler appealed.
The Supreme Court affirmed. Applying the Ariegwe factors, the total delay—511 days—increased the State’s burden to justify the delay and overcome a presumption of prejudice. All but 45 days of the delay were institutional and justified by the District Court’s statutory duty to order a fitness examination under § 46‑14‑202, MCA. Gysler’s response to the delay weighed in his favor, but the record did not show that the delay prejudiced Gysler. He was released for half of the delay, and it was his own violations on release that caused his pretrial incarceration.
Points of Interest: speedy trial, fitness to proceed, competency
2025 MT 105
A District Court does not have unilateral authority to restrict a defendant’s ability to seek early termination of a deferred or suspended sentence, but a defendant may waive his statutory right to do so in a plea agreement.
Brady pleaded guilty to felony assault with a weapon under a binding plea agreement in exchange for the State’s recommendation of a deferred sentence. He also agreed he would not seek early termination of his three-year deferred sentence for two years, even though § 46-18-208, MCA, allowed him to do so after 18 months.
At sentencing, the prosecutor breached the plea agreement by undermining and paying lip service to the sentencing recommendation. The court sentenced Brady in excess of the plea agreement and further prohibited him from ever seeking early termination of his sentence.
On appeal, the State argued the District Court was authorized to impose the early termination restriction under §§ 46-18-201(4)(p) and -202(1)(g), MCA. The Supreme Court disagreed, holding that a sentencing court does not have unilateral authority to restrict a defendant’s statutory right under § 46-18-208, MCA, to seek early termination of a deferred or suspended sentence. However, a defendant may agree to waive or restrict that right pursuant to a plea agreement. Although Brady had knowingly agreed to restrict his right to seek early termination under the plea agreement, the Court reversed his sentence due to the prosecutor’s breach and remanded for specific performance.
Points of Interest: plea agreements, sentencing, suspended sentences
2025 MT 102
A prisoner failed to meet his burden to demonstrate a facially invalid sentence due to a district court’s denial of any elapsed time credit via a petition for habeas corpus where the sentence fell within statutory parameters and the defendant neither objected to the sentence nor pursued an appeal.
Williams was convicted of attempted deliberate homicide in 1996 and received a 50-year MSP commitment with 25 years suspended. He received parole in 2007, which was revoked several times before he discharged the custodial portion of his sentence. In 2013, he began serving the suspended portion of his sentence. The State filed a petition to revoke in 2016, followed by four more supplemental petitions to revoke. The District Court imposed a sentence upon revocation of 25 years to MSP and denied credit for elapsed time. Williams did not appeal. In 2025, he filed a petition for writ of habeas corpus, asserting he was due credit for elapsed time.
The Supreme Court denied Williams’s petition for writ of habeas corpus because any review of error asserted in the exercise of the sentencing court’s discretion was available through appeal, not through a habeas corpus action. The District Court issued a sentence within statutory parameters and Williams had the opportunity to object at the time it was issued or pursue an appeal. He did neither. Williams failed to meet his burden under habeas to prove a facially invalid sentence.
Points of Interest: elapsed time credit, revocation, appellate procedure
2025 MT 101
A defendant who pleads guilty pursuant to a plea agreement that provides a specific calculation of elapsed time may not challenge that calculation unless the defendant contemporaneously objected at sentencing or a mistake of fact occurred in the calculation.
Pajnich was sentenced in 2014 for negligent vehicular assault. She began the suspended portion of her ten-year sentence in 2017. Her suspended sentence was revoked in 2018 based on several violations, including failure to pay restitution. At a hearing, she explained that she was unable to pay restitution due to medical procedures, however, she did not contest that she had violated the restitution condition of her sentence. Pajnich entered into a plea agreement recommending a seven-year Department of Corrections commitment with five years suspended. The parties also specifically agreed to 111 days of credit for elapsed time. Pajnich was revoked again in March 2022, and appealed from that order.
Pajnich’s appeal argues only that the 2018 calculation of elapsed time as contained in the plea agreement was incorrect and therefore illegal. The Supreme Court held that the legality of that calculation could not be raised in the instant appeal because: Pajnich had not made an objection at the time and had stipulated to the calculation, thereby bypassing the statutory requirement that a district court award elapsed time; and there was no mistake in the calculation, in contrast to State v. Little Coyote. Furthermore, the record of the 2018 revocation clearly supported the calculation of elapsed time provided in the plea agreement, and Pajnich’s testimony that medical problems prevented her from making restitution payments did not contradict the existence of the violation.
Points of Interest: elapsed time credit, plea agreements, revocation
2025 MT 100
Defendant received credit for time served between the issuance of a bench warrant and his release but not for time he spent incarcerated between an unrelated arrest and the bench warrant. However, he was entitled to elapsed time credit for a period during which the State had no evidence of noncompliance.
Pillans was released on his own recognizance on case 1 when he was arrested in case 2. He was then released on both cases on his own recognizance without any bench warrants issued. He pled guilty in both cases and was sentenced to 5 years, all suspended. He was then arrested in an unrelated case, the State petitioned to revoke, and the District Court issued a bench warrant. Pillans was released again.
The District Court credited Pillans with 16 months of elapsed time credit, but declined to credit Pillans with time served in case 1 for the time he spent incarcerated after his arrest in case 2 or for some of the time he spent incarcerated after his unrelated arrest. On appeal, Pillans argued he should get an additional 50 days of credit, but the State argued he had been noncompliant during that period. The relevant ROV stated Pillans had completed his SCRAM program the day prior to the contested period and he had failed to attend mandated mental health treatment at some point prior to the end of the contested period.
The Supreme Court reversed in part and affirmed in part. The District Court correctly denied Pillans credit in case 1 for the time he spent incarcerated after his arrest in case 2 because nothing in the record of case 1 indicated that he was detained in that case. However, the District Court should have credited Pillans with the time he spent incarcerated after it issued a bench warrant following his arrest in the unrelated case. The State had not presented sufficient evidence of violations during the 50-day period to deny elapsed time credit.
Points of Interest: elapsed time credit, credit for time served, revocation
2025 MT 99
Trial court did not err in denying jury instructions on “construction defect” and negligence claims when those claims were not independent of and additional to breach of contract claims.
Neely hired Grosvold to perform excavation work around a property, including building a bridge and working on water, sewer, and electric lines. Neely claimed Grosvold had performed defective work and refused to pay his final invoice. Grosvold brought an action for breach of contract; Neely counterclaimed, alleging Grosvold had breached the contract, had performed his work negligently, and raised a “construction defect” claim under § 70-19-427, MCA. The case proceeded to a jury trial, and each party presented evidence on whether Grosvold’s work was defective. During the settling of jury instructions, the court refused to give jury instructions on negligence and construction defect, reasoning this was a breach of contract case and Neely had not presented evidence that Grosvold had done work to a “residence” as defined in the statute. Neely appealed, arguing the jury should have been instructed on negligence and construction defect.
The Supreme Court affirmed for a different reason. Although the jury could have found Grosvold performed work on a residence, the Court held that the construction defect statute was not meant to create a new cause of action but instead was a pre-litigation procedure used to resolve disputes prior to litigation. As such, whether Neely framed his cause of action as a construction defect or as breach of contract, he could not bring both causes because the jury would then be tasked with deciding the same issue twice. As for Neely’s negligence claim, Neely never differentiated between his breach of contract and negligence theories and sufficiently argued negligence within his breach of contract arguments.
Points of Interest: torts, negligence, breach of contract
2025 MT 98
Placing Indian children with non-kinship, non-Native American foster family and enrolling school-age child in private Christian school did not violate ICWA where Department made “active efforts” to find ICWA-preferred foster placement and attending private school was in child’s best interests.
Upon obtaining temporary legal custody of two Indian children, the Department contacted their Tribe regarding possible ICWA-preferred placements, with no success. The Department investigated the parents’ suggested kinship placements, but ruled them out due to safety concerns. The Department then placed the children with a non-kinship, non-Native American foster family. While Mother worked to complete her court-ordered treatment plan, the Department withdrew the school-age child from public school and enrolled him in a private Christian school with his foster siblings. Mother objected on the grounds that attendance at the private school deprived the child of contact with and exposure to his Native American culture heritage where the public school offered more robust cultural and educational programming.
On appeal, the Supreme Court held that the Department made “active efforts” to reunify the children with Mother and to place them with an ICWA-compliant foster placement, but none were available. While the private school provided less exposure to Native American culture than Montana public schools, it nonetheless provided some cultural educational programming. The child had struggled in public school, but was thriving in private school. The lower court’s determination that enrolling the child in private school was in the child’s best interest and did not violate ICWA.
Points of Interest: dependent neglect, MICWA/ICWA, foster placement
2025 MT 97
The District Court did not abuse its discretion by allowing the defendant only one additional day to enter a plea at arraignment. Although the court’s comments during the pro se defendant’s closing argument implicated his Fifth Amendment rights, the comments did not warrant plain error reversal.
Ament was charged with felony DUI. At the arraignment, he requested additional time before entering a plea and the court granted him one day. Ament represented himself at trial and did not testify. During his closing argument, Ament started to recount his version of events twice. Both times the prosecution objected, and the court admonished Ament that he could not attempt to make statements of personal knowledge during closing because he had chosen not to testify.
On appeal, the Supreme Court affirmed. Section 46-12-203, MCA, requires that the court allow the defendant a reasonable time, not less than one day, to plead if they require it and the trial court did so. What constitutes a reasonable time is a fact-based inquiry and discretionary decision.
The court’s comments during Ament’s closing were reviewed under a plain error standard. Although the comments implicated Ament’s Fifth Amendment right, Ament did not demonstrate a manifest miscarriage of justice, undermine the proceeding’s fundamental fairness, or compromise the judicial process’s integrity. The court’s comments were not comments on Ament’s decision not to testify but instructed Ament to limit his discussion to evidence in the record. Although the court made extensive comments, it twice instructed the jury properly on the impact of Ament’s Fifth Amendment right.
Points of Interest: DUI, 5th Amendment, self-representation
2025 MT 96
District Court was not deprived of continuing jurisdiction where a recommitment petition was filed prior to the expiration of the commitment authority, and the involuntarily committed individual received due process when they were granted a contested hearing despite an untimely request.
M.H.W. was involuntarily committed due to paranoid schizophrenia and an inability to manage his diabetes. On January 6, 2022, M.H.W’s commitment was extended for one year. On December 14, 2022, the Professional Person petitioned for M.H.W.s involuntary commitment to be extended for an additional year. Notice of the petition was served to all parties the next day. However, despite the timely recommitment petition, the District Court did not enter an order extending M.H.W.’s commitment prior to January 6, 2023. On February 8, 2023, M.H.W.’s counsel requested a contested hearing, which the court scheduled for April 6, 2023, ordering M.H.W. remain committed until then. The court then rescheduled the hearing for June 1, 2023. At the June 1 hearing, the District Court extended M.H.W.’s commitment.
The Supreme Court affirmed. M.H.W. received due process not provided for in § 53-21-128, MCA, by holding a contested hearing despite M.H.W.’s untimely request. Under the statute, M.H.W.’s commitment was extended by six months since he never requested a hearing before January 6, 2023. The District Court’s failure to issue an order extending M.H.W’s commitment did not deprive the court of continuing jurisdiction over the matter as the recommitment petition was filed prior to the expiration of the commitment authority.
Points of Interest: involuntary commitment, due process, jurisdiction
2025 MT 93
Court incorrectly sentenced Defendant for a fifth DUI when it contemporaneously sentenced him to a fourth DUI because he was not “previously sentenced” for his fourth offense.
Bloomer committed his fourth DUI in 2021. The State charged Bloomer with his fifth offense in 2023, before he was sentenced for his fourth. The Legislature amended the state’s DUI laws in 2021, which substantively increased the penalties for fifth and subsequent offenses. The amendments became effective in January 2022.
The District Court contemporaneously sentenced Blomer for his fourth and fifth DUI offenses during the same hearing in 2023. The court sentenced Bloomer for his fourth DUI under the previous statute. The court sentenced Bloomer for his fifth offense under the 2021 law that requires the defendant to have been “previously sentenced” for his fourth offense.
Bloomer argued on appeal that his sentence was illegal because he was sentenced for his fourth offense under the previous statutory scheme, not the 2021 law. The Montana Supreme Court rejected this argument, reasoning that this would defeat the clear purpose of the substantive 2021 amendments, which was to provide for increased penalties with each subsequent DUI offense. The plain language of the statute (“previously sentenced”) did not permit the trial court to contemporaneously sentence Bloomer for his fourth and fifth DUI offenses. The Court reversed and remanded for resentencing.
Points of Interest: DUI, sentencing, statutory interpretation
2025 MT 92
Although trial court incorrectly gave a “knowingly” mental state instruction instead of “purposely,” defendant failed on plain error review where the overwhelming evidence was such that no rational jury could have included that he acted with mere knowledge rather than a conscious objective to impair evidence.
After an assault victim was unable to recall the details of the assault, investigation led police to Parker’s residence, where they found pools of blood on the adjacent sidewalk and a strong smell of bleach. Inside the residence, they found bleach and bloodstains on Parker’s shoes and bleach stains on his socks. Officers also found a bleach bottle bearing Parker’s fingerprint in a nearby dumpster. Officers executed a body search warrant on Parker, noting that he had what appeared to be dried blood on his lower lip. Parker prevented officers from swabbing the suspected blood by licking his lips.
At trial, the State introduced evidence that included Parker’s footwear, the bleach bottle, and DNA evidence that the victim’s blood was on Parker’s shoes. The jury acquitted Parker of aggravated assault but convicted him of two counts of tampering with physical evidence.
On appeal, Parker argued that the court gave an incorrect jury instruction, to which his counsel did not object, that required a “knowingly” mental state instead of a “purposefully” mental state. On plain error review, the Supreme Court agreed that the elements instruction should have used the term “purposely.” However, this error was not so plain and prejudicial that it denied Parker a fair trial where the State presented overwhelming and unrebutted evidence of purposeful conduct to impair evidence. Although Parker’s trial counsel erred in failing to object to the erroneous instruction, Parker cannot demonstrate that the outcome would have been different but for counsel’s error.
Points of Interest: jury instructions, mental state, weight of evidence
2025 MT 91
Court did not abuse its discretion in granting a 10-year order of protection to an attorney who was harassed and threatened by the self-represented opposing party.
Gabriel’s former partner, Olsen, filed a petition for dissolution of domestic partnership from Gabriel. Gabriel then filed a partition action concerning the couple’s shared real property near Lakeside. Olsen hired attorney Groenke to contest the partition. Gabriel, who represented himself in the case, began e-mailing Groenke incessantly, insulting her and threatening her law license. After Olsen hired Fritz Groenke—Groenke’s father—to list and sell the couple’s Lakeside property, Fritz visited the property to take pictures. Gabriel then left Fritz a voicemail stating, “If you step foot on my property again, I am going to shoot you in the face.” Gabriel wrote Groenke the next day: “Leave me alone and you both will be fine.” Groenke then obtained a temporary order of protection against Gabriel, but he continued to harass her.
After an evidentiary hearing, the Justice Court granted Groenke a ten-year order of protection against Gabriel, concluding that a reasonable person in similar circumstances would experience substantial emotional distress and fear for Fritz’s safety. The District Court affirmed.
The Supreme Court reasoned that Gabriel’s harassing emails constituted a purposeful or knowing course of conduct that would cause a reasonable person in similar circumstances to Groenke to suffer substantial emotional distress. The conduct would also cause a reasonable person to fear for Fritz’s safety. The Justice Court did not abuse its discretion when it issued the order of protection, and the District Court did not err when it affirmed the order.
Points of Interest: orders of protection, emotional distress, abuse of discretion
2025 MT 90
Where a court inadvertently ordered dismissal of a criminal case with prejudice when it intended to only dismiss a revocation petition, the court had the authority to issue a nunc pro tunc order correcting its error.
The State moved to revoke Zielie’s suspended sentence because she failed to maintain contact with her Parole Officer. However, the State later moved to dismiss its petition after Zielie reestablished contact with the PO. Through the State’s motion to dismiss mistakenly asked the court to dismiss the case, not the petition to revoke, with prejudice. The court granted the motion and dismissed the case with prejudice. The State later moved to revoke Zielie’s sentence after she received a DUI. The revocation proceedings continued until Zielie’s counsel noticed the “case” had been dismissed with prejudice. Counsel then moved to dismiss the case on the basis that the District Court had no jurisdiction.
The District Court concluded its dismissal order contained a clerical error that it could correct nunc pro tunc. The court corrected its order and then revoked Zielie’s suspended sentence.
On appeal, the Supreme Court affirmed because the District Court lacked the authority to dismiss the case with prejudice during the revocation proceedings and could only dismiss the petition. Since the order dismissing the case with prejudice was not a final judgment, the District Court had the authority to issue a nunc pro tunc correction of that erroneous order.
Points of Interest: dismissal, revocation, final judgments
2025 MT 89
Trial court did not err in sentencing Ernst to five felony counts of privacy in communications when Ernst was unable to provide any evidence that these convictions, nor his prior convictions, were unconstitutional.
Ernst was charged with several counts of privacy in communications, sexual intercourse without consent, and stalking after he engaged in a years-long campaign of online harassment against multiple victims. Ernst and the State reached a plea agreement where Ernst would plead guilty to five counts of privacy in communications and the State would drop the remaining charges. Before sentencing, Ernst filed a motion to withdraw his plea, arguing his convictions were unconstitutional under State v. Dugan, 2013 MT 38, 369 Mont. 39, 303 P.3d 755, because the statute he was convicted under still contained the language the Supreme Court found unconstitutional in that case. In the alternative, Ernst argued the State had no evidence that his prior convictions under this statute were constitutional and thus two of his five convictions should be sentenced as misdemeanors. The District Court denied Ernst’s motions and sentenced him to 25 years total at MSP.
The Supreme Court affirmed. Although the statute still contained the presumption which the Court found unconstitutional in Dugan, the charging documents, agreement, colloquy, and sentencing all made clear that Ernst was convicted for his purposeful conduct rather than under an unconstitutional presumption. Further, after the State proves the fact of a prior conviction used to enhance a sentence, the conviction is presumed valid and the burden shifts to the defendant to show an irregularity in the conviction. Ernst presented no direct evidence of an irregularity here beyond his mere self-serving statements that his prior convictions were unconstitutional. Ernst did not meet his burden and the District Court did not err in sentencing Ernst on five felony counts of privacy in communications.
Points of Interest: sentencing, plea agreements, sentence enhancements
2025 MT 88
Trial court did not err in granting summary judgment to the State when Seymour had failed to present any evidence on the State’s standard of care in maintaining exercise equipment.
Seymour was injured after exercise equipment he was using at the University of Montana broke. Seymour sued the State for negligence. Seymour was originally represented by counsel and filed an expert witness notification who would opine on the cause of the exercise machine’s failure. Counsel later withdrew and Seymour proceeded pro se. Seymour failed to diligently prosecute the case and the State moved for summary judgment, arguing Seymour had not offered any evidence on the State’s standard of care. Seymour argued his expert witness had opined on the State’s standard of care by including the equipment manufacturer’s “suggested” daily inspection schedule to his expert report. The District Court granted summary judgment to the State, concluding Seymour’s expert was not an appropriate expert to present evidence on the State’s standard of care.
On appeal, the Supreme Court affirmed. It did not consider Seymour’s argument that he did not need an expert witness on the State’s standard of care because Seymour did not raise this argument below. Furthermore, Seymour’s expert was not an appropriate expert on the State’s standard of care because he had no specialized knowledge in owning or maintaining gym equipment. Although summary judgment is not usually appropriate in a negligence case, it can be appropriate, as here, where a plaintiff has failed to present any evidence of a necessary element of the claim. Seymour’s mere recitation of the manufacturer’s suggested maintenance schedule was insufficient to establish the State’s standard of care. Furthermore, Seymour’s long delay in prosecuting his case prejudiced the State in defending against it.
Points of Interest: negligence, standard of care, experts
2025 MT 87
Sexual offenders convicted prior to 2007 must follow the 2005 SVORA registration requirements.
In 1982, Clark was convicted of eight counts of sexual intercourse without consent and ordered to register as a sex offender for life. After being paroled, Clark sought relief from the sex offender registration requirement, asserting the Montana Supreme Court’s decision in State v. Hinman, 2023 MT 116, ¶ 24, 412 Mont. 434, 530 P.3d 1271—determining the 2007 amendments to the SVORA were punitive in nature and could not apply retroactively under the ex post facto clause—supported his claim for relief. The District Court denied the petition, determining Clark remained subject to the 2005 SVORA registration requirements which required lifetime registration because his victim was compelled to submit by force.
On appeal, the Supreme Court affirmed. Although the 2007 amendments to the SVORA were punitive and could not be applied retroactively, the Court had also previously determined the 2005 SVORA is a civil regulatory scheme that can be applied retroactively because it is not punitive in nature. Hinman’s invalidation of the 2007 SVORA amendments left the law as it stood prior to the enactment of the invalid statute, meaning any offender convicted prior to 2007 must follow the 2005 registration requirements. Pursuant to the 2005 SVORA, Clark was required to permanently register as a sex offender and was not entitled to registration relief because his victim was compelled to submit by force.
Points of Interest: sexual offenses, SVORA, retroactivity
2025 MT 86
Successors to an estate can agree among themselves to alter distributions, but if the agreement is silent to a particular situation, the Personal Representative retains authority to distribute the assets in accordance with Title 72.
Paul died intestate, survived by four daughters. One daughter was appointed Personal Representative. The remaining asset was a cabin that the sisters did not want to co-own. Mediation resulted in an agreement that the cabin would be appraised and within 30 days the heirs would have a chance to purchase it at the appraised price if they qualified. No heir timely qualified to purchase the cabin and it was put on the open market. The PR obtained a structural engineering report that showed extensive issues, and a subsequent construction bid estimated repair costs at $127,900. Three sisters, including the PR, put an offer in for the appraised price minus the cost of repair. The PR filed a motion to approve the sale, which one sister opposed.
The District Court approved the sale of the cabin to the three sisters, finding the offer was “reasonable and in the best interest of the estate,” and that the agreement controlled, and allowed the sale, because it “resolved the issue of real property.” The court authorized the sale with payment of 25% of the sale cost to the remaining sister. The remaining sister appealed, arguing the agreement was clear and the cabin could only be bought at the appraised price.
The Supreme Court affirmed, albeit with different legal rationale. The agreement between the sisters was silent as to what occurred if no sister qualified for purchase within 30 days. Therefore, the proposed sale was not bound by terms of any agreement. The PPR correctly exercised her statutory authority to distribute the estate, and the court’s decision to allow the sale was supported by substantial evidence.
Points of Interest: estate law, real property, contracts
2025 MT 85
Defendant’s waiver of his right to jury trial upon default of appearance was not reversible under the common law plain error doctrine.
Charlie inexplicably failed to appear as directed at the final pretrial hearing before his scheduled jury trial. The Municipal Court waived his jury trial and set the matter for a bench trial instead. Charlie appeared at trial, testified in his defense, and never objected to proceeding on bench trial. On appeal to District Court, Charlie argued for the first time that the waiver of jury trial was unconstitutional under City of Kalispell v. Salsgiver, 2019 MT 126, ¶ 11, 396 Mont. 57, 443 P.3d 504. The District Court concluded that, based on his counsel’s stipulated memorandum acknowledging Charlie’s failure to appear would waive jury trial, and the Municipal Court’s similar warning at his omnibus hearing, Charlie knew his failure to appear would result in waiver of his right to jury trial.
On appeal, the Supreme Court exercised its discretion to review Charlie’s unpreserved assertion of constitutional error for “plain error.” The Court concluded that defense counsel’s stipulated memorandum, the Municipal Court’s omnibus hearing memorandum, and Charlie’s personal participation in his bench trial without objection established he knowingly and voluntarily waived his jury trial right. The Court distinguished Salsgiver, noting that Salsgiver had properly preserved his asserted error, while Charlie did not. The Court declined to reverse Charlie’s conviction under the plain error doctrine where it was not “firmly convinced” the Municipal Court committed plain error or that Charlie’s conviction was a manifest miscarriage of justice.
Points of Interest: waiver, jury trials, plain error
2025 MT 84
In prosecution for negligent vehicular homicide while under the influence of alcohol, evidence of the victim’s seat belt use was irrelevant as to whether defendant’s conduct caused the victim’s death, and evidence in defendant’s trunk consisting of unopened alcohol and addiction self-help books was irrelevant to determining defendant’s negligence and intoxication.
Loera drove the wrong way on Interstate 90 and collided with an SUV carrying four passengers, including Socheath. Socheath was ejected from the vehicle and died from his injuries. Loera exhibited signs of intoxication when found by law enforcement, and his blood alcohol content was .124. A search of Loera’s car revealed open and emptied alcohol beverages on the passenger side seat and floorboard. Officers also found unopened alcohol beverages and two self-help books related to overcoming addition in Loera’s trunk. The District Court granted the State’s motion to exclude evidence of Socheath’s seat belt use as irrelevant to causation. It denied Loera’s motion to exclude evidence discovered in his trunk because it concluded the evidence was relevant to prove negligence and intoxication. The jury saw several photographs of the trunk evidence at trial.
The Supreme Court affirmed. It determined evidence of Socheath’s seat belt use was irrelevant. The question presented to the jury was whether Loera’s conduct caused Socheath’s death, not whether Socheath’s death could have been made less likely by wearing a seat belt. The trunk evidence was irrelevant to Loera’s intoxication and negligence because the testimony at trial from the State’s witness showed neither the unopened alcohol nor the books contributed to the collision. However, the error was harmless under the cumulative evidence test.
Points of Interest: DUI, cumulative evidence, harmless error
2025 MT 83
Trial court did not have statutory authority to dismiss a charge for which it had already accepted a guilty plea and reinstate a previously dismissed charge without the prosecutor’s motion or a new guilty plea.
Partain was charged with sexual abuse of children and surreptitious observation or recordation after he secretly filmed his daughter changing her clothes. The State and Partain reached a plea agreement in which Partain would plead guilty to sexual abuse of children and the State would dismiss the surreptitious observation or recordation charge. The District Court accepted Partain’s guilty plea and dismissed the surreptitious observation or recordation charge. At sentencing, the court stated it had read the PSI, psychosexual report, victim impact statement, and numerous letters in support of Partain and felt the case had been overcharged. The court sua sponte rejected the guilty plea, dismissed the sexual abuse of children charge, reimposed the surreptitious observation charge, found Partain guilty of that offense, and issued a deferred sentence on that charge. The State appealed, arguing the District Court did not have lawful authority to do what it did and had illegally sentenced Partain.
The Supreme Court reversed and remanded for resentencing on the sexual abuse of children charge. After a review of the statutory authority a district court has when accepting or rejecting a plea bargain and on sentencing, the Court held the District Court violated separation of powers by usurping the role of the prosecutor in making charging decisions and unlawfully convicted Partain without a trial or a plea on another charge. The trial court had authority to reject the plea deal or sentence Partain to a lower sentence than recommended by the parties, but it could not unilaterally recharge and convict Partain of another crime. Furthermore, surreptitious observation or recordation is not a lesser-included offense of sexual abuse of children as charged in this case.
Points of Interest: sentencing, sexual offenses, charges
2025 MT 78
Although a common law marriage becomes valid if a couple that starts a relationship in a state that does not recognize common law marriage later moves to Montana, petitioner could not open intestacy proceedings where she and the decedent did not live together in Montana and thus did not establish a common law marriage here.
Finley petitioned to open formal intestacy proceedings in Zugg’s estate. She requested that the court rule she was common law married to Zugg, and to appoint her as personal representative. The trial court heard testimony from Finley and from Zugg’s family and friends. Finley testified that she and Zugg lived between North Dakota and Arizona during their relationship, and they visited Montana together for a couple weeks at a time. Finley said that Zugg held her out to be his wife but acknowledged that the couple never lived together in Montana. Other witnesses disagreed about whether Zugg held Finley out to be his wife. Although witnesses testified to Zugg’s extensive connections to Montana, all agreed that he did not live with Finley in the state.
The trial court found that Zugg and Finley lived in Arizona and North Dakota, but not in Montana, during their relationship. Because Arizona and North Dakota do not recognize common law marriage, the court ruled that the couple was not common law married.
The Supreme Court affirmed. If a couple starts a relationship in a state that does not recognize common law marriage but then moves to Montana—where common law marriages are recognized—the marriage becomes valid. However, Zugg and Finley were not common law married because their relationship never ripened by residence in Montana.
Points of Interest: estate law, common law marriage, personal representatives
2025 MT 77
Time spent voluntarily placed in a treatment center does not count toward a speedy trial analysis.
L.S., a 13-year-old youth, was alleged to have inappropriately touched his 4-year-old sister in October 2019. Without any urging from the State, L.S.’s mother voluntarily placed him in numerous youth residential treatment facilities from October 2019 through January 2022, and L.S. spent a total of over two years in those facilities. After L.S.’s behavior worsened and treatment showed little or no progress, the State filed a formal delinquency petition against him. After the filing of the petition, L.S. was detained at a youth facility for 206 days until being released to his grandmother’s care in August 2022. L.S. eventually admitted to the allegations on November 28, 2022, pursuant to an agreement with the State that retained his right to appeal the denial of his speedy trial motion. L.S. contended the time spent in voluntarily placed youth residential treatment centers should have countered toward a speedy trial analysis.
On appeal, the Supreme Court affirmed the District Court’s holding that L.S. could not be considered “accused” for purposes of a speedy trial analysis until the filing of a formal delinquency petition. The Court concluded no speedy trial violation occurred.
Points of Interest: Youth Court, speedy trial, delinquency of minor
2025 MT 76
Choteau Acantha Publishing, Inc. v. Gianforte
The presiding officer of a governor’s advisory council violates Montana’s open meeting laws by closing a meeting before any discussion relating to a matter of individual privacy commences.
In response to an impending vacancy in Montana’s Ninth Judicial District, Governor Gianforte established an advisory council to assist him in reviewing applications, interviewing applicants, and making a recommendation for appointing a new judge. The council convened on March 23, 2023, to interview two applicants: Daniel Guzynski and Gregory Bonilla. The meeting was publicly noticed, and council members were provided a non-exhaustive list of questions they could ask applicants, dealing with both general and personal topics. After brief opening remarks and before interviews began, Guzynski and Bonilla asserted their respective privacy rights. The chairperson then closed the meeting, excluding the public and media from the interviews and deliberations, and re-opened the meeting only for public comment. The council ultimately recommended both applicants to Governor Gianforte, who appointed Bonilla. Newspaper Choteau Acantha sought declaratory judgment soon after, requesting the council’s actions be voided and that the District Court recognize advisory councils as public bodies. The court entered judgment on the pleadings in favor of Choteau Acantha and determined that, while there was no practical reason to void the council’s recommendation, judicial candidates have “no reasonable expectation of privacy” when they put themselves forward to be considered for a public official position and, concluding the advisory council violated § 2‑3-203(3), MCA. Governor Gianforte appealed.
The Supreme Court affirmed. The chairperson violated open meeting laws by not allowing a general discussion to proceed publicly until the discussion implicated privacy rights, and for failing to sufficiently describe the legal and factual basis for closing the meeting. Although the chairperson’s decision to close the meeting was overbroad, the Court declined to address the constitutional issue of whether judicial candidates have a reasonable expectation of privacy when they seek appointment to the bench.
Points of Interest: open meetings, right to know, appointments
2025 MT 71
Biological father did not have a cognizable claim against the State or the biological mother’s attorney after a Utah couple adopted his child. The mother’s attorney did not owe father a duty of care, and he could not relitigate a Utah court’s previous determination that Montana complied with the required procedures.
Surbrugg gave birth to L.S. in Helena. With a lawyer’s help, she consented to L.S.’s adoption. The lawyer arranged for a Utah couple to adopt L.S. Adoptive Parents successfully petitioned a Utah court to adopt L.S. Shelton appealed to the Utah Court of Appeals and the Utah Supreme Court, arguing that L.S.’s placement violated the Interstate Compact on the Placement of Children. The Court of Appeals remanded for the district court to determine compliance with the ICPC. The Utah Supreme Court affirmed. The Utah district court ruled that Montana complied with the ICPC.
Shelton and his parents sued Surbrugg’s attorney, Adoptive Parents, and the State of Montana in Montana district court. Plaintiffs claimed negligence against the lawyer. Plaintiffs’ claims against the State alleged that Montana violated the ICPC. Plaintiffs also alleged negligent misrepresentation on the basis that a State attorney told them he would take action to have L.S. returned if Shelton was confirmed as the father, which he later was.
The Supreme Court held that Surbrugg’s attorney owed Plaintiffs no duty as nonclients in an adversarial adoption. Plaintiffs’ ICPC-based claim against the State was collaterally estopped because the Utah district court had decided the identical issue; Shelton’s parents were in privity with him in the Utah proceedings; and Shelton had a full and fair opportunity to litigate the issue in Utah. Finally, Plaintiffs could not sustain their negligent misrepresentation claim because the State attorney’s representation concerned a future potential fact.
Points of Interest: negligence, duty, torts
2025 MT 70
Sufficient evidence supported Kalina’s assault conviction because a rational juror could conclude there was no imminent risk of harm to Kalina, the State could cross-examine Kalina about his prior assault convictions because he opened the door by testifying he had never been in a fight, and Kalina could not enforce the State’s pre-trial plea offer because he had rejected it.
Kalina was charged with Assault with a Weapon after accosting his ex-girlfriend in a bar and following her friend home. Once at the friend’s home, the friend struck Kalina, who pulled to the end of the street, got out of his car, and beckoned the friend over. Once the friend reached Kalina, Kalina cut the friend’s face with a knife. Before trial, the State offered Kalina a plea deal, but Kalina responded with a counteroffer.
At trial, the friend testified about the encounter and his injuries. Kalina testified, claiming his use of force was justified because the friend struck him first and he feared for his safety. He also testified he had never been in a fight like that one before. The Court allowed the State to cross-examine Kalina about his prior convictions for Assault, over Kalina’s objection under Rule 404(b). The jury convicted Kalina.
The Supreme Court affirmed the District Court, holding that sufficient evidence supported the jury’s verdict because a rational juror could have credited the friend’s account and found that Kalina’s use of force was not justified because the threat to him was no longer imminent when he drove away. Kalina also opened the door to the cross-examination about his prior convictions by testifying that he had never been in a fight like that before. Finally, Kalina could not hold the State to the terms of its pretrial offer because he had rejected it with his counteroffer.
Points of Interest: sufficiency of evidence, Rule 404, JUOF
2025 MT 68
A 3% mathematical error within the ballot language of a proposed mill levy increase to support the Great Falls Public Library did not violate voters’ rights of suffrage and due process.
In 2023, the Great Falls City Commission initiated an effort to amend the City Charter to allow for the allocation of additional mills to fund the City’s Library. The Commission passed an Ordinance and adopted a Resolution, which referred the proposed Charter Amendment to the electorate. On June 6, 2023, voters passed the Library mill levy by 619 votes. The Appellants, two City residents, filed a petition to annul and set aside or void the election, claiming a mathematical error existed on the Resolution and Ballot that effectively deprived voters of their rights of suffrage and due process. The City moved to dismiss the petition for failure to state a legally cognizable claim. After briefing on the motion to dismiss was complete, Appellants moved to amend their original petition to fix minor errors and add allegations that the City violated state election law. In early 2024, the District Court denied the motion to amend and dismissed the case, noting that Appellants’ attempt to amend their petition would be futile.
The Supreme Court affirmed. The mathematical error was minor, as it incorrectly stated the mill levy increase would raise approximately $1,594,500 instead of $1,549,500—a 3% difference. The City complied with election laws, voters understood the objective of the mill levy, and the erroneous language did not create such confusion as to violate voters’ rights of suffrage or due process. Accordingly, Appellants’ attempt to amend their petition was futile, as the amended petition made no additional legally cognizable claims and was likely prejudicial to Appellees, since it was filed after briefing was completed.
Points of Interest: elections, due process, harmless error
2025 MT 67
A justifiable use of force defense concedes knowing and purposeful conduct, but it does not require a defendant to admit all elements of the offense.
At trial for attempted deliberate homicide, the State argued that Dulaney had to admit every element of the offense before he could assert a justifiable use of force defense. The trial court ruled the State’s burden is to prove the elements of an offense, but Dulaney must present evidence he knowingly and purposely used force in order to argue self-defense. A jury convicted Dulaney of three counts of attempted deliberate homicide.
On appeal, Dulaney argued on appeal that the trial court required him to admit intent to commit attempted deliberate homicide. The Supreme Court affirmed Dulaney’s conviction. The defendant’s burden on a justifiable use of force defense is to produce evidence that raises a reasonable doubt about his guilt, not to admit all elements of the offense. A justification defense concedes knowing and purposeful conduct, but does not concede causation or intent to cause a specific result. Dulaney was not required to and did not concede mental state. The State proved the elements of attempted deliberate homicide and disproved justifiable use of force beyond a reasonable doubt.
Points of Interest: self-defense, JUOF, elements of offense
2025 MT 64
McBroom v. Mont. Bd. of Pers. Appeals
An employee generally may not utilize an unfair labor practice claim to sidestep the grievance procedure provided for in a collective bargaining agreement. However, if the CBA expressly excludes certain categories from the grievance procedure, reliance on that procedure to settle the claim does not toll the statute of limitations for filing a ULP claim.
The Missoula Urban Transportation District disciplined two employees for conducting union activity on MUTD premises during work hours. The Employee’s Union grieved the discipline over the course of the following year, but the Employees disagreed with the resulting settlement and filed a ULP claim against MUTD, alleging MUTD had retaliated against them for engaging in protected labor activity. The Board of Personnel Appeals dismissed the case because the Employees filed their ULP claim more than one year after the incident at issue. The Employees sought judicial review in District Court, arguing their reliance on the CBA grievance process equitably tolled the ULP claim statute of limitations. The District Court affirmed BOPA and the Employees appealed.
The Supreme Court affirmed. Because the underlying cause of their ULP claim was excepted from mandatory grievance procedures under the CBA, the Employees could have filed their ULP claim with BOPA within the statute of limitations. Had they done so, BOPA could have stayed that proceeding pending outcome of the CBA grievance process, thus allowing the Employees to resume the ULP claim. Instead, the Employee’s ULP claim was barred by the six-month statute of limitations. Ultimately, because the claims were excepted from the CBA requirement, nothing in Montana prevented the Employees from pursuing their ULP claim within the statute of limitations while they simultaneously pursuing a remedy under the CBA.
Points of Interest: employment law, collective bargaining agreements, judicial review
2025 MT 63
Musselshell Ditch Co. v. JD Bar D, LLC
Where a ditch maintenance company held express and secondary easement rights to access and maintain an irrigation ditch, the servient landowner could not install permanent structures in and around the ditch without the company’s permission.
JD Bar D is a ranch located in Musselshell County. Musselshell Ditch Co. owns and operates the Musselshell Ditch canal system. JD Bar D’s predecessor in interest granted MDC an express easement to access and maintain that portion of the ditch which crosses JD Bar D’s property. In addition to the express easement, MDC enjoys secondary easement rights under § 70-17-112, MCA, a statute prohibiting landowners from infringing on easement holders’ rights without consent. For several years, JD Bar D made improvements to the ditch, but only after obtaining consent from MDC. Between 2017 and 2019, however, JD Bar D installed a bridge, pump box, electrical conduit, and a pipeline in and around the ditch without MDC’s permission. MDC objected to the structures as unreasonable interferences with its ability to maintain the ditch and sued, seeking injunctive relief and a declaratory judgment. The parties requested the District Court decide the matter on the pleadings. The District Court determined the structures prevented MDC from safely maintaining the ditch, and that obstructing the ditch without MDC’s permission was unreasonable. JD Bar D was ordered to remove the obstructions and approximately $40,000 in attorneys’ fees. JD Bar D appealed.
The Supreme Court affirmed, noting MDC had express, exclusive, and secondary easement rights to the ditch, which must be reasonably balanced with JD Bar D’s property rights. Here, it was unreasonable for JD Bar D to place permanent structures in and around the ditch that might inconvenience MDC or pose a safety hazard. Furthermore, forcing MDC to defend its easement rights constituted a violation of § 70-17-112, entitling MDC to attorneys’ fees.
Points of Interest: easements and roads, attorney fees, property
2025 MT 62
Section 46-18-111(2), MCA, authorizes a court to order a presentence investigation report on a misdemeanor conviction only if that misdemeanor was originally charged as a sexual or violent offense.
The State charged Denny with one violent felony and two misdemeanors. Denny pleaded nolo contendere to the misdemeanors pursuant to a plea agreement in exchange for dismissal of the felony charge. After accepting his pleas, the trial court ordered Denny to submit to a presentence investigation report. Denny objected, asserting that § 46-18-111(2), MCA, only authorizes a PSI on misdemeanors “originally charged” as sexual or violent offenses.
On appeal, the Supreme Court construed § 46-18-111(2), MCA, to authorize a PSI on a misdemeanor offense only if the State originally charged that misdemeanor as a sexual or violent felony. Although the State charged Denny with a violent felony, that charge was dismissed pursuant to the plea agreement and Denny’s pleas were to misdemeanor offenses, neither of which was originally charged as a sexual or violent felony. Thus, the trial court erroneously ordered a PSI on Denny’s misdemeanor offenses.
Points of Interest: presentence investigation, sexual offenses, misdemeanors
2025 MT 58
District Court erred by denying defendant elapsed time credit upon revocation and resentencing where the court based its denial on its decision to impose a suspended sentence.
When Charles’ suspended sentence was revoked, the District Court decided not to give Charles credit for six months of elapsed, or street, time that occurred from the day the ROV was filed to the date of the hearing. Although defense counsel argued Charles completed outpatient treatment, supplied clean drug tests, and met his probation requirements during those months, the court denied him credit because it imposed a suspended sentence and Charles’ probation officer recommended that Charles not be given that elapsed time credit.
On appeal, the Montana Supreme Court noted that Charles had only one demonstrable violation during this six-month period when a drug patch tested positive for methamphetamine. Thus, the District Court erred by not giving Charles credit for this elapsed time because he was “statutorily entitled” to the credit. A sentencing court cannot swap statutorily required street time credit for imposition of a suspended sentence rather than a DOC commitment. Furthermore, Charles was incarcerated for some of this time and he is entitled to credit for any time served. The Court remanded with instructions for the District Court to recalculate Charles’ sentence in accordance with its holdings.
Points of Interest: revocation, credit for time served, suspended sentences
2025 MT 57
Where Mother took the child out of state, evaded process, and returned to Montana only after being found in contempt, and where Mother and the child were dual citizens with foreign passports, District Court did not err in exercising jurisdiction, temporarily barring the child from traveling outside of Montana, and concluding shared custody was in the child’s best interests.
Parents moved from California to Montana with A.H.S. in 2020. Two years later, Mother—who, along with A.H.S. is a dual citizen of the U.S. and Brazil—returned to California with A.H.S. Within days, Father petitioned for a parenting plan and an ex parte interim parenting plan in a Montana District Court. The court adopted Father’s interim plan and ordered Mother to return A.H.S. to Montana and surrender A.H.S.’s passports. Mother avoided service for months, during which time she filed for a domestic violence restraining order in an attempt to get California to exercise jurisdiction over the custody dispute. After a UCCJEA conference, California declined to exercise jurisdiction. Mother resisted the order to return A.H.S. to Montana until she was found in contempt. Mother then participated in the case, which resulted in a Final Parenting Plan that provided for a shared custody and a temporary prohibition on removing A.H.S. from Montana.
On appeal, the Supreme Court held the District Court correctly determined Montana could exercise jurisdiction because A.H.S. had resided in California for four days when Father filed his petition and it had been over two years since she had previously resided there. The court did not abuse its discretion in temporarily limiting A.H.S.’s travel. It considered Mother’s “less than good faith efforts and actions” in taking A.H.S. to California, cutting off contact, evading service, and disobeying a court order to return, and reasonably used its discretion to protect the stability and continuity of A.H.S.’s care while the pending litigation resolved. Furthermore, the court did not inadequately consider evidence of domestic violence because it weighed its credibility and applied the statutory best interest factors in reaching its conclusion.
Points of Interest: parenting plan, UCCJEA, abuse of discretion
2025 MT 56
An increase in taxes and reduction in county services were sufficient for Plaintiffs to have standing to sue Glacier County for mismanagement of public funds. Plaintiffs also satisfied the requirements for class certification.
Real property taxpayers of Glacier County sued the County and current and former Glacier County Commissioners, alleging the County had mismanaged local government funds. Plaintiffs successfully moved to certify one of their claims as a class action. The County appealed.
In a previous lawsuit arising from similar allegations of fiscal mismanagement, plaintiffs alleged it was foreseeable the County would raise taxes to compensate for its imbalanced budget. There, the Supreme Court held plaintiffs lacked standing. Citing that decision, the County argued Plaintiffs again lacked standing and were precluded from bringing their claims. Because Plaintiffs alleged the County already had raised property taxes and eliminated county services, the Court held their allegations were sufficiently actual and concrete to confer standing. Plaintiffs were also not precluded from litigating their claims because the prior dismissal for lack of standing was a preliminary jurisdictional determination, not a final judgment on the merits.
The County disputed three of the prerequisites necessary to class certification and argued that common questions did not predominate over individualized inquiries. Because the class comprised over 1,000 members, the Court held that the class met the numerosity prerequisite. Resolving whether the County made illegal disbursements of county funds and whether the County Commissioners were liable, the Court held, posed common questions for all Glacier County taxpayers, satisfying the commonality requirement. Furthermore, named Plaintiffs’ claims were typical of the entire class because all taxpayers are injured when a municipality mismanages public funds. Finally, Plaintiffs’ common questions predominated over individualized inquiries. The Court affirmed the trial court’s order certifying the class and remanded for further proceedings, where the County could assert its affirmative defenses to the complaint.
Points of Interest: standing, class action, class certification
2025 MT 55
Qlarant Integrity Sols., LLC v. Guthneck
An Office of Administrative Hearings hearing officer has authority to determine an express preemption issue.
Qlarant, a Maryland company who works on federal contracts, hired Guthneck as a fraud investigator in 2020. Guthneck worked remotely from his residence in Montana. In early 2021, the Montana legislature passed HB 702, which makes it an unlawful discriminatory practice for an employer to discriminate against an employee based on the person’s vaccination status in Montana. Later that year, President Biden issued Executive Order 14042, which required employees working on covered federal contracts to be fully vaccinated. In accordance with EO 14042, Qlarant issued a mandatory vaccination policy for its employees. Guthneck, citing HB 702, refused to comply with Qlarant’s vaccination policy and was terminated. He filed a complaint before the Human Rights Bureau, asserting he was discriminated against due to his refusal to disclose his vaccination status. Prior to a contested case hearing in the Office of Administrative Hearings, Qlarant moved to dismiss the claim because EO 14042 preempted HB 702. The hearing officer granted the motion, concluding EO 14042 preempted HB 702. Guthneck appealed to the Human Rights Commission, which overturned the hearing officer’s decision, ruling a preemption determination was a constitutional question which could only be resolved by a court. Qlarant then petitioned the District Court for judicial review. The court reversed the HRC, concluding the hearing officer had authority to address the preemption issue and correctly determined EO 14042 preempted HB 702.
On appeal, the Supreme Court affirmed. Although constitutional questions may only be determined by a court, an express preemption determination is not a constitutional question but a matter of statutory interpretation. The hearing officer was not called to determine the constitutionality of either EO 14042 or HB 702, merely whether EO 14042 expressly preempted HB 702. An executive branch agency, like the OAH, HRB, or HRC, has the authority to engage in statutory interpretation.
Points of Interest: employment law, administrative law, constitutional law
2025 MT 54
Law enforcement may obtain a warrant for bodily fluids under § 46-5-221, MCA, when there is sufficient probable cause to believe the person is committing the offense of driving under the influence, even for first-time offenders.
After pulling Clinkenbeard over for speeding, the responding trooper smelled alcohol on Clinkenbeard’s breath. Clinkenbeard admitted to consuming three beers just prior to driving. Clinkenbeard performed poorly on field sobriety tests and had a .130 blood alcohol concentration on his preliminary breath test. He refused to consent to a blood test, so the trooper obtained a search warrant. The blood test revealed a .101 blood alcohol concentration. Clinkenbeard was charged with driving under the influence of alcohol and/or drugs and speeding. He moved to suppress the blood test results, arguing that Montana’s implied consent statute absolutely precludes law enforcement from obtaining a search warrant for bodily fluids of first-time DUI suspects. The Justice Court and District Court both denied his suppression motion.
The Supreme Court affirmed. Although the implied consent statute does not allow law enforcement to perform a test on someone who refuses to consent unless one of the section’s enumerated conditions are met, law enforcement may still obtain a valid warrant under § 46-5-221, MCA, for the person’s bodily fluids. The general ability to obtain a search warrant with probable cause exists separately and independently of the implied consent statute, and the general search warrant ability was permissibly employed in Clinkenbeard’s case. To hold otherwise would create an unsupported carve-out from well-establish search warrant law for a specific offense, thus providing unprecedented legal protections and incentives for drivers to refuse to consent to testing.
Points of Interest: DUI, search warrant, consent
2025 MT 53
The clerk’s failure to certify non-responders to the jury under § 3-15-405, MCA, did not constitute a failure to substantially comply with the statute because this did not materially affect the random selection of jurors or allow subjective disqualifications.
Hillious was convicted of deliberate homicide for the murder of his wife Amanda following a jury trial in 2022. He appealed two evidentiary rulings regarding admission of a temporary order of protection and a coworker’s text messages. During the pendency of his appeal, he learned that the Flathead County Clerk of Court was not certifying jury questionnaire non-responders to the sheriff, in contravention of § 3-15-405, MCA, and moved for a new trial. The Supreme Court stayed his appeal to allow the District Court to consider the motion. That court denied his motion, concluding that personal service on non-responders did not advance the goal of random selection and that the purpose of the statute was to ensure a sufficient number of jurors appeared, not that every noticed person appeared.
The Supreme Court affirmed. It clarified that State v. LaMere had been misconstrued to suggest that any violation of jury selection statutes was per se reversible. However, a statutory violation in jury selection is only reversible if it materially affects the random selection of jurors or allows subjective disqualifications, because these violations undermine the constitutional guarantee of an impartial jury. Any other kind of error is a mere technical violation subject to harmless error review. In this case Hillious did not show he was prejudiced by the technical violation of the statute.
Points of Interest: jury selection, harmless error
2025 MT 51
An insurer’s testimony provided sufficient evidence to support causation between the defendant’s theft of property and the amount of restitution ordered for damage to that property.
Raver stole a truck which he had in his possession for one week. After the truck was recovered, it required extensive repairs which were paid in full by the victim’s insurer. The State requested restitution for all vehicle repairs, car rentals, cleaning costs, and the victim’s hunting gear stolen with the truck. Raver entered a no contest plea for felony theft pursuant to a plea agreement but contested the restitution amount. Raver argued there was an insufficient causal link between his theft and the damage; he testified the truck had no issues when he stole it and he would have fixed any issues that existed. The victim’s insurer testified that they determined the damage was attributable to Raver’s theft based on the victim’s statement that the damage was not present before the theft. The district court found “a reasonable and causative connection” between the theft and the damage and ordered the full requested amount of restitution.
Raver appealed, arguing again that the causal link was insufficient. The Supreme Court affirmed, concluding the District Court permissibly weighed the credibility of both witnesses as well as the victim’s statement and accompanying documentation to find a preponderance of the evidence supporting the causal link. Here, the insurer’s testimony provided sufficient credible evidence.
Points of Interest: restitution, credibility, weight of evidence
2025 MT 47
Charlie’s Win, LLC v. Gallatin W. Ranch Homeowners’ Ass’n, Inc.
Where covenants required a two-thirds affirmative vote for their renewal, the covenants were not renewed and are thus no longer enforceable where only 62.5% of the owners within the subdivision voted to renew the covenants.
Charlie’s Win sought a judgment declaring that, because only 62.5% of the owners within the subdivision had voted to renew the covenants rather than the two-thirds (66.67%) affirmative vote required by the covenants, the covenants had expired by their own terms. Gallatin West argued that the renewal clause referred to a two-thirds majority of the voting owners, not all owners in total. Alternatively, the covenants allowed for a modification of the covenants with a 60% vote and Gallatin West asserted that the vote modified the entirety of the covenants, thus extending them for an additional term. The District Court agreed with Charlie’s Win and declared the covenants lapsed.
The Supreme Court affirmed. Because the extension clause and the modification clause were separate and unambiguous provisions within the covenants, allowing for a modification to the entirety of the covenants would render the renewal clause’s two-thirds affirmative vote requirement meaningless. The plain language of the covenants required that two-thirds of all owners, not just voting owners, agree to renew the covenants. The covenants were not renewed and thus are no longer enforceable.
Points of Interest: declaratory judgment, covenants, property
2025 MT 46
Observing a minor in the nude, without photographing or filming the encounter, may still constitute “sexual conduct” as defined by § 45-5-625(5)(b), MCA, and may support a conviction for sexual abuse of children under that statute.
Brennan was arrested for sexual abuse of a child after his teenaged stepdaughter reported that Brennan watched her change clothes or after showering. During these incidents, Brennan sometimes asked her questions about sex or grooming her pubic area. She also reported that he would “cuddle” with her in bed. After the jury convicted Brennan of sexual abuse of children under § 45-5-625, MCA, he moved for a new trial, arguing that watching his stepdaughter change did not amount to a “depiction” of a child in the nude for purposes of § 45-5-625(1)(a), MCA. The District Court agreed, granted Brennan’s motion, and dismissed the charge.
The Supreme Court reversed. A depiction may include photographs or other reproductions but it also includes the in-person viewing of a child nude or in a state of undress. The step-daughter testified to her own feelings of humiliation due to Brennan’s behavior and the jury could have reasonably inferred from the “cuddling” that the conduct served to gratify Brennan’s own desires.
Points of Interest: sexual offenses, statutory interpretation, sufficiency of evidence
2025 MT 43
David L. Murphy Props., LLC v. Painted Rocks Cliff, LLC
A dock did not violate the neighbor’s right to access a cove when it only interfered with access in a ski boat. The neighbor had no prescriptive easement to access the cove because his use was not exclusive of the public.
The parties owned adjoining properties with Flathead Lake frontage. Painted Rocks’ property included most of a cove in which the water level varied by season. Murphy Properties owned the innermost part of the cove. Painted Rocks obtained a permit from Lake County and constructed a dock next to the cove’s entry point.
Murphy Properties sued Painted Rocks and Lake County, claiming they violated the Lakeshore Protection Act; Painted Rocks’ dock constituted a nuisance; and Murphy had a prescriptive easement over Painted Rocks’ property. Murphy brought these claims because its owner alleged he could no longer access the cove in his ski boat. Murphy based its Lakeshore Protection Act claim on the Act’s requirement that regulations favor issuance of a permit if the project will not, among other factors, interfere with navigation or other lawful recreation.
The Supreme Court reasoned that the public trust doctrine, which ensures that the public has the right to use waters, the bed, and banks up to the high water mark, provided the definitions for “navigation” or “recreation” under the Lakeshore Protection Act. Painted Rocks’ dock only impacted Murphy’s access to the cove using a ski boat; Murphy could still access the cove using other watercraft. Thus, the dock did not violate the Lakeshore Protection Act. The prescriptive easement claim failed because Murphy’s use of the cove—arising under the public trust doctrine—was not exclusive. Because the nuisance claim depended on the dock violating the Lakeshore Protection Act, the nuisance claim also failed.
Points of Interest: easements and roads, Lakeshore Protection Act, nuisance
2025 MT 42
The district court did not reject a stipulated procedural agreement where defendant mooted it by deciding not to testify. The district court did not abuse its discretion when it rejected a proposed supplemental jury verdict form because the jury instructions unambiguously required a unanimous determination on defendant’s affirmative defense.
Walla was charged with Deliberate Homicide after he shot Bowers. Walla notified the District Court that he would assert an affirmative defense of Justifiable Use of Force. At trial, Walla proposed to testify that he knew Bowers was a violent person prone to “assaultive behavior.” The parties reached an agreement to determine the admissibility of Walla’s testimony by having his attorney make an offer of proof to the court. The court expressed doubts about the procedure, but before it could rule on it, Walla chose not to testify.
At the conclusion of trial, the parties and court settled jury instructions. Walla proposed a supplemental jury verdict form to ensure that the jury’s determination as to his Justifiable Use of Force defense was unanimous. The District Court rejected the form, noting that the instructions already commanded the jury that its verdict had to be unanimous and informed the jury that it was the State’s burden to prove beyond a reasonable doubt that Walla’s actions were not justified.
The Supreme Court affirmed, holding that the District Court did not improperly reject the stipulated procedural agreement because it did not actually reject it. Walla mooted the provision before the court could rule, and court’s expression of its doubt regarding the procedure did not improperly influence Walla’s decision not to testify. Furthermore, the trial court’s rejection of the supplemental verdict form was not an abuse of discretion because the jury instructions unambiguously required the jury to unanimously determine whether the State had proven that Walla’s actions were not justified.
Points of Interest: affirmative defenses, jury instructions, JUOF
2025 MT 41
A district court did not abuse its discretion by conducting an informal domestic relations trial after failing to fully explain the process when the parties did not object, fully participated, and suffered no prejudice from the manner in which the court conducted the IDRT hearing.
In a parenting plan action, the District Court conducted a final parenting plan hearing pursuant to the Informal Domestic Relations Trial process as set forth in Rule 17 of the Montana Uniform District Court Rules. Pursuant to MUDCR 17, the District Court was to “explain the informal domestic relations trial process and advise the parties of their right not to consent.” The court explained how it would be conducting the IDRT hearing and both parties confirmed they understood, but it did not inform the parties of their right not to consent to the IDRT process. Neither party objected to the manner the court set forth and both parties fully participated in the hearing. After the court issued its parenting plan, the father appealed, asserting the court’s failure to fully explain the IDRT process deprived the parties of a complete trial.
On appeal, the Supreme Court affirmed. Although the Court expects district courts to follow the IDRT procedures as set forth in MUDCR 17, in this instance, the District Court did not abuse its discretion in the way it conducted the IDRT hearing as the parties did not object, fully participated, and suffered no prejudice.
Points of Interest: IDRT, Uniform DC Rules, due process
2025 MT 37
Denying a defendant credit earned for time served or elapsed time creates a facially invalid sentence reviewable in a habeas corpus proceeding. Failure to complete an Adult Drug Treatment Court Program constitutes a compliance violation of the conditions of a suspended sentence, not a non-compliance violation.
Bokma was arrested for DUI in 2020 and released on the condition that he abstain from alcohol. When Bokma failed to abstain, he was again arrested. Under a plea agreement, Bokma accepted a three-year suspended sentence premised on his acceptance into ADTC. Should ADTC not accept him, Bokma faced a thirteen-month DOC commitment followed by a three-year suspended term. ADTC accepted Bokma and the District Court credited him for 20 days of time served. In November 2022, the State petitioned to revoke Bokma’s suspended sentence and Bokma stipulated that he was unable to complete ADTC. The court determined this was a non-compliance violation and Bokma was committed to DOC for a three-year term, with 27 days of jail time credit and eight days of elapsed time credit. Bokma, in his habeas petition, claims the court did not give him credit for time between October 31, 2021, and February 7, 2023, during which he was compliant with the terms of his probation.
The Supreme Court concluded that Bokma’s nonparticipation in ADTC was a compliance violation, not a non-compliance violation, because the conditions ADTC imposed on Bokma mirror the conditions of probation. However, because Bokma was not receptive to rehabilitation, the revocation was nonetheless proper because Bokma had exhausted the resources available to him through ADTC. After sufficient but unsuccessful attempts at rehabilitation implemented by a treatment court, this Court may affirm the revocation even if based upon the wrong type of violation. The nature of rehabilitative services provided by ADTC is the same as the intent animating the Montana Incentives and Interventions Grid. Bokma received credit for an additional 22 days of time served for a total of 49 days.
Points of Interest: DUI, conditions of release, credit for time served
2025 MT 36
A declaration made under § 1-6-105, MCA, is equivalent to an affidavit and, if it contains statements of the declarant’s personal knowledge sufficient to raise a genuine issue of material fact, summary judgment is improper.
CB1, a debt-collection agency, sued Hove for an unpaid medical bill. After CB1 moved for summary judgment based on affidavits from the provider that detailed services Hove received and the balances due, Hove responded with a written declaration that disputed portions of the affidavits and attached an explanation of benefits (EOB) from the insurer. The District Court granted summary judgment in CB1’s favor, discounting Hove’s declaration because it was not in proper form and disregarding the EOB as unverified. After the court entered judgment in CB1’s favor, Hove moved to amend the judgment, attaching a sworn affidavit that contained essentially the same information as the declaration, but urging the court to consider the information contained within because Hove alleged the affidavit was in the “correct form.” The court denied the motion to amend, clarifying that it had not disregarded the declaration and EOB for being in improper form but because they contained inadmissible hearsay because they were unverified and created by other people. The court further ruled that the declaration did not meet the criteria of § 1-6-105, MCA, because it was not dated.
On appeal, the Supreme Court held that a declaration made under § 1-6-105, MCA, is equivalent to an affidavit and that Hove’s declaration met the criteria because it was dated “March 2023” and the absence of a specific day was insignificant. Furthermore, the District Court incorrectly granted summary judgment because Hove’s declaration contained non-hearsay statements of Hove’s personal knowledge that were sufficient to raise a genuine issue of material fact that precluded summary judgment.
Points of Interest: summary judgment, evidence, affidavits/declarations
2025 MT 35
An estate may be equitably estopped from enforcing a statutory time bar on creditors’ petitions for allowance of claims in the limited circumstance that the personal representative assures creditors that filing a petition is unnecessary.
Dan Eddleman was the majority member of the Eddleman Oar Lock Ranch. Dan established a Trust for his daughter, Madelyn, giving the Trust minority membership in the Ranch. Dan died in August 2022. In his will, Dan designated his friend, Tom, as the personal representative of his estate and devised all his property to his ranch hand, John. Multiple creditors’ claims amounting to millions were filed against Dan’s estate. Claimants included the Trust, Dan’s ex-wife, Dan’s sister, the Ranch, and Madelyn. Tom allowed some claims but disallowed most in full. The creditors and John negotiated with Tom to extend the deadline by which they needed to petition for allowance of claims. As the first deadline to petition for allowance neared, creditors asked Tom’s attorney to prepare a second extension. Tom’s attorney agreed, confirming the estate would not take the position the claims were time-barred. John was unwilling to consent to the second extension. Nevertheless, Tom’s attorney obtained signatures for the second extension from every interested party except John. The District Court granted the second extension, and the creditors filed petitions for allowance in accordance with the second extension’s deadline. John filed a Motion to Reconsider, and the District Court rescinded its order granting the second extension, stating all petitions for allowance of claims filed after the first deadline were forever barred.
The Supreme Court reversed, noting Tom lacked authority to unilaterally consent to the second extension without John’s consent. However, the estate could not enforce the time bar because claimants relied, to their detriment, on assurances from Tom’s attorney in failing to petition for an allowance before the first deadline. The Court instructed the District Court to proceed as if the claimant’s petitions filed before the second deadline were timely.
Points of Interest: estate law, estoppel, personal representatives
2025 MT 34
Protect the Gallatin River v. Gallatin Cnty., Dep’t of Planning & Cmty. Dev.
A floodplain administrator did not violate the public’s constitutional right to participate by not reopening public comment during the period after a party’s application was complete and prior to issuing the permitting decision.
The Pfeils own unzoned land on an island in the Gallatin River, which they seek to develop into a glamping resort. As part of the project’s development, the Pfeils applied for a floodplain permit from the Gallatin County floodplain administrator. The County published notice of the application in the newspaper and sent notice directly to both adjoining landowners and interested community members, including members of Protect the Gallatin River. The floodplain administrator provided for a public comment period longer than required by the County Floodplain Regulations. After receiving extensive public comment, the administrator asked the Pfeils to respond to issues raised by the public comment. The Pfeils responded approximately four months later, and the administrator approved the application seven months after that. PTGR appealed to the District Court, asserting its right to participate was violated by the administrator not re-opening public comment after the Pfeils’ response. The District Court found PTGR’s right to participate was not violated.
On appeal, the Supreme Court affirmed. The floodplain administrator provided a longer public comment period than required by the GCFR, properly notified adjoining landowners, and went out of his way to notify interested community members, including members of PTGR. After the Pfeils responded to public comment at the administrator’s request, the administrator was not required to re-open public comment to allow the public to comment on the Pfeils’ response, thereby creating an endless cycle of comments and responses.
Points of Interest: right to participate, notice
2025 MT 31
Defendant was not entitled to lesser-included offense instructions where he did not present sufficient evidence to support them.
Avidiya broke into the home of his great-grandmother, held her face against her pillow, stole her purse, and fled. Police arrested Avidiya after finding green paint in several places at his great-grandmother’s house and reviewing video footage of him at a gas station shortly after the break-in making a purchase with cash and covered in green paint. Avidiya was charged with Aggravated Assault and Aggravated Burglary.
At trial, Avidiya cross-examined his great-grandmother, during which she acknowledged that he may have held her face against her pillow to hide his identity and that Avidiya had not been to her house for several years. Avidiya also questioned her hearing and the sufficiency of the State’s overall investigation. Avidiya did not call any witnesses. At the end of trial, Avidiya submitted jury instructions on the lesser-included offenses of Assault, Theft, and Trespass. The District Court rejected the proposed instructions because they were not supported by sufficient evidence.
The Supreme Court affirmed, holding that Avidiya had not presented sufficient evidence to support any of his proposed lesser-included offense instructions. As to Assault, the mere fact that Avidiya might have intended to obscure the victim’s vision by pushing her head into her pillow did not diminish the victim’s reasonable belief that his actions threatened her with serious bodily injury. As to Theft, the Court held that the fact that Avidiya and the victim were related did not diminish the victim’s assertion that Avidiya did not have permission to be in her home after several years’ absence. As to Trespass, the Court reiterated its holding in State v. Martinez, 1998 MT 265, that evidence, which if credited by the jury would require acquittal, does not support an argument for a lesser-included jury instruction.
Points of Interest: jury instructions, lesser-included offense, sufficiency of evidence
2025 MT 30
Lee lacked standing to challenge the constitutionality of a mandatory parole restriction because the District Court did not sentence him under that provision.
Lee pleaded guilty to one charge of Sexual Abuse of Children. The “12-year-old child” Lee planned to meet to have sex with was an undercover law enforcement officer. Law enforcement apprehended Lee upon his arrival. The State sought a mandatory 25-year parole restriction that may apply when “the victim” is 12 years old or younger. Lee filed a sentencing memorandum, seeking a determination that the mandatory parole restriction did not apply to him due to his diminished mental capacity. Lee also sought a determination that the mandatory restriction did not apply as no actual “victim” existed. The court denied Lee’s motion for determination that the restriction did not apply because of the lack of actual victim, but agreed the mandatory parole restriction did not apply to Lee due to his mental capacity. The court imposed a discretionary 25-year parole restriction.
On appeal, Lee argued the mandatory parole restriction was unconstitutional as a cruel and unusual punishment and as not founded on principles of prevention, reformation, public safety, and restitution. The Supreme Court held that Lee’s constitutional and statutory arguments were not properly before it. Lee did not have standing to challenge the constitutionality of the mandatory parole restriction because the trial court did not sentence him pursuant to that subsection but instead imposed its own discretionary restriction. Therefore Lee could not demonstrate a direct, personal injury resulting from the challenged mandatory parole restriction.
Points of Interest: sentencing, standing, sexual offenses
2025 MT 29
Hutchinson v. Old Republic Nat’l Title Ins. Co.
Insurers have no duty to defend where it is unequivocal that the claim against an insured does not fall within their policy’s coverage.
The Hutchinsons purchased rural property accessible via a private road across an easement on land owned by Nugget Creek Ranch. The Hutchinsons obtained a title insurance policy through Old Republic. After taking possession of the property, the Hutchinsons requested modifications to the Ranch’s gates across the easement. The Ranch declined to modify the gates, and the Hutchinsons sued, claiming they had been denied ingress and egress to their property. The Ranch asserted counterclaims, which the Hutchinsons asked Old Republic to defend against. Old Republic declined to defend, noting that neither the easement nor tort claims brought by the Ranch were covered by the policy. The Hutchinsons filed a separate lawsuit against Old Republic, claiming Old Republic’s denial of defense was a breach of contract and constituted unfair claim settlement practices. The lawsuit between the Hutchinsons and the Ranch settled in 2023, but the litigation with Old Republic continued. The District Court ultimately granted Old Republic’s motion for summary judgment and denied the Hutchinsons’, reasoning that Old Republic had no duty to defend because the Hutchinsons’ title policy clearly excepted disputes arising from the easement and excluded coverage for issues and conduct occurring after the policy’s effective date.
The Supreme Court affirmed, concluding that the Hutchinsons’ policy specifically excepted the easement across the Ranch’s land from its covered risks, and excluded coverage of issues related to the conduct of its insured after the policy date. Although insurers are generally under a duty to defend, that duty is not triggered when the underlying claims deal with issues specifically designated as outside the insurance policy’s scope of coverage.
Points of Interest: insurance, insurance policies, duty to defend
2025 MT 28
Hospital was entitled to immunity for terminating a doctor’s employment and revoking his privileges because the Health Care Quality Improvement Act provides qualified immunity to a professional review body for action taken against a physician if the peer review complied with certain due process and fairness requirements.
St. Peter’s Health terminated Dr. Weiner and revoked his clinical privileges after peer review proceedings found substandard patient care. Weiner sued, claiming breach of contract and other claims. SPH counterclaimed for breach of contract and asserted immunity against Weiner’s claims under the HCQIA. SPH argued the HCQIA entitled it to immunity for professional review actions taken against physicians. The District Court agreed, granted summary judgment to SPH, and dismissed Weiner’s other claims because they arose out of and were related to the peer review process. Weiner then appealed, arguing that SPH had failed to comply with the HCQIA’s due process requirements.
The Supreme Court affirmed. The HCQIA provides immunity to peer reviewers in furtherance of protecting patients. To qualify for immunity under the HCQIA, these peer review actions need to comply with HCQIA due process and fairness requirements. In SPH’s four peer review actions against Weiner, SPH fulfilled these obligations in the reasonable belief that the actions would protect patients from incompetent treatment by Weiner, who had ordered treatments for conditions without documented diagnoses and prescribed high dosages of narcotics outside the scope of his privileges. SPH took appropriate peer review actions in furtherance of quality health care, made reasonable effort to obtain the facts of the matter, provided Weiner with adequate notice and hearing procedures under the circumstances, and in the reasonable belief that action was warranted by the facts uncovered by the investigation.
Points of Interest: employment law, breach of contract, immunity
2025 MT 25
When designating a sexual offender’s risk tier level pursuant to § 46-23-509, MCA, a district court is not required to accept the recommendation of the psychosexual evaluator because courts are given wide latitude to consider additional information relevant to the treatment of the offender and the risk posed to the victim or community.
On the day set for his jury trial, Garcia entered an Alford plea to felony sexual assault of an underage boy. The court appointed a psychosexual evaluator, whose report recommended Garcia be designated as a Level 1 sexual offender. The pre-sentence investigation echoed the recommendation of the evaluator. At Garcia’s sentencing, the State offered evidence from a lead investigator, the pre-sentence investigator, and victims, suggesting Garcia used grooming tactics against multiple victims, had sex toys in his possession which his victim recognized as being used during the commission of Garcia’s crime, and regularly bribed young boys with electronics. Both the psychosexual evaluator and the pre-sentence investigator testified that their evaluative techniques did not account for multiple factors present in Garcia’s case, including use of grooming tactics and uncharged conduct. The District Court sentenced Garcia to forty years in prison, with twenty suspended, and designated Garcia a Level 2 sexual offender. Garcia appealed, claiming the court was statutorily obligated to adopt the tier level recommendation of the psychosexual evaluator.
The Supreme Court affirmed. Relevant evidence supported Garcia’s Level 2 designation. Section 46-23-509, MCA requires the trial court to review psychosexual evaluations and victim statements upon sentencing but does not mandate the court adopt psychosexual evaluators’ recommendations. The sections outlining the psychosexual evaluator’s duty to recommend a tier level and the trial court’s duty to designate an offender’s tier level are separate. Furthermore, precluding a court from considering all relevant information upon sentencing may lead to an absurd result.
Points of Interest: sentencing, sexual offenses, presentence investigation
2025 MT 24
A motocross course violated restrictive covenants guaranteeing that properties would be used only for residential and agricultural purposes and prohibiting activities that unreasonably disturbed other landowners. However, motocross ramp-building did not violate the covenants’ prohibition against commercial activity because they were not built for sale.
Larsen and Sayers owned lots in a subdivision outside Butte subject to restrictive covenants. The covenants ensured that lots “shall be used for residential and agricultural purposes only, . . . and no business, manufacture or other commercial activity shall be conducted thereon.” The covenants further provided that lots could not be used in a way that “unreasonably disturb[s] the owners of tracts located in the said real property.”
Sayers built a freestyle motocross course on his property. He also built freestyle motocross ramps for personal use and rental to others. The Larsens sued, claiming breach of restrictive covenant and requesting injunctive relief against Sayers’ motocross activities. The Larsens further requested injunctive relief to prevent Sayers from hitting golf balls onto their property. The Larsens and another neighbor testified that the noise and dirt from the motocross bikes severely disrupted their everyday life. The District Court ruled that the motocross activities did not violate the covenants but enjoined Sayers from hitting golf balls onto their property. The court denied the Larsens’ request for attorney’s fees.
The Supreme Court held that Sayers’ motocross course violated the residential purposes requirement of the covenants because it was not necessary to the enjoyment of their house. The motocross course unreasonably disturbed the Larsens in violation of the covenants. However, Sayers’ ramp-building did not violate the covenants’ prohibition against commercial activity because Sayers did not build them to sell. Because the Larsens were the prevailing party at trial, the Court reversed and remanded for the trial court to award them attorney’s fees.
Points of Interest: covenants, property, injunctions
2025 MT 23
When a child dies intestate, evidence showing that the parent voluntarily relinquished custody, misused financial benefits intended for the child, and failed to provide necessities for that child’s welfare is sufficient to preclude the parent from inheriting the child’s estate pursuant to § 72‑2‑124(3), MCA.
M.A.C., aged eleven, died in a car accident. The vehicle’s insurer sought to convey a settlement to M.A.C.’s estate. The District Court appointed a professional fiduciary to act as the Estate’s personal representative after M.A.C.’s mother, Lisa, failed to initiate probate proceedings. The PR petitioned to preclude Lisa from inheriting pursuant to § 72‑2‑124(3), MCA, on the basis that Lisa refused to support M.A.C. During the petition hearing, M.A.C.’s brother and half-siblings testified, and the court admitted investigative reports prepared by Child and Family Services as well as letters from the Social Security Administration. The court granted the petition and directed distribution of the Estate. Lisa appealed.
The Supreme Court affirmed. Section 72‑2‑124(3), MCA, abrogates a parent’s statutory right of intestate succession if that parent refused to support the deceased child. Although the District Court erred by admitting the investigative reports containing inadmissible hearsay, the error was harmless because the evidence in the reports the court relied upon was cumulative of M.A.C.’s brother and half-siblings’ testimony, and the SSA letters concerning M.A.C.’s survivor benefits. The testimony showed that at the time of the accident and for six months prior, M.A.C. lived with her older half-sister due to Lisa’s drug use and housing instability; Lisa refused to consent to dental and medical care for M.A.C.; and Lisa refused to provide financial support for M.A.C.’s care. The SSA letters stated Lisa misused M.A.C.’s survivor benefits. Based on this evidence, the Court did not err in finding Lisa refused to support M.A.C. and concluding § 72‑2‑124(3), MCA, barred Lisa from inheriting the Estate.
Points of Interest: estate law, intestacy, personal representatives
2025 MT 22
GBSB Holding, LLC v. Flathead Cnty. Bd. of Cnty. Comm’rs
The scope of a county-mandated public access easement in a subdivision did not include primary access to another private subdivision absent the parties’ ability to come to an agreement. Flathead County did not exceed its jurisdiction in granting a partial road abandonment.
GBSB sued for declaratory judgment that its subdivision (Baker 80) has a legal right to use a road in the adjacent Whitefish Hill Village subdivision as primary access. Alternatively, it argued on a petition for writ of review that Flathead County exceeded its jurisdiction when it abandoned a portion of a county road, Brady Way, within WHV.
The District Court granted the Village’s motion for summary judgment and upheld the County’s road abandonment. It reasoned that the WHV road was a private road encumbered by a public access easement in gross whose scope did not include primary access to Baker 80 residents. The court further held that, without an agreement, Baker 80 residents must use southern roads as primary access. The court also concluded that the Board did not exceed its jurisdiction in abandoning a portion of Brady Way.
The Supreme Court affirmed. It determined the relevant records supported the District Court’s conclusion, and county regulations require all subdivision roads be designated as public access easements. The Board gave Baker 80 the option to enter a road use agreement with WHV or to pave a southern road for access. The scope of the county-mandated public access easement did not automatically include a thoroughfare from one private subdivision to another.
On the alternative review of GBSB’s abandonment challenge, the Court refused to reweigh the evidence. Consistent with the appropriate legal standard, it considered whether the evidence furnished any legal and substantial basis for the decision. Under the relevant statutory sections, the evidence showed substantial record evidence for the Board’s decision, and the Board acted within its jurisdiction in approving the partial abandonment.
Points of Interest: declaratory judgment, easements and roads, property
2025 MT 18
A misdemeanor bench trial may be conducted without a written waiver of a defendant’s right to a jury trial when the totality of the circumstances demonstrates the defendant’s waiver of that right.
Cole twice orally requested a bench trial, rather than a jury trial, before the Justice Court for a misdemeanor PFMA charge. Cole did not file a written waiver of his right to a jury trial. After being convicted in the justice court, Cole appealed to District Court, asserting the Justice Court violated his right to a jury trial. The District Court affirmed, concluding that a totality of the circumstances showed Cole voluntarily, knowingly, and intelligently waived his right to a jury trial.
On appeal, the Supreme Court affirmed. The Court distinguished the plain language of the felony jury waiver statute, which requires a written waiver before a jury trial may be waived, from the misdemeanor statute, which requires the consent of the parties but does not require a written waiver. Reviewing the circumstances here, where Cole orally confirmed, multiple times, his wish for a bench trial in the justice court, the Court determined Cole knowingly, voluntarily, and intelligently waived his constitutional right to a jury trial and written waiver was not required because it was a misdemeanor case.
Points of Interest: waiver, jury trials, misdemeanors
2025 MT 12
A district court did not err when it denied a motion to modify a ten-year-old sentence because the elimination of a specific sex offender treatment program did not render the sentence factually erroneous.
Damon was sentenced to 50 years at MSP with 10 suspended and designated a Tier II sex offender. Damon was required to complete Phases I and II of sex offender treatment as a condition of parole. Damon waited 10 years to be enrolled in Phase II programming, but the program was then eliminated in favor of adopting an evidence-based treatment program. Damon moved the District Court to modify his initial sentence to allow him to attend a residential sex offender treatment program outside MSP to satisfy his previous sentence requirement, reasoning that the elimination of the previous sex offender treatment program rendered his sentence impossible to complete and thus factually erroneous. The court denied his motion, outlining that no authority existed for the amendment of a ten-year-old sentence.
