2022 MT 1
An insurer was not equitably estopped from enforcing the policy’s lower limit of liability six years into litigation. The “Loss” exclusion provision in its policy did not exclude the class’s damages for the insured’s violation of Montana’s made-whole doctrine.
Allied insured New West who in turn insured Rolan and the class she represents (Plaintiffs). Allied assumed New West’s defense and sent a reservation of rights letter asserting the policy had both a $1 million “each Claim” limit and a $3 million aggregate limit. The letter also asserted coverage was excluded for New West’s willful violations of law. Allied confirmed with New West the only coverage exclusion would be the willful acts exclusion. Six years into litigation, Allied raised that the $1 million “each Claim” limit applied, rather than the $3 million claim. It also asserted that the settlement reached between Plaintiffs and New West impermissibly included damages that were excluded under its “Loss” provision. The District Court ruled Allied was equitably estopped from raising a new coverage defense six years into the litigation. It also held the “Loss” provision did not exclude the settlement recovery between New West and Plaintiffs.
On appeal, the Supreme Court concluded that the District Court erred in ruling Allied was equitably estopped from enforcing the $1 million limit of liability. New West did not show clear and convincing evidence that Allied made any material representations of fact, an essential element of equitable estoppel. Allied’s reservation of rights letter and other communications between the two sophisticated insurance companies were sufficient to reserve Allied’s right to raise the issue later in litigation. Further, the policy limit was not a defense to coverage but rather a limit to the scope of Allied’s indemnity obligation. Second, the “Loss” definition in Allied’s policy, while excluding direct damages owing under contract, do not include damages caused by New West’s violation of the made-whole doctrine—a doctrine that does not stem from contract, but common law.
Points of Interest: estoppel, insurance policies, contracts
2022 MT 2
District Court did not abuse its discretion in denying Defendant’s motion to continue trial or in allowing the State to keep a jailed defense witness shackled and in jail clothing, and Defendant was properly sentenced as a persistent felony offender.
Rossbach’s first trial resulted in a mistrial. His second trial was scheduled during his counsel’s pre-planned vacation. Rossbach sought a continuance, which the District Court denied because it would have resulted in additional days of incarceration, other felony trials were scheduled on Rossbach’s “ideal” trial date, no speedy trial waiver had been filed, and defense counsel had caused some delay.
At his second trial, Rossbach called an inmate witness to testify. Thirty minutes before trial, Rossbach’s counsel moved to allow the witness to testify in street clothing and unshackled. The State raised security concerns and the court denied the motion after hearing argument, balancing possible prejudice to Rossbach against the security concerns. Upon conviction, Rossbach challenged his PFO designation, arguing that his release from a sentence on revocation was not a release from “other commitment imposed as the result of a previous felony conviction” under § 46-1-202(18), MCA.
On appeal, the Supreme Court determined the District Court did not abuse its discretion in denying Rossbach’s motion to continue trial. It further determined the court did not abuse in allowing Rossbach’s witness to testify in jail clothing and shackles. However, while no absolute rule requires that witnesses testify in street clothing and free from restraints, courts should not routinely require witnesses to appear in jail clothing or shackles. Finally, the Court held that Rossbach’s release following the revocation of his suspended sentence was an “other commitment” under § 46-1-202(18), MCA, and § 46-18-502(2)(b)(ii), MCA, and therefore the PFO designation could stand. The Court also rejected Rossbach’s argument that his imprisonment was a result of the revocation of his suspended sentence, rather than of the felony itself.
Points of Interest: continuance, witnesses, PFO
2022 MT 3
Section 61-9-221(1), MCA, does not prohibit momentary flashing of one’s high beams to warn other drivers. A mistake of law can give rise to particularized suspicion to justify a traffic stop under the Fourth Amendment.
Gardner moved the court to suppress evidence of DUI because the officer lacked particularized suspicion to initiate the traffic stop. The officer testified the sole reason for initiating the stop was Gardner’s flashing of his high beams at the officer’s vehicle when the vehicles were closer than 1000 feet, which the officer believed violated § 61‑9‑221(1), MCA. Gardner testified he momentarily flashed his high beams at the oncoming vehicle to warn the driver he had forgotten to dim his high beams. The lower courts denied Gardner’s motion to suppress the evidence.
On appeal, Gardner argued the officer was mistaken that § 61-9-221(1), MCA, prohibits momentary flashing of one’s high beams and an officer’s mistake of law could not give rise to particularized suspicion. The Supreme Court explained the United States Supreme Court held in Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530 (2014), that a mistake of law can give rise to particularized suspicion under the Fourth Amendment if the mistake was objectively reasonable. Section 61‑9-221(1), MCA, requires the “use” of low beams when within 1000 feet of an oncoming vehicle. The word “use” in the statute means the application or employment of something, especially a long-continued employment as distinguished from a merely temporary or occasional employment. Based on the plain language, the Court concluded § 61-9-221(1), MCA, does not prohibit the momentary flashing of one’s high beams to warn an oncoming driver. The officer’s mistake of law was not reasonable because the statute was not ambiguous and did not require “hard interpretive work.” The Court reversed and remanded the case for the trial court to suppress the evidence gathered during the traffic stop.
Points of Interest: 4th Amendment, suppression, traffic stops
2022 MT 4
(1) Tip from probationer’s wife was sufficient to justify warrantless home search pursuant to the probationary search exception; (2) officers’ entry did not establish that manner of search was constitutionally unreasonable; and (3) exclusionary rule was inapplicable where the subsequent manner of search was not the cause of the prior-occurring evidentiary discovery.
Acting on a tip from Peoples’s wife that Peoples—who had a long history of substance abuse—was using again, Peoples’s probation officer, with other law enforcement officers, conducted a search of Peoples’s apartment. When Peoples did not answer the door after law enforcement knocked and announced their presence, the party obtained a key from the property management and entered with guns briefly drawn. They found Peoples seated naked on his bed and suspected methamphetamine and paraphernalia in plain sight. Peoples remained seated, naked and handcuffed, for nearly 30 minutes while law enforcement searched his apartment. The record suggested that some of the officers were motivated by a suspicion, ultimately disproven, that Peoples might have been the perpetrator in an unrelated homicide. The District Court denied Peoples’s motion to suppress the methamphetamine evidence during revocation proceedings.
The Supreme Court affirmed, finding that the probation officer had the necessary level of suspicion of a violation to support a probationary home search pursuant to the probationary search exception to the warrant requirement. Allegations of pretextual motives by other law enforcement agents were immaterial. Similarly, the manner in which the officers initially entered the apartment was not constitutionally unreasonable. The remedy of exclusion was not appropriate for Peoples’s allegations that the manner of his subsequent detention—handcuffed naked on his bed for nearly 30 minutes while officers searched his apartment—was constitutionally unreasonable. Even if Peoples’s constitutional rights were violated, that violation was not the cause-in-fact of the evidentiary discovery, which occurred immediately upon entry of the home. Because Peoples established no constitutional violation that caused the discovery of the evidence at hand, the exclusionary rule was not applicable.
Points of Interest: search and seizure, warrantless entry, warrantless searches
2022 MT 5
Section 46-14-222, MCA, creates a mechanism to resume a dismissed criminal case if a defendant who lacked fitness to stand trial regains fitness, but it also calls for a discretionary consideration of the justness of doing so. Resuming criminal jurisdiction after the defendant spent over a decade in civil commitment was an abuse of discretion.
In 2005, the State charged Mosby with sexual assault and indecent exposure following an incident in a locker room. Mosby had demonstrated life-long mental and behavioral issues, and at the time, he resided in a group home under community supervision. His attorneys sought an assessment of his fitness to stand trial, and following psychological reports, the District Court dismissed his case. The State opened a civil commitment proceeding, and Mosby was sent to the Montana Developmental Center.
Mosby’s MDC commitment was continually renewed for over a decade. For a recommitment hearing in 2017, Mosby submitted a psychological report that raised doubts about his developmental disability status; with this evidence to counter the recommendation of the MDC screening team, Mosby hoped the court might find him able to return to a community treatment setting. The State, however, used the report as the basis for a new motion in the long-dismissed criminal case. The State asked the District Court to revisit Mosby’s fitness to stand trial in that case.
The District Court permitted the criminal case to go forward, and Mosby pled guilty while preserving his objections for appeal. On appeal, he argued that the District Court lacked authority to revive the dismissed criminal case under Montana’s laws on fitness to stand trial. In its ruling, the Supreme Court held that the laws permit District Courts to resume cases when criminal defendants regain fitness, but in this case, doing so was an abuse of the District Court’s discretion.
Points of Interest: fitness to proceed, resumption of prosecution
2022 MT 9
Fouts v. Montana Eighth Judicial Dist. Court
District Court exceeded its authority or abused its discretion when it found DPHHS in contempt for failing to admit an individual adjudged unfit to proceed and imposed a $500 fine for each day DPHHS did not admit the individual.
The District Court adjudicated a defendant unfit to proceed and ordered the individual immediately transported and committed to the custody of Montana Department of Public Health and Human Services for treatment pursuant to § 46-14-221(2)-(3), MCA. However, Montana State Hospital advised that it had no bed-space available and the individual was not transported. Following a motion by the Cascade County Attorney, the court issued a contempt/show cause order against DPHHS. At the subsequent hearing, the parties provided no evidence, though DPHHS’s counsel made unsworn representations that the individual was on a waitlist and those ahead of her on the list were “displaying at least equally troubling psychotic behavior.” In subsequent written Order, the District Court found it “undisputed that [DPHHS] has the power to admit” the individual “now” and held DPHHS in contempt, imposing a cascading fine of $500 for each day DPHHS did not admit her. DPHHS petitioned for certiorari before the Supreme Court, contesting the contempt order and sanction.
The Supreme Court reversed the Contempt Order, holding that the District Court’s finding that DPHHS had the power to immediately admit the individual for treatment was not based on substantial evidence and was therefore erroneous. Because inability to comply with a court order constitutes a complete defense to contempt, the erroneous finding was material and the order either exceeded the District Court’s authority or abused its discretion. Furthermore, the cascading $500 per day sanction violated the civil contempt sanction limit set by § 3-1-520, MCA.
Points of Interest: contempt, sanctions, sufficiency of evidence
2022 MT 10
A 466-day delay between arrest and trial did not violate Appellant’s to a speedy trial. The admission of a jail phone call, the testimony of one witness, and the testimony of Appellant constituted sufficient evidence to support Appellant’s perjury conviction.
On April 26, 2018, Burnett was charged with fourteen counts of assault on a minor, two counts of endangering the welfare of a child, and one count of perjury. The perjury charge concerned whether Burnett lied about using a taser on her daughter. Due to the volume of evidence, plea negotiations, and the availability of the parties, Burnett did not go to trial until August 5, 2019. At trial, Burnett’s former roommate, Nicholas Conlan, testified to witnessing Burnett tase her daughter. The State introduced a jail phone call between Burnett and her father where Burnett admitted to pressing the taser against her daughter. The District Court found Burnett guilty of nine counts of assault on a minor and one count of perjury. Burnett was acquitted of an assault on a minor charge that alleged she tased her daughter.
On appeal, Burnett argued the delay between her charges and trial violated her constitutional right to a speedy trial. Burnett also argued Conlan’s testimony and the jail phone call was insufficient to convict her of perjury. The Supreme Court affirmed her conviction. Concerning Burnett’s speedy trial right, the Court concluded the length of the delay weighed against the State. The delay was institutional in nature and weighed less heavily, and Burnett demonstrated neither her desire to go to trial nor any prejudice to her caused by the delay.
The Court concluded Conlan’s testimony was corroborated by the jail phone call in which Burnett admitting using a taser. Burnett’s acquittal on the assault on a minor charge did not mean the State failed to introduce sufficient evidence that Burnett perjured herself.
Points of Interest: perjury, speedy trial
2022 MT 11
District Court did not abuse its discretion in ruling that a developmentally disabled witness was not competent to testify in reliance on a doctor’s report, excluding improper character evidence, and permitting the State to call a rebuttal witness who was not sequestered.
Wilson admitted he stole merchandise from a thrift store but denied committing burglary. He claimed that F.Z., a developmentally disabled employee of the store, gave him permission to enter the store after hours to clean. The State challenged F.Z.’s competency to testify and submitted a court-ordered evaluation from F.Z.’s doctor indicating F.Z. was incapable of distinguishing between truth and lies. The court found the report convincing and excluded F.Z. from testifying although it did not examine F.Z.
At trial, Wilson called a motel manager to testify that Wilson shoveled snow for the motel for $2 in 2017, to show he regularly performed odd jobs, but the court excluded the testimony as improper character evidence. However, the court permitted the thrift store director to testify as a rebuttal witness over Wilson’s objection even though the court had entered an order sequestering witnesses and the director was present in the courtroom during trial.
On appeal, the Supreme Court affirmed the evidentiary rulings. It was not an abuse of discretion to disqualify F.Z. as a witness without examining him; courts may disqualify witnesses who are incapable of understanding their duty to tell the truth, and here the court had a recent, detailed report from a doctor opining that F.Z. was not capable of understanding this duty. Second, the court did not err in excluding the motel manager’s testimony. Even if Wilson’s tendency to work odd jobs was pertinent to the case, he was not permitted to introduce it through a specific instance of conduct because this did not establish a defense to any element of burglary. Third, the court did not abuse its discretion by permitting the thrift store’s director to testify as a rebuttal witness. Although the trial court did not rely on the statute that exempts victims from sequestration orders, the director of the thrift store qualified as a victim representative.
Points of Interest: evidence, witnesses, character evidence
2022 MT 12
An objection to a referees’ report in a partition action which is not supported by sufficient evidence does not entitle a party to an evidentiary hearing.
Three siblings each inherited an undivided one-third interest in real property, including a cabin on approximately 53 acres of land, after their mother’s death. The siblings entered into an operating agreement and managed the property together for a couple of years, before exploring options to buy out the interest of the others. When they could not come to acceptable terms, one sibling filed a partition action and sought to be awarded his one-third interest in the property by receiving a portion of the property which did not contain the cabin. The parties obtained several appraisals and the District Court appointed three referees to file a report recommending how the property should be divided. The parties provided the referees with the appraisals and the referees toured the property before filing their report, which recommended dividing the property into two parcels— a 43-acre parcel of only land which would go to the sibling who filed the partition action, and a 10-acre property containing the cabin which would go to the other two siblings. The two siblings who received the cabin and 10 acres of land filed an objection to the referees’ report which was accompanied by exhibits, including some of the appraisals given to the referees. The court determined the two siblings did not present a “substantiated objection” and denied their request for an evidentiary hearing.
On appeal, the Supreme Court affirmed the District Court’s denial of an evidentiary hearing. The two siblings who objected to the referees’ report did not present sufficient evidence to qualify as a “substantiated objection” and require an evidentiary hearing, as they merely presented documents already expressly considered by the referees and the arguments of their counsel.
Points of Interest: property, sufficiency of evidence, partition
2022 MT 13
Montana’s reciprocal attorney fee statute only applies when the dispute arises out of a contract with a provision expressly providing for the right of one party to receive attorney fees.
Rafes, an individual, and Bairstow, a limited liability company managed by Rafes, sued McMillan for alleged construction defects. In their Complaint, Rafes and Bairstow requested attorney fees under § 70-19-428, MCA, which provides attorney fees for the prevailing party in a construction defect suit. In his Answer, McMillan requested attorney fees as a reciprocal right under the same statute. Rafes and Bairstow were initially represented by an attorney, but the attorney withdrew. McMillan prevailed on all claims at trial and the District Court awarded him attorney fees as a reciprocal right under § 70-19-428, MCA. Rafes filed multiple motions on behalf of himself and Bairstow, including a motion to remove Bairstow as co-plaintiff, which the District Court ignored.
On appeal, Rafes argued he was not legally responsible for McMillan’s attorney fees and that the District Court should have granted his motion to remove Bairstow. The Supreme Court reversed McMillan’s attorney fee award because Rafes and McMillan had an oral agreement for construction work that contained no provision for attorney fees. In order for § 28-3-704, MCA, to apply and make the right reciprocal, the contract itself must contain an express right to attorney fees. A statutory right, such as that in § 70-19-428, MCA, is insufficient. The Court remanded the case for the district court to consider whether McMillan was entitled to attorney fees under the equitable Foy exception, which grants attorney fees when a prevailing defendant was forced into defending against a frivolous suit. The Court affirmed the District Court’s decision to not remove Bairstow because although Rafes should not have represented a separate entity as a non-attorney, he also could not bring an appeal on Bairstow’s behalf.
Points of Interest: attorney fees, contracts, non-attorneys
2022 MT 18
In a case that turned on the victim’s credibility, defense counsel provided ineffective assistance by failing to object to statistical testimony regarding the frequency of false reporting in sexual assault and rape cases. The jury’s split verdict indicated that counsel’s deficient performance, which was specific to sexual assault and rape cases, did not prejudice the defendant with respect to his convictions for aggravated kidnapping or assault with a weapon.
Helena police arrested Quiroz after his on-again, off-again girlfriend alleged he had detained and abused her over the previous day and night. A jury convicted Quiroz of five offenses—aggravated kidnapping, assault with a weapon (knife), partner or family member assault, sexual intercourse without consent, and criminal possession of dangerous drugs—and acquitted him of two others—assault with a weapon (hammer) and strangulation of a partner or family member.
At trial, the State solicited expert testimony that only a small proportion of sexual assault reports are false, and the percentage of false reports is “much, much, much lower” when the victim and perpetrator are dating. Defense counsel did not object, despite longstanding Montana law holding that expert testimony regarding the statistical frequency of false accusations in sexual assault or rape cases is inadmissible as an improper comment on the credibility of the victim.
On appeal, Quiroz argued that his counsel’s failure to object to the statistical testimony prejudiced his defense as to his convictions for aggravated kidnapping, assault with a knife, and sexual intercourse without consent. The Supreme Court held that because there is a reasonable probability the inadmissible evidence swayed the jury to convict Quiroz of sexual intercourse without consent, counsel’s deficient performance undermined the Court’s confidence in the verdict and Quiroz’s conviction for sexual intercourse without consent was reversed and remanded for a new trial.
However, Quiroz’s convictions for aggravated assault and assault with a weapon (knife) were affirmed. Quiroz presented no basis by which the Court could conclude the statistical testimony swayed the jury enough to convict Quiroz for some, but not all, of the remaining offenses. The split verdict indicated that the jury considered the evidence as it pertained to the elements of each charge individually and on its own merits.
Points of Interest: experts, ineffective assistance of counsel, verdicts
2022 MT 19
Twin Creeks Farm & Ranch, LLC v. Petrolia Irrigation Dist.
Claimant failed to rebut evidence that water use on some irrigated acreage had been abandoned in the mid-20th century. The correct priority for renewed use on that acreage is the date of resumption, as if it was a new water appropriation, rather than the earlier date of the abandoned claim.
Twin Creeks Farm & Ranch owns property in Petroleum County with water rights tied to a 1903 claim. They assert rights to flow sufficient to irrigate 210 acres, the amount under irrigation in 1982 when the claim was re-filed after the creation of the Water Court. Desert Land Act patents demonstrate that the initial claimants may have irrigated around 150 acres on the property. During the Water Court’s adjudication of this basin, Petrolia Irrigation District (PID) objected to Twin Creek’s claim, arguing that most of these water rights should receive a priority date later than 1903. PID submitted evidence that only a small portion was irrigated between 1948 and 1968. This 20-year period raises a presumption of abandonment.
Twin Creeks attempted to rebut that presumption by presenting expert testimony interpreting 1948 and 1954 aerial photos of the area. Twin Creeks also referenced materials from a 1971 Water Resource Survey. The Water Court found Twin Creeks’ evidence insufficient and held that the acreage had been abandoned; it thus granted Twin Creeks an implied claim dating to 1968, when the evidence demonstrated expanded irrigation.
On appeal, the Supreme Court affirmed the Water Court, finding its interpretation of the testimony and the Water Resource Survey materials accurate. The Supreme Court disagreed with Twin Creeks’ assertion that water use expanded in 1968 could still be tied to the original 1903 priority date, noting that reassertion of rights to an abandoned appropriation operates as a new appropriation, with a claim vesting on the date of the resumed use.
Points of Interest: water law, priority date, abandonment
2022 MT 24
A number of Republican members of the House Judiciary Committee, but not enough to constitute a quorum of the Committee, did not violate the constitutional right to public access when they met privately during a committee recess.
