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 The District Court refused, concluding the authority Camen presented was superseded by § 27-1-739, MCA, and Camen’s claim failed to conform to the statute.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loss-of-chance theory it approved in Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824 (1985) had been “codified,” not superseded, by § 27-1-739, MCA, and was “included in the issue of causation.”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