Damon appealed the denial of his motion pro se. The Supreme Court affirmed the District Court’s denial of the motion to modify his sentence, concluding that despite the elimination of MSP’s sex offender program, DOC had implemented a new sex offender treatment program that would satisfy his sentence requirement and the programming change did not render his sentence factually erroneous.
Points of Interest: sentencing, sentencing conditions, sexual offenses
2025 MT 11
Because defendant knowingly and voluntarily waived the right to appeal all but the issue of credit for incarceration, the defendant could not appeal the dismissal of their speedy trial motion.
Golas was arrested after a one-vehicle crash and was charged with felony driving under the influence, operating a vehicle while the privilege was suspended, and failure to carry proof of insurance. He originally pleaded not guilty. After several delays occurred, Golas moved to dismiss for lack of speedy trial, which the District Court denied. Golas eventually pleaded guilty and reserved his right to appeal only issues related to “credit for incarceration prior to conviction for mandatory, statutory fines.” However, on appeal, Golas’ sole argument was that the District Court erred by denying his motion to dismiss for lack of speedy trial.
The Supreme Court affirmed. When a defendant knowingly and voluntarily pleads guilty to an offense, the defendant waives all non-jurisdictional defects and defenses and may attack only the voluntary nature of the plea and any adverse pretrial rulings that are specifically reserved for appeal. Golas’s plea was made knowingly and voluntarily and, because he had not specifically reserved the right to appeal the denial of the speedy trial motion, it was not properly before the Court.
Points of Interest: waiver, plea agreements, appellate procedure
2025 MT 10
A district court must hold a hearing prior to granting a motion to amend a parenting plan under § 40-4-220(1), MCA.
Thomas and Hope have two children together. The District Court entered a final parenting plan in 2017. Later that year, Hope filed a motion to amend the parenting plan. After nothing occurred in the case for some time, Hope filed another motion to amend the parenting plan in 2024. Thomas filed a response objecting to the proposed amendment. Without holding a hearing, the District Court granted Hope’s motion to amend the parenting plan.
On appeal, the Supreme Court reversed. The plain language of § 40-4-220(1), MCA, requires a court to hold a hearing on a motion to amend a parenting plan unless it finds inadequate cause set forth in the pleading documents and denies the motion to amend. A court may not grant a motion to amend a parenting plan under § 40-4-220(1), MCA, without holding a hearing.
Points of Interest: family law, parenting plan, due process
2025 MT 9
Mercer v. Mont. Dep’t of Pub. Health & Hum. Servs.
District Court did not err in granting a mandatory preliminary injunction to a legislator seeking review of DPHHS records, including attorney-client privileged communication, because the balance of equities tipped in the legislator’s favor, and the injunction is in the public interest.
Mercer requested review of records related to a child abuse and neglect case pursuant to § 41-3-205, MCA, which allows for review by a legislator upon request. DPHHS provided some records, but Mercer believed some communications were missing. He requested all relevant communications generated or received by DPHHS employees. DPHHS responded that they would disclose all requested communications except for claimed attorney-client privileged information, which they argued was implicitly protected from disclosure. Mercer applied for a mandatory preliminary injunction requiring DPHHS to turn over all relevant materials.
The District Court granted the preliminary injunction, ordering DPHHS to turn over all communications that did not otherwise fall within a disclosure exception in statute, including purportedly privileged records. The court required additional confidentiality protections, whereby Mercer signed an agreement to keep all records confidential. DPHHS appealed.
The Supreme Court held that the District Court did not err in applying the heightened factors governing a mandatory preliminary injunction. DPHHS was required to turn over all relevant communications not explicitly limited by statute including the claimed attorney-client privileged communications. Mercer established, sufficient for this stage of the proceedings, that the law and facts clearly favored his position, a showing of irreparable damage absent the injunction was “overwhelmingly satisfied,” the balance of equities tipped in Mercer’s favor, and the preliminary injunction was in the public interest.
Points of Interest: preliminary injunction, privileges
2025 MT 6
District Court did not err in concluding DPHHS made sufficient active efforts to reunify family under ICWA/MICWA where Father refused or failed to take advantage of offered services.
DPHHS assisted the parents of L.B. and R.B. because the family was homeless, domestic violence in parents’ relationship caused them to be barred from shelters, and Father struggled with alcoholism. The children, who were subject to ICWA/MICWA, were removed from Parents in December 2021 and adjudicated youth in need of care in February 2022. In September 2023, DPHHS proposed placing the children in a state-sponsored guardianship. The District Court approved the request after hearing.
Father appealed the guardianship determination, arguing that DPHHS did not provide him with sufficient assistance to help him maintain sobriety and obtain stable housing. DPHHS asserts that it made “active efforts,” as required by ICWA/MICWA, including referring Father to numerous providers, taking extraordinary steps to locate him when he was transient, assisting him with applications, and seeking professional assistance from a Native American service provider to communicate more effectively with Father. However, Father refused many services and failed to follow through with others.
Noting that “active efforts” require more than referrals for services, the Supreme Court concluded that DPHHS fulfilled its obligations in this case because it took significant actions beyond making referrals including providing Father with several prepaid cell phones to facilitate his ability to contact providers, driving him to appointments, assisting him in filling out applications, and providing him with information about the children to encourage visitation. DPHHS also worked to meet the children’s needs and to locate and engage Mother, which are considered part of the “active efforts” it must make. The District Court did not err in concluding that DPHHS made active efforts and that further efforts would be unproductive and not in the children’s best interests.
Points of Interest: dependent neglect, guardianship, MICWA/ICWA
2025 MT 3
Mont. Env’t Info. Ctr. v. Mont. Dep’t of Env’t Quality
MEPA required DEQ to consider greenhouse gas (GHG) emissions in an environmental review for a permit of a natural-gas-fueled power plant. Section 75‑1‑201(6)(c)(ii), MCA, mandates a court make specific findings before granting equitable relief, including vacatur.
Plaintiffs sued NorthWestern and DEQ after DEQ issued a permit to NorthWestern to build and operate a natural-gas-fueled power plant. The District Court concluded the environmental review sufficiently analyzed the plant’s noise impacts, but the lighting impacts analysis and the failure to analyze GHG emissions was arbitrary and capricious. The court vacated the air quality permit and required DEQ to redo those analyses. Defendants appealed the vacatur order. The court granted Defendants’ request to stay the vacatur, thus allowing the plant’s construction to continue while the case was appealed.
The Supreme Court affirmed the rulings on noise, lighting, and GHG emissions’ impacts. The lighting impacts analysis, which consisted of one general and conclusory statement, was arbitrary and capricious. For GHG emissions, MEPA expresses the Legislature’s intent that state agencies fully consider all aspects of a proposal and inform the public of impacts. The administrative comment period generated hundreds of public concerns regarding an undisputedly significant amount of GHG emissions. Even though GHG emissions are not presently governed by specific standards, DEQ must analyze the emissions’ impacts to comport with MEPA’s unique role in protecting Montanans’ constitutional right to a clean and healthful environment.
The Court reversed the decision to vacate the permit. Under § 75‑1‑201(6)(c)(ii), MCA, MEPA requires a court make specific findings before granting equitable relief, including vacatur, to a party challenging an agency’s environmental review. The District Court did not apply the statutory requirements, and Plaintiffs did not argue those requirements could be satisfied were the case remanded. The Court reinstated the permit and sent the case back to DEQ for further evaluation.
Points of Interest: DEQ permits, MEPA, remedies
2025 MT 2
Article II, Section 9, of the Montana Constitution, allows for a limited gubernatorial privilege that may shield from public disclosure advice provided to the Governor from his advisors if that advice is essential to the Governor carrying out his constitutional duties and if its disclosure would risk chilling his advisors’ candor in offering the advice.
O’Neill sued the Governor seeking disclosure of certain Agency Bill Monitoring forms. O’Neill argued he was entitled to the ABMs under the constitutional right to know. Art. II, Sec. 9, Mont. Const. The Governor asserted an absolute executive privilege that would shield disclosure of the ABMs. The District Court ruled that Montana law did not recognize any form of executive privilege, but the Governor could submit the documents for the court’s review to determine to what extent the attorney-client privilege and privacy exception to Article II, Section 9, might apply.
The Supreme Court held the District Court erred when it determined that Montana law did not recognize any form of gubernatorial privilege. The Governor was constitutionally entitled to information from executive officers both in the 1889 Constitution and the 1972 Constitution, so the governor was entitled to candid advice from those officers, like clients are entitled to candid advice from their attorneys. Candor privileges are limited by their underlying purposes, and the gubernatorial privilege is limited to information essential to the Governor’s ability to carry out his constitutional duties and whose disclosure posed a risk of chilling future candor.
In addition to considering attorney-client and privacy considerations, a court’s review must also consider whether gubernatorial privilege applies to any of the information, consistent with certain parameters. The Governor has the burden of proving via privilege log that the privilege applies, and the reviewing court must give effect to the right to know by redacting privileged information and disclosing the remaining unprivileged information.
Points of Interest: privileges, right to know, Art. II(9)
2025 MT 1
Mont. Trout Unlimited v. Mont. Dep’t of Nat. Res.
Although the Montana Water Use Act regulates the beneficial use, and waste, of water, Tintina’s proposed mine dewatering qualified as neither a beneficial use nor waste and is therefore not subject to the MWUA’s permitting process.
Tintina applied for a water use permit for a proposed copper mine near the Smith River. DNRC approved Tintina’s permit for the water it intended to use in its mining operation and determined that water removed from the mine and discharged back to the aquifer (mine dewatering) was neither a beneficial use nor a waste and thus was not required to be permitted under the MWUA. The District Court agreed.
The Supreme Court affirmed the District Court and DNRC’s determination. Trout Unlimited argued that mine dewatering should be considered a beneficial use and that DNRC’s interpretation violates the Montana Constitution. The Supreme Court held that the MWUA was implemented to regulate water rights, but not the water resource itself. DNRC’s interpretation of Tintina’s proposed mine dewatering as outside the scope of a beneficial use or waste of water was in line with decades of agency decisions and policy.
Points of Interest: DNRC permits, natural resources, water law
2024 MT 322
When the granting language of a specific easement is unambiguous, interpretation of the easement’s scope is not subject to parol evidence regarding the original grantors’ intent and the plain meaning of the granting language applies.
Tait and Janz planned to construct a second residence at the base of their property, adjacent to Whitefish Lake. The proposed ingress and egress for the new construction was a narrow dirt roadway crossing their property and several other homeowners’ lots as part of an express easement providing all lot owners with use of the roadway, allowing convenient access to the lake shore. The other homeowners challenged the proposed use of the road, arguing the easement’s original scope was limited to seasonal use, not for regular travel to and from a residential property, and that their properties would be unduly burdened by the construction of the new residence. The District Court determined that the easement’s granting language was specific and would not prohibit the intended year-round use of the road. In so doing, the District Court refused to consider testimony from one of the original grantors, who stated the grantors’ intent was to allow for access to the dirt roadway in summer months only. This appeal followed.
The Supreme Court concluded the District Court did not err in determining the scope of the easement was specific as to whether motor vehicle traffic was permitted and whether use was limited to the summertime, and did not prohibit the proposed use to construct a residence on their property. Any claims that construction of the residence would ultimately unduly burden the easement were non-justiciable, as no construction had actually occurred.
Points of Interest: easements and roads, contracts, parol evidence
2024 MT 321
Where a plea agreement contemplates a sentence in excess of statutory authority, the State agrees to a reduced sentence, and the defendant cannot show that they were induced by the longer sentence such that a shorter sentence would not have induced them to plead guilty, there is no good cause to withdraw a guilty plea.
Welch agreed to plead guilty to four counts with maximum three-year sentences. The parties agreed to recommend five-year sentences with an additional five suspended for each of the counts. Welch later sought to withdraw his guilty pleas as involuntary because they contemplated an illegal sentence, which the District Court denied.
The Supreme Court affirmed the District Court’s denial. Generally, a defendant may withdraw a guilty plea when the plea contemplates an illegal sentence. However, if the plea contemplates a sentence in excess of statutory authority, but the court accepts a sentence reduced to within lawful parameters, the plea may stand even when the defendant disagrees. The general rule serves defendants who were induced to plead guilty by a promise in the plea agreement that cannot be imposed, but the promise of a longer term than that which can be imposed will generally not induce a defendant to agree to a plea.
Points of Interest: plea agreements, sentencing, illegal sentences
2024 MT 320
Sw. Distrib. Co. v. Mont. Nineteenth Jud. Dist. Ct.
For a court to exercise personal jurisdiction under M. R. Civ. P. 4(b)(1)(A), the party’s business transactions in Montana must arise from the underlying claims. Where the complaint does not allege a tort, jurisdiction cannot be exercised under Rule 4(b)(1)(B).
Southwest Distributing, an Arizona corporation, manufactures the component chemicals of polyurethane spray foam insulation. It sold these chemicals to a third-party distributor in Minnesota, who then sold them to North Idaho Insulation, an Idaho-based insulation contractor. North Idaho Insulation then installed spray foam insulation in a Troy, Montana, residence, resulting in damage. North Idaho Insulation filed a third-party complaint against Southwest for indemnification and breach of warranty. Southwest challenged the court’s personal jurisdiction. The District Court denied Southwest’s motion to dismiss for lack of personal jurisdiction, concluding that specific jurisdiction existed under either M. R. Civ. P. 4(b)(1)(A) or (B). Southwest then petitioned the Supreme Court for a writ of supervisory control, arguing the District Court erred in exercising specific jurisdiction over it.
The Supreme Court granted Southwest’s petition and reversed the denial of the motion to dismiss. Because a third-party contractor brought the products at issue into the state, the claim did not arise from business Southwest transacted in this state, and Southwest’s business transactions within Montana were not otherwise sufficient to confer jurisdiction. Additionally, breach of warranty and indemnification claims are not tort claims, thus the District Court could not exercise personal jurisdiction for the accrual of a tort in Montana. Specific jurisdiction was inappropriate under the circumstances because Southwest did not purposely avail itself of the privilege of conducting business in the state, regardless of the company’s expectations that its products might enter Montana through the stream of commerce.
Points of Interest: Rule 4(b), specific jurisdiction
2024 MT 319
The State does not owe a nondelegable duty of care to persons outside of the State’s custody. However, an independent contractor of the State, regardless of its diligence in hiring and supervising employees, may owe a nondelegable duty to an individual who is completely dependent on its employees for care such that a close and continuous relationship arises between the independent contractor and the individual.
West Mont operates as an independent contractor of the State of Montana, providing disabled persons with community-based services, including housing. T.M.B., a 60-year-old woman with disabilities, was living at a West Mont group home in 2019 when she was raped by West Mont’s employee. T.M.B. sued the State and West Mont, alleging both owed her a nondelegable duty of care. The District Court granted the State summary judgment, reasoning the State had satisfied its statutory obligation to create a program for disabled persons and oversee West Mont’s licensures. The court also granted summary judgment to West Mont, concluding West Mont had not negligently hired or supervised its employee, and that no statute mandated unequivocal protection of group home residents.
On appeal, Supreme Court affirmed that the State did not owe a nondelegable duty to T.M.B. because she was not committed to the State’s custody or care and the State had no relationship with or control over West Mont’s employee. However, it reversed the District Court’s ruling regarding West Mont. By virtue of T.M.B’s disabilities and the nonprofit’s ongoing awareness of T.M.B.’s dependency on its staff for care, West Mont had assumed a nondelegable duty to provide protection to T.M.B. The case was remanded in part to determine whether West Mont had breached a nondelegable duty.
Points of Interest: nondelegable duty, negligence
2024 MT 318
Instructing jury on State’s alternative deliberate homicide by accountability theory was reversible error where evidence did not support the instruction and verdict form ambiguous as to which theory of guilt was the basis for conviction.
The State’s primary theory of guilt at trial was that the defendant committed the offense of deliberate homicide by shooting the victim. However, based on the defense theory, developed only through cross-examination of State witnesses, that because she did not shoot the victim, someone else did, the State sought jury instruction on an alternative theory of criminal liability: deliberate homicide by accountability. The District Court instructed the jury that it could find the defendant guilty for either personally killing the victim, or aiding and abetting whoever did. But, the verdict form did not differentiate between the alternate theories of guilt, and the jury returned a guilty verdict for the only available charge, deliberate homicide.
On appeal, the Supreme Court held that the State was not entitled to instruction on its alternative accountability theory because it presented no evidence that the defendant, either before or during and with a common purpose to cause the victim’s death, aided or abetted another person in the commission of the homicide offense. The erroneous instruction was compounded by the undifferentiated verdict form, which allowed the jury to convict the defendant on either theory of guilt, but without specifying which theory it found proved beyond a reasonable doubt. Where the jury could have convicted the defendant on the accountability theory in violation of constitutional due process, the errors were not harmless and thus reversible.
Points of Interest: jury instructions, accountability, due process
2024 MT 315
To be convicted of sexual intercourse without consent, a defendant must have known the victim was incapable of consenting.
A neighbor called police after witnessing Bryson spray Moreni with a hose while she was naked and screaming. Officers discovered Moreni, unresponsive, under a wet blanket. Bryson was arrested. At the hospital, Moreni claimed Bryson raped her. Moreni appeared intoxicated; medical examinations revealed a 0.412 blood alcohol content, as well as drugs in her system, scratches and bruises on her body, and abrasions to her vaginal wall. Bryson and Moreni had differing recollections of their time together: Bryson claimed they spent four days drinking and engaging in consensual sex, and that he was caring for Moreni by cleaning her off with the hose. Moreni said she met Bryson that morning and had not consented to sex. Bryson was charged with obstructing a peace officer, aggravated sexual intercourse without consent and, alternatively, sexual intercourse without consent.
At trial, the court precluded a nurse who previously treated Moreni from discussing Moreni’s chronic abuse of alcohol, but the nurse’s testimony was nevertheless suggestive of Moreni’s drinking. The jury was given model instructions for ASIWOC and SIWOC, which included a “knowingly” element for the crime of SIWOC. During deliberations, the District Court clarified the definition of “knowingly” for obstructing a peace officer, and further instructed the jury to rely on instructions given to render their verdict. The jury returned a guilty verdict for obstructing a peace officer and SIWOC. Bryson appealed his conviction for SIWOC, asserting his trial counsel was ineffective and that the District Court abused its discretion by excluding testimony concerning Moreni’s drinking habits.
The Supreme Court affirmed, noting the jury instructions correctly instructed the jury that Bryson was required to know Moreni was incapable of consenting. The Court concluded Bryson’s counsel was not deficient for failing to propose different jury instructions. As to the evidentiary issue, the Court determined the District Court attempted to balance prejudice concerns and, therefore, did not abuse its discretion.
Points of Interest: sexual offenses, consent, jury instructions
2024 MT 314
If an express easement is silent as to its planned or actual use, it is proper to resort to extrinsic evidence when analyzing its scope.
In 2020, H2S2 purchased a 20-acre tract of land to use for a “glamping” campground business. To access the property, H2S2 and its invitees had to utilize an easement that crossed Baugh’s property. The express easement specified its location, path, width, and “access and utility” purpose, but included no express intended restriction on its use. Baugh, who had originally granted the easement, was concerned that H2S2’s proposed commercial use would overburden the easement.
Baugh sued for declaratory judgment on the easement’s scope and injunctive relief enjoining H2S2’s planned commercial, arguing he could use extrinsic evidence to provide the intended scope of the easement. H2S2 responded that the easement was specific, clear, and unambiguous, thus precluding resort to extrinsic evidence to determine its scope, and countersued Baugh for wrongful restraint and interference with its use of the easement. After allowing extrinsic evidence to show the originally intended scope of the easement was for single-family use, the District Court granted summary judgment in Baugh’s favor, determining the commercial use of the easement would exceed the intended residential use. The court awarded attorney fees to Baugh under Montana’s Foy equitable exception to the American rule due to H2S2’s lack of evidence in support of its counterclaims.
On appeal, the Supreme Court affirmed the District Court on easement matter, concluding the express easement insufficiently defined its originally intended scope. Thus, the resort to extrinsic evidence was proper. However, the Court reversed the award of attorney fees, reasoning that H2S2’s counterclaims were valid despite losing the case on its merits.
Points of Interest: easements and roads, extrinsic evidence, declaratory judgment
2024 MT 313
Cottonwood Env’t L. Ctr. v. State
District Court erred in concluding that § 7-5-131(2)(f), MCA, violated Art. XI, Sec. 8, of the Montana Constitution, because the people of a local government unit do not have the power to pass an initiative that the local government is prohibited from exercising.
After the Legislature passed HB 407, which restricted local governments from prohibiting single-use plastic items, a member of Cottonwood Environmental Law Center submitted a local ballot initiative petition to regulate single-use plastic items in Bozeman. The Gallatin County Election Administrator rejected the petition on the basis that the petition exceeded local initiative power. Cottonwood then challenged the constitutionality of HB 407. The District Court granted summary judgment in Cottonwood’s favor, concluding that § 7-5-131(2)(f), MCA, violated Art. XI, Sec. 8, of the Montana Constitution, which provides that the legislature shall extend the people’s initiative and referendum powers to the qualified electors of each local government unit.
The Supreme Court reversed. Article XI, Sec. 6, of the Montana Constitution allows the Legislature to place limits on the power of local government, subject to other constitutional limits and rights. Those limits must necessarily also include limits on the local power of initiative. People exercising the right to local initiative are subject to the same rules as local government units. In this case, § 7-1-111, MCA, lists powers that local government units with self-government powers are prohibited from exercising. HB 407 amended that statute to prohibit those government units from exercising any power to regulate auxiliary containers. As the people’s right to initiative is subject to the same rules as local government unit, the people of a local government unit do not have the power to pass an initiative that the local government is prohibited from exercising.
Points of Interest: Art. XI(8), local government, ballot initiatives
2024 MT 312
Youth plaintiffs had standing to challenge constitutionality of statute that prohibited evaluation of greenhouse gas emissions and corresponding climate impacts; that provision is unconstitutional because it violates the right to a clean and healthful environment.
Youth plaintiffs sought declaratory and injunctive relief against the State, alleging its actions exacerbated the Youths’ harms from climate change. They sought declaration that certain provisions of the Montana Environmental Policy Act and the State Energy Policy Act violate their constitutional right to a clean and healthful environment and other relief. The State moved to dismiss, arguing: Youths lack standing; the remedies are precluded by the political question doctrine; and Youths failed to exhaust administrative remedies. The District Court concluded the Youths had standing but agreed that some requested remedies were beyond its authority. It allowed the matter to proceed only on relief that sought to enjoin the State from acting in accordance with laws declared unconstitutional.
After HB 170 repealed SEPA, the District Court dismissed the Youths’ SEPA claims. The court ultimately concluded that the fundamental constitutional right to a clean and healthful environment includes climate, and § 75-1-201(2)(a), MCA (the “MEPA limitation”), violates the constitutional right to a clean and healthful environment. The court permanently enjoined § 75-1-201(6)(a)(ii), MCA (2023) and it enjoined the State from acting in accordance with the statutes declared unconstitutional.
The Supreme Court affirmed. The Framers intended the guarantee to a clean and healthful environment to be “both anticipatory and preventative” and did not need to specifically envision the issue of global climate change for its effects to be protected by Art. II, Sec. 3, Mont. Const. The Youths demonstrated a personal stake in their fundamental right and that the MEPA limitation infringed upon that right, and they further showed a sufficiently concrete injury; thus they have standing. Furthermore, the MEPA limitation violates those environmental rights guaranteed by Art. II, Sec. 3, and Art. IX, Sec. 9, Mont. Const. The Montana Constitution does not permit the Legislature to prohibit environmental reviews from evaluating greenhouse gas emissions.
Points of Interest: right to clean & healthful environment, standing, MEPA
2024 MT 309
The calculation of an offender’s time served credit at sentencing starts on the day that the sentencing court gains jurisdiction over the offender and the defendant was detained subject to that jurisdiction.
In 2018, Risher began serving a five-year sentence with DOC. In 2022, Risher escaped from DOC custody and a Justice Court issued an arrest warrant for him on an escape charge. The warrant instructed that Risher be held until his initial appearance. On April 29, 2022, Risher was arrested and served with an administrative warrant, rather than the Justice Court warrant. On May 24, 2022, Risher had his initial appearance, and the Justice Court released him on his own recognizance on the escape charge but remanded him to DOC on his underlying sentence. Risher was convicted of escape and the District Court denied him credit for time served because he was serving time on his underlying sentence between his arrest and his sentencing.
Risher appealed, arguing that he was entitled to credit for time served under § 46-18-201(9), MCA. The statute provides than a District Court “shall provide credit for time served by the offender before trial or sentencing.” The State argued that Risher did not “serve time” prior to sentencing because it never served him with an arrest warrant in the escape case.
The Supreme Court reversed, holding that a District Court must calculate an offender’s time served credit by looking only at the record of the case before it and without reference to other DOC holds or incarceration. The calculation of time served starts when the court gains jurisdiction over the offender by issuing an arrest warrant and the offender is detained subject to that jurisdiction. Because the Justice Court warrant directed Risher be held until his initial appearance, Risher was entitled to credit for time served from the date of his arrest to the day he was released on his own recognizance.
Points of Interest: credit for time served, sentencing
2024 MT 308
The ten-day time limit for serving a search warrant established by
§ 46-5-225, MCA, is not violated if forensic analysis of encrypted, electronic devices requires more than 10 days when the devices were properly in state custody, and the search warrant was provided to the forensic analyst in that time frame.
Bao was arrested on suspicion of felony sex and labor trafficking. Missoula law enforcement seized several devices as part of an investigation into Bao and an alleged prostitution operation occurring in a Missoula massage parlor. Bao moved to suppress evidence from several devices, arguing that because the process of decrypting the device’s security took longer than 10 days, the warrant was no longer valid due to the § 46-5-225, MCA, time limit for serving the warrant lapsing. The District Court agreed, suppressing evidence from four devices that took longer than 10 days to decrypt.
The Supreme Court reversed. Because the devices had been validly seized and already in state custody pursuant to another warrant and the second warrant to search the phone was presented to the forensic analyst the day after its issuance, the warrant was not stale. The plain meaning of “serve” refers to delivering or exhibiting the warrant, not completing the full search of seized devices.
Points of Interest: search warrant, suppression, service
2024 MT 307
Under § 72-6-212, MCA, Payment on Death account proceeds belong to the designated beneficiary upon the account owner’s death. However, if the proceeds from the sale of joint tenancy property pursuant to a contract are deposited into a POD account, a resulting trust arises in favor of the joint tenant regardless of the POD beneficiary designation.
Robert Brenden’s widow, Jill, had deposited the proceeds from the sale of the couple’s jointly owned home into an account owned by Robert shortly before he died, unaware that Robert had designated his sister, Barbara Jensen, as the POD beneficiary for the account. After Robert’s death, Jill accessed the funds in the account for several months. Upon discovery of the POD designation, Barbara intervened in the probate action for Robert’s estate, arguing that Jill had converted the account by transferring the funds, including the proceeds from the home sale, into her own accounts. The District Court concluded that, because Jill had not made the transfers before Robert died, the funds in the account at the time of his death belonged to Barbara.
The Supreme Court affirmed in part and reversed in part. Barbara, as POD beneficiary, was entitled to the funds in the account. By transferring those funds after Robert died, Jill converted Barbara’s property. However, Jill was entitled to her share of the house proceeds deposited into the account and therefore could not have converted those proceeds. In depositing the proceeds from the sale of joint property, Jill had not intended to make a gift to her late husband and her share of the sale proceeds was held in a resulting trust in Robert’s account regardless of the POD designation.
Points of Interest: trusts and estates, conversion
2024 MT 306
Admission of a 911 caller’s statements that a person was about to drive under the influence violated a defendant’s constitutional right to confrontation, but the error was harmless due to the amount of admissible evidence proving the defendant’s intoxication.
A gas station employee called 911 to report that an intoxicated person had bought a six-pack of beer and was about to drive under the influence. A sheriff’s deputy responded to the call and made a traffic stop due to the vehicle’s expired registration. Due to several indicators of impairment observed during the stop, he arrested the driver for DUI. While the deputy was reading the implied consent advisory, the driver kicked him in the testicles. At trial, the State sought to admit the 911 call in its entirety under the business records exception. The defendant objected, asserting the caller’s opinion statements regarding intoxication and the belief she was going to commit the crime of DUI were testimonial statements. The court overruled the objection and the State played the call for the jury. The defendant appealed, asserting her credibility with the jury was damaged due to the caller’s non-cross-examined opinion that the defendant was intoxicated at the gas station.
On appeal, the Supreme Court affirmed. The District Court erred by admitting the 911 call in its entirety under the business records exception as it contained testimonial statements which the defendant had no opportunity to cross-examine, but that the error was harmless due to the overwhelming evidence of the defendant’s intoxication. When admitting a 911 call pursuant to the business records exception, the details of the caller’s out-of-court statements must also satisfy a separate hearsay exception—typically either the present sense or excited utterance exceptions. Even if the statements satisfy the exception, they are not automatically admissible when the statements are testimonial in nature because a defendant’s Sixth Amendment confrontation right may not be infringed. The wrongful admission, however, is subject to harmless error review, and the State has the burden to prove harmlessness.
Points of Interest: right of confrontation, hearsay, harmless error
2024 MT 305
The District Court abused its discretion by imposing certain probationary conditions the State requested as part of a domestic violence pilot program.
Ledeau pled guilty to PFMA pursuant to a plea agreement after he threw a rock through one of his ex-girlfriend’s windows and broke into her home after she refused to permit him entry. At sentencing, the State requested the District Court impose new probationary conditions developed as part of a pilot program related to domestic violence offenders. Ledeau objected to those probationary conditions, arguing that there was no evidence that these conditions were effective in reducing future domestic violence and further asserting the conditions were vague and bore no nexus to the facts underlying his conviction. The court imposed the conditions. It noted Ledeau had raised substantial questions about the pilot conditions and that imposition would allow appellate review of the conditions’ legality.
On appeal, the Supreme Court reversed and remanded to strike the challenged conditions. The pilot program conditions—one allowed for a warrantless search of a defendant’s electronic devices and the other required a defendant to file an intimate partner disclosure form for any person the defendant is romantically involved with—were overly broad and lacked sufficient nexus to Ledeau’s actual offense. In addition, the challenged pilot conditions were redundant to other standard probationary conditions imposed.
Points of Interest: PFMA, probation and parole, sentencing conditions
2024 MT 304
After Defendant discharged his counsel and proceeded pro se, his right to confront adverse witnesses was violated because the court allowed the State to present material witness testimony remotely, over Defendant’s objections, on the basis that his prior counsel had failed to object.
The District Court granted defendant’s written motion to proceed pro se four days before his scheduled trial. The defendant then objected to the State’s presentation of its primary material witness’s trial testimony remotely via two-way video conferencing. The court overruled the objections on the grounds that the defendant had “stipulated” to the remote testimony prior to trial because his counsel failed to object to the State’s motion, which the court granted months prior to trial.
On appeal, the Supreme Court determined that the District Court had apprised the defendant of his rights, the maximum possible punishments he faced on the charged offense, and the dangers of proceeding without assistance of counsel, and thus that his decision to proceed pro se was voluntary, unequivocal, and knowing and intelligent. However, the District Court the district court erroneously allowed the witness to testify remotely in violation of the defendant’s confrontation right because the State failed to assert, and the court failed to find, any case-specific important public policy-based reason for the witness’s remote testimony, and because the only indication of prior waiver was the State’s assertion that prior counsel did not object to its motion for remote testimony.
Points of Interest: right of confrontation, self-represented litigants, waiver
2024 MT 303
The Court upheld a preliminary injunction blocking implementation of a law that banned use of medications and surgery to treat gender dysphoria in minors because the State did not demonstrate that the statute was narrowly tailored to effectuate its compelling interest in safeguarding the physical and psychological wellbeing of minors.
The Legislature passed a law that proscribed the use of medications and surgery to treat gender dysphoria in minors. Plaintiffs—transgender youth, their parents, and medical professionals who provide the banned forms of treatment—sued to enjoin the law. The District Court granted Plaintiffs’ preliminary injunction.
On appeal, The State argued that Plaintiffs lacked standing to bring their claims. The Supreme Court held that, consistent with state and federal precedent, Youth Plaintiff Phoebe Cross’s undisputed standing was sufficient to confer standing on the remaining plaintiffs. Furthermore, the law posed a threat to the medical professionals’ licenses and ability to practice medicine, provided another basis for standing.
The Montana Constitution’s privacy right empowers an individual to make medical judgments affecting their bodily integrity and health, in partnership with a chosen healthcare provider, free from governmental interference. Because this law impacts individual privacy rights, the State must demonstrate the legislation was justified by a compelling state interest and was narrowly tailored to effectuate only that compelling interest. Although the State has a compelling interest in safeguarding the physical and psychological wellbeing of a minor, on the record presented, the State did not make a preliminary showing that the statute was narrowly tailored to serve that interest. Because the law imposes a complete ban, it affords no room for decision-making by a patient in consultation with their doctors and parents. It prohibits individualized care even when such treatment is determined, in the judgment of a medical professional, to be in a given patient’s best interest and given with informed consent. The Court upheld the preliminary injunction and held that conflicts in the evidence would need to be resolved during the merits determination.
Points of Interest: standing, preliminary injunction, right to privacy
2024 MT 302
City of Great Falls v. Int’l Ass’n of Firefighters
Because § 2-4-621, MCA, provides for final review of proposed agency decisions within the agency, this available administrative remedy must be exhausted as a prerequisite to judicial review pursuant to § 2-4-702(1)(a), MCA.
After the City of Great Falls unilaterally changed its employment policies without collective bargaining, affected city employee Unions filed unfair labor practice complaints pursuant to the Montana Public Employees Collective Bargaining Act MPECBA. Following a contested case proceeding under MAPA, the hearing examiner rendered a proposed agency decision and order in favor of the Unions. The MPECBA allowed for filing of “exceptions” to the proposed decision within 20 days; otherwise, it would become the agency’s final order. Instead of filing exceptions, the City petitioned for judicial review and argued that the § 2-4-702(1)(a), MCA, exhaustion of administrative remedies requirement did not apply to “purely legal questions.” The District Court dismissed the City’s petition.
On appeal, the Supreme Court first noted that MAPA § 2-4-621, MCA, similarly provides for filing of “exceptions” to proposed agency decisions, and thus for subsequent review of any “findings of fact” and “conclusions of law” by the agency prior to its rendering a final written decision pursuant to § 2-4-623, MCA. The Court held that the MPECBA “exceptions” remedy, in conjunction with §§ 2-4-621 and -623, MCA, provided the City a comprehensive administrative remedy that it failed to exhaust prior to seeking judicial review. The “pure question of law” exhaustion exception asserted by the City and assumed to exist in Shoemaker v. Denke, 2004 MT 11, 319 Mont. 238, 84 P.3d 4, is incompatible with MAPA’s provision for final agency review of agency conclusions and interpretations of law under §§ 2-4-621 and -623, MCA, and thus not cognizable as an exception to the exhaustion requirement found in § 2-4-702(1)(a), MCA.
Points of Interest: administrative law, MAPA, exhaustion
2024 MT 301
District Court erred by requiring, rather than recommending, a specific DOC placement, by ordering incarceration longer than provided for by statute, and by varying the changing the incarceration length from the oral pronouncement in the written judgment, but acted within its authority when it ordered completion of treatment court as a condition of a suspended sentence.
A jury found Villalobos guilty of felony possession, felony tampering with evidence, misdemeanor paraphernalia possession, and misdemeanor driving on a suspended license. The District Court orally sentenced him to three years at DOC, none suspended, and a requirement to enroll in treatment court for possession; two years, all suspended, for tampering, with the suspension conditional on completion of treatment court; and one year in jail, with all but 30 days suspended, on both the paraphernalia and driving while suspended counts. In the written judgment, the court changed the misdemeanor detention from 30 days to six months.
The Supreme Court vacated portions of the sentencing order and remanded with instructions. First, a trial court does not have the statutory authority to require placement in a DOC program such as a treatment court, but may only make a recommendation that DOC make such a placement. However, the trial court has the authority to order completion of treatment court as a condition of a suspended sentence because § 46-18-201(4)(p), MCA, allows a court to order conditions of a suspended sentence that are necessary for an offender’s rehabilitation, with the caveat that, if it is impossible for a defendant to fulfill a condition, it must be stricken as illegal. Finally, the Court vacated the misdemeanor sentences and remanded them for resentencing. As the State conceded on appeal, the District Court exceeded its statutory authority when it suspended the sentences in excess of the statutory maximum six months and increased the length of the orally pronounced sentences in the subsequent written judgment.
Points of Interest: sentencing, sentencing conditions, judgments
2024 MT 300
Seyler’s thirteen-day delay between his initial appearance and a judicial determination of probable cause was reasonable because he was represented by counsel from the beginning and defense counsel never moved to reduce his bail.
Seyler was arrested and incarcerated for two counts of burglary. The Justice Court held an initial appearance the next day and set Seyler’s bail at $100,000. Counsel from the Office of Public Defender filed a notice of appearance and request for discovery four days after Seyler’s initial appearance. The District Court granted the State’s motion for leave to file an information thirteen days after the initial appearance.
Seyler filed a motion to dismiss, arguing that the thirteen-day delay before receiving a judicial determination of probable cause was unreasonable. The District Court denied the motion and Seyler pleaded guilty. At sentencing, the District Court explained the fees that Seyler was required to pay, including “probation and supervisory fees,” but told Seyler that the enumerated fees were “the extent of [his] financial obligations.” In its written judgment, the District Court imposed $200 for costs of prosecution and a $50 pre-sentence investigation (PSI) report fee.
The Supreme Court affirmed Seyler’s conviction but remanded for the District Court to strike the cost of prosecution and PSI report fees from the written judgment. The delay in probable cause determination was not unreasonable because Seylor had not suffered any prejudice: he had counsel from the outset; 13 days was not excessive under the circumstances; and defense counsel never sought a reduction in bail. The cost-of-prosecution fee was unlawful because the District Court omitted this fee from the oral imposition of Seyler’s sentence. The PSI report fee was also unlawful because it conflicted with the oral imposition of Seyler’s sentence and substantively increased his loss of property.
Points of Interest: detention, judgments, fines and surcharges
2024 MT 292
City & Cnty. of Butte-Silver Bow v. Butte Police Protection Ass’n
Montana’s Uniform Arbitration Act narrowly constrains the scope of judicial review of arbitration awards. Even if termination of a police officer would have been justified under state law, the arbitrator could still find a contractual violation for the municipality’s failure to follow the CBA.
After Detective Staton experienced mental health issues due to hardship in her personal life, a hostile work environment, and stresses inherent to police work, Sheriff Lester ordered a fitness for duty evaluation (FFDE). The results indicated Staton did not meet the minimum police qualifications established by § 7-32-303, MCA. BSB did not inform Staton of the results. BSB kept Staton on paid leave for four months before terminating her employment. BPPA challenged Staton’s termination in binding arbitration. The arbitrator sided with Staton because BSB had not provided her with rehabilitative options prior to termination as required by the relevant CBA and rejected the FFDE as completely unreliable. The arbitrator ordered BSB reinstate Staton with back pay, administer another FFDE, provide additional rehabilitative options if necessary, and otherwise comply with the CBA. Instead, BSB sought judicial review, claiming that reinstating an unfit officer was illegal. The District Court confirmed the award in part but remanded to the arbitrator to fashion a new award based upon a result of a subsequent psychological evaluation—not an FFDE.
The Supreme Court affirmed in part and reversed and remanded in part. The Court agreed the arbitrator reasonably interpreted the CBA as requiring BSB to provide rehabilitative remedies for struggling officers, and the arbitrator had authority to weigh the credibility of the FFDE. However, the Court reversed the remand to the arbitrator because the second evaluation was a factual finding outside the scope of judicial review of arbitration awards. The Court accordingly remanded the matter to the District Court with instructions to confirm the original arbitration award.
Points of Interest: arbitration, employment law, collective bargaining agreements
2024 MT 284
Lake County’s suit against the State, seeking reimbursement for its costs of implementing Public Law 280 jurisdiction on the Flathead Indian Reservation, could not succeed because its unfunded mandate and unjust enrichment claims were time-barred, and the Legislature had discretion over reimbursement, if any, of the County’s P.L. 280 costs.
Montana assumed P.L. 280 jurisdiction over the Flathead Indian Reservation in 1965. In 2017, the County issued a resolution expressing that it could no longer pay for P.L. 280 jurisdiction without reimbursement. In 2021, the Legislature allowed the County to withdraw its prior consent to P.L. 280 jurisdiction and required the State to reimburse the County “to the extent funds are appropriated by the legislature.” In 2022, the County sued the State for unfunded mandate, unjust enrichment, and declaratory judgment. The County sought a declaration that the State must reimburse the County for its future P.L. 280 costs. The District Court dismissed all the County’s claims.
The Supreme Court rejected the State’s argument that the County’s claims were nonjusticiable but agreed with the District Court that the equitable tolling and continuing tort doctrines did not toll the statutes of limitations for the County’s unfunded mandate and unjust enrichment claims. The continuing tort doctrine does not apply where the only way to remedy the wrong is through the payment of money damages. Likewise, equitable tolling did not apply because the County’s prior negotiations with the Legislature were not the pursuit of a legal remedy. Finally, the County’s declaratory judgment action failed because § 2-1-301, MCA’s, plain language (“to the extent funds are appropriated by the legislature”), did not obligate the Legislature to fully reimburse Lake County for its P.L. 280 costs. The Court affirmed the District Court’s decision dismissing the County’s claims.
Points of Interest: jurisdiction, torts, justiciability
2024 MT 283
Oversight due to a high-volume caseload and a belief a case might settle do not constitute good cause for the State’s untimely notice of intent to seek Persistent Felony Offender status under § 46-13-108(1), MCA.
The State charged Gardner with felony criminal endangerment and felony partner family member assault, third or subsequent offense. Under § 46-13-108(1), MCA, the state must, except for good cause, provide notice of its intent to pursue PFO penalties at or before the omnibus hearing. The State provided no indication of its intentions until eight months after Gardner’s omnibus hearing and two weeks before trial was scheduled to begin. The District Court held a hearing on PFO designation, during which the State admitted to the oversight due to high case volume and a hope the case would settle. At trial, the jury found Gardner guilty of PFMA and not guilty of criminal endangerment. Despite conceding that the State filed the PFO notice after the statutory deadline for questionable good cause, the court designated Gardner as a PFO because he could not adequately articulate any prejudice suffered from the late filing.
The Supreme Court reversed. Under the clear language of the statute, the State must demonstrate good cause for a failure to provide timely PFO notice, not just a lack of prejudice to the defendant. Indeed, the lack of notice is in fact prejudicial to a defendant because, without notice of the possible enhanced penalties, a defendant is prevented from preparing a defense with the knowledge of the enhanced PFO penalties.
Points of Interest: PFO, good cause, sentence enhancements
2024 MT 279
Bluebird Prop. Rentals, LLC v. World Bus. Lenders, LLC
Unless a contract’s arbitration provision clearly and unmistakably indicates otherwise, the district court determines arbitrability.
Bluebird and WBL entered into a loan agreement under Montana law that included an arbitration agreement. Bluebird later alleged that WBL charged usurious interest on that loan and filed suit in a Montana district court, challenging the enforceability of the arbitration agreement. WBL moved to dismiss for lack of subject matter jurisdiction. The District Court denied the motion as premature because it concluded that the court must first apply Montana law to the question of whether the arbitration and choice-of-law provisions are enforceable.
Noting that the narrow issue before it on appeal was “whether the District Court erred in deciding that the validity of the arbitration clause is for a court to decide rather than an arbitrator,” the Supreme Court affirmed the District Court. The parties had not clearly and unmistakably indicated that the issue of arbitrability was for an arbitrator to decide notwithstanding that “any or all disputes” could be arbitrated and the parties’ mention of American Arbitration Association rules in the arbitration provision. Relying on Global Client Solutions, LLC v. Ossello, 2016 MT 50, 382 Mont. 345, 367 P.3d 361, the Court concluded that the District Court has the subject matter jurisdiction to determine arbitrability.
Points of Interest: arbitration, choice of law, contracts
2024 MT 278
Cotton v. Mont. Dep’t of Corr.
District Court correctly reinstated a hearing officer’s decision where HRC exceeded its statutory authority and reversed a hearing officer’s decision under the wrong standard of review.
In September 2017, Cotton, a DOC employee, informed DOC’s HR Director of concerns she had regarding the behavior of DOC Director Reginal Michael. By February 2018, several female DOC employees had raised similar concerns about Michael’s conduct and DOA soon began investigating.
At that time, OBPP was already conducting an evaluation of DOC’s organizational structure due to DOC exceeding its budget. OBPP recommended eliminating 10 job positions, including Cotton’s. Separate from OBPP’s investigation, the Governor’s Chief of Staff requested an organizational assessment of DOC due to operational concerns. The assessor, who did not know Cotton was a complainant and was unaware that OBPP recommended eliminating her position, also suggested eliminating several DOC positions, including Cotton’s. DOC ultimately eliminated Cotton’s position and laid her off.
Cotton filed a human rights complaint. A hearing officer concluded that DOC eliminated Cotton’s position for non-discriminatory reasons and did not retaliate against her. On review, the Human Rights Commission concluded that retaliation had occurred based on the “temporal proximity” between Cotton engaging in protected activity and her job being eliminated. On judicial review, the District Court reinstated the hearing officer’s decision because it concluded HRC exceeded its scope of review and had not made the requisite analysis to overturn the hearing officer’s decision.
The Supreme Court concluded that the District Court correctly reinstated the hearing officer’s decision. The HRC erred by rejecting the hearing officer’s conclusions of law when it did not find that the findings were not supported by substantial evidence. Instead, it substituted its judgment for hers, exceeding its statutory authority and applying the wrong standard of review.
Points of Interest: administrative appeals, employment law, human rights
2024 MT 277
Defendant not constitutionally seized when police officer parked patrol car in grocery store lot without lights or siren, casually approached her on foot, asked to speak with her, and briefly questioned her regarding her prior whereabouts.
On report of a police detective previously surveilling a Missoula casino, two police officers in marked patrol cars followed two suspect cars into a grocery store parking lot. One officer engaged passenger Rymal after she exited one of the vehicles and asked her questions about her activities at the casino. When asked for identification, Rymal answered that she had none, but volunteered to give her name and social security number. Then, without prompting, Rymal volunteered that she may have an active warrant for her arrest. After Rymal’s arrest on the warrant, Rymal’s companion informed police that she had hidden a drug packet inside her person. Rymal later moved to suppress the drug evidence discovered upon execution of a body search warrant while in custody. The District Court denied the motion because Rymal had not been constitutionally seized prior to disclosing her wanted status.
The Supreme Court agreed that Rymal was not seized until she disclosed that she might have a warrant. Police then had reasonable particularized suspicion of criminal activity justifying detention while confirming her status. Because the officer did not physically impede Rymal’s freedom of movement; did not activate lights or sirens; casually approached her on-foot and asked if he could speak with her; engaged in polite, non-intrusive, and non-accusatory conversation; and did nothing to otherwise suggest that she was required to remain and answer his questions, no reasonable person would have felt not free under the circumstances to disengage and walk away from the officer.
Points of Interest: search and seizure, particularized suspicion
2024 MT 276
An officer operating under the community caretaker exception to warrantless searches and seizures may develop particularized suspicion of a crime based upon the totality of the circumstances to justify an initial welfare check ripening into an investigatory Terry stop.
Bystanders called 911 after several unsuccessful attempts to wake McClellan, who was passed out in his running vehicle in a casino parking lot. After responding to the call, Officer Champa awoke McClellan, who admitted his behavior was not normal. McClellan could not produce identification when asked, and voluntarily showed the Officer a methamphetamine pipe. Officer Champa subsequently discovered a meth pipe in McClellan’s pocket and bags of meth sorted and labeled in McClellan’s car. McClellan was charged with Criminal Possession of Dangerous Drugs with Intent to Distribute. He filed a motion to suppress, which the Fourth Judicial District Court denied.
On appeal, the Supreme Court determined that Officer Champa approached McClellan under the community caretaker doctrine, but Officer Champa ultimately developed particularized suspicion that McClellan was impaired due to the nature and timing of the call, the officer’s training and experience, and McClellan’s appearance and demeanor upon awakening. Because he had particularized suspicion of a crime, Officer Champa was permitted to continue questioning McClellan about his identity for investigatory purposes. Therefore, the District Court correctly denied the suppression of evidence obtained from the investigatory stop.
Points of Interest: community caretaking, particularized suspicion, suppression
2024 MT 274
Where an express easement grants use for ingress and egress, the act of temporarily parking, loading, or unloading construction equipment within the easement boundaries does not exceed the scope of the easement under a plain language review because such conduct is reasonably incidental to ingress and egress.
Bardos and Spoklie granted each other easements to access their respective properties in an area with a poorly developed road system. Spoklie used the easement across Bardos’s property to transport construction equipment to his property. He then offloaded and temporarily parked certain equipment within the easement on Bardos’s property because of the difficult terrain. Bardos placed boulders along the edge of the road to block access to the shoulder where Spoklie had been parking construction equipment. Bardos further sued for trespass and nuisance, arguing that Spoklie’s staging of construction equipment alongside the road but within the easement boundaries exceeded the scope of the easement. The District Court ultimately granted summary judgment in Spoklie’s favor, concluding that his activities fell within the scope of the easement because temporarily parking vehicles within the easement fell was incidental to the right of ingress and easement.
The Supreme Court affirmed, holding that the plain language of the easement permitted Spoklie to temporarily park, load, and unload construction equipment within the boundaries of the easement. Because Spoklie was acting lawfully within his easement, his actions were neither trespassory nor a nuisance.
Points of Interest: easements and roads, nuisance, trespass
2024 MT 273
Non-monetary contributions to the marital estate in the form of labor and “sweat equity” must be considered when apportioning a marital estate in a dissolution proceeding, and a trial court abuses its discretion if it arbitrarily diminishes the value of a spouse’s nonmonetary contributions or by attempting to return the parties to their premarital status.
Ash and Elliot were married in 2015. The couple began building a large home on property that Ash had owned prior to the marriage. Elliot had a sizeable net worth after retiring from a lucrative career. Ash had more modest finances and continued to work as a property caretaker and contractor. Elliot funded the project, while Ash performed much of the labor or coordinated subcontractors. Ash also had performed renovations and repair work on Elliot’s premarital home and his devotion to building their shared home meant he spent less time working for paying customers. When the couple divorced in 2022, the court awarded Elliot 80% of the value of the real property. Beyond the real property, Ash and Elliot had largely stipulated how they desired the distribution of the estate.
The Supreme Court reversed because the District Court diminished the value of Ash’s nonmonetary contributions. Section 40-4-202(1), MCA, imparts an obligation to consider nonmonetary contributions to a marriage because such domestic labor contributes value not just to the property, but to the marriage itself.
Points of Interest: marital assets, dissolution of marriage
2024 MT 272
Trial court did not err in denying PDC’s request for a 7,072 acre service area, finding that PDC historically irrigated 6,710 acres and never contemplated irrigating the proposed additional acreage.
Parrot Ditch Company has four historical water rights in the Jefferson River. PDC has 8,000 shares, which it has traditionally sold to its members, corresponding to a 1/8,000 interest in its water rights for members to divert and use on their land. The Water Court decreed PDC’s place of use as 6,710 acres. PDC objected, asking for a “service area” for its place of use, asserting it was entitled to a service area of 7,072 acres. The Water Court granted PDC a service area but limited it to the 6,710 acres that were historically irrigated under its water rights.
On appeal, PDC challenged the Water Court’s limitation of its service area to the area that was historically irrigated. The Supreme Court held that the Water Court did not err in limiting PDC’s service area to that which was historically irrigated. PDC had not shown that it had irrigated, or ever contemplated irrigating, the proposed additional acreage. The boundary of a service area is delineated by historical use, not by the potential scope of a delivery system. The Court reasoned that irrigators may move acreage around within a larger service area only when the exterior boundaries are supported by the historical record, such as when a company’s bylaws contemplated the movement of water, which was not contemplated in PDC’s bylaws. PDC had specifically defined its stock as appurtenant to the land where the water is used in its bylaws, which indicated the expanded service area was beyond PDC’s contemplated scope at its outset.
Points of Interest: water rights, irrigation
2024 MT 271
Constitutional seizure of defendant not objectively unreasonable where based on particularized suspicion that he was either a known fugitive or had been in recent contact with the fugitive and knew his whereabouts.
Officers were patrolling a semi-deserted commercial area based on a tip that a known fugitive was camping in a drainage ditch there and wearing a bright red curly wig to evade arrest. Two officers stopped Stanley as he walked along a sidewalk in the same area while wearing a bright red curly wig. The officers immediately recognized that Stanley was not the fugitive. However, they knew Stanley was an acquaintance of the fugitive and they asked him where he got the wig, and if he knew where the fugitive was. They later arrested Stanley on active warrants. The District Court concluded that officers seized Stanley without particularized suspicion of criminal activity, but denied his motion to suppress drug evidence discovered during a jail-intake search under the “attenuation doctrine” exception to the exclusionary rule.
On appeal, the Supreme Court held that Stanley was constitutionally seized. The presence of two uniformed police officers in marked patrol cars quickly converging on him and then “peppering” him with questions regarding his wig, association with the fugitive, and his identity, constituted a show of force or authority sufficient to make a reasonable person feel not free to ignore their questions leave. However, the officers had particularized suspicion to stop Stanley—even after recognizing that he was not the fugitive—based on his pedestrian presence in the immediate area where the fugitive was known to be hiding, and his wearing an uncommon wig that matched the description of the wig the fugitive was reportedly wearing to evade arrest. It was not objectively unreasonable under the circumstances for the officers to temporarily detain Stanley and investigate where he got the wig and if he knew the fugitive’s whereabouts. The seizure was lawful and the drug evidence not subject to exclusion.
Points of Interest: seizure, particularized suspicion, suppression
2024 MT 270
Trial court erred in determining that breach of contract claims based on deferred prosecution agreement accrued before dismissal of the criminal charges filed in violation of the agreement became final.
Obert was a county commissioner. After being paid overtime in excess of that allowed by statute and potentially voting on matters in which she had a conflict of interest, the State sought to prosecute her for theft and official misconduct. Obert entered a deferred prosecution agreement with the State in which she had to repay any money earned in excess of that authorized and refrain from voting on matters in which she had a conflict of interest. In May 2020, Obert was charged with theft and official misconduct after allegedly breaching the terms of her agreement. The district court dismissed the charges on March 10, 2021, finding no basis to support the charges. The State had 20 days to appeal before the order became final, which it did not do. On March 28, 2022, Obert sued the State for breach of contract, and breach of the implied covenant of good faith and fair dealing, among other things. The District Court dismissed those claims, finding the statute of limitations had run as the action accrued when the State breached the agreement—when she was charged.
On appeal, Obert argued that the Supreme Court should adopt an exception to the general rule that contract actions accrue on breach when the contract regards a deferred prosecution agreement. Reasoning that allowing a defendant to pursue civil claims while a criminal trial is ongoing would place defendants in an untenable position, the Supreme Court agreed with Obert that her contract claims did not accrue until the criminal charges terminated in her favor. The Court reasoned that not applying this exception would frustrate comity and judicial economy, potentially causing different courts to come to inconsistent conclusions.
Points of Interest: breach of contract, deferred sentences, statute of limitations
2024 MT 264
D.A. Davidson & Co. v. Slaybaugh
An individual member of a fraternal organization did not have standing to assert claims on behalf of his former local branch because the branch’s charter had been revoked in accordance with the organization’s internal processes, and the member’s former fiduciary role had been terminated.
In 2013, the Whitefish Masonic Lodge transferred funds into an account with D.A. Davidson, appointing member Slaybaugh as the account representative. In his 2020 resignation letter, the Worshipful Master of Whitefish Lodge ordered the sale of stock held in the D.A. Davidson account and removed Slaybaugh as the representative. Slaybaugh contacted the state’s Grand Master in Helena, head of the Mason’s Grand Lodge, who subsequently revoked Whitefish Lodge’s charter in accordance with the Mason’s internal Constitution and Code. On July 1, 2020, Grand Lodge advised D.A. Davidson it was the rightful owner of Whitefish Lodge’s funds. When Slaybaugh contested the transfer of funds to Grand Lodge, D.A. Davidson filed a Complaint for Interpleader. Grand Lodge and Slaybaugh brought crossclaims against each other. The District Court granted summary judgment for Grand Lodge because Slaybaugh lacked standing. On appeal, Slaybaugh argued standing was established because he was acting on behalf of Whitefish Lodge or, alternatively, he had individual standing to bring the claims.
The Montana Supreme Court affirmed. Since Whitefish Lodge’s charter was revoked, it no longer existed as a legal entity and did not have standing. Slaybaugh’s associational standing argument failed because only organizations are entitled to assert rights of members, not the other way around. Because Slaybaugh was removed as a fiduciary prior to Whitefish Lodge’s charter being revoked, he had no property interest in Whitefish Lodge’s funds to assert individual standing. Finally, Slaybaugh’s derivative claim was not raised with particularity and, consequently, was not preserved for appeal.
Points of Interest: standing, business law, fiduciary duties
2024 MT 257
When a defendant requests substitution of counsel and the district court determines that the defendant’s complaints do not point to one of the limited scenarios calling for substitution following an adequate initial inquiry, the defendant is not entitled to an additional hearing on their complaints.
On the third day of his trial for assault with a weapon, Patina raised complaints about his representation, asserting a general feeling of distrust and unsupported concerns that “evidence was left out.” The District Court repeatedly pressed Patina to articulate his concerns and had his counsel provide context. The court ultimately concluded that Patina’s complaints did not suggest a complete breakdown of communication as required under State v. Johnson, 2019 MT 34, 394 Mont. 245, 435 P.3d 64.
Patina appealed, arguing that his complaints about his representation were “seemingly substantial” enough to call for an additional, separate hearing on the issue, despite conceding that the District Court’s initial inquiry was adequate. The Supreme Court affirmed the District Court, holding that Patina failed to raise any articulable complaint supporting a complete breakdown of communication in the initial inquiry. The District Court correctly denied the substitution request and was not required to hold an additional hearing.
Points of Interest: substitution of counsel
2024 MT 256
Shreves v. Mont. Dep’t of Labor
A person who filed a complaint with DLI about medical care while incarcerated does not have standing to petition for judicial review of the CHCRT decision or challenge CHCRT as an unconstitutional delegation of authority.
Shreves filed a complaint against a doctor for medical services he received at Montana State Prison. Under § 37-1-331, MCA, the Correctional Health Care Review Team at DLI reviews all complaints from persons who receive medical care while in DOC custody. The CHCRT reviewed Shreves’s complaint and found the doctor did not violate any laws or practice rules. Pursuant to § 37‑1‑331, MCA, the CHCRT closed his complaint and did not forward it to the Board of Medical Examiners screening panel. Shreves petitioned for judicial review. The District Court dismissed his petition, in part for lack of standing. On appeal, Shreves argued the CHCRT abused its discretion when it did not forward his complaint for an investigation and that the CHCRT is an unconstitutional delegation of authority.
The Supreme Court affirmed. Where the Legislature authorized public officials to perform functions and provided by statute for judicial review of those actions under certain circumstances, a standing inquiry asks whether the statute in question authorizes review at the behest of the plaintiff. Here, § 37-1-331, MCA, does not authorize judicial review from a CHCRT decision at the behest of Shreves. The legally cognizable injury contemplated by the statutes is the injury to the doctor’s license. The CHCRT has authority only to refer or not refer a complaint; its actions do not affect Shreves’s rights. The statute does not foreclose Shreves from pursuing civil claims against the doctor for his alleged injuries. Shreves cannot establish a legally cognizable injury to satisfy case or controversy standing.
Points of Interest: administrative law, judicial review, standing
2024 MT 255
Defendant’s conviction for sexual assault was vacated on double jeopardy grounds because it was based upon the same act as his conviction for sexual intercourse without consent.
In 2021, a jury convicted Whitaker of sexual intercourse without consent, incest, and sexual assault. Whitaker argued the District Court violated his confrontation right by allowing a prisoner-witness to testify against him from a federal prison in Illinois. He also argued the court abused its discretion by admitting the victim’s forensic interview and other statements into evidence because the minor victim’s inability to recall her meeting with the interviewer did not make the content of her statements inconsistent, which would preclude the admissibility of the evidence as hearsay without an exception. Finally, Whitaker argued his convictions for both sexual intercourse without consent and sexual assault violated double jeopardy because they were based on the same act.
The Montana Supreme Court affirmed Whitaker’s conviction for sexual intercourse without consent and vacated the sexual assault conviction. Regarding Whitaker’s confrontation right, the Court ruled that videoconference testimony is permissible so long as it furthers important public policy interests. In this case, that was to prevent the spread of COVID-19, which was rampant amongst the prison population. Concerning the victim’s interview and later testimony, the Court held that the District Court did not abuse its discretion because her trial testimony was materially inconsistent with the interview. Specific details about the sexual abuse were discussed in the interview, but the victim could not remember them years later when she testified. The Court agreed with Whitaker on his double jeopardy argument and vacated his sexual assault conviction because both the sexual intercourse without consent and sexual assault charges were based on the same act.
Points of Interest: double jeopardy, elements of offense, right of confrontation
2024 MT 254
Trial court did not err in admitting an out-of-court statement where it was offered to prove that the defendant induced the witness to testify inconsistently with her initial police report.
Twoteeth was charged with witness tampering due to her role in calling her sister-in-law Roberta and persuading her to disclaim that she saw Twoteeth’s daughter Desirae in a stolen car. The State charged Twoteeth after listening to recordings of two jailhouse phone conversations she had with Desirae: In the first, Desirae asked Twoteeth to ask Roberta if she intended to be a witness against her. In the second, Twoteeth assured Desirae she had spoken to Roberta and taken care of the matter. At Desirae’s trial, Roberta testified inconsistently with her initial police report. At Twoteeth’s witness tampering trial, a detective testified about Roberta’s initial statement that she had seen Desirae in a stolen car. The trial court overruled Twoteeth’s hearsay objection. The jury found Twoteeth guilty of witness tampering.
On appeal, Twoteeth challenged the hearsay ruling and the sufficiency of the evidence. The Supreme Court held that the detective’s testimony was properly admitted under M. R. Evid. 802 because it was not offered to prove the truth of the matter—that Desirae was in the car—but was offered to show (1) the steps in the detective’s investigation and (2) that Roberta had initially informed officers that Desirae was in the car but later testified that she did not see Desirae in the car, which tended to show that Twoteeth’s phone call to Roberta was meant to influence her testimony. The Court further rejected Twoteeth’s argument that the evidence—consisting of the two phone calls she and Desirae had—was insufficient. It was reasonable for the jury to conclude that Twoteeth attempted to induce Roberta to testify falsely or withhold testimony.
Points of Interest: hearsay, Rule 802, sufficiency of evidence
2024 MT 253
Henderson v. State, 2024 MT 253
Petitioner’s freestanding procedural innocence claim for a new trial based on victim’s recantation not cognizable under § 46-21-102(2), MCA, because the statute narrowly applies only to postconviction claims for exonerative release based on newly discovered evidence of actual substantive innocence of guilt.
Henderson petitioned for postconviction relief from his SIWC conviction pursuant to § 46-21-102(2), MCA, alleging the victim had recanted her incriminating trial testimony and he was thus entitled to a new trial. After hearing, the District Court dismissed his petition.
On appeal, the Supreme Court noted that Montana recognizes two fundamental-miscarriage-of-justice exceptions to permit review of otherwise procedurally barred PCR claims: two-element Schlup gateway procedural innocence claims for new trial, and freestanding Herrera-based actual substantive innocence claims for exonerative release.
The Court concluded that, distinct from the recognized exceptions, § 46-21-102(2), MCA, serves as an express statutory exception to the § 46-21-102(1), MCA, one-year time-bar for filing PCR claims, and applies only to claims for exonerative release based on newly discovered evidence of actual substantive innocence. The evidentiary standard of proof for such claims is reliable newly discovered evidence that, if proved and viewed in the light of the evidence as whole, would be sufficient to affirmatively and unquestionably establish that the petitioner did not engage in the criminal conduct at issue. Because Henderson’s PCR claim was a recantation-based claim for a new trial, not exonerative release, it was a freestanding procedural innocence claim not cognizable under § 46-21-102(2), MCA; and because it was a non-exonerative claim without any assertion of underlying constitutional trial error, it also could not satisfy either recognized jurisprudential FMJ exception.
Points of Interest: postconviction relief, innocence, recantation
2024 MT 250
Defendant has the burden to request waiver of restitution under § 46‑18‑246, MCA, and to support the request with an evidentiary showing. A general indigence-based objection at sentencing will not suffice.
Bertsch pled guilty to two counts of deliberate homicide and two counts of attempted homicide. The District Court sentenced Bertsch to four consecutive life sentences and imposed nearly $35,000 in restitution. At sentencing, defense counsel lodged a general objection to the restitution amount due to Bertsch’s indigence. Bertsch appealed only the restitution order, arguing the court should have waived restitution as unjust under the circumstances because of his inability to pay.
The Supreme Court affirmed. Under § 46‑18‑246, MCA, a person may petition the sentencing court at any time to adjust or waive restitution if it would be unjust to require payments as imposed. The court must notify the victims and give them an opportunity to be heard. A person may petition for waiver at sentencing, and financial inability to pay may qualify as unjust under the circumstances. It is the defendant’s burden to raise the issue and prove that requiring restitution would be unjust. Here, Bertsch’s single, general objection did not sufficiently raise the issue. Though Bertsch pointed to supporting evidence on appeal, he did not reference such evidence when he objected at sentencing.
The Court also noted the District Court’s reasoning that any funds Bertsch earned through work at the prison should first be paid to restitution. A lengthy prison sentence does not exempt an offender from the requirement to reimburse his victims for the established losses he caused. If Bertsch earns income in prison, those wages appropriately may be garnished to help meet his restitution obligation. Section 46‑18‑237, MCA. If Bertsch remains unable to earn money while incarcerated, he may petition the court to waive or adjust restitution.
Points of Interest: restitution, indigency, sentencing
2024 MT 249
Video recordings expressing testamentary intent do not constitute “documents” under § 72-2-523, MCA, and therefore cannot be valid intended wills.
Four days before Beck’s accidental death, he sent his brother Jason a video of himself explaining that Jason was entitled to all his possessions should anything happen to him. Following Beck’s death, Alexia, his only biological child, applied to be Personal Representative of his Estate. The District Court approved her application. Jason intervened and petitioned to replace Alexia as PR, and to admit to probate Jesse’s video recording as an enforceable will. The court dismissed Jason’s petition, reasoning that the video did not qualify as a “document” under § 72-2-523, MCA, and therefore could not be a valid intended will.
On appeal, Jason argues the Legislature contemplated videos being “documents” when it passed § 72-2-523, MCA, and courts must construe the statute liberally to honor the testamentary intent of the decedent.
The Montana Supreme Court affirmed. It reasoned that (1) videos are not included under the plain meaning of “document”; (2) the Legislature expressly excluded wills from the Uniform Electronic Transactions Act which allows for electronic signatures related to certain transactions; and (3) the Legislature has not adopted the Uniform Electronic Wills Act, nor does the Act allow a video will, as it still requires the will to be readable as text at the time of electronic signature. Accordingly, nothing in the language or surrounding context provides legislative authorization to extend § 72-2-523, MCA, to include video recordings.
Points of Interest: estate law, wills or testamentary instruments, statutory interpretation
2024 MT 248
Justice courts do not have jurisdiction over claims for compensatory damages exceeding the statutory limit imposed by § 3‑10‑301, MCA, even if the court is exercising concurrent jurisdiction with a district court.
Polkow rented a home from Kahl. In 2023, Kahl filed an eviction action against Polkow in Yellowstone County Justice Court. Kahl requested an unspecified amount for alleged damages to the property. The Justice Court granted the eviction. Kahl then moved for a hearing to address his compensatory damages claim, but again did not specify what amount or property he sought to recover. During a hearing in the Justice Court, Kahl claimed damages totaling $128,644.07. Polkow moved to dismiss, arguing the amount exceeded the Justice Court’s $15,000 jurisdictional limit under § 3-10-301, MCA. The Justice Court held that it had concurrent jurisdiction with the District Court under § 70‑27‑101, MCA, and awarded Kahl $58,753.73 in damages.
Polkow appealed the award to the District Court on the ground that the Justice Court lacked jurisdiction. The District Court determined that § 70-27-101, MCA, and § 3‑10‑302, MCA, allow justice courts to award damages exceeding $15,000 when exercising concurrent jurisdiction with a district court.
The Supreme Court reversed. Section 3-10-301, MCA, places an express limit on the money damages a justice court may award in a civil case and neither § 70-27-101, MCA, nor § 3‑10‑302, MCA, give justice courts jurisdiction over claims exceeding the express statutory limit. The Justice Court lacked jurisdiction over the case once it became clear that Kahl sought damages of more than $15,000.
Points of Interest: jurisdiction, damages, courts of limited jurisdiction
2024 MT 247
Hubbell v. Gull Scuba Ctr., LLC
The District Court did not abuse its discretion by relying on written membership standards to establish the defendant’s duty to the plaintiff because the standards were supported by proof of industry acceptance nor by excluding an expert opinion for failing to comply with its amended scheduling order.
In 2019 Gull rented Mues scuba equipment for Hubbell and himself. Hubbell drowned while using the equipment. Hubbell’s widow sued Gull for negligence. The District Court excluded Plaintiff’s first witness but amended its scheduling order to allow Plaintiff to retain a second expert on the condition that the second expert’s report could not contain theories not present in the first expert’s report.
Gull moved for summary judgment, asserting Plaintiff could not prove it had negligently rented Mues equipment for Hubbell or that the rental caused Hubbell’s death. Both parties relied on the PRA Membership Standards to establish Gull’s duty to check Hubbell’s diving certification before renting him equipment. Plaintiff’s expert Maddox argued that industry standards also required Gull to verify Hubbell’s skill level. Gull argued that Hubbell’s certification would have allowed him to rent equipment, so its rental did not cause his death. Maddox disputed that Hubbell’s certification would let him rent equipment. The District Court held that the Standards established Gull’s duty and Hubbell could have rented equipment on his own.
The Supreme Court affirmed. The District Court was permitted to rely on the Standards because they were accompanied by undisputed proof of acceptance by the industry; the court was entitled to exclude Maddox’s other industry standards because they went beyond the first expert’s report; and the court erred when it found Hubbell could have rented equipment on his own but it was undisputed that Mues could rent equipment for Hubbell. Therefore, Gull’s failure to check Hubbell’s certification did not cause his death.
Points of Interest: negligence, experts, duty
2024 MT 246
Stensvad v. Newman Ayers Ranch, Inc.
District Court abused its discretion when it failed to address all four preliminary injunction factors, but did not err when it determined that injunctive relief was available to challenge an agister’s lien or that plaintiff did not have an adequate remedy at law.
Stensvad and Ayers entered into a contract in July 2022 to allow Stensvad to graze his cattle on Ayers’ land. A dispute arose regarding the winter rate under the contract and Ayers sent Stensvad an agister’s lien. Pursuant to the lien, Ayers seized the herd and denied Stensvad access to them. Stensvad filed for a preliminary injunction to prevent the sale of his herd.
The District Court Stensvad a preliminary injunction after hearing. In its order, the court addressed only the irreparable injury factor of the four-part preliminary injunction standard in § 27-19-201, MCA. It also determined that a preliminary injunction was an available remedy notwithstanding § 71-3-1211, MCA’s agister’s lien remedy or the contractual nature of the dispute.
The Supreme Court remanded for supplemental findings and conclusions. The District Court abused its discretion by not considering all four preliminary injunction factors because the legislature’s express intent in § 27-19-201, MCA was to incorporate the United States Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365 (2008), which requires courts to address all four factors. The Court adopted the 9th Circuit’s “serious questions test” to govern district courts’ balancing of the factors. However, the District Court did not err when it determined that a preliminary injunction was an available remedy based on the harms alleged in the case and the facts in the record.
Points of Interest: liens, preliminary injunction, remedies
2024 MT 245
Jury instructions that, when considered as a whole, provided the statutory definitions of Attempt and Deliberate Homicide and permitted a guilty verdict where the accused’s deliberate actions were directed towards purposefully or knowingly causing the death of another were minimally sufficient to fully and fairly instruct the jury on Attempted Deliberate Homicide.
Following service of an eviction notice, Marfuta engaged in a nearly two-day standoff with police where he threatened lethal force and shot multiple rounds towards officers and armored vehicles. A jury convicted him of two counts of Attempted Deliberate Homicide and one count of Assault on a Peace Officer. At sentencing, the District Court added two years for using dangerous weapons, pursuant to § 46-18-221, MCA. Marfuta moved to dismiss the weapon enhancement charges, arguing the State did not properly receive leave from the District Court to file enhanced charges in its Amended Information. The District Court denied the motion to dismiss.
On appeal, Marfuta argued the court erred in denying his motion to dismiss the weapon enhancement charges. He also alleged the jury instructions regarding the requisite mental state for Attempted Deliberate Homicide were erroneous.
The Supreme Court affirmed. The District Court properly denied Marfuta’s motion to dismiss because the court clearly outlined its probable cause determination in its order and gave Marfuta notice of the weapons enhancement charges. The jury instructions, taken together, were minimally sufficient because they included the definitions of Attempt and Deliberate Homicide, the requisite mental state, and the result-based language of “causing death” of another.
Points of Interest: jury instructions, sentencing, charges
2024 MT 237
Behlmer v. Crum Real Properties, LLC
The United States was not a required party to an action because its absence neither frustrated complete relief to the parties nor were the interests of the United States at risk of prejudice.
Behlmer sued his neighbors, seeking declaratory relief to settle his right to access his property by crossing their land. The United States owned land between Behlmer’s property and his neighbors, but Behlmer was not contesting his right to cross Federal property. However, the District Court dismissed the suit because it concluded the United States was a required party.
The Supreme Court reversed and remanded. M. R. Civ. P. 19 requires a party to be joined if the action cannot accord complete relief without the absent party or if the action would prejudice the interests of the absent party. Because this dispute concerned an alleged easement entirely within the perimeter of land owned by the parties to the action, the United States was not a required party and the relief sought by Behlmer, if granted, would not prejudice Federal interests.
Points of Interest: civil procedure, joinder, Rule 19
2024 MT 236
Speed limit signs with an embedded radar device to display traffic speed are not an automated enforcement device prohibited by § 61-8-206(2)(a), MCA. Delay of 742 days between arraignment and trial date did not violate defendant’s right to speedy trial as balance of factors weighed in favor of the state due to the reasons for the delays, the defendant’s responses to the delays, and a lack of prejudice to the defendant resulting from the delay.
Flynn pled no contest to misdemeanor DUI, reserving his right to appeal the denials of his motions to suppress and to dismiss. He argued the radar device embedded in a speed limit sign was an automated traffic enforcement device prohibited by law and any evidence gathered because of the arresting officer’s reliance on such a sign must be suppressed. He also argued his right to a speedy trial was violated by a 742-day delay.
The Supreme Court affirmed. First, the patrol officer had particularized suspicion to initiate the traffic stop based upon her observations of Flynn’s driving, as confirmed by the speed displayed by the radar-equipped speed limit sign. Because the sign did not issue a ticket or otherwise enforce any traffic laws, it was not of a type prohibited by § 61-8-206(2)(a), MCA. Second, Flynn’s speedy trial rights were not violated. The balance of the Ariegwe factors weighed in favor of the State because, despite the length of the delay, Flynn was responsible for the majority of the delay, failed to meaningfully assert his speedy trial right in response to the State’s institutional delays, and was not ultimately prejudiced by the delay as he endured neither pretrial incarceration nor loss of evidence or witnesses.
Points of Interest: DUI, speedy trial, traffic stops
2024 MT 235
Phila. Indem. Ins. Co. v. O’Leary
Specific personal jurisdiction over an out-of-state defendant does not occur if the defendant directed no actions toward Montana, did not render services in Montana, communicate with anyone in Montana, or otherwise appear in Montana.
In 2015, Montana hotel employees brought a class action lawsuit against Gateway Hospitality, Inc., for failure to distribute service charges paid by banquet customers. Gateway submitted a claim to its insurance provider, Philadelphia Indemnity Insurance Company, requesting defense in the lawsuit and indemnity. Philadelphia retained the services of California-based Sedgwick LLP attorneys, who advised Philadelphia to deny coverage. Sedgwick sent a letter to Gateway’s headquarters in Ohio explaining the denial. Gateway sued Philadelphia for failure to provide a defense under their insurance contract, and Philadelphia brought a third-party complaint against the Sedgwick attorneys for legal malpractice.
The Sedgwick attorneys responded by moving to dismiss for lack of personal jurisdiction. The District Court granted dismissal, reasoning that Philadelphia could not show specific personal jurisdiction over the Sedgwick attorneys due to a lack of Montana contacts.
The Montana Supreme Court affirmed. Personal jurisdiction did not result from the accrual of a tort in Montana because the Sedgwick attorneys did not travel to Montana, solicit Philadelphia’s business in Montana, provide advice or communications in Montana, or enter as attorney(s) of record in Montana. There was no specific personal jurisdiction for the “transaction of any business” in Montana because the Sedgwick attorneys drafted the denial letter in California and sent it to Ohio on behalf of a Pennsylvania company. Finally, the Court rejected Philadelphia’s argument that personal jurisdiction existed by way of Sedgwick attorneys “entering into a contract for services to be rendered in Montana,” since the Sedgwick attorneys’ legal advice was merely about Montana law, not about actions or services to take place in Montana.
Points of Interest: personal jurisdiction, specific jurisdiction, legal malpractice
2024 MT 229
District Court did not err in ordering one party to make equalization payments to the other as part of a decree of dissolution where the court relied on the statutory division-of-property factors and substantial credible evidence supported the court’s determination. Furthermore, the receiving spouse is entitled to interest on those payments because the order is a judgment under M. R. Civ. P. 54.
Dennis and Louise divorced in 2010, stipulating to a division of assets. They reunited in 2014 and separated again in 2017. In 2018, Louise petitioned for dissolution. The District Court ultimately awarded almost the entirety of the marital estate to Dennis. Louise appealed and the Supreme Court remanded the case to the District Court with instructions to reconsider an equitable distribution of the marital estate.
On remand, the court heard testimony from the parties and their children. It took the 2010 property settlement agreement into account, considered the factors found in § 40-4-202, MCA, and ordered Dennis to make equalization payments to Louise so that Louise would ultimately receive approximately 42% of the marital estate. It did not require Dennis to pay interest to Louise.