During the 2021 Legislative session, a group of Republican members of the House Judiciary Committee denied Associated Press (AP) reporters access to a meeting they held privately during a committee recess. The committee chair deliberately convened the conversation with less than a quorum of the committee’s membership so that it would not constitute an official public meeting under the open meeting laws. The AP sued, arguing that this was a violation of the constitutional “right to know.” The District Court dismissed the AP’s lawsuit.
On appeal, the Montana Supreme Court upheld the dismissal. Article II, Section 9, of the Montana Constitution guarantees the public a right to observe the deliberations of governmental bodies. Section 2-3-202, MCA, defines such deliberations for certain bodies as only those comprising a “quorum of the constituent membership.” The statutory definition of a meeting could control the unofficial character of the gathering. In the context of informal conversations among legislators, the well-established quorum rule remains an effective means of bounding when the constitutional right applies.
Points of Interest: constitutional law, right to know, Art. II(9)
2022 MT 25
Higgins ex rel. E.A. v. Augustine
No abuse of discretion where District Court excluded portions of an expert’s testimony disclosed months after discovery closed when the testimony was not previously disclosed and the party relying on the expert was not diligent in making the expert available for deposition by the opposing party.
Higgins sued Augustine for medical malpractice for an injury that occurred during the circumcision of her newborn son. Higgins provided a one-paragraph expert disclosure, broadly asserting the surgical procedure was not performed correctly, causing the injury. In her complaint and discovery responses, the only particular means by which Higgins asserted the surgery was not performed correctly was the failure to properly secure the baby for surgery. Augustine sought to depose Higgins’s expert for months. Higgins did not make her expert available until four months after the close of discovery and a week before the pretrial motions deadline. At the deposition, Higgins’s expert disclosed the injury could have occurred with the use of improper scissors or using the proper scissors incorrectly. Augustine moved to exclude the newly disclosed scissors opinions. The district court granted the motion. A jury found for Augustine.
On appeal, the Supreme Court held the District Court did not abuse its discretion in excluding the late disclosed portions of the expert’s opinion under the totality of the circumstances. The court recognized that it is not uncommon for an expert to make more thorough and detailed disclosure during the expert’s deposition. But Higgins never identified the failure to correctly use scissors as how the surgery had been improperly performed, either in her complaint, her answers to interrogatories, or in her M. R. Civ. P. 26 expert disclosure. Augustine diligently sought to depose Higgins’s expert, but Higgins failed to make her expert available until four months after discovery had closed and only a week before pretrial motions were due. Under the circumstances, the court did not abuse its discretion in excluding the newly disclosed portions of the expert’s testimony.
Points of Interest: experts, discovery, evidence
2022 MT 26
Yellowstone Disposal, LLC. v. DEQ
A regulatory agency cannot be compelled through a writ of mandamus to issue an operating license or decision on an application without having all the necessary materials to legally take the requested action, even if the agency has exceeded statutory time limits for review.
Yellowstone Disposal applied to the Department of Environmental Quality for a license to operate a landfill in Richland County. DEQ is subject to specific statutory time limits within which to complete its environmental review under The Montana Environmental Policy Act, § 75-1-208, MCA. DEQ greatly exceed these time limits. While Yellowstone was waiting on DEQ to complete its review, Richland County changed its zoning regulations and Yellowstone no longer had permission to build the landfill without a conditional use permit from the County. DEQ notified Yellowstone that it determined to “stay” further review of the application until the zoning issue was resolved. Yellowstone petitioned for a writ of mandamus to compel DEQ to issue the license, or alternatively, to decide “one way or another” on its application, citing § 75-1-208(7)(a), MCA. The statute provides that if an agency has not completed its environmental review within the statutory time limits, it may not withhold a permit without a written finding that issuing the permit would violate legal requirements. The District Court denied Yellowstone’s petition.
The Supreme Court affirmed and held that Yellowstone did not meet the requirements for the “rare” remedy of mandamus. A writ of mandamus would require 1) DEQ to have a “clear legal duty” to issue the license or decide on the application; and 2) Yellowstone to have no other adequate legal remedy. Due to the unresolved zoning issue, DEQ could not legally issue the license and the application did not include all materials required for a legal DEQ decision. Therefore, DEQ did not have the “clear legal duty” required for mandamus. Additionally, Yellowstone still had an adequate legal remedy to make DEQ resume its review — obtaining the conditional use permit and, if necessary, appealing DEQ’s ultimate decision administratively and then to the District Court.
Points of Interest: writ of mandamus, administrative law, environmental law
2022 MT 27
A district court does not abuse its discretion in denying a motion to amend a treatment plan the day of a termination hearing when the requested amendments are covered under the existing treatment plan and a parent has not previously objected, nor does not abuse its discretion in determining a parent is unlikely to change in a reasonable time when the parent fails to engage with services when they are belatedly offered.
The Department removed Child due to concerns of Mother’s drug use and physical neglect. Child was diagnosed with autism after removal and had substantial needs. Over the next three years, Mother largely addressed her substance abuse issues but failed to engage in parental education classes or with Child’s numerous providers. While the Department referred Mother to a general parenting class, it did not refer her to autism-specific parenting education until 28 months into the case. A week before the termination hearing, Mother moved to amend her treatment plan to enumerate specific parenting tasks related to raising a child with autism and to provide related services. The Department argued these tasks were included under the existing parental education component of the plan and Mother had not engaged in the services she was referred to. The court denied the motion to amend and terminated Mother’s parental rights under § 41‑3‑609(1)(f), MCA.
On appeal, the Supreme Court held the District Court did not abuse its discretion in denying Mother’s motion to amend. The requirement in a treatment plan “to follow all recommendations” of a provider cannot expand a treatment plan into a completely new area. Mother’s plan, however, required her to enroll in a parenting program approved by the Department. The Department first referred her to a general parenting course and later referred her to an autism-specific parenting program. She did not object when the Department reported at multiple hearings that she still needed to engage in autism-specific education under her existing treatment plan. The Court also held the District Court did not abuse its discretion in determining Mother was unlikely to change in a reasonable time. Mother contended the Department did not refer her to an autism-specific parenting program until 28 months into the case. While the Court found the delay troubling, Mother did not engage in those services in the seven months before the termination hearing even though parent has an obligation to avail herself of services arranged or referred by the Department.
Points of Interest: dependent neglect, treatment plans
2022 MT 28
The State’s repeated and explicit reference at trial to defendant’s highly inflammatory comments about child sex abuse was unfairly prejudicial under M. R. Evid. 403 and warranted reversal.
It was common knowledge among patrons at Jesters Bar that Lake often made offensive comments about child sex abuse. After an incident where Lake repeatedly stabbed a fellow patron outside the bar, he told police that the victim had previously slandered him to other patrons. Prior to Lake’s trial for attempted deliberate homicide, he sought to categorically exclude evidence of a rumor among bar patrons that he was a pervert and a child molester, arguing that the evidence was irrelevant and highly prejudicial. The District Court denied Lake’s pretrial motion and allowed the State to present evidence of Lake’s prior offensive comments as proof of his motive to retaliate against the victim for the alleged slander, subject to a limiting instruction. Throughout the trial, the State repeatedly elicited explicit testimony from multiple witnesses regarding Lake’s comments and references to child sex abuse.
On appeal, the Supreme Court determined that the other acts evidence was relevant and admissible as proof of motive under M. R. Evid. 404(b). However, the evidence of Lake’s comments about child sex abuse was inherently prejudicial and highly inflammatory, and thus where an alternative, more generic, and less explicit form of the same evidence was available, sound judicial discretion counselled exclusion under M. R. Evid. 403. The Court reversed and remanded for a new trial on the grounds that the District Court did not carefully or sufficiently limit the use of otherwise relevant prior bad acts evidence to avoid its manifestly inherent risk of unfair prejudice.
Points of Interest: Rule 403, Rule 404, evidence
2022 MT 33
Depositors Ins. Co. v. Sandidge
Insurer had standing to pursue declaratory judgment action against injured party who had made a Ridley claim against it, and insurer was entitled to summary judgment where the injured party failed to present undisputed material facts to support his entitlement to Ridley payments.
Sandidge and Tharp were involved in a motor vehicle accident in which Sandidge sustained injuries. He made a Ridley claim against Tharp’s insurer, Depositors Ins. Co., but Depositors ceased making advance payments after it determined that Sandidge’s medical ailments were caused by a pre-existing condition. Depositors then sought declaratory judgment as to its obligation to make additional payments. The District Court ultimately granted summary judgment in Depositors’ favor.
On appeal, the Montana Supreme Court rejected Sandidge’s argument that the District Court’s failure to hold a hearing on the summary judgment motion was reversible error because Sandidge did not provide the District Court with adequate notice that he wanted a hearing. The Court also rejected Sandidge’s contention that Depositors lacked standing to bring this action because Depositors was obligated to indemnify Tharp and the action presented a legitimate, justiciable controversy. The Court further concluded that the District Court correctly determined that Depositors had no Ridley obligation because liability was not reasonably clear and it was not reasonably clear that Sandidge’s medical expenses were causally related to the accident.
Points of Interest: insurance, indemnification, standing
2022 MT 36
State’s mid-trial amendment was an amendment of form, not substance, and did not substantially prejudice Defendant’s rights. The jury instruction relying on the 2017 definition of consent for conduct that occurred in 2015 did not implicate Defendant’s fundamental rights.
At the beginning of trial, LaFournaise stood charged with aggravated sexual intercourse without consent for conduct occurring in August 2015. After the first day of trial, the District Court informed the parties that this crime did not exist before October 1, 2017, making the charge invalid. The State was permitted to amend the charge to sexual intercourse without consent, which is codified in a different statutory section. During jury instructions, the jury was instructed on the 2017 definition of consent, which differed from the 2015 definition. LaFournaise did not object. The jury found LaFournaise guilty of sexual intercourse without consent.
On appeal, the Court affirmed LaFournaise’s conviction. Even though the amended charge stemmed from a different statutory section, the nature of the offense, the underlying facts, and the essential elements of the crime remained the same after the amendment. The amendment contained no new or different crimes or facts and LaFournaise could only be convicted based on the original facts. The amendment did not expose LaFournaise to greater punishment or reduce the State’s burden of proving each element. The amendment was permissible because it changed the form, not the substance, of the charge, and LaFournaise failed to demonstrate the change prejudiced him.
The jury instruction on consent did not implicate LaFournaise’s fundamental rights. The instruction did not lower the State’s burden of proof and the jury was provided a valid definition of a person incapable of consent, effective in 2015. Furthermore, the parties understood that the State met its burden of proof under both definitions of consent.
Points of Interest: amended charges, jury instructions, criminal law
2022 MT 41
A properly disclosed asset was not mistakenly omitted and was subject to distribution in the property settlement agreement’s remainder clause.
Sharon petitioned for dissolution of her marriage to Bo. During discovery, Sharon provided information identifying Bo’s annuity account with TransAmerica. The parties attempted to mediate. Bo offered to pay Sharon $600,000 from a different account and to distribute all remaining property to Bo. Sharon accepted the offer via her attorney, but later refused to sign the papers. The parties renegotiated and increased the distribution to Sharon by $25,000, retaining the other terms. The District Court adopted the settlement agreement.
Months later, Sharon had failed to transfer the TransAmerica annuity to Bo. Bo sought enforcement of the agreement and moved to hold Sharon in contempt. The District Court denied Bo’s motion and ordered the parties to equitably divide the annuity. The court concluded the annuity was not part of the remainder provision due to the specific identification of other property.
On appeal, the Supreme Court concluded the District Court erred in amending the agreement. All assets were properly disclosed and the parties were aware of the assets and represented by counsel throughout the proceedings. The District Court had previously adopted the property settlement agreement, and the terms of the remainder clause clearly provided all other property would pass to Bo.
Points of Interest: dissolution of marriage, property, settlement agreements
2022 MT 42
Truss Works v. Oswood Constr. Co.
A contract that does not impose a mutual obligation on the parties to approve plans yet to be determined is not a satisfaction-type contract and does not impose a duty on the receiving party to cooperate with the party submitting designs. No error where trial court does not explicitly address a party’s claim if determination of the claim is implicit to its other findings and the implicit finding is supported by substantial evidence.
Truss Works sued Oswood Construction Company to foreclose on its construction lien. Oswood counterclaimed. At trial, the parties had differing interpretations of what the Purchase Order Contract required. The District Court found that Oswood did not cooperate with Truss Works during the drawing submittal process and that it had a duty to do so pursuant to Nicholson v. United Pacific Insurance Company, 219 Mont. 332, 710 P.2d 1342 (1984). The court implicitly found that Truss Works was not obligated under the Purchase Order to provide truss connections and rejected Oswood’s counterclaim.
Oswood appealed, arguing that the District Court failed to address its counterclaim in its findings and conclusions. The Supreme Court affirmed, finding that the District Court’s findings of fact and conclusions of law were sufficient. The District Court erred by concluding that the Purchase Order was a satisfaction-type contract like Nicholson because the Purchase Order did not impose an obligation on the parties to mutually approve plans yet to be determined. The District Court’s finding that Oswood failed to cooperate and that the Purchase Order contained conflicting submittal procedures was not incorrect, however, to the extent that it attributed most delays to Oswood. While the parties’ testimonies were at odds, the District Court, as the trier of fact, made credibility determinations, and those determinations were supported by substantial evidence.
The District Court did not err by not making specific findings regarding the truss connectors or Oswood’s counterclaim. Necessary to several of the court’s findings was its implicit finding that the Purchase Order did not require Truss Works to provide or design connectors. Further, the court implicitly rejected Oswood’s counterclaim when it found Oswood “fully breached” the contract. Both implicit findings were supported by substantial evidence and not erroneous. Finally, although the court did not use the word “counterclaim,” it addressed each element of Oswood’s claim for damages.
Points of Interest: contracts, implicit findings, counterclaims
2022 MT 46
Advocates for Sch. Trust Lands v. State
A facial challenge to § 85‑2‑441, MCA, was ripe for review because it alleged that the statute violated of Article X, Section 11, of the Montana Constitution. However, § 85‑2‑441, MCA, is not facially unconstitutional because the plain language of the statute does not impair Montana’s sovereign trustee duties or devalue school trust lands.
Advocates challenged § 85‑2‑441, MCA, (HB 286) arguing that it violates the State’s trust obligations under the Enabling Act of 1889 and Article X, Section 11, of the Montana Constitution because it provides that the State may not obtain an ownership right in privately developed groundwater used on school trust land, except through litigation or a voluntary transfer of ownership from the private water right holder to the State. The State argued that Advocates’ challenge was not ripe for judicial review because nothing in its plain language reduced the value of school trust lands and because Advocates presented no facts showing that HB 286 devalued a particular parcel of land. The District Court agreed with the State, dismissing Advocates’ challenge.
On appeal, the Supreme Court determined that Advocates’ argument that HB 286 reduces the value of school trust lands, was not ripe for review because the alleged reduction in value was a hypothetical and abstract injury. However, Advocates’ argument that HB 286 creates a presumption against State ownership was ripe for review because it alleged that the enactment of HB 286 violates the State’s trust obligations. The Court held, however, that the plain language of HB 286 does not create a presumption against State ownership; it simply creates a process for the State to assert an ownership right in privately developed groundwater used on school trust land. HB 286 is facially constitutional because nothing in its plain language impairs Montana’s sovereign trustee duties or devalues school trust lands.
Points of Interest: constitutional law, ripeness, Art. X(11)
2022 MT 50
Sutey Oil Co., Inc. v. Monroe’s High Country Travel Plaza, LLC
Where a party seeks modification of an arbitration award based on an “evident miscalculation of figures,” a reviewing court is limited to considering the award on its face together with the record of the proceedings to determine whether a mathematical error is so readily apparent from the documentation that explanation by proofs is not necessary. The court may submit the question to the arbitrator for clarification.
Sutey sued Monroe’s over Monroe’s failure to pay five invoices. Monroe’s counterclaimed, and the parties agreed to arbitrate. The arbitrator found Monroe liable for the amount of the invoices but rejected Sutey’s claims for refund of unearned discounts and compound interest. The day after the decision, the arbitrator heard Monroe’s concern that the arbitrator made a mathematical error by failing to deduct certain credits Sutey’s witnesses had calculated. The arbitrator agreed to investigate, but before he could respond Sutey moved the District Court to confirm the award. The court entered an order confirming the award before Monroe filed a response.
Monroe moved to either modify or vacate the award. Noting the extremely narrow constraints on a court’s review of arbitration rulings, the District Court refused to consider any evidence beyond the face of the arbitrator’s decision and concluded that it lacked power to review his rulings on the merits. The court determined that it was unable to find an evident miscalculation from the face of the award.
On appeal, the Supreme Court held that the District Court applied an overly narrow view of what it may consider. Both the arbitrator and a reviewing court may modify an award if there is an “evident miscalculation of figures,” and this review may include the record before the arbitrator. A court may not, however, receive additional evidence or re-weigh the evidence the arbitrator considered.
Here, because the arbitrator adopted Sutey’s calculation of what Monroe owed, excepting two items the arbitrator expressly rejected, the arbitrator’s findings indicated that he may have miscalculated by neglecting to subtract two items. Monroe attempted timely to seek clarification but was cut short by Sutey’s District Court filing. Monroe then timely sought modification in the District Court. Section 27-5-217, MCA, permits a court considering confirmation, modification, or vacatur of an arbitration award to submit the matter to the arbitrator, “under conditions that the court may order,” for modification, correction, or clarification. Given Monroe’s aborted attempt to seek such clarification, the Court remanded for the District Court to follow this process and to direct the Arbitrator to clarify his calculation.
Points of Interest: arbitration, scope of review, modification of award
2022 MT 57
Egan Slough Cmty. v. Flathead Cty. Bd. of Cty. Comm’rs
The statutes governing county-level citizen initiatives allow citizens to enact zoning changes through the initiative process and the use of the initiative process to enact zoning changes is not unconstitutional in and of itself.
This case arose from a successful ballot initiative to expand an agricultural zoning district to include the land on which Montana Artesian Water Company was developing a large-scale water bottling plant. Egan Slough Community sued to have the new zoning regulations enforced to shut down MAWC’s operations. MAWC filed various counterclaims, asserting the initiative was illegal, unconstitutional, and could not be enforced. The District Court determined MAWC’s operations were a preexisting nonconforming use, which could continue in accordance with the regulations. It denied MAWC’s counterclaims.
The Supreme Court affirmed. Interpreting the plain language of the regulations, the Court agreed MAWC’s facilities were a preexisting nonconforming use. This use could continue in accordance with the regulations, which imposes limits on MAWC’s future expansion. The initiative process did not violate the statutes regulating local initiatives, create illegal reverse spot zoning, or violate due process or equal protection. The regulations did not constitute a taking of MAWC’s water right and other business property and MAWC was not entitled to compensation for water it was not capable of putting to beneficial use.
Points of Interest: ballot initiatives, zoning, water rights
2022 MT 58
Sagorin v. Yellowstone Lodging, LLC
The sole shareholder of an LLC may not, through an assignment, bring the LLC’s claims on his own behalf and without counsel.
Sagorin is the sole member of Yellowstone Lodging, LLC. Though he is not a licensed attorney, Sagorin filed a complaint as a "successor in interest" to the LLC against several HVAC contractors related to the installation of an HVAC system at a motel the LLC owned. The contractors moved to dismiss for lack of standing. In response to the motion, Sagorin produced an “Assignment for the Sale or Transfer of Interest” which purported to transfer to Sagorin the LLC’s rights and interests in any legal claim it could bring. The District Court dismissed the case, concluding that Sagorin as sole member of the LLC lacked standing to bring suit in his individual capacity for claims arising out of work performed for the LLC on the LLC’s property.
On appeal, the Supreme Court reiterated the general rule that business entities may appear in court only through licensed counsel. Sagorin, as the sole member of the LLC, lacked standing to assert claims on behalf of the LLC, and he could not represent the LLC in court. The Court further held, as an issue of first impression, that the assignment of legal claims from an LLC to a sole member does not confer standing on the member to assert those claims as a self-represented litigant. Neither does an assignment allow an LLC to bypass the longstanding rule that corporate entities cannot appear through an individual member, except where the Legislature has expressly allowed for small claims and justice court proceedings.
Points of Interest: standing, self representation
2022 MT 61
The odor of marijuana and a driver’s nervous behavior failed to create a particularized suspicion justifying the canine sniff search of a vehicle.