Both parties appealed. The Supreme Court concluded that the District Court’s distribution of the marital estate was supported by the record and sufficient evidence covers each statutory factor to support the District Court’s award of equalization payments. Since Dennis’s holdings consist of property that is not easily divided, the payments will more equitably divide the estate. Furthermore, Louise is entitled to interest on the equalization payments. Because the District Court’s order is a “judgment” under M. R. Civ. P. 54, § 25-9-205, MCA, applies. Under that statute, if a dissolution decree is silent as to interest, the interest is automatically collectible by the spouse on past due payments for support or maintenance. The matter is thus remanded to the District Court to amend the decree accordingly.
Points of Interest: marital assets, judgments, dissolution
2024 MT 228
Planned Parenthood of Mont. v. State
Abortion providers have standing to assert on behalf of their women patients the individual privacy rights under Montana’s Constitution of such women to obtain a pre-viability abortion from a health care provider of their choosing.
Plaintiff abortion providers challenged two bills and an administrative rule which would impact Medicaid funding of abortions. One bill and the rule provided for a definition of the term “medically necessary,” which was only to be used for abortion care and no other medical care. The other bill prohibited Medicaid from funding abortion care unless the pregnancy was the result of an act of rape or incest, or if the patient was “in danger of death.” The District Court determined the providers had third-party standing to assert their patients’ constitutional claims and issued a preliminary injunction enjoining the two bills and administrative rule.
On appeal, the Supreme Court affirmed and upheld the preliminary injunction. The District Court correctly applied the Montana Supreme Court’s abortion-related third-party standing precedent which allows abortion providers to challenge provisions which would impact the constitutional rights of their patients and are directed at health care providers. Standing was appropriate because the challenged provisions infringed upon the right of the providers’ Medicaid patients to access abortion as the provisions would deny abortion access to most Medicaid-eligible Montanans. In addition, the Plaintiffs were likely to succeed on their constitutional claims and were entitled to a preliminary injunction.
Points of Interest: preliminary injunction, standing, constitutional rights
2024 MT 227
Planned Parenthood of Mont. v. State ex rel. Knudsen
District Court did not manifestly abuse its discretion by granting a preliminary injunction and enjoining two abortion laws because Plaintiffs demonstrated the laws likely violated the right to privacy.
The 2023 Legislature passed numerous abortion-related bills. Plaintiffs challenged HB 575, which would require a patient to obtain an ultrasound before an abortion, and HB 721, which prohibits and criminalizes the dilation and evacuation abortion procedure. The District Court applied strict scrutiny review and issued a preliminary injunction because the challenged bills implicate the Montana Constitution’s right to privacy by restricting access to pre-viability abortions.
On appeal, the Supreme Court upheld the preliminary injunction. The District Court properly applied strict scrutiny to the bills because they interfere with the fundamental right to privacy. Under strict scrutiny, any legislation interfering with the right to a pre-viability abortion must be narrowly tailored to effectuate a compelling interest—“a medically acknowledged, bona fide health risk, clearly and convincingly demonstrated.” Neither challenged bill met this standard, so the Plaintiffs were likely to succeed on their constitutional claims and were entitled to a preliminary injunction.
Points of Interest: preliminary injunction, right to privacy, strict scrutiny
2024 MT 226
Although the district court erred when it denied defendant’s justifiable use of force instruction on the basis that he had not presented any evidence about his state of mind, it correctly refused the instruction because the record showed the defendant was the initial aggressor and he did not present evidence that he attempted to withdraw from the altercation.
Fredericks was arrested after stabbing a clerk in a hotel parking lot. The clerk had approached Fredericks after receiving reports that he was attempting to break into a car. The clerk asked Fredericks to leave, Fredericks shoved the clerk, the clerk shoved Fredericks back, and Fredericks produced a knife. The clerk grabbed Fredericks, and Fredericks stabbed him several times. Fredericks was charged with Felony Assault with a Weapon.
At trial, Fredericks argued he was justified in his use of force because he feared the clerk intended to injure him. Fredericks did not testify or offer other witnesses at trial. The District Court rejected Fredericks’ proposed jury instruction on justifiable use of force because Fredericks had not presented any testimony as to his state of mind.
The Supreme Court affirmed. Although the District Court erred when it determined that Fredericks was required to provide evidence of his state of mind because § 45-3-102, MCA, uses an objective “reasonable belief” standard, § 45-3-105(2), MCA, requires an initial aggressor to prove they either exhausted every reasonable means to escape or withdrew and clearly indicated desire to terminate the use of force to be entitled to a justifiable use of force instruction. Because Fredericks shoved the clerk first, he was the initial aggressor. He had the opportunity to leave the hotel parking lot until he was grabbed and thus did not exhaust his opportunities to escape or withdraw. Therefore, the District Court did not err when it refused his proposed instruction.
Points of Interest: jury instructions, affirmative defenses, sufficiency of evidence
2024 MT 225
Officer’s knowledge of a driver’s injuries was sufficient to support a finding of probable cause that the vehicle accident resulted in serious bodily injury, triggering the implied consent statute.
Smith crashed his motorcycle. When an MHP Trooper responded, paramedics had already loaded Smith in an ambulance and stated Smith’s injuries required immediate transportation to the hospital. At the hospital, Trooper learned Smith had dislocated his shoulder, broken his foot, and suffered a head injury. Trooper read Smith the implied consent advisory and requested a blood sample from Smith. Smith initially agreed, but after speaking with his mother, told Trooper “I don’t want that.”
Smith’s license was automatically suspended for refusing the test. He petitioned the District Court for reinstatement. The court found: (1) Trooper did not have particularized suspicion to believe Smith was intoxicated; (2) Trooper did have probable cause to believe Smith was the driver of a vehicle involved in an accident resulting in serious bodily injury; and (3) Smith refused the test. The court denied the petition and upheld the suspension. Smith appealed.
The Supreme Court affirmed. The Court defined probable cause under § 61-8-1016(2)(a)(iii)(C), MCA, by importing the probable cause standard for a search. The officer must request a test if, under the totality of the circumstances, the officer knows enough information to support a reasonable person’s belief that the accident resulted in serious bodily injury, as defined by § 45‑2‑101, MCA. An officer does not need to diagnose the precise severity or projected healing time of a driver’s injuries to satisfy the standard. Here, Trooper’s knowledge of Smith’s injuries supported a reasonable belief that the injuries “can reasonably be expected to result in . . . protracted loss or impairment of the function or process of a bodily member.” The District Court did not err when it found Trooper had probable cause—and thus a basis under § 61‑8‑1016, MCA—to request the blood test, or when it found Smith refused the test.
Points of Interest: probable cause, DUI, search and seizure
2024 MT 224
When deciding whether an estate should be allowed to intervene under M. R. Civ. P. 24, a district court must consider the estate as a separate entity and not impute delays on the presumptive personal representative.
A home was held in joint tenancy between mother and daughter decedents. After extensive litigation, family members reached a settlement agreement regarding sale of the property under the mistaken impression that the daughter’s estate had no title interest in the property. The decedent daughter’s husband then learned that the daughter’s estate had an interest and opened the estate.
The estate sought to intervene, arguing that its valid interest would be completely obliterated if the settlement agreement was enforced as written. The District Court denied the estate’s motion to intervene and ordered enforcement of the settlement agreement, reasoning that the daughter’s husband’s involvement in the litigation made the estate’s request untimely.
The Supreme Court reversed and remanded. As a matter of law, the estate could not have been represented by the daughter’s husband. Because the estate was not represented, its motion was timely, and it would be prejudiced by enforcement of the settlement agreement.
Points of Interest: civil procedure, intervention, settlement agreements
2024 MT 223
A conflict of interest is not necessarily implicated when the same entity is appointed as temporary guardian and conservator when there is immediate need of appointment.
J.F.R. was diagnosed with Alzheimer’s. She moved to a ranch with her daughter Stephanie. Communication between J.F.R. and her other daughter, Jana, became minimal. Jana’s petition to be a temporary co-guardian was initially granted but the court later removed the appointment and ordered the parties to proceed with discovery because Stephanie promised to not restrict communication. J.F.R. emptied bank accounts that Jana previously had supervisory access to, and large sums of money were transferred to Stephanie with little explanation. J.F.R.’s assets were transferred to a new financial advisor and inexplicably lost $300,000. Communication once again became strained. Jana again petitioned for appointment as a temporary co-guardian and conservator.
The District Court found there was an immediate need for appointments because J.F.R.’s assets were “being drained at an alarming rate” and her current advisors were insufficient to protect her finances. The court appointed a third party, Western, to serve as sole conservator and as co-guardian with Stephanie and Jana.
On appeal, J.F.R. argued that Western had a conflict of interest serving in both roles, J.F.R.’s welfare did not necessitate the temporary appointments, and the appointments were out of statutory order. The Supreme Court affirmed, holding that no conflict existed merely by Western’s dual appointments. Taking the circumstances into account, J.F.R.’s needs rose to the level of necessitating the temporary appointments.
Points of Interest: guardianship, conservatorship
2024 MT 217
The District Court improperly substituted its judgment for that of the Department of Revenue when the record established that DOR employed a consistent, accepted process for arriving at market value.
In 2008, DOR appraised the property values in Neighborhood 800 along the shore of Flathead Lake. To do so, DOR employed a mass appraisal approach, sales comparison method, and base-lot model. DOR’s last appraisal had been in 2002, and area property values in had increased substantially in the intervening years. Solems, who owned property in the neighborhood, challenged DOR’s appraisal of their property in district court.
At trial, the Solems presented three expert appraisal witnesses, each of whom had some disagreement with DOR’s approach to property valuation in Neighborhood 800. These disagreements largely concerned the variables DOR selected in building its model and the number of purchases DOR included in building and testing the model. The District Court ruled that DOR’s approach produced too low a confidence level, relied on too few variables, and included too few properties to be considered legally accurate or constitutionally fair.
The Supreme Court reversed the District Court, holding the court improperly substituted its inexpert judgment for that of DOR when the record, the testimony of Solems’ experts, and the explanatory testimony from DOR’s model builder demonstrated that DOR’s approach was consistent and accepted in the field of appraisal.
Points of Interest: administrative law, experts, tax law
2024 MT 216
If a person petitions for a parenting plan in district court after a temporary order of protection is filed in a justice court in a different county, either party may remove the case to the district court where the parenting action is pending before or after the order of protection hearing.
Penado obtained a temporary ex parte order of protection from Butte-Silver Bow County Justice Court for herself and her children. Hunter, the children’s father, then filed a parenting plan petition in Gallatin County District Court. After Hunter moved for removal, the Butte-Silver Bow County Justice Court removed the case to Gallatin County District Court and vacated the temporary order of protection hearing. The Gallatin County District Court maintained the temporary ex parte order in place and set a hearing on the order of protection. Both courts denied Penado’s attempts to move the hearing back to Butte-Silver Bow County Justice Court, concluding that § 40-15-301(3), MCA, allowed removal and Penado did not have a right to respond to the removal in the justice court.
The Supreme Court affirmed. Under § 40-15-301(3), MCA, if a person files a petition for parenting plan in a district court after the other party has sought an order of protection from a justice court, the district court cannot assert jurisdiction over the case of its own initiative before the hearing. However, either party may choose to remove the matter to district court before or after the hearing. Neither the statute, the Montana Uniform Rules for the Justice and City Courts, nor the Uniform Municipal Court Rules of Appeal to District Court granted Penado a right to respond to the removal before the case is certified to the District Court. As she had notice and opportunity to be heard on the Order of Protection, her right to due process was satisfied.
Points of Interest: orders of protection, parenting plan, jurisdiction
2024 MT 215
District Court did not abuse its discretion in denying postconviction petition without hearing where no reasonable probability existed that the alleged Brady violation and newly discovered evidence would have changed the trial outcome.
In 2009, Main was convicted of deliberate homicide by felony murder. That conviction was upheld on appeal in 2011. In 2020, Main petitioned for postconviction relief, alleging a Brady violation because the Havre police failed to disclose certain crime scene photos that depicted the victim’s body in a different position than witness testimony indicated. He further alleged that the police concealed potentially exculpatory evidence that the victim may have been alive when paramedics arrived.
Main requested a hearing, conceding, however, that his arguments and the evidence he wished to present at hearing were the same as that which was offered at the unsuccessful postconviction hearing of another defendant who was separately convicted of felony murder in the same incident. The District Court denied Main’s request for hearing, took judicial notice of the other defendant’s unsuccessful postconviction relief proceeding, and denied Main’s petition.
The Supreme Court concluded that the District Court did not abuse its discretion in denying Main’s petition, although it was not appropriate for the court to take judicial notice of the findings from the other defendant’s postconviction hearing. Main’s petition lacked sufficient evidence to necessitate a hearing. The allegedly exculpatory evidence regarding time of death would not prove Main did not commit felony murder because it did not affect witnesses’ testimony that they saw Main assault the victim. Main’s desire to offer a new theory as to the specific cause of the victim’s death does not constitute newly discovered evidence and the allegedly withheld photographs did not constitute a Brady violation because there was no reasonable probability that the photos would have changed the trial outcome.
Points of Interest: postconviction relief, Brady violations, judicial notice
2024 MT 214
Police had sufficient particularized suspicion to ask for Cleveland’s driver’s license, and the resulting probation search was supported by reasonable cause.
Dispatch received a 911 call reporting that Cleveland was slumped over the wheel of his car in a parking lot. When police arrived at the scene, the car was parked across two parking lanes, but Cleveland was alert. Cleveland at first did not remember slumping over the wheel. To explain his behavior, Cleveland told the officer his eyes were burning badly. The officer asked Cleveland for his driver’s license. Cleveland admitted he had lost his wallet and his license. After Cleveland admitted he was on probation, the police officer called Cleveland’s probation officer. The PO authorized a probationary search of Cleveland’s vehicle. The search uncovered methamphetamine, fentanyl, and a digital scale.
After the State charged him with criminal possession with intent to distribute, Cleveland moved to suppress, arguing the officer unlawfully seized him when he asked for Cleveland’s license. The District Court denied the motion.
On appeal, the Supreme Court affirmed Cleveland’s conviction. The officer was not obligated to immediately cease the community caretaker purpose of the interaction simply because Cleveland was alert when the officer approached. Under the totality of the circumstances, the officer had sufficient particularized suspicion to ask Cleveland for his license. Cleveland’s admission that he did not have his license gave the officer particularized suspicion that Cleveland was engaged in a statutory violation, which permitted additional questioning. After receiving information from the investigating officer, the PO had reasonable cause to authorize a probationary search of Cleveland’s car.
Points of Interest: particularized suspicion, community caretaking, search and seizure
2024 MT 211
During fitness proceedings for criminal defendants, a court’s failure to review the defendant’s fitness within the 90-day statutory limit does not entitle the defendant to automatic dismissal of the pending charges.
Powers was charged with arson, but the District Court committed her to Montana State Hospital after finding her unfit to proceed. After more than 90 days passed, Powers moved to dismiss the charge, arguing § 46-14-221, MCA, requires dismissal if the court does not conduct a review of the commitment within 90 days. The court denied Powers’s motion. After MSH evaluators subsequently found her fit to proceed, Powers pled no contest to negligent endangerment. Powers appealed.
On appeal, the Supreme Court affirmed. Failure to conduct a review within the statutory period does not automatically compel dismissal. Section 46-14-221, MCA, read together with § 46-14-222, MCA, gives courts the discretion to dismiss criminal charges if, after the 90 days expired, an unreasonable amount of time passed between commitment and review. However, neither statute requires that result. Section 46-14-221, MCA, only requires dismissal when the court finds the defendant is unfit and unlikely to regain fitness in the reasonably foreseeable future. Since Powers was found fit to proceed twelve days after she moved to dismiss, the Court determined the district court did not err when it denied her motion to dismiss.
Points of Interest: fitness to proceed, involuntary commitment, dismissal
2024 MT 210
Trial court did not err in giving deference to agency interpretation of statute that found the city of Shelby had satisfied the Montana Water Use Act by entering service agreements with each community intended to be served by its sought after expanded beneficial use permit.
Shelby filed two applications to expand its municipal water system service area to include additional communities. It entered service agreements with all but one of the communities. DNRC issued a preliminary determination granting approval to Shelby’s application. The Town of Kevin filed objections, alleging that Shelby’s application did not satisfy the statutory requirement that applicants have written consent of the person with possessory interest of the water because not every citizen had given written permission. DNRC concluded that Shelby had satisfied the statutory criteria by entering into service agreements with most communities in its proposed service area and did not need written consent from every landowner in the service area. For those communities that Shelby did not have service agreements with, DNRC concluded that Shelby would ultimately have consent from end users of the system, thus the absence of written agreements with those communities was acceptable.
Kevin appealed. The Supreme Court held that a service agreement with a community to be serviced within the service area was sufficient to receive written consent and Shelby was not required to receive written consent from every landowner in the proposed service area. The Legislature clearly intended a municipal water supplier to be able to supply wanting homeowners within its service area even if some individuals do not wish to receive those services. Thus, written agreements with the communities is sufficient, as consent from an end-user is implied when they subscribe to and pay for the communities’ services. The Supreme Court remanded to determine whether Shelby had a written service agreement with all communities in its proposed expansion.
Points of Interest: Montana Water Use Act, statutory interpretation, legislative intent
2024 MT 209
Officer did not unlawfully extend a traffic stop by asking passengers if they had valid driver’s licenses once he determined that the driver’s license was suspended, and sufficient evidence supported Defendant’s conviction because his own testimony corroborated his close relationship with his accomplices.
O’Howell was a passenger in a car with three other people when it was pulled over for speeding and because the owner had an invalid license. The owner was driving the car, and the officer asked the passengers whether any of them had a valid driver’s license to drive the car after the stop. O’Howell said he did, but not with him. The officer asked for his name and birthday to confirm he was licensed. While the officer was checking O’Howell’s status, another passenger sped away in the car. That passenger was later stopped and when the police searched the car they found drugs.
O’Howell moved to suppress, arguing the officer had unlawfully extended the stop by asking whether any passenger had a valid license. The District Court denied the motion. At trial, two of the three other people in the car testified for the prosecution about whether O’Howell knew about the drugs. Both witnesses had already pled guilty to drug-related charges based on the same stop. O’Howell testified in his own defense.
The Supreme Court affirmed the denial of the motion to suppress, holding that “upon making the stop and determining that the driver was not licensed to continue driving, the logical next step was to assess whether there was anyone else in the car who could drive.” The Court rejected O’Howell’s argument that insufficient evidence supported his conviction since the only evidence about his knowledge that there were drugs in the car was based on uncorroborated accomplice testimony, because O’Howell’s own testimony corroborated theirs.
Points of Interest: traffic stops, search and seizure, sufficiency of evidence
2024 MT 208
Although homeowners did not violate their subdivision’s covenant restricting properties to single-family buildings by turning an outbuilding into an ADU, they violated the covenant against using the property for commercial business purposes when they offered for short-term rentals.
In 2022, Kleinhans’ neighbors sued for declaratory and injunctive relief, alleging that Kleinhans violated their subdivision’s covenants by converting their garage into an accessory dwelling unit and offering it for rent via Airbnb. The District Court granted summary judgment in Kleinhans’ favor after determining that the covenants did not bar Airbnb rentals. The court interpreted the covenant restricting the properties to single family dwellings to mean that a property’s structural design was restricted to one single-family building but did not regulate the use of that building to allow occupancy by only one family. The court also determined that covenant regarding commercial business use was ambiguous and thus could not prevent Kleinhans from offering the ADU for rent on Airbnb.
The Supreme Court affirmed the District Court’s interpretation of the single-family covenant as the covenant’s language was a structural restriction. Kleinhans did not violate this covenant because they created an ADU by converting their garage into a separate dwelling unit within an outbuilding associated with their single-family structure that, arguably, could accommodate family and overnight visitors, which is not barred by the single-family covenant. However, the District Court erred in concluding that short-term rentals do not fall into the category of commercial business, which is barred by the covenants at issue, because a short-term rental falls within Montana’s statutory definition of “business.” The covenants clearly prohibit for-profit business use, and Kleinhans violated this covenant by renting their ADU via Airbnb. The District Court’s summary judgment ruling was reversed and remanded.
Points of Interest: covenants, contracts
2024 MT 207
Mont. Democratic Party v. Mont. First Jud. Dist. Ct.
Petitioner Democratic Party was not entitled to a preliminary injunction because it did not demonstrate it was likely to succeed on the merits where Court concluded Petitioner failed to demonstrate a likelihood that Green Party violated its own rules when it appointed a replacement candidate.
After the winner of the Montana Green Party’s primary for U.S. Senate candidate withdrew, the Green Party appointed Robert Barb as a replacement candidate. The Montana Democratic Party sought declaratory and injunctive relief in the District Court to preclude Barb from appearing on the ballot as the Green Party candidate.
After the court denied MDP’s request for preliminary injunction, MDP both appealed and petitioned for a writ of supervisory control. The Montana Supreme Court agreed to consider supervisory control since the urgency was such that the normal appeal process might not afford effective relief even if briefing was expedited.
Although the Court agreed with MDP that Barb was not “nominated” within the meaning of the election code, but was instead “appointed” by the Green Party as a replacement candidate, it ultimately concluded that the District Court had correctly denied MDP a preliminary injunction because MDP had not demonstrated a likelihood that it would prevail on the merits of its case. To succeed on the merits, MDP would need to demonstrate that the Green Party had violated its own bylaws in nominating Barb. However, MDP’s allegations were based on its own belief as to how the Green Party should interpret a provision of its bylaws that could reasonably be interpreted multiple ways.
Points of Interest: elections, preliminary injunction, supervisory control
2024 MT 202
District Court did not commit reversible error when it admitted hearsay evidence without a valid exception because it had sufficient evidence before it to find that O.L.K. satisfied the overt act requirement and required commitment.
O.L.K. was admitted to the Montana State Hospital in 2022 on a Petition for Involuntary Commitment based on the recommendation of LCSW McLean. The District Court appointed LCPC McNabb to serve as the professional person in the involuntary commitment proceedings. McNabb evaluated O.L.K. and was the State’s sole witness. McNabb testified to statements O.L.K. had allegedly made to McLean contained in McLean’s reports and statements made by others at various hospitals. O.L.K.’s attorney objected to this testimony as hearsay, but the District Court overruled the objections based on M. R. Evid. 803(4) and (6), the medical treatment and business records exceptions.
The Supreme Court affirmed the District Court. It held that McNabb’s testimony from McLean’s reports was not admissible under M. R. Evid. 803(4) or (6) because O.L.K.’s statements to McLean were not made for the purpose of medical diagnosis or treatment when he was involuntarily detained at the hospital. McNabb’s testimony from other reports was not admissible because McNabb did not work for the hospitals that produced them so she could not lay sufficient foundation for their entry. However, the overt act element of involuntary commitment could be proven by testimony from the appointed professional person and O.L.K.’s statements to McNabb during her evaluation were sufficient evidence.
Points of Interest: involuntary commitment, hearsay, Rule 803
2024 MT 200
A party seeking a preliminary injunction must establish that irreparable injury absent preliminary relief is likely, not merely a “possibility.”
The 2023 Montana Legislature passed several measures in an effort to mitigate Montana’s housing shortage. Montanans Against Irresponsible Densification, a limited liability company composed of individuals in various Montana cities who reside in single-family zoned neighborhoods, moved to enjoin two of the laws—SB 323 and SB 528. MAID alleged that the challenged laws regarding local zoning regulation violated several of their constitutional rights. The District Court enjoined the challenged laws. The State appealed, alleging MAID had not met its burden of establishing the four factors required to obtain a preliminary injunction: success on the merits, irreparable harm, the balance of equities, and the public interest.
The Court reversed, noting that Montana recently amended its preliminary injunction statute to conform with United States Supreme Court case law. Regarding MAID’s showing of irreparable harm, the only evidence MAID offered in support of its motion was an affidavit from one of its members alleging a “possibility” of harm. Such a “possibility” of irreparable harm was expressly rejected by the United States Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365 (2008). The District Court therefore abused its discretion when it entered a preliminary injunction based on the “possibility” of harm that MAID presented in support of its claim to irreparable injury and found the balance of equities to tip in favor of preliminary injunctive relief.
Points of Interest: legislation, preliminary injunction, zoning
2024 MT 199
Trial court erred in finding probable cause to arrest based on suspected contempt of court for defendant thought to be in violation of his conditions of release on bail.
An officer found Baldwin, who was on pre-release, inside of a casino. The officer confirmed with dispatch that Baldwin’s pre-release conditions prohibited him from being in a casino. The officer then arrested Baldwin for contempt of court for violating his pre-release conditions. After his arrest, the officer observed a baggie with probable drugs in Baldwin’s vehicle and secured a search warrant. Drugs were found in his car, and he was charged with criminal possession of dangerous drugs and drug paraphernalia. Baldwin moved to suppress the evidence, arguing his arrest was unlawful, which the District Court denied.
On appeal, Baldwin challenged his arrest as unlawful and argued that all evidence found afterwards was fruit of the poisonous tree which must be suppressed. The Supreme Court reversed, holding that probable cause could not have formed based on suspected contempt of court. Because Baldwin’s car would not have been searched but for his unlawful arrest, the evidence obtained should have been suppressed. The crime of contempt of court does not include violations of pre-release conditions. The procedures for finding a violation or pre-release conditions are the sole procedures the Legislature intended for revoking a defendant’s release on bail.
Points of Interest: probable cause, search and seizure, suppression
2024 MT 198
Nelson v. Montana Rail Link, Inc.
A private landowner cannot acquire a prescriptive easement over a right of way conveyed to the rail company by a pre-1871 railroad land grant because that grant functions as a limited fee estate with a reverter to the United States.
A landowner who accessed his property via a right of way owned by the rail company sought a prescriptive easement and damages for interference with the easement after the railway blocked his access. The District Court concluded that a private party could not establish a prescriptive easement over a railroad right of way granted under the 1864 Northern Pacific Railroad Company Land Grant Act because the rights of way were for the exclusive use and control of the railroads, with the United States holding a reversionary interest.
The Supreme Court affirmed. Because this specific right of way was granted prior to the 1871 congressional policy change, it functions as a limited fee estate with a reverter to the United States. Thus, a private party cannot acquire a property interest within a pre-1871 right of way, and a prescriptive easement is a legal impossibility.
Points of Interest: easements and roads, reversion, rights of way
2024 MT 189
Order of Protection issued for 10-year duration not an abuse of discretion where the decision was supported by substantial record evidence.
Cook obtained an ex parte temporary restraining order (TRO) against his former girlfriend Bodine after he alleged that she committed several acts, including entering his home uninvited, after he had demanded that she not contact him. At a subsequent hearing, he testified that Bodine was charged with criminal trespass due to her actions, that she continued to attempt to contact him, and that she was ultimately charged with felony stalking. He further testified that Bodine’s actions had caused significant changes to his personal and work life. Although Bodine denied some of Cook’s allegations and offered innocent explanations of others, the Justice Court orally made findings and conclusions and ruled that the order of protection would continue for a 10-year term, issuing a conforming order of protection later that day. The District Court affirmed the Justice Court’s decision.
On appeal to the Supreme Court, Bodine argued that the issuing court failed to make the requisite M. R. Civ. P. 52 findings of fact and conclusions of law; its decision was erroneous because not supported by substantial credible evidence; and the 10-year duration was unwarranted and an abuse of discretion.
In affirming the lower court, the Court first noted that Rule 52 findings and conclusions could be stated orally on the record in open court after the close of the evidence. The Court further noted that, depending on the underlying offense as issue in a protection proceeding, a respondent’s history of violence may not always be a determinative factor in the court’s analysis under § 40-15-204(1), MCA. Based on the record evidence, the lower court correctly concluded that continuing protection was necessary to prevent further injury or harm to the petitioner. The 10-year duration did not constitute an abuse discretion in light of record evidence establishing Bodine’s blatant and escalating disregard for prior court-ordered non-contact.
Points of Interest: sufficiency of evidence, orders of protection, Rule 52
2024 MT 188
Multiple otherwise innocuous indicators of possession of dangerous drugs do not amount to particularized suspicion to conduct a canine sniff.
An officer pulled Loberg over for an expired registration and ultimately conducted a canine sniff after observing: the smell of an air freshener, pinpoint pupils (with no other indicators of active impairment), coming from a casino known for drug activity, Loberg claiming he was coming from somewhere else, failing to immediately pull over, and being mentioned in “reports that [he] may have been involved in some drug distribution” that never resulted in charges or arrests. After the canine alerted, the officer obtained a search warrant and found a bag containing .56 grams of methamphetamine.
Loberg moved to suppress, arguing in part that the officer did not have particularized suspicion for the canine sniff. After the District Court denied the motion, Loberg pled guilty to criminal possession of dangerous drugs, reserving his right to appeal the denial of the motion to suppress.
The Supreme Court reversed. While the officer had particularized suspicion to conduct the initial traffic stop and Loberg continued to speak with the officer after the original purpose for the stop ended, Loberg withdrew consent and was constitutionally seized when the officer detained him to conduct the canine sniff. At that time, the officer did not have particularized suspicion to detain Loberg where all of the indicators the officer relied upon are otherwise innocuous and could be drawn about virtually any law-abiding citizen. Although these indicators may be considered under the totality of the circumstances, there must be some other additional, specific indicia of criminal activity for particularized suspicion to arise.
Points of Interest: particularized suspicion, traffic stops, search and seizure
2024 MT 187
A verdict form that allowed the jury to consider the lesser included offense if it found the defendant not guilty of the greater offense or could not come to a decision was a correct statement of the law and did not violate the defendant’s double jeopardy rights.
Frydenlund was charged with burglary and asserted a defense of mental disease or defect. At trial, defense counsel requested a jury instruction on the lesser included offense of criminal trespass. After a lengthy discussion, the parties stipulated to the jury instruction and verdict form. The verdict form provided that, to the burglary charge, the jury could find Frydenlund guilty, not guilty, or not guilty by reason of mental disease or defect. It was instructed to consider the lesser included offense of criminal trespass if it found Frydenlund not guilty of burglary or if it could not come to a decision on burglary. The jury unanimously found Frydenlund not guilty of burglary and guilty of criminal trespass. Frydenlund filed a motion to set aside the verdict, arguing that the final verdict form was contrary to what the parties discussed at trial and violated his right to be free from double jeopardy. The District Court denied Frydenlund’s motion, and he appealed.
The Supreme Court affirmed, holding that Frydenlund acquiesced to the verdict form as evidenced from the trial transcript, and he could have reviewed the final form before it was submitted to the jury. Regarding Frydenlund’s request for plain error review, the Court determined that the verdict form was a correct statement of the law and Frydenlund’s conviction did not violate double jeopardy. The greater offense included elements that the lesser offense did not; it was “logically possible” to be acquitted of burglary and convicted of criminal trespass.
Points of Interest: affirmative defenses, verdicts, double jeopardy
2024 MT 186
The essential terms of a settlement agreement reached during an HRB conciliation process includes the affirmative relief provisions to be imposed by the HRB.
While a minor, Strable inquired about a manager position at Arby’s. She was told she could not apply to be a manager because she was not yet 18. Strable filed an age discrimination complaint before the Human Rights Bureau, which issued a reasonable cause finding. After the HRB issued the reasonable cause finding, the parties entered into the conciliation process as provided by § 49-2-504(2)(c), MCA, and Admin. R. M. 24.8.301. The parties reached an “agreement in principle” regarding Arby’s paying Strable $25,000 as part of a conciliation agreement and inquired with the HRB about what affirmative relief provisions it would impose on Arby’s. Strable’s counsel withdrew prior to any conciliation agreement being signed. Arby’s denied the existence of a settlement agreement because it was not informed of the HRB’s affirmative relief provisions when it reached the “agreement in principle.” Strable sued to enforce the settlement agreement in the District Court. The court granted summary judgment in favor of Arby’s, finding the elements of a contract had not been met because Arby’s could not consent to the HRB’s affirmative relief provisions of which it was not yet aware when negotiating with Strable.
On appeal, the Supreme Court affirmed, finding the essential contractual element of consent was not met because Arby’s was unaware of any affirmative relief provisions the HRB may impose when reaching the initial “agreement in principle” regarding a payment to Strable. Because the negotiations took place during the conciliation process, where Strable could not simply dismiss her discrimination complaint against Arby’s without the HRB being allowed to initiate a commissioner complaint, the HRB’s affirmative relief provisions were essential terms of any voluntary resolution agreement. Without knowing what those terms were, the parties could not agree on the same thing in the same sense.
Points of Interest: employment law, contracts, settlement agreements
2024 MT 185
Section 25-3-106, MCA, does not permit a district court to dismiss a complaint with prejudice for untimely service, regardless of whether the defendant has appeared in the case.
Petersen filed a malpractice complaint against Simon in 2020 and a summons was issued in 2022. Petersen served Simon with the Summons in 2023. Simon moved to dismiss the suit for untimely service pursuant to § 25-3-106, MCA. Simon requested dismissal with prejudice because the applicable statute of limitations had expired. The District Court dismissed the complaint with prejudice.
Petersen appealed, agreeing that his complaint was subject to dismissal because of untimely service, but alleging it should have been dismissed without prejudice. Section 25-3-106, MCA provides: “A plaintiff in a medical malpractice action shall accomplish service within 6 months after filing the complaint. If the plaintiff fails to do so, the court, on motion or on its own initiative, shall dismiss the action without prejudice unless the defendant has made an appearance.” Simon argued that the phrase “unless the defendant has made an appearance” permitted the District Court to dismiss the complaint with prejudice because he had appeared in the case.
The Supreme Court held that § 25-3-106, MCA was only intended to shorten the default service timeline in M. R. Civ. P. 4(t)(1), not to eliminate the default principle that dismissals for untimely service are without prejudice. The phrase “unless the defendant has made an appearance” is intended to prevent dismissal for untimely service where the District Court has gained jurisdiction over the defendant because of his or her appearance.
Points of Interest: civil procedure, service, dismissal
2024 MT 184
A district court may not revoke custodial time when revoking a suspended sentence.
Toulouse was originally sentenced to a 10-year DOC commitment, with 5 years suspended, for intimidation and a consecutive 5-year suspended DOC commitment for stalking. He was transferred to a prerelease center prior to the expiration of his custodial sentence. While there, Toulouse again engaged in stalking behavior and the State petitioned to revoke his suspended sentence. Toulouse entered admissions to the probation violations. The District Court revoked Toulouse’s suspended sentences and resentenced him to a 10-year MSP commitment for intimidation and a consecutive 5-year MSP commitment for stalking.
On appeal, the Supreme Court reversed. The District Court only had authority to revoke the suspended sentences and did not have authority to revoke the custodial period Toulouse was serving. By resentencing Toulouse to a 10-year sentence for intimidation when revoking a 5-year suspended sentence, the District Court issued an illegal sentence in violation of § 46-18-203(7)(a)(iii), MCA, which permits a district court to “revoke the suspension of sentence and require the offender to serve either the sentence imposed or any sentence that could have been imposed that does not include a longer imprisonment or commitment term than the original sentence.”
Points of Interest: revocation, sentencing, credit for time served
2024 MT 182
The District Court correctly determined that the Secretary of State may charge a $1,000 per-use fee and a $5,000 annual fee for access to the Montana voter database.
ACORN International sued Montana Secretary of State Christi Jacobsen, alleging she violated ACORN’s constitutional “right to know” when she failed to provide information related to the fees she charges for access to the Montana voter database. ACORN also asked the District Court to declare that the fees are unlawful because they do not reflect the “actual cost” of reproducing the database for requestors. The court denied ACORN’s request for an injunction and declaratory relief, and did not reach the constitutional “right to know” issue.
On appeal, ACORN alleged the District Court erred in denying its request because the “actual cost” of reproducing the voter database may not include annual operations and maintenance costs. ACORN additionally argued it was error for the District Court not to consider the “right to know” issue. The Secretary responded that the fee she charges is reasonable, and it represents just one percent of the overall cost her office incurs to carry out its statutory duty to actively maintain the voter file. The Secretary countered that she did not violate ACORN’s “right to know” because she specifically responded to its broad request.
The Supreme Court affirmed, concluding that the fees the Secretary charges are consistent with the “actual cost” of producing the voter database. Further, the Secretary did not violate ACORN’s “right to know” because she provided ACORN with enough information to satisfy its broad request.
Points of Interest: right to know, user fees, constitutional rights
2024 MT 181
Protect the Clearwater v. Mont. Dep’t of Env’t Quality
District Court erred by applying Title 17’s preliminary injunction statute rather than MEPA’s specific provisions where the applicant sought relief under Title 82 and had filed a separate case under MEPA.
In 2021, the Montana Legislature amended the Opencut Mining Act, codified in Title 82, MCA, to create “dryland” permits for mining projects that do not affect groundwater and are located away from populated areas. LHC applied for such a permit near the Clearwater River. MDEQ approved the permit after LHC addressed initial deficiencies. Protect the Clearwater filed an administrative appeal with the Board of Environmental Review and filed a complaint in the District Court challenging the sufficiency of MDEQ’s environmental assessment under MEPA. After LHC began actively mining or preparing the site, Protect the Clearwater applied for a preliminary injunction, stating that its application was “being filed without a corresponding complaint.”
The District Court granted a preliminary injunction in favor of Protect the Clearwater. It evaluated Protect the Clearwater’s motion under Montana’s general preliminary injunction statute found in Title 27, rather than the specific injunction provisions of MEPA found in Title 72. The court concluded Protect the Clearwater had satisfied the elements for a preliminary injunction and granted it through the pendency of both the administrative appeal of the MDEQ permit and the separate MEPA litigation; LHC and MDEQ appealed.
The Supreme Court reversed because the District Court improperly applied the general preliminary injunction statute when Protect the Clearwater had an available remedy for similar relief in its pending action challenging the MDEQ’s environmental review of the permit. The plain language of MEPA’s preliminary injunction provision provides that, unless the court makes certain findings, a district court “may not enjoin the issuance or effectiveness of a license or permit . . . issued pursuant to Title 75 or Title 82 . . . .” The court thus erred when it entertained Protect the Clearwater’s application for a preliminary injunction as an independent action under Title 27 when the applicant had filed a separate complaint under Title 75.
Points of Interest: MEPA, natural resource law, DEQ permits
2024 MT 180
Youth Court records may not be included in a presentence investigation report for an adult offender unless the Youth Court issues an order on good cause.
McCurdy pled guilty to felony criminal mischief pursuant to a plea agreement. The District Court ordered a presentence investigation. Adult Probation and Parole staff obtained McCurdy’s juvenile criminal history records from the Youth Court Services office, and those records were included in the PSI report. McCurdy moved to strike and to require Probation and Parole to submit a revised PSI report without the juvenile information. The District Court denied the motion, noting that juvenile records may be included in a PSI and considered at sentencing because the PSI report is not publicly disseminated.
On appeal, the Supreme Court determined the District Court lacked authority to order the inclusion of youth records in the PSI. Under the plain language of the Youth Court Act, formal and informal youth court records must be physically sealed on the youth’s 18th birthday and are not open to inspection—including to adult probation and parole staff preparing a presentence report—except “on order of the youth court, for good cause.” Section 41-5-216(5)(b), MCA (emphasis added). Even though a district judge also may serve as youth court judge in the same judicial district, when ordering the PSI in this case the District Court acted only within the District Court’s jurisdiction. It had no authority in that capacity to consider a request to unseal and release McCurdy’s records or to authorize their release after-the-fact.
However, the release of McCurdy’s youth court records did not affect his substantial rights or prejudice him. McCurdy received the bargained-for jointly recommended sentence and objected to none of the conditions imposed, except for certain financial obligations—which the State agreed were imposed without proper inquiry into McCurdy’s ability to pay. The Court therefore affirmed the order regarding McCurdy’s juvenile records as harmless error and remanded for inquiry into McCurdy’s ability to pay the imposed PSI fee and supervision cost.
Points of Interest: Youth Court, presentence investigation, harmless error
2024 MT 179
Doll v. Little Big Warm Ranch, LLC
District Court correctly ruled that the Dolls were liable to LBWR as a matter of law for breach of fiduciary duties. However, the court erroneously awarded punitive damages because punitive damages are not allowed in contract disputes.
Doll and his family sued Little Big Warm Ranch, LLC, alleging members breached their fiduciary duties for improperly handling certain finance and operations issues. LBWR countersued, claiming Dolls breached their fiduciary duties to LBWR when they entered a settlement agreement that gave them senior water rights that LBWR would have otherwise obtained through the purchase of a nearby property.
The District Court determined that Dolls were liable to LBWR as a matter of law, and a jury determined LBWR was not liable to Dolls. The jury awarded $2.5 million in damages to LBWR, including compensatory and punitive damages. The court ordered Dolls to pay LBWR for the damages plus interest. The court also ordered LBWR to buy out Dolls’ shares plus interest that had accrued since they dissociated from the business in 2018. The court denied LBWR’s request for attorney fees and costs.
On appeal, LBWR argued that Dolls dissociated in 2023, thus interest should not have accrued over the longer timeframe. LBWR also contended that Dolls were liable for attorney fees and costs because LBWR’s bylaws provided for them. Dolls cross-appealed, arguing the District Court erred in ruling they were liable to LBWR as a matter of law. Dolls also asserted that LBWR’s claims were tort claims and barred by the applicable three-year statute of limitation.
The Supreme Court affirmed in part, ruling that Dolls dissociated in 2018. Further, the Court held that Dolls were not liable to LBWR for attorney fees and costs because the bylaw provisions were not ratified before Dolls’ date of dissociation. Regarding the cross-appeal, the Court affirmed that LBWR’s claims were contract-based, thus the shorter statute of limitation did not foreclose them. LBWR’s punitive damages award was reversed, however, because punitive damages are not allowed in contract disputes.
Points of Interest: fiduciary duties, business law, damages
2024 MT 178
The Parental Consent for Abortion Act of 2013 violates minors’ constitutional rights to privacy and equal protection and does not enhance their protection under Article II, Section 15, of the Montana Constitution.
The Parental Consent for Abortion Act of 2013 required minors to have parental consent or a judicial waiver to obtain an abortion. In contrast, minors who seek medical or surgical care otherwise related to pregnancy are not limited by any consent requirement. The State asserted interests in protecting minors from sexual victimization, protecting minors’ psychological and physical wellbeing, protecting minors from their own immaturity, and promoting parental rights. Applying strict scrutiny because of the fundamental rights implicated, the Court held that these interests were neither sufficiently related to the legislation nor narrowly tailored.
The Supreme Court concluded that the Consent Act violated the Montana Constitution’s right to privacy and equal protection. These constitutional protections apply with equal force to minors through the Montana Constitution’s Rights of Persons Not Adults provision. Under Armstrong and Weems, the State cannot infringe upon a minor’s fundamental right to control their body without narrowly tailoring such infringement to serve a compelling state interest. Furthermore, the Consent Act imposes no corresponding limitation on a minor who seeks medical care otherwise related to their pregnancy or child.
Points of Interest: strict scrutiny, right to privacy, equal protection
2024 MT 176
Where an existing easement agreement was a valid contract defining the rights and obligations regarding sharing construction and improvement costs, the Defendant was obligated to bear the cost of the bridge he built and displaced any inquiry into unjust enrichment.
Dimar constructed a bridge over the Clearwater River to provide better access to the subdivision where the parties reside. Dimar built the bridge at his own expense and later sought to restrict access to it, prompting neighboring landowners to file for declaratory relief to access the bridge. The plaintiffs argued that a 1994 Easement Agreement granted them access rights without the obligation to share in the construction costs of the bridge. Dimar filed a counterclaim for declaratory relief, arguing that the easement did not cover the bridge and the plaintiffs should share in construction costs. The District Court granted summary judgment in favor of the plaintiffs and determined that Dimar was estopped from contesting the validity of the easement due to his previous litigation where he had argued for the easement's validity. Dimar appealed.
The Supreme Court affirmed, holding that the District Court correctly concluded that the 1994 Easement Agreement applied in full to all lot owners in the subdivision and allowed plaintiffs the right to use the bridge for access to and from their properties. The two provisions in the Easement Agreement were not to be read separately, as the language made plain that the easement was granted in the first part of the document and was subject to the conditions set forth in the second part. Because Dimar did not show that the elements of collateral estoppel were not satisfied because of the previous litigation, he failed to establish error in the District Court’s refusal to reexamine the validity of the easement. The 1994 Easement Agreement was a valid contract, as it defined the parties’ obligations regarding sharing construction and improvement projects, and it therefore displaced any inquiry into unjust enrichment.
Points of Interest: contracts, easements and roads, declaratory judgment
2024 MT 174
Although an action dismissed under § 25-3-106, MCA, is dismissed without prejudice, the time limit imposed on filing a medical malpractice complaint under § 27-2-205, MCA, is not tolled while the action is pending because the dismissal leaves the situation the same as if the suit had never been brought in the first place.
On October 11, 2019, Phillips died shortly after receiving medical care at Logan Health. His estate brought several claims arising from alleged negligence and medical malpractice against Logan Health on January 5, 2022, but did not serve the complaint. Phillips’ estate filed its First Amended Complaint on February 10, 2023, and served Logan Health with the lawsuit on February 20, 2023. The District Court granted Logan Health’s motion to dismiss with prejudice because the original complaint should have been served within six months under § 25-3-106, MCA, and the amended complaint was filed outside the § 27-2-205, MCA, two-year limitation period.
The Supreme Court affirmed. Despite concluding that the District Court incorrectly determined § 27-2-205, MCA, was tolled by the service of process time limit under § 25‑3‑106, MCA, the court correctly dismissed the action with prejudice when Phillip’s estate filed the amended complaint after the two-year time limitation for filing medical malpractice claims had passed.
Points of Interest: statute of limitations, tolling, civil procedure
2024 MT 173
Sufficient evidence supported District Court’s findings in revocation matter where Defendant was prohibited from using marijuana but advised the court he intended to continue using it if he remained in the community.
In 2013, Kepler collided with another vehicle on I-90 while driving the wrong way at high speed. Kepler, who is schizophrenic, had marijuana and methamphetamine in his bloodstream at the time. He ultimately pled guilty to negligent homicide and two counts of felony criminal endangerment in exchange for the State dismissing other charges. The State agreed to recommend commitment to DPHHS, pursuant to § 46-14-312(2), MCA, based on Kepler’s inability at the time of the crime to appreciate the criminality of his behavior or to conform it to the requirements of the law.
The District Court committed Kepler to DPHHS for 20 years with 10 years suspended for negligent homicide, and 10 years, all suspended, for each count of criminal endangerment, with sentences imposed consecutively. The court also required Kepler to surrender his medical marijuana card and prohibited him from possessing or consuming intoxicants, including marijuana.
In 2017, DPHHS asserted Kepler was no longer a danger with continued treatment in the community, as long as he complied with conditions of release. The court suspended the remainder of Kepler’s sentence and placed him under DOC supervision, subject to standard and special conditions of release.
In 2021, the State petitioned for revocation. At the revocation hearing, an evaluator opined Kepler was treatable in the community provided he did not use marijuana or other illicit substances. Kepler’s P.O. testified that Kepler had extensive violations including drug and alcohol use. Kepler advised the court that he intended to continue to use marijuana because it helped his anxiety and insomnia. The court revoked Kepler’s suspended sentence because it determined his failure to abide by conditions of release made him a danger to himself or others.
On appeal, Kepler argued that insufficient evidence supported the District Court’s findings. The Supreme Court affirmed, holding that substantial evidence supported revocation.
Points of Interest: revocation, sufficiency of evidence, probation and parole
2024 MT 169
The Stored Communications Act, 18 U.S.C. § 2703(a) and Montana law, § 46‑5‑605(3)(a), MCA, each independently provide a jurisdictional basis for a district court to issue a search warrant to an out of state entity holding electronic data relevant to a criminal investigation.
M.H. was sexually assaulted in a Missoula alley. The perpetrator dropped a cellphone during the incident, and police identified Levine as the owner of that cellphone. After the State charged Levine with various felonies arising from the incident, the District Court issued a search warrant ordering Verizon Wireless to provide the State with data pertaining to Levine’s cellphone that was stored on servers in another state.
Levine moved to suppress the evidence, arguing in part that the warrant was an illegal extraterritorial warrant because Montana courts do not have jurisdiction to authorize searches out of state. The District Court granted the motion, concluding that it did not have jurisdiction to issue the search warrant as, generally, district courts only have jurisdiction to issue warrants “within this state.”
The State appealed from the order. On appeal, the Supreme Court concluded that the District Court erred in granting Levine’s motion to suppress. Both federal law, including the Secure Communications Act, 18 U.S.C.§ 2703(a), and § 46-5-605(3)(a), MCA, provide independent jurisdictional bases to issue warrants to out of state entities under certain circumstances for electronic data held out of state.
Points of Interest: search warrant, suppression, jurisdiction
2024 MT 168
Johnson, et al. v. City of Bozeman
Municipal residents are barred from challenging a zoning amendment once they have actual knowledge of the amendment for over 30 days because actual notice satisfies the statutory requirement that proper notice be given.
In 2017, the City of Bozeman began revising its Unified Development Code. It produced public notices announcing the planned changes and welcoming public comments at work sessions and hearings throughout 2017. In January 2018, the UDC overhaul (known as Ordinance 1978) was adopted. It encompassed hundreds of pages of zoning changes.
Over four years later, in October 2022, ten Bozeman residents challenged the validity of Ordinance 1978, specifically the “Greek housing reclassification,” which permitted the establishment of new fraternity and sorority houses in their neighborhood. After a fraternity moved in and began hosting loud parties, Plaintiffs sued the City and others, arguing they were not given proper notice.
The City responded that Plaintiffs were time-barred by § 2-3-114(1), MCA, which requires challenges to UDC revisions to be filed within 30 days of the challenging party learning of the revision, or from the date which challengers might reasonably become aware of the revision. Initially, the District Court agreed with the City, but ultimately granted partial summary judgment to Plaintiffs because another statute—§ 76-2-303(2), MCA—prevents zoning changes from becoming effective absent proper notice. Because the District Court determined that notice was not properly given, it ruled the Greek housing reclassification was void ab initio, and therefore no limitations period ever began.
The Montana Supreme Court reversed, holding Plaintiffs were barred by the 30-day limitation in § 2-3-114(1), MCA. Even if the City’s publications were insufficient to notify residents of the planned revisions, the Plaintiffs had actual notice by April 2022, when a City official informed them of the change. By failing to file suit over five months after obtaining actual knowledge, Plaintiffs were barred by the 30-day limit.
Points of Interest: statute of limitations, zoning, notice
2024 MT 167
District Court did not err in dismissing certain claims and granting summary judgment to university on others where a student sued for partial reimbursement of tuition and fees due to the university’s transition to online learning during the COVID-19 pandemic because the student did not prove that the university breached the express contract it had with the student.
Cordero, an MSU student during the spring 2020 semester, sued MSU, requesting prorated reimbursement of his tuition and fees, when MSU transitioned to online learning due to the COVID-19 pandemic. The District Court dismissed Cordero’s claims for breach of implied contract, due process violation, unjust enrichment, and violation of the takings clause pursuant to M. R. Civ. P. 12(b)(6). It granted summary judgment in MSU’s favor on the remaining two claims—breach of express contract and inverse condemnation.
Cordero challenged each of the District Court’s rulings on appeal and the Supreme Court affirmed. First, Cordero did not specifically allege that MSU violated an express, written promise to provide in-person educational services and an on-campus experience in exchange for tuition, thus he has not stated a claim for breach of express contract. While Cordero and MSU had an express contract, MSU did not breach it. Next, an implied contract cannot exist between Cordero and MSU contemporaneously with the express contract. Finally, the Court concluded the District Court did not err in dismissing Cordero’s unjust enrichment claim because cannot plead an unjust enrichment claim as an alternative cause of action where the parties’ relationship is governed by a contract.
Points of Interest: contracts, breach of contract, inverse condemnation
2024 MT 166
District Court erred in imposing a consecutive sentence on revocation when that resulted in an increase in the term of the sentence initially imposed, in violation of § 46-18-203(7)(a)(iii), MCA.
In 2003, Wolfblack was sentenced to a 10-year DOC term with five years suspended on a conviction for felony theft. He discharged the custodial portion of his sentence and was released to community supervision in 2008. In 2010, Wolfblack was convicted of SIWOC and was sentenced to a 10-year DOC term with five years suspended. Wolfblack’s 2003 sentence was also revoked in 2010 and the District Court imposed a five-year DOC sentence, all suspended, to run consecutively to the 2010 SIWOC sentence.
Wolfblack’s SIWOC sentence expired on June 26, 2021. According to the State, Wolfblack then began serving the five-year DOC sentence for the 2010 revocation. In March 2022, the State petitioned to revoke the 2010 revocation sentence and Wolfblack moved to dismiss, arguing the petition was untimely. The District Court denied the motion, ruling that there was a statutory presumption that the 2010 revocation sentence ran consecutively to the 2010 SIWOC sentence.
On appeal, Wolfblack argued that imposing a consecutive sentence upon revocation increased the term of his sentence, and § 46-18-203(7)(a)(iii), MCA, provides that a sentencing court cannot impose a sentence on revocation that is greater than the sentence initially imposed. Although the District Court relied on § 46-18-401, MCA, as authority to issue the consecutive sentence, prior case law holds that this statute does not apply when a sentence is revoked because revocation of a suspended or deferred sentence is expressly governed by § 46-18-203, MCA. Therefore, Wolfblack has served his 2003 sentence and the District Court erred in denying his motion to dismiss.
Points of Interest: revocation, sentencing
2024 MT 165
District Court correctly ruled that evidence obtained pursuant to a warrantless welfare check should be allowed when there were exigent circumstances as officers reasonably believed Defendant was suicidal and had discharged a firearm inside his home.
In September 2021, officers performed a welfare check on Case’s home because his ex-girlfriend called 911 and warned that Case had threatened suicide during a phone call with her. During the welfare check, Case drew a pistol on one of the officers, who then shot Case in the abdomen. The officer later testified that he fired because he saw a “dark object” in Case’s hands when Case jerked open a curtain and surprised him.
During trial, Case argued that any evidence discovered inside the home should have been suppressed because the warrantless entry and arrest amounted to an unconstitutional search and seizure. Case also argued the State unconstitutionally withheld potentially exculpatory evidence when it failed to notify him that his arresting officer had previously been shot at on duty. The District Court denied Case’s suppression motion and ruled that the State did not unconstitutionally withhold evidence.
The Supreme Court affirmed, holding that Montana’s “community caretaker doctrine” allows officers to enter a home without a warrant when there is reasonable exigency. The officers entered Case’s home because he was suicidal, they knew he had a history of suicidal behavior, and there was concern that he had discharged a firearm inside his home. The Court additionally upheld the court’s ruling on the evidentiary issue because the officer disclosed the fact that he was previously shot at during trial.
Points of Interest: community caretaking, search and seizure, exigency
2024 MT 161
Although the mayor had the statutory authority to terminate the city court’s clerk, she was prohibited from doing so unilaterally and without notice because the termination impaired the court’s ability to conduct business and the citizens’ access to justice.
Glendive’s Mayor terminated the employment of the Clerk of the Glendive City Court without notice in the midst of a workday. The Glendive City Court Judge, who disagreed with the termination of the Clerk, petitioned the Supreme Court for a writ of mandamus. The Judge alleged that the Mayor had interfered with the functioning of the City Court, forcing the Judge to assume Clerk duties in addition to her own duties and depriving Glendive citizens of access to justice. The Judge asked the Supreme Court to order the Clerk reinstated. The Mayor objected, asserting that she has the statutory authority to appoint or remove all local government employees, including the Clerk. She further maintained that she could fire the Clerk without cause because the Clerk was in her probationary period.
To preserve the functioning of the City Court, the Supreme Court ordered the Clerk temporarily reinstated pending the Court’s disposition of the petition. The Court then determined that the petition was more properly considered as a petition for writ of prohibition, since the petition sought to prohibit the Mayor from terminating the Clerk.
On the merits, the Court determined that the Mayor had general authority under § 7-3-213(3), MCA, to hire or fire all City employees, including the Clerk. However, the Mayor must exercise that authority consistent with § 3-1-111, MCA, in a way that does not impair the court’s power to conduct business. Prior case law also recognizes that the branches of government must work in coordination with each other to avoid such situations as occurred here. The Court granted a writ of prohibition and prohibited the Mayor from unilaterally terminating the Clerk.
Points of Interest: local government, writ of prohibition, separation of powers
2024 MT 160
Defendant was properly tried on a charge of attempted escape after he attempted to flee during arraignment because a reasonable person would have understood they were being remanded into custody based on the detention order.
During Flesch’s arraignment on a charge of bail jumping, the State informed the parties of an existing detention order from another county. As the District Court was issuing the bond amount, Flesch attempted to flee the courtroom but was quickly restrained by officers. As a result of his actions in the courtroom, Flesch was charged with attempted escape.
Flesch moved to dismiss, arguing he was not in “official detention” as defined by § 45‑7‑306(2), MCA, because a peace officer had not placed him into custody. The District Court denied Flesch’s motion, determining that a reasonable person would have understood they were being remanded into custody based on the detention order. The court also denied the State’s motion in limine to preclude Flesch from arguing at trial that he was not subject to official detention, leaving it a question of fact for the jury. A jury found Flesch guilty.
On appeal, Flesch argued that the District Court erred by denying his motion to dismiss, and further claimed the District Court judge should have disqualified herself as she presided over the arraignment hearing that gave rise to the attempted escape charge.
The Supreme Court affirmed on both issues. The State’s charging documents provided sufficient facts to establish probable cause that Flesch was subject to official detention when he attempted to flee the courtroom. The statutory definition of “official detention” includes constructive restraint, which Flesch was subject to at the time he fled. The court properly allowed the jury to determine whether Flesch was “eluding official detention.” Flesch waived his claim that the District Court judge should have disqualified herself because he did not raise the issue in a timely manner and failed to demonstrate actual bias or prejudice.
Points of Interest: criminal law, probable cause, sufficiency of evidence
2024 MT 159
Town of Kevin v. N. Cent. Mont. Reg’l Water Authority
A legal basis for an award of attorney fees between two governmental entities exists under the UDJA.
Kevin filed for a declaratory judgment that it was not and had never been a member of the North Central Montana Regional Water Authority. The District Court granted the declaration. Kevin then moved for attorney fees as “necessary or proper” under the Uniform Declaratory Judgment Act. The court found that the parties were not similarly situated and that the factors to address attorney fees under the UDJA were satisfied. It then granted Kevin its attorney fees under the UDJA.
The Authority appealed, arguing that awarding attorney fees between two governmental entities was not legally allowed because this was was akin to awarding damages between the entities. The Supreme Court affirmed the District Court, holding that, under the UDJA, a legal basis existed for an award of attorney fees. The Authority’s narrow arguments to the contrary were not persuasive.
Points of Interest: local government, attorney fees, UDJA
2024 MT 158
Bradley Livestock v. Fraser (Hill v. Ellinghouse)
Water Court correctly interpreted a historical decree, chain of title, and evidence forming the basis for a water right when it determined that Fraser has a valid, senior stock use right in Indian Creek.
Fraser purchased land in the Ruby Valley in the late 1990s, where he and his wife raised cattle until the instream flows in Indian Creek, which runs through the property, were insufficient to maintain the operation year-round. Fraser called the water commissioner to enforce his stock use water right in Indian Creek, which the commissioner refused to do because he was unfamiliar with the right. Like other stock use claims, Fraser’s claim was not filed until he did so under the House Bill 110 late-filing process in 2019. When the commissioner refused his call, Fraser filed an enforcement action, wherein the District Court certified the case to the Water Court to adjudicate the scope of Fraser’s right. The Water Court determined that a prior court decree, chain of title, and historical evidence all supported Fraser’s claim.
The Supreme Court upheld the Water Court decision, ruling that the Water Court did not commit clear error when it reviewed the evidence and concluded that it favors Fraser’s senior stock use right.
Points of Interest: water rights, water law
2024 MT 157
Trial court did not err in denying Defendant’s challenge of a prospective juror where the context showed the juror’s responses did not demonstrate bias. Defendant’s conviction under the felony murder rule was proper because the verdict form allowed the jury to hold him accountable for the murders and the evidence was sufficient to support his conviction.
Rossbach was charged with deliberate homicide under the felony-murder rule and other felonies. During voir dire, counsel asked prospective jurors for their thoughts on witness testimony when a witness had been provided an incentive. The District Court denied Rossbach’s motion to strike a prospective juror for cause based on his responses. The jury convicted Rossbach of two counts of deliberate homicide, assault with a weapon, tampering with evidence, and two counts of intimidation.
The Supreme Court affirmed, holding the District Court did not abuse its discretion in denying Rossbach’s juror challenge. The questions the court and counsel asked were not to coax or rehabilitate the prospective juror to make statements that were not his own, but to clarify confusion about the questions he was asked; the context of voir dire showed the juror’s responses did not demonstrate bias. Rossbach’s rights were not violated under the confrontation clause because Rossbach was allowed sufficient cross-examination of informants.
The Court also rejected Rossbach’s argument that that because the jury found him guilty of accountability for attempted robbery—meaning the other perpetrator was the principal actor—and because the other perpetrator undisputedly shot the two victims and caused their deaths—the other perpetrator was not a “person legally accountable for the [underlying] crime,” and Rossbach therefore could not be convicted under the felony murder rule, § 45-5-102(1)(b), MCA. The verdict form allowed “the jury to hold Rossbach accountable for the murders,” and the evidence was sufficient to support Rossbach’s conviction. Finally, the Court found no Brady violation warranting a new trial, as a late-disclosed letter written by one of the informants concerning an unrelated case did not contain contradictory statements and thus did not significantly cast doubt on the informant’s credibility.
Points of Interest: juror challenges, verdicts
2024 MT 156
District Court erred when it gave Frisk an equitable easement over disputed property because Montana does not recognize equitable easements. However, certain de minimis encroachments do not have to be moved from another’s property when the burden of moving the encroachment would be great.
Frisk and Thomas owned adjoining properties in Bigfork. After disputes about the width of an easement over a shared driveway, Frisk sued Thomas, seeking a declaration about his easement’s boundaries. A survey revealed that a portion of property Frisk had fenced in, including part of Frisk’s home, was Thomas’s property. Thomas then sued for access to that portion of property and for Frisk to remove all structures from it along with a breach of a Water Well Agreement between the parties that gave Thomas an easement to access the well on Frisk’s property for repairs and maintenance. The District Court granted Frisk an equitable easement over the disputed property, finding it would be a large burden for Frisk to move his structures and Thomas suffered little in not using a portion of his property he did not know he owned. The court imposed additional restrictions on Thomas’s easement to access the water well such as limited the number of times a year Thomas could use it and requiring prior written notice before accessing it.
On appeal, the Supreme Court held that equitable easements—where equity might preclude mandatory injunctive relief in limited circumstances and create an easement for an unintentional, non-negligent trespasser—have never been recognized in Montana. Thus it was error for the District Court to apply this doctrine to this case. The Court ordered Frisk to move his fence but held the house, which only encroached about one foot on Thomas’s property, was a de minimis encroachment and did not have to be moved. The Court further held the restrictions on the easement contained in the Water Well Agreement were reasonable considering the history of animosity between the parties and because the restrictions do not interfere with the easement’s purposes.
Points of Interest: easements and roads, equity, property
2024 MT 155
Improper claim-splitting occurs not when final judgment has been issued but when the first suit, if assumed as final, would preclude the second suit.
Dr. Weiner sued his former employer, St. Peter’s Hospital, following his termination. After the trial court denied his motion for leave to amend his complaint, Weiner brought a second suit against St. Peter’s alleging breach of contract and violation of medical staff bylaws. The trial court granted St. Peter’s motion to dismiss the second suit based on res judicata and improper claim-splitting.
The Supreme Court affirmed. Because the denial of Weiner’s motion to amend his complaint was not a final judgment, the elements of res judicata were not satisfied. However, because additional claims raised in the second suit arose from the same nexus of facts as the original suit and Weiner could still appeal the denial of the motion to amend his original complaint, the second suit was improper claim-splitting. Claim-splitting and res judicata both promote judicial economy and protect against duplicative litigation, but claim-splitting relates more to a court’s comprehensive management of its docket and naturally include another pending lawsuit regarding the same subject matter and the same defendants. Res judicata, meanwhile, concerns protecting the finality of a judgment. Accordingly, the Court reviews an order dismissing an action for claim-splitting under the abuse of discretion standard, rather than de novo review applied to res judicata appeals. While the District Court was incorrect in determining that the final judgment element of res judicata was satisfied, the court correctly dismissed the second suit for improper claim-splitting.
Points of Interest: res judicata, claim-splitting, standard of review
2024 MT 155
Improper claim-splitting occurs not when final judgment has been issued but when the first suit, if assumed as final, would preclude the second suit.
Dr. Weiner sued his former employer, St. Peter’s Hospital, following his termination. After the trial court denied his motion for leave to amend his complaint, Weiner brought a second suit against St. Peter’s alleging breach of contract and violation of medical staff bylaws. The trial court granted St. Peter’s motion to dismiss the second suit based on res judicata and improper claim-splitting.
The Supreme Court affirmed. Because the denial of Weiner’s motion to amend his complaint was not a final judgment, the elements of res judicata were not satisfied. However, because additional claims raised in the second suit arose from the same nexus of facts as the original suit and Weiner could still appeal the denial of the motion to amend his original complaint, the second suit was improper claim-splitting. Claim-splitting and res judicata both promote judicial economy and protect against duplicative litigation, but claim-splitting relates more to a court’s comprehensive management of its docket and naturally include another pending lawsuit regarding the same subject matter and the same defendants. Res judicata, meanwhile, concerns protecting the finality of a judgment. Accordingly, the Court reviews an order dismissing an action for claim-splitting under the abuse of discretion standard, rather than de novo review applied to res judicata appeals. While the District Court was incorrect in determining that the final judgment element of res judicata was satisfied, the court correctly dismissed the second suit for improper claim-splitting.
Points of Interest: res judicata, claim-splitting, standard of review
2024 MT 154
Under § 37-61-421, MCA, an attorney cannot be sanctioned for “multipl[ying] the proceedings,” when a federal court determines that the attorney’s client is protected from retrial on constitutional grounds.
Attorney Shandor Badaruddin represented Kip Hartman, the defendant in a securities fraud case, in District Court. The nine-day trial was burdened by pandemic restrictions, in addition to lengthy cross-examinations by Badaruddin during the State’s case-in-chief. Despite timing concerns raised by both Badaruddin and the District Court after the State rested on the sixth day, the trial proceeded until Badaruddin ran out of time with one witness remaining: Hartman. Badaruddin argued he could shorten the testimony but it would violate the Hartman’s constitutional rights if the District Court denied Hartman the chance to testify, even if it was due to Badaruddin’s mismanagement of time. The court rejected Badaruddin’s offer. It declared a mistrial, accusing Badaruddin of purposefully procuring that result by delaying Hartman’s testimony until the final moment. The court sanctioned Badaruddin for fees and costs incurred at trial, which amounted to over $50,000.
Badaruddin petitioned for supervisory control and argued that retrying Hartman was barred by double jeopardy, but the Montana Supreme Court denied his petition. However, upon his client’s petition for habeas corpus in federal court, the U.S. District Court for the District of Montana ruled that the mistrial declaration was erroneous and that it violated Hartman’s right to counsel and right against double jeopardy. The U.S. Court of Appeals for the Ninth Circuit affirmed.
Badaruddin then appealed his sanction to the Montana Supreme Court, which reversed the District Court’s imposition of sanction. The Court reasoned that the federal courts’ rulings undermined the factual premise on which the mistrial and sanctioning was based, and it was mindful of those decisions, though not bound to them under the Supremacy Clause. In any event, the statute under which Badaruddin was sanctioned, § 37-61-421, MCA, permits sanctions when an attorney’s conduct creates a “multiplication of proceedings.” Since the federal courts determined Hartman could not be retried, no multiplication of proceeds could ensue, as Hartman underwent one trial. Sanctions were therefore improper under § 37-61-421, MCA.
Points of Interest: sanctions, mistrial
2024 MT 153
Officers did not conduct an unreasonable “search” when they observed the defendant from a commonly accessible place which had no signs or other indications asserting a private property interest.
Zumwalt was charged with DUI after returning to his Whitefish apartment complex. An eyewitness testified that Zumwalt hit a car when attempting to park and staggered slowly back to his unit. Soon after, police officers arrived at Zumwalt’s apartment. After knocking on his door and getting no response, an officer went into the common-use area behind the apartment and saw Zumwalt hiding behind his front door. Another officer saw a shadow moving through a window near the front of the apartment. The officers encouraged Zumwalt to come out. He eventually emerged and the officers conducted sobriety tests which indicated that he was intoxicated. He was later convicted of DUI.
On appeal, Zumwalt argued the officers violated his reasonable expectation of privacy. He also argued that the District Court abused its discretion by allowing two officers to provide expert opinion testimony regarding his degree of intoxication relative to the time he consumed alcohol without laying an adequate foundation.
The Supreme Court affirmed his conviction, reasoning the officers observed Zumwalt from a common area and therefore did not encroach on his privacy. The purported intrusion in this case was minimal, as officers did not hop fences, disregard “no trespassing signs,” or manipulate any part of Zumwalt’s property when they saw him through the blinds of his back and side windows. Concerning the officers’ testimony, the Court concluded the District Court erred in letting the officers testify without forming an adequate foundation, but determined the error was harmless, given the amount of other evidence that could independently establish Zumwalt’s degree of intoxication.
Points of Interest: DUI, search and seizure, privacy
2024 MT 152
The prosecutor’s comments in closing arguments did not warrant a mistrial or plain error review. Defendant’s IAC claims were not record-based and were more appropriate for post-conviction relief. The District Court imposed a lawful sentence when it sentenced the defendant to a consecutive weapon enhancement term in addition to the persistent felony offender sentence.
In 2014, Johnson was convicted of negligent homicide with the use of a dangerous weapon for the 2013 shooting death of his brother Travis. On the State’s concession on appeal, the Supreme Court remanded for a new trial. At the subsequent trial, a jury found Johnson guilty of negligent homicide and that he used a weapon in the commission of the offense.
At the first trial, Johnson presented a justifiable use of force defense. In the second trial Johnson’s theory was that the shooting was accidental. The prosecutor commented in closing arguments on the State’s charging decision, which Johnson’s counsel did not object to, and the lack of evidence that Travis was suicidal. At the end of the prosecutor’s closing statement, Johnson’s counsel moved for a mistrial based on the prosecutor’s statement that there was no evidence Travis was suicidal. The District Court denied Johnson’s motion.
Johnson appealed the denial of his mistrial motion. Alternatively, he requested the Court exercise plain error review of prosecutorial misconduct. He further contended that his counsel provided ineffective assistance by failing to offer evidence of Travis’s behaviors prior to the fatal shooting. Johnson also argued the court imposed an illegal sentence when it sentenced him to a consecutive weapon enhancement in addition to his persistent felony offender sentence.
The Supreme Court affirmed, determining that the prosecutor’s comments did not warrant a mistrial. The Court declined to exercise plain-error review for the unobjected comments about the State’s charging decisions. Johnson’s ineffectiveness claims were not record-based and more appropriate for postconviction relief. The Court also concluded the District Court legally imposed a consecutive weapon enhancement sentence in addition to the PFO sentence.
Points of Interest: prosecutorial misconduct, ineffective assistance of counsel, plain error
2024 MT 148
District Court did not err by granting grandparents, who were legal guardians of the children, a parental interest under § 40-4-228, MCA, over the objection of fit parents.
In 2018, the Department removed L.M.A.R. and N.R.R. from their birthparents’ care due to concerns of neglect and deficient parenting. The Department placed the children in the care of their grandparents, where the children have remained. Although the children’s father was later found fit to parent the children, he voluntarily signed documents agreeing that the grandparents could be the children’s legal guardians. Since the guardianship was formalized in February 2019, the grandparents have allows the parents to have supervised visits. The visitation eventually increased to overnight weekend visits.
In 2022, the parents petitioned to terminate the guardianship. The grandparents petitioned to intervene and requested a third-party parental interest in the children. A guardian ad litem, appointed by stipulation of the parties, recommended that the children remain in the grandparents’ care with supervised parental visitation. The District Court issued a parenting plan designating the grandparents as third-party parents and providing the children reside primarily with the grandparents while parents have unsupervised parenting time every other weekend.
On appeal, the parents argue they are fit to parent the children and the court erred by granting the grandparents a parental interest under § 40-4-228, MCA, that pertains to parenting and visitation between a natural parent and a third party, rather than § 40-9-102, MCA, that pertains to grandparent visitation.
The Supreme Court affirmed. A court does not need to find the natural parents unfit before awarding a third-party parental interest. Prior case law that provided that a grandparent seeking visitation could do so only via action brought under § 40-9-102, MCA, has been superseded by statute; § 40-9-201, MCA, now provides that a grandparent is not precluded from seeking relief under Title 40, Ch. 4.
Points of Interest: dependent neglect, guardianship, grandparents’ rights
2024 MT 146
District Court did not err in admitting blood toxicology evidence where the officer failed to fully comply with the administrative rules because the deficiency went to the weight, not the admissibility, of the evidence.
Law enforcement responded to a call in which an identified citizen reported that he saw a man leave a bar and get in a vehicle while exhibiting behavior consistent with intoxication, and provided a description of the vehicle and its license plate number. An officer located the vehicle and made contact with Wojtowicz, who was in the driver’s seat. The officer asked Wojtowicz where his keys were and Wojtowicz picked them up from the center console. After further investigation, including FSTs, the officer obtained a warrant for a blood draw.
Wojtowicz was charged with felony DUI on the basis of being in actual physical control of a vehicle. He moved to suppress and the District Court denied the motion. At trial, he argued insufficiency of the evidence proving he was in actual physical control and the court also denied that motion. A jury found him guilty of DUI.
On appeal, the Supreme Court rejected each of Wojtowicz’s three arguments. First, it concluded the District Court did not err in admitting blood toxicology evidence even though the officer failed to log the lot numbers or expiration dates for the collection tubes contrary to the administrative rules because the State offered sufficient evidence as to the reliability of the data and any discrepancy went to the weight of the evidence, not its admissibility. Next, the Court concluded Wojtowicz failed to provide any authority to support his allegation that the search was unlawful. Finally, the Court rejected Wojtowicz’s argument that there was insufficient evidence to prove he was in actual physical control of a vehicle because a person is in “actual physical control” when he is not a passenger and is "in a position to cause the vehicle to move, or control the vehicle's movement in some manner or direction." State v. Wells, 2021 MT 103, ¶ 18, 404 Mont. 105, 485 P.3d 1220.
Points of Interest: DUI, suppression, sufficiency of evidence
2024 MT 145
Defendant’s Miranda rights were not violated when she was handcuffed and transported to the Sheriff’s Station following a suspected DUI because sufficient evidence indicated that Defendant had committed DUI and transportation to the station was necessary due to extreme weather conditions that precluded further field sobriety testing.
In December 2021, officers responded to a call of an SUV having swerved off the road and gotten high-centered on a rock berm. Upon arrival, Trooper Barbera observed two people sitting in a truck next to the SUV. The passenger, Davis, had crashed the SUV, walked home, driven back in another vehicle, and attempted to tow the SUV. Trooper Barbera noted an odor of alcohol emanating from the truck, saw Davis had red and watery eyes, and observed that she attempted to cover her mouth when speaking to him. Trooper Barbera learned Davis had been driving home from work—an establishment that serves alcohol—when the accident occurred. When asked if she had had anything to drink, Davis responded she had her “shifter.” Trooper Barbera testified that he knew this referred to an after-work drink.
Trooper Barbera informed Davis she was under investigation for suspected DUI but was not under arrest. He attempted to complete field sobriety tests on the scene but due to the cold and wind, decided to transport Davis to the Sheriff’s Station where the conditions would be better. He informed Davis she was not under arrest but that he was transporting her. He handcuffed Davis as it was standard operating procedure to handcuff drivers suspected of DUI. Upon arrival at the Station, Trooper Barbera removed the handcuffs and conducted the FSTs. As a result of her performance, Trooper Barbera requested a breath sample. Davis provided two samples and was ultimately arrested for DUI.
On appeal, Davis argued she was arrested without probable cause. She argued that once she was handcuffed she should have been given Miranda rights and therefore the subsequent tests should be suppressed. In affirming her conviction, the Supreme Court reasoned there was ample evidence of Davis having committed DUI and she had not made any statements that required suppression.
Points of Interest: DUI, probable cause, search and seizure
2024 MT 144
District Court did not abuse its discretion by imputing the child support payor’s former income as an OB/GYN physician when he voluntarily underemployed himself.
Jeffery was employed as an OB/GYN for many years making at least $260,000 annually until he was convicted of PFMA. After his conviction, his employer fired him. Jeffery filed for a reduced child support payment and reported his conviction to the Board of Medical Examiners. CSSD recommended two solutions based on differing facts: a lower payment if his physician’s license was revoked and a higher payment if he were allowed to keep his physicians license. The Board agreed to stipulations that allowed Jeffery to maintain his license. Jeffery voluntarily allowed his license to lapse and left medicine. He drained his retirement and savings accounts to open a business that would “hopefully pay $45,000 in five years.” The court imputed his prior income as an OB/GYN in determining his child support obligation.
On appeal, the Supreme Court held that the District Court did not abuse its discretion in imputing his prior income as Jeffery was voluntarily underemployed and the Admin. R. M. 37.62.106(3) factors were satisfied.
Points of Interest: child support, administrative rules
2024 MT 143
District courts have broad discretion in awarding attorney fees and selecting the method of calculating those fees. In a class action settlement, there must be sufficient information provided to class representatives, objectors, and the district court to enable the parties and court to reach a well-informed decision of whether the proposed settlement is fair, adequate, and reasonable.
Numerous suits were filed against Logan Health in the wake of a data breach incident that affected more than 200,000 current and former patients. After the causes were consolidated, class counsel negotiated a settlement that resulted in a $4.3 million settlement fund. Class counsel filed a fee request seeking one-third of the fund for attorney fees. The settlement notice was distributed to 202,677 putative class members. 6,017 class members responded, six opted out of the settlement, and three objected. The objections concerned the lack of evidentiary support for the fee award and the relatively short amount of time between commencement and settlement. The objectors sought discovery of communications between Logan Health, class counsel, and the mediator, as well as any billing records and proof of the nature of Logan Health’s insurance policy.
At the final approval hearing, the District Court overruled the objections and approved the settlement and fee award, which amounted to approximately $1.43 million. The court, relying on Gendron v. Mont. Univ. Sys., 2020 MT 82, 399 Mont. 470, 461 P.3d 115, determined that the percentage of recovery method of calculating the fee award was proper considering the nature and progression of the litigation. It made findings on each Gendron factor, concluding the award was reasonable. The objectors appealed.
The Supreme Court affirmed, emphasizing the deferential standard of review and the district court’s reasoning regarding the fee award. The Court distinguished the case from Pallister v. Blue Cross & Blue Shield of Mont., Inc., 2012 MT 198, 366 Mont. 175, 285 P.3d 562, on the grounds that the class and court had sufficient information regarding the proposed settlement, meaning the District Court did not abuse its discretion in denying the discovery motion.
Points of Interest: attorney fees, class action, settlement agreements
2024 MT 142
The totality of the circumstances supported the District Court’s determination that statements the defendant made to law enforcement after a valid Miranda waiver were voluntary.
Geno’s partner Naramore was found deceased in Geno’s apartment. Law enforcement questioned Geno about Naramore’s death after Geno signed a valid Miranda waiver. Autopsy results revealed Naramore’s death was caused by asphyxia via strangulation. The State then charged Geno with deliberate homicide. Law enforcement returned to Geno’s residence to “follow up” with more questions. Geno let the officers inside, signed another Miranda waiver, and discussed the circumstances leading to Naramore’s death. Law enforcement did not inform Geno there was a warrant for his arrest prior to him waiving his Miranda rights; Geno was arrested at the end of the conversation.
Geno moved to suppress his statements after the Information was filed, arguing that officers obtained an involuntary waiver of his right against self-incrimination and violated his right to counsel. The District Court denied Geno’s motion, and a jury found him guilty of deliberate homicide. Geno appealed the denial of his motion to suppress and the court’s imposition of fees at sentencing.
The Court affirmed the denial of Geno’s motion to suppress. The totality of the circumstances supported the court’s voluntariness determination that Geno’s statements were obtained without coercion. Although the deputy was misleading when he told Geno he was not under arrest and failed to inform Geno that charges had been filed, Geno’s age, level of education, prior experience with law enforcement, demeanor, and advisement of Miranda rights weighed in favor of voluntariness. Geno abandoned his right to counsel claim under Article II, § 24 of the Montana Constitution on appeal, and the Court found it unnecessary to determine Geno’s claim under the Sixth Amendment because his earlier statements included nearly all the same facts and independent admissible evidence established the elements of his conviction.
The Court reversed the imposition of fees because Geno properly raised his inability to pay before the District Court, but the court had not taken into consideration Geno’s ability to pay as required by statute.
Points of Interest: evidence, suppression, right to counsel
2024 MT 138
The offense of Habitual Traffic Offender Operating a Motor Vehicle, as defined under § 61-11-213, MCA, is an absolute liability offense and therefore the mental states defined under § 45-2-104, MCA, do not apply.
Olds was charged with three misdemeanors after a traffic stop, including the offense of Habitual Offender Operating a Motor Vehicle. Olds sought a jury instruction defining the mental states of knowingly, negligently, and purposely in the context of the habitual offender statute. Olds argued the statute required that the City prove that she knew she was a habitual offender at the time of the traffic stop.
The Municipal Court declined to instruct the jury on the mental states, reasoning that the statute imposed absolute liability. After Olds was convicted, she appealed to the District Court, which affirmed the Municipal Court. Olds again appealed, arguing that both lower courts erred and that imposing absolute liability for this offense deprived her of due process.
The Supreme Court affirmed the lower courts, holding that the statutory purpose, legislative intent, and language of the statute all indicate the Legislature intended to impose absolute liability. The Court relied on the statutory requirement of notice, imposed under § 61-11-204, MCA, to conclude that the lack of mental state does not violate due process. The Court also held that, even though the offense is one of absolute liability, a conviction under § 61-11-213, MCA, requires proof that the Department properly declared the offender a habitual offender.
Points of Interest: traffic stops, mental state, absolute liability
2024 MT 137
Cook v. Buscher Constr. & Dev., Inc.
District Court did not abuse its discretion in certifying a class of homeowners who alleged damage to their homes from differential soil settlement.
Cooks and other Subdivision homeowners filed a class-action lawsuit against the developers, builders, and realtors of the Subdivision (collectively, “Buschers”). Cooks alleged their were damaged by homes differential soil settlement due to Buschers’ negligent failure to construct Subdivision homes to mitigate against the possibility of differential settlement on hydro-collapsible soils, and Buschers’ failure to disclose material adverse facts known to them through a series of reports known as the “Terracon Reports.”
The District Court certified a class of “all persons who own or have owned property prior to June 15, 2019, within the . . . [S]ubdivision.” Buschers appealed, arguing the court abused its discretion in determining that the proposed class satisfied the commonality and typicality factors of M. R. Civ. P. 23(a)’s prerequisites to class certification and by certifying the class under M. R. Civ. P. 23(b)(3).
The Supreme Court affirmed. The Rule 23(a)(2) commonality requirement was met because every member of the class did not receive notice of a report regarding Subdivision soil conditions. Thus, common facts connected all class members to a question central to resolution of the dispute. Rule 23(a)(3) typicality was met because Buschers’ non-disclosure of the Terracon Reports, combined with a Declaration of Restrictions that required plaintiffs to landscape and water their lawns, constituted an event, practice, or course of conduct that class representatives shared with the class. The class action was superior to other methods for fairly and efficiently adjudicating the controversy, as required by Rule 23(b)(3). Class claims predominated because they were not dependent upon a class member’s individual conduct but rather on Buschers’ alleged uniform negligence. Furthermore, the trial court retains discretion to revisit certification if class claims no longer predominate as the case proceeds.
Points of Interest: class action, class certification, Rule 23
2024 MT 136
District court abused its discretion by prohibiting expert testimony related to strangulation because the testimony should have been admitted as relevant and admissible expert testimony that the opposing party may attack via cross-examination and offering contrary evidence.
Santoro was charged with negligent homicide for running over Rowell outside of a bar in 2013. Santoro he reversed his truck and sped away because Rowell was choking him, and the open driver’s side door hit Rowell and pulled him under the truck. Rowell died from his injuries. Santoro was convicted in 2016, but that conviction was reversed due to ineffective assistance of counsel. At the 2016 trial, Santoro had introduced the testimony of a blind expert on strangulation. Prior to the 2021 retrial, the State moved to exclude the strangulation expert from testifying. The District Court granted the motion. At the retrial, Santoro again alleged that he sped away from the bar in reverse because Rowell was choking him. The State repeatedly asserted Santoro’s version of events was not credible because Rowell could speak while he was allegedly being choked – a contention Santoro’s expert addressed at the first trial. Santoro was again convicted.
On appeal, the Supreme Court reversed and remanded for a new trial, finding the District Court abused its discretion by prohibiting Santoro’s expert on strangulation from testifying. The proper standard was to admit relevant and admissible expert testimony and then allow the other party to attack that testimony through the traditional methods of cross-examination and presentation of contrary evidence. Here, the court usurped the province of the jury by excluding the strangulation expert entirely and hindered Santoro’s right to present a complete defense.
Points of Interest: evidence, experts
2024 MT 134
Probable cause existed to support DUI charges where Defendant had previous DUI convictions and the present incident involved an unexplainable, serious single-vehicle motorcycle crash during the daytime that occurred on a well-paved road while Defendant was attempting to negotiate a slight left turn.
Montana State Trooper Arnold was dispatched to the scene of a single-vehicle motorcycle accident, where Hesser was found unconscious in a ditch. The weather was sunny and dry, the road was well-paved, and there were no other indications as to why the crash occurred. Upon arriving at the hospital, Arnold learned that Hesser remained unconscious, but his blood had been drawn. Arnold requested that the hospital retain the sample. He obtained a subpoena, and testing revealed a BAC of .208.
After Hesser was charged with DUI, he moved to suppress, arguing the affidavit contained insufficient probable to support the investigative subpoena. The District Court denied the motion.
On appeal, Hesser argued insufficient probable cause supported the subpoena because Arnold inappropriately relied on Hesser’s prior convictions for DUI when he determined to request the blood draw. The Supreme Court concluded sufficient probable cause supported the investigative subpoena. While Hesser’s convictions alone would not have been sufficient, the unexplained cause of the accident—under the clear, dry, daytime conditions on a well-paved road while negotiating a simple left curve—provided sufficient cause.
Points of Interest: DUI, probable cause, search and seizure
2024 MT 133
Officer unlawfully extended a traffic stop and lacked particularized suspicion to deploy a K9 for a sniff test where he had already determined the driver was not impaired and advised the driver he was free to leave with a warning.
Trooper Adams initiated a stop of a vehicle driving over the speed limit in which McElroy was a passenger. Adams smelled marijuana and thought the occupants appeared unusually nervous. He described the vehicle as showing “signs of hard travel.” Adams interviewed the driver and McElroy separately and determined their stories did not match up. He also determined that the driver was not impaired.
Adams issued a warning and advised the driver he was free to leave, but then proceeded to ask about the marijuana odor. He requested consent to search the vehicle and the driver declined. He asked McElroy for consent to search his belongings and McElroy declined. Adams then used a K9 for a sniff test. The K9 alerted to the passenger door. Adams arrested the driver and McElroy, secured a search warrant, and ultimately seized drugs, cellphones, and $2,200 in cash.
McElroy moved to suppress, arguing Adams unlawfully extended the stop and lacked particularized suspicion to conduct a sniff test. After a hearing, the District Court denied the motion. McElroy pled guilty to criminal possession with intent to distribute, reserving his right to appeal the denial of his motion to suppress.
The Supreme Court reversed. Although Adams had particularized suspicion to initiate a traffic stop, any suspicion that arose because of the smell of marijuana was dispelled once Adams determined the driver was not impaired and there was no other indication there was marijuana in the vehicle. Adams did not question the men about the smell of marijuana until after he advised the driver he was free to leave. Because Adams completed the purpose of both his initial traffic stop and his DUI investigation and advised Delavergne he could leave, he could not expand the scope of the stop to a drug possession investigation without new or additional particularized suspicion that the vehicle contained illegal drugs.
Points of Interest: particularized suspicion, traffic stops, search and seizure
2023 MT 174
Camen v. Glacier Eye Clinic, P.C.
A district court abused its discretion by failing to give the jury a loss-of-chance instruction when the plaintiff’s case asserted medical malpractice by two doctors lost him the chance to preserve his eyesight.
Camen began experiencing severe headaches on Thanksgiving of 2017. On December 15, Camen began having blurred, double vision. On December 19, a neurologist recommended Camen undergo a brain MRI, lumbar puncture, and laboratory testing of cerebral spinal fluid (CSF). Testing was completed by December 21, which showed no malignant cells, but an extremely high CSF reading. At that time, the neurologist knew Camen had idiopathic intracranial hypertension. The neurologist recommended a low dose of medication to reduce the production of CSF and went on vacation. He next saw Camen on January 3 and recommended Camen continue the medication and return in 6 months. On January 5, Camen saw an ophthalmologist, who found hemorrhages in his retinas, massive edema, and low visual acuity. The ophthalmologist raised the medication dose and stated he would confer with the neurologist. He left a message for the neurologist, which was not returned. On January 12, noting vision had worsened, the ophthalmologist referred Camen for neurosurgery to place a shunt to relieve the CSF pressure. After surgery, Camen’s vision improved for a short time, but he is now permanently blind. At trial, Camen requested a loss-of-chance jury instruction, alleging the negligence of the treating doctors reduced his chance of preserving his eyesight. The District Court refused, concluding the authority Camen presented was superseded by § 27-1-739, MCA, and Camen’s claim failed to conform to the statute.
On appeal, the Supreme Court reversed. The Court noted it had already determined the loss-of-chance theory it approved in Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824 (1985) had been “codified,” not superseded, by § 27-1-739, MCA, and was “included in the issue of causation.” The District Court’s mistaken interpretation and application of § 27-1-739, MCA, led to its error and Camen was entitled to the instruction he requested.
Points of Interest: jury instructions, loss of chance, medical malpractice
2023 MT 170
Evidence of the defendant’s ability to pay was insufficient to support the District Court’s imposition of costs, surcharges, and fees in a felony DUI case where the court relied exclusively on its finding that the defendant’s assets outweighed his liabilities.
Following conviction for felony DUI, the District Court imposed the minimum $5,000 fine along with several costs, surcharges, and fees. Relying on evidence that Dowd owned the mobile home in which he lived—valued at about $8,000—and a vehicle valued at $1,000, the District Court found that Dowd could afford to pay because “his assets outweigh his liabilities.” Dowd challenged only the costs, surcharges, and fees, not the fine.
The Supreme Court reversed. Noting that a court “must examine the fees considering a defendant’s other financial obligations, employment opportunities, available assets, and any present or future hardship imposing the fee may have,” it held that Dowd, whose only income was $940 in monthly Social Security payments and left him little money for living expenses, lacked the ability to pay. The District Court erred by relying solely on the value of his assets, which Dowd needed for basic life necessities. The Court reversed the judgment and remanded with instructions to strike the costs, fees, and surcharges.
Points of Interest: fines and surcharges, ability to pay
2023 MT 168
District Court erred in its broad ruling that prohibits general use of out-of-state income within the Montana income tax framework. Further, the District Court erred in determining that § 15-30-2119 operates as a dollar-for-dollar offset provision that indirectly taxes out-of-state income.
The Tiegs, who are not Montana residents, challenged the Department of Revenue’s audit in which they determined the Tiegs failed to properly declare certain Montana income and pay taxes on it. After failing to obtain a favorable outcome in the administrative process, the Tiegs appealed to the District Court which found in their favor, ruling that DOR impermissibly considered out-of-state income in both the Montana income tax framework generally and specifically in the Net Operating Loss statute, § 15-30-2119, MCA.
DOR then appealed, arguing that the Tiegs had failed to utilize the statutory formula for calculating a Net Operating Loss and therefore were attempting to carry forward raw losses in a way incompatible with Montana law, and further, that the inclusion of out-of-state income in the Net Operating Loss formula was within Montana’s authority so long as it did not “really amount to taxing that which is beyond its authority.”
The Supreme Court reversed. It determined that the deduction the Tiegs sought was impermissible because Montana does not permit direct carryover of Montana-only, raw, unused losses for a deduction from Montana income in future years without application of the Net Operating Loss framework. The inclusion of the out-of-state income in § 15-30-2119, MCA, did not function like an improper indirect tax on that income, but functioned as a uniform measure of eligibility for the deduction, and thus as a permissible measure of the tax. Further, because the framework operated in the same manner for nonresidents and residents alike, the Net Operating Loss statute did not impermissibly assess a tax on out-of-state income because nonresidents pay Montana income taxes based only on their Montana-source income.
Points of Interest: tax law, administrative law
2023 MT 162
A district court erred by revoking an offender’s suspended sentence for not having sex offender treatment lined up upon release when the terms of the offender’s sentence required him to complete treatment within 3 years of release into the community.
Pulst was convicted of sexual intercourse without consent, sexual assault, and indecent exposure. He received 30-year sentence, partially suspended, with a condition of his suspended sentence requiring him to complete Phase II of sex offender treatment within 3 years of release to community supervision. Pulst completed Phase I of sex offender treatment while incarcerated. Three days before he was scheduled to be released into the community, the State filed a petition to revoke his suspended sentence for failing to obtain a treatment provider for Phase II prior to his release. The District Court found Pulst violated the terms of his suspended sentence, granted the State’s petition, and resentenced Pulst.
On appeal, the Supreme Court reversed. Pursuant to § 46-18-203(7), MCA, the District Court was required to find Pulst violated the sex offender treatment condition as a predicate to exercising its authority to impose a new sentence. By the plain language of the condition, the treatment was required to be completed within 3 years of Pulst’s release, not that he have treatment lined up before his release. The District Court therefore had no authority to revoke Pulst’s sentence and impose a sentence for violating the sex offender treatment condition.
Points of Interest: revocation, sentencing, sentencing conditions
2023 MT 160
Evidence of the defendant’s alleged racial motivation for his tortious conduct was relevant to the issue of punitive damages in a civil assault case and should have been admitted.
Two Leggins, who is Native American, sued Gattrell, who is white, for assault and battery and for infliction of emotional distress after Gatrell hit Two Leggins from behind with a loaded shopping cart while in line at a grocery store. The two own neighboring properties and have a history of confrontation. The District Court granted Gatrell’s motion in limine to exclude Two Leggins’s proffered evidence of statements Gatrell had made to a process server and local newspaper that suggested a racial motivation for the assault. The jury found in Two Leggins’s favor and awarded him $1,000 in damages, also finding that Gattrell had acted with actual malice or conscious disregard for the high likelihood of injury.
In the punitive damages phase, the District Court restricted Two Leggins to presenting evidence of Gattrell’s net worth, ruling that no other evidence would be permitted. The jury awarded Two Leggins $2,000 in punitive damages.
On appeal, Two Leggins did not contest the compensatory damage award but challenged the trial court’s exclusion of evidence from the punitive damage phase of trial that could have shown Gatrell’s potentially racial motivations. The Supreme Court held first that Two Leggins had preserved the claim for appeal by arguing in response to Gatrell’s motion in limine that the evidence was relevant both to his claim for infliction of emotional distress and to his claim for punitive damages. On the merits, the Court held the District Court in error for limiting the punitive damage evidence to evidence of Gattrell’s net worth. A racial motivation for the defendant’s intentional tortious conduct is relevant and admissible to inform the jury’s consideration of the circumstances attending his actions, his intent in committing the act, and the enormity of the wrong; it bears directly on the fact at issue in the punitive phase of trial—what amount is sufficient “for the sake of example and for the purpose of punishing the defendant.” Section 27-1-220, MCA.
The Supreme Court reversed the judgment and remanded the case for a new trial limited to the amount of punitive damages.
Points of Interest: evidence, punitive damages, torts
2023 MT 154
Evidence obtained from a search following the illegal arrest of a parolee should have been suppressed.
Price was on parole when he was stopped by officers for a minor traffic violation. His passenger was on probation. Price and the passenger offered conflicting stories as their destination. The officers contacted the on-duty Probation and Parole Officer and informed him of the stop and the conflicting stories. The PPO instructed the patrol officers to get breath samples from Price and the passenger. Both came back negative for alcohol. After the officers informed the PPO of the test results, the PPO told the patrol officers to arrest Price and the passenger for 72-hour investigative holds to “look into any possible violations.” After the arrest, the PPO authorized a search of Price’s vehicle, which turned up cash and methamphetamine. Price moved to suppress the evidence due to the PPO lacking authority to deputize the patrol officers to arrest him under the facts at the time.
On appeal, the Supreme Court determined the District Court erred by not granting the suppression motion. Section 46-23-1023(2), MCA, allows a PPO to deputize another officer to arrest a parolee when, in the judgment of the PPO, the parolee has violated the conditions of the parolee’s release. When the PPO deputized the patrol officers to arrest Price, the PPO did not know of any parole violation or express any judgment based on reliable information within his possession that Price had violated the conditions of his release, and the arrest was therefore illegal. Pursuant to the exclusionary rule, the incriminating evidence obtained after the illegal arrest should have been suppressed.
Points of Interest: traffic stops, search and seizure, probation and parole
2023 MT 151
A petition for postconviction relief is time barred when it is not filed within one year from when the appellant discovered or reasonably should have discovered the existence of new evidence.
The State charged Worthan with two counts of sexual intercourse without consent, two counts of incest as to his two daughters, and tampering with witnesses. A jury found the appellant guilty of all offenses. After sentencing, Worthan filed his first PCR petition, which was dismissed. He then filed his second PCR petition in District Court, while simultaneously filing a new trial motion in the original criminal docket alleging he had newly discovered evidence that proved he did not commit the crimes for which he was convicted. He claimed one of the victims was going to recant based on a previous unrelated case in which she was also the victim. Worthan represented to the court he did not know of the recantation until 2020. The District Court denied the PCR petition.
The Supreme Court affirmed on the grounds the second PCR petition was time barred. Section 46-21-102(2), MCA, requires that the petition be filed within one year from when the petitioner discovered or reasonably should have discovered the existence of the pertinent evidence. Based on Worthan’s own representations to the District Court, he knew of the victim’s potential recantation in 2016 when the defendant in the prior case was convicted.
Points of Interest: postconviction relief, statute of limitations
2023 MT 150
As part of a training, a DOC sergeant was conducting clothed body searches of inmates passing through a common area in the correctional facility. The defendant, who was an inmate, walked through the hallway and became subjected to the clothed body search. The sergeant followed routine DOC procedures and policies while searching the defendant. After the sergeant completed the search, the defendant filed a complaint against the sergeant. The DOC initiated an investigation into the allegations and found the defendant’s discrimination claims unsubstantiated. The defendant filed a complaint in District Court alleging in part that the sergeant violated his Eighth Amendment right to be free from cruel and unusual punishment. The District Court granted summary judgment in favor of DOC.
The Supreme Court affirmed, holding that a routine clothed body search did not violate the defendant’s rights. The record never showed the sergeant touched the defendant for his own sexual gratification or to humiliate him, and pursuant to DOC policy, the inmate was randomly searched with dozens of other inmates passing through the common area. The search was performed in the same manner as the searches of other inmates, and the sergeant did not exceed the scope of what was required for an ordinary clothed body search.
Points of Interest: 8th Amendment, searches
2023 MT 147
A district court did not abuse its discretion by permitting a witness to testify regarding other uncharged bad acts when the testimony was relevant to the issue of motive.
The State charged Mountain Chief with Sexual Abuse of Children, alleging she sold her four-year-old daughter to a man for sex at the man’s home. At trial, the State elicited testimony from Mountain Chief’s older daughter that Mountain Chief had tried to get her to marry the same man when she was 12, in exchange for a house and a cell phone. Mountain Chief asserted the older daughter’s testimony violated M. R. Evid. 403 and 404 and was unfairly prejudicial.
On appeal, the Supreme Court determined the District Court did not abuse its discretion by allowing the older daughter’s testimony regarding the marriage proposal. Evidence of other crimes or acts can be admitted under Rule 404(b) if it serves to demonstrate that separate acts can be explained by the same motive, and Mountain Chief’s motive of financial desperation explained both the charged (selling one daughter to the man for money) and uncharged (attempting to have the other daughter marry the man in exchange for a house and cell phone) acts in this case. The District Court appropriately balanced the evidence’s probative value and potential prejudicial impact when allowing the older daughter’s testimony.
Points of Interest: Rule 403, Rule 404, motive
2023 MT 146
Where Defendant pled guilty to four misdemeanors and was found guilty of an additional felony charge, the District Court erred in exercising jurisdiction over two of the four misdemeanors that did not arise during the commission of the felony. The court further erred in imposing a surcharge in the written judgment in excess of its oral pronouncement.
Pehringer pled guilty to four misdemeanor charges in District Court and was found guilty by a jury on a felony charge of assault on a peace or judicial officer in that court. At sentencing, the District Court imposed certain surcharges, which he challenged on appeal, along with arguing that the District Court did not have jurisdiction over the misdemeanor charges.
On appeal, Pehringer argued the District Court improperly exercised jurisdiction over the misdemeanor charges as arising during the commission of a felony charge enumerated in § 41-5-206, MCA. This Court determined that the District Court did not err by exercising jurisdiction over Counts II (misdemeanor assault) and III (assault with a bodily fluid), finding that the District Court was proper in exercising jurisdiction over Count II because it was an enumerated felony in § 41-5-206, MCA, and Count III because it occurred at the same time as the enumerated felony. However, the remaining two misdemeanor counts of assault with a bodily fluid did not occur in close enough proximity to the felony and therefore did not “arise during the commission” it. Therefore, the court erred in retaining jurisdiction over these counts. The District Court also failed to conform its written judgment to its oral pronouncement, as it orally imposed a $15 surcharge on Count III but imposed a $20 surcharge in the written judgment. Furthermore, the proper amount of the surcharge on Count II was $20, as the $200 surcharge was suspended.
Points of Interest: jurisdiction, fines and surcharges
2023 MT 143
A district court abused its discretion by imposing unreasonable sentencing conditions in violation of § 46-18-201(4)(p), MCA. Given the nature of his offense, the defendant’s usage of the internet and certain electronic devices warranted appropriate monitoring but, under the circumstances, a complete prohibition of use without prior consent was overly broad.
Johnson pled guilty to sexual intercourse without consent for engaging in sexual intercourse with a minor under the age of sixteen. The factual basis involved communicating with the victim through text messaging and Snapchat. Over Johnson’s objection, the District Court imposed sentencing conditions prohibiting him from accessing the internet or possessing certain electronic devices without prior consent.
On appeal, the Supreme Court explained that while § 46-18-201, MCA, authorizes a sentencing judge to impose sentencing conditions during the period of the suspension of sentence, including any considered necessary for rehabilitation or for the protection of the victim or society, the restrictions or conditions must be reasonable. Under the circumstances, completely prohibiting Johnson from accessing the internet or possessing certain electronic devices without prior consent was not reasonable because it was overly broad in light of monitoring and supervision that would take place pursuant to other, appropriate sentencing conditions and it went beyond what was: (1) necessary for Johnson’s rehabilitation or the protection of the victim or society; and (2) reasonably related to Johnson’s criminal history and the offense of which he was convicted.
Points of Interest: sentencing conditions, sexual offenses
2023 MT 142
State’s inability to demonstrate a valid reason for an over 1,300-day delay was not a violation of speedy trial rights because the defendant was not prejudiced.
The State charged Daly with two drug-related felonies. Daly missed his initial appearance because he was incarcerated on a separate offense in Idaho. Daly filed a pro se motion in December 2017 to quash the arrest warrant and proceed with disposition. Despite his motion, the matter did not proceed until Daly was mistakenly released on April 30, 2020, with the Montana arrest warrant still pending. He was taken into custody the same day and transported to Montana for the pending charges.
The District Court released Daly on his own recognizance on May 20, 2020, ordering he return to Idaho to contact his probation officer there. Daly brought a speedy trial claim for the State’s failure to diligently prosecute his case. The District Court denied his motion to dismiss. It attributed much of the time prior to Daly’s transportation to Montana to him because he did not assert a speedy trial claim or otherwise respond to the pending charges. It found that Daly suffered “little prejudice.” Daly pleaded guilty.
The Supreme Court affirmed. It rejected the State’s argument that, because it never filed a detainer requiring it to proceed within a certain time frame, the time Daly spent in Idaho was attributable to him. This Court acknowledged that the Interstate Agreement on Detainers did not apply but concluded that the State still needed to complete its prosecution “within a reasonable time.” The Court held, however, that Daly did not demonstrate that this delay prejudiced him. Daly did not experience prejudice beyond the mere passage of time. Further, he received credit for all the time he served in Idaho after the Montana charges were filed.
Points of Interest: arrest warrant, speedy trial, detainer
2023 MT 140
A homeowner was entitled to specific performance of a settlement agreement entered into with his neighbor for the sale of his property despite the neighbor’s failure to satisfy conditions of the settlement agreement and the home burning down prior to property’s transfer.
To resolve a property dispute between them, Duane Bender and Stacey Rosman entered into a settlement agreement in which Bender would buy Rosman’s property for the greater of either $170,000 or the property’s appraised value. Under the agreement, Rosman was required to maintain the property in substantially the same condition and Bender was required to secure an appraisal by April 1, 2020. After Bender repeatedly failed to secure an appraisal, Rosman had the property appraised at $202,000. Bender refused to pay and Rosman sued for specific performance. Over the next several months, Bender repeatedly delayed proceedings until the District Court denied his motion to delay the next day’s hearing. That night, Rosman’s property burned and was a complete loss. The District Court later ordered enforcement of the settlement agreement, requiring Bender to pay $202,000 to Rosman in exchange for the property.
On appeal, the Supreme Court affirmed. It held that the appraisal requirement created a burden on Bender, the failure of which he could not use to escape liability; and the condition that Rosman maintain the condition of the property was a condition precedent to performance that was satisfied as of April 1, 2020—the latest conceived closing date in the agreement. As such, the risk of loss rested with Bender at the time the property burned because it should have been transferred as of April 1. It was only because of Bender’s dilatory tactics that Rosman still possessed the property at the time it burned. Rosman was also entitled to attorney fees because the settlement agreement specifically awarded them to the prevailing party in any specific performance lawsuit.
Points of Interest: remedies, specific performance, settlement agreements
2023 MT 139
Proceedings against a Montana insurance company were within the Montana Commissioner of Securities and Insurance’s jurisdiction and were not precluded by a separate federal court action.
Victory, an insurance company in Miles City, contracted with the national insurer Clear Spring to act as its Managing General Agent (MGA). Clear Spring eventually sued Victory in federal court for breach of contract. Their contract stated that, upon termination, Victory was to turn over all MGA data to Clear Spring. Clear Spring asserted that Victory did not turn over the data in a usable format, but the federal court denied a preliminary injunction on the issue. Following disparate accounts from the parties on the status of the data transfer, the Commissioner issued a letter demanding that Victory send the Commissioner the relevant data in a format usable to the Commissioner, per § 33-2-1602(4), MCA. Victory refused. Alleging Victory violated several of Montana’s MGA regulations, the Commissioner opened an administrative proceeding and proposed fining Victory and requiring it to reimburse Clear Spring for incurred losses. The District Court denied Victory’s request for a writ of prohibition to halt the Commissioner’s proceedings.
The Supreme Court affirmed the denial of the writ. The Commissioner is charged with enforcing Montana’s Insurance Code and thus had statutory authority to initiate proceedings alleging that Victory violated code provisions. The federal court’s denial of the preliminary injunction did not preclude the Commissioner’s action because the federal court addressed private breach of contract allegations not violations of a regulatory code, two different legal issues. Further, the Commissioner did not have sufficiently aligned interests with Clear Spring for the two to be considered in privity.
Points of Interest: insurance, breach of contract, writ of prohibition
2023 MT 138
Farmers Ins. Exch. v. Minemyer
For purposes of an insurance policy which measures coverage by the period within which the offense is committed, the tort of malicious prosecution occurs upon the commencement of the judicial proceeding on which the malicious prosecution claim is based.
In 2019, Minemyer was sued by two individuals who alleged he helped to advance a baseless lawsuit against them which began in 2012. The 2012 lawsuit was dismissed in 2017. Minemyer tendered the lawsuit to his insurance companies, seeking a defense and indemnification under the terms of his CGL policies, which provided coverage for, among other things, malicious prosecution from 2014-2017 and from 2018-2021. The insurance companies then filed a declaratory judgment action against Minemyer, seeking a determination that they were not obligated to defend and indemnify Minemyer against the claims made against him in the underlying lawsuit. The District Court granted the insurance companies summary judgment and ruled they had no duty to defend and indemnify Minemyer.
On appeal, the Supreme Court affirmed, determining the District Court correctly found the insurance companies had no duty to defend and indemnify Minemyer from the claims made against him in the underlying lawsuit. As the 2012 lawsuit formed the basis of the malicious prosecution claim, the CGL policies which began in 2014 were not implicated even though the 2012 lawsuit continued until 2017. Consistent with the reasoning of the majority of jurisdictions that have considered the issue, solely “for purposes of an insurance policy which measures coverage by the period within which the ‘offense is committed,’” the tort of malicious prosecution occurs upon the commencement of the judicial proceeding on which the malicious prosecution claim is based.
Points of Interest: insurance, insurance policies, indemnification
2023 MT 137
Two statements by plaintiff’s counsel during trial did not raise the topic of insurance in a manner prejudicial to the defendant.
Voegel sued Salsbery after the two were in a car accident. The District Court prohibited references during trial that would violate M. R. Evid. 411—a rule precluding evidence that a person was or was not insured upon the issue of whether the person acted wrongfully. During voir dire, Voegel’s counsel told the venire that they were not there to decide how a verdict would get paid or who would pay what. Before closing arguments, the court ordered that Voegel’s counsel could not refer to another payer of a potential verdict. Voegel’s counsel stated in closing argument that his client was asking for general damages only; she was not requesting medical bills, which were “for other people and other providers so the burden of taking care of [Voegel] doesn’t fall on someone else, doesn’t fall on the state.” The jury found in Voegel’s favor, but the court subsequently vacated the judgment and ordered a new trial based on counsel’s two statements.
The Supreme Court reversed in a 5-2 decision and reinstated the judgment. The statement during voir dire was brief and attempted to address potential bias in prospective jurors. Counsel never stated that Salsbery was insured or used the word “insurance.” To the extent the statement implied an alternate source of funds to pay a verdict, it advised the venire not to consider it. The statement during closing argument also did not use the word “insurance.” It referred to medical bills that Voegel was not asking the jury to award and thus did not achieve a prohibited advantage for Voegel. The two statements did not prejudice Salsbery’s substantial rights at trial.
Points of Interest: insurance, Rule 411
2023 MT 132
Evidence of Hardin’s sex offender status could come in under the transaction rule because it helped provide the jury context and helped prove Hardin’s mental state by showing the threats made against the officer were intentional. It was inextricably intertwined with the charge of threats and other improper influence in official and political matters.
Hardin was arrested for DUI. He threatened the officer, telling him he would see him at church and knew his wife and daughter. The officer told Hardin he knew he was a sex offender, but Hardin continued to make threats. The State charged Hardin with one count of threats and other improper influence in official and political matters and one count of DUI. Hardin later pleaded guilty to DUI but proceeded to jury trial on the threats count. Hardin moved in limine to exclude evidence of his sex offense, arguing it was impermissible character evidence and was more prejudicial than probative. The District Court allowed the evidence because it was being used for permissible purposes under Rule 404(b) and was admissible under the transaction rule. The jury convicted Hardin. At sentencing, the court ordered Hardin to pay pretrial supervision costs, although it waived other costs because Hardin could not pay.
The Supreme Court concluded the District Court did not abuse its discretion when it admitted evidence of Hardin’s sex offender status under the transaction rule. This evidence helped show Hardin’s threats were intentional, helped the jury understand Hardin’s intent and the true extent of his threats, and provided context for why Hardin’s threats were unlike those levied at the officer on a regular basis. The statements were inextricably intertwined with the charged conduct.
As to pretrial supervision costs, while the District Court conducted an ability to pay analysis and recognized Hardin’s limited resources when it waived the costs of the jury trial, it then incorrectly imposed pretrial supervision costs without considering Hardin’s resources. Because jury trial and supervision costs are subject to the same statutory ability-to-pay analysis, the Court remanded to strike the pretrial supervision costs.
Points of Interest: transaction rule, Rule 404, ability to pay
2023 MT 131
A district court violates a defendant’s right to be present when it responds to the jury’s written questions about the definition and timing of “arrest” without first consulting the defendant and counsel on record.
Zitnik was tried for vehicular assault, resisting arrest, and disorderly conduct. During deliberations, the jury submitted two questions that the court answered in writing without first consulting the parties on record. The jury asked clarification about the definition of arrest and at what time the defendant was under arrest. The court responded in writing that the jury had the necessary instructions to convict. The jury convicted Zitnik on all charges after receiving the court’s response.
On appeal, the Supreme Court reasoned that the District Court responded to the questions from the deliberating jury outside Zitnik’s presence during a critical stage of the proceedings, thereby constituting reversible error. The defendant never waived his right to be present, and the quality of the jury’s questions involved substantive areas of the law that had a potential to impact its decision to convict. The error was not harmless because Zitnik had no opportunity to object, propose alternative responses, or otherwise make a record for appeal. The Court reversed the conviction for resisting arrest because the communication between the jury and District Court was confined to that offense.
Points of Interest: jury deliberations, right of presence
2023 MT 129
State v. Craft, 2023 MT 129, 412 Mont. 1, 532 P.3d 461
District Court did not abuse its discretion when it did not provide a jury instruction on the lesser-included offense of mitigated deliberate homicide.
A jury convicted Craft of deliberate homicide. Craft’s sole defense was that his wife committed the homicide while he was out of town. The State introduced a tape in which Craft confessed that he “snapped” and killed the victim because he thought the victim had sexually assaulted Craft’s daughter. Based on the taped confession, Craft requested that the court instruct the jury on the lesser-included offense of mitigated deliberate homicide.
The District Court denied the request because there was insufficient evidence for a rational jury to find that Craft committed the homicide under extreme emotional distress.
The Supreme Court affirmed on appeal, holding that when the defendant’s only theory is acquittal he is not entitled to a lesser-included offense.
Points of Interest: jury instructions, lesser-included offense
2023 MT 121
The Workers’ Compensation Court lacks jurisdiction to consider stand-alone constitutional claims.
Montana State Fund accepted liability for Allum’s work-related knee injury in 2013. In 2020, Allum notified State Fund of an alleged back condition resulting from his knee injury. Allum petitioned for hearing on his injury claims and also challenged the constitutionality of both the Workers’ Compensation Court and the Workers’ Compensation Act. Allum then settled his injury claims with State Fund. The settlement resolved all claim-related disputes but did not address Allum’s constitutional claims. The WCC then concluded that lacked jurisdiction to consider Allum’s stand-alone challenges to the constitutionality of the WCC and WCA.
On appeal, the Supreme Court affirmed because the WCC lacks jurisdiction over stand-alone constitutional claims. The WCC has exclusive jurisdiction to make determinations concerning disputes under the WCA. It thus has the authority to issue rulings regarding constitutional challenges to the WCA or WCC only in the context of a dispute concerning benefits under the WCA and only as to the applicability of any statutory provision, rule, or order of the agency to that dispute.
Points of Interest: workers’ compensation, jurisdiction
2023 MT 120
District Court did not err when it denied Defendant’s motion to dismiss for unlawful delegation of legislative authority when he was pulled over by a Motor Carrier Services Officer and found to be in violation of 49 C.F.R. 393.11(a)(1), incorporated into Montana statute by § 61-10-154, MCA.
Akhmedli crossed an Interstate truck scale with this truck and trailer, where a Motor Carrier Services officer cited him for violating 49 C.F.R. 393.11(a)(1), incorporated by § 61-10-154, MCA, for failing to properly flag a load overhanging his trailer. Akhmedli sought dismissal of the charge, arguing that it violated the separation of powers doctrine because the incorporating statute because the incorporating statute allows MDT to adopt rules and regulations which are criminalized under § 61-9-512, MCA, thereby unconstitutionally delegating legislative power to an administrative party. After the District Court denied his motion, Akhmedli pled guilty, reserving his right to appeal this ruling.
On appeal, the Supreme Court determined that Montana precedent has considered delegation in the criminal context, specifically for traffic offenses. The Court uses a three-part framework to determine if a statute is sufficiently clear and definite such that the delegation is appropriate and does not amount to an unlawful delegation of the Legislature’s lawmaking function: (1) whether the policy behind the statute is present; (2) whether the rationale behind the statute, even if implicit, is evident; and (3) whether the statute provides a standard or guide for the proper delegation of legislative power. In this case, the Court determined that all three factors were met and held that the Legislature did not violate Article III, section 1, of the Montana Constitution.
Points of Interest: constitutional law, separation of powers, delegation of legislative authority
2023 MT 119
Hamilton Southside Historic Pres. Ass’n v. Zoning Bd. of Adjustment of the City of Hamilton
A court will not substitute judicial discretion for the discretion of a zoning board acting within the scope of its exclusive authority unless the information upon which the board relied was so lacking in fact and foundation that it was clearly unreasonable.
The Roman Catholic Bishop of Helena sought approval from the Hamilton Zoning Board of Adjustment to demolish the St. Francis Catholic Church in Hamilton and rebuild a new church on its site. The Bishop also sought variances from the zoning code for the new structure and approval of a Joint Use Parking Agreement between the church, the parish center, and the MAPS school building. Due to high attendance and public comment, the public meeting of the zoning board regarding the Bishop’s application took 19.5 hours over ten hearings in an eighteen-month period. The zoning board’s record comprised over 700 pages. The board ultimately approved the Bishop’s project, requested variances, and JUPA. The Hamilton Southside Historic Preservation Association sought a writ of certiorari seeking to block the project in the District Court, which the court denied.
On appeal, the Supreme Court affirmed the District Court’s denial of HSHPA’s petition for writ. The Court addressed HSHPA’s complaints regarding the zoning board’s approval of the Bishop’s project, noting the breadth of the underling zoning board record, and determined HSHPA was asking the Court to reweigh the evidentiary record to give greater credence to the information and analysis advanced by those contesting approval of the Bishop’s project, variances, and JUPA, which was inappropriate because the information upon which the board relied was not so lacking in fact and foundation that it was clearly unreasonable.
Points of Interest: zoning, public access, writ of certiorari
2023 MT 118
Municipal Court abused its discretion when it did not consider alternatives to a dollar-for-dollar satisfaction of Defendant’s mandatory fine.
Curran pleaded guilty to a misdemeanor charge of first-offense DUI per se in Municipal Court. At sentencing, his counsel urged the Municipal Court to consider Curran’s lack of ability to pay the mandatory $600 fine. Believing it had no discretion, the court ordered that Curran pay the $600 mandatory minimum fine. At the oral proclamation of sentence, the court suggested that Curran could pay his fine if he received a second COVID-19 stimulus payment.
Curran appealed his sentence to the District Court, which affirmed. Curran then appealed to the Supreme Court, arguing that the Municipal Court illegally sentenced him by ordering him to pay his fine with his COVID-19 stimulus payment. The Court concluded that the Municipal Court lawfully imposed the fine, but it mistakenly believed it had no discretion to suspend the fine or enforce the fine through an alternative method of payment. The COVID-19 stimulus payments are protected benefits that cannot be ordered as satisfaction for fines, but although the Municipal Court discussed with Curran the possibility of using his stimulus payment, it did not order him to do so. However, the Municipal Court failed to exercise its discretion regarding method of payment due to its belief that it must impose satisfaction of the fine through dollar-for-dollar payment. The Court reversed and remanded for consideration of alternatives.
Points of Interest: fines and surcharges, ability to pay
2023 MT 117
Cremer Rodeo Land & Livestock Co. v. McMullen
District court’s finding that insufficient evidence supported defendant’s assertion that she allowed road access as neighborly accommodation upheld under substantial credible evidence standard of review.
Sweet Grass County abandoned County Road 6A, known as the Lien Road, in 1991. Cremer Rodeo, who owned property accessible via the Lien Road, continued to use the road, as well as a spur road, across the Lien family’s property. McMullen later purchased the Lien family’s property. Cremer Rodeo continued to use the road for several years without incident, until McMullen put up a gate, which was later replaced by a fence and, ultimately, trenches across the road. Cremer Rodeo sought a determination it had a prescriptive easement to use the road. McMullen asserted she had simply ended her neighborly accommodation, and Cremer Rodeo could not obtain a prescriptive easement because it had been permissively using the road. After a bench trial, the District Court found McMullen’s evidence of neighborly accommodation was insufficient and determined Cremer Rodeo had a prescriptive easement to use the roads.
On appeal, the Supreme Court affirmed, determining the District Court’s findings of fact regarding neighborly accommodation, though contradicted by other evidence at trial, were supported by substantial credible evidence under the standard of review. The District Court’s credibility determinations were entitled to deference as it was in the best position to observe the testimony and demeanor of the witnesses, and it found McMullen and her witnesses less credible than Cremer Rodeo.
Points of Interest: easements and roads, property
2023 MT 116
Legislative amendments to the 2007 Sexual and Violent Offender Registration Act rendered the Act punitive in nature and therefore violated the ex post facto clause of the constitution if applied retroactively to offenses that happened before the amendments.
Hinman was convicted of sexual assault in 1994 and served and discharged his criminal sentence on that conviction. In 2019, Hinman was charged with failing to register as a sexual offender under the Sexual and Violent Offender Registration Act. When Hinman was convicted in 1994, the Act required Hinman to maintain registration for 10 years. However, the legislature later amended the Act’s requirements to be more burdensome with lengthier periods of registration. The requirements were made retroactive and were applied to previously convicted registrants.
The Montana Supreme Court held legislative amendments to the 2007 Act rendered the Act punitive in nature and therefore violated the ex post facto clause of the constitution if applied retroactively to offenses that happened before the amendments. The legislative amendments added restraints on registrants that significantly hindered their liberty and privacy. Therefore, the Court reversed the District Court’s order denying Hinman’s motion to dismiss, concluding the charge against him for failing to register violated his constitutional rights.
Points of Interest: sexual offender registration, ex post facto
2023 MT 112
Dissemination of redacted confidential criminal justice information stemming from a traffic stop of a public official was appropriate because the official was given proper opportunity to contest its release.
Montana State Senator Jason Ellsworth was pulled over for speeding in a construction zone. During the stop, Ellsworth exited his vehicle and confronted the Montana Highway Patrol Trooper, insisting that his title as a Senator exempted him from such offenses. The encounter was recorded on the Trooper’s dashcam, and Ellsworth soon thereafter pled guilty to obstructing a peace officer. The Helena Independent Record subsequently petitioned the District Court for the release of the dashcam footage. Ellsworth was notified of this petition, and submitted briefing only to argue that consideration of the CCJI’s release should only occur upon the completion of his one-year deferred sentence. Considering the briefing sufficient, the District Court ruled in favor of the Record and ordered release of the footage.
On appeal, against Ellsworth’s urging, the Supreme Court found that Ellsworth received sufficient notice and had ample opportunity to respond to the petition for dissemination, but chose to submit a brief arguing only that the matter was not yet ripe. Accordingly, the Court affirmed the release of the footage, given its relation to Ellsworth’s status as a public official.
Points of Interest: CCJI
2023 MT 111
District Court did not abuse its discretion in denying a motion to disqualify counsel where there was no evidence that a firm’s representation of a client prejudiced the adverse party.
In 2021, Jim Dolan, manager and partial owner of Opticom, retained RLF to represent him in a private real estate matter. At that point, RLF was in the midst of representing Rysewyk in a dispute with Opticom. RLF alleges that it informed Opticom of its representation of Rysewyk on numerous occasions prior to the firm forming a relationship with Dolan.
Soon after Opticom’s counsel sending RLF an email stating their belief that RLF had a conflict preventing the firm from representing Rysewyk in the lawsuit against Opticom, RLF informed Dolan that it made a “business decision to withdraw” from representing him. Opticom nevertheless filed a Motion to Disqualify RLF from representing Rysewyk. The District Court denied the motion based on Opticom failing to explain how it had been prejudiced or adversely impacted by RLF’s representation of Dolan in a private real estate matter.
The Supreme Court affirmed. Disqualification of counsel requires a demonstration of actual prejudice. An inquiry into whether counsel should be disqualified requires both an investigation into whether the Montana Rules of Professional Conduct have been violated and a review of whether the party has shown sufficient proof of prejudice. RLF’s representation of Dolan—as an individual—did not prejudice Opticom—a distinct legal entity—in an entirely unrelated legal matter.
Points of Interest: attorney conflicts of interest, disqualification
2023 MT 110
Jailhouse informants did not transform into State agents for purposes of the right to counsel when there was no evidence of any express or implied agreement, benefit, instructions, or additional facts showing an agency relationship. The general witness credibility instructions, along with complete cross-examination, were enough to fully and fairly instruct the jury, without providing a specific instruction telling the jury to view the testimony of jailhouse informants with particular caution.
Hardy was charged with two counts of deliberate homicide. Two counts of solicitation to commit deliberate homicide were added after Hardy asked other inmates to kill a witness while he was incarcerated. Four inmates provided the State incriminating information on Hardy. Hardy moved to suppress evidence obtained from the inmates. The District Court found the State explicitly told two of the inmates they were not being promised any benefits in exchange for information, and neither inmate expected any such benefit, so it concluded Hardy’s right to counsel was not violated and denied the motion to suppress. Hardy was convicted of all counts by jury.
On appeal, the Supreme Court concluded that the State’s use of jailhouse informants did not violate Hardy’s right to counsel. While the inmates deliberately elicited information from Hardy, no facts in the record demonstrated either informant was acting as a government agent when they did so after meeting with the State. There was no evidence of an agreement to provide the informants compensation or a benefit, the informants were not instructed or encouraged by the State to elicit information, and there were no additional facts showing the informants’ actions were attributable to the State. The jury instructions fully and fairly instructed the jury because while the District Court refused to give Hardy’s proposed instruction telling the jury to view jailhouse informant testimony with specific caution, the court provided the general credibility instructions that sufficiently advised the jury how to consider credibility.
Points of Interest: informants, credibility, suppression
2023 MT 109
It was not unjust to resume criminal proceedings against a defendant who was previously unfit to proceed with trial when the trial court complied with statutory requirements and gave serious consideration to the circumstances of the delay.
Gibson was charged with aggravated kidnapping and assault with a weapon. After the court determined him unfit to proceed with trial, Gibson was committed to the Montana State Hospital on April 25, 2019, to regain fitness. Dr. Hill submitted findings to the court that Gibson could not proceed with trial due to his persecutory delusional disorder. She expected that, with treatment, Gibson would regain fitness within six months. Gibson initially refused treatment, and the court ordered involuntary administration of his prescribed medication in December 2019. Upon taking the medication, on April 23, 2020, Gibson regained fitness.
Gibson moved to dismiss his criminal proceedings, citing § 46‑14‑222, MCA, to argue that it would be unjust to continue because of the delay during his time regaining fitness. The District Court denied the motion.
The Supreme Court affirmed. The District Court did not abuse its discretion under § 46‑14‑222, MCA, when it concluded that it could justly resume proceedings. The District Court extended Gibson’s commitment on the reasonable belief that he would regain fitness and resumed the proceedings after he regained fitness in accordance with his treatment plan. The relevant time consideration under this statute is the time it takes to regain fitness once a defendant is determined to be unfit, and Gibson was committed to MSH for just under a year. He spent a large portion of his commitment refusing medication. The District Court adhered to statutory requirements and did not abandon conscious judgment when it determined that it could justly resume proceedings against Gibson.
Points of Interest: fitness to proceed
2023 MT 104
Bryer v. Accident Fund Gen. Ins. Co.
Petition for Hearing was timely filed where § 39-71-602, MCA, tolled the limitations period while the incapacitated claimant was without a guardian, and the WCC did not err in determining the insurer failed to adequately investigate the claim before denying it.
After a valve burst in AWG’s specialty gas room, the plant manager found that a valve was releasing gas into the room and Sheldon was lying unconscious on the floor. Sheldon suffered cardiopulmonary arrest that led to severe brain damage. The District Court appointed a temporary guardian for Sheldon. The guardian retained an attorney to pursue a workers’ compensation claim, but the attorney later withdrew because the guardian was not responsive. AWG’s workers’ compensation insurer denied the claim. After the temporary guardianship lapsed, Sheldon was without a guardian for two and a half years. The court then appointed a new guardian. The new guardian obtained counsel who then petitioned the WCC, alleging Sheldon’s injury was caused by the valve bursting and exposing him to dangerous gas.
The WCC concluded the petition was timely filed as the statute of limitations was tolled while Sheldon was without a guardian. The WCC found that AWG attempted to conceal the extent of Sheldon’s exposure to argon gas. It further found that the claims adjuster failed to uncover that Sheldon’s exposure to argon gas may have caused his cardiopulmonary arrest because the adjuster failed to follow “obvious leads” during her investigation. Based on its findings, the WCC concluded that Sheldon suffered a compensable industrial injury and the insurer was also liable for attorney fees and a statutory penalty.
The Supreme Court affirmed. Section 39-71-602, MCA, tolled the limitations period while Sheldon was without a guardian. The WCC’s findings were supported by substantial credible evidence and it did not err in determining that the insurer failed to adequately investigate the claim.
Points of Interest: workers’ compensation, statute of limitations, attorney fees
2023 MT 100
Christian v. United Fire & Cas. Co.
Plaintiff was not owed indemnification because the claims brought against Plaintiff in an underlying lawsuit did not fall within their insurance policy’s scope as the policy covered property damage but the underlying complaint only alleged breech of contract.
Christian sought indemnification against claims brought by individuals who had purchased a house he had worked on as a subcontractor. The underlying complaint alleged that the contractor who sub-contracted to Christian had failed to fulfill its contractual obligations regarding the construction of the house. The policy issued to the contractor, under which Christian sought indemnity, covers “property damage.” The District Court granted summary judgment to the insurer, reasoning that the underlying claims contained no assertions of “property damage” and coverage was therefore not triggered.
On appeal, the Supreme Court upheld the District Court’s ruling, concluding that no aspect of the contractual breech claims constituted “property damage” and therefore the insurer had no duty to defend Christian.
Points of Interest: insurance indemnification, contracts
2023 MT 99
Shepherd v. State, Dep’t of Corr.
Good cause exists for discharge from employment when the employee gives inconsistent statements to investigators, makes speculative assertions, and cannot show the reason for her discharge was false, arbitrary, capricious, or a mere pretext.
The State terminated Shepherd, who was in a managerial position employed by the DOC, based on an internal investigation that determined she was dishonest during the investigation and had shared confidential disciplinary recommendations with the person who was subject to the potential discipline. Based on these actions, the State determined Shepherd could no longer be trusted to fulfill a role demanding integrity and discretion. Shepherd filed a claim against the State asserting wrongful termination. The State moved for summary judgment. The district court granted summary judgment, finding the undisputed facts established Shepherd’s discharge was for good cause because she failed to establish the reasons for her discharge were false or pretextual.
The Supreme Court affirmed, reasoning the district court did not err because the undisputed facts in the record established good cause for Shepherd’s termination. The undisputed facts showed Shepherd gave inconsistent statements during the investigation, which undermined her trustworthiness and integrity to continue in a managerial position. Shepherd further failed to provide sufficient evidence stablishing the reasons for her termination were retaliatory.
Points of Interest: employment law, wrongful discharge
2023 MT 98
When a defendant cannot show they were prejudiced by a delay, their constitutional right to a speedy trial is not violated. A defendant is entitled to resentencing when the court relies on incorrect information when imposing the sentence.
The defendant was charged with aggravated burglary and obstructing a peace officer. Between September 17, 2019 to April 13, 2021, both parties moved for continuances, and in March 2020, the courthouse was closed due to Covid-19. The defendant then moved to dismiss the case for speedy trial violations, which the District Court denied.
The jury found the defendant guilty. The district court held the sentencing and noted the defendant had ten felonies and that he was a “registered violent offender.” The court sentenced the defendant for 40 years for aggravated burglary and 6 months for obstructing a peace officer to run concurrently.
The Supreme Court determined the district court did not commit clear error when it attributed the initial period of delay to the State as institutional delay, and it gave the Covid-19 closure, little weight. The third and fourth periods of delay were attributed to the defendant for requesting new counsel and for filing a speedy trial motion less than 30 days before trial. The Court reasoned any delay committed by the district court and/or State did not change the outcome of the defendant’s trial because he could not show he experienced significant disruption or any other hardships during the pretrial delay.
The Court reversed in part in order for resentencing on an accurate record because defendant had automatically been removed from the violent offender registry in 2009 and he had nine, not 10, prior felonies.
Points of Interest: speedy trial, sentencing
2023 MT 97
District Court did not have subject matter jurisdiction to strike the Estate’s Notice of Disallowance.
Scott and his wife divorced and agreed to a Separation and Property Settlement Agreement which stated Scott would hold the “equity in the farm near Polson, Montana,” for his two sons. Scott died and devised his entire estate to the Rocky Mountain Elk Foundation without transferring any equity to his sons.
The Scott Children filed a creditor claim against the Estate for their equity in the farm. The Estate filed a Notice of Disallowance, contending that the Estate did not have subject matter jurisdiction. The Scott Children moved to strike the Notice of Disallowance. The District Court denied the motion because the claims were properly made in probate court.
The Supreme Court reversed and vacated the District Court, holding this case was materially indistinguishable from In re Estate of Cooney because the Scott Children assert equitable claims which seek specific performance of the Separation and Property Settlement Agreement. Equitable claims—seeking enforcement of a contract right—are outside a probate court’s limited subject matter jurisdiction.
Points of Interest: estate law, probate, equity
2023 MT 92
Smith v. Charter Communications
Galbreath v. Golden Sunlight Mines, 270 Mont. 19, 890 P.2d 382, has not been superseded by the 1999 statutory amendments.
Charter Communications fired Charles Smith for failing to fulfill the 50% travel requirement to his management area. Smith filed an action alleging Charter fired him without good cause in violation of the WDEA.
The District Court granted Charter’s motion for summary judgment but considered reasons outside the discharge letter’s 50% travel requirement. Smith appealed to the Ninth Circuit, arguing that the Galbreath Rule prohibited the District Court from considering termination reasons which were not specifically referenced in the discharge letter. In response, Charter argued that the Galbreath Rule had been superseded because the Rule relied on § 39-2-801, MCA, which had been amended to allow employers to use reasons other than the reason provided in the discharge letter to defend against a wrongful discharge action. The Ninth Circuit certified a version of that question to this Court.
The Montana Supreme Court concluded that Galbreath was not superseded by the amendments because its holding was not predicated upon § 39-2-801, MCA. Rather, Galbreath’s holding was predicated on the Montana Rules of Evidence.
Points of Interest: certified question, employment law, wrongful discharge
2023 MT 88
A defendant who refused PBT and requested an attorney and was informed that his request for an attorney would be treated as a refusal, should have known that asking for an attorney when asked for a post-arrest blood sample would also be treated as a refusal.
During a DUI investigation, the trooper read the Preliminary Alcohol Screening Test advisory to Turner, informing him that he did not have the right to speak to an attorney prior to consenting to a blood alcohol test. The trooper then requested a preliminary breath test from Turner. Turner refused but then sought to clarify that he did not want to refuse, but he wanted to speak to an attorney first. The trooper told Turner that he would interpret Turner’s request as a refusal.
The trooper arrested Turner and, after reading him the Montana Implied Consent advisory, requested that he submit a blood sample. Again, the advisory informed Turner that he did not have the right to speak with an attorney. Turner requested an attorney, and the trooper marked this as a refusal of the post-arrest test.
As a result of refusing to submit a sample, Turner’s license was suspended. Petitioning for reinstatement, Turner argued that he did not refuse the tests. Turner maintained that his request for an attorney did not constitute the “continual” type of uncooperative behavior that constitutes an implied refusal. The District Court denied Turner’s petition.
This Court affirmed. Turner’s explicit refusal to take the PBT was enough to suspend his license because officers are not required to accept an attempted withdrawal of refusal. Turner further demonstrated his refusal to submit to the PBT because he knew he did not have the right to an attorney. Turner was informed that requests for an attorney would be treated as a refusal. Turner should have known that responding to the request for a blood test with a request for an attorney would also be interpreted as a refusal.
Points of Interest: DUI, consent
2023 MT 87
A climate advocacy group and three NorthWestern Energy customers lacked standing to assert the claims of non-party public utilities in a challenge to a public utility statute; although the plaintiffs had standing to allege their own consumer injuries, those claims were not ripe.
NorthWestern Energy applied to the Public Service Commission for preapproval of a battery storage facility and a gas power plant, per § 69-8-421, MCA (2021). The version of the statute at issue effectively permitted NEW, but no other public utility, to acquire electricity supply resources via preapproval. The plaintiffs challenged the statute and sought to stop NWE’s acquisition of the two resources. NWE subsequently withdrew its application and resubmitted an application for preapproval of only the battery storage facility. The District Court held that the plaintiffs had standing to challenge the statute, their claims were ripe, and the statute was unconstitutional.
The Supreme Court reversed. The plaintiffs lacked standing to assert claims of non-party public utilities because any alleged unfair disadvantage was not an injury personal to plaintiffs. The plaintiffs had standing to allege direct economic injuries they faced as ratepayers, but the Court concluded that these consumer claims were not ripe. To prevail, plaintiffs would need to demonstrate that the preapproval process—as compared to a typical resource-acquisition process available to all utilities—would increase their utility bills. The Commission had not reached the merits of NWE’s second application and the record did not contain adequate information about rate comparisons for the proposed battery storage facility.
Points of Interest: standing, ripeness
2023 MT 86
Water for Flathead’s Future, Inc. v. Mont. Dep’t of Envtl. Quality
Where DEQ was acting within the realm of its expertise while conducting a “hard look” analysis as part of an environmental assessment, the Court will defer to the Agency’s decisionmaking.
Seeking to build a water bottling facility, Montana Artesian Water Company applied for a Montana Pollutant Discharge Elimination System permit from DEQ. At the time, Artesian’s facility was partially completed and Artesian was still in an exploratory development phase, so it sought a permit only for a small portion of its projected full-scale discharge. Following an environmental assessment, public comments, and the addition of certain management and effluent testing requirements, DEQ granted Artesian’s permit.
Water for Flathead then contested the permit, arguing it violated MEPA because the discharge could endanger bull trout. The District Court agreed, finding that DEQ had not fully addressed public comments from the EPA or U.S. Fish and Wildlife Service, and also failed to give the necessary “hard look” at the impacts of Artesian’s discharge upon completion of its full build-out.
On appeal, the Supreme Court highlighted that the standard of review requires courts to give deference to agency decisions within the agency’s realm of expertise. In this case, DEQ’s decisions about how to address the federal agencies’ comments were within its realm of expertise, and therefore the Court deferred to DEQ’s conclusion that the modifications made to Artesian’s discharge permit were sufficient to protect bull trout. DEQ also did not need to consider the impacts of Artesian’s fully built facility because Artesian would need to obtain a new permit for the elevated discharge rate. The Court therefore reversed the District Court, concluding the DEQ had erred in issuing the permit.
Points of Interest: natural resources, DEQ permits
2023 MT 85
Flathead Lakers Inc. v. Mont. Dep’t of Nat. Res. & Conservation
When applying for a beneficial water use permit, an applicant’s omission of statutorily required data, combined with DNRC’s failure to fully evaluate the legal availability of water, gave the compelling impression that the permit was issued erroneously.
Seeking to build a water bottling facility, Montana Artesian Water Company applied for a Beneficial Water Use permit from DNRC. The required well test data that Artesian submitted did not comply with the minimum requirements set out in MWUA, but DNRC did not flag this deficiency in its review of the application. It ultimately issued a preliminary determination to grant the permit that Flathead Lakers challenged in a contested case hearing. After a Hearing Examiner affirmed DNRC’s grant of the permit, Flathead Lakers sought judicial review and the District Court voided the permit. On appeal, this Court reversed because it determined that Artesian’s application was legally “correct and complete” and remanded the matter to the District Court.
On remand, the District Court again voided the permit, this time on the basis that, in relying on the Memo, DNRC had failed to conduct proper legal availability analysis.
On subsequent appeal, the Supreme Court affirmed. Between DNRC’s failure to fully evaluate the legal availability impacts of Artesian’s pumping on potentially connected surface waters and its use of the incomplete well test data, the Court was left with definite and firm conviction that, in view of the whole record, a mistake had been made in approving Artesian’s water use permit. The Court further determined that the District Court erred by not awarding attorney fees to Flathead Lakers despite their success and the extent of litigation. Though the controlling statute allows discretion in the awarding of fees, the denial was erroneous given the time, skill, and expense required to prevail.
Points of Interest: natural resources, DNRC permits, attorney fees
2023 MT 84
An officer must articulate some objective fact manifesting under the totality of the circumstances that a particular person is, or is about to be, engaged in criminal activity to support the particularized suspicion necessary to extend a traffic stop.
Noli was pulled over for a traffic violation. About 40 seconds into the stop, the trooper told Noli she would receive a warning, and he returned to his patrol car with Noli to fill out the paperwork. As Noli sat in the vehicle, the trooper asked questions, unrelated to the traffic stop, for almost 2 minutes before initiating routine traffic stop database checks. After the checks indicated no problems, the trooper continued unrelated questioning about the trip, Noli’s employment, and her passenger. Noli answered questions for about 9 minutes before the trooper returned to Noli’s rental minivan to check the VIN, question the passenger, and seek consent to search the van. The trooper then returned to the patrol car and told Noli she was “good to go,” but then asked her about the presence of illegal items in the van and whether he could search it. Twenty minutes into the stop, Noli gave consent to search. The trooper found methamphetamine and drug paraphernalia.
Noli moved to suppress. At the hearing, the trooper indicated he had particularized suspicion to expand the stop after speaking with the passenger due to “suspicious” or “deceptive” behavior, including: use of a rental car; the strong smell of cigarette smoke inside the vehicle; rolling papers located on the minivan’s center console; Noli resting her arm on the center console possibly in an attempt to hide rolling papers; pillows, blankets, and trash indicating “hard travel”; travel from an illegal drug source area (Las Vegas) to an illegal drug destination (North Dakota); Noli and her passenger being “extremely nervous”; and “inconsistent” statements about whether they would spend the night in North Dakota. The district court denied the motion, and Noli later pleaded guilty.
The Supreme Court reversed. The valid duration of the traffic stop was limited to addressing the traffic violation and any related safety concerns within the scope of the justification for the stop. The trooper unlawfully extended the stop by questioning Noli and her passenger for several minutes about topics related to an illegal drug investigation. The trooper established only a generalized hunch based on inferences he subjectively attached to legal conduct, and the evidence found during the search should have been suppressed.
Points of Interest: traffic stops, particularized suspicion, search and seizure
2023 MT 83
In re Guardianship of L.R.T.S.
District Court correctly granted Sammons temporary guardianship of L.S. and A.S. after finding that Sims’s ability to safely parent was limited by circumstances such as prematurely terminating their medical and mental health care.
Sammons became the guardian of L.S. and A.S. after their parents consented to his appointment. The District Court later granted Sammons’s request to terminate guardianship after Sims demonstrated an increased ability to parent. However, after Sims was charged with Partner or Family Member Assault, the court granted Sammons temporary guardianship because of Sims’s PFMA charge and her inability to ensure her children attended school and received recommended care.
On appeal, the Supreme Court affirmed the Sammons’s appointment as temporary guardian. Given that the 1999 Legislature amended that statute to include a broader range of circumstances meriting the appointment of a guardian, the Supreme Court concluded that District Court properly interpreted the statutory meaning of “limited by circumstances” as referring to more than just a parent’s willingness capacity to care for their children. The District Court properly determined that circumstances had limited Sims’s parental rights to such an extent that appointment of Sammons as sole guardian was warranted.
Points of Interest: guardianship, family law, parental rights
2023 MT 82
Section 50-20-109(1)(a), MCA, violated women’s fundamental right of privacy guaranteed by the Montana Constitution to seek health care from providers of their choosing because APRNs are qualified providers of abortion care and Montanans have the right to seek abortion care from certified APRNs.
This case arises from § 50-20-109(1)(a) (2005), MCA, which made it a felony for any licensed or competent health care provider, except physicians and physician assistants, to provide abortion care. Helen Weems and Jane Doe are licensed APRNs. They challenged the constitutionality of the statute, claiming it violated women’s fundamental right of privacy to seek abortion care from qualified health care providers of their choosing.
The parties presented extensive expert medical testimony to the District Court concerning whether abortion care provided by APRNs presents an increased risk of harm to women. The District Court concluded that abortion care provided by APRNs is safe and § 50-20-109(1)(a), MCA, is unconstitutional because it interferes with women’s right to seek abortion care from a qualified health provider. The District Court relied on Armstrong v. State, which held that the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk.
On appeal, the Supreme Court concluded there was no genuine dispute of fact that APRNs are qualified health care providers of abortion care based on overwhelming evidence produced in the trial court record that APRNs provide safe and effective abortion care. The record was devoid of any evidence that APRNs providing abortion care would present a bona fide health risk acknowledged by the medical community. The Court concluded that § 50-20-109(1)(a), MCA, unconstitutionally interfered with women’s right of privacy, guaranteed by the Montana Constitution, to seek abortion care from a qualified provider.
Points of Interest: Art. II(10), privacy, healthcare
2023 MT 79
Law enforcement has particularized suspicion to investigate for DUI when their observations provide specific and articulable facts that indicate the defendant was under the influence. The community caretaker doctrine is not based on law enforcement’s subjective reasons for making a stop, but is based on objective, specific, and articulable facts from which an officer would suspect that a citizen is in need of help or is in peril.
A reporting party called law enforcement informing a female had crashed her vehicle into a borrow pit on the side of the road and the driver appeared intoxicated. Law enforcement arrived on scene and inquired whether the driver was okay. The first officer on scene noticed the driver had bloodshot and watery eyes and could smell the odor of alcohol on her breath. The officers arrested the driver for DUI. The State charged the driver with criminal endangerment, DUI, and Partner or Family Member Assault. The defendant filed four motions to suppress evidence or to dismiss the case. The district court denied her motions.
The Court affirmed and determined the district court did not err when it found law enforcement had particularized suspicion to investigate the defendant for DUI because the officers’ observations provided specific and articulable facts that indicated she was under the influence. Further, the officer’s initial contact with the defendant was justified by the community caretaker doctrine because the defendant appeared in peril and could have reasonably needed medical attention. Law enforcement conducted a legal search and seizure because there were ample articulable facts giving the officers particularized suspicion to request breath and field sobriety tests.
Points of Interest: particularized suspicion, search and seizure, community caretaking
2023 MT 78
District Court could not impose sex offender registration on Collins under § 46-23-512, MCA, because by imposing a much harsher sentence than the one recommended in the plea agreement, it rejected the plea agreement and thus the statutory requirements for imposing registration were not met.
Collins was charged with felony sexual offenses. He entered a non-binding plea agreement where the charges were amended to two counts of criminal endangerment, the parties agreed on a recommendation for a particular sentence, and Collins agreed to registration as a sexual offender. The District Court concluded that the recommended was inadequate and sentenced Collins to harsher prison terms. It also required Collins to register as a sex offender in part because he agreed to do so as part of the plea. Collins appealed, arguing the State breached the plea agreement by not fairly or strongly arguing for the recommendation at sentencing, and that the District Court illegally imposed sex offender registration as a condition of sentence.
The Supreme Court concluded that the prosecutor did not breach the agreement and did more than pay lip service to the sentencing recommendation. However, the District Court unlawfully imposed sex offender registration. Because criminal endangerment is not a sexual offense, a court can only impose sex offender registration on a defendant if permissible under § 46-23-512, MCA, which requires the defendant to agree to comply with the registration requirements in a plea agreement and the court to accept that plea agreement. Because the court deviated from the plea agreement’s sentencing recommendation, it rejected the agreement under § 46-23-512, MCA.
Points of Interest: plea agreements, sentencing
2023 MT 73
Pub. Reprimand & Suspension Under Rule 10(G) of the Jud. Stds. Procedural Rules
District Court Judge publicly reprimanded and suspended in accordance with stipulation between Judge and Judicial Standards Commission for inappropriate comments Judge made about a witness in a courthouse’s public hallway.
In August 2022, the Judicial Standards Commission received a complaint against District Court Judge Raymond Dayton that alleged he violated the Canons of Judicial Ethics by making inappropriate comments of a sexual nature about a witness in a pending matter. Judge Dayton made these comments in a public hallway at the county courthouse, where courthouse employees overheard them.
The Commission investigated and determined that Judge Dayton violated M. C. Jud. Cond. 1.2. Judge Dayton stipulated to the violation. The Commission and Judge Dayton then agreed that he should be publicly reprimanded by the Supreme Court and suspended from office for 30 days without pay. The Court accepted and adopted the Commission’s recommendation, publicly reprimanded Judge Dayton, and suspended him for 30 days without pay.
Points of Interest: judicial standards, judicial discipline
2023 MT 72
A district court, sitting in probate, had jurisdiction to interpret a marital property settlement agreement which evidenced a testamentary intent.
Gerry and Lorri Williams divorced in 2020, filing a joint petition for dissolution and a stipulated marital property settlement agreement. The MPSA provided that both parties would execute documents to ensure joint tenancy with rights of survivorship on all jointly owned property, but the documents were not ready to sign at the time of the dissolution. The couple continued to live together and were en route to a vacation when they learned the necessary documents were ready for signature. They informed their attorney they would sign them upon return; however, Gerry died while on vacation. Their daughter then sought to informally probate Gerry’s will, which left the entirety of his estate to Lorri. Pursuant to the revocation upon divorce statute, Gerry’s estate, including the property referenced in the MPSA, would not pass to Lorri, but to their daughters in equal shares. Lorri then sought to intervene and formally probate Gerry’s estate, asserting the MPSA was a governing instrument which must be probated. Their daughter opposed, asserting the district court had no jurisdiction to interpret the document while sitting in probate. The District Court granted the petition for formal probate and determined the MPSA was a governing instrument which must be probated along with Gerry’s will.
On appeal, the Supreme Court affirmed, determining the District Court’s probate jurisdiction included the authority to interpret the MPSA. The MPSA evidenced Gerry’s testamentary intent to leave his jointly owned real property to Lorri, and was a governing instrument which expressly provided his intent to repudiate the portion of the revocation upon divorce statute which would transform all such property to tenancies in common.
Points of Interest: trusts and estates, dissolution of marriage, probate
2023 MT 71
Kageco Orchards, LLC v. Mont. DOT
Claims of speculative harm are inadequate to establish an actual concrete injury under the case or controversy requirement pertaining to standing. A writ of mandamus is not available when no clear ministerial legal duty exists.
Property owners placed private mailboxes on the State’s right-of-way that abuts their property. The owners did not apply for mailbox placement permits nor did DOT require or issue permits for the mailbox placement. The State requested the owners remove and relocate the mailboxes. The owners petitioned for declaratory judgment and writ of mandamus alleging DOT failed to follow statutory and regulatory mandates and procedures regarding the placement of the mailboxes. DOT moved for summary judgment. The district court granted DOT’s motion, finding the owners did not have standing to pursue a claim for declaratory relief and were precluded from making a request for mandamus because DOT’s acts were discretionary, not ministerial.
The Supreme Court affirmed, holding the owners could not meet the case or controversy requirement because they could not show that removing and relocating the mailboxes resulted in a past, present, or threatened injury to their property or civil rights and that the injury would be alleviated by successfully maintaining the action. The owners were not entitled to a writ of mandamus since they could not demonstrate DOT’s request was a ministerial act because the relocation of the mailboxes must not be performed with precision and certainty as to leave nothing to the exercise of DOT’s judgment.
Points of Interest: standing, writ of mandamus
2023 MT 67
Admitting hearsay statement that corroborated the victim’s allegations was harmless error where the alleged declarant testified at trial and denied the truth of the statement, which demonstrated to the jury that the hearsay statement may be unreliable.
Ripple was charged with one count of sexual intercourse without consent, victim 12 years old or younger. The alleged victim testified at trial that the eighteen-year-old Ripple had maintained a sexual relationship her. Her brother also testified, asserting that that Ripple’s brother had told him that Ripple and the victim were in a sexual relationship. The District Court overruled Ripple’s hearsay objection. Ripple’s brother later testified, denying that he had ever made such a statement or been aware of any such relationship. Ripple was convicted.
On appeal, the Supreme Court determined that the District Court erred in admitting the testimony regarding the alleged statement by Ripple’s sibling. The Court rejected the State’s argument that the statement had been admitted for some purpose other than to prove the truth of the matter asserted—the existence of a sexual relationship—and therefore was not hearsay, noting the absence of a plausible alternative relevant purpose for the statement and that the prosecutor used the statement in closing to corroborate the victim’s allegations. However, the error was not prejudicial because the alleged declarant—Ripple’s brother—testified at trial denying the truth of such a statement, thereby providing Ripple an opportunity to highlight for the jury the potentially-unreliable nature of the hearsay and curing the dangers the hearsay rule is meant to guard against. The Supreme Court therefore affirmed the conviction.
Points of Interest: evidence, hearsay
2023 MT 64
District Court erred by requiring an involuntarily committed person to attend, over objection, their own commitment hearing via two-way electronic audio-video communication rather than in person.
The State petitioned to involuntarily commit J.D.L. At the initial hearing, J.D.L. informed the District Court he wished to be present in person at the commitment hearing. Because no local placement was available, J.D.L. was transported to the Montana State Hospital. At the time of the commitment hearing, J.D.L. was still at MSH. J.D.L.’s counsel sought to waive J.D.L.’s personal appearance, over J.D.L.’s objection, and have him appear by two-way video conferencing instead due to J.D.L.’s behavior at MSH. The court granted counsel’s request 6to waive J.D.L.’s personal appearance and J.D.L. appeared by two-way video from MSH for the commitment hearing.
On appeal, the Supreme Court determined the District Court committed reversible error by waiving J.D.L.’s right to physically appear and instead requiring J.D.L. to attend, over objection, his own commitment hearing via two-way electronic audio-video communication. Strict adherence to the statutory scheme governing involuntary commitments is required due to the critical importance of the constitutional rights at stake, and the District Court violated those statutes in this case. While the statute allows waiver of personal appearances under certain circumstances, those circumstances were not met in this case. A respondent’s counsel in a civil commitment proceeding is not authorized to unilaterally waive the protected person’s right to in-person appearance and a district court is not permitted to grant such a request by counsel.
Points of Interest: involuntary commitment, right of presence, constitutional rights
2023 MT 63
District Court did not err when it allowed evidence of Defendant’s Wyoming acts to be admitted in his Montana trial, as it was evidence of motive or motus operandi in accordance with Rule 403.
While facing a felony charge of sexual abuse of a minor in Wyoming, Stryker was extradited to face a felony incest charge in Montana. At the Montana jury trial, the court allowed the State to offer evidence of other acts involving the victim, ruling that it would show motive, absence of mistake or accident, and that it was further admissible under the transaction rule. Stryker was found guilty after a jury trial.
On appeal, Stryker challenged the evidentiary ruling admitting evidence of other acts, arguing that the trial court impermissibly admitted evidence of acts committed in Wyoming, thus prejudicing the jury and functioning as propensity evidence. The Supreme Court affirmed, finding that the evidence was properly and repeatedly limited through a limiting instruction and was admitted for a proper purpose under Rule 403. Under Rule 403, evidence which may otherwise function as propensity evidence may be admitted if the evidence is offered to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Here, the evidence was admitted to show that Stryker had the motive and the same modus operandi for his actions against the victim. Furthermore, the Rule 403 evidence was not the only evidence the State offered, as the victim gave compelling and clear testimony regarding the Montana abuse she experienced. Thus, the probative value of the evidence of other acts was substantially outweighed by the risk of unfair prejudice.
Points of Interest: Rule 403, evidence, sexual offenses
2023 MT 62
Lustre Oil v. Anadarko Minerals, Inc.
Determining whether an entity may enjoy an extension of tribal sovereign immunity requires a balancing of factors, none of which are dispositive. Each consideration of tribal sovereign immunity, as it relates to entities, is heavily fact-dependent.
In February 2021, Lustre filed an action seeking quiet title to a number of oil and gas wells operated by A&S on the Fort Peck Indian Reservation. A&S and Anadarko moved to dismiss on the basis that the District Court did not have subject-matter jurisdiction because A&S enjoyed sovereign immunity as an arm of the Assiniboine and Sioux Tribes. Applying the five factors used by the Ninth Circuit in White v. University of California, 765 F.3d 1010 (9th Cir. 2014), the District Court concluded that three factors weighed in favor of finding A&S to be an arm of the Tribes and two weighed against. The court therefore dismissed for lack of jurisdiction.
Lustre Oil appealed, arguing that A&S cannot claim immunity because it is incorporated under Delaware state law. In the alternative, Lustre Oil disagreed with the District Court’s application of the White factors, requesting that the Supreme Court find no factors weighed in favor of immunity.
The Court declined to categorically bar entities incorporated under state law from enjoying extensions of sovereign immunity. The Court concluded, however, that the District Court erred by simply tallying the White factors three to two rather than assessing the weight of each factor.
The Court reversed, concluding that, on balance, the Tribes’ intent tipped the scales against extending sovereign immunity to A&S. At every opportunity, the Tribes expressed a clear separation between the Tribal government and A&S as a business entity. However, immunity analyses are fact-dependent in nature and it is possible that A&S could enjoy an extension of sovereign immunity if sued under different circumstances.
Points of Interest: sovereign immunity, oil and gas
2023 MT 51
Zolnikov v. Nat’l Bd. of Med. Examiners
The statute of limitations for a claim filed under the Montana Human Rights Act starts accruing when the discriminatory act occurred or was discovered, not when a person experiences a later consequence of the alleged discrimination.
In 2018, the National Board of Medical Examiners denied Zolnikov’s request for testing accommodations. Zolnikov appealed, and the NBME denied her appeal on December 12, 2018. Zolnikov took her test on December 14, 2018, without accommodations—she passed by only two points.