Harning was pulled over for speeding. As the trooper approached, Harning rolled his window down a few inches and the trooper noticed the smell of marijuana coming from Harning’s vehicle. Harning admitted to smoking 80 miles prior to the stop. The trooper also observed Harning’s “evasive” behavior and hesitant answers to questioning. The trooper later differentiated Harning’s behavior from nervous behavior based on “subtle kind of things.” Based on these observations, the trooper determined to initiate a DUI and drug investigation. The DUI investigation indicated Harning was not impaired. The trooper ordered a canine to sniff search Harning’s vehicle, and the canine found the presence of drugs. The trooper obtained a search warrant, which found drug paraphernalia in Harning’s vehicle. Harning was charged with drug possession and moved to suppress the evidence. The court denied the motion, and Harning pleaded guilty.
On appeal, the Supreme Court reversed Harning’s conviction. Although the DUI investigation was justified by the odor of marijuana and admission of smoking, the stop should have terminated after the trooper warned Harning about speeding and determined Harning was not impaired. The State failed to connect Harning’s behavior specifically to drug activity in his vehicle to justify extending the stop and ordering a sniff search. Because the State failed to articulate specific facts indicative of drug activity, the evidence gathered from the canine sniff should have been suppressed.
Points of Interest: search and seizure, suppression, DUI
2022 MT 66
A district court does not lose its jurisdiction over a defendant when it does not make a determination of fitness within 90 days of commitment under § 46-14-221(3), MCA. A defendant does not timely raise a claim of improper delay when counsel raises the issue after the statutory timeline has passed.
The District Court committed Rich to the Montana State Hospital to regain fitness after the court determined she was unfit to stand trial. Rich was transferred to MSH 20 days later. At a status hearing the day after Rich’s transfer, the court set the matter for a review hearing 90 days after the transfer date. Rich’s counsel did not object or argue that the hearing should take place 90 days after the date of the commitment order.
The day before the review hearing, Rich moved to dismiss for lack of jurisdiction, asserting that the commitment date under § 46-14-221(3), MCA, commenced on the date of the commitment order, not the date of transfer. Therefore, she asserted the court lost jurisdiction when it failed to make a finding regarding her fitness within 90 days of the order. Following the review hearing, the court denied Rich’s motion and found she had not yet regained fitness, extending her commitment for 45 days. Rich regained fitness less than 45 days later, and she entered a plea agreement. Rich appealed the denial of her motion to dismiss.
The Montana Supreme Court affirmed the denial of Rich’s motion to dismiss. On appeal, Rich cited State v. Meeks, 2002 MT 246, 312 Mont. 126, 58 P.3d 167, and State v. Tison, 2003 MT 342, 318 Mont. 465, 81 P.3d 471 to argue that the District Court lacked jurisdiction upon the expiration of the 90-day timeline. Because later case law clarified that statutory deadlines are not jurisdictional, the Court overruled Meeks and Tison to the extent they suggest § 46-14-221(3)(a), MCA, imposes a jurisdictional bar.
The Court further rejected Rich’s contention that the District Court’s failure to strictly comply with § 46-14-221(3)(a), MCA, warrants dismissal because Rich did not timely raise her claim of improper delay or otherwise demonstrate that she was entitled to have the charges against her dismissed.
Points of Interest: fitness to proceed, jurisdiction, statutory deadlines
2021 MT 1
Because § 45-5-625(1)(e), MCA, allows prosecution and conviction for each instance of possession of child pornography, a conviction for each image possessed where Defendant possessed multiple images does not violate § 46-11-410(2)(a), MCA.
Felde was charged with 49 counts of sexual abuse of children, possession of child pornography, based on his possession of 49 separate and distinct digital images. He pled guilty to four counts, preserving appeal of his challenge to all but the first. He argued that § 46-11-410(2)(a), MCA, prohibits multiple convictions for possession of child pornography based on each individual image when the images were discovered on a single day on a single device; he contended these charges constitute included offenses.
The Supreme Court affirmed, concluding that the plain language of § 45-5-625(1)(e), MCA, prohibited possession of each and every image of child pornography, thereby the State may charge and prosecute, and a defendant may be convicted of, each and every image possessed.
Points of Interest: criminal law, multiple charges
2021 MT 2
Section 41-3-609(4)(c), MCA, does not provide a stand-alone ground for termination of parental rights, but long-term incarceration can relieve the Department of the need to provide a treatment plan and can support a finding that the conduct or condition of the parent is unlikely to change within a reasonable time for termination pursuant to § 41‑3‑609(1)(f), MCA.
Mother’s children were removed from her care numerous times. The fourth removal resulted from Mother’s arrest while she possessed three pounds of methamphetamine. She was sentenced to 48 months in federal prison, followed by five years of probation. The Department sought termination under §§ 41-3-609(1)(d) and -423(2)(a), MCA, alleging Mother subjected the children to chronic, severe neglect or, alternatively, under §§ 41-3-609(1)(f) and (4)(c), MCA, alleging Mother is incarcerated for more than one year and reunification is not in children’s best interests. The District Court made findings to support termination under both theories.
On appeal, Mother argued she received ineffective assistance when her counsel stipulated to the Department’s request that no reunification services be provided, because counsel effectively stipulated that she had subjected the children to chronic, severe neglect and the Department could proceed to termination on that finding alone. The Supreme Court held Mother was not prejudiced by any error on counsel’s part because the District Court made findings to support termination under §§ 41-3-609(1)(f) and (4)(c), MCA, which did not rely on a finding that Mother subjected the children to severe, chronic neglect.
Points of Interest: dependent neglect, ineffective assistance of counsel
2021 MT 3
In re Expungement of Misdemeanor Records of Dickey
(1) In a petition for expungement of misdemeanor records, petitioner was required to provide more than a cursory petition with a general demand for expungement of all misdemeanors and (2) a speeding violation is not a “misdemeanor” for purposes of expungement jurisdiction.
Dickey petitioned for expungement of his “misdemeanor criminal record(s)” under the Misdemeanor Expungement Clarification Act. The petition did not refer to any specific misdemeanor and contained no supporting documentation regarding his criminal record or rehabilitation. The Eleventh Judicial District Court initially granted the petition. However, it later vacated its order and dismissed the matter without prejudice after the City of Bozeman filed a request for reconsideration alleging Dickey had delayed serving the City with a copy of the petition, venue was improper in the Eleventh District, and Dickey had not met the requisite burden of proof. The City listed four infractions from its records, which included “DUI alcohol and drugs.” The only listed offense in the Eleventh District was “Speeding, over 25 MPH.”
On appeal, the Supreme Court held that applicable provisions of the Rules of Civil Procedure and Expungement Clarification Act required Dickey to identify the offenses for which he was requesting expungement, appropriately serve copies to offices that prosecuted an offense for which he sought expungement, bear the burden of proof demonstrating entitlement to expungement for specified offenses, and provide more than a general demand that all misdemeanors be expunged. Jurisdiction was not proper in the Eleventh District because speeding is not a criminal misdemeanor and Dickey had not otherwise established that the Eleventh District was a “judicial district in which [he] was convicted of a misdemeanor for which expungement is sought” pursuant to § 46-18-1105, MCA.
Points of Interest: expungement, jurisdiction
2021 MT 4
The City of Missoula Municipal Court imposed a twelve-month deferred imposition of sentence on Pope and placed her on misdemeanor probation. Following a violation of a condition of her sentence, the City petitioned for revocation. The Municipal Court revoked and reimposed her suspended sentence after Pope admitted to using intoxicants. Pope moved to dismiss a petition to revoke sentence. The Municipal Court denied the petition, and the Fourth Judicial District Court affirmed.
In 2017, the Montana Legislature passed several criminal justice reform bills, one of which required the DOC to adopt the MIIG. Another bill, SB 63, modified the process by which a defendant’s probation or suspended sentence is revoked. Together, the MIIG and SB 63 split probation and parole violations into two categories: compliance and non‑compliance violations. Non-compliance violations include a new criminal offense, possession of a firearm, harassing a victim or someone close to a victim, absconding, and failure to complete sex offender treatment. A violation of any other condition is a compliance violation. Prior to 2017, a court could revoke a suspended sentence upon a finding that an offender violated one or more term or condition of her suspended sentence, regardless of whether the offense was a misdemeanor or a felony.
On appeal, Pope argued that a court lacks authority to revoke a misdemeanor suspended sentence for compliance violations unless the petition shows that alternatives to revocation have been exhausted. Examining the statutory scheme in context, the Supreme Court held the MIIG is used only in DOC’s supervision of felons. The Legislature did not intend the MIIG procedures to apply to misdemeanor revocation, and therefore, the Municipal Court acted within its authority when it revoked Pope’s suspended sentence.
Points of Interest: MIIG, revocation, compliance violations
2021 MT 8
In 1985, Keefe, then 17, broke into a house to commit a burglary. Once inside, he shot and killed three members of the McKay family. Keefe was tried as an adult, convicted, and sentenced to three consecutive life terms, plus an additional 50 years, at the Montana State Prison, without the possibility of parole. In 2017, Keefe petitioned for postconviction relief in light of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718 (2016), which held that mandatory life without parole sentences for juvenile offenders were unconstitutional “for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’” The Montana Supreme Court held Miller and Montgomery applied to discretionary sentences in Montana in Steilman v. Michael, 2017 MT 310, 389 Mont. 512, 407 P.3d 313. In 2019, the District Court held a resentencing hearing, at which a psychiatrist and two former MSP employees testified to the rehabilitation progress Keefe had made. The District Court refused to consider evidence of post-offense rehabilitation and resentenced Keefe to life without the possibility of parole.
On appeal, the Supreme Court held the District Court violated Keefe’s constitutional rights by failing to consider post-offense evidence of Keefe’s rehabilitation and remanded for resentencing. Agreeing with the Ninth Circuit’s decision in United States v. Briones, 929 F.3d 1057 (9th Cir. 2019), the Court held that a court must consider post-offense evidence of rehabilitation when resentencing a juvenile serving life without parole. The Court further held that the resentencing judge must determine whether Keefe was “irreparably corrupt” and “permanently incorrigible.”
Points of Interest: sentencing, constitutional law, juvenile offender
2021 MT 12
Mercier was tried on charges of deliberate homicide and tampering with physical evidence. Over his objection, a Homeland Security special agent in Colorado provided foundational testimony via two-way videoconferencing regarding the recovery of data from the victim’s cellphone, which was found submerged in water at the crime scene. After being convicted on both charges, Mercier appealed the trial court’s decision to allow the video testimony.
The Supreme Court concluded the court erred by allowing the video testimony. A criminal defendant’s Sixth Amendment right to confront witnesses can only be displaced if use of video technology is necessary and reliable, regardless of the nature of the testimony. The cost-saving measures posited by the State did not satisfy the necessity prong. Since this testimony was the only evidence presented regarding the tampering with physical evidence charge, the use of the testimony was not harmless and that conviction was set aside. However, the cellphone presented only cumulative evidence regarding the deliberate homicide conviction and was therefore harmless as to that count, allowing that conviction to stand.
Points of Interest: cumulative evidence, right of confrontation, video testimony
2021 MT 13
Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Mont. Twentieth Judicial Dist. Court
Claim preclusion does not apply to continued proceedings before the District Court upon remand, rather the proper doctrine to apply is law of the case.
After the Supreme Court reversed and vacated the District Court’s summary judgment order on the issue of negligence per se, Nunez sought to revive an alternate theory of common law negligence, which she had not pursued at the jury trial. After the District Court granted her motion to revive the claim, Watchtower sought a writ of supervisory control, arguing the motion was barred by claim preclusion and Rule 15(b).
The Supreme Court denied the writ because it determined the District Court was not operating under a mistake of law. The Court clarified that the doctrine of claim preclusion does not apply to continued proceedings in the same case before the District Court upon remand from an appeal, rather the doctrine of law of the case would apply. The law of the case did not prevent the revival of the claim because the issue of common law negligence had not been resolved either before the District Court or the Supreme Court. The Court also determined Rule 15(b), which restricts amendments during and after trial did not apply after the Supreme Court effectively vacated the jury verdict on appeal. Under Rule 15(a), the District Court has discretion to allow leave to amend pleadings “when justice so requires.” The Court concluded the District Court, while not required to allow leave to amend under the circumstances, was within its discretion to allow the amendment.
Points of Interest: claim preclusion, supervisory control, law of the case
2021 MT 14
Mont. Indep. Living Project, Inc. v. City of Helena
Section 49-2-301, MCA, does not allow non-human entities to file retaliation claims under the Montana Human Rights Act.
The Montana Independent Living Project, Inc., requested funding from the City of Helena for a transportation project. Shortly after a committee that provides non-binding recommendations to the City ranked this funding request as the top transportation priority, MILP and its CEO Robert Maffit filed an unrelated discrimination complaint against the City with the Montana Human Rights Bureau. The City then lowered the priority of MILP’s funding request.
MILP filed a retaliation complaint with the HRB, alleging the City retaliated against MILP when, as a direct consequence of MILP’s and Maffit’s initial discrimination complaint, the City re-prioritized its funding request. The HRB concluded MILP, as a corporation, did not have standing to file a retaliation complaint under § 49-2-301, MCA. The District Court dismissed MILP’s subsequent action, concluding the HRB’s ruling was correct.
The Supreme Court affirmed, concluding the District Court was correct when it held that § 49-2-301, MCA, does not allow non-human entities to file retaliation claims under the Montana Human Rights Act. Because it defines a prohibited discriminatory practice to include retaliation against an individual, the plain language of the statute allows only an “individual,” a natural human person, to seek redress for retaliation.
Points of Interest: human rights, administrative law, retaliation
2021 MT 15
Specific instances of conduct of a witness attacking or supporting witness credibility may only be inquired into on cross-examination if permitted by the court and probative of veracity.
The State charged Quinlan with incest and moved in limine to prohibit him from introducing evidence of specific instances of conduct challenging the victim’s veracity. The District Court prohibited further questioning on specific instances of lying and limited Quinlan to questions of the victim’s reputation for truthfulness, finding the offered specific instances of conduct irrelevant and prejudicial. During testimony, the victim denied the individual instances of lying. Quinlan was found guilty.
On appeal, Quinlan challenged the District Court’s evidentiary ruling. This Court affirmed the District Court, reasoning that a witness’s denial of lying did not permit Quinlan to prove the lie by extrinsic evidence, as prohibited by the District Court’s discretion. M. R. Evid. 604(b) generally prohibits introducing extrinsic evidence of specific instances of conduct to attack or support credibility, but the rule permits inquiry on cross-examination into those specific instances of conduct if probative of veracity and permitted in the discretion of the court. The District Court did not abuse its discretion in limiting Quinlan’s questioning because the specific instances were irrelevant and prejudicial.
Points of Interest: evidence, credibility, Rule 604
2021 MT 24
A prosecutor's question to a witness about whether they understand the penalties of perjury is not “intimidation” nor does it interfere with a defendant’s right to present witnesses when the witness stands by the testimony.
Krause was found behind the wheel of a car in a parking space at Parkdale public housing near Cole’s apartment. The car had a sticker authorizing it to park at Parkdale. A sign informed the public that this lot was for tenants only. Cole testified that she had unlocked the car for the defendant to “sleep it off” after he showed up intoxicated at her home. She unlocked the car from her apartment and saw the lights flash when she unlocked it. However, police found a key fob on the driver’s seat.
Krause was charged with DUI. At trial, the prosecutor asked Cole: “Do you understand what the penalties are for perjury?” Cole stood by her testimony.
Defense counsel moved to dismiss for insufficient evidence, arguing the State had not proven Krause had been on “a way of this state open to the public.” Counsel also moved for a mistrial, arguing that asking Cole about perjury was intended to, and did, intimidate her and went beyond legitimately attacking her credibility. The district court denied both motions and the jury found Krause guilty of DUI.
On appeal, the Supreme Court affirmed, finding sufficient evidence for the jury to conclude Krause was in a vehicle “on a way of this state open to the public” because the space was next to a public street, near an intersection with another public road, near a public park, and readily accessible to the public. Nothing prevented the public from parking in the lot other than a warning sign. Furthermore, Krause was a member of the public who did not live at Parkdale.
The Court concluded the prosecutor’s question was “toward the outer edge of zealous advocacy,” but the prosecutor did not invade the province of the jury. Even assuming the question constituted misconduct, the question had no effect on Cole’s testimony and therefore did not impact Krause’s defense.
Points of Interest: prosecutorial misconduct, sufficiency of evidence
2021 MT 25
Sunset Irrigation Dist. v. United States (Fish & Wildlife Serv.)
Water Court correctly held Macks’ 2015 Amendment, which was consistent with the 1978 Amended Decree, established the correct point of diversion.
Macks and Andersons own adjacent land near South Burnt Fork Creek. The water right claims were based on original rights from 1905. Macks’ predecessor incorrectly identified the point of diversion in her statement of claims; however, the 1978 Amended Decree correctly identified the location of Headgate 103. Macks filed an amendment to correct the statement of claims in 2015, prior to the Basin 76HA Preliminary Decree conducted by the DNRC. Andersons objected with the Water Court, which concluded the 2015 Amendment did not contradict the 1978 Amended Decree and correctly placed Headgate 103.
Andersons appealed and the Supreme Court affirmed the Water Court. Although Andersons alleged the Water Court did not have jurisdiction over Macks’ 2015 Amendment, the Supreme Court had previously concluded the 1978 Amended Decree depicted the point of diversion as claimed by Mack and that the Water Court had jurisdiction to determine the location of a point of diversion. Andersons further argued the Water Court abused its discretion when it concluded Macks did not make any judicial admissions. The Supreme Court held the point of diversion constituted a legal description and did not constitute a judicial admission. Andersons also argued the Water Court erred in assigning the burden of proof to the Andersons. However, pursuant to the adjudicatory rules of the Water Court, the burden of proof for every assertion that a claim is incorrect falls upon the objectors, in this case Andersons. Andersons also argued the Water Court abused its discretion by excluding their expert witness. However, Andersons disclosed their expert witness untimely. The Supreme Court further held the Water Court’s findings were based on substantial credible evidence and were not clearly erroneous.
Points of Interest: water rights
2021 MT 26
Mont. State Univ.-Northern v. Bachmeier
Human Rights Commission may modify a hearing officer’s decision because it reviews the complete record, including evidence that may be contrary to a finding made by the hearing officer.
Bachmeier brought claims of sexual harassment and retaliation against MSU-N. An administrative Hearing Officer concluded Bachmeier did not prove discrimination, but did prove retaliation. Both parties appealed to the Human Rights Commission, which found three of the Hearing Officer’s findings incorrect and rejected the conclusion that Bachmeier had failed to prove discrimination. The Commission remanded the matter. After the Hearing Officer amended his findings and conclusions, the Commission issued a Final Agency Decision that awarded Bachmeier damages for both discrimination and retaliation.
Both parties appealed the Final Agency Decision to the District Court, which concluded the Commission had erred when it found three findings incorrect. Concluding that the Commission had no basis for remand, the court vacated the Final Agency Decision and reinstated the Hearing Officer’s original findings and conclusions.
Both parties appealed to the Supreme Court, which concluded that the Commission properly rejected the findings because reviewing bodies review the complete record in administrative proceedings, which includes reviewing evidence contrary to a Hearing Officer’s findings. §§ 2-4-621(3), 2-4-704, MCA. The Commission explained the reasons why the Hearing Officer’s original findings were “not based on competent substantial evidence” and the rejected findings did not depend on the weight or credibility of witnesses. The District Court therefore abused its discretion in reversing the Commission and reinstating the Hearing Officer’s first set of findings and conclusions. The Court also concluded that the District Court properly affirmed the Hearing Officer’s conclusion that MSU-N retaliated against Bachmeier.
Points of Interest: human rights, administrative law, administrative appeals
2021 MT 27
Courts have discretion to deviate from the presumption of a deferred sentence for a first-time offense of Criminal Possession of Dangerous Drugs conviction if aggravating circumstances elevate the offense beyond a typical case. However, prior to imposing the market rate fine under § 45-9-130(1), MCA, a court must consider the offender’s ability to pay the fine and the factors enumerated in § 46-18-231(3), MCA.
Wilkes was charged with felony possession of methamphetamine with intent to distribute, but a jury convicted her of the lesser-included offense of felony criminal possession. At sentencing the State recommended the maximum five-year prison term with none suspended because of the extraordinarily large quantity of methamphetamine involved. Wilkes recommended a deferred sentence in accordance with the statutory presumption for first-time felony possession offenders. Rejecting both recommendations, the District Court sentenced Wilkes to a five-year suspended commitment and issued the maximum fine of $5,000 plus $10,000 for the 35% market value fine mandated by § 45-9-130(1), MCA.