On June 12, 2019, Zolnikov filed a complaint with the Montana Human Rights Bureau, alleging that the NBME discriminated against her mental disability by denying her request for accommodations. The HRB dismissed Zolnikov for filing her complaint two days after the 180-day statutory time limit imposed by § 49-2-501, MCA. The Montana Human Rights Commission affirmed the HRB, and the District Court affirmed the HRB.
On appeal to the Supreme Court, Zolnikov maintained that she had 180 days from the date that she took the test to file her complaint, not the date that the NBME denied her appeal for accommodations.
This Court affirmed the dismissal of Zolnikov’s complaint. Zolnikov’s argument that she could not bring her claim until she took the test without accommodations failed to account for the plain language of § 49-2-501, MCA. Zolnikov’s discrimination claim started to accrue when she was denied accommodations. Zolnikov’s failure to file her complaint by June 10, 2019, barred her claim.
Points of Interest: administrative law, human rights, statute of limitations
2023 MT 48
Supreme Court exercised its discretion to deny motion to dismiss where Notice of Appeal from an immediately appealable order was filed prior to the determination of attorney fees because delaying resolution of the matter would undermine the purpose of designating such estate orders immediately appealable.
The Personal Representative of an estate moved to dismiss an appeal because he alleged the appellant’s Notice of Appeal was untimely filed. The parties agree that the order appealed from, issued on December 2, 2022, was an order that is considered final and must be appealed immediately under M. R. App. P. 6(4). However, the appellant did not file a Notice of Appeal until 75 days later. Upon the motion to dismiss, he argued the Notice was timely filed because the Estate moved for attorney fees on December 16, 2022, but did not issue a notice of entry of judgment under M. R. Civ. P. 77(d), and therefore the time to file an appeal did not begin to run until the motion for attorney fees was deemed denied.
The Supreme Court determined that the appellant relied on case law that had been superseded by amendments to the Montana Rules of Civil Procedure, and he incorrectly concluded that the motion was deemed denied as it was not a motion to alter or amend a judgment under M. R. Civ. P. 59(e). Reasoning that it would be inconsistent with recent case law to conclude that the appellant’s Notice was untimely because he waited for the resolution of a pending motion for attorney fees and costs, and further noting that the status of that motion in the District Court was uncertain, the Court further concluded that delaying the resolution of the present appeal would run counter to the purposes of designating such orders immediately appealable in estate matters and it therefore denied dismissal of the appeal.
Points of Interest: appellate procedure, civil procedure, trusts and estates
2023 MT 45
A tenant occupying the dominant tenement has standing to bring a prescriptive easement claim under § 70‑17‑109, MCA.
In 2001, Oberlander starting leasing State school trust land for agriculture and grazing. He reached the State land by crossing over property and private roads within the Hidden Valley Ranches subdivision. The Hidden Valley Ranches HOA filed a complaint against Oberlander for trespassing on the HOA’s private roads to transport his farming equipment. The HOA sought a preliminary injunction to enjoin Oberlander from this use.
Oberlander claimed a prescriptive easement over the private roadways. The District Court dismissed Oberlander’s claim for lack of standing, finding that only the owner of the land benefitted by a prescriptive easement could bring such a claim. The court entered a preliminary injunction against Oberlander’s use of the roads because, after it dismissed the prescriptive easement claim, Oberlander had no legal claim to use the private roads for his farming equipment. Oberlander appealed.
The Supreme Court reversed, concluding that Oberlander had standing to bring a prescriptive easement claim under § 70‑17‑109, MCA. Although it rejected Oberlander’s argument that the alleged prescriptive easement attached to his leasehold, it concluded that, as an occupant of the State land—the dominant tenement—Oberlander may bring a prescriptive easement claim under § 70‑17‑109, MCA.
Points of Interest: easements and roads, standing
2023 MT 44
Kiplinger v. Great Falls Obstetrical & Gynecological Assocs.
Plaintiff’s medical expert opinion testimony that defendant doctor more likely than not breached the applicable standard of medical care sufficient to raise genuine issues of fact on elements of breach and causation and preclude summary judgment on medical malpractice claim.
Kipfinger sued OBGYN for medical malpractice, alleging that OBGYN failed to correctly interpret Kipfinger and baby’s fetal heart rate tracings, timely order a cesarean section, and ensure the attendance of hospital personnel capable of fetal intubation and resuscitation at delivery. OBGYN moved for summary judgment on the grounds that Kipfinger failed to establish standard of care, breach, and causation with expert testimony. Kipfinger answered that disclosed reports and testimonies of her expert witnesses satisfied her responsive burden on summary judgment. The District Court noted that only one of Kipfinger’s experts was qualified to opine on the applicable national standard of obstetric care. The court determined the expert’s testimony failed to establish that OBGYN’s acts or omissions more likely than not breached the standard of care. The court granted summary judgment on the standard of care and breach elements without reaching the issue of causation.
On appeal, the Supreme Court noted that breach and causation in a medical malpractice claim generally require proof in the form of qualified medical expert testimony on a more probable than not basis that alleged acts or omissions deviated from the applicable standard of medical care and that the deviation was a cause-in-fact of the alleged injury or condition. Upon review of the expert’s disclosure report and deposition testimony, the Court concluded that the expert based his opinions on the applicable national standard of care for board-certified OBGYNs and opined that OBGYN deviated from the standard of care in several instances. Thus the District Court erroneously granted summary judgment.
Although the District Court did not reach the issue of causation, the Court determined to review the causation issue under its de novo standard of review. Accordingly, it held that Kipfinger raised a genuine issue of fact precluding summary judgment on causation. The Court remanded for further proceedings.
Points of Interest: medical malpractice, standard of care, causation
2023 MT 43
District Court correctly denied postconviction relief based on the absence of newly discovered evidence, despite the introduction of a medical expert’s alternative interpretation of evidence presented at time. The court correctly denied petition for new trial given that petitioner was not prejudiced by his trial counsel’s performance.
Oliphant’s child, R.O., sustained a traumatic brain injury while under Oliphant’s care. He was subsequently convicted of felony aggravated assault. More than 800 days after the court issued its judgment, Oliphant, now represented by the Montana Innocence Project, filed petitions for postconviction relief and a new trial.
The District Court dismissed both petitions. The court reasoned that Oliphant was not entitled to postconviction relief despite him submitting a medical expert’s commentary on the testimony of the five medical experts who testified for the State. The court did not grant his petition for a new trial because the court disagreed with Oliphant’s assessment of his trial counsel’s performance—finding that Oliphant’s concerns about his counsel’s undisclosed health issues, trial strategy, and postconviction guidance did not constitute ineffective assistance.
The Supreme Court affirmed. The District Court correctly concluded that Oliphant’s provision of another medical expert’s interpretation of evidence presented at trial was not newly discovered evidence. The alternative conclusion would undermine the finality of district court decisions. The District Court also correctly determined that Oliphant did not receive ineffective assistance from his trial counsel. Given the extensive expert medical testimony indicating that Oliphant caused R.O. extensive injuries, even if Oliphant’s trial counsel fell below the Strickland performance standard, Oliphant did not demonstrate the second Strickland prong—a reasonable probability that the result of the proceeding would have been different, but for his trial counsel’s errors.
Points of Interest: postconviction relief, new evidence, ineffective assistance of counsel
2023 MT 33
District Court did not err when it allowed a witness to testify via two-way video conferencing, but erred in assessing an incorrect surcharge against Defendant.
Walsh was convicted for DUI following a jury trial. During that trial, the District Court had allowed one of the State’s witnesses to testify via videoconferencing. At sentencing, the court sentenced him to MSP and imposed a $100 surcharge under § 46-18-236, MCA.
On appeal, the Supreme Court held that the trial court did not err when it allowed the witness to testify remotely. The District Court made a case-specific, factual determination that denial of face-to-face confrontation was necessary to further an important public policy and to uphold the reliability of the testimony. The witness in this case was out of the country. To testify in person, she would have had to spend over 30 hours roundtrip in the air, travel through multiple airports, and violate a Do Not Travel Advisory due to the COVID-19 pandemic. The District Court made a substantive and detailed finding that requiring the witness to testify in person would present a real threat that she could contract and spread COVID-19 in violation of public policy. Further, the reliability of the trial was maintained.
The Supreme Court determined that the District Court had committed reversible error during sentencing. Under § 61-8-731(1), MCA, Walsh was to be sentenced to DOC and, pursuant to § 46-18-236(1)(c), MCA, he was to be assessed a surcharge of $50, not $100. Walsh’s conviction was affirmed but his sentence was reversed and remanded for resentencing.
Points of Interest: video testimony, fines and surcharges
2023 MT 26
The State presented sufficient evidence that Defendant tampered with two witnesses according to § 45-7-206, MCA.
Palafox was convicted in a nonjury trial for two counts of witness tampering and also pleaded guilty to aggravated animal cruelty. Palafox’s motion to dismiss both counts for insufficient evidence at the close of the State’s case was denied. Palafox appealed, arguing that the State did not present enough evidence that he believed either victim would serve as a witness in the animal cruelty investigation and that his threats were intended to prevent them from doing so.
On appeal, the Supreme Court affirmed. Palafox’s threats far exceeded merely threatening to bring a civil lawsuit against the witnesses, as sufficient evidence was presented that he threatened to hurt or kill the witnesses and their family. The Court rejected Palafox’s argument that because the second witness had no specific knowledge of the animal cruelty incident, Palafox could not have tampered with the witness. Witness tampering only requires a defendant believe an official investigation is pending, and when each count of witness tampering occurred, Palafox knew he was being investigated for animal cruelty. While the second witness did not see the video forming the basis of the animal cruelty charge, Palafox’s knowledge of the official investigation and subsequent threats to the witness and the witness’s family were enough to sustain his conviction.
Points of Interest: witness tampering, sufficiency of evidence
2023 MT 25
A more than three-year delay between Defendant’s arrest and trial, more than half of which was caused by a shortage of bedspace and staffing at the Montana State Hospital, violated his constitutional right to a speedy trial.
Cascade County charged Allery with assault with a weapon in August 2017. Based on concerns about Allery’s mental fitness to stand trial, the trial court ordered him transferred to MSH for a mental health evaluation. MSH did not admit Allery for eight months due to a lack of bedspace. After a determination of unfitness and several months of treatment, Allery gained fitness to stand trial. The court transferred him back to jail rather than allowing him to remain at MSH because the hospital needed the bed. Allery decompensated in the jail during several months of delay, and he had to be readmitted to MSH. After other delays, a jury convicted Allery in October 2020.
The Supreme Court concluded that the 1,179-day delay, more than half of which had been caused by systemic institutional problems at MSH, violated Allery’s speedy trial right. Allery clearly had expressed his desire to be brought to trial. He underwent long waits and mental deterioration in jail. The State was unable to overcome the strong presumption that the delay prejudiced Allery.
Points of Interest: fitness to proceed, speedy trial, constitutional rights
2023 MT 8
In situations of a deferred imposition of sentence, credit for time served is applied to reduce time remaining on the deferral period in an identical manner as to any other sentence.
Defendant received a five-year deferred sentence in May 2016, along with credit for 90 days of pretrial incarceration. In April 2021, the State petitioned for revocation for violations of the conditions of the deferred sentence. In May 2021, the District Court determined the defendant did commit the violations alleged, revoked the deferred sentence, and imposed a five-year DOC commitment.
On appeal, the Supreme Court reversed and remanded with instructions to dismiss with prejudice because it determined the 2021 revocation and imposition of sentence was illegal. Defendant’s deferred sentence had expired prior to the State filing its revocation petition because the 90 days of credit for time served reduced the time remaining on the deferral period. With the credit applied, the sentence expired in February 2021—two months before the State filed its petition to revoke. Just as the State had no power to move to revoke a nonexistent sentence, the District Court had no authority to revoke the expired deferred sentence or impose a new sentence.
Points of Interest: sentencing, revocation
2023 MT 7
A.J.B. v. Mont. Eighteenth Jud. Dist. Ct.
Section 41-3-306(7)(b), MCA (2021), which excepts ICWA cases from eligibility for emergency protective services hearings in dependent-neglect cases, violates the constitutional right to equal protection of the law.
CFS removed a child from his mother on an emergency basis. Mother requested an Emergency Protective Services hearing and challenged the constitutionality of the exception found in § 41-3-306(7)(b), MCA (2021), which provides that a parent’s right to request an EPS hearing pursuant to § 41-3-306(1)(a), MCA (2021), does not apply to cases involving an Indian child who is subject to ICWA. The District Court denied Mother’s request for an EPS hearing and determined § 41-3-306(7)(b), MCA (2021), was not unconstitutional because holding an EPS hearing would risk interfering with the mandatory notice to tribes ICWA requires. Mother then sought a writ of supervisory control.
The Supreme Court accepted and granted Mother’s writ of supervisory control, determining it was appropriate to consider the petition in cases where a statute may act to unnecessarily delay a child’s reunification with their natural parent or parents as that urgency renders the normal appeal process inadequate. In the context of emergency proceedings, the parents of Indian children are similarly situated to other parents whose children were removed by the Department on an emergency basis; § 41-3-306(7)(b), MCA (2021), treats these similarly situated classes differently; § 41-3-306(7)(b), MCA (2021), implicates a fundamental right and is subject to strict scrutiny review; and no compelling state interest has been identified to justify the disparate treatment of these similarly situated classes. Mother met her burden of proving, beyond a reasonable doubt, § 41-3-306(7)(b), MCA (2021), unconstitutionally violates the right to equal protection of the law under both the U.S. and Montana Constitutions.
Points of Interest: dependent neglect, ICWA, constitutional law
2023 MT 6
District Court did not err when it determined that Avista acted in contravention of the Settlement Agreement and improperly withheld rent payments from the State. However, the court erred when it interpreted the MFNC because the Clause had yet to be triggered and was not ripe for judicial review.
Avista Corporation, a Washington-based utility company, withheld rent owed to the State of Montana alleging the U.S. Supreme Court’s decision in PPL Mont. v. Montana triggered the Most Favored Nations Clause of an agreement between Avista and the State. As a result, Avista argued it was entitled to rent credit and a reduction in prospective rent owed. The State commenced litigation, arguing that the MFNC had not yet been triggered, but even if it had been triggered, the retroactivity provision would not. The District Court found the MFNC had not yet been triggered, but proceeded to evaluate and interpret the MFNC were it to be triggered in the future.
The Supreme Court determined that Avista’s decision to withhold rent satisfied the elements of a definite and concrete injury, thus demonstrating a hardship if the Court were to withhold consideration. The issue of rent repayment and enforcement of the Settlement Agreement was ripe for District Court review. However, the District Court overstepped when it proceeded to interpret the MFNC since the issue was not ripe for judicial review. The Court therefore affirmed in part, reversed in part, and affirmed the declaration that “Avista is required to continue to pay the annual full market rental rate as set forth in the Settlement, Consent Judgment, and Lease.”
Points of Interest: contracts, energy, settlement agreements
2023 MT 3
Statements in minute entries that noted Defendant’s attendance were not testimonial and thus did not implicate Defendant’s constitutional right of confrontation.
The State used two minute entries written by a court clerk to convict Staudenmayer of bail-jumping. The first minute entry stated that Staudenmayer was present for his arraignment, where he learned about an upcoming omnibus hearing and the requirement he attend. The second minute entry stated that Staudenmayer was not present at the omnibus hearing.
The Supreme Court applied the primary purpose test to determine whether the clerk’s minute entry statements were testimonial and thus whether Staudenmayer’s right of confrontation was violated when the clerk’s statements were admitted without affording him the opportunity for cross-examination. Because the clerk wrote about Staudenmayer’s attendance primarily for an administrative purpose, not a prosecutorial one, her statements were not testimonial. Staudenmayer’s constitutional right of confrontation was not implicated and his conviction was affirmed.
Points of Interest: minute entries, right of confrontation
2023 MT 2
Two convictions for criminal endangerment arising from a single episode did not violate the multiple charges statute because a distinct criminal event occurs any time a person criminally endangers another.
In 2019, McNamara hit and killed a child while driving at approximately 70 miles per hour. When McNamara drove away from accident, he came dangerously close to hitting a car with two people inside. The State charged McNamara with three counts of felony criminal endangerment as to three different victims, including the people in the car. A jury convicted McNamara of multiple offenses, including two counts of criminal endangerment—those arising from the near collision with the car. He was sentenced to 55 years in the Montana State Prison, including a consecutive 10-year DOC commitment for both convictions of criminal endangerment.
On appeal, McNamara argued that the district court violated the multiple charges statute for two reasons: (1) his conviction and sentence for two counts of criminal endangerment arose from the same transaction; and (2) one offense of criminal endangerment was included in the other.
The Montana Supreme Court affirmed, holding that a distinct event of criminal endangerment occurs any time a person “knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another.” The statute clearly contemplates “another” as one person. Here, McNamara’s conduct criminally endangered two individuals.
Points of Interest: criminal endangerment, criminal law, multiple charges
2023 MT 1
In re L.R.J., C.M.J., and C.S.J.
ICWA applied to a proceeding in which a Native mother sought return of children from their paternal grandparents, whose custodial rights had been established by a stipulated parenting plan.
A mother signed a parenting plan in 2017 agreeing to place three children in the custody of their paternal grandparents. The plan allowed the mother to seek restoration of her custodial rights once she had completed certain tasks, including counseling and parenting classes. Several years later, the mother sought return of her children, giving notice that she had completed the required tasks and withdrawn her consent to the parenting plan pursuant to ICWA. Relying on In re Bertelson, 189 Mont. 524, 617 P.2d 121 (1980), the trial court held that ICWA does not apply to internal family disputes.
The Supreme Court reversed the trial court’s refusal to apply ICWA and overruled Bertelson in part. ICWA applies to all state child custody proceedings involving Indian children. ICWA’s plain definition of “child custody proceedings” includes actions removing an Indian child from a parent for temporary placement in the home of a guardian or conservator where the parent cannot have the child returned upon demand. The parenting plan in this case temporarily placed the three children in the care of their grandparents and prohibited the mother from regaining custody upon demand. ICWA thus applied to the dispute. Although the mother sought immediate return of her children as a matter of law, the Supreme Court remanded the case to the trial court for further proceedings in compliance with ICWA.
Points of Interest: ICWA, parenting plan, guardianship
2022 MT 1
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
2022 MT 2
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 3
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 4
(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 5
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 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 10
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 11
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 12
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 13
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 18
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 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 24
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 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 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 27
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 28
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 33
Depositors Ins. Co. v. Sandidge
Insurer had standing to pursue declaratory judgment action against injured party who had made a Ridley claim against it, and insurer was entitled to summary judgment where the injured party failed to present undisputed material facts to support his entitlement to Ridley payments.
Sandidge and Tharp were involved in a motor vehicle accident in which Sandidge sustained injuries. He made a Ridley claim against Tharp’s insurer, Depositors Ins. Co., but Depositors ceased making advance payments after it determined that Sandidge’s medical ailments were caused by a pre-existing condition. Depositors then sought declaratory judgment as to its obligation to make additional payments. The District Court ultimately granted summary judgment in Depositors’ favor.
On appeal, the Montana Supreme Court rejected Sandidge’s argument that the District Court’s failure to hold a hearing on the summary judgment motion was reversible error because Sandidge did not provide the District Court with adequate notice that he wanted a hearing. The Court also rejected Sandidge’s contention that Depositors lacked standing to bring this action because Depositors was obligated to indemnify Tharp and the action presented a legitimate, justiciable controversy. The Court further concluded that the District Court correctly determined that Depositors had no Ridley obligation because liability was not reasonably clear and it was not reasonably clear that Sandidge’s medical expenses were causally related to the accident.
Points of Interest: insurance, indemnification, standing
2022 MT 36
State’s mid-trial amendment was an amendment of form, not substance, and did not substantially prejudice Defendant’s rights. The jury instruction relying on the 2017 definition of consent for conduct that occurred in 2015 did not implicate Defendant’s fundamental rights.
At the beginning of trial, LaFournaise stood charged with aggravated sexual intercourse without consent for conduct occurring in August 2015. After the first day of trial, the District Court informed the parties that this crime did not exist before October 1, 2017, making the charge invalid. The State was permitted to amend the charge to sexual intercourse without consent, which is codified in a different statutory section. During jury instructions, the jury was instructed on the 2017 definition of consent, which differed from the 2015 definition. LaFournaise did not object. The jury found LaFournaise guilty of sexual intercourse without consent.
On appeal, the Court affirmed LaFournaise’s conviction. Even though the amended charge stemmed from a different statutory section, the nature of the offense, the underlying facts, and the essential elements of the crime remained the same after the amendment. The amendment contained no new or different crimes or facts and LaFournaise could only be convicted based on the original facts. The amendment did not expose LaFournaise to greater punishment or reduce the State’s burden of proving each element. The amendment was permissible because it changed the form, not the substance, of the charge, and LaFournaise failed to demonstrate the change prejudiced him.
The jury instruction on consent did not implicate LaFournaise’s fundamental rights. The instruction did not lower the State’s burden of proof and the jury was provided a valid definition of a person incapable of consent, effective in 2015. Furthermore, the parties understood that the State met its burden of proof under both definitions of consent.
Points of Interest: amended charges, jury instructions, criminal law
2022 MT 37
Court did not abuse its discretion by dismissing pending abuse and neglect proceedings and placing a child with an out-of-state, non-offending parent pursuant to § 41-3-440, MCA.
Father and Child moved to Montana from South Carolina, while Mother remained in South Carolina. While living in Montana, Child was removed from Father’s care after Father was arrested and incarcerated for assaulting his girlfriend. DPHHS contacted Mother, who advised that she had custody under a South Carolina court order and requested Child be returned to her care. The Department discovered Mother had a CPS history in South Carolina. After further investigation, it determined Mother was a safe placement and decided to return Child to South Carolina and dismiss the case. Father objected. The District Court determined the South Carolina order granting Mother custody had not been rebutted, Mother was a safe placement, and returning to South Carolina was in Child’s best interests. After Child was returned to Mother’s care, the District Court dismissed the abuse and neglect proceedings because the emergency necessitating the Department’s involvement was resolved. Father appealed, asserting the court improperly dismissed the proceedings under § 41-3-438(3)(d), MCA, because Child was not properly adjudicated as a YINC.
On appeal, the Supreme Court affirmed the dismissal. The District Court did not dismiss the proceedings under § 41-3-438(3)(d), MCA, because Child was not properly adjudicated as a YINC, and therefore the court could not dismiss under that statute. It could, and did, dismiss the proceedings under § 41-3-440, MCA, after determining Mother (the non-offending parent) was the proper placement after the Department investigated if Mother was a safe placement and found no imminent safety concerns.
Points of Interest: dependent neglect
2022 MT 38
Belk v. Mont. Dep’t of Envtl. Quality
MEPA does not require DEQ to assess regulatory impacts on the private property rights of others where there is no environmental impact, nor does it require DEQ to assess environmental impacts in quantitative economic terms.
Glacier Stone Supply operates a quarry on land owned by Jarvis. Glacier had operated the quarry under a Small Miner Exclusion Statement until it received a notice of violation from DEQ, which asserted that Glacier’s two quarry sites were too large and too close together to qualify for an exclusion. Glacier then submitted a permit application for a quarry operation which the Belks opposed. The Belks own property surrounding the quarry and allege they have an easement “through the middle of the mine” whose operation interferes with their use of the easement. DEQ determined the easement did not go through the mine site and that the other objections the Belks raised went to matters that DEQ need not consider as part of its permitting process. DEQ further denied the Belks’ motion to supplement the record with documents regarding Glacier’s history of noncompliance with the small miner exclusion.
On appeal, the Montana Supreme Court affirmed, concluding that MEPA does not require DEQ to assess regulatory impacts on the private property rights of others where there is no environmental impact, nor does it require DEQ to assess environmental impacts in quantitative economic terms. The Court concluded that DEQ conducted an adequately robust investigation under its rules implementing MEPA. The Court further held that the District Court did not err in denying the Belks’ motion to supplement the record because the files they sought to admit were neither relevant to DEQ’s determination nor were they the kind of evidence DEQ could consider in evaluating Glacier’s application because DEQ’s analysis is directed at the consequences of future permitted activity, not speculation about the consequences of a permit violation based on past actions.
Points of Interest: natural resources, property, MEPA
2022 MT 41
A properly disclosed asset was not mistakenly omitted and was subject to distribution in the property settlement agreement’s remainder clause.
Sharon petitioned for dissolution of her marriage to Bo. During discovery, Sharon provided information identifying Bo’s annuity account with TransAmerica. The parties attempted to mediate. Bo offered to pay Sharon $600,000 from a different account and to distribute all remaining property to Bo. Sharon accepted the offer via her attorney, but later refused to sign the papers. The parties renegotiated and increased the distribution to Sharon by $25,000, retaining the other terms. The District Court adopted the settlement agreement.
Months later, Sharon had failed to transfer the TransAmerica annuity to Bo. Bo sought enforcement of the agreement and moved to hold Sharon in contempt. The District Court denied Bo’s motion and ordered the parties to equitably divide the annuity. The court concluded the annuity was not part of the remainder provision due to the specific identification of other property.
On appeal, the Supreme Court concluded the District Court erred in amending the agreement. All assets were properly disclosed and the parties were aware of the assets and represented by counsel throughout the proceedings. The District Court had previously adopted the property settlement agreement, and the terms of the remainder clause clearly provided all other property would pass to Bo.
Points of Interest: dissolution of marriage, property, settlement agreements
2022 MT 42
Truss Works v. Oswood Constr. Co.
A contract that does not impose a mutual obligation on the parties to approve plans yet to be determined is not a satisfaction-type contract and does not impose a duty on the receiving party to cooperate with the party submitting designs. No error where trial court does not explicitly address a party’s claim if determination of the claim is implicit to its other findings and the implicit finding is supported by substantial evidence.
Truss Works sued Oswood Construction Company to foreclose on its construction lien. Oswood counterclaimed. At trial, the parties had differing interpretations of what the Purchase Order Contract required. The District Court found that Oswood did not cooperate with Truss Works during the drawing submittal process and that it had a duty to do so pursuant to Nicholson v. United Pacific Insurance Company, 219 Mont. 332, 710 P.2d 1342 (1984). The court implicitly found that Truss Works was not obligated under the Purchase Order to provide truss connections and rejected Oswood’s counterclaim.
Oswood appealed, arguing that the District Court failed to address its counterclaim in its findings and conclusions. The Supreme Court affirmed, finding that the District Court’s findings of fact and conclusions of law were sufficient. The District Court erred by concluding that the Purchase Order was a satisfaction-type contract like Nicholson because the Purchase Order did not impose an obligation on the parties to mutually approve plans yet to be determined. The District Court’s finding that Oswood failed to cooperate and that the Purchase Order contained conflicting submittal procedures was not incorrect, however, to the extent that it attributed most delays to Oswood. While the parties’ testimonies were at odds, the District Court, as the trier of fact, made credibility determinations, and those determinations were supported by substantial evidence.
The District Court did not err by not making specific findings regarding the truss connectors or Oswood’s counterclaim. Necessary to several of the court’s findings was its implicit finding that the Purchase Order did not require Truss Works to provide or design connectors. Further, the court implicitly rejected Oswood’s counterclaim when it found Oswood “fully breached” the contract. Both implicit findings were supported by substantial evidence and not erroneous. Finally, although the court did not use the word “counterclaim,” it addressed each element of Oswood’s claim for damages.
Points of Interest: contracts, implicit findings, counterclaims
2022 MT 46
Advocates for Sch. Trust Lands v. State
A facial challenge to § 85‑2‑441, MCA, was ripe for review because it alleged that the statute violated of Article X, Section 11, of the Montana Constitution. However, § 85‑2‑441, MCA, is not facially unconstitutional because the plain language of the statute does not impair Montana’s sovereign trustee duties or devalue school trust lands.
Advocates challenged § 85‑2‑441, MCA, (HB 286) arguing that it violates the State’s trust obligations under the Enabling Act of 1889 and Article X, Section 11, of the Montana Constitution because it provides that the State may not obtain an ownership right in privately developed groundwater used on school trust land, except through litigation or a voluntary transfer of ownership from the private water right holder to the State. The State argued that Advocates’ challenge was not ripe for judicial review because nothing in its plain language reduced the value of school trust lands and because Advocates presented no facts showing that HB 286 devalued a particular parcel of land. The District Court agreed with the State, dismissing Advocates’ challenge.
On appeal, the Supreme Court determined that Advocates’ argument that HB 286 reduces the value of school trust lands, was not ripe for review because the alleged reduction in value was a hypothetical and abstract injury. However, Advocates’ argument that HB 286 creates a presumption against State ownership was ripe for review because it alleged that the enactment of HB 286 violates the State’s trust obligations. The Court held, however, that the plain language of HB 286 does not create a presumption against State ownership; it simply creates a process for the State to assert an ownership right in privately developed groundwater used on school trust land. HB 286 is facially constitutional because nothing in its plain language impairs Montana’s sovereign trustee duties or devalues school trust lands.
Points of Interest: constitutional law, ripeness, Art. X(11)
2022 MT 49
Cottonwood Envtl. Law Ctr. v. Knudsen
Attorney General erroneously rejected proposed ballot initiative as legally insufficient based on conclusion that proposed environmental protections would constitute a regulatory taking; the initiative did not interfere with the rights of property owners to seek just compensation if a regulatory taking occurred and therefore did not contravene constitutional takings law.
Proposed ballot initiative I-24 would have designated sections of the Gallatin and Madison Rivers “Outstanding Resource Waters” receiving special statutory water quality protections. Pursuant to a recently amended “screening” process, the Attorney General rejected the proposed ballot initiative for “legal [in]sufficiency,” preventing the measure from progressing to the signature-collecting stage of the initiative process. The AG concluded that the initiative would constitute a “regulatory taking” of private property interests and was therefore unconstitutional.
In an original proceeding before the Supreme Court, the Court overruled the AG’s legal-sufficiency determination. The Court held that the AG had mistakenly concluded that the measure violated the takings clauses of the United States and Montana Constitutions. Takings are not per se unconstitutional. Rather, the constitutional guarantees merely require just compensation if a taking occurs. Because I-24 did not interfere with the ability of property owners to use existing mechanisms to seek just compensation for alleged regulatory takings, the proposal did not violate constitutional takings provisions.
Points of Interest: ballot initiatives, constitutional law, natural resources
2022 MT 50
Sutey Oil Co., Inc. v. Monroe’s High Country Travel Plaza, LLC
Where a party seeks modification of an arbitration award based on an “evident miscalculation of figures,” a reviewing court is limited to considering the award on its face together with the record of the proceedings to determine whether a mathematical error is so readily apparent from the documentation that explanation by proofs is not necessary. The court may submit the question to the arbitrator for clarification.
Sutey sued Monroe’s over Monroe’s failure to pay five invoices. Monroe’s counterclaimed, and the parties agreed to arbitrate. The arbitrator found Monroe liable for the amount of the invoices but rejected Sutey’s claims for refund of unearned discounts and compound interest. The day after the decision, the arbitrator heard Monroe’s concern that the arbitrator made a mathematical error by failing to deduct certain credits Sutey’s witnesses had calculated. The arbitrator agreed to investigate, but before he could respond Sutey moved the District Court to confirm the award. The court entered an order confirming the award before Monroe filed a response.
Monroe moved to either modify or vacate the award. Noting the extremely narrow constraints on a court’s review of arbitration rulings, the District Court refused to consider any evidence beyond the face of the arbitrator’s decision and concluded that it lacked power to review his rulings on the merits. The court determined that it was unable to find an evident miscalculation from the face of the award.
On appeal, the Supreme Court held that the District Court applied an overly narrow view of what it may consider. Both the arbitrator and a reviewing court may modify an award if there is an “evident miscalculation of figures,” and this review may include the record before the arbitrator. A court may not, however, receive additional evidence or re-weigh the evidence the arbitrator considered.
Here, because the arbitrator adopted Sutey’s calculation of what Monroe owed, excepting two items the arbitrator expressly rejected, the arbitrator’s findings indicated that he may have miscalculated by neglecting to subtract two items. Monroe attempted timely to seek clarification but was cut short by Sutey’s District Court filing. Monroe then timely sought modification in the District Court. Section 27-5-217, MCA, permits a court considering confirmation, modification, or vacatur of an arbitration award to submit the matter to the arbitrator, “under conditions that the court may order,” for modification, correction, or clarification. Given Monroe’s aborted attempt to seek such clarification, the Court remanded for the District Court to follow this process and to direct the Arbitrator to clarify his calculation.
Points of Interest: arbitration, scope of review, modification of award
2022 MT 57
Egan Slough Cmty. v. Flathead Cty. Bd. of Cty. Comm’rs
The statutes governing county-level citizen initiatives allow citizens to enact zoning changes through the initiative process and the use of the initiative process to enact zoning changes is not unconstitutional in and of itself.
This case arose from a successful ballot initiative to expand an agricultural zoning district to include the land on which Montana Artesian Water Company was developing a large-scale water bottling plant. Egan Slough Community sued to have the new zoning regulations enforced to shut down MAWC’s operations. MAWC filed various counterclaims, asserting the initiative was illegal, unconstitutional, and could not be enforced. The District Court determined MAWC’s operations were a preexisting nonconforming use, which could continue in accordance with the regulations. It denied MAWC’s counterclaims.
The Supreme Court affirmed. Interpreting the plain language of the regulations, the Court agreed MAWC’s facilities were a preexisting nonconforming use. This use could continue in accordance with the regulations, which imposes limits on MAWC’s future expansion. The initiative process did not violate the statutes regulating local initiatives, create illegal reverse spot zoning, or violate due process or equal protection. The regulations did not constitute a taking of MAWC’s water right and other business property and MAWC was not entitled to compensation for water it was not capable of putting to beneficial use.
Points of Interest: ballot initiatives, zoning, water rights
2022 MT 58
Sagorin v. Yellowstone Lodging, LLC
The sole shareholder of an LLC may not, through an assignment, bring the LLC’s claims on his own behalf and without counsel.
Sagorin is the sole member of Yellowstone Lodging, LLC. Though he is not a licensed attorney, Sagorin filed a complaint as a "successor in interest" to the LLC against several HVAC contractors related to the installation of an HVAC system at a motel the LLC owned. The contractors moved to dismiss for lack of standing. In response to the motion, Sagorin produced an “Assignment for the Sale or Transfer of Interest” which purported to transfer to Sagorin the LLC’s rights and interests in any legal claim it could bring. The District Court dismissed the case, concluding that Sagorin as sole member of the LLC lacked standing to bring suit in his individual capacity for claims arising out of work performed for the LLC on the LLC’s property.
On appeal, the Supreme Court reiterated the general rule that business entities may appear in court only through licensed counsel. Sagorin, as the sole member of the LLC, lacked standing to assert claims on behalf of the LLC, and he could not represent the LLC in court. The Court further held, as an issue of first impression, that the assignment of legal claims from an LLC to a sole member does not confer standing on the member to assert those claims as a self-represented litigant. Neither does an assignment allow an LLC to bypass the longstanding rule that corporate entities cannot appear through an individual member, except where the Legislature has expressly allowed for small claims and justice court proceedings.
Points of Interest: standing, self representation
2022 MT 59
In a case involving multiple theft and burglary charges, the State provided sufficient evidence in addition to uncorroborated accomplice testimony to establish an independent connection between the defendant and the alleged crimes to submit the case to the jury.
Tollie was charged with several counts of theft and burglary from multiple alleged incidents. At trial, the State presented the testimony of two law enforcement officers, two alleged victims, and three witnesses with personal connections to Tollie who were each facing criminal charges in connection with burglaries in the area. Tollie moved for a directed verdict on the grounds that the State’s evidence was insufficient because it relied on the uncorroborated statements of accomplices. The District Court granted Tollie’s motion on some, but not all, of the counts. The jury ultimately convicted Tollie on some charges but found him not guilty on others.
On appeal, the Montana Supreme Court affirmed. The Court concluded that two of the witnesses connected to Tollie were accomplices and thus their uncorroborated testimony could not sustain a conviction pursuant to § 46-16-213, MCA. However, taken together, the testimony of the remaining witnesses clearly established an independent connection between Tollie and the alleged crimes and therefore the State’s evidence was sufficient to sustain the conviction.
Points of Interest: evidence, witnesses, sufficiency of evidence
2022 MT 61
The odor of marijuana and a driver’s nervous behavior failed to create a particularized suspicion justifying the canine sniff search of a vehicle.
Harning was pulled over for speeding. As the trooper approached, Harning rolled his window down a few inches and the trooper noticed the smell of marijuana coming from Harning’s vehicle. Harning admitted to smoking 80 miles prior to the stop. The trooper also observed Harning’s “evasive” behavior and hesitant answers to questioning. The trooper later differentiated Harning’s behavior from nervous behavior based on “subtle kind of things.” Based on these observations, the trooper determined to initiate a DUI and drug investigation. The DUI investigation indicated Harning was not impaired. The trooper ordered a canine to sniff search Harning’s vehicle, and the canine found the presence of drugs. The trooper obtained a search warrant, which found drug paraphernalia in Harning’s vehicle. Harning was charged with drug possession and moved to suppress the evidence. The court denied the motion, and Harning pleaded guilty.
On appeal, the Supreme Court reversed Harning’s conviction. Although the DUI investigation was justified by the odor of marijuana and admission of smoking, the stop should have terminated after the trooper warned Harning about speeding and determined Harning was not impaired. The State failed to connect Harning’s behavior specifically to drug activity in his vehicle to justify extending the stop and ordering a sniff search. Because the State failed to articulate specific facts indicative of drug activity, the evidence gathered from the canine sniff should have been suppressed.
Points of Interest: search and seizure, suppression, DUI
2022 MT 62
NorVal Elec. Coop., Inc. v. Lawson
Appellant not entitled to relief from District Court’s denial to stay judgment on appeal where Appellant’s supersedeas bond was inadequate.
Lawson won a judgment against NorVal in excess of $2 million. NorVal appealed to the Montana Supreme Court. It also negotiated with Lawson to agree not to oppose a stay of enforcement of the judgment while the matter was on appeal if NorVal obtained a satisfactory supersedeas bond. After the parties were unable to reach agreement as to the surety for the bond, NorVal moved the District Court to stay proceedings to enforce the judgment. The District Court denied NorVal’s motion because it concluded that NorVal had failed to comply with the surety requirements.
NorVal then moved the Montana Supreme Court for relief from the District Court’s order. The Supreme Court concluded that the District Court erred in concluding that the commercial surety NorVal offered could not serve as a surety in Montana because the entity was authorized by the Montana Insurance Commissioner. However, the Court further concluded that the purported supersedeas bond was inadequate because NorVal did not prove that the contract was supported by sufficient consideration; the surety was issued by a single non-corporate surety and thus was insufficient surety under M. R. App. P. 22(1)(b); and the supersedeas bond did not provide adequate surety because it failed to create a security relationship separate from the relationship that already existed between NorVal and the surety issue, which was a reciprocal insurer of which NorVal was a subscriber. The Court therefore concluded that NorVal had failed to demonstrate good cause for relief from the District Court’s Order.
Points of Interest: stays, supersedeas bonds, surety
2022 MT 66
A district court does not lose its jurisdiction over a defendant when it does not make a determination of fitness within 90 days of commitment under § 46-14-221(3), MCA. A defendant does not timely raise a claim of improper delay when counsel raises the issue after the statutory timeline has passed.
The District Court committed Rich to the Montana State Hospital to regain fitness after the court determined she was unfit to stand trial. Rich was transferred to MSH 20 days later. At a status hearing the day after Rich’s transfer, the court set the matter for a review hearing 90 days after the transfer date. Rich’s counsel did not object or argue that the hearing should take place 90 days after the date of the commitment order.
The day before the review hearing, Rich moved to dismiss for lack of jurisdiction, asserting that the commitment date under § 46-14-221(3), MCA, commenced on the date of the commitment order, not the date of transfer. Therefore, she asserted the court lost jurisdiction when it failed to make a finding regarding her fitness within 90 days of the order. Following the review hearing, the court denied Rich’s motion and found she had not yet regained fitness, extending her commitment for 45 days. Rich regained fitness less than 45 days later, and she entered a plea agreement. Rich appealed the denial of her motion to dismiss.
The Montana Supreme Court affirmed the denial of Rich’s motion to dismiss. On appeal, Rich cited State v. Meeks, 2002 MT 246, 312 Mont. 126, 58 P.3d 167, and State v. Tison, 2003 MT 342, 318 Mont. 465, 81 P.3d 471 to argue that the District Court lacked jurisdiction upon the expiration of the 90-day timeline. Because later case law clarified that statutory deadlines are not jurisdictional, the Court overruled Meeks and Tison to the extent they suggest § 46-14-221(3)(a), MCA, imposes a jurisdictional bar.
The Court further rejected Rich’s contention that the District Court’s failure to strictly comply with § 46-14-221(3)(a), MCA, warrants dismissal because Rich did not timely raise her claim of improper delay or otherwise demonstrate that she was entitled to have the charges against her dismissed.
Points of Interest: fitness to proceed, jurisdiction, statutory deadlines
2022 MT 67
In re Big Foot Dumpsters & Containers, LLC
District Court did not err in concluding complaints public service companies had against the Public Service Commission were moot when the application underlying the matter was withdrawn.
Big Foot Dumpsters and Containers filed an application with the Public Service Commission to haul garbage in Flathead County. Evergreen Disposal filed protests and a contested case proceeding commenced. The PSC initially served its own discovery requests. Evergreen then filed an action in District Court which resulted in the PSC being prohibited from requesting discovery in the matter. On remand, the PSC scheduled a hearing on the matter, but indicated that it reserved the right to investigate issues and examine witnesses at the hearing. In response, Evergreen filed another District Court petition. In the interim, Big Foot withdrew its original application and the matter was dismissed.
Evergreen and an intervenor appealed, arguing that a justiciable conflict remains regarding the PSC’s authority in hearings. The Supreme Court affirmed. When Big Foot withdrew its application, Evergreen’s issues regarding the PSC were mooted as there would be no hearing in which witnesses would be called. Moreover, no exemptions to the mootness doctrine applied. The dispute between Evergreen and the PSC was not one of public importance. Nor was it capable of repetition but able to evade review, since, should the PSC attempt to perform the contested behavior in the future, Evergreen, or some other party, will be able to challenge it then. Finally, the voluntary cessation exemption did not apply because it was Big Foot that was withdrawing its application, and Evergreen was challenging the PSC’s authority, not anything Big Foot did.
Points of Interest: mootness, Public Service Commission
2022 MT 68
R.S. v. United Servs. Auto. Ass’n
Insurer who issued homeowners insurance policy with exclusion for claims “arising out of sexual misconduct” had no duty to defend insured in case brought by minor who alleged homeowner placed a hidden camera to record the minor showering.
A minor visiting Shawn Conrad’s home discovered that Conrad had placed hidden cameras to record the minor showering. The minor’s parent reported the matter to law enforcement and Conrad ultimately pled guilty to possession of child pornography. The parent and minor sued Conrad. Conrad asked USAA, through which he had homeowners insurance, to defend him against some of the claims but it declined. USAA provided numerous bases for its decision, including a sexual misconduct exclusion in Conrad’s policy.
The parent and minor ultimately obtained a $500,000 consent judgment against Conrad, who assigned to them any claims he might have against USAA. They then sued USAA to collect on the judgment, alleging USAA had violated its duty to defend Conrad. Both parties moved for summary judgment and the District Court ruled in USAA’s favor, determining that USAA had no duty to defend because Conrad’s conduct fell outside the scope of the policy’s coverage.
On appeal, the Montana Supreme Court affirmed, concluding that the policy clause that excluded coverage for claims “arising out of sexual misconduct” was unambiguous and the allegations against Conrad would fall within this exclusion. The claims raised by Appellants all arose out of the sexual misconduct and were not so attenuated as to trigger a duty to defend.
Points of Interest: insurance, duty to defend, insurance policies
2022 MT 72
High Country Paving, Inc., v. United Fire and Casualty Co.
Notwithstanding a violation of the Insurance Policy Language Simplification Act, an insurer may rely on unambiguous policy exclusions if invalidating the exclusion would result in increased risk to the insurer.
United Fire insured High Country. While driving, a High Country trailer detached from the company truck and killed another driver. United paid $3 million to the driver’s estate and passenger but denied coverage under two exclusions. High Country sued, arguing the exclusions were ambiguous and void because the policy did not comply with Montana’s Insurance Policy Language Simplification Act (PSA). The case was removed to federal district court. The U.S. District Court concluded the policy exclusions were unambiguous. However, because the policy failed to comply with the PSA, the District Court concluded the exclusions were unenforceable. The parties appealed to the United States Ninth Circuit Court of Appeals. The Ninth Circuit certified the question of whether, when an insurance policy violates the PSA, the insurer may rely on unambiguous exclusions given that the PSA is not intended to increase the risk assumed.
The Court answered the certified question in the affirmative. The Court concluded the PSA’s primary purpose was the simplification of insurance policies. The minimum policy standards established by the Legislature operated in tandem with this purpose. However, the PSA’s primary purpose and delineated standards are limited by the requirement that the PSA is not intended to increase the risk assumed by insurers. The Court concluded invalidating an unambiguous policy exclusion, resulting in increased risk assumed by the insurer, would undermine the PSA’s plain language and the Legislature’s express intent.
Points of Interest: insurance, insurance policies, certified question
2022 MT 73
Insufficient evidence supported a conviction of obstructing a police officer when, after a forty-second encounter during which the defendant rudely, yet fully answered the police officer’s questions, she attempted to turn away from the officer.
Defendant appealed the District Court’s denial of her motion to dismiss the charge of obstructing a police officer for insufficient evidence. An officer approached Defendant to investigate a suspicion that Defendant violated a temporary order of protection. The officer informally spoke with the Defendant, did not specify that she was under suspicion of a crime, and wrapped up his inquiry with an open-ended question, “[A]nything else you want to tell me?” Defendant answered the officer’s main inquiry, but rudely responded to the last question, and turned to walk away. She was then arrested and cited for violating the temporary order of protection and obstructing a police officer. At the bench trial, the obstruction charge was tried with only the officer’s testimony and body camera footage presented as evidence. At the close of the prosecution’s case, Bennett moved to dismiss the charge for insufficient evidence.
On appeal, Defendant argued both that the prosecution failed to present sufficient evidence to support that she had the requisite mental state, or in the alternative, the prosecution failed to present sufficient evidence that she was seized and thus no longer had the constitutional right to walk away. The State argued that irrespective of whether she was seized, it presented sufficient evidence to support the charge. The Supreme Court concluded that the District Court erred in affirming the Municipal Court’s decision that the obstruction charge was supported by sufficient evidence. Viewing the evidence in a light most favorable to the prosecution, the Court found the prosecution failed to prove beyond a reasonable doubt that Bennett’s attempt to walk away from the officer at the conclusion of his inquiry, was done with knowledge of the high probability that her actions would obstruct the officer’s lawful duty.
Points of Interest: sufficiency of evidence, obstruction, seizure
2022 MT 74
A host nuisance claim may support the recovery of parasitic emotional distress damages.
Rubin and Hauth were neighbors with the Hugheses. The Hugheses’ relationship with Rubin and Hauth turned contentious, and the Hugheses relentlessly harassed and intimidated Rubin and Hauth. Rubin and Hauth filed suit, arguing the Hugheses’ behavior constituted a nuisance to them. Rubin and Hauth did not allege any damages to their property, only parasitic emotional distress damages based on their “host” nuisance claim. The District Court allowed Rubin and Hauth to proceed to the jury with their parasitic damages. The jury found the Hugheses’ behavior was a nuisance and awarded Rubin and Hauth a total of $360,000.
On appeal, the Supreme Court affirmed the District Court’s judgment. A nuisance claim may support the recovery of parasitic emotional distress damages. The history of nuisance claims is to protect against interference with the enjoyment of property, in addition to protecting against property damage. Rubin and Hauth demonstrated that the Hugheses’ behavior interfered with their enjoyment of their properties, and their claims for emotional distress damages were supported by the nuisance claim.
Points of Interest: torts, parasitic claims, nuisance
2022 MT 75
Substantial evidence supported District Court’s finding that further efforts to reunite Mother and S.S. would likely be unproductive based on Mother’s limited progress on her treatment plan and ongoing denial that S.S. was ever unsafe.
DPHHS removed six-year-old S.S. after receiving reports that Mother was bringing illegal drugs into Montana and selling methamphetamine. Mother was arrested and the Department placed S.S. with his maternal grandparents. About one week after he was removed from Mother’s care, S.S. tested positive for methamphetamine.
The District Court granted the Department’s petition for guardianship with S.S.’s grandparents based on Mother’s limited progress on her treatment plan and continued denial that S.S. was exposed to methamphetamine while in her care. At the hearing, S.S.’s case worker testified that, after 15 months, Mother still refused to acknowledge many of the Department’s concerns, and “[a]t this point, we’re just kind of spinning our wheels.”
On appeal, Mother argued that, unlike the statute governing termination of parental rights, the standard applied to guardianship petitions does not ask whether continued reasonable efforts are likely to result in change, only whether they are likely to be productive. Mother asserted that because she had made progress on some aspects of her treatment plan, the determination that further efforts by the Department would be unproductive was incorrect.
The Supreme Court affirmed, holding that viewing the evidence in the light most favorable to the Department, on these facts, a reasonable mind could conclude that further efforts to reunite Mother and S.S. would likely be unproductive.
Points of Interest: dependent neglect, guardianship
2022 MT 76
A justice of the peace has jurisdiction to issue a search warrant if the search is to be conducted on a person or property located in the county where the justice of the peace presides.
Following a single vehicle accident in Golden Valley County, Grussing was arrested for DUI and additional charges related to the accident. He was transported to Wheatland County Memorial Hospital for a blood draw. After Grussing refused to consent to a blood draw, a State Trooper contacted a Wheatland County Justice of the Peace by telephone to apply for a search warrant. The Justice of the Peace granted the search warrant, and Grussing’s blood was drawn and sent to the State Crime Lab, where it was revealed that Grussing had almost three times the legal limit of THC in his blood.
In the District Court, Grussing moved to suppress evidence obtained from the blood draw, arguing that the Wheatland County Justice of the Peace lacked jurisdiction to issue the warrant because the crime and accident occurred in Golden Valley County. The District Court denied the motion.
On appeal to the Supreme Court, Grussing contended that § 3-10-303, MCA, which limits the criminal jurisdiction of a justice of the peace to “public offenses committed within the respective counties in which the courts are established,” also limits a justice of the peace from issuing a search warrant for a search conducted in his or her county if the offense was committed in another county. The Court disagreed, holding that § 46-5-220(2)(a), MCA, controls a justice court’s ability to issue a search warrant. It provides that a justice of the peace may issue a search warrant within the court’s geographic jurisdiction. The term “geographic jurisdiction” refers to the geographic boundaries of the court’s jurisdiction and applies to the location of the search, not the location of the crime.
Points of Interest: jurisdiction, justice of the peace, search warrant
2022 MT 81
The START facility is a “detention center” under the language of § 46-18-203(7)(b), MCA, and courts are thus required to grant credit for time served at START under this statute.
Tippets pleaded guilty to criminal endangerment and received an initial suspended sentence of five years. Tippets had difficulty complying with the terms of probation due to unaddressed mental health issues, and DOC sanctioned Tippets to 60 days in the Mental Health Unit at the START facility. After START, Tippets committed additional compliance violations and the District Court revoked his suspended sentence and imposed a new sentence of just over two years to DPHHS. The court denied Tippets’s request for 60 days of credit for the time he spent at START.
On appeal, the Supreme Court upheld the revocation of Tippets’s suspended sentence but granted Tippets’s request for credit for the 60 days he spent at START. The secured nature of the START facility fits within the plain meaning of a “detention center” as it appears in § 46-18-203(7)(b), MCA; therefore, courts are required to grant credit for any time served at START when imposing a new sentence after revocation under § 46-18-203(7)(b), MCA.
Points of Interest: sentencing, revocation, credit for time served
2022 MT 82
Property residents satisfied the requirements of adverse possession necessary to extinguish any potential cotenancy rights of another party when they purchased the entire property pursuant to a written instrument, continuously occupied and paid taxes on the property for five years, and took sufficient actions indicating exclusive ownership to successfully oust any potential cotenant.
In 2013, George Hale discovered a 1958 deed purporting to transfer a cotenancy interest in a property to his late father. Hale recorded this deed in 2018, viewing himself and his wife as tenants in common with the Harts, who had been residing on the property since the 1980s, when they bought it from a third party. The Harts brought an action for quiet title. The District Court granted summary judgment to the Harts, determining that, regardless of the effect of the stray 1958 deed, the Harts had satisfied the requirements for adverse possession, extinguishing any claim the Hales may have had to the property.
The Supreme Court upheld the District Court on appeal. The Court found that the Harts had claimed the property under color of title in the form of a written instrument (a deed recorded in 2009) followed by more than five years of continuous occupation. Additionally, the Harts met the second requirement of having paid taxes throughout this five-year period. To the extent that the 1958 deed may have rendered the Hales and the Harts cotenants for some time, the Harts also met the additional requirement that they oust any potential cotenants by claiming exclusive ownership while acting in a way that denies the cotenants any interest in the property, thereby providing sufficient notice to the cotenant. The Harts had built a house, obtained and paid off a mortgage, paid taxes, erected or moved other structures, erected fences, lived there full-time, used the property for livestock, milling lumber, fishing, hunting, did not allow the Hales to use the property, and never interacted with the Hales as cotenants. Thus, even if the Hales had initially possessed a cotenancy, the Harts met the requirements to extinguish that cotenancy through adverse possession.
Points of Interest: property, adverse possession
2022 MT 87
PSC improperly conflated interconnection costs with network upgrade costs and erroneously assigned $267 million in costs to three wind farm projects.
Three wind farm projects sought to sell their energy to NorthWestern Energy. Negotiations stalled and the projects asked the Montana Public Service Commission to set the terms of its contract with NorthWestern. NorthWestern indicated that one of the projects would require a new transmission pipeline to connect to its system. The PSC assigned the entire $267 million cost of the pipeline to CED, terming it an “interconnection network upgrade cost.” The PSC also adopted a method of determining “avoided costs” apposite of the parties’ methods, but proposed by CED as an alternative, adopted NorthWestern’s tariff schedule to set “ancillary service deductions,” and set the contract lengths at 15 years. CED appealed to the District Court, which affirmed the PSC’s decision on the relevant issues.
On appeal, the Supreme Court concluded the District Court erred in affirming the PSC’s orders as related to the interconnection costs because the PSC erroneously conflated “interconnection costs” which could be assigned to CED and “network upgrade costs” which may benefit NorthWestern’s system beyond the wind farm projects. The Court upheld the District Court’s rulings affirming the PSC’s method of calculating avoided energy costs, but since the $267 million price was disproportionate to the project’s impact, the Court remanded for the PSC to determine proportional costs and to allow the parties to provide estimates under the PSC’s method. The Court upheld the District Court’s rulings that affirmed the PSC’s decision on ancillary services and the contract length.
Points of Interest: energy, administrative law
2022 MT 88
Montana’s Water Use Act does not prohibit shared well agreements, which are contractual sharing limitations between the parties.
Mandich and the Frenches owned adjoining properties. Mandich and the Frenches’ predecessor signed a shared well agreement in 1997 creating an easement and shared well benefiting Mandich. The agreement provided that the water volume on the Frenches’ property would be limited to one single-family dwelling. After the Frenches bought the land, they signed an agreement in 2004 with Mandich providing for the continued maintenance and operation of a water system. The second agreement did not expressly mention the first agreement. The Frenches sought to put in an RV park on their land and increase the water volume. Mandich’s water was shut off for several weeks and she sued the Frenches.
The District Court granted partial summary judgment in favor of Mandich, concluding the 2004 agreement did not replace or modify the 1997 agreement and that the language in the 1997 agreement expressly limited the volume of water used by the Frenches’ property to single-family dwelling. The court permanently enjoined the Frenches from disrupting Mandich’s water supply.
On appeal, the Court affirmed. The Frenches failed to expressly argue that Montana’s Water Use Act preempted the shared well agreement between their predecessor and Mandich. However, the Act did not apply because the contractual sharing limitations imposed by the 1997 agreement neither altered the nature of water rights nor purported to undermine the State’s authority over water rights. The 1997 contract unambiguously limited the water volume on the Frenches’ property.
Points of Interest: water law, contracts
2022 MT 89
A North Dakota DUI conviction may serve as a predicate offense under § 61-8-734(1)(a), MCA, because North Dakota’s DUI statutes require a substantially similar impairment as is required under Montana law.
The State charged Pankhurst with DUI, elevating the charge to a felony under § 61-8-734(1)(a), MCA, because of Pankhurst’s four prior DUI convictions including two in North Dakota. Pankhurst moved to dismiss the charge, arguing his prior convictions in North Dakota could not serve as predicate offenses because Montana and North Dakota’s DUI statutes were dissimilar. The District Court denied his motion, determining that the two states’ statutes were “sufficiently similar” under § 61-8-734(1)(a), MCA.
On appeal, Pankhurst asserted that his two North Dakota DUI convictions could not be used to enhance his DUI to a felony because the North Dakota statute does not require a nexus between the consumption of alcohol and impairment of driving ability like Montana does.
The Supreme Court held that both Montana and North Dakota statutes require a showing that the defendant was driving a vehicle and, as a result of consuming alcohol, had diminished mental or physical abilities. Both require equivalent levels of intoxication to convict a person of DUI because both require that a person's mental and physical faculties be diminished by alcohol. Therefore Pankhurst’s North Dakota convictions were “prior convictions” for the purposes of § 61-8-734(1)(a), MCA.
Points of Interest: DUI, statutory interpretation, predicate offenses
2022 MT 92
No plain error where the State exercised a peremptory strike to remove the only non-white prospective juror on the basis of her statements that she would be too emotional to be a fair juror.
During voir dire in a trial for assault with a weapon, a prospective jury-member told the trial court that, as a non-white person who had experienced racial discrimination in the local community, she “would be not fair” as a jury member in the trial of a black man. The State used a peremptory challenge to strike the juror and the defense objected on equal protection grounds under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). However, defense counsel withdrew the Batson challenge after the prospective juror further explained that she would be “too emotional” to be a fair juror to the defendant. After receiving a guilty verdict, the defendant appealed.
The Supreme Court affirmed on plain error review, finding the appellant failed to show purposeful racial discrimination by the State. The State’s credible race-neutral explanation for the peremptory strike directly corresponded to the prospective juror’s repeated statements that she would not be a fair juror, as distinct from her non-race-neutral assertion that her inability to be a fair juror was due to her experiences as a non-white person.
Points of Interest: juror challenges, plain error
2022 MT 93
A challenge to an election law may satisfy the “capable of repetition, yet could evade review” exception to mootness, even though a court may be incapable of granting the relief sought. Neither Montana election laws nor the Uniform Electronic Transactions Act (UETA) require the Secretary of State to accept electronic signatures for nomination petitions of Independent candidates.
In 2020, Meyer submitted five petition for nomination forms to run for Attorney General as an Independent candidate in the 2020 general election. The Gallatin County Election Administrator rejected his forms because they contained only electronic signatures. Meyer filed a complaint against the Administrator and the Secretary of State that the District Court dismissed.
On appeal, Meyer argued that the Administrator and Secretary violated Montana election laws by failing to compare his petitions’ signatures with the electors’ signatures as they appear in the registration records. He argued also that they violated the UETA, which states that an electronic signature “may not be denied legal effect.” The Secretary contended that Meyer’s claims are moot because the election is complete and Meyer’s requests for relief were specific to that election.
The Supreme Court held that are justiciable under the “capable of repetition, yet could evade review” exception to the mootness doctrine. Though Meyer did not prove he would run in future elections and gather signatures in the same way, there was a “reasonable expectation or a demonstrated probability” that he would be subject to the same result if he did. The issue also had broader application, as signatures must be submitted for ballot issue and third-party petitions, which carry similarly short deadlines.
The Court found no evidence that Title 13 intended to include “electronic signatures” within its definition of “signature,” and none of the enumerated duties in Title 13, chapter 27, part 3, MCA, require the county official to process electronic signatures on petition forms. The UETA applies only when parties to a transaction agree to transact “by electronic means,” and it provides that the legal significance of an electronic signature is determined by the UETA “and other applicable law.” Neither the Administrator nor the Secretary agreed to transact with Meyer by electronic means, and the UETA, when construed with applicable election laws, did not require the Secretary to process Meyer’s electronic signatures.
Points of Interest: elections, mootness
2022 MT 94
A youth court exceeded its statutory authority and abused its discretion by committing a youth to Pine Hills without determining placement was necessary for protection of the public.
V.K.B., a youth, was playing with a gun that discharged and shot and killed another youth. The State filed a delinquent youth petition charging V.K.B. with negligent homicide. V.K.B. was placed at a therapeutic youth group home while the matter was pending and did well with his treatment. He ultimately pled “true” to the petition’s allegations. At the dispositional hearing, a juvenile probation officer recommended that V.K.B. continue treatment at the group home. After completing the group home’s programming in a few months, V.K.B. would be returned to his father’s custody. The Youth Court expressed that if its options were “Pine Hills or getting him back with his dad,” V.K.B. would be going to Pine Hills. The Youth Court continued the hearing to determine if another placement could be found. At the reconvened dispositional hearing, the probation officer reiterated that no other placement than V.K.B.’s father could be found for after V.K.B. completed his group home program. The Youth Court then committed V.K.B. to DOC custody at Pine Hills.
On appeal, the Supreme Court reversed the dispositional order. The Youth Court lacked statutory authority to commit V.K.B. to Pine Hills under § 41-5-1513(1)(b), (e), MCA, because it did not make a finding that placement at Pine Hills was “necessary for the protection of the public” and the record did not support such a finding. Though V.K.B. was a “serious juvenile offender” under the statute, simply being a serious juvenile offender is insufficient to commit a youth to Pine Hills under the Youth Court Act without the requisite finding.
Points of Interest: Youth Court, sentencing, sufficiency of evidence
2022 MT 95
District Court did not violate defendant’s right to equal protection when it denied a Batson objection to the State’s peremptory challenge of a juror because the State offered a non-discriminatory explanation for its strike.
Wellknown was charged with Felony DUI. During jury selection, the State used a peremptory strike to remove a prospective juror. Defense objected on the ground that the stricken juror, a Native American, was the only member of a minority group on the panel. The State first countered that the juror had been uncooperative with the State in a previous, unrelated criminal matter in which he was a victim in. The District Court overruled Defense’s objection, and then the State added that the juror also stated that he would need to be “100 percent” certain to convict, which is not the standard.
The Supreme Court held that the Defense’s objection raised a valid claim that the State was using its peremptory challenge to pretextually remove a juror based on his race. The State provided scant information regarding its initial explanation that the juror was uncooperative besides the fact that he would not return phone calls. However, the State offered a valid, non-discriminatory reason for the strike because the juror had stated he would need to be 100 percent sure someone committed a crime before convicting them, which is not the legal standard.
Points of Interest: juror challenges, equal protection
2022 MT 96
Police unlawfully extended stop for suspected DUI when they questioned the defendant for 20 minutes on unrelated matters based on only vague suspicion of deceitfulness before conducting sobriety testing to investigate the initial suspicion of DUI.
Police made contact with Zeimer, who was reported to have been slumped over the steering wheel of his pickup in a parking lot that morning, on suspicion of DUI. However, after failing to observe any indications of impairment, the officers interrogated Zeimer about other matters for over 20 minutes before conducting sobriety testing. The questioning included repeatedly challenging Zeimer’s seemingly odd and inconsistent account of his presence in the parking lot, and recorded conferrals between the officers indicated they had no particularized suspicion of DUI or any other specific criminal act but were generally suspicious of Zeimer’s presence. The officers also conducted a warrantless search of Zeimer’s clothing without indications that he was armed or dangerous. After conducting sobriety testing, police obtained consent to search Zeimer’s truck, leading to the discovery of contraband. Zeimer appealed his resulting convictions, arguing that the protracted stop was unlawful and the contraband should have been suppressed.
On appeal, the Supreme Court ruled that the officers had unlawfully extended the stop by failing to act with reasonable diligence to dispel or confirm the suspicion that had initially justified the stop when they instead, on the basis of a generalized distrust of Zeimer’s activities, spent 20 minutes prior to conducting sobriety testing questioning Zeimer about unrelated matters and searching his clothing without legal justification. The subsequently discovered evidence should have been suppressed and thus Zeimer’s convictions were vacated.
Points of Interest: traffic stops, particularized suspicion
2022 MT 97
Plaintiff’s claim against hospital was for medical malpractice within the definition of § 27-2-205, MCA, and subject to the statute’s two-year period of limitations.
Selensky was supposed to have an ultrasound following surgery to remove a testicular cyst, but it was unavailable at the hospital. Two days later, he received an ultrasound at another facility which revealed surgical complications, resulting in removal of his testicle.
Three years later, Selensky alleged a general negligence claim against the hospital for its policies and staffing leading to the ultrasound being unavailable after his surgery. The District Court ruled Selensky’s claim was actually for medical malpractice, and it dismissed it as time-barred under § 27-2-205(1), MCA.
On appeal, Selensky argued his claim against the hospital was for its “negligent business decisions.” The Supreme Court affirmed, holding that Selensky’s claim was for medical malpractice under the plain language of § 27-2-205, MCA, which establishes liability for “an act, error, or omission” by a hospital. To prevail, Selensky needed to provide proof of the professional standards of care applicable to his surgery. The Court previously distinguished between the conduct of health care providers in the “actual practice” of providing health care versus their conduct in running a healthcare business. Selensky’s injury arose from the “actual practice” of healthcare involving the hospital’s medical staffing, training, and equipment.
The two-year limitations period for a medical malpractice claim starts to run when a plaintiff discovers or should have discovered both the injury and that the injury may have been caused by the medical provider. In this case, the time period started when Selensky learned he lost his testicle. Any alleged misconduct by the hospital during discovery was irrelevant because it occurred after Selensky’s claim was already time-barred.
Points of Interest: torts, statute of limitations, medical malpractice
2022 MT 103
North Star Dev., LLC v. Mont. Pub. Serv. Comm’n
Lack of procedural justiciability is the correct jurisdictional basis under MAPA for dismissal of a petition for judicial review due to failure to exhaust administrative remedies.
Following a PSC contested case final agency decision on its requested utility rate increase, North Star filed a petition for judicial review in district court pursuant to MAPA. The court determined that North Star had failed to previously exhaust the available administrative remedy provided by Admin. R. M. 38.2.4806 (2016)—a mandatory motion for PSC reconsideration—and thus it lacked subject matter jurisdiction to adjudicate the petition for judicial review under § 2-4-702(1)(a), MCA.
On appeal, North Star argued that the court erroneously dismissed its petition without consideration of its asserted exceptions to the exhaustion of administrative remedies requirement.
The Supreme Court determined that North Star had failed to satisfy any asserted exceptions to the exhaustion requirement, e.g., that a reconsideration motion would be futile as a matter of law or that its collateral attack on the statutory timeliness of the final agency decision presented a purely legal question procedurally preserved for judicial review, and thus the District Court correctly dismissed North Star’s petition. The exhaustion requirement of § 2-4-702(1)(a), MCA, is ultimately a procedural justiciability prerequisite for the exercise of district court subject matter jurisdiction over a petition for judicial review although a party’s failure to exhaust administrative remedies does not deprive a court of subject matter jurisdiction to adjudicate the type of claim provided for by § 2-4-702, MCA. Thus, the proper basis for a court’s dismissal of a petition for judicial review due to failure to exhaust administrative remedies is lack of procedural justiciability.
Points of Interest: administrative law, exhaustion, justiciability
2022 MT 104
The hearsay rule prohibits out-of-court statements admitted for their truth even if the declarant already testified unless an enumerated exception applies. Prejudice from juror misconduct is imputed to the entire jury only after there has been a threshold showing the misconduct injured or prejudiced the defendant.
Oliver was convicted of PFMA, unauthorized use of a motor vehicle, and two counts of witness tampering. During trial, the District Court allowed deputies to testify to out-of-court statements from the State’s lead witnesses over Oliver’s objections. On the second day of trial, a crime victim advocate reported a juror said something about being brave to a State witness in the hallway after the witness’s testimony. The court declined Oliver’s request to interview the juror after the parties had stipulated to replacing the juror with the alternate. At sentencing, the court imposed various fees and costs, including jury costs, without inquiring into Oliver’s ability to pay.
Oliver raised issues on appeal including whether the District Court abused its discretion in permitting hearsay testimony; whether the alleged juror misconduct violated Oliver’s right to a fair trial; and whether the District Court erred in imposing costs and fees without an ability to pay inquiry. The Supreme Court affirmed Oliver’s convictions. While the District Court erred in admitting hearsay on the grounds the declarants had already testified, the error was harmless as the testimony repeated admissible in-court testimony and it was not more compelling or deserving of greater evidentiary weight. The District Court did not err in declining to interview the juror as the alleged misconduct on its face did not injure or prejudice Oliver. Finally, the Supreme Court reversed and remanded the costs and fees issue for the District Court to scrupulously and meticulously determine Oliver’s ability to pay jury costs to avoid undermining his right to a jury trial.
Points of Interest: hearsay, juror misconduct, ability to pay
2022 MT 105
District Court incorrectly interpreted a covenant restricting further subdivision of lots by not considering the referenced subdivision plat or map of record which indicated lots retained by the developer would include future development. The court correctly ruled the developer is obligated to provide dual water lines to all subdivision lots; the doctrine of impossibility did not apply because the developer created the situation that made the remedy burdensome.
The County denied a developer’s application to amend its subdivision because it violated a restrictive covenant prohibiting further subdivision. The HOA joined the lawsuit, asserting the developer violated a covenant to provide dual water lines to all subdivision. The District Court agreed, finding the plain language of the covenant and the developer’s conduct of providing dual water lines to some lots obligated him to provide dual water lines to a section of the subdivision he had only supplied with a single water line system.
On appeal, the Supreme Court reversed the District Court’s interpretation of the restrictive covenant that prohibited further subdivision. The covenants, as negative easements, must be read with any referenced subdivision, certificate of survey, or map of record to determine the scope of the negative easement. The District Court did not consider the recorded plat which identifies the lots retained by Wirth for “future development” or the subdivision’s overall purpose of allowing uniform development. Although a contract’s ambiguity should be construed against the drafter, the court must first consider extrinsic evidence and employ other principles of interpretation to resolve the ambiguity.
The Supreme Court affirmed the District Court’s ruling that the developer was obligated to provide dual water lines to every lot. The Court rejected the developer’s argument that performance was excused under the doctrine of impossibility; the developer’s failure to install dual water lines in the first instance is what makes the remedy burdensome, and he failed to take “virtually every action within his powers to perform his duties.”
Points of Interest: covenants, contracts, property
2022 MT 109
Attorney General's rejection of a potential ballot initiative vacated because the AG’s basis for finding the initiative legally deficient did not apply.
Meyer was a proponent of a potential ballot initiative that sought to amend a provision in the Montana Constitution. The Attorney General rejected the initiative as legally deficient based on his decision that a constitutional provision limiting the scope of laws passed by initiative should also extend to constitutional amendments passed by initiative.
This Montana Supreme Court disagreed, concluding Article III, Section 4, of the Montana Constitution—which addresses the right of the people to “enact laws by initiative on all matters except appropriations of money and local or special laws”—was inapplicable to Meyer’s initiative to amend the Constitution. Although the Attorney General concluded that the initiative’s impact on appropriations triggered the exception in Section 4, the Court concluded the initiative was legally sufficient given the people’s power to amend the Constitution via a ballot initiative as set forth in Article XIV, Section 9, of the Montana Constitution.
Points of Interest: ballot initiatives, constitutional law
2022 MT 110
Gift income was properly exempted from consideration during child support calculations and past gifts were properly considered in denying a request for retroactive child support.
During Erin and Jason’s marriage, neither party earned an income. Instead, they lived on substantial support provided by Jason’s father, Chris. The parties also lived rent-free in a home Chris provided. Jason had no significant employment or outside income, while Erin is a full-time mother.
Jason filed for dissolution in 2016. The District Court ordered Jason to pay $560 per month in child support to Erin. At trial, Erin requested nearly $2,300 per month in child support from Jason.
The District Court’s 2020 final decree rejected Erin’s request for increased child support and categorized Chris’s support as gift income, which was exempt from consideration under child support guidelines. Instead, the court ordered Jason to pay $1,800 per month, based on the prospective annual rental income of the home Jason lived in and Jason’s prospective earnings from minimum-wage employment. The court also denied Erin’s request for retroactive child support. The court noted additional income and support Christ provided to Erin.
On appeal, the Supreme Court affirmed. The income Chris provided to Jason must be considered gift income because Chris expected no consideration or repayment and it is therefore exempt under child support calculation guidelines. The District Court correctly denied Erin’s request for retroactive support because the significant gifts and support Erin received from Chris exceeded the proposed amount of retroactive support Erin sought.
Points of Interest: dissolution of marriage, family law, child support
2022 MT 111
Section 70-32-201, MCA, declares a general rule the homestead is exempt from foreclosure or execution except as provided. The enumerated exceptions are the exclusive exceptions and do not include an exception for judgment liens entered before a homestead declaration is made.
Nezat originally declared a homestead on the subject property in 1996. He transferred a 25 percent interest in the property to Meadows in 2009. J&L obtained a judgment against Meadows in May 2010. Several months later, Nezat sued Meadows alleging Meadows had procured her interest in the property through fraud and undue influence. Meadows transferred her interest back to Nezat in 2015 and the case was dismissed by stipulation of the parties. Nezat filed another homestead declaration on the property in 2017. In 2018, J&L filed this action against Nezat seeking to foreclose a judgment lien on the property. J&L agreed to allow Nezat to sell the property in exchange for Nezat placing into trust the amount of J&L’s lien plus interest. The sale proceeds were $220,000. The District Court determined J&L was entitled to recover up to 25 percent of the proceeds. As the lien amount was less than 25 percent, the District Court determined J&L was entitled to recover the full value of its judgment lien. Nezat appealed.
The Supreme Court reversed and remanded. Nezat was entitled to receive the full value of the homestead exemption before any sale proceeds could be used to satisfy J&L’s judgment lien under the homestead exemption statutes codified at Title 70, chapter 32, MCA. As the proceeds from the sale were less than the $350,000 homestead value limit, Nezat was entitled to receive the full sale proceeds.
Points of Interest: judgments, homestead exemption
2022 MT 116
Text messages sent by a defendant were admissible at trial as the defendant’s own statements pursuant to M. R. Evid. 801(d)(2)(A).
Wienke drove to the home of David and Charla Taylor with their son, Kaleb, and another man. While the other man waited outside, Kaleb and Wienke went inside the Taylor home and murdered David and Charla. Kaleb and Wienke also robbed the home before the three men departed and disposed of evidence. After the murders, Wienke texted Kaleb to “burn it down,” and to stop talking in front of Wienke’s girlfriend, who had joined them while disposing of evidence, and delete all their messages. At trial, the State introduced Wienke’s text messages to Kaleb over Wienke’s objection. The District Court overruled the objection, finding the texts admissible pursuant to M. R. Evid. 804(3) as “statements against interest.” The jury convicted Wienke of two counts of deliberate homicide.
On appeal, the Supreme Court affirmed, on a right-result, wrong-reason basis, finding the admission of Wienke’s text messages was not an abuse of discretion. Though the District Court admitted the texts as a “statements against interest” exception to hearsay under M. R. Evid. 804(3), the texts were in fact not hearsay pursuant to M. R. Evid. 801(d)(2)(A) because it was “offered against a party and [wa]s . . . the party’s own statement[.]”
Points of Interest: Rule 804, statements against interest
2022 MT 119
A trustee consented to a settlement agreement resolving a suit related to the disposition of land in a trust because he virtually attended the settlement conference, was represented by counsel, and had ample time to review the settlement before signing it.
Sam Lindemulder served as a co-trustee of the Lindemulder trust, which held land Sam lived on and attempted to purchase from his mother before it was placed in the trust. The trust’s beneficiaries were Sam and Sam’s siblings. After his mother died, Sam did not make any distributions from his trust, and his siblings filed suit. A settlement conference was eventually held, which Sam attended remotely while ill. His attorneys and co-trustee brother also attended. Weeks later Sam signed the settlement agreement, but then argued it should not be approved as he only agreed to it under duress and that he actually owned some of the land in the trust.
The Supreme Court held that Sam was competent during the settlement negotiations and did not sign under duress. Despite having COVID-19, Sam actively participated in the settlement negotiations, and understood what they pertained to. Further, he was represented by counsel throughout, and actually signed the settlement agreement a month later, giving him ample time to have it reviewed. Moreover, the threat of further litigation should he not sign it “‘is simply not so coercive’ that it can be said to overcome one’s capacity to enter into a settlement agreement.” The Court also upheld the District Court’s conclusion that the doctrine of laches precluded Sam from arguing he personally owned certain pieces of land in the Trust.
Points of Interest: trusts and estates, settlement agreements, competency
2022 MT 120
Water Court correctly denied the Hurds’s motion to amend their water right for a groundwater well for lack of jurisdiction because they missed the statutory deadline for filing a statement of claim, which was required to invoke the Water Court’s jurisdiction.
In 1983, the Hurds acquired rights to a groundwater well. Pursuant to the 1973 Water Use Act, water rights holders had an obligation to file a statement of claim no later than June 30, 1983, or else would forfeit their right through presumptive abandonment. Holders of rights to water for livestock and domestic purposes—such as the Hurds—were exempt from this requirement. The Hurds and their predecessors did not file a statement of claim. Although the Hurds filed a Notice of Water right with DNRC in 2006, this Notice was not a substitute for the statement of claim.
In 2017, the Legislature set a 2019 deadline for exempt water right holders to file a statement of claim. A failure to meet this deadline resulted in the right being subordinate in priority to all the rights for which formal claims had been timely filed. DNRC set notice of this deadline to all Montana property owners.
In 2021, the Hurds filed a motion in Water Court effectively attempting to transform their 2006 Notice into a claim-backed right with an enforceable 1950 prior date, as if they had filed a statement of claim. The Water Court denied their motion to amend their water right for a groundwater well because it concluded that it lacked jurisdiction to adjudicate that modification because the Hurds filed an untimely motion.
On appeal, the Supreme Court agreed with the Water Court that the Hurds still have a water right, but that their failure to file a valid, timely statement of claim resulted in the priority date of that right being subordinate to other rights with a statement of claim.
Points of Interest: water law, water rights, jurisdiction
2022 MT 121
District Court’s removal of Defendant’s parole-eligibility restriction complied with Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), providing a juvenile homicide offender a meaningful opportunity to obtain release.
This case arises from the Montana Supreme Court’s remand in State v. Keefe, 2021 MT 8, 403 Mont. 1, 478 P.3d 830 (Keefe II). In Keefe II, Keefe appealed his sentence because it conflicted with Miller and Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718 (2016), and with the application of those cases to discretionary sentences in Steilman v. Michael, 2017 MT 310, ¶ 17, 389 Mont. 512, 407 P.3d 313. In the first appeal, the Court remanded for the Direct Court to consider evidence of Keefe’s post-offense rehabilitation. On remand, the District Court held a resentencing hearing. Keefe requested time served, but the court declined to reopen the sentence beyond the parole restriction. After hearing testimony, and taking judicial notice of the voluminous evidence of Keefe’s rehabilitation, the court resentenced Keefe to three life sentences, with an additional fifty years for the burglary charge and weapons enhancements with no parole restriction.