On appeal, the Supreme Court concluded that the District Court did not abuse its discretion in deviating from the statutory presumption of a deferred sentence because substantial evidence supported the aggravating circumstances found by the court. However, the Court reversed the trial court’s imposition of a $10,000 fine under § 45-9-130, MCA, because the record did not indicate the court considered the factors specified in § 46-18-231(3), MCA. The Court remanded the matter for consideration of those factors.
Points of Interest: sentencing, fines
2021 MT 28
Cascade County v. Mont. Petroleum Tank Release Comp. Bd.
When an agency utilizes a hearing examiner to conduct a contested case under MAPA, it can adopt, reject, or modify the examiner’s conclusions of law under § 2-4-621, MCA, but it cannot decline to address issues resolved by the examiner and reserve those issues for later proceedings.
Cascade County and the Montana Petroleum Tank Release Compensation Board engaged in a long-running dispute about the number of petroleum releases that occurred on the county’s shop site for purposes of compensation for remediation costs. A hearing examiner determined there were four releases, but § 27-2-231, MCA, barred the County from submitting additional eligibility applications for additional releases and the additional claims were also barred by laches. The Board adopted the statute of limitations conclusions of law from the hearing examiner and rejected the laches and number of releases conclusions.
On a petition for judicial review, the District Court determined § 27-2-231, MCA, did not apply to eligibility applications and remanded to the Board to further consider the remaining issues. The County appealed the District Court’s order of remand, and the Board cross-appealed the conclusion that § 27-2-231, MCA, had no application to the case. The Supreme Court agreed with the District Court that § 27-2-231, MCA, did not apply, because the statutes governing reimbursement already contain time limitations on owners seeking reimbursement from the board. Turning to the District Court’s order to remand the case for the Board to consider additional issues, the Court held § 2-4-621, MCA, allows an agency using a hearing examiner to adopt the examiner’s proposal for decision as the agency’s final order or reject and modify the examiner’s conclusions of law but does not allow the agency to not address an issue resolved by the hearing examiner and reserve that issue for later proceedings after judicial review. The District Court erred in remanding the case to the Board for further consideration of the rejected issues.
Points of Interest: administrative law, administrative appeals
2021 MT 37
Wenger v. State Farm Mut. Auto. Ins. Co.
The trial court did not err when it prohibited the parties from eliciting expert testimony regarding statutory interpretation or applying the law to the facts of the case, but erred when it admitted medical records containing irrelevant and private information about the plaintiff’s condition.
In a negligence action, the District Court issued a pretrial order prohibiting testimony or discussions regarding Montana statutes from voir dire through the close of evidence. However, it admitted unredacted medical records over Wenger’s objection. The jury returned a defense verdict.
On appeal, Wenger argued that the District Court’s rulings prejudiced her. She alleged that because of the court’s order prohibiting certain expert testimony, she did not attempt to introduce “a statutory standard of care” to the jury, putting her at a severe disadvantage. She also argued that her substantial rights were prejudiced by the admission of irrelevant, unredacted medical records.
The Supreme Court concluded the District Court’s order limiting expert testimony was not erroneous. Wenger was able to adequately question the jurors during voir dire and was able to develop her legal theories in opening statements. Regarding trial testimony, expert witnesses are permitted to testify as to ultimate issues of fact but are not permitted to apply those facts to the law or state their opinions regarding statutory interpretation. Here, pursuant to the District Court’s order, experts testified as to issues of fact. However, the Court agreed that many of the admitted medical records were irrelevant and contained private healthcare information. In light of the other evidence at trial, the Court concluded that the erroneously admitted evidence was not so prejudicial that it unfairly could have affected the jury’s decision because this information was not mentioned in testimony and despite its private nature largely concerned routine medical issues.
Points of Interest: evidence, experts, private healthcare information
2021 MT 44
Clark Fork Coalition v. Mont. Dep’t of Nat. Res. and Conservation
When considering a beneficial water use permit application under the Montana Water Use Act, DNRC is not required to consider Montana Water Quality Act or DEQ administrative rules as “existing legal demands” on the water source in its analysis of whether water is “legally available” for appropriation.
Clark Fork Coalition and other environmental groups (CFC) objected when DNRC issued a beneficial water use permit to RC Resources, Inc. (RCR). The permit would allow RCR to use the ground water it will remove from mine voids during the construction and production phase (Phase 2) of the Rock Creek Mine. CFC argued that the groundwater appropriation would deplete nearby protected streams. Before DNRC, CFC argued that state laws protecting these waters constituted “existing legal demands” that DNRC must consider before determining if water is “legally available” for appropriation. CFC also argued that another Montana Water Use Act (MWUA) provision, as applied by DNRC, unconstitutionally violated their right to a clean and healthful environment.
The DNRC disagreed, determining that its “legal availability” analysis was a straightforward comparison of the total volume of water in the source and the volume presently claimed for use by prior appropriators. On judicial review, the District Court vacated RCR’s permit and concluded that the potential depletion of outstanding resource waters, nondegradation in violation of the Montana Water Quality Act (MWQA), was a legal demand that DNRC must consider. RCR and DNRC appealed.
First, the Supreme Court interpreted “existing legal demands” under the MWUA to mean the aggregate quantum of water allocated or reserved for beneficial use under existing recorded water rights, thus reversing the District Court’s conclusion. Then, the Court addressed CFC’s claim that a second MWUA provision at issue unconstitutionally deprived them of a remedy for potential environmental degradation at the Rock Creek Mine. At the time of the Supreme Court’s decision, RCR had not yet obtained a hard rock operating permit, necessary to begin Phase 2. The Court thus determined that, by operation of the MWQA, MEPA, and the Metal Mine Reclamation Act, RCR’s proposed water use would be subject to full nondegradation environmental review before issuance of the operating permit and thus CFC’s constitutional right to a clean and healthful environment had not been violated by DNRC’s issuance of RCR’s water use permit.
Points of Interest: Montana Water Use Act, Montana Water Quality Act, natural resources
2021 MT 45
Although the borrower/lender relationship is typically an arms-length contractual relationship that gives rise only to duties and remedies in contract, extraordinary circumstances or interactions evidencing a special relationship between borrower and lender may give rise to fiduciary duties and support claims for negligence and tortious breach of the implied covenant of good faith and fair dealing.
In 2007, House refinanced his home loan and executed an adjustable rate note and residential trust indenture in favor of Bank of America. Over the next four years, House’s payment obligations fluctuated due to the adjustable interest rate and because of monthly add-ins owed to BOA to fund a loan escrow established upon House’s non-payment of real estate property taxes. House calculated his own monthly payment amounts, but often failed to account for the monies he owed to fund the escrow account. By 2011, House had missed four monthly payments when BOA returned his deficient May payment and refused to accept any more.
House sued for negligence and breach of the implied covenant of good faith and fair dealing. BOA moved for and was granted summary judgment. House appealed.
The Supreme Court concluded that House failed to show that a special relationship existed between the parties in their otherwise arms-length contractual borrower/lender relationship that would give rise to a fiduciary duty and support a claim for negligence against the bank. House had also neither pled nor shown the existence of a special relationship that would support a claim for tortious bad faith arising out of the implied contract covenant of good faith and fair dealing. Despite lingering factual questions as to House’s monthly payment obligations and how BOA accounted for them, it was undisputed that under the terms of his loan documents, House was in default when the bank refused his deficient payment, and thus House failed to show that BOA administered or serviced his loan in a dishonest or commercially unreasonable manner.
Points of Interest: contracts, loans, fiduciary duties
2021 MT 46
ALPS Prop. & Cas. Ins. Co. v. Keller, Reynolds, Drake, Johnson & Gillespie, P.C.
When a claims-made-and-reported malpractice insurance policy provides coverage for claims provided that at the effective date of the policy, no Insured knew that an error might be the basis of a Claim, the knowledge of one attorney precludes coverage for that claim as to all attorneys covered by the policy.
Gillespie represented Sandrock in two lawsuits. In one, the district court awarded sanctions against Sandrock for discovery abuses. In the other, the court entered default judgment against Sandrock after Gillespie failed to file an amended complaint on Sandrock’s behalf. Seifert and Johnson, members of the same Firm as Gillespie, were not involved in Sandrock’s representation. In November 2015, the Firm sought professional liability coverage from ALPS. Each of the Firm’s attorneys completed and signed a supplement representing that they had no knowledge of any fact, circumstance, act, error, or omission that could reasonably be expected to be the basis of a claim against them. Gillespie completed his supplement the day after he admitted at the default hearing that he had “not paid the necessary attention to the matter,” answering “No” to having any knowledge of any fact, circumstance, act, error, or omission that could be the basis of a claim against himself. ALPS issued the Firm a claims-made-and-reported policy, effective December 12, 2015, with Gillespie, Johnson, and Seifert each listed as an “Insured Attorney.” No one at the Firm, except Gillespie, knew of the entry of default or the sanctions award until April 2016, when Seifert learned of them and notified ALPS of the potential claim.
In September 2016, Sandrock filed a malpractice suit against Gillespie. He later amended the complaint, naming the Firm, Seifert, and Johnson as additional defendants. ALPS sought a declaration that it did not owe a duty to defend or indemnify the Firm or its members for these claims. The district court granted ALPS summary judgment, holding the Policy did not cover the claims because a member of the Firm knew of the basis of the claims prior to procurement of the Policy. Sandrock, the Firm, Seifert, and Johnson appealed.
On appeal, the Supreme Court affirmed. It determined Sandrock’s malpractice claim fell outside the scope of coverage because, for coverage to apply, “no Insured” may know that acts, errors and omissions might be the basis of the claim prior to the policy's effective date. This prior knowledge provision is a condition precedent to coverage. The unambiguous language of the Policy did not allow a claim to be divided into parts based on the knowledge of each Firm member. Thus Seifert and Johnson were also precluded from coverage based on Gillespie’s prior knowledge.
Points of interest: insurance, legal malpractice
2021 MT 47
District Court did not err by dismissing pending abuse and neglect proceedings and placing children with the non-offending, non-custodial parent.
Mother and Father had two children. In 2016, Mother and Father separated, and Mother was granted primary custody in a parenting plan action. In 2018, Father moved to Colorado, while the children remained in Montana with Mother. After Father moved, the Department removed the children after receiving a report Mother was intoxicated when picking the children up from daycare and had been incarcerated for PFMA on her partner. The children were later returned to Mother’s care, before again being removed after another domestic violence incident the home. Father did not want the children to be placed with him at that time. Several months later, Father moved to have the children placed in his care and to dismiss the case. The Department initially objected, but later moved to place the children with Father and dismiss the case. Mother objected. The District Court granted the Department’s motion, placed the children in Father’s care, and dismissed the case. Mother appealed.
On appeal, the Supreme Court held the District Court correctly placed the children in Father’s care and granted the motion to dismiss pursuant to § 41-3-438(3)(d), MCA. Consistent with the mandates of In re E.Y.R., 2019 MT 189, 396 Mont. 515, 446 P.3d 1117, and In re B.H., 2020 MT 4, 398 Mont. 275, 456 P.3d 233, the Department conducted further investigation of Father after concerns about his ability to safely parent the children were raised. After its investigation, the Department concluded Father could safely parent and moved to dismiss. Dismissal was proper because Father was a non-offending, non-custodial natural parent, and he did not pose an imminent safety risk to his children.
Points of interest: dependent neglect, child custody
2021 MT 56
The Department removed two children from Mother due to her inability to care for infants. Mother has developmental delays stemming from Fetal Alcohol Spectrum Disorder, a disability under the ADA. As part of her treatment plan, Mother engaged in Parent Child Interaction Therapy (PCIT) and Theraplay with a therapist experienced in working with parents with FASD. She also attended individual counseling with a separate therapist also experienced in working with individuals with FASD. Both opined that after extensive sessions with Mother she was still unable to safely parent the children. The District Court terminated Mother’s parental rights under § 41-3-609(1)(f), MCA.
On appeal, Mother argued the Department and District Court failed to provide her with reasonable accommodations under the ADA and did not provide her with active efforts under ICWA. The ADA applies to dependent neglect cases and the Department is obligated to provide parents with reasonable accommodations. However, the requirements of Title 41, chapter 3, MCA, to provide reasonable efforts and to develop an appropriate individualized treatment plan are consistent with the ADA requirements for reasonable accommodations. If the Department fails to take into account a parent’s limitations or disabilities and make reasonable accommodations, then it did not develop an appropriate treatment plan or make reasonable efforts. The District Court is not required to make specific findings under the ADA when terminating parental rights. Here, the District Court did not abuse its discretion because the Department provided Mother with services that took her disability into account and Mother never requested additional or different services. Mother’s providers opined there are no accommodations that could result in Mother obtaining the requisite parenting skills to meet the children’s daily needs.
Points of Interest: dependent neglect, active efforts, ADA, accommodations
2021 MT 65
In 2003, Rodriguez raped a 15-year-old girl, J.S. J.S. did not disclose the rape at the time, but later disclosed that Rodriguez had raped her after seeing a Facebook post about Rodriguez’s business in 2014. Rodriguez was charged with felony sexual intercourse without consent. At trial, his counsel questioned Jean McAllister, the State’s blind expert regarding trauma, victim responses to traumatic events, and the nature of sexual assault, but did not ask McAllister questions to elicit false reporting statistics during cross-examination. Rodriguez was convicted. On appeal, Rodriguez asserted his counsel was ineffective for not eliciting false reporting statistics from McAllister.
On appeal, the Supreme Court held Rodriguez’s allegations of ineffective assistance of counsel were not record-based and were therefore not appropriate for review on direct appeal. The Court lacked “a sufficient record to determine ‘why’ counsel for Rodriguez did not attempt to elicit false reporting statistics from McAllister on cross-examination,” and further noted counsel may have had a plausible justification for not asking those questions. Because the record did not answer “why” counsel did not ask about false reporting statistics, the claims would be more appropriately raised in a petition for postconviction relief.
Points of interest: criminal law, ineffective assistance of counsel
2021 MT 66
District court’s failure to obtain written confirmation of child’s enrollment eligibility directly from an Indian Tribe did not constitute reversible error.
The Department became involved in D.D.’s life when the child tested positive for marijuana at birth. After an in-home safety plan was unsuccessful, the Department filed for emergency protective services, adjudication of the child as a youth in need of care, and temporary legal custody due to concerns of parents’ drug use and domestic violence on Father’s part. After Father failed to progress on his treatment plan and was convicted of PFMA and incarcerated, the Department petitioned to terminate his rights. Father appealed, asserting the court committed reversible error by not obtaining written confirmation directly from the Turtle Mountain Band of Chippewa on whether the child could be enrolled in the Tribe.
On appeal, the Supreme Court held the District Court did not commit reversible error by not obtaining written confirmation of the child’s enrollment eligibility directly from the Tribe. The Child’s maternal grandfather was an enrolled member of the Tribe, so the Department contacted the Tribe to determine if Mother was eligible for enrollment and to notify the tribe of the proceedings in the event ICWA applied. The Tribe confirmed neither Mother nor Child was eligible for enrollment. The Department then notified the court through an affidavit of a CPS worker and during testimony at the termination hearing. Father did not object to a lack of written documentation directly from the Tribe at the time, and the Supreme Court determined that, under the circumstances, Father did not demonstrate that the failure to require the Department to file a written confirmation from the Tribe resulted in a manifest miscarriage of justice, compromised the integrity of the legal process, or would have resulted in a more favorable outcome in the absence of the asserted error.
Points of Interest: dependent neglect, ICWA, tribal enrollment
2021 MT 67
Kaul v. State Farm Mut. Auto. Ins. Co.
In 2013, the Kauls purchased an RV which they insured with State Farm. In 2017, the RV’s roof was torn during a trip to Arizona. The Kauls did not notice the damage at the time and returned to Montana, where they stored the RV outside, uncovered, at a storage facility in Missoula. On April 20, 2017, it rained .08 inches. About a month later, the Kauls discovered bubbling on the outer layer of the passenger-side wall. In June 2017, during a trip to Idaho, the Kauls discovered more bubbling. They then discovered the tear in the roof and performed a temporary repair. The Kauls took the RV to a shop in Oregon, where they had the roof and the wall repaired. State Farm paid for the roof repair under the Kauls’ insurance policy, which required covered damage to be “direct, sudden, and accidental,” but denied coverage for the wall. The Kauls filed suit against State Farm. The parties filed cross-motions for partial summary judgment, and the District Court granted State Farm’s motion, finding the water damage to the wall of the RV was not covered by the insurance policy.
On appeal, the Supreme Court reversed the District Court’s grant of partial summary judgment to State Farm and remanded for entry of partial summary judgment in the Kauls’ favor. The Court reviewed the policy’s plain language and determined the water damage which occurred on April 20, 2017, was “sudden” damage. The damage from the rainstorm was “damage” even though it was not visible until the bubbling was observed a month later, because the RV lost over $10,000 in value as the wall of the RV would need to be removed for repair after as little as a gallon of water entered the walls. State Farm never contended that the water damage was not “direct” or “accidental,” so it was required to cover the damage under the policy’s plain language as “direct, sudden, and accidental” damage.
Points of Interest: insurance, insurance policies
2021 MT 68
DeBuff v. Mont. Dep’t of Nat. Res. & Conservation
DeBuff applied for a permit with DNRC, but the permit was denied without prejudice in a 1987 Final Order. DeBuff began exploring reapplication in 2013, when he hired an engineer and hydrologist. DeBuff submitted a renewed application for a beneficial water use permit in 2016. DNRC delivered a deficiency letter to DeBuff, stating concerns of the proposal’s impact on downstream water rights, based on DNRC’s belief that there was a continuous aquifer under DeBuff’s property. DeBuff responded with data indicating that the southern aquifer was ephemeral and not connected to the northern source, and suggested DNRC apply evapotranspiration analysis. DNRC maintained the aquifer was continuous, relying on contrast photos. DNRC dismissed DeBuff’s evapotranspiration evidence without analysis.
DeBuff provided more evidence that the aquifers were not connected, but also provided an alternative water budget that incorporated evapotranspiration to offset any loss if the aquifer was continuous. DNRC determined the evapotranspiration analysis would mitigate a greater loss than DeBuff anticipated, but again dismissed evapotranspiration. DeBuff then amended the application to reach a net zero water depletion according to DNRC’s figures. Notwithstanding, DNRC issued a preliminary determination to deny the application. In January 2019, a hearing officer issued a Final Order upholding DNRC’s denial. The Final Order did not address the water budget analysis or evapotranspiration.
DeBuff petitioned the Water Court for judicial review. The Water Court ruled in DeBuff’s favor, concluding that DNRC improperly relied on a geologic map and 1987 Final Order and its failure to analyze and rejection of water budget and evapotranspiration evidence was arbitrary and capricious. DNRC appealed.
The Supreme Court affirmed the Water Court’s finding that failure to address the water budget and evapotranspiration analyses was arbitrary and capricious. This was substantial evidence, meritorious of examination, that DeBuff’s application would not impact downstream rights. The Supreme Court reversed the Water Court regarding consideration of the map and prior final order, reasoning that the information may be relied upon despite not being in the record because it was generally known and relied upon by both parties.
Points of interest: water law, natural resources, DNRC permits
2021 MT 70
Shepherd v. State ex rel. Dep’t of Corr.
Shepherd was terminated from employment at the Department of Corrections on August 10, 2018. Pursuant to DOC’s internal grievance procedures, she filed a grievance that day, asserting her discharge was wrongful due to violations of certain department policies. A hearing was conducted by the Department of Administration on January 7, 2019. On February 14, 2020, DOA issued a Final Administrative Decision concluding that Shepherd’s termination was justified.
Twenty-six days after the Final Administrative Decision was issued, Shepherd filed a complaint in District Court against DOC. DOC moved for summary judgment, arguing Shepherd’s claim was time-barred under § 39-2-911, MCA. The District Court granted summary judgment in DOC’s favor and dismissed the complaint.
On appeal, the Supreme Court reversed and remanded. Under § 39-2-911, MCA, an action for wrongful discharge must be filed within one year after the date of discharge, but if an employer maintains written internal grievance procedures, the limitation period is tolled until the procedures are exhausted. Here, the limitation period was tolled from the date Shepherd initiated the grievance procedures until the Final Administrative Decision was issued. Thus, the limitation period on her WDEA claim effectively began on February 14, 2020. Shepherd timely filed in District Court well within the one-year statute of limitations.