Keefe appealed, asserting that the District Court failed to follow the remand instructions to hold “a new resentencing hearing.” The Montana Supreme Court held that the court complied with its instructions and imposed a constitutionally permissible sentence because the court considered the Miller factors and accounted for evidence of Keefe’s rehabilitation, as well as his criminogenic needs, criminal history, and financial history, the position and input of the victims, the seriousness of the offense, and the best interest of the community. The Supreme Court held that Miller and its progeny do not mandate that a juvenile homicide offender is constitutionally entitled to a sentence of a specific term of years absent a finding of irreparable corruption. Rather, Miller provides a meaningful opportunity for release by prohibiting mandatory life sentences without the possibility of parole for all but the most severe cases.
Points of Interest: sentencing, juvenile offender
2022 MT 128
The Board of Regents of Higher Education possesses exclusive constitutional authority to regulate firearms on Montana University System campuses.
For years, the Board limited the use and carrying of firearms on MUS campuses through a board policy. In 2021, the Montana Legislature passed HB 102, which generally revised gun laws in Montana. Several sections of the bill related directly to the MUS and the authority of the Board to regulate firearms on MUS campuses. HB 102 effectively allowed open and concealed carry on MUS campuses, conflicting with the Board’s preexisting policy.
The Board filed suit, alleging HB 102 was unconstitutional as applied to the Board. The District Court agreed with the Board and permanently enjoined application of HB 102’s provisions to the Board.
On appeal, the Supreme Court affirmed. Both the Board and the Legislature derive their power from Montana’s Constitution. The section creating the Board does not mention the Legislature, and thus the direct power bestowed upon the Board to oversee the governance of the MUS cannot also be exercised by the Legislature. Application of HB 102 to the Board would give the Legislature control and supervision over the MUS in direct contradiction to the Constitution. The Board’s oversight of academic, administrative, and financial matters relating to the MUS includes the exclusive authority to regulate firearms on MUS campuses.
Points of Interest: constitutional law, Art. IX(2), separation of powers
2022 MT 129
The city prevailed against homeowners’ inverse condemnation case because the homeowners failed to establish that the city’s deliberate actions caused a sewage backup that damaged their property.
Wittmans’ home was damaged when a grease clog in the City of Billings’ sewer main caused 1,000 gallons of raw sewage to back up in their basement. Wittmans sued the City on the theory of inverse condemnation, arguing that their home had been damaged for public use without just compensation. The District Court granted summary judgment in the City’s favor, concluding that inverse condemnation requires a deliberate affirmative action to take the property and Wittmans failed to establish that the City’s deliberate actions caused their damages.
On appeal the Montana Supreme Court held that an inverse condemnation claim requires a plaintiff to demonstrate a public project was deliberately planned and built in such a way that the taking was foreseeable and, as planned and built, the project damaged the plaintiff’s property and that such damage must be significant enough to constitute a permanent taking and not merely an infringement upon enjoyment or temporary damage. Here, Wittmans did not establish that the sewer backup was a constitutional damaging of their basement for public use and thus it was not a condemnation.
Points of Interest: property, takings
2022 MT 130
If a court errs in denying a challenge to a prospective juror, the defendant must then use a peremptory challenge to remove that juror in order for the appellate court to reverse for “structural error” on appeal.
A jury convicted Deveraux of five sexual offenses against one victim and one count of SIWOC against another. During jury selection, the District Court retained a prospective juror over Deveraux’s counsel’s motion to remove him for cause due to potential bias. Deveraux then exhausted all his peremptory challenges on other prospective jurors, and the disputed juror sat on the jury. The court instructed the jury that a person acts “knowingly” in the context of SIWOC when a “person is aware of his conduct.” The court also instructed the jury with an incorrect, more-expansive definition of consent than the statutory definition which existed at the time of Deveraux’s SIWOC offense.
The Supreme Court affirmed. Because Deveraux did not use a peremptory to remove the disputed juror, he could not establish structural error requiring reversal under the Court’s three-part test in State v. Good, 2002 MT 59, ¶ 62, 309 Mont. 113, 43 P.3d 948. SIWOC is distinct criminal conduct, and therefore a “conduct-based” mental state instruction is appropriate, rather than the “results-based” instruction advocated for by Deveraux. Even though the District Court gave the incorrect definition of consent, the evidence and legal theories presented at trial all focused on the correct inquiry—whether Deveraux used force to compel sexual intercourse with his victim. The jury could not avoid deciding the correct issue, and the Court declined to exercise plain error review.
Points of Interest: juror challenges, jury instructions, plain error
2022 MT 131
A law enforcement officer did not have the requisite particularized suspicion to expand a lawful traffic stop into a criminal investigation after the officer’s initial suspicions were dispelled because none of his articulated observations were objectively indicative of illegal drug activity.
Carrywater pled guilty to criminal possession of dangerous drugs after an officer discovered a small amount of methamphetamine and some pills in the center console of a vehicle he was driving. The officer had observed the vehicle’s owner, Clayburn Grant, driving earlier that evening and stopped the vehicle because he knew Grant had a suspended license and an arrest warrant in another county. Neither party disputed the officer had particularized suspicion to initiate a traffic stop. However, Carrywater argued that once the officer learned Grant’s warrant was non-extraditable and Carrywater was behind the wheel, the investigation should have ended with, at most, a citation to Grant for driving without a license earlier that night.
Carrywater moved to suppress all evidence obtained after the officer confirmed Grant was not the driver, claiming law enforcement exceeded the scope of the lawful traffic stop by asking for Carrywater’s license and then questioning him after learning it was valid. At the suppression hearing, the officer testified that “his reason for remaining on the stop was at some point and time they switched drivers”; the vehicle traveled approximately 600 feet after he initiated emergency lights; Carrywater’s lower jaw often protruded to one side of his face, which the officer believed indicated methamphetamine use; and the car’s occupants appeared “nervous, fidgety, a little uneasy.” The District Court denied Carrywater’s motion to suppress, determining that the officer had lawfully escalated his investigation to an investigation of other criminal activity.
The Supreme Court reversed, holding that particularized suspicion requires an officer to articulate “more than a mere generalized suspicion or an undeveloped hunch of criminal activity” and the officer’s lack of an objectively incriminating factual basis to expand the scope of the traffic stop required the evidence to be suppressed.
Points of Interest: search and seizure, particularized suspicion, traffic stops
2022 MT 132
Mont. Rivers v. Dep’t of Envtl. Quality
District Court properly granted summary judgment to DEQ where petitioner Montana Rivers abandoned its proposal and thus had no viable cause of action under MEPA to challenge DEQ's alleged failure to supplement an environmental impact statement.
In 2007, DEQ prepared an Environmental Impact Statement for rulemaking contemplated by the Board of Environmental Review. That EIS considered the consequences of a 2001 proposal from American Wildlands to designate part of the Gallatin River as an Outstanding Resource Waters. BER issued a notice of proposed rulemaking and initiated a public comment period in response to DEQ releasing its draft EIS. Following several extensions of this comment period, BER received notice that American Wildlands had abandoned its proposal and that other organizations were exploring alternative means of protecting the river. Ultimately, the Board rejected the proposed rule.
In 2018, Cottonwood Environmental Law Center and the Gallatin Wildlife Association filed a new petition to create a Gallatin ORW rule. BER rejected the petition without supplementing the 2007 EIS. Montana Rivers then sued DEQ, arguing it failed to comply with MEPA by failing to supplement the 2007 EIS. The District Court granted summary judgment in DEQ’s favor.
On appeal, the Montana Supreme Court concluded that because the process for creating a valid rule related to the 2001 ORW petition expired, there was no analysis for DEQ to supplement with respect to the 2018 petition. Montana law creates no valid cause of action to challenge an agency's proposed rulemaking if the agency abandons the proposal. The Court denied Montana Rivers’ attempt to challenge the agency’s discretionary decision not to issue a contemplated rule.
Points of Interest: natural resources, MEPA, rulemaking
2022 MT 133
Petition for postconviction relief was properly denied where petitioner failed to demonstrate ineffective assistance of his appellate counsel and where his purported new evidence had been offered at trial but found unpersuasive by the jury.
Crabtree filed a petition for postconviction relief from his 2017 conviction for theft by common scheme in which he accused witnesses of committing perjury, the prosecutors of corruption, and the District Court judge of prejudice and further alleged his appellate counsel provided ineffective assistance. The District Court denied Crabtree’s petition, concluding that Crabtree failed to demonstrate ineffective assistance and further concluding his remaining arguments were not suitable for postconviction relief.
On appeal, the Montana Supreme Court affirmed. Although Crabtree asserted he had newly discovered evidence, he merely recited evidence presented at trial that failed to convince the jury. Crabtree’s ineffective assistance argument, which was based on appellate counsel’s failure to raise a judicial bias argument on appeal, failed because Crabtree did not demonstrate that the issue of judicial bias would have been a stronger issue on appeal than those issues that counsel briefed.
Points of Interest: postconviction relief, ineffective assistance of counsel, new evidence
2022 MT 137
Daniels ex rel. Estate of Daniels v. Gallatin County
Under § 2-9-108(3), MCA, an insurer may not claim the benefit of the statutory cap under § 2‑9‑108(1), MCA, when the terms of the subject insurance policy specifically agree to provide coverage to a governmental entity in amounts in excess of that statutory cap.
Daniels suffered permanent and life-altering injuries when her vehicle was struck by a Gallatin County-owned snowplow. The County admitted liability. The County’s insurer did not dispute the County’s insurance policy provided coverage for the incident, but maintained Daniels was limited to recovering the statutory cap of $750,000 under § 2‑9-108(1), MCA, and not the policy limits of $1.5 million in auto coverage and $5 million in excess coverage. The subject policy did not reference any statutory caps or the $750,000 limitation. On summary judgment, the District Court determined the full policy limits were available to compensate Daniels.
The Supreme Court affirmed. Under § 2-9-108(3), MCA, an insurer may not claim the benefits of the statutory cap in § 2-9-108(1), MCA, if the insurer specifically agreed in the policy to provide coverage in amounts in excess of the statutory cap. The Court looked to the language of the policy to determine the intent of the parties in entering the contract. The policy provided that the insurer agreed “to provide the insurance as stated in this policy.” The policy provided auto coverage with a limit of $1.5 million and excess coverage with a limit of $5 million. The policy did not reserve or reference any statutory cap. Based on the terms of the policy, the insurer could not claim the benefits of the limitation in § 2-9-108(1), MCA.
Points of Interest: insurance, insurance policies, damages
2022 MT 138
In a real estate transaction, the buyer agent did not owe the buyer a duty to disclose public information that was discoverable by the buyer. The buyer could not establish the seller agent breached a statutory duty by failing to disclose water intrusion or mold, and the buyer could not establish that the real estate company violated the Montana Consumer Protection Act because she was unaware of the allegedly deceptive statement when she bought the house.
Young purchased a house from Bernadine Wutzke, whose parents had owned and occupied it. Jim Dea, the buyer agent, and Russell Wutzke, Bernadine’s husband and the seller agent, both worked for ERA Advantage. Young testified that Dea told her she could fence the yard. Young’s property inspector advised her that there was negative drainage and moisture stains on the foundation—a common sign of water intrusion inside the house. Young elected not to test for mold. After closing, she learned the zoning codes prohibited her from fencing the yard, and she discovered mold in the basement.
Young sued Advantage, alleging negligence for Dea’s failure to disclose the City’s fence limitations and for Russell’s failure to disclose the mold; constructive fraud for Russell’s failure to disclose the mold; and one MCPA claim for Russell’s alleged affirmative misrepresentation about water intrusion. The District Court granted summary judgment to Advantage on all claims.
On appeal, the Supreme Court held that Dea did not owe Young a duty to disclose the zoning requirements because a buyer agent only has a duty to disclose relevant and material information “not known or discoverable by the buyer” and Young could have learned of the zoning through reasonable inquiry. The Court further held that Russell was only required to disclose adverse material facts known to him. Although he was related to the prior owner, there was no evidence he knew of prior water intrusion. Furthermore, Young knew of the negative drainage and the moisture stains in the foundation, but she neglected to test for mold. Young could not prove causation on her MCPA claim. She alleged Russell deceived her when he told the bank’s appraiser there was never any water intrusion, but Young admitted she was not aware of his statement until after she purchased the property.
Points of Interest: torts, real property, MCPA
2022 MT 143
Loendorf v. Employers Mut. Cas. Co.
Insurer has no duty to defend under commercial general liability policy with earth movement exclusion for structural damage caused by soil settlement even though its insured failed to install proper support to account for soil conditions.
Homeowners sued Helgeson—who built and sold homes in their subdivision after they uncovered structural damage caused by soil settlement and because Helgeson allegedly failed to install the proper foundational support for local soil conditions—in federal court. EMC insured Helgeson under a commercial general liability policy. It defended Helgeson under a reservation of rights, alleging that no coverage existed because the policy had an exclusion for earth movement.
Homeowners sought declaratory judgment in state court that EMC was obligated to indemnify Helgeson for Homeowners’ claims. The District Court ruled that EMC has a duty to provide coverage.
The Montana Supreme Court reversed. It held that the District Court erred in finding the policy’s Earth Movement Exclusion applies only to long-term earth movement and not to earth movement caused by the insured’s actions. The Court concluded that the policy’s exclusionary language was not ambiguous when read in the context of the policy as a whole and that its straightforward meaning was to exclude all earth movement from coverage.
Points of Interest: insurance, indemnification, insurance policies
2022 MT 144
The Supreme Court will not read a class definition broadly, especially as a district court retains the discretion to alter or amend the class definition as litigation proceeds.
This case arises from a class action challenging the County’s policy or practice of strip searching every detainee who is eligible for housing in the general population regardless of whether there is reasonable suspicion to believe the person is concealing a weapon, contraband, or evidence of the commission of a crime. Plaintiffs argued this policy or practice violated their statutory rights under § 46-5-105, MCA. On appeal, the County challenged the District Court’s determinations under several M. R. Civ. P. 23(a) and 23(b)(3) requirements and maintained the District Court certified an overly broad class based on booking records, which included people who were never strip searched or were strip searched based on reasonable suspicion.
The Supreme Court affirmed the certification of the class, explaining the County’s arguments were premised on a misunderstanding of the District Court’s class certification order. The Court concluded the District Court based its class definition on information that should be readily available on intake sheets purportedly filled out for every detainee, not on the booking records. Sufficient evidence supported the District Court’s determinations on each of the requirements of Rule 23.
Points of Interest: class action, class certification, Rule 23
2022 MT 145
Trial court did not abuse its discretion in denying Defendant’s request to substitute counsel where it made adequate inquiry into Defendant’s complaints and Defendant did not demonstrate a breakdown in communication, a conflict of interest, or an irreconcilable conflict.
DeWise was charged with deliberate homicide and attempted deliberate homicide. The Office of Public Defender appointed two attorneys to represent him. Prior to trial, he requested new counsel because he was dissatisfied. The District Court directed him to complete OPD’s grievance process. DeWise made additional complaints about his attorneys three days later. The court again directed him to complete the grievance process. DeWise then sent several letters complaining about his attorneys. The court rejected the letters and directed DeWise to speak to his attorneys about his concerns.
At a later hearing, DeWise reiterated his desire for new counsel. The court vacated the trial date and requested that DeWise file a motion for new counsel. DeWise did so, reiterating his previous complaints, including failure to communicate and prejudice against him, and claiming his counsel had retaliated for his filing a grievance, breached confidentiality, and aided the State in his prosecution. Counsel denied DeWise’s allegations and expressed a desire to remain on the case, detailing the hundreds of hours of work that had gone into DeWise’s defense and denying DeWise’s accusations. The court denied DeWise’s motion, concluding there was no breakdown in communications and that DeWise’s complaints largely concerned disagreement as to legal strategy. DeWise was found guilty after a jury trial.
On appeal, the Montana Supreme Court held that the District Court made adequate inquiry into DeWise’s complaints and did not abuse its discretion in denying DeWise’s request to substitute counsel. The complaints DeWise raised to the court did not show a breakdown in communication, a conflict of interest, or an irreconcilable conflict, but rather reflected disagreement with trial strategy and DeWise’s belief that counsel should have spent more time meeting with him.
Points of Interest: substitution of counsel
2022 MT 148
District Court did not abuse its discretion by excluding evidence of certain underlying settlement amounts in an Unfair Trade Practices Act trial against insurance companies.
Humes sustained injuries after Benkelman rear-ended her. Both were insured by companies that are part of Farmers Insurance Group, making the accident a “dual-insured” loss. Humes brought first and third-party insurance claims to the two companies. After Farmers disputed the extent of her injuries, Humes filed an action consisting of: a negligence claim against Benkelman, two breach of contract claims against her insurer, and a claim against her insurer for alleged claim mishandling. Farmers eventually settled the claim against Benkelman for the policy limits of $100,000. Within 48 hours, Farmers settled the remaining claims for $220,000. Humes then sued under the UTPA, alleging the companies took advantage of the dual-insured loss and leveraged the Benkelman claim to avoid paying under Humes’ policy.
At trial, Humes wanted to introduce the settlement amounts to prove how Farmers ultimately valued her injuries. The District Court excluded these amounts under M. R. Evid. 403, ruling that Humes’ proposed use had the potential to mislead and confuse the jury.
On appeal, Humes again argued the excluded settlement amounts showed how Farmers valued her injuries. The Supreme Court determined the District Court did not abuse its discretion by excluding the amounts because Humes proposed using the amount Farmers paid to settle four claims as proof of the value of one claim; this use had questionable relevance and fell within the District Court’s discretion under Rule 403.
Points of Interest: insurance, Rule 403
2022 MT 149
M.K. Weeden Constr. Inc. v. Simbeck & Assocs.
District Court abused its discretion by vacating an arbitration award when the award was in the form agreed upon by the parties and by erroneously concluding the Arbitrator used the wrong legal standard.
Weeden entered into a contract to raise the embankments on a tailings storage facility and subcontracted with Simbeck to install a liner on the new embankment. After the parties had a falling out, Simbeck stopped work, removed its equipment from the site, and filed for arbitration alleging breach of contract.
Simbeck prevailed in arbitration, but Weeden challenged the Arbitrator’s decision before the District Court. The District Court concluded the Arbitrator did not issue an award in the form agreed upon by the parties, and did not use the proper standard in evaluating the breach of contract claim, and vacated the award.
On appeal, the Supreme Court directed the Arbitrator’s award be reinstated. When reviewing the entire arbitration award, the Court concluded that despite the use of subjective language in parts of the award, the Arbitrator ultimately applied the correct objective standard when concluding that Weeden breached its contract with Simbeck. Additionally, the award was in the form agreed upon by the parties—a “reasoned award”—and the majority of Weeden’s arguments to the contrary addressed the award’s substance. As an arbitrator only exceeds his or her authority when issuing an award in a form different from that requested, Weeden’s substantive arguments did not justify vacating the award.
Points of Interest: arbitration, contracts
2022 MT 150
Thomas Mann Post No. 81 v. Knudsen Family L.P.
District Court did not err when it concluded that Appellee owns an implied easement by preexisting use over property owned by Appellant.
In 1944, the Swindles donated a parcel of their property to the American Legion for a public park. At that time, an existing access road provided access to the park. Legion and the public frequently accessed the park via this road for outdoor activities. In 1991, the Knudsen family took title to the real property. A couple years later, Knudsen began impeding the public’s access to the park. In 2016, Knudsen installed a locked gate over the access road to prevent public access to the park.
Legion brought this action to quiet title and obtain a declaratory judgment that it owns an easement across the property for public access to the. The District Court granted summary judgment in its favor. Knudsens appealed, asserting that the Swindles’ intent for Legion to use the easement could not be established.
The Montana Supreme Court held the District Court correctly concluded that Legion has an implied easement by preexisting use to access Legion Park because, for five decades Legion, its invitees, and the public manifestly and obviously used the road to access Legion Park for a variety of outdoor, recreational activities. Although Knudsens provided evidence there were other ways to access the park, this did not contradict the evidence establishing Legion’s consistent use of the easement and was insufficient to defeat a motion for summary judgment.
Points of Interest: easements and roads, public access, property
2022 MT 153
Stand Up Mont. v. Missoula Cnty. Pub. Schs.
Challengers to school masking policies were not entitled to a preliminary injunction of said policies because the masking requirements were narrowly tailored to furthering the compelling government interest of containing the spread of COVID-19 in public schools.
Following the outbreak of COVID-19, for the 2021-2022 school year several Montana public school districts instituted mandatory masking requirements for all persons in the school, with few exceptions. Challengers to those masking policies sued for a preliminary injunction, asserting that the masking requirements violated their constitutional rights to privacy, individual dignity, and parental control. In two separate district court trials, the Challengers’ requests for injunctive relief were denied.
On appeal, the Supreme Court upheld the district court rulings. The Challengers’ right to privacy was not infringed because the masking requirements did not amount to mandatory medical treatment, but rather preventative measures similar to the requirement that football players wear a helmet. Further, the Challengers’ right to individual dignity was also not improperly encroached because the masking policies were rationally related to the government’s legitimate interest in preventing the spread of COVID-19. Similarly, because the United States Supreme Court had held that the prevention of COVID-19 spread was a compelling government interest, the Montana Supreme Court also held that the Challengers’ constitutional parental rights were not improperly infringed.
Points of Interest: preliminary injunction, right to privacy, right to individual dignity
2022 MT 156
Although a court can order sexual abuse victims under age 16 to do pretrial interviews with defendant’s counsel if the defendant shows “exceptional circumstances,” a defendant’s right to access a witness is not violated when the witness declines the interview.
Mathis was accused of sexually abusing her stepson. Before she was charged, her stepson and her two children were forensically interviewed in a different case, but the interviews were not provided to Mathis. Mathis requested the forensic interviews, but the State refused, arguing they were confidential, and that the stepson’s was irrelevant because he did not disclose abuse by Mathis during this interview.
Before trial, Mathis asked the court to allow her to interview her stepson and her daughter, after they declined interviews, under § 46-15-320, MCA, which provides that a court may order certain sexual abuse victims to conduct pretrial interviews if the defendant demonstrates “exceptional circumstances.” Mathis argued the interviews were necessary to her defense. The District Court denied her request because she failed to show exceptional circumstances. She was ultimately convicted of two counts of incest.
On appeal, Mathis argued that the court incorrectly denied her request, and that § 46-15-320, MCA, was unconstitutional as applied because it placed a burden on her to demonstrate “exceptional circumstances.” She also argued that the State’s failure to provide the forensic interview with her stepson violated her right to a fair trial because the lack of abuse allegations was potentially exculpatory.
On appeal, the Supreme Court affirmed. Mathis’s constitutional challenge to § 46-15-320, MCA, fails because the children refused to be interviewed, and a defendant’s right to access a witness is not violated when that witness declines the interview. Further, there must be an affirmative act by the prosecution for the right to access witnesses to be violated, and there was no argument that the prosecution inappropriately influenced the children’s decision to decline the interview. Mathis was also not entitled to a new trial because the State’s failure to give Mathis the forensic interview with her stepson did not affect the outcome of her trial.
Points of Interest: witnesses, pretrial interviews, discovery
2022 MT 157
District Court did not manifestly abuse its discretion when it determined that abortion services providers made a prima facie showing that three 2021 laws violate their rights and their patients’ rights under the Montana Constitution and granted a preliminary injunction.
Providers sued the State on behalf of themselves and their patients, and they sought a preliminary injunction to temporarily block three abortion laws from taking effect. Providers asserted that the laws violate the rights to privacy and to equal protection. The District Court granted a preliminary injunction and the State appealed.
The Montana Supreme Court held that the District Court correctly applied strict scrutiny review to the challenged laws because, under Armstrong v. State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364, restrictions on abortion services implicate the Montana Constitution’s fundamental right to privacy.
The Court held also that the District Court applied the correct preliminary injunction standard. Under § 27‑19‑201(1), MCA, the applicant must “appear” entitled to the relief demanded. The applicant must make at least a prima facie showing of entitlement to relief. The State argued that the standard should instead be “likelihood of success on the merits.” The Court did not find a meaningful difference between these standards and rejected the State’s demand for a more stringent standard.
The District Court did not manifestly abuse its discretion when it found that Providers demonstrated a prima facie case for relief. Providers presented sufficient evidence that the laws banned or restricted access to abortion procedures in violation of Armstrong. Though the State offered conflicting evidence, resolution of those factual disputes must await final adjudication on the merits.
Points of Interest: injunctions, constitutional law, right to privacy
2022 MT 160
Legislative Referendum that would have provided for district-based, rather than statewide, Supreme Court elections held unconstitutional.
Plaintiffs challenged the constitutionality of HB 325, a legislative referendum to submit a proposal to Montana voters on the November 2022 general election ballot. If approved, the measure would establish seven Supreme Court districts in Montana, assign each Supreme Court seat to one of the seven districts, and require candidates for each seat to run for election solely within the district assigned to that seat. It would also require the Chief Justice to be chosen by the majority vote of the seven Justices after the 2024 general election. The District Court ruled the measure unconstitutional and enjoined the Secretary of State from putting it on the November 2022 ballot.
On appeal, the Supreme Court upheld the District Court’s decision. The Court ruled that the present referendum was indistinguishable from a nearly identical measure struck down in Reichert v. McCulloch, 2012 MT 111, 365 Mont. 92, 278 P.3d 455. Relying on Reichert, the Court held that the matter was ripe for judicial review and that HB 325’s provisions violated the Montana Constitution, which envisioned statewide, rather than district-based, Supreme Court elections and improperly denied Montanan’s the right to vote for each Justice of the Supreme Court.
Points of Interest: constitutional law, referendum, ripeness
2022 MT 161
State court had continuing and concurrent jurisdiction to amend parenting plan involving Indian child where Indian parent failed to establish a definite fixed residence on subject Indian reservation. State court properly exercised jurisdiction where Indian parent failed to establish that subject tribal forum had more substantial, case-specific contacts and interest in the custody of the subject child.
Father petitioned the Ninth Judicial District Court to amend the court’s stipulated parenting plan regarding the Indian child L.D.C. after Mother, a member Blackfeet Indian, allegedly violated conditions of the plan. Finding a change in circumstances, the court amended the parenting plan. Mother moved to transfer jurisdiction to the Blackfeet Tribal Court, asserting lack of subject matter jurisdiction and that Glacier County was an inconvenient state forum. She asserted that she now resided on the Blackfeet Reservation, and thus the tribal court was the more appropriate forum to adjudicate custody. Father argued that Mother had yet to establish a stable residence and lived intermittently with family and friends. The District Court affirmed the parenting plan and denied Mother’s motion to transfer jurisdiction.
On appeal, the Supreme Court noted that (1) a state court may not exercise otherwise existing jurisdiction over a member Indian child and at least one member Indian parent who reside on the affiliated Indian reservation if the exercise of jurisdiction is preempted by federal law or would substantially infringe upon tribal sovereignty; (2) in a custody dispute involving an Indian child who does not reside on the affiliated reservation, state courts and tribal courts have concurrent jurisdiction; and (3) before exercising concurrent jurisdiction, state courts must make a substantive evidentiary inquiry to balance pertinent state and tribal interests and policies. The Court determined Mother had failed to establish a fixed residence on the Blackfeet Reservation or that exercise of state jurisdiction substantially impaired or undermined tribal sovereignty. Accordingly, the District Court had continuing jurisdiction to modify the parenting plan absent any particularized, case-specific evidentiary showing by Mother sufficient to satisfy § 40-7-202(1), MCA. The court properly exercised its concurrent jurisdiction to amend the parenting plan absent any showing by Mother that the court was an inconvenient forum under § 40-7-108, MCA.
Points of Interest: parenting plan, ICWA, concurrent jurisdiction
2022 MT 162
Flying T Ranch, LLC v. Catlin Ranch, LP
District Court did not abuse its discretion in granting a preliminary injunction allowing use of a disputed road during the pendency of litigation over permanent access, because the plaintiff made a prima facie case and continuing access would maintain the status quo.
In 2014, Flying T bought land accessible by a road over Catlin’s property. Flying T and its contractors used the road to access the property and build a residence. There was little protest from Catlin until 2017, when Catlin locked the gate and blocked further access to Flying T. Flying T sued, alleging multiple theories of access, and petitioned for preliminary injunctive relief to allow it to use the road pending final resolution. The District Court issued a preliminary injunction that Catlin appealed.
The Supreme Court affirmed, holding that under § 27-19-201(1), MCA, Flying T only needed to show a prima facie case of entitlement to relief, and the record contained substantial evidence to support the conclusion it had done so. The fact that Flying T could no longer use the route it had accessed for three years, and was relegated to noncomparable alternative routes, was enough of an injury to qualify for a preliminary injunction. The order preserved the status quo because the controversy began in 2017, after Flying T’s use of the road for three years.
The Court also affirmed the court’s decision to extend road access through its preliminary order to additional parties in the litigation, even though they had not joined Flying T’s motion for preliminary injunction. These parties were fully involved in the litigation and had historically used the road, which also provided access to their properties. Catlin was therefore not deprived of due process by their inclusion in the order. The court, sitting in equity, had the ability to resolve all issues related to the main subject of the case, which included legal access to the road by the additional parties.
Points of Interest: preliminary injunction, equity, easements and roads
2022 MT 163
District court did not abuse its discretion by excluding evidence of a minor victim’s prior statements regarding an alleged false accusation of sexual assault because the defendant neither established that the victim actually made an accusation or that it was false. The evidence would not have been probative of the victim’s veracity, but would have required a trial within a trial, the exact type of probe that is protected by the rape shield statute.
Hansen was accused of committing incest against his granddaughter. Prior to trial, the State sought to exclude evidence that the victim had made two prior allegations of sexual assault. Hansen’s only evidence establishing the accusation was a 2013 forensic interview, in which the eight-year-old victim discussed an incident with her male cousin that had occurred when they were both about five years old.
The District Court followed the procedures set out in State ex rel. Mazurek v. Dist. Ct. of the Mont. Fourth Judicial Dist., 277 Mont. 349, 922 P.2d 474 (1996). The video of the 2013 forensic interview was entered into evidence and witnesses involved in both alleged prior accusations testified. The court ruled that one of the victim’s accusations was admissible, but that her statements regarding her cousin were not admissible because there was not “adequate evidence presented to prove that an allegation was made or that it was false.”
On appeal, the Montana Supreme Court concluded that neither the interview transcript nor the Mazurek hearing testimony were clear as to what had occurred between the victim and her cousin; thus, Hansen could not establish she had made an accusation of sexual abuse against the cousin. Even if the complaining witness had made accusations against the cousin, there was no clear evidence that the incidents had happened, and the probative value of the complaining witness’s statements was extremely limited.
Points of Interest: evidence, witnesses, pretrial interviews
2022 MT 166
Law enforcement officers do not act outside the scope of their employment if they use their authority as on-duty officers to sexually assault a person they are investigating for a crime.
Bureau of Indian Affairs Officer Dana Bullcoming responded to L.B.’s call for a check on her mother, who L.B. feared was driving while intoxicated. After determining L.B.’s mother was safe, Officer Bullcoming went to L.B.’s residence. L.B. admitted that she had consumed alcohol that evening, and Officer Bullcoming threatened to call social services and arrest L.B. for child endangerment because she was the only adult present while her children were sleeping. After L.B. begged Officer Bullcoming not to arrest her, he repeatedly told her “something had to be done.” She asked if he meant “sex,” and he replied affirmatively. She then had unprotected sexual intercourse with him, resulting in a pregnancy and ultimately the birth of D.B.
L.B. then brought a federal suit against the U.S. government, seeking to hold it liable for Officer Bullcoming’s misconduct. The Ninth Circuit Court of Appeals certified to the Montana Supreme Court the question of whether, under Montana law, the sexual assault fell within the scope of Officer Bullcoming’s employment. The Court determined that it did: while the sexual assault was an authorized act, because Officer Bullcoming’s threat of charging L.B. with a criminal offense to obtain her consent to sexual intercourse was not so disconnected from employment duties as to preclude a rational trier of fact from finding that his wrongful conduct arose out of and was committed in furtherance of the criminal investigation that he was performing for the BIA. Here, the certified facts could lead a trier of fact to conclude that the officer abused his employer-conferred power and authority to sexually assault L.B. Officers use their discretion to determine when not to charge an offense, in part to benefit their employer. Even if some of Officer Bullcoming’s motive was self-interest, he was nonetheless at L.B.’s home to investigate the interests of his employer, acting as an officer and agent of the BIA to investigate a crime, when he used his employer-conferred powers to commit sexual assault.
Points of Interest: certified question, scope of employment, employment law
2022 MT 169
Timpano v. Cent. Mont. Dist. Six Human Res. Dev. Council
When bringing the affirmative defense of failure to mitigate damages in response to a Wrongful Discharge from Employment Act claim, an employer has the burden to prove comparable employment was timely available to the terminated employee. The effect of proving comparable employment existed is to reduce or off-set otherwise recoverable damages.
Timpano was discharged from her job with defendant HRDC after receiving satisfactory ratings on recent performance reviews. After she was terminated, Timpano did not search for, or apply to, any alternative, comparable full-time jobs in her area. Timpano filed wrongful discharge claims under the Montana Wrongful Discharge from Employment Act (WDEA). HDRC filed a motion for summary judgment, asserting Timpano did not mitigate her claimed damages by seeking comparable full-time employment. The District Court granted HDRC’s motion for summary judgment and dismissed Timpano’s claims with prejudice.
On appeal, the Supreme Court explained the duty to mitigate damages found in § 39-2-905(1), MCA, is an affirmative defense to a WDEA claim an employer must specially plead and prove. When using the defense, an employer has the burden of proving other comparable employment, for which the discharged employee was qualified, was timely available to the employee if the employee had made reasonably diligent efforts to find and obtain it. If the employer proves comparable employment was available, the otherwise recoverable lost wages damages amount will be reduced or offset by the amount the employee could have earned at the comparable job. Whether comparable employment was available, or whether the discharged employee made efforts to find similar employment, only affect damages awards and are not total bars to recovery. HRDC did not bring forth evidence that a job comparable to Timpano’s existed at the time she was discharged, so the court erred by granting HRDC summary judgment on the causation element.
Points of Interest: employment law, wrongful discharge, duty to mitigate
2021 MT 1
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
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
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
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
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
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
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 25
Sunset Irrigation Dist. v. United States (Fish & Wildlife Serv.)
Water Court correctly held Macks’ 2015 Amendment, which was consistent with the 1978 Amended Decree, established the correct point of diversion.
Macks and Andersons own adjacent land near South Burnt Fork Creek. The water right claims were based on original rights from 1905. Macks’ predecessor incorrectly identified the point of diversion in her statement of claims; however, the 1978 Amended Decree correctly identified the location of Headgate 103. Macks filed an amendment to correct the statement of claims in 2015, prior to the Basin 76HA Preliminary Decree conducted by the DNRC. Andersons objected with the Water Court, which concluded the 2015 Amendment did not contradict the 1978 Amended Decree and correctly placed Headgate 103.
Andersons appealed and the Supreme Court affirmed the Water Court. Although Andersons alleged the Water Court did not have jurisdiction over Macks’ 2015 Amendment, the Supreme Court had previously concluded the 1978 Amended Decree depicted the point of diversion as claimed by Mack and that the Water Court had jurisdiction to determine the location of a point of diversion. Andersons further argued the Water Court abused its discretion when it concluded Macks did not make any judicial admissions. The Supreme Court held the point of diversion constituted a legal description and did not constitute a judicial admission. Andersons also argued the Water Court erred in assigning the burden of proof to the Andersons. However, pursuant to the adjudicatory rules of the Water Court, the burden of proof for every assertion that a claim is incorrect falls upon the objectors, in this case Andersons. Andersons also argued the Water Court abused its discretion by excluding their expert witness. However, Andersons disclosed their expert witness untimely. The Supreme Court further held the Water Court’s findings were based on substantial credible evidence and were not clearly erroneous.
Points of Interest: water rights
2021 MT 26
Mont. State Univ.-Northern v. Bachmeier
Human Rights Commission may modify a hearing officer’s decision because it reviews the complete record, including evidence that may be contrary to a finding made by the hearing officer.
Bachmeier brought claims of sexual harassment and retaliation against MSU-N. An administrative Hearing Officer concluded Bachmeier did not prove discrimination, but did prove retaliation. Both parties appealed to the Human Rights Commission, which found three of the Hearing Officer’s findings incorrect and rejected the conclusion that Bachmeier had failed to prove discrimination. The Commission remanded the matter. After the Hearing Officer amended his findings and conclusions, the Commission issued a Final Agency Decision that awarded Bachmeier damages for both discrimination and retaliation.
Both parties appealed the Final Agency Decision to the District Court, which concluded the Commission had erred when it found three findings incorrect. Concluding that the Commission had no basis for remand, the court vacated the Final Agency Decision and reinstated the Hearing Officer’s original findings and conclusions.
Both parties appealed to the Supreme Court, which concluded that the Commission properly rejected the findings because reviewing bodies review the complete record in administrative proceedings, which includes reviewing evidence contrary to a Hearing Officer’s findings. §§ 2-4-621(3), 2-4-704, MCA. The Commission explained the reasons why the Hearing Officer’s original findings were “not based on competent substantial evidence” and the rejected findings did not depend on the weight or credibility of witnesses. The District Court therefore abused its discretion in reversing the Commission and reinstating the Hearing Officer’s first set of findings and conclusions. The Court also concluded that the District Court properly affirmed the Hearing Officer’s conclusion that MSU-N retaliated against Bachmeier.
Points of Interest: human rights, administrative law, administrative appeals
2021 MT 27
Courts have discretion to deviate from the presumption of a deferred sentence for a first-time offense of Criminal Possession of Dangerous Drugs conviction if aggravating circumstances elevate the offense beyond a typical case. However, prior to imposing the market rate fine under § 45-9-130(1), MCA, a court must consider the offender’s ability to pay the fine and the factors enumerated in § 46-18-231(3), MCA.
Wilkes was charged with felony possession of methamphetamine with intent to distribute, but a jury convicted her of the lesser-included offense of felony criminal possession. At sentencing the State recommended the maximum five-year prison term with none suspended because of the extraordinarily large quantity of methamphetamine involved. Wilkes recommended a deferred sentence in accordance with the statutory presumption for first-time felony possession offenders. Rejecting both recommendations, the District Court sentenced Wilkes to a five-year suspended commitment and issued the maximum fine of $5,000 plus $10,000 for the 35% market value fine mandated by § 45-9-130(1), MCA.
On appeal, the Supreme Court concluded that the District Court did not abuse its discretion in deviating from the statutory presumption of a deferred sentence because substantial evidence supported the aggravating circumstances found by the court. However, the Court reversed the trial court’s imposition of a $10,000 fine under § 45-9-130, MCA, because the record did not indicate the court considered the factors specified in § 46-18-231(3), MCA. The Court remanded the matter for consideration of those factors.
Points of Interest: sentencing, fines
2021 MT 28
Cascade County v. Mont. Petroleum Tank Release Comp. Bd.
When an agency utilizes a hearing examiner to conduct a contested case under MAPA, it can adopt, reject, or modify the examiner’s conclusions of law under § 2-4-621, MCA, but it cannot decline to address issues resolved by the examiner and reserve those issues for later proceedings.
Cascade County and the Montana Petroleum Tank Release Compensation Board engaged in a long-running dispute about the number of petroleum releases that occurred on the county’s shop site for purposes of compensation for remediation costs. A hearing examiner determined there were four releases, but § 27-2-231, MCA, barred the County from submitting additional eligibility applications for additional releases and the additional claims were also barred by laches. The Board adopted the statute of limitations conclusions of law from the hearing examiner and rejected the laches and number of releases conclusions.
On a petition for judicial review, the District Court determined § 27-2-231, MCA, did not apply to eligibility applications and remanded to the Board to further consider the remaining issues. The County appealed the District Court’s order of remand, and the Board cross-appealed the conclusion that § 27-2-231, MCA, had no application to the case. The Supreme Court agreed with the District Court that § 27-2-231, MCA, did not apply, because the statutes governing reimbursement already contain time limitations on owners seeking reimbursement from the board. Turning to the District Court’s order to remand the case for the Board to consider additional issues, the Court held § 2-4-621, MCA, allows an agency using a hearing examiner to adopt the examiner’s proposal for decision as the agency’s final order or reject and modify the examiner’s conclusions of law but does not allow the agency to not address an issue resolved by the hearing examiner and reserve that issue for later proceedings after judicial review. The District Court erred in remanding the case to the Board for further consideration of the rejected issues.
Points of Interest: administrative law, administrative appeals
2021 MT 37
Wenger v. State Farm Mut. Auto. Ins. Co.
The trial court did not err when it prohibited the parties from eliciting expert testimony regarding statutory interpretation or applying the law to the facts of the case, but erred when it admitted medical records containing irrelevant and private information about the plaintiff’s condition.
In a negligence action, the District Court issued a pretrial order prohibiting testimony or discussions regarding Montana statutes from voir dire through the close of evidence. However, it admitted unredacted medical records over Wenger’s objection. The jury returned a defense verdict.
On appeal, Wenger argued that the District Court’s rulings prejudiced her. She alleged that because of the court’s order prohibiting certain expert testimony, she did not attempt to introduce “a statutory standard of care” to the jury, putting her at a severe disadvantage. She also argued that her substantial rights were prejudiced by the admission of irrelevant, unredacted medical records.
The Supreme Court concluded the District Court’s order limiting expert testimony was not erroneous. Wenger was able to adequately question the jurors during voir dire and was able to develop her legal theories in opening statements. Regarding trial testimony, expert witnesses are permitted to testify as to ultimate issues of fact but are not permitted to apply those facts to the law or state their opinions regarding statutory interpretation. Here, pursuant to the District Court’s order, experts testified as to issues of fact. However, the Court agreed that many of the admitted medical records were irrelevant and contained private healthcare information. In light of the other evidence at trial, the Court concluded that the erroneously admitted evidence was not so prejudicial that it unfairly could have affected the jury’s decision because this information was not mentioned in testimony and despite its private nature largely concerned routine medical issues.
Points of Interest: evidence, experts, private healthcare information
2021 MT 44
Clark Fork Coalition v. Mont. Dep’t of Nat. Res. and Conservation
When considering a beneficial water use permit application under the Montana Water Use Act, DNRC is not required to consider Montana Water Quality Act or DEQ administrative rules as “existing legal demands” on the water source in its analysis of whether water is “legally available” for appropriation.
Clark Fork Coalition and other environmental groups (CFC) objected when DNRC issued a beneficial water use permit to RC Resources, Inc. (RCR). The permit would allow RCR to use the ground water it will remove from mine voids during the construction and production phase (Phase 2) of the Rock Creek Mine. CFC argued that the groundwater appropriation would deplete nearby protected streams. Before DNRC, CFC argued that state laws protecting these waters constituted “existing legal demands” that DNRC must consider before determining if water is “legally available” for appropriation. CFC also argued that another Montana Water Use Act (MWUA) provision, as applied by DNRC, unconstitutionally violated their right to a clean and healthful environment.
The DNRC disagreed, determining that its “legal availability” analysis was a straightforward comparison of the total volume of water in the source and the volume presently claimed for use by prior appropriators. On judicial review, the District Court vacated RCR’s permit and concluded that the potential depletion of outstanding resource waters, nondegradation in violation of the Montana Water Quality Act (MWQA), was a legal demand that DNRC must consider. RCR and DNRC appealed.
First, the Supreme Court interpreted “existing legal demands” under the MWUA to mean the aggregate quantum of water allocated or reserved for beneficial use under existing recorded water rights, thus reversing the District Court’s conclusion. Then, the Court addressed CFC’s claim that a second MWUA provision at issue unconstitutionally deprived them of a remedy for potential environmental degradation at the Rock Creek Mine. At the time of the Supreme Court’s decision, RCR had not yet obtained a hard rock operating permit, necessary to begin Phase 2. The Court thus determined that, by operation of the MWQA, MEPA, and the Metal Mine Reclamation Act, RCR’s proposed water use would be subject to full nondegradation environmental review before issuance of the operating permit and thus CFC’s constitutional right to a clean and healthful environment had not been violated by DNRC’s issuance of RCR’s water use permit.
Points of Interest: Montana Water Use Act, Montana Water Quality Act, natural resources
2021 MT 45
Although the borrower/lender relationship is typically an arms-length contractual relationship that gives rise only to duties and remedies in contract, extraordinary circumstances or interactions evidencing a special relationship between borrower and lender may give rise to fiduciary duties and support claims for negligence and tortious breach of the implied covenant of good faith and fair dealing.
In 2007, House refinanced his home loan and executed an adjustable rate note and residential trust indenture in favor of Bank of America. Over the next four years, House’s payment obligations fluctuated due to the adjustable interest rate and because of monthly add-ins owed to BOA to fund a loan escrow established upon House’s non-payment of real estate property taxes. House calculated his own monthly payment amounts, but often failed to account for the monies he owed to fund the escrow account. By 2011, House had missed four monthly payments when BOA returned his deficient May payment and refused to accept any more.
House sued for negligence and breach of the implied covenant of good faith and fair dealing. BOA moved for and was granted summary judgment. House appealed.
The Supreme Court concluded that House failed to show that a special relationship existed between the parties in their otherwise arms-length contractual borrower/lender relationship that would give rise to a fiduciary duty and support a claim for negligence against the bank. House had also neither pled nor shown the existence of a special relationship that would support a claim for tortious bad faith arising out of the implied contract covenant of good faith and fair dealing. Despite lingering factual questions as to House’s monthly payment obligations and how BOA accounted for them, it was undisputed that under the terms of his loan documents, House was in default when the bank refused his deficient payment, and thus House failed to show that BOA administered or serviced his loan in a dishonest or commercially unreasonable manner.
Points of Interest: contracts, loans, fiduciary duties
2021 MT 46
ALPS Prop. & Cas. Ins. Co. v. Keller, Reynolds, Drake, Johnson & Gillespie, P.C.
When a claims-made-and-reported malpractice insurance policy provides coverage for claims provided that at the effective date of the policy, no Insured knew that an error might be the basis of a Claim, the knowledge of one attorney precludes coverage for that claim as to all attorneys covered by the policy.
Gillespie represented Sandrock in two lawsuits. In one, the district court awarded sanctions against Sandrock for discovery abuses. In the other, the court entered default judgment against Sandrock after Gillespie failed to file an amended complaint on Sandrock’s behalf. Seifert and Johnson, members of the same Firm as Gillespie, were not involved in Sandrock’s representation. In November 2015, the Firm sought professional liability coverage from ALPS. Each of the Firm’s attorneys completed and signed a supplement representing that they had no knowledge of any fact, circumstance, act, error, or omission that could reasonably be expected to be the basis of a claim against them. Gillespie completed his supplement the day after he admitted at the default hearing that he had “not paid the necessary attention to the matter,” answering “No” to having any knowledge of any fact, circumstance, act, error, or omission that could be the basis of a claim against himself. ALPS issued the Firm a claims-made-and-reported policy, effective December 12, 2015, with Gillespie, Johnson, and Seifert each listed as an “Insured Attorney.” No one at the Firm, except Gillespie, knew of the entry of default or the sanctions award until April 2016, when Seifert learned of them and notified ALPS of the potential claim.
In September 2016, Sandrock filed a malpractice suit against Gillespie. He later amended the complaint, naming the Firm, Seifert, and Johnson as additional defendants. ALPS sought a declaration that it did not owe a duty to defend or indemnify the Firm or its members for these claims. The district court granted ALPS summary judgment, holding the Policy did not cover the claims because a member of the Firm knew of the basis of the claims prior to procurement of the Policy. Sandrock, the Firm, Seifert, and Johnson appealed.
On appeal, the Supreme Court affirmed. It determined Sandrock’s malpractice claim fell outside the scope of coverage because, for coverage to apply, “no Insured” may know that acts, errors and omissions might be the basis of the claim prior to the policy's effective date. This prior knowledge provision is a condition precedent to coverage. The unambiguous language of the Policy did not allow a claim to be divided into parts based on the knowledge of each Firm member. Thus Seifert and Johnson were also precluded from coverage based on Gillespie’s prior knowledge.
Points of interest: insurance, legal malpractice
2021 MT 47
District Court did not err by dismissing pending abuse and neglect proceedings and placing children with the non-offending, non-custodial parent.
Mother and Father had two children. In 2016, Mother and Father separated, and Mother was granted primary custody in a parenting plan action. In 2018, Father moved to Colorado, while the children remained in Montana with Mother. After Father moved, the Department removed the children after receiving a report Mother was intoxicated when picking the children up from daycare and had been incarcerated for PFMA on her partner. The children were later returned to Mother’s care, before again being removed after another domestic violence incident the home. Father did not want the children to be placed with him at that time. Several months later, Father moved to have the children placed in his care and to dismiss the case. The Department initially objected, but later moved to place the children with Father and dismiss the case. Mother objected. The District Court granted the Department’s motion, placed the children in Father’s care, and dismissed the case. Mother appealed.
On appeal, the Supreme Court held the District Court correctly placed the children in Father’s care and granted the motion to dismiss pursuant to § 41-3-438(3)(d), MCA. Consistent with the mandates of In re E.Y.R., 2019 MT 189, 396 Mont. 515, 446 P.3d 1117, and In re B.H., 2020 MT 4, 398 Mont. 275, 456 P.3d 233, the Department conducted further investigation of Father after concerns about his ability to safely parent the children were raised. After its investigation, the Department concluded Father could safely parent and moved to dismiss. Dismissal was proper because Father was a non-offending, non-custodial natural parent, and he did not pose an imminent safety risk to his children.
Points of interest: dependent neglect, child custody
2021 MT 56
The Department removed two children from Mother due to her inability to care for infants. Mother has developmental delays stemming from Fetal Alcohol Spectrum Disorder, a disability under the ADA. As part of her treatment plan, Mother engaged in Parent Child Interaction Therapy (PCIT) and Theraplay with a therapist experienced in working with parents with FASD. She also attended individual counseling with a separate therapist also experienced in working with individuals with FASD. Both opined that after extensive sessions with Mother she was still unable to safely parent the children. The District Court terminated Mother’s parental rights under § 41-3-609(1)(f), MCA.
On appeal, Mother argued the Department and District Court failed to provide her with reasonable accommodations under the ADA and did not provide her with active efforts under ICWA. The ADA applies to dependent neglect cases and the Department is obligated to provide parents with reasonable accommodations. However, the requirements of Title 41, chapter 3, MCA, to provide reasonable efforts and to develop an appropriate individualized treatment plan are consistent with the ADA requirements for reasonable accommodations. If the Department fails to take into account a parent’s limitations or disabilities and make reasonable accommodations, then it did not develop an appropriate treatment plan or make reasonable efforts. The District Court is not required to make specific findings under the ADA when terminating parental rights. Here, the District Court did not abuse its discretion because the Department provided Mother with services that took her disability into account and Mother never requested additional or different services. Mother’s providers opined there are no accommodations that could result in Mother obtaining the requisite parenting skills to meet the children’s daily needs.
Points of Interest: dependent neglect, active efforts, ADA, accommodations
2021 MT 65
In 2003, Rodriguez raped a 15-year-old girl, J.S. J.S. did not disclose the rape at the time, but later disclosed that Rodriguez had raped her after seeing a Facebook post about Rodriguez’s business in 2014. Rodriguez was charged with felony sexual intercourse without consent. At trial, his counsel questioned Jean McAllister, the State’s blind expert regarding trauma, victim responses to traumatic events, and the nature of sexual assault, but did not ask McAllister questions to elicit false reporting statistics during cross-examination. Rodriguez was convicted. On appeal, Rodriguez asserted his counsel was ineffective for not eliciting false reporting statistics from McAllister.
On appeal, the Supreme Court held Rodriguez’s allegations of ineffective assistance of counsel were not record-based and were therefore not appropriate for review on direct appeal. The Court lacked “a sufficient record to determine ‘why’ counsel for Rodriguez did not attempt to elicit false reporting statistics from McAllister on cross-examination,” and further noted counsel may have had a plausible justification for not asking those questions. Because the record did not answer “why” counsel did not ask about false reporting statistics, the claims would be more appropriately raised in a petition for postconviction relief.
Points of interest: criminal law, ineffective assistance of counsel
2021 MT 66
District court’s failure to obtain written confirmation of child’s enrollment eligibility directly from an Indian Tribe did not constitute reversible error.
The Department became involved in D.D.’s life when the child tested positive for marijuana at birth. After an in-home safety plan was unsuccessful, the Department filed for emergency protective services, adjudication of the child as a youth in need of care, and temporary legal custody due to concerns of parents’ drug use and domestic violence on Father’s part. After Father failed to progress on his treatment plan and was convicted of PFMA and incarcerated, the Department petitioned to terminate his rights. Father appealed, asserting the court committed reversible error by not obtaining written confirmation directly from the Turtle Mountain Band of Chippewa on whether the child could be enrolled in the Tribe.
On appeal, the Supreme Court held the District Court did not commit reversible error by not obtaining written confirmation of the child’s enrollment eligibility directly from the Tribe. The Child’s maternal grandfather was an enrolled member of the Tribe, so the Department contacted the Tribe to determine if Mother was eligible for enrollment and to notify the tribe of the proceedings in the event ICWA applied. The Tribe confirmed neither Mother nor Child was eligible for enrollment. The Department then notified the court through an affidavit of a CPS worker and during testimony at the termination hearing. Father did not object to a lack of written documentation directly from the Tribe at the time, and the Supreme Court determined that, under the circumstances, Father did not demonstrate that the failure to require the Department to file a written confirmation from the Tribe resulted in a manifest miscarriage of justice, compromised the integrity of the legal process, or would have resulted in a more favorable outcome in the absence of the asserted error.
Points of Interest: dependent neglect, ICWA, tribal enrollment
2021 MT 67
Kaul v. State Farm Mut. Auto. Ins. Co.
In 2013, the Kauls purchased an RV which they insured with State Farm. In 2017, the RV’s roof was torn during a trip to Arizona. The Kauls did not notice the damage at the time and returned to Montana, where they stored the RV outside, uncovered, at a storage facility in Missoula. On April 20, 2017, it rained .08 inches. About a month later, the Kauls discovered bubbling on the outer layer of the passenger-side wall. In June 2017, during a trip to Idaho, the Kauls discovered more bubbling. They then discovered the tear in the roof and performed a temporary repair. The Kauls took the RV to a shop in Oregon, where they had the roof and the wall repaired. State Farm paid for the roof repair under the Kauls’ insurance policy, which required covered damage to be “direct, sudden, and accidental,” but denied coverage for the wall. The Kauls filed suit against State Farm. The parties filed cross-motions for partial summary judgment, and the District Court granted State Farm’s motion, finding the water damage to the wall of the RV was not covered by the insurance policy.
On appeal, the Supreme Court reversed the District Court’s grant of partial summary judgment to State Farm and remanded for entry of partial summary judgment in the Kauls’ favor. The Court reviewed the policy’s plain language and determined the water damage which occurred on April 20, 2017, was “sudden” damage. The damage from the rainstorm was “damage” even though it was not visible until the bubbling was observed a month later, because the RV lost over $10,000 in value as the wall of the RV would need to be removed for repair after as little as a gallon of water entered the walls. State Farm never contended that the water damage was not “direct” or “accidental,” so it was required to cover the damage under the policy’s plain language as “direct, sudden, and accidental” damage.
Points of Interest: insurance, insurance policies
2021 MT 68
DeBuff v. Mont. Dep’t of Nat. Res. & Conservation
DeBuff applied for a permit with DNRC, but the permit was denied without prejudice in a 1987 Final Order. DeBuff began exploring reapplication in 2013, when he hired an engineer and hydrologist. DeBuff submitted a renewed application for a beneficial water use permit in 2016. DNRC delivered a deficiency letter to DeBuff, stating concerns of the proposal’s impact on downstream water rights, based on DNRC’s belief that there was a continuous aquifer under DeBuff’s property. DeBuff responded with data indicating that the southern aquifer was ephemeral and not connected to the northern source, and suggested DNRC apply evapotranspiration analysis. DNRC maintained the aquifer was continuous, relying on contrast photos. DNRC dismissed DeBuff’s evapotranspiration evidence without analysis.
DeBuff provided more evidence that the aquifers were not connected, but also provided an alternative water budget that incorporated evapotranspiration to offset any loss if the aquifer was continuous. DNRC determined the evapotranspiration analysis would mitigate a greater loss than DeBuff anticipated, but again dismissed evapotranspiration. DeBuff then amended the application to reach a net zero water depletion according to DNRC’s figures. Notwithstanding, DNRC issued a preliminary determination to deny the application. In January 2019, a hearing officer issued a Final Order upholding DNRC’s denial. The Final Order did not address the water budget analysis or evapotranspiration.
DeBuff petitioned the Water Court for judicial review. The Water Court ruled in DeBuff’s favor, concluding that DNRC improperly relied on a geologic map and 1987 Final Order and its failure to analyze and rejection of water budget and evapotranspiration evidence was arbitrary and capricious. DNRC appealed.
The Supreme Court affirmed the Water Court’s finding that failure to address the water budget and evapotranspiration analyses was arbitrary and capricious. This was substantial evidence, meritorious of examination, that DeBuff’s application would not impact downstream rights. The Supreme Court reversed the Water Court regarding consideration of the map and prior final order, reasoning that the information may be relied upon despite not being in the record because it was generally known and relied upon by both parties.
Points of interest: water law, natural resources, DNRC permits
2021 MT 70
Shepherd v. State ex rel. Dep’t of Corr.
Shepherd was terminated from employment at the Department of Corrections on August 10, 2018. Pursuant to DOC’s internal grievance procedures, she filed a grievance that day, asserting her discharge was wrongful due to violations of certain department policies. A hearing was conducted by the Department of Administration on January 7, 2019. On February 14, 2020, DOA issued a Final Administrative Decision concluding that Shepherd’s termination was justified.
Twenty-six days after the Final Administrative Decision was issued, Shepherd filed a complaint in District Court against DOC. DOC moved for summary judgment, arguing Shepherd’s claim was time-barred under § 39-2-911, MCA. The District Court granted summary judgment in DOC’s favor and dismissed the complaint.
On appeal, the Supreme Court reversed and remanded. Under § 39-2-911, MCA, an action for wrongful discharge must be filed within one year after the date of discharge, but if an employer maintains written internal grievance procedures, the limitation period is tolled until the procedures are exhausted. Here, the limitation period was tolled from the date Shepherd initiated the grievance procedures until the Final Administrative Decision was issued. Thus, the limitation period on her WDEA claim effectively began on February 14, 2020. Shepherd timely filed in District Court well within the one-year statute of limitations.
Points of Interest: administrative law, statute of limitations, wrongful discharge
2021 MT 71
Dannels was injured while working in a BNSF railroad yard. Dannels sued BNSF under the Federal Employers’ Liability Act, alleging BNSF negligently assigned him physical work activities that caused cumulative trauma to his lower back and spine making him susceptible to permanent disability. A jury returned a verdict in Dannels’ favor, finding BNSF 100% at fault.
After the verdict, but before the final judgment, Dannels requested BNSF pay his lost wages. BNSF refused, and Dannels filed claims for insurance bad faith and punitive damages. Dannels asserted BNSF violated Montana common law and statutory duties of good faith and fair dealing by failing to advance his lost wages, failing to reasonably investigate and adjust his claim, and failing to offer him alternative or permanent employment.
Before trial on the state law claims, BNSF moved to preclude Dannels from offering evidence or testimony at trial regarding BNSF’s claims-handling or reporting. BNSF argued FELA does not require advance payment of wages or offering alternative or permanent employment as part of its claims’ settling practices. Before the court ruled on the motion, the parties stipulated to entry of final judgment allowing the case to be appealed.
The Supreme Court determined that a self-insured railroad’s bad faith claims handling conduct is distinct from the negligent cause of the occupational injuries at issue in the underlying FELA claim; therefore, FELA did not pre-empt the injured employee’s right to seek redress under state bad faith laws.
Points of interest: workers’ compensation, FELA, insurance bad faith
2021 MT 72
Lesage v. Twentieth Judicial Dist. Court
Lesage was arraigned on December 10, 2020. Eight days later, her attorney mailed a motion to substitute the presiding judge to the Clerk of District Court, but failed to enclose the statutorily mandated filing fee. The Clerk returned the motion by mail without enclosing an explanation of the reason for return. On December 23, counsel received the returned motion, contacted the Clerk, and learned that the Clerk had returned the motion for lack of filing fee. Counsel then e-mailed the motion and placed a check for the filing fee in the mail. Although there is no record of when the Clerk received delivery of the filing fee, the Clerk date-stamped the motion for filing on December 28, 2020. The District Court then denied the motion as untimely. Lesage then petitioned for a writ of supervisory control.
The Montana Supreme Court denied the petition, determining that to be timely, Lesage would have needed to file the motion, including the filing fee, no later than December 21. The Court rejected Lesage’s argument that she was entitled to a three-day extension for mailing as this applies only to service of process. The Court further noted that § 3-1-804(3), MCA, provides that a motion for substitution is “not effective for any purpose” unless the filing fee is paid. Therefore, the substitution motion was not timely filed and effective until receipt of the payment, which indisputably occurred after December 21. The Court further rejected Lesage’s equal protection challenge; even assuming arguendo that privately represented defendants and defendants represented by a public defender are similarly situated, a rational basis can be discerned for disparate treatment of those classes.
Points of interest: supervisory control, substitution
2021 MT 74
Supreme Court will review denial of an M. R. Civ. P. 62.1 motion as though it serves as a denial of an M. R. Civ. P. 60(b) motion on the merits.
In 2015, someone shot Moore’s boat. Moore believes Frost is responsible and in 2018, he filed a lawsuit alleging several claims against Frost. Frost moved for summary judgment, which the District Court granted. Moore appealed the summary judgment ruling to the Supreme Court. While his appeal was pending, Moore filed an M. R. Civ. P. 62.1 motion for an indicative ruling in the District Court, alleging he discovered “new evidence” Frost shot his boat after Moore’s daughter told Moore that a friend told her he had given Frost a rifle and bullets, that Frost had been planning to shoot the boat, and that Frost later told that friend he “did it.” The District Court denied the Rule 62.1 motion.
On appeal, the Supreme Court noted it had not previously articulated the standard of review for the denial of a Rule 62.1 motion. Noting that Montana’s Rule 62.1 and the Federal Rule 62.1 were identical, and therefore interpretation of the federal rule has persuasive application to the state rule, the Court agreed with the Ninth Circuit and other federal circuit courts that the denial of a Rule 62.1 motion should be reviewed as though it serves as a denial of a Rule 60(b) motion on the merits. Because Moore was alleging newly discovered evidence, the standard of review was for a manifest abuse of discretion. The Court found the District Court did not manifestly abuse its discretion by denying Moore’s Rule 62.1 motion because the “new evidence” was both inadmissible and not obtained with reasonable diligence.
Points of interest: civil procedure, new evidence
2021 MT 75
Public Land/Water Access Ass’n v. Robbins
District Court properly applied the “record as a whole” standard to conclude that a disputed road was private, where the record was devoid of any documentation showing the statutory petition process for public roads occurred and the historic evidence did not demonstrate that the road had been made public. There was no public prescriptive easement over the road where witness testimony established only seasonal, recreational use.
Public Land/Water Access Association, Inc. (“PLWA”), appealed the District Court’s judgment following a bench trial concluding that a Fergus County road was private because PLWA had not proven the existence of a public road by petition or by prescriptive easement. PLWA argued on appeal that (1) the District Court failed to apply the Reid standard to PLWA’s claim the road was public by petition, and (2) there was no substantial credible evidence to support the court’s conclusion as to either theory.
The Supreme Court affirmed, concluding the District Court did not err in concluding the road was private. The District Court properly applied the “record as a whole” standard from Reid v. Park County, 192 Mont. 231, 234, 627 P.2d 1210, 1212 (1981); PLWA presented historic maps allegedly showing the disputed road, but the record was devoid of any petition or road viewers report, any official commission action opening the road, any easements granted by landowners or compensation paid to landowners, or any public hearings. Further, substantial credible evidence supported the findings as to both the theories of public road by petition and prescription.
Points of Interest: property, easements and roads
2021 MT 76
District court abused its discretion by imposing a suspended sentence after the State did not present sufficient evidence to overcome the presumption in favor of a deferred sentence for a first offense criminal possession of dangerous drugs.
Officers responded to Doubek’s house after a report of shots fired. Doubek answered the door and reported a preoccupation with bugs in her house. Doubek denied any gunshots and walked away into her residence. She picked up a methamphetamine pipe off her end table and continued walking before being stopped and handcuffed. The officers searched her residence and found no other drugs, outside of the pipe, and no evidence that a gun had been fired. Doubek was charged with, and convicted of, felony criminal possession of dangerous drugs. During the sentencing hearing, law enforcement testified to previous contacts Doubek had with them, none of which resulted in criminal charges. Doubek testified to her embarrassment about the incident and noted improvement in her mental health since that time. The District Court sentenced Doubek to a four-year suspended DOC commitment.
On appeal, the Supreme Court held the District Court abused its discretion by sentencing Doubek to a suspended sentence rather than a deferring imposition of sentence as sufficient evidence was not presented to overcome the presumption Doubek was entitled to a deferred imposition of sentence pursuant to § 45-9-102(4), MCA (2017). The evidence presented at sentencing had neither “substantial aggravating circumstance[s]” related to the offense nor evidence of “post-offense, presentence conduct indicating continued criminal propensity” to overcome the presumption Doubek was entitled to a deferred imposition of sentence.
Points of Interest: sentencing
2021 MT 82
Buckley v. W. Mont. Cmty. Mental Health Ctr.
Employer satisfied its burden to demonstrate it had a legitimate business reason constituting good cause for terminating its program manager and that it did not violate the express provisions of its written personnel policies.
Buckley accepted a position as a program manager for two WMMHC adult group homes. WMMHC provided Buckley with a document describing her responsibilities and job functions, which she acknowledged and signed. During her time as program manager, Buckley instilled a Level System, which provided that clients would lose privileges if they earned a certain number of demerits in a week. In April 2019, multiple reports were received regarding Buckley’s behavior and her Level System. Buckley was informed of the grievances and impending investigation. In May 2019, Buckley received a notice of termination. Buckley met with WMMHC Human Resources to appeal her discharge utilizing the three-step internal disciplinary grievance procedure. WMMHC upheld their decision to terminate. Buckley filed an action in District Court, which granted summary judgment in WMMHC’s favor.
On appeal, the Montana Supreme Court affirmed the District Court, concluding that WMMHC had broad discretion under the Wrongful Discharge from Employment Act to determine whether Buckley performed satisfactorily. WMMHC lost confidence and trust in her ability as a managerial employee, and thus had a legitimate business reason to justify the discharge. Although the burden shifted to Buckley to prove her discharge was for other reasons, she failed to do so, and this Court found WMMHC has genuine and real concern that Buckley’s continued employment would constitute immediate harm to their business interests. Regarding her personnel policy claim, the Court determined WMMHC correctly terminated Buckley based on the policies contained within employment handbook.
Points of interest: wrongful discharge
2021 MT 83
When District Court stays execution of the judgment while appeal is pending, the stay is lifted when remittitur from the Supreme Court is issued and when the appeal is no longer pending. The State may not seek to execute a sentence over a year after it has expired.
Defendant entered a no contest plea to misdemeanor DUI, reserving the right to appeal the denial of a motion to suppress. The District Court sentenced him to six months incarceration with all but 24 hours suspended. The court “stay[ed] execution of the judgment while his appeal is pending.” The Supreme Court affirmed the denial of the motion to suppress and issued remittitur. District Court issued notice of remittitur to the parties on October 17, 2017. The State moved to lift the stay and set a status hearing on the case 552 days after the notice of remittitur was issued. The District Court granted the motion to lift the stay over Defendant’s objections.
On appeal, the Supreme Court held the original stay lifted on its own terms when the appeal was no longer pending—when remittitur was issued. The onus was on the State to act swiftly upon remittitur to seek Defendant’s voluntary surrender or an additional order of commitment from the District Court. It failed to act during the six-month sentence and the State could no longer execute the terms of the sentence 552 days later. The District Court erred in granting the State’s motion to lift the already expired stay and re-imposing the already expired sentence.
Points of interest: stays, sentencing
2021 MT 85
Because police officers were acting in a community caretaking role, they did not unconstitutionally enter a residence when the occupant told dispatchers he was suicidal, responding officers could not confirm his safety, and the officers limited their intrusion to the minimum necessary to confirm his safety.
Frazier called police, alleging he had been assaulted at a party. Officers responded to Frazier’s residence and found him in an intoxicated, highly emotional state. The officers learned that party guests took Frazier home after he had become intoxicated and disruptive. After the officers left, Frazier called dispatch and threatened suicide. The same officers responded and attempted to make contact with Frazier. Out of the officers’ sight, Frazier yelled at the officers to leave. One officer unsuccessfully attempted to obtain additional information to justify entry but Officer Miller pushed the residence’s door open. Frazier appeared with a gun to his head, begged Officer Miller to shoot him, then started to turn his gun on Miller while threatening “suicide by cop.” Officer Miller shot and killed Frazier.
Frazier’s estate sued Miller, claiming he violated Frazier’s right to privacy and conducted an unconstitutional search. The District Court granted summary judgment in Miller’s favor on this theory, concluding that no reasonable person would conclude that law enforcement was not authorized to execute a warrantless entry under the circumstances. The Estate proceeded to jury trial on assault, wrongful death, and negligence counts. The court gave the jury a special verdict form regarding justifiable use of force. Because the jury found Miller’s use of force justified, they returned a defense verdict.
The Supreme Court affirmed on appeal. The officers were functioning in their “community caretaking” role when responding to Frazier’s second call, and Miller’s intrusion was the minimum necessary to confirm Frazier’s safety. The welfare check was “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute” and thus did not violate Frazier’s constitutional rights. The Court also concluded that the special verdict forms used at trial properly instructed the jury to first consider Miller’s justifiable use of force defense and then the Estate’s negligence claim.
Points of Interest: warrantless entry, community caretaking, search and seizure
2021 MT 86
Father’s testamentary appointment of guardianship to his wife was not effective to give her priority for guardianship over grandparents when the natural mother was living and had not been adjudicated as incapacitated. Based on the mother’s consent and children’s best interests, the District Court acted within its discretion when it appointed grandparents as temporary guardians. The court did not abuse its discretion by ordering contact with stepmother pending further proceedings, but adjudication of parental or visitation rights would have to be a separate proceeding under Title 40.
Father of children J.S.M. and G.R.M. died four years after he and the children’s birthmother separated and two-and-a-half months after he married Carol. Before and during his relationship with Carol, the children’s grandparents had an extensive role in their lives; Carol also provided significant care. Birthmother had not seen the children for about two years. The parenting plan entered in birthparents’ dissolution provided restricted parenting for Birthmother, and she acknowledged she had essentially disappeared from children’s lives. After Father died, Birthmother consented to guardianship by Grandparents. However, Father’s will included a testamentary appointment of Carol as guardian, expressing his wish that none of his family be so designated.
Grandparents and Carol both petitioned for guardianship. The District Court appointed Grandparents as temporary guardians. It also entered temporary orders with a residential schedule. Both parties appealed.
The Supreme Court held that Father’s testamentary appointment did not vest Carol with guardianship because Birthmother is alive and competent. The Court rejected Carol’s argument that § 72-5-222(2), MCA, entitled her to priority. Even though Birthmother had not parented the children for some time, her parental rights were not suspended and her surrender of the children to Father did not limit her rights as a parent.
On Grandparents’ cross-appeal, the Court held that the District Court did not abuse its discretion by limiting its order to a temporary guardianship. The court could not enter a parenting plan in a guardianship action but did not abuse its discretion by maintaining contact with both parties during the pendency of the action. The entry of a parenting plan upon the death of a parent is governed by § 40-4-221, MCA, which allows the surviving spouse to seek a parenting plan; the action must name the surviving parent as a party. Once the guardianship issue is resolved by permanent appointment, the determination of any further parenting or visitation interest must be handled through a separate petition for parenting plan in accordance with § 40‑4‑221, MCA.
Points of interest: guardianship, parental rights, grandparents’ rights
2021 MT 87
District Courts can interpret or clarify a prior judgment to resolve an ambiguity, imprecision, or uncertainty to fully effect the judgment, but this interpretation or clarification cannot materially alter the original meaning or effect of the prior judgment.
This case was the latest installment in a decades-long easement dispute between the VanBuskirks and the Gehlens. In 1987, the parties reached a stipulated settlement wherein the Gehlens’ predecessors granted the VanBuskirks’ predecessors “the right to use the path across that real property” that was described and depicted in a document attached as Exhibit C. VanBuskirk property owners continuously used this road to access their property until late 2013 or early 2014, when the Gehlens installed a locked gate across the road. This led to litigation and ultimately to the District Court granting summary judgment, which the Montana Supreme Court affirmed, in favor of VanBuskirks’ continued use of the road.
In 2017, the Gehlens plowed over the historical course of the road, leaving a new unbladed, unseeded path. The ensuing litigation culminated in the District Court sua sponte ordering a survey of the road description as set forth in the original stipulation. Surprisingly to all parties, the survey of the description provided in the stipulation deviated substantially from the historical course of the road. Accordingly, the VanBuskirks petitioned the court to amend the 2016 judgment to match the path as drawn and depicted in Exhibit C of the 1987 stipulation, which the District Court denied in 2020.
On appeal, the Montana Supreme Court determined that the District Court did not err in sua sponte ordering VanBuskirks to professionally survey the description provided in Exhibit C of the 1987 stipulation. However, the District Court erred in failing to clarify the 2016 judgment in accordance with the law of the case stating that “[i]n accordance with the consistent, clear, and unambiguous language of the 2016 judgment, the 1987 Stipulation granted an express easement across the servient tenement as generally depicted in Exhibit C and consistently more particularly described in the accompanying metes and bounds description.”
Points of interest: judgments, property, easements and roads
2021 MT 93
Special Master’s Determination regarding the disposition of personal property in the possession of a receiver is appealable as a final decision under M. R. App. P. 6(3)(g).
PF2 intervened in a case for the limited purpose of seeking return of personal property that was in a receiver’s possession. The District Court appointed an attorney as a “special master” to resolve the dispute. After the attorney issued a Special Master’s Determination, PF2 filed an objection with the District Court, but also appealed from the Determination before the court ruled.
The Receiver moved to dismiss PF2’s appeal, arguing that the matter was not properly before the Supreme Court because the Determination was not a “final decision.” The Court denied the motion to dismiss, first determining that the appointment was in fact a “special master” and then holding that pursuant to the authority of a special master under § 3-5-113, MCA, the Determination was appealable under M. R. App. P. 6(3)(g) as it was a final decision on an order giving direction with respect to a receivership.
Points of Interest: special master, appellate procedure, M. R. App. P. 6(3)
2021 MT 94
Montana’s Privacy in Communications statute is not unconstitutionally overbroad as it does not criminalize protected speech, and the statute may encompass threats to inflict harm on a third party when the threat is communicated to the recipient with one of the purposes enumerated within the statute.
Lamoureux called his ex-wife’s business and threatened her employee after she refused to provide him with the phone numbers of his ex-wife and ex-father-in-law. He called his ex-father-in-law on two occasions and informed him each time that he intended to kill his ex-wife. During the second call, he also stated that he intended to burn down a building the ex-father-in-law owned. The State charged Lamoureux with three felony counts of Privacy in Communications. Lamoureux moved to dismiss. He argued that his first phone call to his ex-father-in-law did not violate the statute because the threatening communication was about a third person. He further argued that the statute was overbroad and violated his constitutional right of free speech. The District Court denied the motion and Lamoureux was convicted by a jury.
On appeal, Lamoureux argued that the District Court erred in denying his motion to dismiss and further argued that at trial, the State failed to prove an element of the offense on the third count because it did not prove that either he or the recipient was in Montana and the District Court failed to fully instruct the jury. The Montana Supreme Court affirmed. The Court concluded that Lamoureux’s threat to kill his ex-father-in-law’s daughter fell within the plain meaning of a “threat to inflict injury” as set forth in the statute. The Court declined Lamoureux’s invitation to overturn precedent which rejected his constitutional arguments. The Court concluded that the State offered ample circumstantial evidence to prove that Lamoureux was in Montana when he called his ex-father-in-law, and the determined the jury instructions fully and fairly instructed the jury on the law applicable to the case.
Points of Interest: constitutional law, privacy in communications
2021 MT 99
Comm’r of Political Practices for Mont. v. Mont. Republican Party
Commissioner of Political Practices lacked authority under § 13-37-111, MCA, to issue a subpoena for document production relevant to an election law violation investigation.
The Montana Democratic Party filed a campaign finance complaint with the COPP, alleging the Montana Republican Party had failed to comply with the reporting and disclosure requirements of § 13-37-229, MCA. During investigation, the COPP issued a subpoena under § 13-37-111, MCA, commanding the Republican Party to produce documents related to its campaign expenditures. The Republican Party did not comply. The COPP petitioned the District Court for declaratory judgment and injunctive relief, requesting the court enforce the subpoena. The parties filed cross-motions for summary judgment. The District Court granted the Republican Party’s motion for summary judgment and dismissed the petition, holding the COPP did not have authority to issue documentary subpoenas.
The Supreme Court affirmed. The plain language of § 13-31-111, MCA, does not provide the COPP authority to issue subpoenas for production of documents. The statute provides that the COPP may “require the production” of documents, but does not expressly provide subpoena power to require it. The COPP may compel production of documents via court order pursuant to § 13-35-108, MCA, which is the remedy the Legislature provided for enforcement of the election laws.
Points of interest: elections, campaign finance, subpoenas
2021 MT 100
Heringer v. Barnegat Dev. Grp., LLC
The voluntary cessation exception to mootness does not apply when there is a lack of concrete evidence suggesting the defendant will perpetrate a substantially similar wrong.
Barnegat Group purchased the development rights to a condominium development. Due to financial issues with the existing owner’s association and unaddressed structural issues in two of the units, Barnegat filed an amendment to the declarations governing the development in an attempt to put new condominiums into a separate condominium owner’s association. Barnegat told the existing owners that it hoped the arrangement would be temporary and once those two issues were resolved it would rescind the amendment. The existing owners filed suit for a declaration that the amendment was invalid, null, and void. Before answering the complaint, Barnegat rescinded the amendment. Barnegat then filed both its answer and a motion for summary judgment that the case was moot. The owners opposed the motion, arguing the court should apply the voluntary cessation exception to the mootness doctrine. In its reply brief, Barnegat explained the financial issues had been resolved, the structural issues were being addressed, and it no longer had reason to split the association now or in the future. The District Court concluded the case was moot and dismissed the action.
On appeal, the Supreme Court affirmed, but clarified that its holding in Havre Daily News, LLC v. City of Havre, 2006 MT 215, 333 Mont. 331, 142 P.3d 864, does not preclude the application of the voluntary cessation exception when there has been only a single incident of the offending conduct. Rather, the court must consider the circumstances of the case and determine whether concrete evidence suggests the defendant will perpetrate a substantially similar wrong.
Points of Interest: mootness
2021 MT 103
No specific unanimity jury instruction was required where the charging statute did not include two distinct crimes and the two acts alleged by the State were so closely related in time, location, and nature as to form the same course of conduct and constitute a single continuous running offense.
Police arrived as Wells attempted to start his truck, which had seemingly run out of gas in the middle of a road as he and an acquaintance were leaving a bar. Wells was charged with DUI under § 61-8-401, MCA, which provides that it shall be unlawful for a person under the influence of alcohol to “drive or be in actual physical control” of a vehicle on public roadways. At trial, Wells contended that his acquaintance had driven the truck from the bar to the point where it had come to a stop. However, the prosecutor argued to the jury that Wells could be convicted either for driving or for assuming “actual physical control” by attempting to start his vehicle. The trial court rejected Wells’ proposed specific unanimity jury instruction which would have required the jury to unanimously agree that Wells either drove the vehicle or assumed “actual physical control.”
On appeal, Wells argued that the specific unanimity instruction should have been given because both the statute and the prosecutor’s theory of the case encouraged a jury to convict Wells without being unanimous as to whether Wells had driven the truck from the bar or had assumed “actual physical control” when he attempted to start it as police arrived. Addressing the statute, the Supreme Court concluded that the language to “drive or be in actual physical control” did not contain two distinct crimes, as the act of “driv[ing]” was simply one means by which an individual might gain “actual physical control” of a vehicle. Addressing the prosecutor’s theory of the case alleging multiple bad acts, the Court found that Wells’ two alleged acts of (a) driving from the bar and (b) assuming actual physical control by subsequently attempting to start the vehicle, were so closely related in time, location, and nature as to form part of the same course of conduct and be merged into a single continuous, running offense, rather than constituting two independent occurrences that would have required a specific unanimity instruction.
Points of interest: jury instructions, unanimity, DUI
2021 MT 104
Two isolated references to “jail” do not provide the same prejudicial effect as a jury seeing a defendant in restraints or prison clothes, and unauthorized use of a motor vehicle under § 45-6-308(1), MCA, is not a lesser-included offense of theft by possession of stolen property under § 45-6-301(3)(c), MCA.
Although the Defense attempted to keep Denny’s inmate status unmentioned to the jury, the State’s witnesses made two references that implicated Denny’s status. One witness stated he had had contact with Denny in “county jail.” The other witness identified an exhibit as “a jail visitation call.” Denny moved for mistrial on both occasions; the District Court denied the motions.
Denny was charged with theft by possession of stolen property under § 45-6-301(3)(c), MCA. Denny requested a jury instruction on unauthorized use of a motor vehicle under § 45-6-308(1), MCA, as a lesser included offense. The District Court refused the instruction.
Denny argued on appeal that witness testimony about a defendant’s incarceration status has a similar effect on a jury as restraints, which this Court has cautioned against. The Court concluded that the two references did not so impact the jury’s deliberations that it influenced every question submitted to the jury.
Furthermore, after comparing the elements of the offenses, the Court concluded that theft by possession of stolen property and unauthorized use of a motor vehicle are distinct offenses, each of which requires proof of at least one element that the other does not. Therefore unauthorized use is not a lesser included offense of theft by possession of stolen property.
Points of interest: jury, lesser-included offense
2021 MT 105
District Court abused its discretion in declaring a mistrial; thus, Newrobe’s convictions for sexual intercourse without consent and bail jumping were dismissed with prejudice.
Newrobe was charged with incest and bail jumping. Upon conclusion of the second day of trial, the court asked the parties to provide a definition for “descendant,” as it pertains to the incest statute. Before trial resumed, the court informed the parties that the trial would not proceed because the court reporter had suffered a heart attack or stroke and it was emotionally too difficult on the court. Without input from the parties, the court dismissed the jury and declared a mistrial. Newrobe objected and moved to dismiss with prejudice because the jury was impaneled and the State could not prove the elements of incest due to the “descendant” element. The State then filed an amended information changing the incest charge to sexual intercourse without consent. Newrobe again moved to dismiss asserting double jeopardy protections against the mistrial. The court denied his motions and concluded the trial was not barred by double jeopardy. Newrobe was ultimately convicted. On appeal he asserted the District Court abused its discretion in declaring a mistrial and erred in concluding that double jeopardy did not bar retrial.
The District Court declared a mistrial due to the unavailability of a court reporter and the emotional impact on the trial judge. Despite the clear and articulated objection by Newrobe that the State could not establish the existence of the familial relationship required to prove incest, and the fact that the State’s remaining two witnesses would not have corrected the fatal flaw in the State’s information, the court asserted there was manifest necessity to declare the mistrial. This Court concluded the court’s actions secured to the State a tactical advantage over the accused by allowing it to amend the charge to an entirely different offense, which, at its core, is the principle underlying the prohibition against placing a defendant “twice in jeopardy.” The District Court did not exercise great caution before declaring a mistrial, nor were the circumstances urgent, nor was it plainly obvious that only a mistrial would provide justice.
Points of interest: mistrial, double jeopardy
2021 MT 115
Petitioner could not challenge his sexual assault conviction via writ of habeas corpus, pursuant to § 46-22-101(2), MCA. State v. Hansen and Hardin v. State are overruled because they fail to distinguish between an illegal sentence and an invalid plea.
Gardipee pled no contest to felony sexual abuse of children pursuant to a plea agreement. The District Court sentenced him to 25 years with 10 suspended. Gardipee then petitioned for a writ of habeas corpus, relying on State v. Hansen, 2017 MT 280, 389 Mont. 299, 405 P.3d 625, and arguing that a no contest plea to a sexual offense is invalid. The State responded that Gardipee is procedurally barred to challenge his conviction, pursuant to § 46-22-101(2), MCA, and that his sentence is legal.
The Supreme Court determined Gardipee was challenging his conviction, not his sentence and denied his petition. The Court explained that a challenge to a conviction is more appropriate for a direct appeal, and since Gardipee did not pursue a direct appeal, he waived any challenge to his conviction. The Court further determined that in Hansen and Hardin v. State, 2006 MT 272, 334 Mont. 204, 146 P.3d 746, it had failed “to distinguish between an alleged error in a defendant’s conviction from an error rendering a sentence illegal,” and that an error in conviction does not necessarily lead to an invalid sentence. Here, the alleged error was a defective plea and not an illegal sentence.
Points of Interest: habeas corpus, sentencing
2021 MT 116
Hartshorne v. City of Whitefish
City’s ordinance did not constitute spot zoning because commercial use was specifically contemplated under the growth policy and the lot size had not changed since the policy’s inception. The uniformity requirement was not violated because all regulations within the property at issue were applied uniformly.
Developer purchased property in a largely residential area in Whitefish, with a zoning classification of “WR-4: High Density Multi-Family Residential.” The City designated the property as a “neighborhood center” under its growth policy, intended to be developed with 10% commercial use. The City later passed new Planned Unit Development regulations that prevented commercial development in areas where the prevailing use was residential. Developer sought a conditional use permit (CUP) for development of the property and to further define permitted uses. The City passed Ordinance 18-23, allowing a CUP for development of the property and identifying additional conditional uses for the property. The additional conditional uses were not identified as conditional uses allowed under the WR-4 zoning regulations.
Hartshorne sued the City and the City Council alleging Ordinance 18-23 constituted spot zoning and violated the uniformity requirement of § 76-2-302(2), MCA. Developer joined as a defendant. All parties moved for summary judgment. The District Court granted the City’s motion on all counts, except the claim that the Ordinance violated the uniformity requirement, on which it agreed with Hartshorne. The court declined to void the Ordinance and instead struck the conditional uses not otherwise existing under the WR-4 permitted uses. Developer appealed the District Court’s ruling on the uniformity requirement, and Hartshorne cross-appealed the District Court’s ruling on the spot-zoning claim.
The Supreme Court held that the City acted within its discretion in enacting Ordinance 18-23, which substantially complied with the Neighborhood Plan. The Court reversed on the uniformity ruling that struck the portion of the Ordinance that specified additional conditional uses. The plain language of the uniformity requirement as applied to the City’s zoning practices required uniformity only within the districts shown on the City’s official zoning map, not within the “use districts” identified in the City’s code.
Points of interest: property, municipal codes
2021 MT 120
McLaughlin v. Mont. State Legislature
Allegations of judicial misconduct involving the entire Judicial Branch required the adoption of the Rule of Necessity as the same disqualifying interest existed with respect to every judge in Montana. The issuance of a subpoena, nearly identical to the subpoena at issue, to all Justices was an attempt to manufacture a disqualifying conflict.
In Brown, et al., v. Gianforte, OP 21-0125, the Legislature, as an intervenor, and Respondent Governor Greg Gianforte raised concerns about a Montana Judges Association membership survey regarding SB 140 that McLaughlin facilitated. In that action, Court Administrator McLaughlin successfully quashed a subpoena the Legislature served on the Department of Administration. Subsequently, McLaughlin filed a Petition for Original Jurisdiction and Emergency Request to Quash/Enjoin Enforcement of Legislative Subpoena regarding the same subpoena, which was granted. The Legislature then issued a subpoena to each justice of the Montana Supreme Court seeking the production of all electronic and physical documents related to polls of the Judiciary by McLaughlin, pending legislation, and business conducted by the MJA using state resources. The Legislature then moved to disqualify all Justices of the Court.
The Court held that the Justices were not obligated to recuse themselves from considering McLaughlin’s Petition under § 3-1-803(1), MCA. From the pleadings and exhibits, it was clear that all judicial officers of the Judicial Branch were subject to the Legislature’s investigation. There were no cases in which any Justice sitting on this case was a party and it was not established that any Justice had an actual bias or any interest in the outcome of this litigation, apart from being a member of the Judicial Branch and the MJA. The Court rejected the Legislature’s argument that Justices should be recused from considering the matter because McLaughlin is an employee of the Judicial Branch; this would deny access to justice for members of the Judicial Branch and parties seeking relief from their actions, in contravention of Article II, Section 16, of the Montana Constitution. Consequently, the Court invoked the Rule of Necessity to ensure the administration of justice. Furthermore, the issuance of investigative subpoenas to each Justice of this Court, being nearly identical in scope to those issued to the Department of Administration, was an inappropriate attempt by the Legislature to manufacture a conflict. The motion to disqualify was denied.
Points of Interest: separation of powers, disqualification, subpoenas
2021 MT 121
Relevant evidence may be offered in testimony if the witness has personal knowledge or is reasonably relied upon by experts in forming opinions and inferences.
The State charged Brasda with felony possession of dangerous drugs. Although he first intended to change his plea to guilty, Brasda moved for a continuance after he learned that a State Crime Lab employee, Derek Thrush, who originally tested the evidence found on Brasda, admitted to stealing evidence from the State Crime Lab. Per the State’s request, Travis Doria retested the evidence for accuracy. The State moved to prohibit Brasda from offering evidence about Thrush. The court allowed Brasda to introduce evidence of Thrush’s involvement from non-hearsay sources. However, court disallowed Brasda’s cross-examination of Doria regarding Thrush because Doria had no firsthand knowledge of Thrush’s circumstances. Brasda was convicted at trial.
On appeal, the Supreme Court affirmed. First, Doria lacked personal knowledge of Thrush to testify at trial. As an expert witness, Doria could not testify regarding Thrush’s involvement in the chain of custody because it was not facts or data reasonably relied upon by experts in forming permissible expert opinions or inferences. Brasda could not counter Montana’s prima facie showing of chain of custody because his request was premised upon speculation about contamination.
Points of Interest: evidence, experts, chain of custody
2021 MT 122
City of Missoula v. Mt. Water Co.
Defendant was denied its right of substitution after reversal and remand.
Condemnation proceedings have been ongoing since 2014. After the Montana Supreme Court reversed and remanded a District Court ruling, Defendants moved to substitute under § 3-1-804(12), MCA. In 2018, the court denied the motion as untimely, concluding the reversal and remand did not squarely meet the description of reversal of a summary judgment in § 3-1-804(12), MCA. Defendants appealed.
On appeal, the Montana Supreme Court held that Defendants had the right of substitution under § 3-1-804(12), MCA. The plain language of the statute provides that when “a summary judgment . . . is reversed and the cause remanded,” each party is entitled to one motion for substitution of judge. The Court’s earlier decision reversed the District Court’s summary judgment ruling and remanded for further proceedings. Accordingly, all orders or rulings made by the District Court following the timely motion for substitution are vacated.
Points of Interest: substitution
2021 MT 123
Walden v. Yellowstone Electric Company
The requirement that livestock being trailed along a highway be preceded by “flag person escorts” pursuant to § 60-7-204, MCA, does not require the use of a flag person “equipped as required by the rules of transportation” as the term is used in a different title of the MCA.
A Yellowstone Electric Company employee drove a YECO truck into a herd of cattle the Waldens were trailing along a highway, killing several cows. The Waldens had placed bright orange-lettered “Caution Cattle Ahead” signs several miles in front of and behind the cattle. They had also placed a person in a pickup truck, with hazard lights flashing, on the side of the road a mile in front of the herd. The Waldens sued for the value of their lost livestock. YECO asserted a defense of contributory negligence, alleging the Waldens had failed to meet the requirement under § 60-7-204, MCA, that “flag person escorts” accompany cattle being herded on a Montana highway. The District Court granted summary judgment in favor of the Waldens.
On appeal, YECO argued that, though the term “flag person escorts” was undefined in Title 60, Chapter 7, the definition should be adopted from Title 61, Chapter 8, which requires a “flag person” to be “equipped as required by the rules of the department of transportation.” The Supreme Court upheld the District Court. The Court considered the definition’s self-limiting “as used in this chapter” prefatory language, the context of the two distinct Chapters, and the purpose of the Department of Transportation rules. The Legislature plainly did not intend to import the requirements of the DOT rules from the “Traffic Regulation” Chapter to the “Livestock on Highways” Chapter. Moreover, the term “flag person escorts” referred to adequate signaling rather than the use of actual flags, such that the District Court did not err in concluding that the Waldens’ efforts to warn oncoming traffic had complied with § 60-7-204, MCA.
Points of Interest: statutory interpretation, MDOT
2021 MT 124
Out-of-court statements admitted for the purpose of explaining the next steps of a criminal investigation may not be used as substantive evidence. Testimony relaying out-of-court statements ostensibly to explain the next steps of an investigation, but which go directly toward proving an element of the charged offense, may run afoul of M. R. Evid. 402 and 403.
Officers responded to a crash in which a car had struck a truck from behind. The car’s driver tested over the legal limit for alcohol. Among other charges, the driver was charged with negligent vehicular assault for injuring his passenger. Negligent vehicular assault requires the State to prove a person negligently operated a vehicle while under the influence of alcohol or drugs and caused bodily injury to another. During the State’s case-in-chief, the only evidence of the passenger’s injury was a trooper’s statement about his follow-up investigation, which the defendant objected to as hearsay. The District Court overruled the objection. The defendant moved to dismiss the negligent vehicular assault charge for insufficient evidence, arguing there was no evidence about the passenger’s injuries. The State argued it had presented evidence of injury through the trooper’s testimony. The District Court denied the motion to dismiss, reasoning that the trooper was entitled to explain the next steps of his investigation and the testimony provided evidence of injury to the passenger.
The Supreme Court reversed. The testimony of the trooper, admitted for the non-hearsay purpose of explaining the next steps of the investigation, could not be used as substantive evidence of the passenger’s injury. The non-hearsay purpose must be relevant under Rule 402 and the probative value of their non-hearsay purpose must not be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under Rule 403.
Points of Interest: evidence, hearsay, Rule 402, Rule 403
2021 MT 128
If a decision is not final for purposes of appeal because attorney fees and costs have yet to be determined, the Supreme Court may elect not to dismiss a premature appeal but to treat it as filed on the date on which the District Court enters its order on fees and costs.
In a parenting plan dispute, the District Court issued an order in which it granted Weigand’s motion for contempt and for sanctions. It found Cattaneo in contempt and ordered her to pay Weigand’s attorney fees and costs. Cattaneo then filed a Notice of Appeal in the Supreme Court.
Weigand moved the Supreme Court to dismiss the appeal. Weigand acknowledged that the contempt order was otherwise appealable under M. R. App. P. 6(3)(j), but asserted that it was not a “final decision” because the court had not determined attorney fees and costs. Cattaneo argued that the Court should not dismiss the appeal but should treat it as premature and deem the matter submitted on the date of the District Court’s determination of attorney fees and costs as provided in M. R. Civ. P. 58(e). The Court concluded dismissal was not warranted and ordered Cattaneo to notify the Court upon the District Court’s ruling on attorney fees and costs.
Points of Interest: appellate procedure, M. R. App. P. 6(3), Rule 58(e)
2021 MT 129
Assignment of strict liability in a prior case can collaterally estop the liable party from bringing negligence and inverse condemnation claims against a third party in subsequent litigation if the elements of causation and damages underpinning those claims were previously litigated.
Brishkas’ private pond overflowed and released nearly 4.5 million gallons of water downslope, damaging Coveys’ property. In a previous, related matter, Coveys sued Brishkas for damages caused by the breached pond. Brishkas sought to defend on a theory that MDT caused the pond to breach its banks through improvements made to an adjacent road. However, damages were awarded to Coveys after the District Court found Brishkas strictly liable for damages caused by the breach (affirmed in Covey v. Brishka 2019 MT 164). Brishkas then asserted inverse condemnation, negligence per se, negligence, and nuisance claims, and attorney fees and costs against MDT. The District Court granted summary judgment in favor of MDT on all claims, concluding Brishkas were collaterally estopped from bringing these claims.
On appeal, the Montana Supreme Court affirmed, concluding that the assignment of strict liability in the earlier litigation precluded Brishkas’ ability to seek damages from MDT.
Points of Interest: torts, strict liability, damages
2021 MT 130
For an entrapment by estoppel defense, the defendant must reasonably believe its actions are lawful because of affirmative statements from an authorized government official.
Animals of Montana operated under a roadside menagerie permit that required it to seek authorization and an indemnity agreement from Fish, Wildlife, and Parks to take any animal offsite, to have a firearm or tranquilizer available any time an animal was taken offsite, and to keep the offsite animal within an electrified barrier. FWP received a complaint that Animals conducted an unlawful offsite photography session with a wolf. Animals admitted that it conducted the session, did not have a tranquilizer gun there, and had not set up an electrified barrier. After a subsequent onsite inspection FWP found additional violations, including insufficiently secured cages, cages without sun shelter, unlocked padlocks, insufficient fresh water, and unsanitary and/or cramped cages. FWP issued a notice of revocation of permit and Animals requested an administrative hearing. The hearing officer determined FWP established 22 violations and FWP issued a final order revoking AMI’s permit. On petition for judicial review, the District Court affirmed FWP’s final order.
On appeal to the Supreme Court, Animals argued that the affirmative defense of entrapment by estoppel prevented FWP from revoking its permit because FWP previously had given Animals an opportunity to correct violations before taking corrective action and FWP did not give Animals an opportunity to correct the violations this time. The Court held that the defense of entrapment by estoppel did not apply in this case because Animals did not believe its actions were lawful actions. As recognized in the federal courts, the defense requires the defendant to show an authorized government official, who had been made aware of all the relevant facts, affirmatively told the defendant the proscribed conduct was permissible, and the defendant reasonably relied on the false information.
Points of Interest: entrapment by estoppel, affirmative defenses
2021 MT 148
Trial court erroneously admitted a video-recorded forensic interview of the child when it did not qualify as either prior consistent or prior inconsistent statements, but the error did not prejudice the defendant’s substantial rights. Section 45-5-625(4)(b), MCA, mandating lifetime GPS monitoring for sexual abuse of a minor, is constitutional because a person guilty of sexual abuse of a minor is subject to a mandatory 100-year sentence with the “practical effect” of a life sentence. Even if released early, the offender is subject to state supervision, and GPS monitoring is permissible during that period.
During Smith’s trial for sexual abuse of a minor, the victim testified, and her video-taped forensic interview was shown to the jury. The State argued that the interview was admissible under either M. R. Evid. 801(d)(1)(A) or (B). Upon Smith’s conviction, the District Court sentenced him to a 100-year prison term with 80 years suspended and, as required by § 45-5-625(4)(b), MCA, ordered that he be subject to GPS monitoring for the remainder of his life.
On appeal, Smith argued that the trial court erred in admitting the forensic interview. He further argued § 45-5-625(4)(b), MCA, is unconstitutional because “it mandates lifetime satellite monitoring of people whose sentences have been fully discharged.” The Supreme Court agreed with Smith that the District Court should not have allowed the jury to watch a video-recorded forensic interview of the child but held that the improper admission of the video did not impact Smith’s right to a fair trial as it was cumulative with other admissible evidence. The Court upheld the constitutionality of § 45-5-625(4)(b), MCA. It noted that the statute for sexual abuse of a child mandates a 100-year sentence. Because it applies only to adult offenders, the “practical effect” is a life sentence. Thus, even if an offender is released early, he will be subject to state supervision for the balance of the sentence. In Smith’s case supervision will last until he is at least 118 years old, and Smith did not argue that GPS monitoring is impermissible during supervision.
Points of Interest: evidence, video testimony, sentencing conditions
2021 MT 149
Senate Bill 140, which changed the process for judicial appointments and abolished the Judicial Nomination Commission, does not violate Article VII, § 8(2), of the Montana Constitution.
SB 140 abolished the Judicial Nomination Commission, which had been responsible for screening applicants for judicial vacancies and forwarding nominees to the governor for appointment. It replaced the Commission with a process that allows the governor to consider any applicant who receives a letter of support from at least three adult Montana residents during a public comment period.
Petitioners petitioned for original jurisdiction, asserting that violated Article VII, Section 8(2), of the Montana Constitution. The Petitioners contended that: Article VII, Section 8(2), required the creation of a separate commission or committee to screen applicants for judicial vacancies; the purpose of Article VII, Section 8(2) was to ensure the appointment of quality judges who were free of political influence; and the abolishment of the Commission violated that purpose by giving unfettered discretion to the governor for appointing justices and judges. Respondents argued that the plain language of Article VII, Section 8(2) gave the Legislature the discretion to prescribe the manner in which judges are appointed.
The Court upheld the constitutionality of SB 140. Neither the plain language of Article VII, Section 8(2), nor the Framers’ intent requires an independent commission to screen applicants. Although the Court acknowledged that the Commission created by the 1973 Legislature had honored the constitutional objective of recruiting good judges to serve the citizens of Montana for the past forty-eight years, it was not the Court’s function to determine whether the Commission was a better process than SB 140 for making judicial appointments—it was to determine whether SB 140 complied with the language and constitutional intent of Article VII, Section 8(2).
Points of Interest: separation of powers, constitutional law, judicial nominations
2021 MT 151
Individuals do not have a reasonable expectation of privacy in recorded communications they voluntarily send to another. Therefore, the Montana constitutional rights to privacy and to be free from unreasonable searches and seizures do not protect these communications if they are sent to law enforcement or are shared with law enforcement by a third-party.
Staker responded to a fake online advertisement offering sexual services. He then unknowingly engaged in a text message conversation with an undercover federal agent posing as a sex worker to set up a time, meeting place, and agreed-upon sexual services. Staker was arrested when he arrived for the agreed-upon meeting. Staker moved to suppress the text messages, arguing that the conversation constituted warrantless government monitoring and recording of seemingly private conversations by surreptitious electronic means and thus violated his constitutional right to privacy. The District Court denied his motion.
On appeal, the Supreme Court affirmed, holding that the government action did not intrude upon any constitutionally protected interest because Staker had no objectively reasonable expectation of privacy in the text messages he knowingly and voluntarily sent to another. Staker had no reasonable basis to trust that the recipient was the person he thought she was, or that they would not disclose or share their seemingly private communications with others including law enforcement.
Points of Interest: privacy, search and seizure, warrantless searches
2021 MT 152
Phipps v. Old Republic Nat’l Title Ins. Co.
The enactment of the Montana Title Insurance Act (MTIA) removed the common law abstractor duty to conduct a reasonably diligent title search prior to issuing a preliminary commitment. Those issuing a preliminary commitment are under no duty to conduct a reasonable and diligent search.
Phipps owned property that was physically accessible by way of Ingomar Road to Gregg Road, but legal accessibility was uncertain due to an apparent lack of Garfield County public records establishing these roads as public roadways. This uncertainty was reflected in the title insurance policies Phipps held.
Phipps attempted to sell the property to Wrights. Pursuant to a buy-sell agreement, Phipps ordered a title commitment through Security and its underwriter Old Republic. Security’s title examination was extensive and reviewed all books indexed or otherwise recorded by the Garfield County Clerk and Recorder, but did not include a review of the road books because they are not indexed or otherwise recorded by the Clerk and Recorder and are not part of a standard title search. Security’s preliminary commitment included an exception for legal access to the property, causing the deal to fall through. Soon after, the Garfield County Commissioners adopted a resolution declaring Ingomar and Gregg as public roadways and a new preliminary commitment was issued with no exception to legal access, but Phipps and Wrights did not negotiate further. Months later, Phipps identified two documents they allege could have been discovered via a page-by-page search of the road books: The 1912 document had previously been examined by Security and was deemed insufficient; the 1914 document was not previously discovered and established the roads as public, but the amount of time required, and the location of the document is unknown.
Phipps sued, alleging negligence, professional negligence, and negligent misrepresentation. The District Court ruled that the defendants did not owe Phipps a legal duty when issuing a preliminary commitment under the MTIA. Phipps appealed.
The Supreme Court affirmed. The common law duty for preliminary commitments articulated in Malinak v. Safeco Title Ins. Co., 203 Mont. 69, 661 P.2d 12 (1983), was statutorily abrogated with the Legislature’s enactment of the MTIA. The MTIA specifically: differentiated between preliminary commitments, insurance policies, and abstracts; articulated that issuers of preliminary commitments were not subject to the duties of abstractors; and explicitly maintained a duty to conduct research for insurance policies actually issued, but not preliminary commitments. Therefore, there is no duty for those issuing preliminary commitments.
Points of Interest: insurance, property, negligence
2021 MT 155
Boyne USA, Inc. v. Dep’t of Revenue
A resort’s service fee that is not a charge for accommodations is not subject to Montana’s Use Tax, but it is not exempt from Montana’s Sales Tax.
The Department audited Boyne USA, Inc., the owner and operator of Big Sky Resort, assessing charges for a five-year period of unpaid taxes, interest, and penalties. The Department concluded that Boyne’s Resort Service Fee, a separate charge on accommodations for various resort amenities, was subject to Montana’s Use Tax (which taxes accommodation charges) and Sales Tax (which taxes sales). Boyne appealed to the Montana Tax Appeal Board, which largely affirmed the audit. Boyne then petitioned the District Court for judicial review. The court ruled the fee was not subject to the Use Tax but affirmed applying the sales tax and exempting forfeited deposits from tax.
On appeal, the Montana Supreme Court affirmed the District Court. First, the fee is not subject to Montana’s Use Tax because it is not an accommodation charge, nor does the taxing statute require charges be integral to the use of the room. Second, the fee is subject to Montana’s Sales Tax because Boyne’s sales price for accommodation includes the fee, and the fee is not exempt from the tax because it is not necessary to complete the sale. Finally, deposits are not subject to tax because full performance and use of lodging has yet to occur upon forfeiture, as required separately by Montana’s Use and Sales Tax.
Points of Interest: tax law, MDOR
2021 MT 156
District court must impose full restitution at sentencing without regard to defendant’s ability to pay, but under § 46-18-246, MCA, it may waive restitution in the same order when it would be otherwise unjust to require payment as imposed.
Lodahl pleaded guilty to misdemeanor assault for assaulting a peace officer. She sought a restitution hearing to challenge whether the officer’s worker’s compensation insurer qualified as a victim under the restitution statutes and whether she should be required to pay restitution given her dire financial situation. At the restitution hearing, she put on evidence of her debilitating mental health issues, her limited ability to earn an income, and her strict budget to provide basic necessities for her and her two young sons. The District Court concluded the insurer qualified as a victim under the restitution statutes. It further concluded the defendant could give up home internet and cell phone service to pay restitution.
On appeal, the Supreme Court affirmed in part and reversed in part. The insurer was clearly included as a victim under § 46-18-243(2)(a)(iv), MCA, and entitled to recover restitution from the defendant. While a district court is no longer required to consider the ability of the defendant to pay and must impose full restitution under the restitution statutes, § 46-18-246, MCA, allows the court to waive restitution “at any time” when “it otherwise would be unjust to require payment as imposed.” Here, the District Court ignored the uncontroverted evidence of the defendant’s dire financial situation and failed to appropriately apply § 46-18-246, MCA, to waive restitution as unjust under the particular circumstances present in this case.
Points of Interest: sentencing, restitution
2021 MT 157
A request that a person sit in the back seat of the patrol vehicle to answer questions related to a crash investigation is not a custodial interrogation. Additionally, under Article II, Section 24, of the Montana Constitution, a court may allow a testimonial witness to testify via two-way video only after the State sufficiently demonstrates that video appearance is necessary to further an important public policy beyond judicial economy.
Bailey was driving near Helena when his vehicle rolled over on its side. A trooper responded to the scene after receiving a report of the accident. The report also noted that beer cans were on the ground near the vehicle. The trooper observed damage on Bailey’s vehicle and initiated a traffic stop. After questioning Bailey about the accident, the trooper asked Bailey to sit in his patrol car while he completed the investigation. The trooper testified that he asked Bailey to sit in the vehicle because of the weather conditions and because he suspected Bailey may have been under the influence of alcohol. While inside the vehicle, the trooper detected alcohol on Bailey’s breath and observed that Bailey’s eyes were bloodshot and watery. Bailey admitted he had consumed two beers that afternoon. The trooper performed two field sobriety tests and a preliminary breath test, and Bailey later provided a blood sample which showed a blood alcohol concentration above the legal limit.
Bailey was charged with DUI and DUI per se. He moved to suppress all evidence, arguing the trooper unlawfully subjected him to a custodial interrogation without advising him of his Miranda rights, and did not have sufficient particularized suspicion to expand the crash investigation into a DUI investigation. The Justice Court denied the motion. The State moved to have the toxicologist—who conducted the BAC test on Bailey’s blood sample and prepared the toxicology report—testify via two-way video because his in-person testimony would be impracticable due to distance, expense, and timing. The court granted the motion, noting that it routinely allowed State Crime Lab toxicologists to testify via two-way video to promote judicial economy. Bailey was convicted of the per se offense and acquitted of the DUI offense. Bailey reasserted on appeal his arguments regarding his suppression motion. He also argued that the court improperly allowed a witness to appear by two-way video.
The Court affirmed the denial of Bailey’s motion to suppress, concluding that the trooper’s initial temporary detention and subsequent DUI investigation were based on sufficient particularized suspicion and Bailey was not subjected to a custodial interrogation while detained in the patrol vehicle. The Court reversed the conviction because the ruling allowing the State’s expert witness to testify via two-way video was unconstitutional, pursuant to State v. Mercier, 2021 MT 12, 403 Mont. 34, 479 P.3d 967, where the State had not demonstrated video testimony was necessary to further an important public policy beyond judicial economy. The video testimony was not harmless because it was the only evidence presented sufficient to prove Bailey’s BAC exceeded the limit under the statute.
Points of Interest: video testimony, custodial interrogation, DUI
2021 MT 158
Estate of Scheidecker v. Mont. Dep’t of Pub. HHS
A house placed into a trust is not a “countable asset” for Medicaid eligibility purposes when there are not “any circumstances” through which the settlor can access the trust’s corpus.
Two sisters placed their half-interests in a shared home into an irrevocable trust. Years later, one sister moved into a care facility and applied for Medicaid. Her application was denied because DPHHS concluded her half-interest in the trust was a resource that placed her over the resource limit. She appealed and the District Court ultimately affirmed the administrative determination that a trust’s principal consisting of a jointly owned home constitutes a countable asset for the purpose of Medicaid eligibility. The court found that although the trust’s terms prohibited the Trustee from invading the corpus for the settlor’s benefit, if the trust was terminated the Trustee could “distribute the trust property as agreed by the beneficiaries” and the beneficiaries could then “individually, jointly, directly, or indirectly” return the corpus to the settlor.
On appeal, the Supreme Court reversed, concluding that a settlor’s eligibility for Medicaid coverage is determined by looking at the terms of the trust, not by what the trustee or beneficiaries could do despite the terms. The “any circumstances” provision in 42 U.S.C. § 1396p(d)(3)(B) does not include situations where a court or agency misinterprets a written instrument’s terms or purposes. Here, the trust’s terms clearly provided that one of the trust’s purposes was to render the beneficiary eligible for Medicaid benefits. Despite speculation that the beneficiaries could attempt to terminate the trust, this could only be achieved if a court erroneously concluded that the trust’s continuation of the trust was not necessary to achieve a material purpose.
Points of Interest: trusts and estates, federal benefits
2021 MT 159
Williams v. Stillwater Bd. of Cty. Comm’rs
A court reviews the record of the lower tribunal on a writ of review to determine whether the tribunal had jurisdiction and kept within it. The court will not reweigh the evidence in the record but reviews the evidence only to ascertain whether it furnishes any legal and substantial basis for the decision.
Plaintiff Landowners sought a writ of review from the District Court of a decision from the Stillwater Board of County Commissioners to abandon a portion of a county road. In pertinent part, the Landowners argued the Board could not abandon the road without their assent under § 7-14-2615(4), MCA, and the Board did not adequately document its decision. The parties disagreed whether the county road at issue extended to the boundaries of the Plaintiff Landowners’ properties, providing them with secondary access routes to their properties. The District Court denied and dismissed the writ because the Board did not exceed its jurisdiction in abandoning the road and adequately documented its decision.
On appeal, the Supreme Court agreed. A board of county commissioners is empowered to abandon a county road by statute. Section 7-14-2615(4), MCA, restricts a board from abandoning a county road if it is used to access private property and the access benefits two or more landowners unless all of the landowners agree to the abandonment. The record provided furnished a legal and substantial basis to conclude the road did not extend to the Plaintiff Landowners’ properties to provide them with secondary access routes to their properties. The Board did not exceed its jurisdiction in deciding to abandon the road. On a writ of review, a court may not reweigh the evidence. The Court also concluded the Board adequately documented its decision under §§ 7-14-2603(3), -2604, MCA, because it made an entry of its decision on the minutes and sent notice of its decision by certified mail. The statutes do not require the Board to issue a formal findings of fact and conclusions of law when abandoning a county road.
Points of Interest: writ of review, easements and roads
2021 MT 161
Masters Grp. Int’l, Inc. v. Comerica Bank
District court lacked authority to award Masters attorney fees as its contract with Comerica did not contain a reciprocal attorney fees provision and the contract was required to be interpreted under Michigan law.
Masters defaulted on a $10.5 million loan from Comerica. Comerica sent Masters a Forbearance Agreement, to be governed by Michigan law, agreeing to forbear until February 16, 2009, if Masters and its guarantors met certain conditions. Masters did not meet those conditions within the time set by the Agreement, but Comerica continually accepted late performance. Without warning or notice, Comerica initiated an offset on December 31, 2008, and swept Masters’ and its guarantors’ accounts. With its money seized by Comerica, Masters collapsed. In 2011, Masters was sued in Montana by the Butte Local Development Corporation for failing to pay back a $200,000 loan and Masters filed a third-party complaint against Comerica for breaching the Agreement. In 2014, the District Court held a jury trial, applying Montana law, and Masters received a $52 million verdict against Comerica. Comerica appealed to the Supreme Court, which reversed the jury verdict and remanded for a new trial applying Michigan law in Masters Grp. Int’l, Inc. v. Comerica Bank, 2015 MT 192, 380 Mont. 1, 352 P.3d 1101 (Masters I). The District Court then held a bench trial, ruling in Masters’ favor of Masters and awarding $18,838,982.96 in damages, costs, and prejudgment interest, and $7,535,593.18 in attorney fees.
On appeal, the Supreme Court held the District Court lacked legal authority to award attorney fees to Masters. While the District Court performed a choice-of-law analysis to determine whether Michigan or Montana law applied to attorney fees, and ultimately determined Montana law applied, it was bound by the law of the case as Masters I held that Michigan law applied to “all” claims arising out of the Agreement. Because Michigan, unlike Montana, does not have a reciprocity statute for attorney fee provisions in contracts, Masters was not entitled to attorney fees.
Points of Interest: contracts, attorney fees, choice of law
2021 MT 162
Imposition of a 10-day jail-time condition upon a deferred sentence is a facially legal sentencing condition, expressly authorized by § 46-18-201(4), MCA, and consistent with the presumption of entitlement to a deferred imposition provided for in § 45-10-103, MCA.
The Justice Court found sentenced Thibeault to a 6-month deferred imposition of sentence pursuant to § 46-18-201(1)(a)(i), MCA, in accordance with the statutory presumption for first offenders. The court further conditioned the deferred sentence on the requirement of ten days in jail pursuant to § 46-18-201(4)(b), MCA, which provides for “incarceration in a detention center not exceeding 180 days” as a reasonable condition that may be imposed on a deferred sentence.
Thibeault challenged the legality of his sentence on appeal to District Court, and asserted that the statutory presumption of entitlement to a deferred imposition of sentence limits a court’s discretion to apply the condition that a defendant serve jail-time. The District Court affirmed and Thibeault appealed to the Supreme Court.
First, the Supreme Court confirmed that a deferred sentence is a “final dispositive judgment of conviction and sentence” subject to conditions of probation. Then, the Court considered the “subtle, but technically significant statutory interplay between the nature of a deferred imposition of sentence, a statutory presumption thereto, and statutory authorization for imposition of jail-time as a condition thereof” as recognized in Montana’s case law. Finally, the Court concluded that, in accordance with precedent, the imposition of a jail-time condition is not a “sentence of imprisonment” and thus not inconsistent with the statutory presumption of entitlement to a deferred sentence in § 45-10-103, MCA. Therefore, the Justice Court’s 10-day jail-time was not an illegal sentence.
Points of Interest: sentencing, sentencing conditions, deferred sentences
2021 MT 163
Defendant’s convictions were affirmed because ineffective assistance claim was better suited for postconviction proceedings, plain error review was not proper where the State’s expert witness provided educational testimony, and the trial judge committed harmless error by responding to the jury’s question in writing during deliberation without the parties present.
Sinz was charged two counts of sexual intercourse without consent and three counts of sexual assault. During voir dire, a potential juror disclosed that he had experience with sexual abuse in his family, but he assured the court he could remain impartial. The juror was not removed. During trial, an expert witness for the State testified about general issues underlying sexual abuse disclosures. During deliberation, the jury submitted a question as to whether it should reach a unanimous verdict regarding intercourse without consent before moving on to the sexual assault charges. The judge responded in writing, informing the jury that it should try to reach a unanimous verdict on the first three counts, but if it could not, it should proceed to the remaining two counts. The judge did not consult the parties before responding to the jury. The jury returned a guilty verdict on all five counts shortly thereafter.
On appeal, Sinz argued his counsel was ineffective for failing to remove the allegedly biased juror. Second, he argued the State’s expert’s testimony improperly bolstered the victims’ testimony. Third, he contended the trial judge committed reversible error by responding to the jury’s question without consulting the parties.
The Supreme Court affirmed Sinz’s conviction. First, the ineffective assistance of counsel claim was better suited for postconviction proceedings because the record did not explain the reasons for counsel’s actions or alleged omissions. Second, expert testimony in sexual abuse cases is proper when the testimony is educational in nature and the witness does not directly comment on the victims’ credibility. Third, answering the jury’s question was harmless error. Relying on State v. Northcutt, 2015 MT 267, 381 Mont. 81, 358 P. 3d 179, the Court observed that a record existed as to what transpired between the judge and jury because the communications were in writing. Because a record of the communication existed, prejudice to the defendant was not presumed. The judge’s response was not incorrect as a matter of law and the error was therefore harmless.
Points of Interest: ineffective assistance of counsel, jury, experts, plain error
2021 MT 172
Based on the record as a whole, the District Court did not err in its determination of what portions of Lyons Creek Road were public and private.
The State, Adams and McDonald, and the O’Connells all own property adjacent to Sieben Ranch. Lyons Creek Road begins in Section 28 of Township 14 North, Range 4 West, and travels northwesterly. The Ranch installed a gate on the road at the northwest corner of Section 19 of Township 14 North, Range 4 West and Section 13 of Township 14 North, range 5 West. Beyond the gate, the road continues northwesterly. In 1996, the Ranch entered into the Conservation Easement which reserved the right to access Ranch property for recreational hunting during fall hunting season. The Ranch also granted road access to the O’Connells, giving them permission to use the road north of the gate. In August 2018, the O’Connells sold land to Adams and McDonald but did not convey the permissive road access. Adams and McDonald began crossing and installing headgates on Ranch property. The Ranch filed for declaratory and injunctive relief, and the Ranch and Adams and McDonald filed cross motions for summary judgment. The District Court concluded Adams and McDonald had no right of access over Ranch property.
On appeal, the Supreme Court agreed with the District Court’s rationale that the evidence from a 1961 letter from the County Attorney—stating that Lyons Creek Road was a county road up to the Ranch gate—was convincing. Furthermore, the court did not ignore the 1923 county commissioners’ journal entry that Adams and McDonald relied upon, rather determining it did not provide a precise description of the extent of the public portion of the road. Based on the record as a whole, the District Court did not err in its determination of what portions of Lyons Creek Road were public and private. The Court further concluded that Adams and McDonald could not enforce the Conservation Easement because they do not own any of the land burdened by it nor were they the public body holding the easement.
Points of Interest: easements and roads
2021 MT 175
A court may not rely on § 40-4-253(5), MCA, to set aside a final dissolution decree for failure to disclose property to the court when both parties were aware of the property and deliberately agreed that the dissolution would not affect it.
During their marriage, Melissa and Bradley formed and operated Fuller Family Medicine (“FFM”), through which they individually established their own clientele and practices. When they filed for dissolution, they agreed that they would omit FFM from the final declarations of disclosure of assets because they intended their practices to continue, unaffected by the dissolution. Four years after the final dissolution decree was entered, Melissa requested an equitable buyout of her interest in FFM and Bradley asserted he was the sole owner.
Melissa filed a Rule 60(b) motion, asking the District Court to reopen the final dissolution decree and adjudicate the parties’ financial interests in FFM. The court instead ruled that the final dissolution decree would be set aside under § 40-4-253(5), MCA, due to the parties’ omissions of the business, preventing it from equitably apportioning the marital property.
On appeal, the Supreme Court reversed, noting that the purpose of the disclosure statutes is to promote fairness between the parties by ensuring each has complete knowledge of the marital assets, not to prevent parties from amicably determining between themselves how their property should be divided. Section 40-4-253(5), MCA, does not support a claim for relief where both parties were aware of the property and deliberately agreed the dissolution would not affect it.
Points of Interest: dissolution of marriage, marital assets
2021 MT 176
Jurisdiction over a Youth Court case does not automatically transfer from Youth Court to District Court.
In a 2006 proceeding under the Youth Court Act, sixteen-year-old S.G.-H.M. was sentenced to probation and a deferred adult sentence—both subject to numerous conditions—for possession of explosives and criminal endangerment charges. At age 27, S.G.-H.M. was subject to a third petition to revoke, alleging technical violations of conditions. S.G.-H.M. moved to dismiss, arguing that the Youth Court’s jurisdiction over him ended when he reached age 25 and that the case had never been “transfer[red] . . . to the district court” pursuant to § 41-5-1605(3), MCA, such that there was no tribunal with jurisdiction over any proceedings stemming from the 2006 charges. The lower court denied the motion, reasoning that jurisdiction had transferred to District Court automatically at the execution of S.G.-H.M.’s adult sentence.
On appeal, the Supreme Court reversed. The Court considered the Youth Court Act’s purpose to provide appropriate responses to youthful acts of transient immaturity without unnecessarily embroiling a youth in a punitive system tarnishing the individual’s lifetime potential. The Court concluded that § 41-5-1605(3), MCA, requires a Youth Court to affirmatively transfer jurisdiction to a District Court upon revocation. As jurisdiction could not transfer automatically, and the lower court had taken no action to transfer the case, there was no court with jurisdiction over the matter after S.G.-H.M reached the Youth Court Act’s 25-year age limit.
Points of Interest: juvenile offender, jurisdiction, revocation
2021 MT 177
The Secret Gulch Road Easement is appurtenant, with Government Lot 3 as the servient estate, and Government Lot 7 as the dominant estate.
In 1988, the Secret Gulch Road Easement was conveyed, via warranty deed, across Government Lot 3—a tract of land located in Granite County. An attached plat also depicted the Easement across Government Lot 3. The deed stated that the purpose of the Easement was to be used by Grantee or its successors only in connection with the utilization of Grantee’s adjacent properties. Government Lot 3 and the Easement were conveyed to Erler in 2002; Erler’s deed referenced the tract was subject to any easements and encumbrances. Government Lot 7—adjacent to Government Lot 3—was conveyed to Wilkinson in 2020. Upon receiving Government Lot 7, Wilkinson and its agents began using the Easement to cross Erler’s property until Erler locked its headgate. Wilkinson sought and obtained a temporary restraining order. Wilkinson then requested a preliminary injunction. The District Court denied the injunction, concluding the Easement was in gross and thus Wilkinson could not use it since the Easement documents did not describe a dominant estate. Wilkinson appealed.
On appeal, the Montana Supreme Court reversed. Because the document creating the Easement did not specifically describe whether the Easement was in gross or appurtenant, the Court looked to the attached plat, which contained a metes-and-bounds description of the Easement that indicated with reasonable certainty that Government Lot 7 was the dominant estate that the Easement benefits. Even if the plat diagram did not explicitly distinguish the dominant estate, the Easement’s purpose was for use in connection with the utilization of Grantee’s adjacent properties.
Points of Interest: easements and roads
2021 MT 178
McLaughlin v. Mont. State Legislature
Legislature exceeded the scope of its functions when it issued subpoenas for the electronic records of the Judicial Branch Court Administrator because the subpoenas sought information not related to a valid legislative purpose, confidential information, and information in which third parties have a protected privacy interest.
The Montana State Legislature served a subpoena upon the Department of Administration, seeking all e-mails of Beth McLaughlin, Judicial Branch Court Administrator, between January 4 and April 12, 2021. McLaughlin brought an original proceeding before the Montana Supreme Court, seeking to quash and enjoin the enforcement of successive subpoenas.
The Court rejected the Legislature’s argument that the Court had no authority to rule on the case. Disputes over the scope of legislative subpoena power “are squarely within the authority of the courts.” In Trump v. Mazars, the U.S. Supreme Court ruled on Congressional subpoenas to the President and set forth factors courts must consider in examining subpoenas to minimize “interbranch confrontation.” The Court used those factors in examining the subpoenas at issue.
The Court next rejected the Legislature’s argument that it needed the e-mails to investigate potential bias among judges. First, under the Montana Constitution, the Judicial Standards Commission investigates allegations of judicial misconduct. Second, the U.S. Supreme Court’s decision in Republican Party v. White (2002) instructed that a judge expressing views on legal and political issues does not indicate bias in a case. Also, the rules of judicial conduct encourage judges to share their “special expertise” with the Legislature on matters concerning the law, the legal system, and court administration.
The Court also noted a legislature cannot inquire into matters within the exclusive province of another branch of government. The Legislature failed to show that compelling production of Judicial Branch messages would advance its consideration of legislation on the matter of a judicial records retention policy.
The Court also held that the Legislature had not shown a valid legislative purpose in seeking to investigate whether the Court Administrator and members of the Judicial Branch had improperly used government time and resources for lobbying. First, the Legislature was seeking to perform a law enforcement function outside the scope of its authority. Second, state law excludes actions of public officials acting in their governmental capacities from the definition of “lobbying.” Third, under the statutory definition of “lobbyist,” the Court Administrator’s actions did not constitute lobbying.
Finally, the subpoenas were too broad. They encompassed confidential information; potential security risks; judicial work product; and information in which third parties have protected privacy interests. Rather than following statutorily established avenues for seeking information from the Court Administrator or giving her the notice and opportunity to respond that due process requires for all other subpoenas, the Legislature demanded production within a 24-hour period from a separate agency. In turn, the Department of Administration Director failed to consider confidentiality and privacy interests when she released the e-mails without giving McLaughlin an opportunity to review the materials and raise concerns or seek protection of confidential information in a court of law. The Court held that if the Legislature issues a subpoena to a government officer that may reach information that is confidential by law or involves individual privacy interests of third parties, the officer must have a chance to review the materials first, and present any issues about disclosure to a court.
The Court ordered the Legislature to return all materials provided under the previously issued subpoenas; prohibited the Legislature, its legal counsel, and the Department of Administration from disclosing or disseminating any additional information provided in response to the subpoenas; and held that the subpoenas could not be enforced or reissued.
Points of Interest: subpoenas, separation of powers, jurisdiction
2021 MT 179
District court violated Defendant’s constitutional right to present a complete defense by erroneously excluding evidence pursuant to Montana’s rape shield statute.
Twardoski was charged with sexual intercourse without consent, sexual assault, and sexual abuse of children against I.A., a 13-year-old girl, through the use of a game of truth or dare that occurred while he was giving I.A. a driving lesson. Less than two weeks earlier, I.A. had been sexually assaulted through the use of a game of sexual truth or dare by her boss, Cody Hill, with a sequence of sexual dares substantially identical to those I.A. alleged Twardoski used. I.A. and Hill entered into a “relationship” in which she was sexually abused by Hill for approximately 18 months. Their relationship was eventually discovered by the police after Twardoski was charged in this case. I.A. then admitted to Hill’s sexual abuse through truth or dare less than two weeks before her driving lesson with Twardoski. Twardoski sought to introduce evidence of Hill’s sexual abuse of I.A. through the use of a nearly identical game of truth or dare as that which I.A. alleged he used on her. The District Court, applying Montana’s rape shield statute, ruled Twardoski could not present evidence of Hill’s sexual abuse of I.A. Twardoski was convicted on all counts.
On appeal, the Supreme Court conducted a de novo review by applying the rape shield statute to the facts of the case and determined the trial court erred “by disallowing evidence Hill abused I.A. in both a unique and identical manner less than two weeks before the incident at issue in this case.” Applying the balancing test from State v. Awbery, 2016 MT 48, ¶ 20, 382 Mont. 334, 367 P.3d 346, which considers whether the proffered evidence is not speculative or unsupported; whether the evidence is relevant and probative; whether the evidence is merely cumulative of other admissible evidence; and whether the probative value of the evidence is outweighed by its prejudicial effect, the evidence of Hill’s abuse of I.A. in both a unique and identical manner shortly before the alleged incident in this case should have been admissible. Because the evidence was wrongfully excluded, the Supreme Court held Twardoski’s right to present a complete defense was violated, reversed his convictions, and remanded for a new trial.
Points of Interest: rape shield law, evidence
2021 MT 180
Young v. Hammer, Hewwitt, Jacobs & Floch, PLLC
The lost ability to negotiate a settlement is a cognizable injury in a legal malpractice case, but such injury is too speculative if the underlying claim would not have survived summary judgment.
Former counsel secured a default judgment against a tortfeasor who injured Plaintiffs but was unable to collect on the judgment. Years later, Plaintiffs sued former counsel for failure to discover and submit a claim to their tortfeasor’s insurer. Plaintiffs contended they would have received policy limits from the insurer had the claim been timely submitted. Former counsel admitted it should have discovered the policy but maintained as there was no coverage for Plaintiffs’ injuries under the policy, the failure to discover the policy did not cause injury to Plaintiffs. The District Court granted summary judgment to former counsel, concluding there was no coverage under the policy and any injury from the lost ability to settle the case with the insurer was too speculative.
The Supreme Court affirmed the District Court’s grant of summary judgment and denial of relief from judgment under Rule 60(b). The Court explained that while the lost ability to negotiate a settlement is a cognizable injury in a legal malpractice case, such injury is too speculative if the underlying claim would not have survived summary judgment. Here, the underlying claim to consider would have been a declaratory judgment action as to coverage under the insurance policy. As there were no issues of material fact about coverage under the policy, the claim would not have survived summary judgment in a declaratory judgment action and thus any injury caused by loss of ability to settle was too speculative to survive summary judgment in the legal malpractice case. The Court also held the District Court properly denied partial summary judgment on the issue whether the subject policy exception was deleted from the policy.
Points of Interest: Rule 60, legal malpractice, insurance policies
2021 MT 190
The State does not need to identify a specific victim in its charging documents when charging a defendant with criminal endangerment.
The State charged Giffin with felony criminal endangerment after he fired a shotgun through a motel room window while hallucinating on drugs. The affidavit in support of the Information alleged that Giffin admitted firing the gun and the “rounds exited the window towards the parking area and into an unoccupied unit of the building. The parking area outside the window is commonly used by the occupants of the Outlaw Inn.” Giffin moved to dismiss, arguing there were no facts establishing probable cause that he had committed criminal endangerment because no specific victim was alleged in the charging documents and none of the facts set forth conclude that a person was subjected to a substantial risk of death or serious bodily injury. The District Court granted the motion to dismiss without providing reasons for its decision. The State appealed.
On appeal, the Supreme Court reversed. After determining that the issue before it presented a mixed question of law and fact and a de novo standard of review is appropriate, the Court then concluded that while the State could have included more detail in its charging documents, it sufficiently established a probability that Giffin committed the offense. The Court rejected Giffin’s argument that the Information failed to establish that he “knowingly” created a risk of death or serious bodily injury to another because the “knowingly” mental state of criminal endangerment applies to both conduct and result. Here, the State established the requisite probable cause for its allegation that Giffin knew of his conduct and that such conduct created a substantial risk of death or serious bodily harm.
Points of Interest: criminal endangerment, mental state
2021 MT 191
An agency franchise agreement to sell liquor is considered terminated upon the issuance of a final agency decision. The Department of Revenue has no duty to assign an AFA within 60 days’ notice by the agent that it intends to transfer it. The Department’s actions in settling the district court litigation are protected by quasi-judicial immunity.
B.Y.O.B. attempted to transfer its interest in an agency franchise agreement after the Department acted to terminate the AFA for liquor law violations. After administrative proceedings, the Department terminated the AFA before B.Y.O.B. successfully transferred its interest. The Department and B.Y.O.B. ultimately terminated the litigation via a settlement agreement. However, B.Y.O.B. appealed the final agency decision to the District Court, claiming the Department tortiously and unconstitutionally interfered with B.Y.O.B.’s attempts to transfer its interests. The District Court granted summary judgment in the Department’s favor.
On appeal, the Supreme Court affirmed. The Court concluded that the Department has no duty to assign an AFA within 60 days of receiving notice that an AFA agent intends to assign it. The Court further concluded that many of B.Y.O.B.’s claims were extinguished through quasi-judicial immunity. Although the Department defended the action before the District Court, the Settlement Agreement authorizing the AFA’s auction necessarily involved the Department’s administrative and statutory authority to control and regulate the sale of alcohol in Montana. Because B.Y.O.B. challenged the termination in administrative proceedings, the Department’s decision to enter into a settlement agreement was “an exercise of its own discretion and judgment” on how best to “effectuate the sale of alcohol in Montana and its authority in the MAPA proceedings to decline to act upon Final Agency Decision[s] in its favor.” The Court was also unpersuaded by B.Y.O.B.’s breach-of-contract claims, concluding that any claims B.Y.O.B., Inc., had relative to those contracts were superseded by the Settlement Agreement.
Points of Interest: administrative law, administrative appeals, immunity
2021 MT 192
Childress v. Costco Wholesale Corp.
Under Montana law, parasitic emotional distress damages are not available for an underlying negligence claim for personal property damage or loss unless it is proved at trial that the plaintiffs had formed a subjective relationship with the property on a personal identity level.
Childresses brought their vehicle to Costco for service. A Costco employee negligently gave the keys to their vehicle to a thief, who took the vehicle. The vehicle was later found, but several of Childresses’ personal items had been taken, including a handgun, ammunition, documents containing Childresses’ home address, and keys to their home.
Childresses proceeded to trial in federal court on bailment and negligence claims. Childresses presented evidence that the car theft had exacerbated Randall’s preexisting PTSD and that Claudia had also suffered mental anguish.
The United States District Court, over Costco’s objection, instructed the jury that if it found for Childresses on the negligence claim, it must also determine the amount to compensate them for parasitic damages. The jury awarded Childresses $2,278.43 in property damages and $62,750 in “unspecified, non-property damages” on their negligence claim. Costco appealed, and the Ninth Circuit Court of Appeals certified to this Court the following state law question: Whether, under Montana law, parasitic emotional distress damages are available for an underlying negligence claim for personal property damage or loss?
The Supreme Court answered in the negative. This Court has recognized four discrete scenarios allowing parasitic emotional distress damages: (i) disrupting the quiet use and enjoyment of real property; (ii) discrimination and civil rights violations; (iii) bad faith and insurance fraud under the Montana Unfair Trade Practices Act; and (iv) wrongful death. However, the Court did not entirely foreclose the possibility of parasitic damages for loss or damage to personal property, opining these damages may be available if the plaintiff’s personhood is so intrinsically intertwined with the personal property that it may be said that the property was part of their “personal identity.”
Points of Interest: certified question, torts, emotional distress, damages
2021 MT 193
Other acts evidence may be admissible for multiple non-propensity purposes, in addition to those expressly enumerated in M. R. Evid. 404(b), including the purposes of (1) M. R. Evid. 607(a) impeachment by contradiction; (2) M. R. Evid. 404(a) good character impeachment/rebuttal; (3) explaining/correcting a false impression; and (4) rebutting an attack on another witness’s credibility.
Prior to his jury trial on two counts of indecent exposure to a minor, McGhee objected to introduction of State’s evidence regarding a prior uncharged sexual assault allegation against the same victims. The District Court denied admission of the earlier acts evidence. However, after McGhee testified that prior to the current allegations, he had an “awesome” relationship with the victims, the court determined he had “opened the door” and permitted the State to approach the prior uncharged sexual assault allegations on cross-examination. McGhee appealed the District Court’s determination that his testimony had “opened the door” to inquiry into the prior bad acts.
On appeal, the Supreme Court affirmed, explaining that when a witness “opens the door,” he makes relevant that which may have previously been otherwise inadmissible. While inadmissible for propensity purposes under M. R. Evid. 404(b), other acts may, subject to M. R. Evid. 401-03, be admissible for non-propensity purposes. In McGhee’s case, the prior allegations were admissible to (1) rebut his good character testimony and impeach by contradiction assertions regarding his relationship with the victims; (2) rebut his implied assertions that the victims’ mother was biased and had motive to testify falsely; and (3) correct the false impression created through testimony that the mother had ulterior motives for fabricating the allegations.
Points of Interest: evidence, Rule 404, Rule 607, prior bad acts
2021 MT 196
In a habeas corpus proceeding, a petitioner is entitled to credit for incarceration or time served from the date of the arrest for new charges until the date of sentencing. Section 46-18-201(9), MCA (2017).
Killam was on parole when he was arrested for a new felony offense. He was jailed on a DOC warrant that stated he was not entitled to bond, most likely due to his status as a parolee. At Killam’s initial appearance, the court set bond at $25,000. Killam did not post bond and he remained incarcerated through sentencing. Killam’s pre-sentence investigation report stated that he was not eligible for jail credit because of his parole status. At sentencing, the District Court refused to grant him credit for 489 days served prior to sentencing.
Killam petitioned for a writ of habeas corpus. The Supreme Court appointed counsel. At oral argument, Killam asserted § 46-18-201(9), MCA, adopted in 2017, requires a sentencing court give credit for pre-trial or pre-sentencing incarceration regardless of whether the defendant was also held in relation to another criminal matter. The State argued Killam’s new offense was not a “bailable offense” under § 46-18-403(1), MCA, because he was in DOC custody. Relying on § 46-18-201(9), MCA (2017), and its clear mandate the sentencing court “shall provide credit for the time served by the offender before trial or sentencing,” the Court granted the writ and reversed and remanded the matter to award Killam credit for time served prior to sentencing. The Court concluded that determination of credit for pre-sentence time served “is based solely on the record of the offense for which the defendant is being sentenced and does not require determination by the court as to whether defendant is also being held on another matter and, if so, which hold is primary.” Such credit is “a ‘matter of right.’”
Points of Interest: habeas corpus, credit for time served, sentencing
2021 MT 197
A defendant is entitled to credit for incarceration or time served prior to sentencing or trial from the date of the arrest until sentencing where bond is posted and the defendant is not released on bail and the warrant, if any, is not quashed regardless of whether the defendant was being held in connection with another matter in a different jurisdiction.
Mendoza was cited for DUI in Lake County in September 2015. He failed to appear, and the Justice Court issued a warrant for his arrest with a bond of $25,000. Mendoza was later jailed for another DUI in Gallatin County where he was served with the Lake County arrest warrant on December 5, 2017. Mendoza appeared in Justice Court on the Lake County warrant on January 9, 2019, and was arraigned in District Court on January 31, 2019. He pled guilty to the Lake County DUI in District Court on March 21, 2019. At sentencing, Mendoza argued credit for time served from the December 5, 2017— the date the warrant was served on him—until the September 22, 2020 sentencing. The court awarded Mendoza only 192 days, concluding he was incarcerated on other DUI offenses in both Gallatin and Missoula Counties. The court gave him credit only for the time after he was sentenced in Gallatin County until the date of his Lake County sentence.
The Supreme Court reversed and remanded. Pursuant to § 46-18-201(9), MCA, and Killam v. Salmonsen, 2021 MT 196, Mendoza is entitled to credit for every day he was incarcerated from the date the warrant was served through to sentencing as he did not post bail and the arrest warrant was not quashed. “[T]he determination is based solely on the record of the offense for which the defendant is being sentenced and does not require determination by the court as to whether defendant is also being held on another matter and if so, which hold is primary.” Killam, ¶ 16. (Footnote omitted). Mendoza was incarcerated from December 5, 2017 until July 18, 2019, or 579 days. The District Court was mandated to “provide credit for time served by the offender before trial or sentencing.” Section 46-18-201(9), MCA (2017).
Points of Interest: credit for time served, sentencing
2021 MT 198
Defendant’s due process right was violated when the State did not bring him before a judge for an initial appearance in a revocation proceeding for over two years after his arrest.
Cameron is a registered sex offender who moved from New York to Montana. After initially updating his address on the sex offender registry, Cameron moved and did not update his address. The State charged him with Failure to Register as a Sex Offender, to which Cameron pled guilty and received a three-year suspended sentence. In April 2017, the State petitioned for revocation and the District Court issued an arrest warrant. On July 8, 2017, Cameron was pulled over in a traffic stop in New York and arrested on the Montana warrant. New York started fugitive-from-justice proceedings and Cameron waived extradition. Two days before he was set to return to Montana, the federal government filed a Petition and Order for Writ of Habeas Corpus Ad Prosequendum, which the federal court granted, to remove Cameron from state custody for an initial appearance on federal charges. At the end of the federal hearing, Cameron was returned to state custody. Montana, apparently believing the federal charges took precedence, canceled its extradition request and allowed Cameron to remain in a New York county jail. Cameron’s federal charges were dropped nearly two years later and the State then extradited him to Montana based on the 2017 waiver of extradition. Cameron argued his due process rights had been violated, but the District Court denied his motions and revoked his suspended sentence.
On appeal, the Supreme Court reversed. It determined the two-year delay in bringing Cameron to Montana after his violated his right to due process. Although the State argued it had been “misinformed” by federal prosecutors about the status of Cameron’s federal case, the Court found that, regardless of why Cameron was left in New York, the extreme delay violated his rights. The Court vacated Cameron’s sentence and dismissed the revocation proceedings with prejudice.
Points of Interest: extradition, due process, revocation
2021 MT 199
ICWA’s heightened standards of proof in removal, custody, and parental rights termination proceedings apply only when the state court has a “reason to know” that a proceeding involves an “Indian child.”
Following the emergency removal of a child, Father alleged possible affiliation with the “Lakota Sioux Tribe.” thus alerting the Department and the District Court that the proceedings may be governed by ICWA. The Department sent notice to the “Lakota Sioux Tribe” via the Great Plains Regional office of the Bureau of Indian Affairs (BIA) pursuant to the requirements of 25 U.S.C. § 1912. With “reason to know” that L.H. may be an “Indian child,” as defined by ICWA, but without a conclusive membership eligibility determination from the tribe, the court proceeded under ICWA.
After a lapse in Department custody, the court again considered adjudication of L.H. as a youth in need of care. With its petition, the Department included a letter received from the Standing Rock Sioux Tribe (SRST) indicating L.H. was not a tribal member or eligible for enrollment. The court thus determined ICWA did not apply to and adjudicated L.H. a YINC under the lesser State standard of proof. The Department later petitioned for termination of the parents’ parental rights due to their failure to substantially complete court-ordered treatment plans. Based on the SRST tribal enrollment ineligibility determination, the court proceeded without “reason to know” L.H. was an Indian child and terminated parental rights under the state standard of proof. Parents appealed, asserting the court erred in determining that ICWA did not apply to L.H. because it had not obtained an enrollment eligibility determination from the “Lakota Sioux Tribe.”
On appeal, the Supreme Court first noted that the “Lakota Sioux Tribe” is not an “Indian Tribe” recognized by the Secretary of the Interior and thus the Department had no legal duty under 25 U.S.C. § 1912 to give notice to and receive a tribal eligibility determination from that “tribe.” Father’s vague and unsupported assertion of possible affiliation with the “Lakota Sioux Tribe” was insufficient to give the District Court “reason to know” that L.H. was a member of or eligible for membership in a federally-recognized Indian Tribe. Therefore, the District Court did not err in adjudicating L.H. as a YINC or terminating the parents’ parental rights without a tribal eligibility determination from the “Lakota Sioux Tribe.”
Points of Interest: dependent neglect, ICWA, tribal enrollment
2021 MT 200
Section 3-1-804(1)(a), MCA, requires a plaintiff to file a motion for substitution of judge within thirty calendar days after the first summons is served or within thirty calendar days after an adverse party appears, whichever is first.
Holms sued Bretz for breach of contract. After he was served, Bretz moved to change venue—his first appearance in the case. Holms moved for substitution of judge within thirty days of Bretz’s appearance but more than thirty days after service. The substituted judge denied Bretz’s motion to change venue. Bretz appealed, arguing that Holms’s motion for substitution was untimely and thus the substituted judge had no jurisdiction to rule.
The Supreme Court determined that § 3-1-804(1)(a), MCA, contains no permissive language to allow a plaintiff to elect when to file a motion for substitution. Requiring that a plaintiff must file within thirty days of service or within thirty days of the defendant’s appearance means thirty days after whichever occurrence happens first. This interpretation “implements the objectives of the Substitution Rule and gives effect to all its provisions. Since the thirty-day deadline begins only once, after whichever event occurs first, the triggering event directs the plaintiff to file and prevents the alternative thirty-day deadline from taking effect.” The Court concluded Holms’s motion to substitute was untimely and remanded the matter for further proceedings.
Points of Interest: substitution
2021 MT 201
Grafft v. Mont. Fourth Judicial Dist. Ct.
Writ of habeas corpus denied because under the facts of the case, the District Court did not abuse its discretion in refusing to release Petitioner upon posting of bail.
Grafft, via counsel, petitioned for writ of habeas corpus, alleging illegal incarceration because he was unreasonably detained on a possession charge after the District Court refused to release him after he posted bail. Instead, the court ordered that Grafft be released upon placement of an alcohol monitor or GPS unit on him.
On review, the Supreme Court determined that the lower court did not abuse its discretion in refusing to release Grafft. Courts have the statutory authority to impose conditions of release on bail. In this instance, Grafft had a history of failing to appear and failing to comply with the conditions of release. The District Court therefore tailored the conditions of Grafft’s release within its discretion.
Points of Interest: habeas corpus, bail/bond, conditions of release
2021 MT 204
JNR Holdings, LLC v. Dearborn Meadows Land Owners Ass’n, Inc.
An organization may maintain associational standing on its members’ behalf in an easement dispute where it seeks declaratory or injunctive relief. A party claiming an implied easement by preexisting use need not establish that the dominant and servient parcels are contiguous. Court correctly applied the UDJA’s supplemental relief statute to award defendant attorney fees for its easement claims, where the plaintiff brought its claim under the UDJA. The equities did not support an award of attorney fees where the record contained insufficient evidence to demonstrate the parties were in an unequal position in the litigation and both parties had genuine beliefs supporting their claims.
JRN erected and locked a gate across Powerline Road on its property, providing a key to all nearby landowners who had to use the Road to access their properties. The gate was eventually torn down, and when JRN provided notice to Appellee DMLOA that it would re-erect and lock the gate, DMLOA stated that it would remove the gate at JRN’s expense.
JRN sought declaratory and injunctive relief that it had a right to place a locked gate across the Road and that DMLOA had no right of entry. DMLOA counterclaimed that its members had an implied easement by preexisting use and an easement by prescription to access their properties and for recreation. After a bench trial, the District Court concluded that DMLOA had established both types of easement for its members’ as well as the general public’s residential and recreational uses. It enjoined JRN from interfering with Road access and awarded DMLOA $96,650.18 in attorney fees and costs.
On appeal, the Supreme Court first held that § 70-17-109, MCA, did not prevent DMLOA from maintaining associational standing to pursue its easement claims on behalf of its members, but that it could not maintain standing on the general public’s behalf. The Court affirmed the District Court’s finding of an implied easement by preexisting use, concluding that the claim’s elements do not require a claimant establish that the dominant and servient parcels are contiguous. The Court narrowed the scope of the easement by preexisting use, however, to DMLOA members who have no other means of access to their land. The Court affirmed the finding of a prescriptive easement for residential and recreational use. Finally, the Court reversed the attorney fee and costs award: Although the court properly applied the UDJA’s supplemental relief provision, the equities did not support such an award.
Points of Interest: easements and roads, standing, UDJA
2021 MT 212
Defendant received ineffective assistance at trial when his counsel neither failed to object to the State’s incorrect “knowingly” instruction, nor proposed the correct one, in an obstructing a peace officer case.
Secrease was pulled over by an MHP trooper due to erratic driving. He performed poorly on field sobriety tests, so the trooper requested a breath sample. Secrease refused and was ultimately arrested for DUI. After arrest, the trooper read the implied consent advisory and requested Secrease provide a blood sample. Secrease again refused. After obtaining a telephonic search warrant, the trooper took Secrease to a hospital for the blood draw. Secrease again refused to provide a sample and the trooper suggested Secrease’s blood could be drawn by force. The hospital staff then refused to perform the blood draw. Secrease was charged with DUI and obstructing a peace officer. At trial, the State proposed a conduct-based “knowingly” instruction on the obstruction charge and Secrease’s attorneys neither objected to the State’s proposed instruction nor proposed the correct results-based “knowingly” instruction themselves. Secrease was convicted.
On appeal, the Supreme Court reversed Secrease’s obstruction conviction, finding he had received ineffective assistance at trial. Montana law contains two “knowingly” definitions—one conduct-based, the other results-based—and the State proposed the wrong one, which had the effect of lowering the State’s burden of proof. Secrease’s attorneys neither objected nor proposed the correct “knowingly” instruction. The Court found “no plausible justification” for Secrease’s counsel to not propose the correct instruction and Secrease was prejudiced by counsel’s deficient performance.
Points of Interest: DUI, jury instructions, ineffective assistance of counsel
2021 MT 215
Summary judgment that plaintiff’s co-pled negligence claim was time-barred by Montana’s Dram Shop Act not proper where the claim was an independently actionable negligence-based common-law tort claim not dependent on proof of an alleged breach of a legal duty arising from or relating to the furnishing of alcohol.
After being assaulted by a fellow bar patron, plaintiff alleged two negligence claims against the bar owner—a “liquor liability” and a “premises liability” claim—two years and eight days after the incident. The District Court determine that both claims, each arising out of the service of alcohol to the underage patron/assailant, were subject to the Dram Shop Act’s two-year statute of limitations and therefore time-barred.
The Supreme Court affirmed the District Court as to the “liquor liability” claim because the asserted duty and breach—service of alcohol to an underage patron and resulting injury to third-party plaintiff—were within the purview of the Dram Shop Act. The Court reversed on the “premises liability” claim because it was based on alleged breaches of independent common-law duties of care owed by tavern-keepers to their patrons, and therefore subject to the three-year statute of limitations for general tort claims.
Points of Interest: statute of limitations, torts, Dram Shop Act
2021 MT 221
The district court erred by dismissing a case where it should have applied the voluntary cessation exception to mootness because the defendant failed to meet its burden to show that the challenged conduct would not recur.
Wilkie was injured by Sprout, who was insured by The Hartford under an automobile insurance policy. Before submitting a claim for general damages, Wilkie requested from The Hartford a copy of the policy or the limit of Sprout’s liability insurance coverage that applied to the claim. The Hartford denied the request, stating that it did not believe it had an obligation to provide such information.
Wilkie sued The Hartford and Sprout, seeking a declaration that The Hartford had a duty to provide the policy or the amount of insurance coverage available because liability was reasonably clear. Sprout then provided Wilkie with a copy of the policy and The Hartford filed a motion to dismiss the case as moot. Wilkie responded that, among other things, his request for declaratory relief should proceed under the voluntary cessation exception to the mootness doctrine. The Hartford responded that the exception did not apply because Wilkie alleged only a single instance of the challenged conduct. The District Court granted the motion and dismissed the case.
The Court affirmed the dismissal of the Sprouts but reversed the dismissal of The Hartford, concluding that The Hartford had not met its burden under the voluntary cessation exception to show that it will not or cannot repeat the challenged conduct. Wilkie submitted evidence supporting his claim that it is reasonable to expect the same wrong to recur. The Hartford made no assurances that it would not repeat the challenged conduct or even acknowledge that it carried such a burden.
Points of Interest: insurance, mootness
2021 MT 227
Plaintiff was judicially estopped from pursuing malicious prosecution claim for criminal charges resolved during the pendency of her bankruptcy but was not estopped to pursue her claim for a civil suit that was not terminated until after her bankruptcy was discharged.
Morrison & Frampton pursued civil and criminal charges against McAtee for her involvement in securing new financing on a foreclosed property. McAtee then filed for bankruptcy. The criminal case was dismissed during her bankruptcy; the civil case terminated after her bankruptcy was dismissed. McAtee filed a malicious prosecution claim against Morrison & Frampton based on the criminal and civil proceedings. The District Court granted Morrison & Frampton’s motion for summary judgment, finding they had probable cause to initiate the proceedings against McAtee. The court also dismissed McAtee’s claims, finding her judicially estopped due to her failure to disclose them in her bankruptcy.
On appeal, the Supreme Court reversed in part and affirmed in part, concluding that because criminal fraud charges were commenced and dismissed against her during her bankruptcy, McAtee was required to disclose her malicious prosecution claim as an asset to the Bankruptcy Court. However, she was not judicially estopped from pursuing her malicious prosecution claim premised on the civil fraud action because there had been no termination of the fraud case during the pendency of her bankruptcy case. Regarding the malicious prosecution claim against Morrison & Frampton for its civil case against McAtee, the Court concluded the allegations about the reasonableness of Morrison & Frampton’s actions or inactions during its investigation were a material factual dispute and summary judgment was not appropriate.
Points of Interest: estoppel, bankruptcy, malicious prosecution
2021 MT 228
District Court’s involuntary commitment of a mentally ill patient reversed because the court erroneously allowed a State witness to testify via video conference over the patient’s objection, thus violating Montana’s statute regulating the use of two-way electronic audio-video communication during involuntary commitment hearings.
At N.A.’s involuntary commitment hearing, one of the State’s witnesses, a licensed clinical social worker, was unavailable to testify in-person. N.A. objected to the State’s proposal to have the witness testify via live video conference. The District Court overruled N.A.’s objection, during the social worker’s live video testimony, she offered her professional opinion that N.A. posed an imminent threat of injury to herself and/or others and required involuntary commitment. Relying on this testimony, the court ordered N.A. involuntarily committed.
On appeal, the Supreme Court reversed the District Court’s order. Section 53-21-140, MCA, expressly disallows the use of “two-way electronic audio-visual communications” during commitment hearings for the mentally ill when the patient objects to the use of said communications. The District Court’s decision to overrule N.A.’s objection and allow the social worker to testify via video conference contradicted the plain and unambiguous language of the statute. This was not harmless error, as the District Court directly relied upon this testimony in issuing its involuntary commitment order.
Points of Interest: involuntary commitment, video testimony
2021 MT 229
The introduction of hearsay statements by a child victim of sexual abuse found incompetent to testify violates Defendant’s right to confront witnesses.
Tome was charged with sexual intercourse without consent. At trial, the State sought to have the victim, a deaf and developmentally delayed minor, testify. The District Court found the victim incompetent but allowed the State to introduce her out-of-court statements through other witnesses. Tome objected on Confrontation Clause grounds, arguing that he had no opportunity to cross-examine the victim. The District Court overruled the objection and Tome was convicted.
On appeal, the Supreme Court reversed Tome’s conviction. The Court concluded that, based on the circumstances surrounding the statements, the victim’s statements were testimonial because the primary purpose of the victim’s statements was to prosecute Tome. The Court further concluded that the Confrontation Clause applies to testimonial statements. Because the Confrontation Clause applies, hearsay statements are only admissible if the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Because the victim was found incompetent to testify and the defendant had no opportunity for cross-examination, the District Court erred when it admitted the victim’s hearsay statements. The Court concluded that the statements likely contributed to Tome’s conviction. Therefore, the admission of the statements was not harmless and required reversal.
Points of Interest: confrontation clause, witnesses, hearsay
2021 MT 230
A defendant’s request for police personnel files requires that the defendant show substantial need.
Howard was violently arrested and charged with several misdemeanors, including resisting arrest. Howard argued that he was justified in resisting arrest and sought a review of the arresting officer’s personnel file for previous instances of excessive use of force for impeachment purposes. The District Court denied Howard’s motion, reasoning that Howard failed to present a substantial need for the file.
On appeal, the Court affirmed. The defendant’s argument that the file was necessary to cross-examine the officer failed to constitute a substantial need because the defendant failed to show that the officer might testify falsely. The defendant’s argument that he could not show a substantial need without the file ignored the plain language of the law, which requires a substantial need before the motion can be granted. Because the defendant failed to demonstrate any substantial need when he sought the information, the District Court correctly denied his motion.
Points of Interest: discovery, prosecutor’s disclosure
2021 MT 231
In re Parenting of P.H.R. and P.H.R.
District Court erred when it ordered a non-party to attend counseling, did not include in an amended parenting plan the terms of the parties’ stipulation, and required the parties to mediate future disputes without reference to their “written informed consent” when there was “reason to suspect” abuse. However, the court did not err by splitting between the parties the tax dependency deductions.
Sarah and Marlen were divorced in Texas. Sarah was appointed the sole managing conservator for their two minor children. Sarah later moved to Montana with the children and Marlen remained in Texas. Marlen registered the parenting plan in Montana and moved the District Court to amend the parenting plan. The District Court ultimately maintained Sarah’s primary custody and the parenting schedule, but it made several small amendments through its order and amended parenting plan.