Points of Interest: administrative law, statute of limitations, wrongful discharge
2021 MT 71
Dannels was injured while working in a BNSF railroad yard. Dannels sued BNSF under the Federal Employers’ Liability Act, alleging BNSF negligently assigned him physical work activities that caused cumulative trauma to his lower back and spine making him susceptible to permanent disability. A jury returned a verdict in Dannels’ favor, finding BNSF 100% at fault.
After the verdict, but before the final judgment, Dannels requested BNSF pay his lost wages. BNSF refused, and Dannels filed claims for insurance bad faith and punitive damages. Dannels asserted BNSF violated Montana common law and statutory duties of good faith and fair dealing by failing to advance his lost wages, failing to reasonably investigate and adjust his claim, and failing to offer him alternative or permanent employment.
Before trial on the state law claims, BNSF moved to preclude Dannels from offering evidence or testimony at trial regarding BNSF’s claims-handling or reporting. BNSF argued FELA does not require advance payment of wages or offering alternative or permanent employment as part of its claims’ settling practices. Before the court ruled on the motion, the parties stipulated to entry of final judgment allowing the case to be appealed.
The Supreme Court determined that a self-insured railroad’s bad faith claims handling conduct is distinct from the negligent cause of the occupational injuries at issue in the underlying FELA claim; therefore, FELA did not pre-empt the injured employee’s right to seek redress under state bad faith laws.
Points of interest: workers’ compensation, FELA, insurance bad faith
2021 MT 72
Lesage v. Twentieth Judicial Dist. Court
Lesage was arraigned on December 10, 2020. Eight days later, her attorney mailed a motion to substitute the presiding judge to the Clerk of District Court, but failed to enclose the statutorily mandated filing fee. The Clerk returned the motion by mail without enclosing an explanation of the reason for return. On December 23, counsel received the returned motion, contacted the Clerk, and learned that the Clerk had returned the motion for lack of filing fee. Counsel then e-mailed the motion and placed a check for the filing fee in the mail. Although there is no record of when the Clerk received delivery of the filing fee, the Clerk date-stamped the motion for filing on December 28, 2020. The District Court then denied the motion as untimely. Lesage then petitioned for a writ of supervisory control.
The Montana Supreme Court denied the petition, determining that to be timely, Lesage would have needed to file the motion, including the filing fee, no later than December 21. The Court rejected Lesage’s argument that she was entitled to a three-day extension for mailing as this applies only to service of process. The Court further noted that § 3-1-804(3), MCA, provides that a motion for substitution is “not effective for any purpose” unless the filing fee is paid. Therefore, the substitution motion was not timely filed and effective until receipt of the payment, which indisputably occurred after December 21. The Court further rejected Lesage’s equal protection challenge; even assuming arguendo that privately represented defendants and defendants represented by a public defender are similarly situated, a rational basis can be discerned for disparate treatment of those classes.
Points of interest: supervisory control, substitution
2021 MT 74
Supreme Court will review denial of an M. R. Civ. P. 62.1 motion as though it serves as a denial of an M. R. Civ. P. 60(b) motion on the merits.
In 2015, someone shot Moore’s boat. Moore believes Frost is responsible and in 2018, he filed a lawsuit alleging several claims against Frost. Frost moved for summary judgment, which the District Court granted. Moore appealed the summary judgment ruling to the Supreme Court. While his appeal was pending, Moore filed an M. R. Civ. P. 62.1 motion for an indicative ruling in the District Court, alleging he discovered “new evidence” Frost shot his boat after Moore’s daughter told Moore that a friend told her he had given Frost a rifle and bullets, that Frost had been planning to shoot the boat, and that Frost later told that friend he “did it.” The District Court denied the Rule 62.1 motion.
On appeal, the Supreme Court noted it had not previously articulated the standard of review for the denial of a Rule 62.1 motion. Noting that Montana’s Rule 62.1 and the Federal Rule 62.1 were identical, and therefore interpretation of the federal rule has persuasive application to the state rule, the Court agreed with the Ninth Circuit and other federal circuit courts that the denial of a Rule 62.1 motion should be reviewed as though it serves as a denial of a Rule 60(b) motion on the merits. Because Moore was alleging newly discovered evidence, the standard of review was for a manifest abuse of discretion. The Court found the District Court did not manifestly abuse its discretion by denying Moore’s Rule 62.1 motion because the “new evidence” was both inadmissible and not obtained with reasonable diligence.
Points of interest: civil procedure, new evidence
2021 MT 75
Public Land/Water Access Ass’n v. Robbins
District Court properly applied the “record as a whole” standard to conclude that a disputed road was private, where the record was devoid of any documentation showing the statutory petition process for public roads occurred and the historic evidence did not demonstrate that the road had been made public. There was no public prescriptive easement over the road where witness testimony established only seasonal, recreational use.
Public Land/Water Access Association, Inc. (“PLWA”), appealed the District Court’s judgment following a bench trial concluding that a Fergus County road was private because PLWA had not proven the existence of a public road by petition or by prescriptive easement. PLWA argued on appeal that (1) the District Court failed to apply the Reid standard to PLWA’s claim the road was public by petition, and (2) there was no substantial credible evidence to support the court’s conclusion as to either theory.
The Supreme Court affirmed, concluding the District Court did not err in concluding the road was private. The District Court properly applied the “record as a whole” standard from Reid v. Park County, 192 Mont. 231, 234, 627 P.2d 1210, 1212 (1981); PLWA presented historic maps allegedly showing the disputed road, but the record was devoid of any petition or road viewers report, any official commission action opening the road, any easements granted by landowners or compensation paid to landowners, or any public hearings. Further, substantial credible evidence supported the findings as to both the theories of public road by petition and prescription.
Points of Interest: property, easements and roads
2021 MT 76
District court abused its discretion by imposing a suspended sentence after the State did not present sufficient evidence to overcome the presumption in favor of a deferred sentence for a first offense criminal possession of dangerous drugs.
Officers responded to Doubek’s house after a report of shots fired. Doubek answered the door and reported a preoccupation with bugs in her house. Doubek denied any gunshots and walked away into her residence. She picked up a methamphetamine pipe off her end table and continued walking before being stopped and handcuffed. The officers searched her residence and found no other drugs, outside of the pipe, and no evidence that a gun had been fired. Doubek was charged with, and convicted of, felony criminal possession of dangerous drugs. During the sentencing hearing, law enforcement testified to previous contacts Doubek had with them, none of which resulted in criminal charges. Doubek testified to her embarrassment about the incident and noted improvement in her mental health since that time. The District Court sentenced Doubek to a four-year suspended DOC commitment.
On appeal, the Supreme Court held the District Court abused its discretion by sentencing Doubek to a suspended sentence rather than a deferring imposition of sentence as sufficient evidence was not presented to overcome the presumption Doubek was entitled to a deferred imposition of sentence pursuant to § 45-9-102(4), MCA (2017). The evidence presented at sentencing had neither “substantial aggravating circumstance[s]” related to the offense nor evidence of “post-offense, presentence conduct indicating continued criminal propensity” to overcome the presumption Doubek was entitled to a deferred imposition of sentence.
Points of Interest: sentencing
2021 MT 82
Buckley v. W. Mont. Cmty. Mental Health Ctr.
Employer satisfied its burden to demonstrate it had a legitimate business reason constituting good cause for terminating its program manager and that it did not violate the express provisions of its written personnel policies.
Buckley accepted a position as a program manager for two WMMHC adult group homes. WMMHC provided Buckley with a document describing her responsibilities and job functions, which she acknowledged and signed. During her time as program manager, Buckley instilled a Level System, which provided that clients would lose privileges if they earned a certain number of demerits in a week. In April 2019, multiple reports were received regarding Buckley’s behavior and her Level System. Buckley was informed of the grievances and impending investigation. In May 2019, Buckley received a notice of termination. Buckley met with WMMHC Human Resources to appeal her discharge utilizing the three-step internal disciplinary grievance procedure. WMMHC upheld their decision to terminate. Buckley filed an action in District Court, which granted summary judgment in WMMHC’s favor.
On appeal, the Montana Supreme Court affirmed the District Court, concluding that WMMHC had broad discretion under the Wrongful Discharge from Employment Act to determine whether Buckley performed satisfactorily. WMMHC lost confidence and trust in her ability as a managerial employee, and thus had a legitimate business reason to justify the discharge. Although the burden shifted to Buckley to prove her discharge was for other reasons, she failed to do so, and this Court found WMMHC has genuine and real concern that Buckley’s continued employment would constitute immediate harm to their business interests. Regarding her personnel policy claim, the Court determined WMMHC correctly terminated Buckley based on the policies contained within employment handbook.
Points of interest: wrongful discharge
2021 MT 83
When District Court stays execution of the judgment while appeal is pending, the stay is lifted when remittitur from the Supreme Court is issued and when the appeal is no longer pending. The State may not seek to execute a sentence over a year after it has expired.
Defendant entered a no contest plea to misdemeanor DUI, reserving the right to appeal the denial of a motion to suppress. The District Court sentenced him to six months incarceration with all but 24 hours suspended. The court “stay[ed] execution of the judgment while his appeal is pending.” The Supreme Court affirmed the denial of the motion to suppress and issued remittitur. District Court issued notice of remittitur to the parties on October 17, 2017. The State moved to lift the stay and set a status hearing on the case 552 days after the notice of remittitur was issued. The District Court granted the motion to lift the stay over Defendant’s objections.
On appeal, the Supreme Court held the original stay lifted on its own terms when the appeal was no longer pending—when remittitur was issued. The onus was on the State to act swiftly upon remittitur to seek Defendant’s voluntary surrender or an additional order of commitment from the District Court. It failed to act during the six-month sentence and the State could no longer execute the terms of the sentence 552 days later. The District Court erred in granting the State’s motion to lift the already expired stay and re-imposing the already expired sentence.
Points of interest: stays, sentencing
2021 MT 85
Because police officers were acting in a community caretaking role, they did not unconstitutionally enter a residence when the occupant told dispatchers he was suicidal, responding officers could not confirm his safety, and the officers limited their intrusion to the minimum necessary to confirm his safety.
Frazier called police, alleging he had been assaulted at a party. Officers responded to Frazier’s residence and found him in an intoxicated, highly emotional state. The officers learned that party guests took Frazier home after he had become intoxicated and disruptive. After the officers left, Frazier called dispatch and threatened suicide. The same officers responded and attempted to make contact with Frazier. Out of the officers’ sight, Frazier yelled at the officers to leave. One officer unsuccessfully attempted to obtain additional information to justify entry but Officer Miller pushed the residence’s door open. Frazier appeared with a gun to his head, begged Officer Miller to shoot him, then started to turn his gun on Miller while threatening “suicide by cop.” Officer Miller shot and killed Frazier.
Frazier’s estate sued Miller, claiming he violated Frazier’s right to privacy and conducted an unconstitutional search. The District Court granted summary judgment in Miller’s favor on this theory, concluding that no reasonable person would conclude that law enforcement was not authorized to execute a warrantless entry under the circumstances. The Estate proceeded to jury trial on assault, wrongful death, and negligence counts. The court gave the jury a special verdict form regarding justifiable use of force. Because the jury found Miller’s use of force justified, they returned a defense verdict.
The Supreme Court affirmed on appeal. The officers were functioning in their “community caretaking” role when responding to Frazier’s second call, and Miller’s intrusion was the minimum necessary to confirm Frazier’s safety. The welfare check was “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute” and thus did not violate Frazier’s constitutional rights. The Court also concluded that the special verdict forms used at trial properly instructed the jury to first consider Miller’s justifiable use of force defense and then the Estate’s negligence claim.
Points of Interest: warrantless entry, community caretaking, search and seizure
2021 MT 86
Father’s testamentary appointment of guardianship to his wife was not effective to give her priority for guardianship over grandparents when the natural mother was living and had not been adjudicated as incapacitated. Based on the mother’s consent and children’s best interests, the District Court acted within its discretion when it appointed grandparents as temporary guardians. The court did not abuse its discretion by ordering contact with stepmother pending further proceedings, but adjudication of parental or visitation rights would have to be a separate proceeding under Title 40.
Father of children J.S.M. and G.R.M. died four years after he and the children’s birthmother separated and two-and-a-half months after he married Carol. Before and during his relationship with Carol, the children’s grandparents had an extensive role in their lives; Carol also provided significant care. Birthmother had not seen the children for about two years. The parenting plan entered in birthparents’ dissolution provided restricted parenting for Birthmother, and she acknowledged she had essentially disappeared from children’s lives. After Father died, Birthmother consented to guardianship by Grandparents. However, Father’s will included a testamentary appointment of Carol as guardian, expressing his wish that none of his family be so designated.
Grandparents and Carol both petitioned for guardianship. The District Court appointed Grandparents as temporary guardians. It also entered temporary orders with a residential schedule. Both parties appealed.
The Supreme Court held that Father’s testamentary appointment did not vest Carol with guardianship because Birthmother is alive and competent. The Court rejected Carol’s argument that § 72-5-222(2), MCA, entitled her to priority. Even though Birthmother had not parented the children for some time, her parental rights were not suspended and her surrender of the children to Father did not limit her rights as a parent.
On Grandparents’ cross-appeal, the Court held that the District Court did not abuse its discretion by limiting its order to a temporary guardianship. The court could not enter a parenting plan in a guardianship action but did not abuse its discretion by maintaining contact with both parties during the pendency of the action. The entry of a parenting plan upon the death of a parent is governed by § 40-4-221, MCA, which allows the surviving spouse to seek a parenting plan; the action must name the surviving parent as a party. Once the guardianship issue is resolved by permanent appointment, the determination of any further parenting or visitation interest must be handled through a separate petition for parenting plan in accordance with § 40‑4‑221, MCA.
Points of interest: guardianship, parental rights, grandparents’ rights
2021 MT 87
District Courts can interpret or clarify a prior judgment to resolve an ambiguity, imprecision, or uncertainty to fully effect the judgment, but this interpretation or clarification cannot materially alter the original meaning or effect of the prior judgment.
This case was the latest installment in a decades-long easement dispute between the VanBuskirks and the Gehlens. In 1987, the parties reached a stipulated settlement wherein the Gehlens’ predecessors granted the VanBuskirks’ predecessors “the right to use the path across that real property” that was described and depicted in a document attached as Exhibit C. VanBuskirk property owners continuously used this road to access their property until late 2013 or early 2014, when the Gehlens installed a locked gate across the road. This led to litigation and ultimately to the District Court granting summary judgment, which the Montana Supreme Court affirmed, in favor of VanBuskirks’ continued use of the road.
In 2017, the Gehlens plowed over the historical course of the road, leaving a new unbladed, unseeded path. The ensuing litigation culminated in the District Court sua sponte ordering a survey of the road description as set forth in the original stipulation. Surprisingly to all parties, the survey of the description provided in the stipulation deviated substantially from the historical course of the road. Accordingly, the VanBuskirks petitioned the court to amend the 2016 judgment to match the path as drawn and depicted in Exhibit C of the 1987 stipulation, which the District Court denied in 2020.
On appeal, the Montana Supreme Court determined that the District Court did not err in sua sponte ordering VanBuskirks to professionally survey the description provided in Exhibit C of the 1987 stipulation. However, the District Court erred in failing to clarify the 2016 judgment in accordance with the law of the case stating that “[i]n accordance with the consistent, clear, and unambiguous language of the 2016 judgment, the 1987 Stipulation granted an express easement across the servient tenement as generally depicted in Exhibit C and consistently more particularly described in the accompanying metes and bounds description.”
Points of interest: judgments, property, easements and roads
2021 MT 93
Special Master’s Determination regarding the disposition of personal property in the possession of a receiver is appealable as a final decision under M. R. App. P. 6(3)(g).
PF2 intervened in a case for the limited purpose of seeking return of personal property that was in a receiver’s possession. The District Court appointed an attorney as a “special master” to resolve the dispute. After the attorney issued a Special Master’s Determination, PF2 filed an objection with the District Court, but also appealed from the Determination before the court ruled.
The Receiver moved to dismiss PF2’s appeal, arguing that the matter was not properly before the Supreme Court because the Determination was not a “final decision.” The Court denied the motion to dismiss, first determining that the appointment was in fact a “special master” and then holding that pursuant to the authority of a special master under § 3-5-113, MCA, the Determination was appealable under M. R. App. P. 6(3)(g) as it was a final decision on an order giving direction with respect to a receivership.
Points of Interest: special master, appellate procedure, M. R. App. P. 6(3)
2021 MT 94
Montana’s Privacy in Communications statute is not unconstitutionally overbroad as it does not criminalize protected speech, and the statute may encompass threats to inflict harm on a third party when the threat is communicated to the recipient with one of the purposes enumerated within the statute.
Lamoureux called his ex-wife’s business and threatened her employee after she refused to provide him with the phone numbers of his ex-wife and ex-father-in-law. He called his ex-father-in-law on two occasions and informed him each time that he intended to kill his ex-wife. During the second call, he also stated that he intended to burn down a building the ex-father-in-law owned. The State charged Lamoureux with three felony counts of Privacy in Communications. Lamoureux moved to dismiss. He argued that his first phone call to his ex-father-in-law did not violate the statute because the threatening communication was about a third person. He further argued that the statute was overbroad and violated his constitutional right of free speech. The District Court denied the motion and Lamoureux was convicted by a jury.
On appeal, Lamoureux argued that the District Court erred in denying his motion to dismiss and further argued that at trial, the State failed to prove an element of the offense on the third count because it did not prove that either he or the recipient was in Montana and the District Court failed to fully instruct the jury. The Montana Supreme Court affirmed. The Court concluded that Lamoureux’s threat to kill his ex-father-in-law’s daughter fell within the plain meaning of a “threat to inflict injury” as set forth in the statute. The Court declined Lamoureux’s invitation to overturn precedent which rejected his constitutional arguments. The Court concluded that the State offered ample circumstantial evidence to prove that Lamoureux was in Montana when he called his ex-father-in-law, and the determined the jury instructions fully and fairly instructed the jury on the law applicable to the case.
Points of Interest: constitutional law, privacy in communications
2021 MT 99
Comm’r of Political Practices for Mont. v. Mont. Republican Party
Commissioner of Political Practices lacked authority under § 13-37-111, MCA, to issue a subpoena for document production relevant to an election law violation investigation.
The Montana Democratic Party filed a campaign finance complaint with the COPP, alleging the Montana Republican Party had failed to comply with the reporting and disclosure requirements of § 13-37-229, MCA. During investigation, the COPP issued a subpoena under § 13-37-111, MCA, commanding the Republican Party to produce documents related to its campaign expenditures. The Republican Party did not comply. The COPP petitioned the District Court for declaratory judgment and injunctive relief, requesting the court enforce the subpoena. The parties filed cross-motions for summary judgment. The District Court granted the Republican Party’s motion for summary judgment and dismissed the petition, holding the COPP did not have authority to issue documentary subpoenas.
The Supreme Court affirmed. The plain language of § 13-31-111, MCA, does not provide the COPP authority to issue subpoenas for production of documents. The statute provides that the COPP may “require the production” of documents, but does not expressly provide subpoena power to require it. The COPP may compel production of documents via court order pursuant to § 13-35-108, MCA, which is the remedy the Legislature provided for enforcement of the election laws.
Points of interest: elections, campaign finance, subpoenas
2021 MT 100
Heringer v. Barnegat Dev. Grp., LLC
The voluntary cessation exception to mootness does not apply when there is a lack of concrete evidence suggesting the defendant will perpetrate a substantially similar wrong.
Barnegat Group purchased the development rights to a condominium development. Due to financial issues with the existing owner’s association and unaddressed structural issues in two of the units, Barnegat filed an amendment to the declarations governing the development in an attempt to put new condominiums into a separate condominium owner’s association. Barnegat told the existing owners that it hoped the arrangement would be temporary and once those two issues were resolved it would rescind the amendment. The existing owners filed suit for a declaration that the amendment was invalid, null, and void. Before answering the complaint, Barnegat rescinded the amendment. Barnegat then filed both its answer and a motion for summary judgment that the case was moot. The owners opposed the motion, arguing the court should apply the voluntary cessation exception to the mootness doctrine. In its reply brief, Barnegat explained the financial issues had been resolved, the structural issues were being addressed, and it no longer had reason to split the association now or in the future. The District Court concluded the case was moot and dismissed the action.