The Court reversed the District Court’s order to the extent it required that Sarah’s husband participate in counseling with her, as he was not a party to the case and did not voluntarily submit himself to the court’s jurisdiction. The Court reversed the amended parenting plan provision allowing the absent parent to contact the children “regularly” because it did not include the terms of the parties’ stipulation calling for specific times of contact. Finally, pursuant to Hendershott v. Westphal, 2011 MT 73, 360 Mont. 66, 253 P.3d 806, and § 40-4-301(2), MCA, the Court reversed the provision requiring the parties to mediate future disputes without reference to their “written informed consent” where the record and the District Court’s findings demonstrated a “reason to suspect” domestic abuse. The Court affirmed the provision dividing between the parties the tax dependency deductions because such action was within the District Court’s discretion and the record supported the court’s consideration of such action.
Points of Interest: family law, parenting plan
2021 MT 232
Barthel v. Barretts Minerals Inc.
An employee who violated the express terms of a personnel policy for failing to notify his employer about his medical marijuana use was not wrongfully terminated.
Barthel was fired from Barretts after testing positive for marijuana in a random drug test. The employer’s personnel policy required that if an employee took a drug or controlled substance that “may have adverse effects” on the job performance or safety, the employee was required to notify management. Barthel sued asserting, among other things, that he was wrongfully discharged. The District Court granted the employer’s motion to dismiss finding that his violation of the policy constituted good cause.
On appeal, the Supreme Court concluded that the District Court did not err in granting the motion to dismiss. The facts as alleged in the complaint establish that Barthel used medical marijuana for a month before notifying his employer. Thus, his violation of the express policy provision constituted good cause for termination.
Points of Interest: employment law, wrongful discharge
2021 MT 238
The introduction of testimony and the prosecutor’s personal comments vouching for a witness’s credibility, in violation of the State’s agreement not to introduce credibility testimony, undermined the defendant’s right to a fair trial.
Byrne was charged with three counts of sexual intercourse without consent. The State’s case centered on the victim’s credibility. Before trial, Byrne tried to bar the State from introducing testimony that the victim was credible. The State agreed it would not ask witnesses whether the victim was credible. At trial, the State asked four witnesses whether the victim showed signs of dishonesty. The State also told the jury the victim was reliable and repeatedly mentioned that the victim had no incentive to lie. Byrne was convicted of all three counts.
On appeal, the Supreme Court reversed Byrne’s conviction. The Court noted that prosecutors may not elicit testimony boosting a witness’s credibility. The prosecutor’s questions to several witnesses asking whether the victim was dishonest had the effect of boosting credibility. The Court further noted that a prosecutor’s comments on a witness’s credibility improperly interferes with the jury’s role. The prosecutor’s comments that the victim was reliable and repeatedly telling the jury the victim had no reason to lie had the improper effect of making the defendant prove why the victim would lie. Given the State’s agreement not to introduce credibility testimony and subsequent violation of that agreement, the Court declined to resolve any doubt in favor of the State.
Points of Interest: credibility, prosecutorial misconduct
2021 MT 239
A defendant received ineffective assistance of counsel during sentencing when her counsel failed to cite to the Alternative Sentencing Authority, § 45-9-202, MCA, when arguing for a deferred sentence.
Wright was convicted felony criminal possession of dangerous drugs. A Presentence Investigative Report revealed that Wright had a previous non-drug-related felony conviction approximately 25 years earlier. The PSI writer indicated Wright was not eligible for a deferred sentence. At sentencing, the State asked for a five-year DOC commitment. Wright’s counsel asked for a deferred sentence and pointed the District Court to § 46-18-201(1)(b), MCA, which states that the “imposition of sentence in a felony case may not be deferred in the case of an offender who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended,” and argued the language of “may not be deferred” was permissive, rather than mandatory, such that the court would have the discretion to impose a deferred sentence under that statute. The District Court gave Wright a four-year suspended sentence.
On appeal, the Supreme Court reversed and remanded for resentencing. Wright received ineffective assistance of counsel when her counsel pointed the District Court to a statute which would make her ineligible for a deferred sentence rather than to the ASA, which would allow the District Court to give her a deferred sentence for a dangerous drug felony offense even though she had a previous felony.
Points of Interest: sentencing, ineffective assistance of counsel
2021 MT 240
Fortner v. Broadwater Conservation Dist.
A stream which does not currently exhibit perennial flows, but would have, absent historical mining activity, constitutes a “natural, perennial-flowing stream” for purposes of determining Streambed Act jurisdiction under § 75-7-103(6), MCA.
The Broadwater Conservation District began proceedings against the Fortners for allegedly making unpermitted disturbances of Montana Gulch’s stream channel. The Fortners sought a declaratory ruling that BCD did not have jurisdiction over Montana Gulch, contending that it did not currently exhibit year-round surface flows in the area of the alleged disturbances and was therefore not a “natural, perennial-flowing stream” subject to BCD jurisdiction pursuant to the relevant provision of the Streambed Act. After a public hearing, the BCD issued a final declaratory ruling concluding that Montana Gulch’s current lack of perennial flows was due to historic mining activity, rather than natural geology, and therefore was subject to BCD jurisdiction. The District Court upheld the ruling on petition for judicial review.
On appeal, the Montana Supreme Court upheld the rulings. A stream that no longer flows perennially, but would have, absent human intervention, was, as a matter of law, a “natural, perennial-flowing stream” pursuant to § 75-7-103(6), MCA. Admin. R. M. 36.2.407 includes under the definition of a “natural, perennial-flowing stream” a stream that “dries up periodically due to man-made causes,” prior decisions interpreting the relevant statutory and regulatory provisions, and the Streambed Act’s statement of purpose to conclude that a stream that no longer exhibits perennial flow, but would have, absent human intervention, is classifiable as a “natural, perennial-flowing stream” under Streambed Act jurisdiction. Moreover, the Court rejected the appellants’ contention that any such stream must have exhibited perennial flow as recently as the Streambed Act’s 1975 enactment in order to be subject to BCD’s jurisdiction.
While there was conflicting evidence presented below on whether Montana Gulch’s current lack of perennial flows was due to historic mining activity or natural geology, BCD’s finding was supported by sufficient evidence and was therefore not arbitrary or capricious. The BCD and the District Court did not err in considering the relevant impacts of potential groundwater sources on Montana Gulch’s hydrology in resolving the dispositive question of whether it would have exhibited perennial flows absent human impacts.
Points of Interest: natural resources, administrative law
2021 MT 244
Defendant’s dual convictions for incest and sexual assault, which arose out of the same incident involving his minor child, did not violate double jeopardy, as the Court held that the crime of sexual assault was not an “included offense” of the crime of incest.
Valenzuela was convicted of both incest and sexual assault, for which the District Court imposed two concurrent sentences of 100 years. Both convictions arose from the same incident involving the same victim, Valenzuela’s minor child. Valenzuela appealed, arguing that his convictions should be barred under the relevant Montana double jeopardy statute, § 46-11-410, MCA, which prohibits multiple convictions for two crimes in certain scenarios. Valenzuela asserted that two provisions of Montana’s multiple convictions statute bared his convictions for both crimes: first, under § 46-11-410(a), MCA, Valenzuela contended that sexual assault was an “included offense” of incest; second, under § 46-11-410(d), MCA, Valenzuela asserted that sexual assault was a “specific instance of the conduct” of incest.
On appeal, the Montana Supreme Court affirmed Valenzuela’s dual convictions for sexual assault and incest, holding that sexual assault was neither an “included offense” nor a “specific instance” of incest under § 46-11-410(a) and (d), MCA. The Court concluded that the legislature intended to allow for multiple convictions for both of these crimes. In reaching this conclusion, the Court noted that prior Montana case law called for the application of the same legal test under both subsections (a) and (d) of § 46-11-410, MCA: the “statutory elements” test first articulated by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). The Court applied Blockburger’s test to reach its holding that sexual assault and incest were separate, distinct crimes. The Court also expressly overruled one of its holdings from State v. Hall, 224 Mont. 187, 728 P.2d 1339 (1986), which had incorrectly asserted that multiple convictions for both sexual assault and incest could be barred under § 46-11-410, MCA, depending on the victim’s age.
Points of Interest: double jeopardy, included offense, multiple convictions
2021 MT 245
Trust assets are nonprobate assets and may only be used to satisfy statutory allowances if the probate estate is insufficient. The probate estate includes specific devises, which must abate to satisfy statutory allowances.
Douglas Dower created a trust that would become irrevocable upon his death. He died in 2019, and his widow, Linda Dower, sought the allowances provided to spouses under Montana law. Douglas’s probate estate was insufficient to satisfy those allowances, but Linda argued that the trust assets were part of the estate. The District Court rejected Linda’s argument and concluded that trust assets were nonprobate assets and unavailable to satisfy Linda’s allowances. The District Court further concluded that Douglas’s probate estate was insufficient and the specific devises of tangible personal property that Douglas made to Linda must abate to satisfy her allowances.
On appeal, the Supreme Court affirmed. The Court held that the trust’s assets were not governed by the Uniform Probate Code and could not be considered part of the probate estate. Regardless, the Court noted that nonprobate assets could be reached when a probate estate was insufficient to satisfy claims, but the probate estate must be insufficient to do so. The Court concluded that the probate estate remained sufficient to satisfy Linda’s allowances through the abatement of her specific devises, which were all that remained of the probate estate.
Points of Interest: trusts and estates, Uniform Probate Code
2021 MT 246
A.C.I. Constr., LLC v. Elevated Prop. Invs., LLC
District Court correctly interpreted § 71-3-542(4), MCA, and therefore did not err by failing to halt a nonjudicial trustee foreclosure of a property, nor did it err in granting an unjust enrichment award.
Lease Operating Solutions made a loan to Elevated Property Investments to purchase and improve a house in Kalispell. EPI hired A.C.I. Construction as a general contractor. EPI eventually stopped paying contractors, and ACI recorded a construction lien on the house. ACI was never paid in full for its work and eventually filed suit against EPI and LOS for unjust enrichment. EPI initially appeared, but soon defaulted in both this legal action and on the LOS loan. LOS moved for summary judgments regarding lien priority and challenging ACI’s unjust enrichment claim. The District Court granted summary judgment in LOS’s favor on lien priority, reasoning that LOS could not know that EPI would contract with ACI for work outside the work listed in the loan agreement, and that ACI could find the recorded trust indenture and know what work was or was not contemplated by the loan. After a bench trial, the court entered judgment in favor of ACI on its unjust enrichment claim. ACI appealed the summary judgment decision, and LOS cross-appealed the unjust enrichment verdict.
The Supreme Court affirmed. Regarding lien priority, the potential for bifurcating a mortgage and giving priority to the construction portion thereof is implicit in the controlling statute, § 71-3-542(4), MCA. LOS’s careful financial and procedural publicly-noticed protocols clearly demonstrated the portion of its mortgage that secured advances for construction work on the property, which also served to protect LOS from losing priority on the rest of its mortgage to the construction lien. Regarding ACI’s unjust enrichment claim, because of its default and general insolvency, ACI has no remaining contractual remedy against EPI. And, despite there not being any formal contract between ACI and LOS, the elements of unjust enrichment were met because “the lender has foreclosed on the property owner’s interest, terminating the construction liens, received full payment for its loan, attorney fees, and costs, and then reaped a substantial unmerited financial benefit from the property’s equity, arising from the work of the contractor whose remedies have been lost or are inadequate.”
Points of Interest: liens, contracts
2021 MT 247
To qualify for redesignation or expungement of a production conviction under the Montana Marijuana Regulation and Taxation Act’s retroactive provision, a person must either own the property on which the marijuana is grown or have written permission to grow marijuana from the landowner.
Rairdan was convicted in 2002 for growing marijuana plants adjacent to the rental property where he was living. The owner of the property called law enforcement to report the violation. Rairdan was subsequently charged, pleaded guilty, and received a deferred sentence for the conviction.
In 2020, voters passed Initiative No. 190, the Montana Marijuana Regulation and Taxation Act (MMRTA), to provide for the limited legal possession and use of marijuana. The MMRTA authorizes courts to redesignate marijuana-related convictions as civil infractions or expunge the criminal records of persons who have completed sentences for acts made legal by the new law. Rairdan petitioned the sentencing court; however, the District Court denied the petition, concluding that Rairdan was not eligible for expungement or redesignation.
On appeal, the Supreme Court affirmed, reasoning that because the MMRTA unambiguously prohibits growing marijuana on someone else’s land without their permission, the law does not permit the act for which Rairdan was charged; therefore, he does not qualify for expungement or redesignation.
Points of Interest: MMRTA, expungement
2021 MT 253
Wallace v. Law Offices of Bruce M. Spencer, PLLC
The Supreme Court designated a litigant with a long history of frivolous and harassing conduct in the Montana courts a vexatious litigant and imposed upon him a statewide pre-filing restriction.
Wallace appealed from District Court rulings that granted summary judgment in favor of the defendants to his lawsuit and declaring Wallace a vexatious litigant subject to a pre-filing requirement in the First Judicial District Court. Wallace appealed and Appellees urged this Court to also declare Wallace a vexatious litigant on a statewide basis.
The Supreme Court determined that Terry Wallace was a vexatious litigant by utilizing the five- factor test from McCann v. McCann, 2018 MT 207, ¶ 38, 392 Mont. 385, 425 P.3d 682, concluding that a declaration that Wallace is a vexatious litigant is warranted. Although every person is guaranteed access to Montana’s courts through the State Constitution, the right is not absolute; it may be limited for reasons rationally related to legitimate state interests, including protecting the court system and other litigants from the harmful actions of a vexatious litigant.
Wallace burdened the courts with numerous frivolous lawsuits. His actions resulted in sanctions from the district court and an Order of Discipline by the Supreme Court. Wallace did not undertake his actions with good faith; rather, his baseless claims and hostile behavior were intended to harass those he perceived as adversaries. His conduct was even less excusable because he was a licensed attorney and should have understood his actions were improper. Wallace wasted the resources of the Montana court system and those of the parties he forced to take part in his unnecessarily drawn-out legal proceedings. Finally, he refused to pay monetary sanctions, instead evading service of process and retaliating with another frivolous lawsuit. Lesser sanctions had no effect on Wallace’s behavior, and it was necessary to issue the greater sanction of designating him a vexatious litigant statewide and imposing a statewide pre-filing restriction. Before Wallace can file any document in any court in Montana, he must obtain pre-approval from that court.
Points of Interest: vexatious litigation, sanctions
2021 MT 254
In the Matter of the Conservatorship of H.D.K.
In a matter involving the estate planning of an elderly mother who was subject to a conservatorship, the Montana Supreme Court upheld the District Court’s allocation of the mother’s properties as consistent with the mother’s testamentary intent.
H.D.K. owned several real properties that she hoped to devise to her two children after her death. As early as 2009, she expressed an intent to devise these properties to her son and daughter in a 60/40 allocation, respectively. However, after ten years of estate planning efforts, her cognitive ability began to decline. As a result, H.D.K.’s daughter successfully petitioned the District Court to appoint an anti-elder abuse organization as H.D.K.’s conservator. In appointing the conservator, the court cited the need to protect H.D.K.’s intent in her estate planning from the undue persuasion of her children, who had a highly contentious relationship with each other. H.D.K.’s daughter and H.D.K.’s counsel both advocated for the conservator to implement a plan that would, upon H.D.K.’s death, devise her properties to her son and daughter in a 60/40 allocation. However, H.D.K.’s son contested the implementation of this plan, alleging it was inconsistent with H.D.K.’s testamentary intent in light of a separate “proposed deal” that he and H.D.K. had created in 2019, which gave him ownership over additional properties. To assess H.D.K.’s true testamentary intent, the District Court held a hearing. Based on H.D.K’s testimony, the District Court issued an order which found that, despite declining cognitive abilities, H.D.K. possessed testamentary capacity. The order concluded that substantial evidence supported the view that H.D.K.’s true testamentary intent was to effect the 60/40 plan and it ordered the conservator to implement it.
H.D.K.’s son appealed the 60/40 allocation and the District Court’s determination that H.D.K. possessed testamentary capacity. The Supreme Court affirmed both rulings. The Court cited the substantial amount of evidence the District Court had reviewed in determining the 60/40 plan was consistent with H.D.K.’s testamentary intent. The District Court’s decision to only permit written testimony from H.D.K’s son did not violate his procedural due process rights—especially given that the court had admitted and reviewed his 300-page affidavit. Lastly, the Court rejected his argument that the District Court erred by failing to make determinations regarding the present values of the properties; the court was not required to issue present valuations when those valuations may prove irrelevant as H.D.K. is still alive and the distribution of her properties might not occur until years later.
Points of Interest: trusts and estates, conservatorship, testamentary intent
2021 MT 255
(1) Claims of the State’s failure to turn over, collect, or preserve evidence that is only potentially exculpatory require a showing of bad faith as well as that the evidence was lost from State possession. (2) A prosecutor’s questions regarding whether a defense expert carried out an evidentiary analysis do not improperly skew the burden of proof as long as questions were clearly targeting the credibility of the expert’s claims about the analysis and not insinuating it was necessary to prove innocence.
Fisher moved to have homicide-related charges dismissed, alleging the State had mishandled the crime scene in violation of his right to access exculpatory evidence. He faulted investigators for leaving items at the scene, such as trace materials like hairs he speculated might exonerate him. He also pointed to an alternate suspect in the case who was a sheriff’s deputy. The deputy had been barred from work on the case given his personal connection, but he later went to the property to check on horses he pastured there and to make sure the property. While there, he paid a cleaning service to sanitize the bedroom where the crime had occurred.
The District Court denied the motion to dismiss, and the Supreme Court affirmed. Fisher had failed to show bad-faith motivations behind State investigators’ forensic work, and any potentially exculpatory evidence left on the scene was no longer in State custody after investigators left. Thus, the deputy’s cleaning of the room was not a constitutional violation.
Fisher further alleged prosecutorial misconduct. Fisher had called an expert to testify that the State could have done more to collect fingerprint evidence, implying that doing so might have shown a culprit other than Fisher. The prosecutor asked the expert why he hadn’t found such evidence either, and Fisher objected, arguing that the prosecutor’s comments tainted the jury’s presumption of his innocence. The comments, in context, did not rise to improperly insinuating Fisher had to prove anything, but were merely an attempt to dampen the credibility of the expert’s claim that fingerprint analysis mattered as a source of doubt.
Points of Interest: discovery, evidence, prosecutorial misconduct
2021 MT 256
Defendant waived his attorney-client privilege by testifying at his bail-jumping trial about his communications with his former attorney regarding his missed court date. Defendant’s waiver allowed the former attorney to testify about the same information at the trial as a rebuttal witness for the State.
Payne did not appear for two criminal trials and was charged with bail-jumping. At his bail-jumping trial, Payne elected to testify, despite being warned by the judge that there was a “distinct possibility” that he could waive his attorney-client privilege in doing so. Payne testified about his communication with former attorney, Scheveck, who had represented Payne at the missed trials. In his testimony, Payne alleged that he missed his trials because Scheveck gave him insufficient notice of his court date. The State then called Scheveck to testify as a rebuttal witness, and the court allowed him to testify under a Gillham order. Payne did not object to the testimony. Scheveck then testified about his attempts to communicate with Payne about his court date. Payne was convicted of bail-jumping and appealed the court’s decision to allow Scheveck’s testimony, claiming it violated attorney-client privilege.
The Supreme Court affirmed Payne’s conviction and concluded that he impliedly waived his attorney-client privilege when he testified about the privileged communications and failed to object to Scheveck’s testimony at trial. The District Court did not err when it allowed Scheveck to testify about the same information for which Payne had already waived his privilege. Likewise, Scheveck did not provide ineffective assistance of counsel (IAC) by testifying because the information was no longer privileged; therefore, his performance was not deficient. Finally, Payne’s IAC claim regarding Scheveck’s representation in the underlying missed trials should be brought on appeal of those convictions, not the bail-jumping conviction.
Points of Interest: attorney-client privilege, waiver, ineffective assistance of counsel
2021 MT 257
On plain-error review, Respondent could not establish that he was prejudiced by the District Court’s failure to obtain a post-petition mental health evaluation of him before his recommitment hearing.
B.A.F. has been under the care of the Center since his first civil commitment in 2016. Susan Stevens, the professional responsible for B.A.F., petitioned for B.A.F.’s recommitment in 2019. Stevens’s petition included a detailed mental health assessment of B.A.F. and comprehensive medical and behavioral records. The District Court found probable cause for recommitment, based on Stevens’s petition, and ordered Stevens to conduct a post-petition mental health assessment, as required by Montana’s civil commitment statutes. However, Stevens did not conduct a post-petition evaluation of B.A.F. because B.A.F. had refused to cooperate with Stevens’s pre-petition mental health assessment. Two months after the finding of probable cause, the court held a contested hearing. It found that the Center is the least restrictive environment for B.A.F. and extended his commitment by one year.
On appeal, B.A.F. argued that the court erred when it recommitted him to the Center without a post-petition mental health evaluation as required by § 53-21-122(2)(a), MCA. Since B.A.F. did not raise this argument below, the Supreme Court applied plain-error review. Although the District Court erred when it recommitted B.A.F. without a post-petition mental health evaluation, it had ample medical, psychiatric, and behavioral records on which to base its decision to recommit B.A.F., including recent reports from the Center’s staff that B.A.F. was refusing medication and experiencing delusions. Therefore, the absence of a post-petition mental health evaluation did not result in a manifest miscarriage of justice, leave unsettled the fairness of the proceedings, or compromise the integrity of the process.
Points of Interest: involuntary commitment, plain error
2021 MT 262
Civil commitment reversed because the waiver of Respondent’s presence at the initial hearing on the commitment petition prejudiced his substantive rights.
F.S. was not present during the initial hearing on the State’s petition. F.S.’s attorney said, “He’s very hard of hearing and he has dementia; I would like to waive his presence at the initial hearing.” The District Court agreed to waive appearance “under the circumstances, including the Respondent’s current condition, as well as him being hard of hearing[.]” The court indicated that it would “re-advise [F.S.] of his rights” when he appeared for the adjudicatory hearing. All parties were represented by different counsel at the adjudicatory hearing, and the District Court never did advise F.S. of his statutory and constitutional rights in the proceeding.
On appeal, the Supreme Court pointed out that F.S. could not waive his right to be present at the initial hearing except under § 53-21-119(2), MCA. The presiding judge made no record and did not make the factual findings that the statute requires. The Court found plain error under the circumstances of the case. First, the probable value of the initial hearing is substantial. It is the first opportunity for a respondent to see the judge and learn about the legal process that could take away the respondent’s liberty—the substantive effect of the petition. Without a record substantiating that the essential purposes of the initial hearing were met, the absence of a valid waiver of the right to be present undermines the integrity of the commitment process. Second, there was no record that anyone had discussed with F.S his rights, and the record showed that the day before the adjudication hearing F.S. “stated an understanding that he is supposed to talk to the judge tomorrow but does not appear to understand why.” On this record, the error prejudiced F.S.’s substantial rights and compromised the integrity of the judicial process required in commitment proceedings.
Points of Interest: involuntary commitment, waiver, right of presence
2021 MT 263
Jury instructions on the defense of “Justifiable Use of Force” are only warranted if the theory is supported by the evidence presented at trial.
Marquez was in custody at the Lewis and Clark County detention center when the toilet in his cell overflowed. An officer handcuffed him to take him out of the cell while other officers cleaned up the flooding. Marquez and the officer scuffled, and the officer held Marquez down on a bench during the clean-up. Shortly after they got to the bench, Marquez kneed the officer in the chest. For this act, the State charged Marquez with assault on a peace officer.
At trial, the jury watched two videos of the incident and convicted Marquez. Marquez did not give a defense presentation and instead rested after the prosecution’s case. The judge declined to instruct the jury on the law regarding justifiable use of force, which is an affirmative self-defense theory. Marquez appealed and said the instruction should have been given.
The Supreme Court affirmed, noting that the justifiable use of force defense requires evidence to support it. Marquez argued that the applicability of the defense was inherently obvious in the videos. But in part because the videos made Marquez appear to be the initial aggressor, the Supreme Court reasoned that based on the State’s evidence alone, without any additional evidence from Marquez’s side, the elements required to justify self-defense were not apparent.
Points of Interest: affirmative defenses, self-defense, jury instructions
2021 MT 264
A “communication” is not required to support a stalking charge under the 2017 version of the stalking statute.
Hren and Nelson own land along the Small Horn Canyon Road, where they have a long-running feud with other property owners along the road. In 2014, the Meine family was granted a prescriptive easement allowing them to access their property along the road by traveling through Hren and Nelson’s land. Hren and Nelson responded to the easement by putting up barricades and repeatedly harassing the Meine family. After being charged with criminal endangerment for hiding a decking screw in a railroad tie they used to create a fence, Hren and Nelson were ordered to not have contact or interfere with the Meines. Hren and Nelson then harassed the Meines by closing gates with barbed wire, changing the hinges on a gate to swing in the opposite direction and block the easement, placing a new gate, and putting rocks in the roadway the Meines used. For this conduct, they were charged with stalking. Arguing that the stalking statute requires a “communication,” Hren and Nelson moved to dismiss the charges against them, which the District Court denied. Hren and Nelson were then convicted at trial.
On appeal, the Supreme Court affirmed the stalking convictions. The 2017 stalking statute prohibited “harassing, threatening, or intimidating the stalked person, in person or by mail, electronic communication, as defined in 45-8-213, or any other action, device, or method.” The statute prohibits conduct which harasses, threatens, or intimidates a stalked person, not simply communications which do such, and it is possible to harass, threaten, or intimidate someone in person without ever speaking or writing.
Points of Interest: stalking, statutory interpretation
2021 MT 267
Town of Ekalaka v. Ekalaka Volunteer Fire Dep’t, Inc.
Despite the town of Ekalaka’s historic delegation to its volunteer fire department to operate with relative independence, according to the laws governing municipal departments and private fire companies, the department is municipally owned and not an independent private entity.
After a clash over the construction of a new fire hall, the Ekalaka Volunteer Fire Department asserted that it was not municipally owned and was actually a private fire company not subject to the town government’s managerial authority. The town went to Carter County District Court and filed for a declaratory judgment that the department was municipally owned.
The District Court granted summary judgment to the town, and the Supreme Court affirmed. The Court addressed whether the town had complied with state statutes governing the creation and maintenance of municipal fire departments. Ekalaka had validly created a municipal department in 1915, and although its oversight was less strenuous over the decades than state law requires in some ways, that laxity does not somehow dissolve municipal ownership. The Court next addressed whether the fire department could exist as a “private fire company” under the law and found that the department had not adequately complied with those statutes to qualify.
The Court also discussed various documents the town and the department presented to prove how the department acted or was perceived in the past. None of this evidence, the Court noted, could suffice to save the department’s theory of its independence.
Points of Interest: local government
2021 MT 268
Defendant’s comments made during sexual assault action in youth court were properly admitted as motive evidence under M. R. Evid. 404(b) in a years-later sexual intercourse without consent action where his statements indicated a “longstanding sexual fixation” and the victim in both cases was the same individual.
In December 2017, Murphy was charged with sexual intercourse without consent for allegedly raping Q.M., a minor. The State sought to introduce statements Murphy made over the course of a 2013 youth court proceeding in which he eventually pled guilty to sexually assaulting Q.M, as well as several statements by Q.M. alleging additional sexual abuse Murphy perpetrated on her. The District Court admitted the evidence, under both Rule 404(b) and § 26-1-103, MCA, the “transaction rule,” reasoning that Murphy’s identity and motive as an alleged perpetrator were at issue, and that one or more of Murphy’s statements indicate a “desire to engage in sexual conduct with Q.M.” and a “longstanding sexual fixation” with Q.M. that he does not experience with others. Regarding the “transaction rule” the District Court concluded Murphy’s conduct was admissible as a “pattern of escalating conduct.” Murphy pled guilty, reserving the right to appeal the evidentiary rulings.
On appeal, the Supreme Court affirmed, relying solely on the evidence’s admissibility as motive evidence pursuant to M. R. Evid. 404(b). The Court concluded that Murphy’s conduct and words do not merely demonstrate a “general sexual desire” but rather a “very particular one”; a “longstanding sexual fixation” with Q.M. Thus, the evidence demonstrated the “utterly plausible motive” that Murphy struggled with incestual feelings towards Q.M. which he repeatedly acted on. The Court additionally upheld the determination that the evidence’s probative value was not substantially outweighed by danger of unfair prejudice under M. R. Evid. 403 because some jury hostility or sympathy “may be inherent in the nature of the allegations against Murphy,” and the other acts evidence was not more abhorrent than the current charge.
Points of Interest: evidence, Rule 403, Rule 404
2021 MT 269
(1) A warrantless pat-down cannot be justified as a general safety practice; (2) evidence discovered during a subsequent consensual search of a vehicle is not subject to suppression where the consent was the result of a free will choice.
An officer responding to a citizen complaint witnessed Laster watching as another driver attempted to pull a stuck vehicle out of some snow. The officer activated his top lights because he believed the vehicle posed a traffic hazard, approached Laster, and conducted a pat down search which resulted in the discovery of a pipe with methamphetamine residue. The officer did not testify to any reason to believe Laster may have been armed and presently dangerous, testifying instead that he makes a personal practice of patting down any person to whom he may be in close proximity for a period of time. Laster consented to a search of his vehicle, which resulted in the discovery of suspected methamphetamine and other items associated with drug distribution. The District Court denied Laster’s motion to suppress the pipe and the items found in his vehicle and Laster pled guilty to criminal possession of dangerous drugs.
On appeal, the Supreme Court rejected the lower court’s reliance on the community caretaker doctrine to support the stop and similarly rejected the State’s contention that the responding officer had a reasonable particularized suspicion that Laster had committed or was about to commit a drug offense or property crime. Although the officer’s initial investigatory stop was justified by the reasonable suspicion that Laster’s vehicle was violating traffic provisions, the pat-down search was a violation of Laster’s privacy rights, as the officer had no reasonable particularized suspicion that Laster was presently armed and dangerous; such warrantless searches cannot be justified as a general safety practice.
While the search of Laster’s vehicle partially resulted from the unconstitutional pat-down search and discovery of the pipe, his consent to the vehicle search supplied an “independent source” for the discovery of the contraband within the car, a recognized exception to the exclusionary rule. Because the record indicated that this consent was primarily the result of Laster’s intervening free will choice, the vehicle search was sufficiently attenuated to be cleansed of the prior illegality such that the evidence recovered from the vehicle was not subject to exclusion.
However, because the pipe was subject to suppression as the direct result of the illegal pat-down search, and the record was unclear as to which evidence provided the factual basis for the guilty plea, the Court reversed and remanded for a new trial.
Points of Interest: warrantless searches, search and seizure, privacy
2021 MT 270
Law enforcement unconstitutionally seized an individual when they prolonged the interaction and asked to search the person’s vehicle based on the belief that the person was staring at a police van full of marijuana too long.
Pham, a Vietnamese immigrant, was charged with felony possession with intent to distribute after law enforcement found 19 pounds of marijuana in his vehicle. The District Court denied his motion to suppress the marijuana, concluding that Pham was not seized, and that Pham voluntarily engaged with police and consented to the search. Pham was convicted of felony possession with intent to distribute.
On appeal, the Supreme Court reversed Pham’s conviction. The Court concluded that Pham was seized by law enforcement when law enforcement continued speaking with Pham after confirming Pham was not lost or committing any crime. The Court noted that a reasonable person would not have felt free to leave when faced with multiple law enforcement officers asking if they possessed guns, knives, drugs, or child pornography.
The Court next concluded that law enforcement lacked a reason to seize Pham. Based on the testimony, law enforcement stopped Pham after he stared at a police van full of marijuana for too long. Law enforcement was aware that Pham was Vietnamese and that several Vietnamese people had been arrested on the route Pham was traveling. The Court found no objective information to support seizing Pham and concluded his seizure was unconstitutional.
Points of Interest: search and seizure, warrantless searches, consent to search
2021 MT 275
A court may impose restitution on a defendant whose only income consists of a protected benefit, provided that the court does not order the defendant to pay the restitution from the protected benefit.
Corriher is a veteran receiving veteran’s benefits, a protected benefit under federal law. After being charged with DUI, Corriher left the state, resulting in his extradition. At his sentencing, the District Court imposed restitution for the cost of extradition and required Corriher to surrender his medical marijuana card. Corriher objected to both sentencing conditions, arguing the court could not impose restitution because his only income was a protected benefit, and that the medical marijuana condition had no nexus to his offense and was therefore unconstitutional.
On appeal, the Supreme Court upheld the District Court’s imposition of restitution and the medical marijuana condition. Although Corriher’s only income was his protected veteran’s benefits, that alone did not make the restitution order illegal, or prohibit the District Court from imposing statutorily mandated restitution. Corriher could petition the District Court to “adjust or waive restitution” as unjust if he was unable to pay the restitution with his unprotected income. The Court upheld the condition requiring Corriher to surrender his medical marijuana card as well, holding that the District Court established the required nexus between the condition, Corriher, and his crime.
Points of Interest: restitution, sentencing conditions
2021 MT 276
Trial court committed reversible error by allowing the replay of two videos that comprised the entirety of the State’s evidence during jury deliberations without notice to the parties, efforts to determine if excerpts would be responsive to the jury’s needs, supervision, or a weighing of the probative value against the danger of undue emphasis.
Based on incriminating game camera footage capturing a belligerent verbal and physical interaction with his teenaged son, Hoover was charged with partner or family member assault, third or subsequent offense. The State’s case at trial consisted almost entirely of the game camera footage and video footage of Hoover’s post-arrest police interrogation, which captured Hoover’s self-incriminating statements and agitated demeanor. Hoover testified in his defense, calmly asserting that his actions had constituted acceptable parental discipline. During jury deliberations, the District Court authorized, without notice to the parties, the jury’s review of the game camera footage once and the interrogation video twice. The jury found Hoover guilty after an overnight recess and receiving a “dynamite” instruction from the court. The court denied Hoover’s motion for a new trial on the basis that any error in allowing the replay was harmless.
On appeal, the Supreme Court held that the videos were testimonial in nature and their replay—without notice to or conferral with the parties, efforts to determine precisely which portions of the footage would be responsive to the jury’s purpose in seeking the review, supervision by the court and the parties, or a careful weighing of the probative value of the replay against the danger of undue emphasis—constituted a violation of § 46-16-503(2), MCA, and the related common law rule generally prohibiting replay of testimonial materials during jury deliberations. The State could not bear its burden of demonstrating that the error was harmless: The replayed videos constituted the entirety of the evidence of Hoover’s guilt, the entirety of the videos had been replayed, and the jury did not reach a verdict until after reviewing the footage and receiving a dynamite instruction.
Points of Interest: evidence, harmless error, jury deliberations
2021 MT 277
Defendant’s due process rights were not violated where State employee shredded allegedly exculpatory notes for confidentiality purposes, and court did not err in barring Defendant from informing jury about the shredding. The court also properly limited the scope of testimony from Defendant’s expert witness.
Villanueva was charged with two counts of sexual assault against two minors. During discovery, Villanueva moved to obtain copies of all handwritten and electronic notes taken by a Child Protection Specialist (CPS) during her interviews with Villanueva’s family members. The CPS could not find her handwritten notes from these interviews but stated she had likely shredded them after entering them into CFS’s online note-taking database, in accordance with a directive from her supervisor motivated by confidentiality concerns. Villanueva moved to dismiss on the grounds that the State violated his due process rights by destroying the notes in bad faith. The District Court denied Villanueva’s motion. Later, the court granted two motions in limine by the State: the first prevented Villanueva from presenting evidence related to the CPS’s destruction of her notes; the second prevented Villanueva’s expert witness from testifying about the “credibility” of any State witnesses. The court also prevented Villanueva’s expert from testifying about the specific facts of Villanueva’s case. Villanueva was convicted on two counts of sexual assault.
On appeal, the Montana Supreme Court affirmed Villanueva’s convictions. First, the Court reaffirmed the denial of Villanueva’s motion to dismiss, holding that Villanueva’s due process was not violated because the State employee who shredded the allegedly exculpatory notes did not act in bad faith, as she was acting in accordance with a confidentiality-based directive. Based on this, the Court also upheld the District Court’s decision to prevent Villanueva from presenting the jury with evidence related to the destruction of these notes. Lastly, the Court affirmed the lower court’s decision to limit the scope of testimony provided by Villanueva’s expert.
Points of Interest: due process, evidence, experts
2021 MT 279
Vulles v. Thies and Talle Mgmt, Inc.
A court can dismiss a proposed class action based on plaintiffs’ complaint alone under M. R. Civ. P. 12(b)(6) if the complaint does not allege sufficient facts to support class certification under M. R. Civ. P. 23.
A group of tenant plaintiffs sued defendant landlords for allegedly violating the Montana Residential Landlord Tenant Act and other laws by including illegal provisions in their lease agreements. The district court dismissed most of the plaintiffs’ claims, including a claim alleging a class action, but left two claims standing for one plaintiff. Both parties failed to recognize that under M. R. App. P. 6, they could not appeal before the district court issued a final judgment; therefore, the Court did not review the majority of their appellate arguments.
However, the claim for a class action was ripe for review. The Complaint alleged facts intended to show that the proposed class met the requirements of Rule 23, but the court dismissed the claim after determining that the facts pled did not meet two out of the four requirements of Rule 23(a). Plaintiffs argued that the court dismissed their class action prematurely and they should have had the chance to present their arguments in a separate Motion for Certification of a Class under Rule 23. The Supreme Court disagreed. This Court greatly defers to the district court in class action management decisions, as it is the court that ultimately administers the class action proceedings. Here, the Court could only look at a narrow portion of the case due to most of the claims being dismissed, and it deferred to the district court and affirmed the dismissal based on plaintiffs’ Complaint.
Points of Interest: civil procedure, class action, M. R. App. P. 6
2021 MT 280
Carter v. Badrock Rural Fire Dist.
A defendant completing service of its answer one day past the deadline of M. R. Civ. P. 12 does not require a district court to enter a default judgment in favor of a plaintiff.
Plaintiffs served a quiet title action complaint on Defendants. Twenty-two days later—one day beyond the time limit for service of an answer under M. R. Civ. P. 12—the Defendants completed service of their answer. Plaintiffs later moved for a default judgment due to the Defendants’ answer being one day late, which the district court denied.
On appeal, the Supreme Court affirmed the district court’s denial of the plaintiffs’ motion for default judgment. The plaintiffs were not prejudiced by the one-day delay and had not even moved for default prior to the defendants filing their answer.
Points of Interest: civil procedure, default judgment
2021 MT 281
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
2021 MT 287
McDonald and a group of plaintiffs sued the Secretary of State, alleging that a law passed by the 2021 Legislature was unconstitutional and seeking to enjoin the Secretary from acting to carry it out. They served the Secretary of State, but they did not serve the Attorney General’s office and instead only sent a “notice of constitutional challenge.” Such notices inform the Attorney General of suits that implicate state laws but are not the same as service of process on the State. Later, when the Attorney General’s office notified the plaintiffs that service was incomplete, the plaintiffs provided and executed a service acknowledgment.
The Secretary moved to substitute the District Court judge presiding over the case. Montana law gives parties an entitlement to such a request within 30 days of service of process. The Secretary filed her motion more than 30 days after she was served, but less than 30 days after service was perfected on the Attorney General’s office. The District Court denied the motion, holding that only the date of service on the Secretary mattered.
The Supreme Court reversed, noting that a lawsuit against a state officer in an official capacity is governed by the service of process rules that apply to service against the State, which require service on the Attorney General’s office as well as the officer. The complete service that started the 30-day substitution clock did not occur until both were properly served.
Points of Interest: civil procedure, service, substitution
2021 MT 288
Defendant’s claim that trial counsel was ineffective for failing to object to prior consistent statements from a forensic interview at trial could not be reviewed on appeal due to an insufficient record.
Mikesell was charged with felony sexual intercourse without consent for conduct involving D.T. After disclosing the conduct, D.T. was forensically interviewed. Before Mikesell’s trial, the State and defense counsel agreed to introduce D.T.’s forensic interview video if D.T.’s trial testimony was inconsistent. D.T.’s trial testimony contained several inconsistencies, and the video was introduced. Defense counsel asked several questions to elicit inconsistencies and highlighted those inconsistencies in their closing argument. Mikesell was convicted.
On appeal, Mikesell argued he received ineffective assistance of counsel. The Supreme Court affirmed his conviction. The Court noted the inconsistencies between D.T.’s forensic interview and trial testimony and defense counsel’s questioning. The record failed to fully explain defense counsel’s failure to object to the forensic interview video. Based on the record, the Court declined to speculate as to defense counsel’s tactics. The Court dismissed Mikesell’s ineffective assistance of counsel claim without prejudice.
Points of Interest: ineffective assistance of counsel, record on appeal
2021 MT 289
District court erred in finding that an insured was not entitled to under-insured motorist coverage (“UIM”) under a policy exclusion as the policy exclusion violated public policy by relying upon an unattainable condition precedent.
Goss was injured by a car-driver’s negligence while he was riding his motorcycle. Goss’s insurer denied him UIM and medical payment (“MP”) coverage because Goss’s motorcycle was not insured for UIM coverage under the policy, and Goss’s use of the motorcycle excluded him from what constitutes a “covered person” under the MP provision. The district court affirmed the validity of these exclusions.
On appeal, the Montana Supreme Court reversed the District Court as to the UIM coverage. The UIM exclusion removed coverage “while occupying, or when struck by, any motor vehicle owned by [the insured] which is not insured for UIM [coverage] under this policy.” The carrier justified this provision as ensuring that individuals insure all their vehicles appropriately and, for example, only insuring one out of seven owned vehicles and reaping the portable UIM benefits under the policy for a single vehicle. Since the insurance carrier did not insure motorcycles, Goss could not insure all his vehicles under the policy. The provision was theoretically permissible, but under these circumstances violated public policy because it conditioned coverage upon an impossibility—the insured purchasing coverage for a vehicle with the carrier that the carrier did not provide. The Court affirmed the District Court regarding the MP coverage exclusion because it excluded motorcycles by definition, which is a permissible limitation on non-mandatory coverage Goss and USAA freely contracted for.
Points of Interest: insurance, contracts
2021 MT 291
Youth is a mitigating sentencing factor, not a consideration for the jury when determining a youth offender’s guilt or innocence. Additionally, because J.W. was the alleged perpetrator of the charged offense of sexual intercourse without consent, J.W.’s proposed age of consent jury instruction was not legally relevant to the jury’s fact-finding mission.
A youth court jury convicted 14-year-old J.W. of the offense of sexual intercourse without consent, a felony if committed by an adult. At trial, J.W. presented the affirmative defense of consent, and argued that the 16-year-old victim only reported the incident months later to avoid being charged with statutory rape.
Prior to deliberation, the Youth Court refused to give a set of J.W.’s proposed jury instructions that would have allowed the jury to consider J.W.’s youth characteristics when determining culpability. The court also refused to instruct the jury on the legal age of consent.
On appeal, the Supreme Court held that neither denial was an abuse of discretion. The Court declined to extend its holding in Steilman v. Michael, 2017 MT 310, 389 Mont. 512, 407 P.3d 313, to a youth court jury’s determination of culpability. In Steilman, the Court held that “children are constitutionally different from adults for purposes of sentencing under the Eighth Amendment.” The Youth Court did not abuse its discretion when it refused to instruct the jury on the statutory age of consent because the instruction had no legal basis within the context of the case. Only victims can be incapable of consenting, and the age of the perpetrator or youth offender is not an element of the offense of sexual intercourse without consent.
Points of Interest: affirmative defenses, consent, Youth Court
2021 MT 292
Hathaway v. Zoot Enterprises, Inc.
As long as an employer provides a fired employee a copy of its internal grievance procedures, it has provided notice of those procedures for purposes of the WDEA.
Zoot fired Hathaway in 2019, providing him at that time with a policy handbook that contained Zoot’s internal grievance procedure. Hathaway sued for wrongful discharge. Hathaway also submitted an age discrimination claim to the Montana Human Rights Bureau, but the HRB dismissed the case. Afterwards, Hathaway asked the District Court for leave to add an age discrimination claim to his wrongful discharge case.
Zoot moved for summary judgment on the wrongful discharge count. Hathaway responded that Zoot should have more forcefully notified him of the grievance process, and he argued he shouldn’t have to follow the process if it would only be another plea to the same managers who fired him. The District Court granted summary judgment to Zoot, ruling that Hathaway had failed to first pursue Zoot’s internal grievance process as the WDEA requires. The District Court also denied Hathaway leave to add an age discrimination claim, noting it would be futile considering the proceedings thus far.
On appeal, the Supreme Court affirmed the judgment dismissing the wrongful discharge count. It also affirmed the denial of Hathaway’s request to add an age discrimination claim to his District Court case; although the legal standards that rendered his potential claim futile would differ slightly under state and federal discrimination statutes, the presence of good cause for the firing, which Zoot had demonstrated in the wrongful discharge case, would defeat an age discrimination claim under either law.
Points of Interest: employment law, wrongful discharge, human rights
2021 MT 293
Trial courts are not necessarily required to advise defendants of their right to testify, nor make a record inquiry and determination in order to infer that a defendant’s waiver of the right to testify through counsel was knowing, voluntary, and intelligent.
The State charged Abel with partner or family member strangulation. At trial, outside of the presence of the jury, the District Court twice addressed Abel’s counsel, with Abel present, and asked whether Abel intended to testify. After an overnight recess and a conferral with Abel, defense counsel advised the court that Abel would not offer any witness testimony. Abel was found guilty.
Abel appealed his subsequent judgment and sentence, asserting for the first time that the District Court had erred in accepting his counsel’s representation that he wished to waive his right to testify and preserve his right to remain silent.
The Supreme Court affirmed, holding that the District Court had not committed plain error in accepting defense counsel’s representations. The constitutional requirement that a waiver of the right to testify be knowing, voluntary, and intelligent does not necessarily require the trial court to explicitly advise defendants of their right to testify or make a record inquiry and determination as to whether the waiver was knowing, voluntary, and intelligent. The Court found no record indication that Abel’s ability to understand his right to testify and the consequences of not testifying was impaired or that his attorney had failed to provide him with adequate counsel on the issue or otherwise improperly coerced or prevented him from exercising his right.
Points of Interest: 5th Amendment, plain error, waiver
2021 MT 294
In the Matter of C.L., A Youth
In a criminal matter involving a youth’s alleged violation of a consent decree, the Youth Court’s dispositional orders were reversed and remanded because the State violated Montana’s Youth Court Act by failing to reinstate the youth’s formal youth court petition before continuing formal proceedings.
In August 2018, the State filed a youth court petition against C.L., a minor, charging him with felony criminal mischief. In December 2018, C.L. entered a “consent decree,” pursuant to Montana’s Youth Court Act, § 45-5-1501, MCA, which suspended C.L.’s original youth court petition and subjected him to probation conditions for one year. In July 2019, the State petitioned to revoke probation, alleging C.L. had violated the conditions of his consent decree. C.L. moved to dismiss the State’s petition, arguing the State failed to move to formally reinstate C.L.’s youth court petition, as required under § 45-5-1501(4), MCA. The Youth Court denied C.L.’s motion to dismiss. In a January 2020 dispositional order, the Youth Court granted the State’s motion to revoke C.L.’s probation and ordered that C.L. receive a suspended sentence to DOC, subject to new probation conditions. In February 2020, in response to new allegations about C.L.’s behavior, the State filed a second motion to revoke probation. In July 2020, the Youth Court issued a dispositional order which revoked C.L.’s suspended sentence and committed C.L. to Pine Hills Youth Correctional Facility.
On appeal, the Montana Supreme Court reversed, vacating the two dispositional orders and remanding for an entry of order dismissing the State’s July 2019 and February 2020 petitions to revoke probation. Section 45-5-1501(4), MCA, requires the State to move to reinstate the original youth court petition against a youth in response to that youth’s alleged violation of a consent decree. Because the State never moved to reinstate C.L.’s youth court petition, formal proceedings were never properly recommenced, and C.L.’s consent decree remained operative. As a result, the Youth Court did not have the statutory authority to commit C.L. to the DOC and to Pine Hills.
Points of Interest: Youth Court, revocation
2021 MT 295
The Montana Incentives and Interventions Grid (MIIG) and the distinction between compliance and noncompliance violations in § 46‑18‑203, MCA, do not apply to revocations of misdemeanor suspended or deferred sentences.
The Municipal Court revoked Sadiku’s deferred sentence for violating an order of protection and imposed a six-month suspended sentence.
On appeal, Sadiku argued that, his violation was a “compliance violation,” and, therefore, the court should have exhausted MIIG procedures before revoking his deferred sentence. Sadiku asked this Court to overrule City of Missoula v. Pope, 2021 MT 4, 402 Mont. 416, 478 P.3d 815, holding that the MIIG requirements did not apply to misdemeanor offenders. Sadiku argued that, by its plain and unambiguous language, § 46‑18‑203, MCA, applies to “any offender.”
In Pope, the Court held that the MIIG guidelines apply only to DOC, which supervises only felony offenders. The MIIG provisions in § 46‑18‑203, MCA, therefore, do not affect revocations of misdemeanor sentences. Although § 46‑18‑203, MCA, divides violations of suspended or deferred sentences into “compliance” and “noncompliance” violations, the distinction is of no consequence to misdemeanor offenders. The statute’s omission of misdemeanor revocation processes is confusing, but courts must treat misdemeanor violations as “noncompliance violations” and derive their authority to revoke misdemeanor sentences from § 46‑18‑203(7)(a)(iii), MCA.
Because the Municipal Court properly revoked the deferred sentence, the Court next considered whether the trial court abused its discretion. To revoke a deferred sentence, the court must find that the defendant violated a condition of his sentence by a preponderance of the evidence. Here, the victim testified that Sadiku drove near her work and braked suddenly in front of her. Sadiku claimed that he was driving his son to school. The court found that there were alternate routes available and found by a preponderance of the evidence that Sadiku violated the order of protection. The Municipal Court did not abuse its discretion.
Points of Interest: revocation, MIIG
2021 MT 296
A petitioner’s conviction, not the initial charge, is the dispositive consideration for determining eligibility for expungement or redesignation of a marijuana-related offense under the Montana Marijuana Regulation and Taxation Act. The MMRTA only permits a person to possess an indeterminate amount of marijuana for personal use if that marijuana is produced by plants cultivated and stored in the home in accordance with § 16-12-106(1)(c), MCA.
In 1992, Maier pleaded guilty to possessing over 60 grams of marijuana after challenging the constitutionality of a search by the Billings Police Department that led to the discovery of 32 marijuana plants and equipment in his home. Maier petitioned for expungement or redesignation of his marijuana conviction under the MMRTA’s retroactive provision, which authorizes courts to redesignate or expunge the criminal records of persons who have completed sentences for acts made legal by the new law. The District Court denied Maier’s petition, stating only that Maier was not eligible because his conviction was based on his possession of 32 plants, which exceeds the number of plants permitted by the MMRTA.
On appeal, Maier argued that the court should not be allowed to consider the circumstances of his grow operation because he was never convicted of that initial charge. The Supreme Court agreed that a petitioner’s conviction is the dispositive consideration for determining eligibility for expungement or redesignation of a marijuana-related offense under the MMRTA. However, neither § 16-12-106(1)(a), MCA, nor § 16-12-106(7), MCA, permits a person to possess more than two ounces of marijuana. While § 16-12-106(1)(c)(i), MCA, permits possession of an indeterminate amount of marijuana in a private residence, that provision only applies to marijuana produced by plants cultivated within the parameters of § 16-12-106(1)(c), MCA. Converted to standard weight, 60 grams is 2.12 ounces. Thus, on its face, Maier’s conviction for possessing over 60 grams of marijuana does not qualify for expungement or redesignation under the MMRTA.
Points of Interest: MMRTA, expungement
2021 MT 300
The State is covered by an insurance policy entered into with National Indemnity Company for claims against arising from exposure to asbestos in Libby, and National breached its duty to defend the State pursuant to that insurance contract.
National insured the State under a general liability policy from 1973–1975. Beginning in 2000, claims against the State regarding asbestos exposure before, during, and after that time period began to be filed, and the State began a series of discussions with National regarding whether coverage was available under the policy and if National had any duty to defend the State against the claims. In 2012, National filed this action, arguing it had no obligation to defend or indemnify the State; the State counterclaimed alleging National failed to defend the State pursuant to the terms of the policy. In a series of rulings, the District Court essentially concluded that National breached its duty to defend and, after a period of properly defending the state, breached its duty again by waiting until 2012 to file this action. The court generally rejected National’s coverage defenses but the Policy was applied “to the extent [a] claimant was ‘exposed to asbestos during the Policy period.’”
On appeal, the Supreme Court concluded that the State did not initially tender defense to National until 2005. But when it did so, National breached its duty to defend by representing it would only defend the State against the claims on a pro rata basis. National then changed its position and agreed to fully defend the State in May 2006, subject to a reservation of rights. The State rejected this offer. After that rejection, the State, National, and the claimants continued negotiations regarding a global settlement, which was entered into in 2009. National’s delay in not filing this action until 2012 prejudiced the State by forcing it to “litigate and settle cases in coverage darkness,” and constituted a breach of National’s duty to defend the State.
The District Court correctly concluded that coverage exists under the policy. None of the policy’s coverage exclusions applied, and the State did not objectively intend or expect its actions to lead to injuries. Thus its actions qualified as “occurrences” under the policy. The District Court incorrectly determined of the number of “occurrences” because each of the State’s individual failures to warn constitutes an “occurrence” under the policy and it erred by holding that claimants who were exposed only before the policy period did not qualify for coverage. The Supreme Court remanded the matter for further findings regarding how many failures to warn occurred and the effect those failures had relative to the policy limits as well as additional findings regarding any injuries incurred before the policy period.
The Supreme Court further concluded that the District Court correctly calculated the pre-judgment interest available to the State in the amount of $31 million.
Points of Interest: insurance, duty to defend, pre-judgment interest
2021 MT 301
Despite the prosecution’s error in questioning Defendant about a prior strangulation for the first time on cross-examination, admission of prior bad acts testimony on rebuttal was harmless error because Defendant was acquitted on strangulation and sufficient other evidence supported his PFMA conviction.
Torres was charged with two counts of PFMA and one count of strangulation for alleged violence against his girlfriend. Aspects of the charged events were uncontested from Torres’s and the alleged victim’s testimony, photographic evidence of her injuries, and witness corroboration. However, Torres claimed that one of the PFMA incidents was accidental, not intentional. Torres also testified that the alleged victim and another ex-girlfriend had fabricated abuse accusations to smear his reputation online. On cross-examination, the prosecutor erred by questioning Torres about prior strangulations. He categorically denied any such acts, which the prosecution claimed opened the door to calling his ex-girlfriend as a rebuttal witness and to her testimony about a prior uncharged alleged strangulation. The District Court permitted the ex-girlfriend to testify. A jury convicted Torres of PFMA for a headbutting incident but was unable to reach a verdict on the other PFMA. The jury acquitted Torres of strangulation.
Torres appealed his conviction on the headbutting PFMA on grounds the surprise rebuttal by the State violated statutory pre-trial notice requirements and his substantial trial rights by impeding his ability to prepare for cross-examination. The Supreme Court affirmed, holding that, while the prosecution’s line of questioning was in error, the admission of the ex-girlfriend’s testimony about a prior strangulation was harmless. The jury acquitted Torres on the strangulation charge. The Court held that the jury did not convict Torres on the headbutting PFMA out of prejudicial hostility or sympathy. The record contained sufficient independent evidence to support the conviction.
Points of Interest: prior bad acts, PFMA, sufficiency of evidence
2021 MT 302
The statutory requirement for a defendant to make full restitution to any victim does not relieve the State of the separate statutory requirement to pay certain witness fees and travel expenses to a victim who is subpoenaed as a witness on behalf of the State.
Lamb pleaded guilty via an Alford plea to negligent homicide after a mistrial. The State subpoenaed the father of the homicide victim to testify during trial. The victim’s father sought restitution from Lamb under § 46-18-243(1), MCA, for lost wages and travel expenses related to attending various court proceedings. Lamb objected, alleging the State was obligated to pay certain fees and costs for its subpoenaed witnesses pursuant to §§ 26-2-506 and 46-15-116, MCA. The District Court ordered Lamb to pay the full restitution amount requested.
The Montana Supreme Court reversed and remanded for further factfinding. While the statutes governing restitution and those governing fees for witnesses may overlap under certain circumstances, they are capable of being harmonized. When a crime victim is subpoenaed as a witness for the State, any pecuniary loss the victim witness incurred in attending court proceedings is offset by the witness fee and travel allowance paid by the county under §§ 26-2-501 and 46-15-116, MCA. The witness who is also a victim of the crime may recover any remaining additional expenses reasonably incurred in attending the proceedings, as well as any lost wages, from the offender through a restitution order under § 46-18-241, MCA. The Court remanded for further factfinding, as the record was not sufficient to determine whether the witness fee and travel allowance that should have been paid by the county was included in the restitution request.
Points of Interest: restitution, witness fees
2021 MT 303
Even though the drug substance was never recovered or tested by law enforcement, the State presented sufficient evidence for a jury to convict Defendant of criminal distribution of dangerous drugs by offering substantial circumstantial and corroborating evidence to support the testimony of a minor who claimed Defendant provided him with methamphetamine. Defendant was not deprived of his right of allocution when the court delegated the timing of his statement to his counsel.
A minor disclosed to police that McCoy had provided him with methamphetamine and they had smoked the drug together over a period of months in McCoy’s home. A jury convicted McCoy of Criminal Distribution of Dangerous Drugs. At McCoy’s sentencing, the District Court asked his counsel if McCoy would like to make a statement and his counsel said he would. The court told counsel it would leave the timing of McCoy’s personal statement up to him. Both parties presented oral and written arguments, but McCoy never made a personal, oral statement to the court. McCoy appealed his conviction, asserting lack of sufficient evidence to prove the drug was methamphetamine. He also appealed his sentence, claiming the court denied him an opportunity for allocution, resulting in a sentence that violated the sentencing statute and constitutional principles of due process.
On appeal, the Supreme Court held that the State presented sufficient evidence to convict because multiple witnesses, including McCoy, corroborated the majority of the minor’s testimony, including the effects of the drug and the method of smoking. The consistent presence of methamphetamine in McCoy’s home during the months alleged by the minor was testified to by every witness. Despite the minor being the only witness to testify directly to McCoy providing him methamphetamine, a single witness’ testimony is sufficient for a jury to reach a factual conclusion.
Considering the allocution question, § 46-18-115, MCA, requires the court to personally address the defendant to see if he wants to make a statement, and then give him a reasonable opportunity to do so. McCoy had multiple chances throughout the sentencing hearing to allocute, as the timing was left to his counsel and him. McCoy had the opportunity to present mitigating circumstances through his briefing and during oral argument; his due process rights were not violated.
Points of Interest: due process, allocution, sufficiency of evidence
2021 MT 306
Evidence of flight from a rehabilitation center three weeks after the commission of the charged offense was relevant and admissible evidence.
Strizich was arrested for burglarizing a cabin with an armed acquaintance. After his arrest, he was taken to the Elkhorn Healthcare and Rehabilitation Center to recover from a gunshot wound sustained during the burglary. Three weeks later, he escaped Elkhorn with help from friends, resulting in a high-speed chase. The driver of the escape vehicle later admitted to criminal endangerment in Youth Court.
At Strizich’s trial, the State introduced evidence of his flight. A witness from Elkhorn testified to the nature of his escape, and two Deputies testified about the high-speed chase. The court took judicial notice of the getaway driver’s related Youth Court conviction and read a portion of the order to the jury. Strizich’s trial attorney objected repeatedly on the grounds that this was irrelevant and improper character evidence.
On appeal, Strizich argued that this evidence was improperly admitted and further argued that it unfairly prejudiced him. The Supreme Court rejected Strizich’s unfair prejudice argument because it was not preserved. It further held that evidence of flight is generally relevant because it tends to show the defendant’s consciousness of guilt. Here, Strizich’s flight was accompanied by other factors showing consciousness of guilt, including the high-speed chase and the fact that he fled soon after learning that he would be arrested for the burglary. This evidence, along with Strizich’s testimony that he fled to avoid the legal ramifications of the burglary, could allow a jury to reasonably infer Strizich’s attempt to avoid prosecution—consciousness of guilt.
The Court also rejected Strizich’s unpreserved claim that he was prejudiced by the court’s jury instructions because they did not correctly instruct on the mental states for the charged crimes. Taken as a whole, the instructions fully and fairly instructed the jury on each mental state definition as it applied to the elements of the offenses, and he failed to demonstrate plain error. The Court affirmed Strizich’s convictions of aggravated burglary, criminal trespass to property, and criminal possession of dangerous drugs.
Points of Interest: relevance, sufficiency of evidence, jury instructions
2021 MT 307
In reviewing whether a prosecutor’s opening and closing arguments constitute a plain error denial of due process, the Court considers the challenged statements in the context of the entire proceedings. An unsworn sentencing memorandum did not provide a sufficient record for the Court to review claims of ineffective assistance of counsel on direct appeal.
Polak was convicted upon retrial of the charge of deliberate homicide. Before trial, the District Court granted Polak’s motion in limine to limit evidence of his prior drug offenses and use.
On appeal, Polak argued the State engaged in prosecutorial misconduct and his trial counsel provided ineffective assistance. Polak maintained the State’s discussion of methamphetamine from voir dire through its rebuttal was blatantly prejudicial and implied Polak used drugs in violation of the motion in limine. As Polak failed to object at trial, the Supreme Court reviewed the challenged statements for plain error. The Court considered the context of the entire proceedings and explained it reversed Polak’s first appeal because the District Court abused its discretion in curtailing impeachment of the only eyewitness to the fatal shooting with evidence of her contemporaneous drug use. The State properly sought to prepare the jury for the expected focus on the eyewitness’s drug use and explain her actions in the aftermath of the shooting. As these statements in context were proper, the Court also held trial counsel did not provide ineffective assistance of counsel by failing to object to the statements at trial. The Court declined to review Polak’s other claims of ineffective assistance of counsel on direct appeal. The Court held the unsworn sentencing memorandum in which trial counsel identified things that she “wish[ed]” she would have done differently did not provide a sufficient record to review the remaining claims, as it did not answer why she did or did not take the challenged actions. The Court affirmed Polak’s conviction.
Points of Interest: prosecutorial misconduct, ineffective assistance of counsel, prior bad acts
2021 MT 308
A Special Master appointed to determine whether a court-appointed receiver could condition return of property upon the execution of a release acted within his authority when he determined a release was unnecessary because the receiver was protected by judicial immunity. However, he exceeded his authority when he further purported to grant immunity to the receiver for specific actions undertaken.
A Receiver appointed by a district court to protect the assets of an LLC changed the locks on a building owned by the LLC. PF2, which was not a party to that dispute, contacted the Receiver and demanded return of certain equipment which PF2 claimed it had purchased from one of the building tenants. PF2 threatened to sue the Receiver for conversion. Although PF2 ultimately demonstrated to the Receiver’s satisfaction that it owned the equipment at issue, it refused to sign a release of liability for the Receiver and the Receiver refused to return the property without a signed release. PF2 intervened in the underlying litigation for the limited purpose of seeking return of its property. The District Court then appointed a Special Master to resolve the disputes concerning the return of PF2’s property.
The Special Master determined no release was necessary because court-appointed receivers are protected by judicial immunity for acts taken in good faith and within the authority conferred upon them. The Special Master also granted the Receiver immunity for the actions concerning PF2’s property because the Special Master concluded that the Receiver had done so in good faith and within his authority.
On appeal, PF2 argued the Special Master exceeded the scope of his authority because neither party had argued that receivers are protected by judicial immunity and by granting the Receiver immunity in this instance. The Supreme Court concluded that the question of whether the Receiver could condition return of property on the signing of a release was one of the disputes the District Court appointed the Special Master to resolve and therefore his conclusion that the Receiver is protected by judicial immunity was within the scope of his authority. Moreover, this conclusion was legally correct. However, the Special Master exceeded his authority by granting the Receiver immunity for the specific actions undertaken here because the court did not appoint him to determine whether the Receiver’s actions concerning PF2’s property were undertaken in good faith and within his authority.
Points of Interest: receiver, special master, immunity
2021 MT 309
For survival actions that accrued prior to the enactment of § 27-1-308, MCA (2021), a plaintiff may not recover the reasonable value of medical care and related services when the costs of such care and services are written off under the provider’s charitable care program.
The Ninth Circuit Court of Appeals certified two questions: (1) whether, prior to the enactment of § 27-1-308, MCA (2021), a plaintiff in a survival action could recover the reasonable value of medical and related services when such costs are written off by the medical provider; and (2) whether a charitable care write-off qualified as a “collateral source” prior to the enactment of § 27-1-308, MCA (2021).
Gibson visited the Central Montana Community Health Center, a federally funded health care center, after experiencing symptoms consistent with a heart attack. The Center’s staff did examine him for potential heart issues, and he died from a heart attack one week later at St. Vincent Hospital. St. Vincent and the ambulance provider did not bill or Gibson’s family or estate, instead writing off the value of his care under their charity care programs. Gibson’s estate sued the government under the Federal Tort Claims Act for the Center’s negligence and was awarded $578,248 in damages. The Estate also sought to recover $165,661.50 from the government for the value of medical care Gibson received from St. Vincent and the ambulance provider.
The Court answered “no” to both questions. Although the Estate argued that, under Meeks v. Montana Eighth Judicial District Court, plaintiffs are entitled to recover forgiven medical bills, Meeks held that the reasonable value of written-off medical costs is admissible as evidence to show the nature and severity of the plaintiff’s injuries; it did not determine whether the costs were recoverable. Here, Gibson’s medical and ambulance bills were forgiven by the providers, and the hospital sent the estate a bill showing a balance of zero. Because the Estate did not suffer $165,661.50 in losses, it cannot recover that amount in damages.
Prior to the enactment of § 27‑1-308, MCA (2021), a “collateral source” was defined as “a payment for something that is later included in a tort award and that is made to or for the benefit of a plaintiff or is otherwise available to the plaintiff.” Interpreting the statute’s words according to their ordinary meaning, the Court held that the charitable write-offs were not a “collateral source” because neither was a “payment for something that is later included in a tort award.”
Points of Interest: certified question, torts, damages
2021 MT 312
A general objection at sentencing regarding a defendant’s ability to pay fines and fees is sufficient to invoke the protection of statutes that require courts to inquire into financial means. Financial charges for imprisonment, probation, and treatment costs are also conditioned on a defendant’s ability to pay, but a court may defer determinations about that ability until imprisonment, probation, and treatment terms are complete.
Yeaton pleaded guilty to DUI. The District Court imposed a $5000 fine, $560 in fees and costs, and the yet-unknown costs of alcohol treatment, imprisonment, and probation.
On appeal, Yeaton challenged these financial penalties, based on his inability to afford them because his only income came from social security. During the pendency of Yeaton’s appeal, State v. Ingram, 2020 MT 327, settled Yeaton’s argument that the penalties violated social security protections.
The Supreme Court upheld Yeaton’s $5000 fine because his counsel conceded it was mandatory and thus not subject to the requirements of the ability-to-pay laws. The Court reversed the $560 in fees and costs, which arose under general criminal sentencing statutes. Under these laws, courts may only issue such fees and costs following inquiries into a defendant’s ability to pay, as long as a defendant objects on these grounds. Yeaton’s general complaint about affordability, even though he focused on the social security issue and did not cite the applicable statutes, was sufficient to constitute an objection.
The Court further upheld the District Court’s ruling that Yeaton pay his treatment, imprisonment, and probation costs “if financially able”—meaning the Department of Corrections would later assess his ability to pay after the costs accrued and the amount was clear. The Court rejected Yeaton’s argument that the sentencing court should not be able to defer such findings.
Points of Interest: fines, ability to pay, sentencing conditions
2021 MT 317
Kasem v. Mont. Thirteenth Judicial Dist. Court
Court allowance of withdrawal of a guilty or nolo plea mid-trial is also effectively a grant of a new trial for the purposes of a motion to substitute judge.
Following a “heated exchange” between court and counsel on the third day of his jury trial, Kasem signed the State’s offered plea agreement and changed his plea from not-guilty to “no-contest.” The District Court accepted the change of plea and unconditionally dismissed the jury. Prior to sentencing, Kasem sought leave to withdraw his plea. By written order, the court granted the unopposed motion and set the matter for a jury trial. However, the court subsequently denied Kasem’s motion for peremptory substitution of judge on the grounds that there had been no order for a “new trial” entitling him to substitution under § 3-1-804, MCA.
On a petition for writ of supervisory control, the Supreme Court determined that the District Court proceeding commenced with the empaneling and swearing in of the jury and categorically ended with Kasem’s change of plea and dismissal of the jury. Kasem’s second trial would begin anew with a new jury. Under State v. Terronez, 2017 MT 296, 389 Mont. 421, 406 P.3d 947, district court allowance of a pre-sentence withdrawal of a mid-trial guilty or nolo plea was effectively the grant of a new trial. The Court granted Kasem’s petition and reversed the District Court’s denial of his substitution motion.
Points of Interest: substitution, new trial, supervisory control
2021 MT 318
Under Article II, Section 24, of the Montana Constitution, a court cannot allow a witness to testify by two-way video unless the State demonstrates an important public purpose beyond judicial economy: Expense and burden of travel are insufficient.
Martell was charged with theft after cashing a fictitious and altered check at a check cashing company. Prior to trial, the State moved to allow a witness from the company that issued the check to testify via two-way video because her testimony would last only a few minutes, and the State would have had to transport her 481 miles to testify in person. The District Court granted the motion, finding that travel would be “impractical.” At trial, the witness testified via two-way video that the company had never done business with Martell.
A majority of the Supreme Court held that the District Court violated Martell’s right to confront witnesses under Article II, Section 24 of the Montana Constitution. Reiterating its holdings in State v. Mercier, and State v. Bailey, the Court found that judicial economy alone is not a public policy reason sufficient to preclude the constitutional right of a defendant to face-to-face confrontation at trial.
A plurality of the Court held the District Court’s error to be harmless. The testimonies of the check cashing employee, a bank representative, and the investigating detective, along with a call log from the check cashing employee all provided cumulative evidence.
In a special concurrence, Justice Sandefur and Chief Justice McGrath disagreed with the plurality’s conclusion that the error was harmless. The concurrence, however, would have concluded that the District Court did not err in allowing the witness to testify via two-way video under the Confrontation Clause. Therefore, the Court upheld Martell’s conviction.
Points of Interest: confrontation clause, witnesses, video testimony
2021 MT 319
East Bench Irrigation Dist. v. Open A Ranch
Water Court’s decrees for the U.S. Bureau of Reclamation’s water rights were reasonable, statutorily sufficient, and correctly applied Montana water law. The court correctly removed factually inaccurate “curtailment” remarks from related private water rights in the Beaverhead River valley.
Open A Ranch contested the Bureau of Reclamation’s water rights for Beaverhead River direct flow and Clark Canyon Reservoir storage as listed in the 41B Basin’s preliminary decree. The Bureau’s rights stemmed from Reservoir construction under the 1944 Pick-Sloan Flood Control Act. Repayment for the federal project involved contracts to deliver Reservoir water between the Bureau and the East Bench Irrigation District and the Clark Canyon Water Supply Company.
The Water Court’s decrees capped acreage for the District based on 1970s DNRC aerial photos. The court also determined Company shareholders’ contractual water was intended to irrigate lands already served by shareholders’ preexisting private rights. Thus, it was sufficient under § 85-2-234(6), MCA, to define one place of use for the Bureau’s Reservoir claim as the lands served by Company shareholders’ private water without further describing specific acreage or boundaries. A case of first impression, the court crafted this solution to accommodate pending adjudication of shareholders’ rights and evidence shareholders had always contractually received their supplemental Reservoir water combined with their private water, making it impossible to separate which lands the Bureau’s water served. On partial summary judgment, the court also found remarks on Company shareholders’ private rights indicating these could be “curtailed” for Reservoir storage pursuant to a 1958 delivery contract were inaccurate because that contract expired and the 2006 renewal contract contained no such provisions. The court removed such remarks from all affected claims.
On appeal, Open A argued the Water Court erred by not limiting the District’s and the Company’s acreage to 1960 congressional estimates for the reclamation project. Open A also contended a specific land description for the Company’s place of use was statutorily required and argued curtailment remark removal was error.
The Supreme Court affirmed, holding the Water Court had correctly interpreted Montana water law for entities impounding water for sale. The Water Court appropriately weighed historic evidence, correctly interpreted the water delivery contracts, and that substantial evidence supported the Water Court’s rulings on the District’s and the Company’s places of use and the curtailment remarks. The Water Court’s decrees for the Bureau’s claims met statutory obligations to sufficiently describe rights for enforcement.
Points of Interest: water law, water rights
2021 MT 320
Although a prosecutor’s statements at trial improperly referenced defendant’s criminal history, the District Court did not err in denying mistrial because the context of the charge necessarily included inferences of criminal history, thus mitigating the prejudicial impact of the statements.
Erickson was charged with Assaulting a Peace Officer after pulling a knife on his probation officer during an appointment. Prior to trial, his attorney moved in limine to exclude references to his criminal history. The prosecutor offered that the State only wanted to be able to tell the jury Erickson was on probation at the time of the offense, given the context of the charge, and the District Court agreed to the limited reference.
At trial, the prosecutor emphasized that Erickson was on felony probation in his opening statement. He also questioned a witness in a way that led her to reveal to the jury that Erickson had served time in prison. Erickson’s counsel moved for mistrial based on these statements, but the court denied the motion.
On appeal, the Supreme Court found the prosecutor’s statement and conduct improper: he purposely violated the limine order by bringing attention to the felony nature of Erickson’s prior crimes and by eliciting improper information about his time in prison from a witness. However, the Court upheld the District Court’s decision to deny a mistrial. There was strong evidence in favor of Erickson’s conviction, without regard to the improper statements, including his own admissions while testifying. Although the statements were inherently prejudicial, the prejudicial effect was significantly lessened by the jury necessarily knowing Erickson was on probation, inevitably leading them to infer he had a criminal history. The prejudicial effect was further lessened by Erickson’s own testimony that his actions were motivated by a desire to “not go back to jail.” Furthermore, the District Court gave a cautionary instruction that addressed the prejudice concerns and instructed the jury not to consider Erickson’s criminal history.
Points of Interest: prosecutorial misconduct, mistrial, jury instructions
2021 MT 321
At sentencing, a general objection regarding a defendant’s inability to pay a fine or fee is sufficient to invoke the inquiry requirements of §§ 46-18-231 and -232, MCA, even without specific objection to each applicable fine or provision.
A jury found defendant Steger guilty of a DUI offense. At sentencing, the District Court conducted a brief colloquy with Steger and his counsel about Steger’s ability to pay public defender fees as outlined in his presentence investigation report. Steger and his counsel described Steger’s physical disability and difficulty affording such costs, and the District Court waived them.
On appeal, Steger argued that the District Court should also have waived the $500 surcharge it imposed under § 46‑18‑236, MCA, which is also subject to the ability-to-pay requirements of § 46-18-232, MCA. A court’s failure to conduct an inquiry into a defendant’s ability to pay costs and fees renders the sentence merely objectionable, not illegal, so the issue Steger raised was whether the exchange about the public defender costs was also a sufficient objection to the surcharge. The Supreme Court held that it was sufficient and held that the District Court erred by imposing the costs without the inquiry required under § 46-18-232, particularly when faced with the initial indication of unaffordability that had arisen.
Points of Interest: fines, ability to pay
2021 MT 323
An attempted deliberate homicide conviction requires an overt act beyond merely having a weapon.
Boyd was ejected from a Miles City bar by the bar owner. Boyd then started a verbal altercation outside the bar in which he repeatedly tried to get the owner to hit him. Eventually, Boyd said to the bar owner, “Are you going to give me one shot? You wait right here. I will be back. You're going to give me one shot? I will be back.” Boyd then went to his second-floor apartment across the street, retrieved a ten-inch knife, and concealed it down his pants. While Boyd was in his apartment, a police officer, who noticed the verbal altercation, arrived and began talking to the bar owner. The bar owner saw Boyd standing on the second-floor landing outside of his apartment and called him down to speak with the officer. Boyd came down, spoke with the officer, and then resisted arrest. Once Boyd was in the back of the police car, the concealed knife was discovered. When asked what he planned to do with the knife, Boyd stated he was going to stab the bar owner in the heart. Boyd was charged with, and convicted of, attempted deliberate homicide.
On appeal, the Supreme Court reversed the conviction due to insufficient evidence. Not all acts towards the commission of a crime are sufficient for an attempt conviction, and that there must be an “overt act” which amounts to the “commencement of the consummation” as well as “some appreciable fragment of the crime committed” to convict a defendant of attempt. Here, while Boyd had threatened the bar owner and retrieved a weapon, the bar owner was in no danger of actually being murdered because Boyd was on the second-floor landing across the street and then voluntarily came down when called to speak with the officer. Though Boyd prepared to commit murder by getting the knife, he did not make an attempt to complete the crime by trying to use it on the bar owner.
Points of Interest: attempt, sufficiency of evidence
2021 MT 324
When a law enforcement officer who initiates a traffic stop on a public road follows the driver into his or her driveway to effectuate the stop, the intrusion is minimal. However, a person has a reasonable expectation of privacy in that driveway once the person communicates that the officer is trespassing and tells the officer to return with a warrant.
Smith sped past a sheriff’s deputy on a county road. The deputy activated his lights and pursued Smith. Smith soon turned onto a 350-foot residential driveway and parked next to the garage. The residence was on five acres surrounded by two fences. Neither fence had “No Trespassing” signs, or closed gates, although the property was secluded from passersby.
The deputy followed Smith into the driveway and advised Smith that he had been speeding. Smith immediately informed the deputy that he was on private property and requested that he return with a warrant. Disregarding Smith’s repeated requests, the deputy continued the stop, requesting Smith’s driver’s license and registration. Eventually, the stop ripened into a DUI investigation. Smith was arrested for DUI, speeding, resisting arrest, and obstructing a peace officer.
Smith appealed the District Court’s denial of his motion to suppress all evidence obtained from Smith’s contact with the officers, arguing he had a reasonable expectation of privacy in the driveway of his residence.
The Supreme Court held Smith had a right to privacy in the driveway of his residence under Article II, Sections 10 and 11, of the Montana Constitution. The physical characteristics of Smith’s property alone did not confer an actual or reasonable expectation of privacy because Smith had not taken steps to communicate his expectation with gates, “No Trespassing” signs, or other means. However, Smith had an actual and reasonable expectation of privacy once he invoked and communicated his expectation of privacy to the deputy. The deputy’s initial entry to effectuate a traffic stop was minimally intrusive because he was ascertaining who lived at the home and whether Smith was the driver. The intrusion became more extensive once Smith explicitly invoked his right to privacy and demanded that the officer get a warrant.
The Supreme Court rejected the State’s argument that Smith’s flight created an exigent circumstance. In light of the United States Supreme Court’s rejection of a general rule that fleeing misdemeanants constitute hot pursuit, and based on the record facts, no evidence of exigent circumstances justified the warrantless entry.
Points of Interest: privacy, constitutional law, traffic stops