On appeal, the Supreme Court affirmed, but clarified that its holding in Havre Daily News, LLC v. City of Havre, 2006 MT 215, 333 Mont. 331, 142 P.3d 864, does not preclude the application of the voluntary cessation exception when there has been only a single incident of the offending conduct. Rather, the court must consider the circumstances of the case and determine whether concrete evidence suggests the defendant will perpetrate a substantially similar wrong.
Points of Interest: mootness
2021 MT 103
No specific unanimity jury instruction was required where the charging statute did not include two distinct crimes and the two acts alleged by the State were so closely related in time, location, and nature as to form the same course of conduct and constitute a single continuous running offense.
Police arrived as Wells attempted to start his truck, which had seemingly run out of gas in the middle of a road as he and an acquaintance were leaving a bar. Wells was charged with DUI under § 61-8-401, MCA, which provides that it shall be unlawful for a person under the influence of alcohol to “drive or be in actual physical control” of a vehicle on public roadways. At trial, Wells contended that his acquaintance had driven the truck from the bar to the point where it had come to a stop. However, the prosecutor argued to the jury that Wells could be convicted either for driving or for assuming “actual physical control” by attempting to start his vehicle. The trial court rejected Wells’ proposed specific unanimity jury instruction which would have required the jury to unanimously agree that Wells either drove the vehicle or assumed “actual physical control.”
On appeal, Wells argued that the specific unanimity instruction should have been given because both the statute and the prosecutor’s theory of the case encouraged a jury to convict Wells without being unanimous as to whether Wells had driven the truck from the bar or had assumed “actual physical control” when he attempted to start it as police arrived. Addressing the statute, the Supreme Court concluded that the language to “drive or be in actual physical control” did not contain two distinct crimes, as the act of “driv[ing]” was simply one means by which an individual might gain “actual physical control” of a vehicle. Addressing the prosecutor’s theory of the case alleging multiple bad acts, the Court found that Wells’ two alleged acts of (a) driving from the bar and (b) assuming actual physical control by subsequently attempting to start the vehicle, were so closely related in time, location, and nature as to form part of the same course of conduct and be merged into a single continuous, running offense, rather than constituting two independent occurrences that would have required a specific unanimity instruction.
Points of interest: jury instructions, unanimity, DUI
2021 MT 104
Two isolated references to “jail” do not provide the same prejudicial effect as a jury seeing a defendant in restraints or prison clothes, and unauthorized use of a motor vehicle under § 45-6-308(1), MCA, is not a lesser-included offense of theft by possession of stolen property under § 45-6-301(3)(c), MCA.
Although the Defense attempted to keep Denny’s inmate status unmentioned to the jury, the State’s witnesses made two references that implicated Denny’s status. One witness stated he had had contact with Denny in “county jail.” The other witness identified an exhibit as “a jail visitation call.” Denny moved for mistrial on both occasions; the District Court denied the motions.
Denny was charged with theft by possession of stolen property under § 45-6-301(3)(c), MCA. Denny requested a jury instruction on unauthorized use of a motor vehicle under § 45-6-308(1), MCA, as a lesser included offense. The District Court refused the instruction.
Denny argued on appeal that witness testimony about a defendant’s incarceration status has a similar effect on a jury as restraints, which this Court has cautioned against. The Court concluded that the two references did not so impact the jury’s deliberations that it influenced every question submitted to the jury.
Furthermore, after comparing the elements of the offenses, the Court concluded that theft by possession of stolen property and unauthorized use of a motor vehicle are distinct offenses, each of which requires proof of at least one element that the other does not. Therefore unauthorized use is not a lesser included offense of theft by possession of stolen property.
Points of interest: jury, lesser-included offense
2021 MT 105
District Court abused its discretion in declaring a mistrial; thus, Newrobe’s convictions for sexual intercourse without consent and bail jumping were dismissed with prejudice.
Newrobe was charged with incest and bail jumping. Upon conclusion of the second day of trial, the court asked the parties to provide a definition for “descendant,” as it pertains to the incest statute. Before trial resumed, the court informed the parties that the trial would not proceed because the court reporter had suffered a heart attack or stroke and it was emotionally too difficult on the court. Without input from the parties, the court dismissed the jury and declared a mistrial. Newrobe objected and moved to dismiss with prejudice because the jury was impaneled and the State could not prove the elements of incest due to the “descendant” element. The State then filed an amended information changing the incest charge to sexual intercourse without consent. Newrobe again moved to dismiss asserting double jeopardy protections against the mistrial. The court denied his motions and concluded the trial was not barred by double jeopardy. Newrobe was ultimately convicted. On appeal he asserted the District Court abused its discretion in declaring a mistrial and erred in concluding that double jeopardy did not bar retrial.
The District Court declared a mistrial due to the unavailability of a court reporter and the emotional impact on the trial judge. Despite the clear and articulated objection by Newrobe that the State could not establish the existence of the familial relationship required to prove incest, and the fact that the State’s remaining two witnesses would not have corrected the fatal flaw in the State’s information, the court asserted there was manifest necessity to declare the mistrial. This Court concluded the court’s actions secured to the State a tactical advantage over the accused by allowing it to amend the charge to an entirely different offense, which, at its core, is the principle underlying the prohibition against placing a defendant “twice in jeopardy.” The District Court did not exercise great caution before declaring a mistrial, nor were the circumstances urgent, nor was it plainly obvious that only a mistrial would provide justice.
Points of interest: mistrial, double jeopardy
2021 MT 115
Petitioner could not challenge his sexual assault conviction via writ of habeas corpus, pursuant to § 46-22-101(2), MCA. State v. Hansen and Hardin v. State are overruled because they fail to distinguish between an illegal sentence and an invalid plea.
Gardipee pled no contest to felony sexual abuse of children pursuant to a plea agreement. The District Court sentenced him to 25 years with 10 suspended. Gardipee then petitioned for a writ of habeas corpus, relying on State v. Hansen, 2017 MT 280, 389 Mont. 299, 405 P.3d 625, and arguing that a no contest plea to a sexual offense is invalid. The State responded that Gardipee is procedurally barred to challenge his conviction, pursuant to § 46-22-101(2), MCA, and that his sentence is legal.
The Supreme Court determined Gardipee was challenging his conviction, not his sentence and denied his petition. The Court explained that a challenge to a conviction is more appropriate for a direct appeal, and since Gardipee did not pursue a direct appeal, he waived any challenge to his conviction. The Court further determined that in Hansen and Hardin v. State, 2006 MT 272, 334 Mont. 204, 146 P.3d 746, it had failed “to distinguish between an alleged error in a defendant’s conviction from an error rendering a sentence illegal,” and that an error in conviction does not necessarily lead to an invalid sentence. Here, the alleged error was a defective plea and not an illegal sentence.
Points of Interest: habeas corpus, sentencing
2021 MT 116
Hartshorne v. City of Whitefish
City’s ordinance did not constitute spot zoning because commercial use was specifically contemplated under the growth policy and the lot size had not changed since the policy’s inception. The uniformity requirement was not violated because all regulations within the property at issue were applied uniformly.
Developer purchased property in a largely residential area in Whitefish, with a zoning classification of “WR-4: High Density Multi-Family Residential.” The City designated the property as a “neighborhood center” under its growth policy, intended to be developed with 10% commercial use. The City later passed new Planned Unit Development regulations that prevented commercial development in areas where the prevailing use was residential. Developer sought a conditional use permit (CUP) for development of the property and to further define permitted uses. The City passed Ordinance 18-23, allowing a CUP for development of the property and identifying additional conditional uses for the property. The additional conditional uses were not identified as conditional uses allowed under the WR-4 zoning regulations.
Hartshorne sued the City and the City Council alleging Ordinance 18-23 constituted spot zoning and violated the uniformity requirement of § 76-2-302(2), MCA. Developer joined as a defendant. All parties moved for summary judgment. The District Court granted the City’s motion on all counts, except the claim that the Ordinance violated the uniformity requirement, on which it agreed with Hartshorne. The court declined to void the Ordinance and instead struck the conditional uses not otherwise existing under the WR-4 permitted uses. Developer appealed the District Court’s ruling on the uniformity requirement, and Hartshorne cross-appealed the District Court’s ruling on the spot-zoning claim.
The Supreme Court held that the City acted within its discretion in enacting Ordinance 18-23, which substantially complied with the Neighborhood Plan. The Court reversed on the uniformity ruling that struck the portion of the Ordinance that specified additional conditional uses. The plain language of the uniformity requirement as applied to the City’s zoning practices required uniformity only within the districts shown on the City’s official zoning map, not within the “use districts” identified in the City’s code.
Points of interest: property, municipal codes
2021 MT 120
McLaughlin v. Mont. State Legislature
Allegations of judicial misconduct involving the entire Judicial Branch required the adoption of the Rule of Necessity as the same disqualifying interest existed with respect to every judge in Montana. The issuance of a subpoena, nearly identical to the subpoena at issue, to all Justices was an attempt to manufacture a disqualifying conflict.
In Brown, et al., v. Gianforte, OP 21-0125, the Legislature, as an intervenor, and Respondent Governor Greg Gianforte raised concerns about a Montana Judges Association membership survey regarding SB 140 that McLaughlin facilitated. In that action, Court Administrator McLaughlin successfully quashed a subpoena the Legislature served on the Department of Administration. Subsequently, McLaughlin filed a Petition for Original Jurisdiction and Emergency Request to Quash/Enjoin Enforcement of Legislative Subpoena regarding the same subpoena, which was granted. The Legislature then issued a subpoena to each justice of the Montana Supreme Court seeking the production of all electronic and physical documents related to polls of the Judiciary by McLaughlin, pending legislation, and business conducted by the MJA using state resources. The Legislature then moved to disqualify all Justices of the Court.
The Court held that the Justices were not obligated to recuse themselves from considering McLaughlin’s Petition under § 3-1-803(1), MCA. From the pleadings and exhibits, it was clear that all judicial officers of the Judicial Branch were subject to the Legislature’s investigation. There were no cases in which any Justice sitting on this case was a party and it was not established that any Justice had an actual bias or any interest in the outcome of this litigation, apart from being a member of the Judicial Branch and the MJA. The Court rejected the Legislature’s argument that Justices should be recused from considering the matter because McLaughlin is an employee of the Judicial Branch; this would deny access to justice for members of the Judicial Branch and parties seeking relief from their actions, in contravention of Article II, Section 16, of the Montana Constitution. Consequently, the Court invoked the Rule of Necessity to ensure the administration of justice. Furthermore, the issuance of investigative subpoenas to each Justice of this Court, being nearly identical in scope to those issued to the Department of Administration, was an inappropriate attempt by the Legislature to manufacture a conflict. The motion to disqualify was denied.
Points of Interest: separation of powers, disqualification, subpoenas
2021 MT 121
Relevant evidence may be offered in testimony if the witness has personal knowledge or is reasonably relied upon by experts in forming opinions and inferences.
The State charged Brasda with felony possession of dangerous drugs. Although he first intended to change his plea to guilty, Brasda moved for a continuance after he learned that a State Crime Lab employee, Derek Thrush, who originally tested the evidence found on Brasda, admitted to stealing evidence from the State Crime Lab. Per the State’s request, Travis Doria retested the evidence for accuracy. The State moved to prohibit Brasda from offering evidence about Thrush. The court allowed Brasda to introduce evidence of Thrush’s involvement from non-hearsay sources. However, court disallowed Brasda’s cross-examination of Doria regarding Thrush because Doria had no firsthand knowledge of Thrush’s circumstances. Brasda was convicted at trial.
On appeal, the Supreme Court affirmed. First, Doria lacked personal knowledge of Thrush to testify at trial. As an expert witness, Doria could not testify regarding Thrush’s involvement in the chain of custody because it was not facts or data reasonably relied upon by experts in forming permissible expert opinions or inferences. Brasda could not counter Montana’s prima facie showing of chain of custody because his request was premised upon speculation about contamination.
Points of Interest: evidence, experts, chain of custody
2021 MT 122
City of Missoula v. Mt. Water Co.
Defendant was denied its right of substitution after reversal and remand.
Condemnation proceedings have been ongoing since 2014. After the Montana Supreme Court reversed and remanded a District Court ruling, Defendants moved to substitute under § 3-1-804(12), MCA. In 2018, the court denied the motion as untimely, concluding the reversal and remand did not squarely meet the description of reversal of a summary judgment in § 3-1-804(12), MCA. Defendants appealed.
On appeal, the Montana Supreme Court held that Defendants had the right of substitution under § 3-1-804(12), MCA. The plain language of the statute provides that when “a summary judgment . . . is reversed and the cause remanded,” each party is entitled to one motion for substitution of judge. The Court’s earlier decision reversed the District Court’s summary judgment ruling and remanded for further proceedings. Accordingly, all orders or rulings made by the District Court following the timely motion for substitution are vacated.
Points of Interest: substitution
2021 MT 123
Walden v. Yellowstone Electric Company
The requirement that livestock being trailed along a highway be preceded by “flag person escorts” pursuant to § 60-7-204, MCA, does not require the use of a flag person “equipped as required by the rules of transportation” as the term is used in a different title of the MCA.
A Yellowstone Electric Company employee drove a YECO truck into a herd of cattle the Waldens were trailing along a highway, killing several cows. The Waldens had placed bright orange-lettered “Caution Cattle Ahead” signs several miles in front of and behind the cattle. They had also placed a person in a pickup truck, with hazard lights flashing, on the side of the road a mile in front of the herd. The Waldens sued for the value of their lost livestock. YECO asserted a defense of contributory negligence, alleging the Waldens had failed to meet the requirement under § 60-7-204, MCA, that “flag person escorts” accompany cattle being herded on a Montana highway. The District Court granted summary judgment in favor of the Waldens.
On appeal, YECO argued that, though the term “flag person escorts” was undefined in Title 60, Chapter 7, the definition should be adopted from Title 61, Chapter 8, which requires a “flag person” to be “equipped as required by the rules of the department of transportation.” The Supreme Court upheld the District Court. The Court considered the definition’s self-limiting “as used in this chapter” prefatory language, the context of the two distinct Chapters, and the purpose of the Department of Transportation rules. The Legislature plainly did not intend to import the requirements of the DOT rules from the “Traffic Regulation” Chapter to the “Livestock on Highways” Chapter. Moreover, the term “flag person escorts” referred to adequate signaling rather than the use of actual flags, such that the District Court did not err in concluding that the Waldens’ efforts to warn oncoming traffic had complied with § 60-7-204, MCA.
Points of Interest: statutory interpretation, MDOT
2021 MT 124
Out-of-court statements admitted for the purpose of explaining the next steps of a criminal investigation may not be used as substantive evidence. Testimony relaying out-of-court statements ostensibly to explain the next steps of an investigation, but which go directly toward proving an element of the charged offense, may run afoul of M. R. Evid. 402 and 403.
Officers responded to a crash in which a car had struck a truck from behind. The car’s driver tested over the legal limit for alcohol. Among other charges, the driver was charged with negligent vehicular assault for injuring his passenger. Negligent vehicular assault requires the State to prove a person negligently operated a vehicle while under the influence of alcohol or drugs and caused bodily injury to another. During the State’s case-in-chief, the only evidence of the passenger’s injury was a trooper’s statement about his follow-up investigation, which the defendant objected to as hearsay. The District Court overruled the objection. The defendant moved to dismiss the negligent vehicular assault charge for insufficient evidence, arguing there was no evidence about the passenger’s injuries. The State argued it had presented evidence of injury through the trooper’s testimony. The District Court denied the motion to dismiss, reasoning that the trooper was entitled to explain the next steps of his investigation and the testimony provided evidence of injury to the passenger.
The Supreme Court reversed. The testimony of the trooper, admitted for the non-hearsay purpose of explaining the next steps of the investigation, could not be used as substantive evidence of the passenger’s injury. The non-hearsay purpose must be relevant under Rule 402 and the probative value of their non-hearsay purpose must not be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under Rule 403.
Points of Interest: evidence, hearsay, Rule 402, Rule 403
2021 MT 128
If a decision is not final for purposes of appeal because attorney fees and costs have yet to be determined, the Supreme Court may elect not to dismiss a premature appeal but to treat it as filed on the date on which the District Court enters its order on fees and costs.
In a parenting plan dispute, the District Court issued an order in which it granted Weigand’s motion for contempt and for sanctions. It found Cattaneo in contempt and ordered her to pay Weigand’s attorney fees and costs. Cattaneo then filed a Notice of Appeal in the Supreme Court.
Weigand moved the Supreme Court to dismiss the appeal. Weigand acknowledged that the contempt order was otherwise appealable under M. R. App. P. 6(3)(j), but asserted that it was not a “final decision” because the court had not determined attorney fees and costs. Cattaneo argued that the Court should not dismiss the appeal but should treat it as premature and deem the matter submitted on the date of the District Court’s determination of attorney fees and costs as provided in M. R. Civ. P. 58(e). The Court concluded dismissal was not warranted and ordered Cattaneo to notify the Court upon the District Court’s ruling on attorney fees and costs.
Points of Interest: appellate procedure, M. R. App. P. 6(3), Rule 58(e)
2021 MT 129
Assignment of strict liability in a prior case can collaterally estop the liable party from bringing negligence and inverse condemnation claims against a third party in subsequent litigation if the elements of causation and damages underpinning those claims were previously litigated.
Brishkas’ private pond overflowed and released nearly 4.5 million gallons of water downslope, damaging Coveys’ property. In a previous, related matter, Coveys sued Brishkas for damages caused by the breached pond. Brishkas sought to defend on a theory that MDT caused the pond to breach its banks through improvements made to an adjacent road. However, damages were awarded to Coveys after the District Court found Brishkas strictly liable for damages caused by the breach (affirmed in Covey v. Brishka 2019 MT 164). Brishkas then asserted inverse condemnation, negligence per se, negligence, and nuisance claims, and attorney fees and costs against MDT. The District Court granted summary judgment in favor of MDT on all claims, concluding Brishkas were collaterally estopped from bringing these claims.
On appeal, the Montana Supreme Court affirmed, concluding that the assignment of strict liability in the earlier litigation precluded Brishkas’ ability to seek damages from MDT.
Points of Interest: torts, strict liability, damages
2021 MT 130
For an entrapment by estoppel defense, the defendant must reasonably believe its actions are lawful because of affirmative statements from an authorized government official.
Animals of Montana operated under a roadside menagerie permit that required it to seek authorization and an indemnity agreement from Fish, Wildlife, and Parks to take any animal offsite, to have a firearm or tranquilizer available any time an animal was taken offsite, and to keep the offsite animal within an electrified barrier. FWP received a complaint that Animals conducted an unlawful offsite photography session with a wolf. Animals admitted that it conducted the session, did not have a tranquilizer gun there, and had not set up an electrified barrier. After a subsequent onsite inspection FWP found additional violations, including insufficiently secured cages, cages without sun shelter, unlocked padlocks, insufficient fresh water, and unsanitary and/or cramped cages. FWP issued a notice of revocation of permit and Animals requested an administrative hearing. The hearing officer determined FWP established 22 violations and FWP issued a final order revoking AMI’s permit. On petition for judicial review, the District Court affirmed FWP’s final order.
On appeal to the Supreme Court, Animals argued that the affirmative defense of entrapment by estoppel prevented FWP from revoking its permit because FWP previously had given Animals an opportunity to correct violations before taking corrective action and FWP did not give Animals an opportunity to correct the violations this time. The Court held that the defense of entrapment by estoppel did not apply in this case because Animals did not believe its actions were lawful actions. As recognized in the federal courts, the defense requires the defendant to show an authorized government official, who had been made aware of all the relevant facts, affirmatively told the defendant the proscribed conduct was permissible, and the defendant reasonably relied on the false information.
Points of Interest: entrapment by estoppel, affirmative defenses
2021 MT 148
Trial court erroneously admitted a video-recorded forensic interview of the child when it did not qualify as either prior consistent or prior inconsistent statements, but the error did not prejudice the defendant’s substantial rights. Section 45-5-625(4)(b), MCA, mandating lifetime GPS monitoring for sexual abuse of a minor, is constitutional because a person guilty of sexual abuse of a minor is subject to a mandatory 100-year sentence with the “practical effect” of a life sentence. Even if released early, the offender is subject to state supervision, and GPS monitoring is permissible during that period.
During Smith’s trial for sexual abuse of a minor, the victim testified, and her video-taped forensic interview was shown to the jury. The State argued that the interview was admissible under either M. R. Evid. 801(d)(1)(A) or (B). Upon Smith’s conviction, the District Court sentenced him to a 100-year prison term with 80 years suspended and, as required by § 45-5-625(4)(b), MCA, ordered that he be subject to GPS monitoring for the remainder of his life.
On appeal, Smith argued that the trial court erred in admitting the forensic interview. He further argued § 45-5-625(4)(b), MCA, is unconstitutional because “it mandates lifetime satellite monitoring of people whose sentences have been fully discharged.” The Supreme Court agreed with Smith that the District Court should not have allowed the jury to watch a video-recorded forensic interview of the child but held that the improper admission of the video did not impact Smith’s right to a fair trial as it was cumulative with other admissible evidence. The Court upheld the constitutionality of § 45-5-625(4)(b), MCA. It noted that the statute for sexual abuse of a child mandates a 100-year sentence. Because it applies only to adult offenders, the “practical effect” is a life sentence. Thus, even if an offender is released early, he will be subject to state supervision for the balance of the sentence. In Smith’s case supervision will last until he is at least 118 years old, and Smith did not argue that GPS monitoring is impermissible during supervision.
Points of Interest: evidence, video testimony, sentencing conditions
2021 MT 149
Senate Bill 140, which changed the process for judicial appointments and abolished the Judicial Nomination Commission, does not violate Article VII, § 8(2), of the Montana Constitution.
SB 140 abolished the Judicial Nomination Commission, which had been responsible for screening applicants for judicial vacancies and forwarding nominees to the governor for appointment. It replaced the Commission with a process that allows the governor to consider any applicant who receives a letter of support from at least three adult Montana residents during a public comment period.
Petitioners petitioned for original jurisdiction, asserting that violated Article VII, Section 8(2), of the Montana Constitution. The Petitioners contended that: Article VII, Section 8(2), required the creation of a separate commission or committee to screen applicants for judicial vacancies; the purpose of Article VII, Section 8(2) was to ensure the appointment of quality judges who were free of political influence; and the abolishment of the Commission violated that purpose by giving unfettered discretion to the governor for appointing justices and judges. Respondents argued that the plain language of Article VII, Section 8(2) gave the Legislature the discretion to prescribe the manner in which judges are appointed.
The Court upheld the constitutionality of SB 140. Neither the plain language of Article VII, Section 8(2), nor the Framers’ intent requires an independent commission to screen applicants. Although the Court acknowledged that the Commission created by the 1973 Legislature had honored the constitutional objective of recruiting good judges to serve the citizens of Montana for the past forty-eight years, it was not the Court’s function to determine whether the Commission was a better process than SB 140 for making judicial appointments—it was to determine whether SB 140 complied with the language and constitutional intent of Article VII, Section 8(2).
Points of Interest: separation of powers, constitutional law, judicial nominations
2021 MT 151
Individuals do not have a reasonable expectation of privacy in recorded communications they voluntarily send to another. Therefore, the Montana constitutional rights to privacy and to be free from unreasonable searches and seizures do not protect these communications if they are sent to law enforcement or are shared with law enforcement by a third-party.
Staker responded to a fake online advertisement offering sexual services. He then unknowingly engaged in a text message conversation with an undercover federal agent posing as a sex worker to set up a time, meeting place, and agreed-upon sexual services. Staker was arrested when he arrived for the agreed-upon meeting. Staker moved to suppress the text messages, arguing that the conversation constituted warrantless government monitoring and recording of seemingly private conversations by surreptitious electronic means and thus violated his constitutional right to privacy. The District Court denied his motion.
On appeal, the Supreme Court affirmed, holding that the government action did not intrude upon any constitutionally protected interest because Staker had no objectively reasonable expectation of privacy in the text messages he knowingly and voluntarily sent to another. Staker had no reasonable basis to trust that the recipient was the person he thought she was, or that they would not disclose or share their seemingly private communications with others including law enforcement.
Points of Interest: privacy, search and seizure, warrantless searches
2021 MT 152
Phipps v. Old Republic Nat’l Title Ins. Co.
The enactment of the Montana Title Insurance Act (MTIA) removed the common law abstractor duty to conduct a reasonably diligent title search prior to issuing a preliminary commitment. Those issuing a preliminary commitment are under no duty to conduct a reasonable and diligent search.
Phipps owned property that was physically accessible by way of Ingomar Road to Gregg Road, but legal accessibility was uncertain due to an apparent lack of Garfield County public records establishing these roads as public roadways. This uncertainty was reflected in the title insurance policies Phipps held.
Phipps attempted to sell the property to Wrights. Pursuant to a buy-sell agreement, Phipps ordered a title commitment through Security and its underwriter Old Republic. Security’s title examination was extensive and reviewed all books indexed or otherwise recorded by the Garfield County Clerk and Recorder, but did not include a review of the road books because they are not indexed or otherwise recorded by the Clerk and Recorder and are not part of a standard title search. Security’s preliminary commitment included an exception for legal access to the property, causing the deal to fall through. Soon after, the Garfield County Commissioners adopted a resolution declaring Ingomar and Gregg as public roadways and a new preliminary commitment was issued with no exception to legal access, but Phipps and Wrights did not negotiate further. Months later, Phipps identified two documents they allege could have been discovered via a page-by-page search of the road books: The 1912 document had previously been examined by Security and was deemed insufficient; the 1914 document was not previously discovered and established the roads as public, but the amount of time required, and the location of the document is unknown.
Phipps sued, alleging negligence, professional negligence, and negligent misrepresentation. The District Court ruled that the defendants did not owe Phipps a legal duty when issuing a preliminary commitment under the MTIA. Phipps appealed.
The Supreme Court affirmed. The common law duty for preliminary commitments articulated in Malinak v. Safeco Title Ins. Co., 203 Mont. 69, 661 P.2d 12 (1983), was statutorily abrogated with the Legislature’s enactment of the MTIA. The MTIA specifically: differentiated between preliminary commitments, insurance policies, and abstracts; articulated that issuers of preliminary commitments were not subject to the duties of abstractors; and explicitly maintained a duty to conduct research for insurance policies actually issued, but not preliminary commitments. Therefore, there is no duty for those issuing preliminary commitments.
Points of Interest: insurance, property, negligence
2021 MT 155
Boyne USA, Inc. v. Dep’t of Revenue
A resort’s service fee that is not a charge for accommodations is not subject to Montana’s Use Tax, but it is not exempt from Montana’s Sales Tax.
The Department audited Boyne USA, Inc., the owner and operator of Big Sky Resort, assessing charges for a five-year period of unpaid taxes, interest, and penalties. The Department concluded that Boyne’s Resort Service Fee, a separate charge on accommodations for various resort amenities, was subject to Montana’s Use Tax (which taxes accommodation charges) and Sales Tax (which taxes sales). Boyne appealed to the Montana Tax Appeal Board, which largely affirmed the audit. Boyne then petitioned the District Court for judicial review. The court ruled the fee was not subject to the Use Tax but affirmed applying the sales tax and exempting forfeited deposits from tax.
On appeal, the Montana Supreme Court affirmed the District Court. First, the fee is not subject to Montana’s Use Tax because it is not an accommodation charge, nor does the taxing statute require charges be integral to the use of the room. Second, the fee is subject to Montana’s Sales Tax because Boyne’s sales price for accommodation includes the fee, and the fee is not exempt from the tax because it is not necessary to complete the sale. Finally, deposits are not subject to tax because full performance and use of lodging has yet to occur upon forfeiture, as required separately by Montana’s Use and Sales Tax.
Points of Interest: tax law, MDOR
2021 MT 156
District court must impose full restitution at sentencing without regard to defendant’s ability to pay, but under § 46-18-246, MCA, it may waive restitution in the same order when it would be otherwise unjust to require payment as imposed.
Lodahl pleaded guilty to misdemeanor assault for assaulting a peace officer. She sought a restitution hearing to challenge whether the officer’s worker’s compensation insurer qualified as a victim under the restitution statutes and whether she should be required to pay restitution given her dire financial situation. At the restitution hearing, she put on evidence of her debilitating mental health issues, her limited ability to earn an income, and her strict budget to provide basic necessities for her and her two young sons. The District Court concluded the insurer qualified as a victim under the restitution statutes. It further concluded the defendant could give up home internet and cell phone service to pay restitution.
On appeal, the Supreme Court affirmed in part and reversed in part. The insurer was clearly included as a victim under § 46-18-243(2)(a)(iv), MCA, and entitled to recover restitution from the defendant. While a district court is no longer required to consider the ability of the defendant to pay and must impose full restitution under the restitution statutes, § 46-18-246, MCA, allows the court to waive restitution “at any time” when “it otherwise would be unjust to require payment as imposed.” Here, the District Court ignored the uncontroverted evidence of the defendant’s dire financial situation and failed to appropriately apply § 46-18-246, MCA, to waive restitution as unjust under the particular circumstances present in this case.
Points of Interest: sentencing, restitution
2021 MT 157
A request that a person sit in the back seat of the patrol vehicle to answer questions related to a crash investigation is not a custodial interrogation. Additionally, under Article II, Section 24, of the Montana Constitution, a court may allow a testimonial witness to testify via two-way video only after the State sufficiently demonstrates that video appearance is necessary to further an important public policy beyond judicial economy.
Bailey was driving near Helena when his vehicle rolled over on its side. A trooper responded to the scene after receiving a report of the accident. The report also noted that beer cans were on the ground near the vehicle. The trooper observed damage on Bailey’s vehicle and initiated a traffic stop. After questioning Bailey about the accident, the trooper asked Bailey to sit in his patrol car while he completed the investigation. The trooper testified that he asked Bailey to sit in the vehicle because of the weather conditions and because he suspected Bailey may have been under the influence of alcohol. While inside the vehicle, the trooper detected alcohol on Bailey’s breath and observed that Bailey’s eyes were bloodshot and watery. Bailey admitted he had consumed two beers that afternoon. The trooper performed two field sobriety tests and a preliminary breath test, and Bailey later provided a blood sample which showed a blood alcohol concentration above the legal limit.
Bailey was charged with DUI and DUI per se. He moved to suppress all evidence, arguing the trooper unlawfully subjected him to a custodial interrogation without advising him of his Miranda rights, and did not have sufficient particularized suspicion to expand the crash investigation into a DUI investigation. The Justice Court denied the motion. The State moved to have the toxicologist—who conducted the BAC test on Bailey’s blood sample and prepared the toxicology report—testify via two-way video because his in-person testimony would be impracticable due to distance, expense, and timing. The court granted the motion, noting that it routinely allowed State Crime Lab toxicologists to testify via two-way video to promote judicial economy. Bailey was convicted of the per se offense and acquitted of the DUI offense. Bailey reasserted on appeal his arguments regarding his suppression motion. He also argued that the court improperly allowed a witness to appear by two-way video.
The Court affirmed the denial of Bailey’s motion to suppress, concluding that the trooper’s initial temporary detention and subsequent DUI investigation were based on sufficient particularized suspicion and Bailey was not subjected to a custodial interrogation while detained in the patrol vehicle. The Court reversed the conviction because the ruling allowing the State’s expert witness to testify via two-way video was unconstitutional, pursuant to State v. Mercier, 2021 MT 12, 403 Mont. 34, 479 P.3d 967, where the State had not demonstrated video testimony was necessary to further an important public policy beyond judicial economy. The video testimony was not harmless because it was the only evidence presented sufficient to prove Bailey’s BAC exceeded the limit under the statute.
Points of Interest: video testimony, custodial interrogation, DUI
2021 MT 158
Estate of Scheidecker v. Mont. Dep’t of Pub. HHS
A house placed into a trust is not a “countable asset” for Medicaid eligibility purposes when there are not “any circumstances” through which the settlor can access the trust’s corpus.
Two sisters placed their half-interests in a shared home into an irrevocable trust. Years later, one sister moved into a care facility and applied for Medicaid. Her application was denied because DPHHS concluded her half-interest in the trust was a resource that placed her over the resource limit. She appealed and the District Court ultimately affirmed the administrative determination that a trust’s principal consisting of a jointly owned home constitutes a countable asset for the purpose of Medicaid eligibility. The court found that although the trust’s terms prohibited the Trustee from invading the corpus for the settlor’s benefit, if the trust was terminated the Trustee could “distribute the trust property as agreed by the beneficiaries” and the beneficiaries could then “individually, jointly, directly, or indirectly” return the corpus to the settlor.
On appeal, the Supreme Court reversed, concluding that a settlor’s eligibility for Medicaid coverage is determined by looking at the terms of the trust, not by what the trustee or beneficiaries could do despite the terms. The “any circumstances” provision in 42 U.S.C. § 1396p(d)(3)(B) does not include situations where a court or agency misinterprets a written instrument’s terms or purposes. Here, the trust’s terms clearly provided that one of the trust’s purposes was to render the beneficiary eligible for Medicaid benefits. Despite speculation that the beneficiaries could attempt to terminate the trust, this could only be achieved if a court erroneously concluded that the trust’s continuation of the trust was not necessary to achieve a material purpose.
Points of Interest: trusts and estates, federal benefits
2021 MT 159
Williams v. Stillwater Bd. of Cty. Comm’rs
A court reviews the record of the lower tribunal on a writ of review to determine whether the tribunal had jurisdiction and kept within it. The court will not reweigh the evidence in the record but reviews the evidence only to ascertain whether it furnishes any legal and substantial basis for the decision.
Plaintiff Landowners sought a writ of review from the District Court of a decision from the Stillwater Board of County Commissioners to abandon a portion of a county road. In pertinent part, the Landowners argued the Board could not abandon the road without their assent under § 7-14-2615(4), MCA, and the Board did not adequately document its decision. The parties disagreed whether the county road at issue extended to the boundaries of the Plaintiff Landowners’ properties, providing them with secondary access routes to their properties. The District Court denied and dismissed the writ because the Board did not exceed its jurisdiction in abandoning the road and adequately documented its decision.
On appeal, the Supreme Court agreed. A board of county commissioners is empowered to abandon a county road by statute. Section 7-14-2615(4), MCA, restricts a board from abandoning a county road if it is used to access private property and the access benefits two or more landowners unless all of the landowners agree to the abandonment. The record provided furnished a legal and substantial basis to conclude the road did not extend to the Plaintiff Landowners’ properties to provide them with secondary access routes to their properties. The Board did not exceed its jurisdiction in deciding to abandon the road. On a writ of review, a court may not reweigh the evidence. The Court also concluded the Board adequately documented its decision under §§ 7-14-2603(3), -2604, MCA, because it made an entry of its decision on the minutes and sent notice of its decision by certified mail. The statutes do not require the Board to issue a formal findings of fact and conclusions of law when abandoning a county road.
Points of Interest: writ of review, easements and roads
2021 MT 161
Masters Grp. Int’l, Inc. v. Comerica Bank
District court lacked authority to award Masters attorney fees as its contract with Comerica did not contain a reciprocal attorney fees provision and the contract was required to be interpreted under Michigan law.
Masters defaulted on a $10.5 million loan from Comerica. Comerica sent Masters a Forbearance Agreement, to be governed by Michigan law, agreeing to forbear until February 16, 2009, if Masters and its guarantors met certain conditions. Masters did not meet those conditions within the time set by the Agreement, but Comerica continually accepted late performance. Without warning or notice, Comerica initiated an offset on December 31, 2008, and swept Masters’ and its guarantors’ accounts. With its money seized by Comerica, Masters collapsed. In 2011, Masters was sued in Montana by the Butte Local Development Corporation for failing to pay back a $200,000 loan and Masters filed a third-party complaint against Comerica for breaching the Agreement. In 2014, the District Court held a jury trial, applying Montana law, and Masters received a $52 million verdict against Comerica. Comerica appealed to the Supreme Court, which reversed the jury verdict and remanded for a new trial applying Michigan law in Masters Grp. Int’l, Inc. v. Comerica Bank, 2015 MT 192, 380 Mont. 1, 352 P.3d 1101 (Masters I). The District Court then held a bench trial, ruling in Masters’ favor of Masters and awarding $18,838,982.96 in damages, costs, and prejudgment interest, and $7,535,593.18 in attorney fees.
On appeal, the Supreme Court held the District Court lacked legal authority to award attorney fees to Masters. While the District Court performed a choice-of-law analysis to determine whether Michigan or Montana law applied to attorney fees, and ultimately determined Montana law applied, it was bound by the law of the case as Masters I held that Michigan law applied to “all” claims arising out of the Agreement. Because Michigan, unlike Montana, does not have a reciprocity statute for attorney fee provisions in contracts, Masters was not entitled to attorney fees.
Points of Interest: contracts, attorney fees, choice of law
2021 MT 162
Imposition of a 10-day jail-time condition upon a deferred sentence is a facially legal sentencing condition, expressly authorized by § 46-18-201(4), MCA, and consistent with the presumption of entitlement to a deferred imposition provided for in § 45-10-103, MCA.
The Justice Court found sentenced Thibeault to a 6-month deferred imposition of sentence pursuant to § 46-18-201(1)(a)(i), MCA, in accordance with the statutory presumption for first offenders. The court further conditioned the deferred sentence on the requirement of ten days in jail pursuant to § 46-18-201(4)(b), MCA, which provides for “incarceration in a detention center not exceeding 180 days” as a reasonable condition that may be imposed on a deferred sentence.
Thibeault challenged the legality of his sentence on appeal to District Court, and asserted that the statutory presumption of entitlement to a deferred imposition of sentence limits a court’s discretion to apply the condition that a defendant serve jail-time. The District Court affirmed and Thibeault appealed to the Supreme Court.
First, the Supreme Court confirmed that a deferred sentence is a “final dispositive judgment of conviction and sentence” subject to conditions of probation. Then, the Court considered the “subtle, but technically significant statutory interplay between the nature of a deferred imposition of sentence, a statutory presumption thereto, and statutory authorization for imposition of jail-time as a condition thereof” as recognized in Montana’s case law. Finally, the Court concluded that, in accordance with precedent, the imposition of a jail-time condition is not a “sentence of imprisonment” and thus not inconsistent with the statutory presumption of entitlement to a deferred sentence in § 45-10-103, MCA. Therefore, the Justice Court’s 10-day jail-time was not an illegal sentence.
Points of Interest: sentencing, sentencing conditions, deferred sentences
2021 MT 163
Defendant’s convictions were affirmed because ineffective assistance claim was better suited for postconviction proceedings, plain error review was not proper where the State’s expert witness provided educational testimony, and the trial judge committed harmless error by responding to the jury’s question in writing during deliberation without the parties present.
Sinz was charged two counts of sexual intercourse without consent and three counts of sexual assault. During voir dire, a potential juror disclosed that he had experience with sexual abuse in his family, but he assured the court he could remain impartial. The juror was not removed. During trial, an expert witness for the State testified about general issues underlying sexual abuse disclosures. During deliberation, the jury submitted a question as to whether it should reach a unanimous verdict regarding intercourse without consent before moving on to the sexual assault charges. The judge responded in writing, informing the jury that it should try to reach a unanimous verdict on the first three counts, but if it could not, it should proceed to the remaining two counts. The judge did not consult the parties before responding to the jury. The jury returned a guilty verdict on all five counts shortly thereafter.
On appeal, Sinz argued his counsel was ineffective for failing to remove the allegedly biased juror. Second, he argued the State’s expert’s testimony improperly bolstered the victims’ testimony. Third, he contended the trial judge committed reversible error by responding to the jury’s question without consulting the parties.
The Supreme Court affirmed Sinz’s conviction. First, the ineffective assistance of counsel claim was better suited for postconviction proceedings because the record did not explain the reasons for counsel’s actions or alleged omissions. Second, expert testimony in sexual abuse cases is proper when the testimony is educational in nature and the witness does not directly comment on the victims’ credibility. Third, answering the jury’s question was harmless error. Relying on State v. Northcutt, 2015 MT 267, 381 Mont. 81, 358 P. 3d 179, the Court observed that a record existed as to what transpired between the judge and jury because the communications were in writing. Because a record of the communication existed, prejudice to the defendant was not presumed. The judge’s response was not incorrect as a matter of law and the error was therefore harmless.
Points of Interest: ineffective assistance of counsel, jury, experts, plain error
2021 MT 172
Based on the record as a whole, the District Court did not err in its determination of what portions of Lyons Creek Road were public and private.
The State, Adams and McDonald, and the O’Connells all own property adjacent to Sieben Ranch. Lyons Creek Road begins in Section 28 of Township 14 North, Range 4 West, and travels northwesterly. The Ranch installed a gate on the road at the northwest corner of Section 19 of Township 14 North, Range 4 West and Section 13 of Township 14 North, range 5 West. Beyond the gate, the road continues northwesterly. In 1996, the Ranch entered into the Conservation Easement which reserved the right to access Ranch property for recreational hunting during fall hunting season. The Ranch also granted road access to the O’Connells, giving them permission to use the road north of the gate. In August 2018, the O’Connells sold land to Adams and McDonald but did not convey the permissive road access. Adams and McDonald began crossing and installing headgates on Ranch property. The Ranch filed for declaratory and injunctive relief, and the Ranch and Adams and McDonald filed cross motions for summary judgment. The District Court concluded Adams and McDonald had no right of access over Ranch property.
On appeal, the Supreme Court agreed with the District Court’s rationale that the evidence from a 1961 letter from the County Attorney—stating that Lyons Creek Road was a county road up to the Ranch gate—was convincing. Furthermore, the court did not ignore the 1923 county commissioners’ journal entry that Adams and McDonald relied upon, rather determining it did not provide a precise description of the extent of the public portion of the road. Based on the record as a whole, the District Court did not err in its determination of what portions of Lyons Creek Road were public and private. The Court further concluded that Adams and McDonald could not enforce the Conservation Easement because they do not own any of the land burdened by it nor were they the public body holding the easement.
Points of Interest: easements and roads
2021 MT 175
A court may not rely on § 40-4-253(5), MCA, to set aside a final dissolution decree for failure to disclose property to the court when both parties were aware of the property and deliberately agreed that the dissolution would not affect it.
During their marriage, Melissa and Bradley formed and operated Fuller Family Medicine (“FFM”), through which they individually established their own clientele and practices. When they filed for dissolution, they agreed that they would omit FFM from the final declarations of disclosure of assets because they intended their practices to continue, unaffected by the dissolution. Four years after the final dissolution decree was entered, Melissa requested an equitable buyout of her interest in FFM and Bradley asserted he was the sole owner.
Melissa filed a Rule 60(b) motion, asking the District Court to reopen the final dissolution decree and adjudicate the parties’ financial interests in FFM. The court instead ruled that the final dissolution decree would be set aside under § 40-4-253(5), MCA, due to the parties’ omissions of the business, preventing it from equitably apportioning the marital property.
On appeal, the Supreme Court reversed, noting that the purpose of the disclosure statutes is to promote fairness between the parties by ensuring each has complete knowledge of the marital assets, not to prevent parties from amicably determining between themselves how their property should be divided. Section 40-4-253(5), MCA, does not support a claim for relief where both parties were aware of the property and deliberately agreed the dissolution would not affect it.
Points of Interest: dissolution of marriage, marital assets
2021 MT 176
Jurisdiction over a Youth Court case does not automatically transfer from Youth Court to District Court.
In a 2006 proceeding under the Youth Court Act, sixteen-year-old S.G.-H.M. was sentenced to probation and a deferred adult sentence—both subject to numerous conditions—for possession of explosives and criminal endangerment charges. At age 27, S.G.-H.M. was subject to a third petition to revoke, alleging technical violations of conditions. S.G.-H.M. moved to dismiss, arguing that the Youth Court’s jurisdiction over him ended when he reached age 25 and that the case had never been “transfer[red] . . . to the district court” pursuant to § 41-5-1605(3), MCA, such that there was no tribunal with jurisdiction over any proceedings stemming from the 2006 charges. The lower court denied the motion, reasoning that jurisdiction had transferred to District Court automatically at the execution of S.G.-H.M.’s adult sentence.
On appeal, the Supreme Court reversed. The Court considered the Youth Court Act’s purpose to provide appropriate responses to youthful acts of transient immaturity without unnecessarily embroiling a youth in a punitive system tarnishing the individual’s lifetime potential. The Court concluded that § 41-5-1605(3), MCA, requires a Youth Court to affirmatively transfer jurisdiction to a District Court upon revocation. As jurisdiction could not transfer automatically, and the lower court had taken no action to transfer the case, there was no court with jurisdiction over the matter after S.G.-H.M reached the Youth Court Act’s 25-year age limit.
Points of Interest: juvenile offender, jurisdiction, revocation
2021 MT 177
The Secret Gulch Road Easement is appurtenant, with Government Lot 3 as the servient estate, and Government Lot 7 as the dominant estate.
In 1988, the Secret Gulch Road Easement was conveyed, via warranty deed, across Government Lot 3—a tract of land located in Granite County. An attached plat also depicted the Easement across Government Lot 3. The deed stated that the purpose of the Easement was to be used by Grantee or its successors only in connection with the utilization of Grantee’s adjacent properties. Government Lot 3 and the Easement were conveyed to Erler in 2002; Erler’s deed referenced the tract was subject to any easements and encumbrances. Government Lot 7—adjacent to Government Lot 3—was conveyed to Wilkinson in 2020. Upon receiving Government Lot 7, Wilkinson and its agents began using the Easement to cross Erler’s property until Erler locked its headgate. Wilkinson sought and obtained a temporary restraining order. Wilkinson then requested a preliminary injunction. The District Court denied the injunction, concluding the Easement was in gross and thus Wilkinson could not use it since the Easement documents did not describe a dominant estate. Wilkinson appealed.
On appeal, the Montana Supreme Court reversed. Because the document creating the Easement did not specifically describe whether the Easement was in gross or appurtenant, the Court looked to the attached plat, which contained a metes-and-bounds description of the Easement that indicated with reasonable certainty that Government Lot 7 was the dominant estate that the Easement benefits. Even if the plat diagram did not explicitly distinguish the dominant estate, the Easement’s purpose was for use in connection with the utilization of Grantee’s adjacent properties.
Points of Interest: easements and roads
2021 MT 178
McLaughlin v. Mont. State Legislature
Legislature exceeded the scope of its functions when it issued subpoenas for the electronic records of the Judicial Branch Court Administrator because the subpoenas sought information not related to a valid legislative purpose, confidential information, and information in which third parties have a protected privacy interest.
The Montana State Legislature served a subpoena upon the Department of Administration, seeking all e-mails of Beth McLaughlin, Judicial Branch Court Administrator, between January 4 and April 12, 2021. McLaughlin brought an original proceeding before the Montana Supreme Court, seeking to quash and enjoin the enforcement of successive subpoenas.
The Court rejected the Legislature’s argument that the Court had no authority to rule on the case. Disputes over the scope of legislative subpoena power “are squarely within the authority of the courts.” In Trump v. Mazars, the U.S. Supreme Court ruled on Congressional subpoenas to the President and set forth factors courts must consider in examining subpoenas to minimize “interbranch confrontation.” The Court used those factors in examining the subpoenas at issue.
The Court next rejected the Legislature’s argument that it needed the e-mails to investigate potential bias among judges. First, under the Montana Constitution, the Judicial Standards Commission investigates allegations of judicial misconduct. Second, the U.S. Supreme Court’s decision in Republican Party v. White (2002) instructed that a judge expressing views on legal and political issues does not indicate bias in a case. Also, the rules of judicial conduct encourage judges to share their “special expertise” with the Legislature on matters concerning the law, the legal system, and court administration.
The Court also noted a legislature cannot inquire into matters within the exclusive province of another branch of government. The Legislature failed to show that compelling production of Judicial Branch messages would advance its consideration of legislation on the matter of a judicial records retention policy.
The Court also held that the Legislature had not shown a valid legislative purpose in seeking to investigate whether the Court Administrator and members of the Judicial Branch had improperly used government time and resources for lobbying. First, the Legislature was seeking to perform a law enforcement function outside the scope of its authority. Second, state law excludes actions of public officials acting in their governmental capacities from the definition of “lobbying.” Third, under the statutory definition of “lobbyist,” the Court Administrator’s actions did not constitute lobbying.
Finally, the subpoenas were too broad. They encompassed confidential information; potential security risks; judicial work product; and information in which third parties have protected privacy interests. Rather than following statutorily established avenues for seeking information from the Court Administrator or giving her the notice and opportunity to respond that due process requires for all other subpoenas, the Legislature demanded production within a 24-hour period from a separate agency. In turn, the Department of Administration Director failed to consider confidentiality and privacy interests when she released the e-mails without giving McLaughlin an opportunity to review the materials and raise concerns or seek protection of confidential information in a court of law. The Court held that if the Legislature issues a subpoena to a government officer that may reach information that is confidential by law or involves individual privacy interests of third parties, the officer must have a chance to review the materials first, and present any issues about disclosure to a court.
The Court ordered the Legislature to return all materials provided under the previously issued subpoenas; prohibited the Legislature, its legal counsel, and the Department of Administration from disclosing or disseminating any additional information provided in response to the subpoenas; and held that the subpoenas could not be enforced or reissued.
Points of Interest: subpoenas, separation of powers, jurisdiction
2021 MT 179
District court violated Defendant’s constitutional right to present a complete defense by erroneously excluding evidence pursuant to Montana’s rape shield statute.
Twardoski was charged with sexual intercourse without consent, sexual assault, and sexual abuse of children against I.A., a 13-year-old girl, through the use of a game of truth or dare that occurred while he was giving I.A. a driving lesson. Less than two weeks earlier, I.A. had been sexually assaulted through the use of a game of sexual truth or dare by her boss, Cody Hill, with a sequence of sexual dares substantially identical to those I.A. alleged Twardoski used. I.A. and Hill entered into a “relationship” in which she was sexually abused by Hill for approximately 18 months. Their relationship was eventually discovered by the police after Twardoski was charged in this case. I.A. then admitted to Hill’s sexual abuse through truth or dare less than two weeks before her driving lesson with Twardoski. Twardoski sought to introduce evidence of Hill’s sexual abuse of I.A. through the use of a nearly identical game of truth or dare as that which I.A. alleged he used on her. The District Court, applying Montana’s rape shield statute, ruled Twardoski could not present evidence of Hill’s sexual abuse of I.A. Twardoski was convicted on all counts.
On appeal, the Supreme Court conducted a de novo review by applying the rape shield statute to the facts of the case and determined the trial court erred “by disallowing evidence Hill abused I.A. in both a unique and identical manner less than two weeks before the incident at issue in this case.” Applying the balancing test from State v. Awbery, 2016 MT 48, ¶ 20, 382 Mont. 334, 367 P.3d 346, which considers whether the proffered evidence is not speculative or unsupported; whether the evidence is relevant and probative; whether the evidence is merely cumulative of other admissible evidence; and whether the probative value of the evidence is outweighed by its prejudicial effect, the evidence of Hill’s abuse of I.A. in both a unique and identical manner shortly before the alleged incident in this case should have been admissible. Because the evidence was wrongfully excluded, the Supreme Court held Twardoski’s right to present a complete defense was violated, reversed his convictions, and remanded for a new trial.
Points of Interest: rape shield law, evidence
2021 MT 180
Young v. Hammer, Hewwitt, Jacobs & Floch, PLLC
The lost ability to negotiate a settlement is a cognizable injury in a legal malpractice case, but such injury is too speculative if the underlying claim would not have survived summary judgment.
Former counsel secured a default judgment against a tortfeasor who injured Plaintiffs but was unable to collect on the judgment. Years later, Plaintiffs sued former counsel for failure to discover and submit a claim to their tortfeasor’s insurer. Plaintiffs contended they would have received policy limits from the insurer had the claim been timely submitted. Former counsel admitted it should have discovered the policy but maintained as there was no coverage for Plaintiffs’ injuries under the policy, the failure to discover the policy did not cause injury to Plaintiffs. The District Court granted summary judgment to former counsel, concluding there was no coverage under the policy and any injury from the lost ability to settle the case with the insurer was too speculative.
The Supreme Court affirmed the District Court’s grant of summary judgment and denial of relief from judgment under Rule 60(b). The Court explained that while the lost ability to negotiate a settlement is a cognizable injury in a legal malpractice case, such injury is too speculative if the underlying claim would not have survived summary judgment. Here, the underlying claim to consider would have been a declaratory judgment action as to coverage under the insurance policy. As there were no issues of material fact about coverage under the policy, the claim would not have survived summary judgment in a declaratory judgment action and thus any injury caused by loss of ability to settle was too speculative to survive summary judgment in the legal malpractice case. The Court also held the District Court properly denied partial summary judgment on the issue whether the subject policy exception was deleted from the policy.
Points of Interest: Rule 60, legal malpractice, insurance policies
2021 MT 190
The State does not need to identify a specific victim in its charging documents when charging a defendant with criminal endangerment.
The State charged Giffin with felony criminal endangerment after he fired a shotgun through a motel room window while hallucinating on drugs. The affidavit in support of the Information alleged that Giffin admitted firing the gun and the “rounds exited the window towards the parking area and into an unoccupied unit of the building. The parking area outside the window is commonly used by the occupants of the Outlaw Inn.” Giffin moved to dismiss, arguing there were no facts establishing probable cause that he had committed criminal endangerment because no specific victim was alleged in the charging documents and none of the facts set forth conclude that a person was subjected to a substantial risk of death or serious bodily injury. The District Court granted the motion to dismiss without providing reasons for its decision. The State appealed.
On appeal, the Supreme Court reversed. After determining that the issue before it presented a mixed question of law and fact and a de novo standard of review is appropriate, the Court then concluded that while the State could have included more detail in its charging documents, it sufficiently established a probability that Giffin committed the offense. The Court rejected Giffin’s argument that the Information failed to establish that he “knowingly” created a risk of death or serious bodily injury to another because the “knowingly” mental state of criminal endangerment applies to both conduct and result. Here, the State established the requisite probable cause for its allegation that Giffin knew of his conduct and that such conduct created a substantial risk of death or serious bodily harm.
Points of Interest: criminal endangerment, mental state
2021 MT 191
An agency franchise agreement to sell liquor is considered terminated upon the issuance of a final agency decision. The Department of Revenue has no duty to assign an AFA within 60 days’ notice by the agent that it intends to transfer it. The Department’s actions in settling the district court litigation are protected by quasi-judicial immunity.
B.Y.O.B. attempted to transfer its interest in an agency franchise agreement after the Department acted to terminate the AFA for liquor law violations. After administrative proceedings, the Department terminated the AFA before B.Y.O.B. successfully transferred its interest. The Department and B.Y.O.B. ultimately terminated the litigation via a settlement agreement. However, B.Y.O.B. appealed the final agency decision to the District Court, claiming the Department tortiously and unconstitutionally interfered with B.Y.O.B.’s attempts to transfer its interests. The District Court granted summary judgment in the Department’s favor.
On appeal, the Supreme Court affirmed. The Court concluded that the Department has no duty to assign an AFA within 60 days of receiving notice that an AFA agent intends to assign it. The Court further concluded that many of B.Y.O.B.’s claims were extinguished through quasi-judicial immunity. Although the Department defended the action before the District Court, the Settlement Agreement authorizing the AFA’s auction necessarily involved the Department’s administrative and statutory authority to control and regulate the sale of alcohol in Montana. Because B.Y.O.B. challenged the termination in administrative proceedings, the Department’s decision to enter into a settlement agreement was “an exercise of its own discretion and judgment” on how best to “effectuate the sale of alcohol in Montana and its authority in the MAPA proceedings to decline to act upon Final Agency Decision[s] in its favor.” The Court was also unpersuaded by B.Y.O.B.’s breach-of-contract claims, concluding that any claims B.Y.O.B., Inc., had relative to those contracts were superseded by the Settlement Agreement.
Points of Interest: administrative law, administrative appeals, immunity
2021 MT 192
Childress v. Costco Wholesale Corp.
Under Montana law, parasitic emotional distress damages are not available for an underlying negligence claim for personal property damage or loss unless it is proved at trial that the plaintiffs had formed a subjective relationship with the property on a personal identity level.
Childresses brought their vehicle to Costco for service. A Costco employee negligently gave the keys to their vehicle to a thief, who took the vehicle. The vehicle was later found, but several of Childresses’ personal items had been taken, including a handgun, ammunition, documents containing Childresses’ home address, and keys to their home.
Childresses proceeded to trial in federal court on bailment and negligence claims. Childresses presented evidence that the car theft had exacerbated Randall’s preexisting PTSD and that Claudia had also suffered mental anguish.
The United States District Court, over Costco’s objection, instructed the jury that if it found for Childresses on the negligence claim, it must also determine the amount to compensate them for parasitic damages. The jury awarded Childresses $2,278.43 in property damages and $62,750 in “unspecified, non-property damages” on their negligence claim. Costco appealed, and the Ninth Circuit Court of Appeals certified to this Court the following state law question: Whether, under Montana law, parasitic emotional distress damages are available for an underlying negligence claim for personal property damage or loss?
The Supreme Court answered in the negative. This Court has recognized four discrete scenarios allowing parasitic emotional distress damages: (i) disrupting the quiet use and enjoyment of real property; (ii) discrimination and civil rights violations; (iii) bad faith and insurance fraud under the Montana Unfair Trade Practices Act; and (iv) wrongful death. However, the Court did not entirely foreclose the possibility of parasitic damages for loss or damage to personal property, opining these damages may be available if the plaintiff’s personhood is so intrinsically intertwined with the personal property that it may be said that the property was part of their “personal identity.”
Points of Interest: certified question, torts, emotional distress, damages
2021 MT 193
Other acts evidence may be admissible for multiple non-propensity purposes, in addition to those expressly enumerated in M. R. Evid. 404(b), including the purposes of (1) M. R. Evid. 607(a) impeachment by contradiction; (2) M. R. Evid. 404(a) good character impeachment/rebuttal; (3) explaining/correcting a false impression; and (4) rebutting an attack on another witness’s credibility.
Prior to his jury trial on two counts of indecent exposure to a minor, McGhee objected to introduction of State’s evidence regarding a prior uncharged sexual assault allegation against the same victims. The District Court denied admission of the earlier acts evidence. However, after McGhee testified that prior to the current allegations, he had an “awesome” relationship with the victims, the court determined he had “opened the door” and permitted the State to approach the prior uncharged sexual assault allegations on cross-examination. McGhee appealed the District Court’s determination that his testimony had “opened the door” to inquiry into the prior bad acts.
On appeal, the Supreme Court affirmed, explaining that when a witness “opens the door,” he makes relevant that which may have previously been otherwise inadmissible. While inadmissible for propensity purposes under M. R. Evid. 404(b), other acts may, subject to M. R. Evid. 401-03, be admissible for non-propensity purposes. In McGhee’s case, the prior allegations were admissible to (1) rebut his good character testimony and impeach by contradiction assertions regarding his relationship with the victims; (2) rebut his implied assertions that the victims’ mother was biased and had motive to testify falsely; and (3) correct the false impression created through testimony that the mother had ulterior motives for fabricating the allegations.
Points of Interest: evidence, Rule 404, Rule 607, prior bad acts
2021 MT 196
In a habeas corpus proceeding, a petitioner is entitled to credit for incarceration or time served from the date of the arrest for new charges until the date of sentencing. Section 46-18-201(9), MCA (2017).
Killam was on parole when he was arrested for a new felony offense. He was jailed on a DOC warrant that stated he was not entitled to bond, most likely due to his status as a parolee. At Killam’s initial appearance, the court set bond at $25,000. Killam did not post bond and he remained incarcerated through sentencing. Killam’s pre-sentence investigation report stated that he was not eligible for jail credit because of his parole status. At sentencing, the District Court refused to grant him credit for 489 days served prior to sentencing.
Killam petitioned for a writ of habeas corpus. The Supreme Court appointed counsel. At oral argument, Killam asserted § 46-18-201(9), MCA, adopted in 2017, requires a sentencing court give credit for pre-trial or pre-sentencing incarceration regardless of whether the defendant was also held in relation to another criminal matter. The State argued Killam’s new offense was not a “bailable offense” under § 46-18-403(1), MCA, because he was in DOC custody. Relying on § 46-18-201(9), MCA (2017), and its clear mandate the sentencing court “shall provide credit for the time served by the offender before trial or sentencing,” the Court granted the writ and reversed and remanded the matter to award Killam credit for time served prior to sentencing. The Court concluded that determination of credit for pre-sentence time served “is based solely on the record of the offense for which the defendant is being sentenced and does not require determination by the court as to whether defendant is also being held on another matter and, if so, which hold is primary.” Such credit is “a ‘matter of right.’”
Points of Interest: habeas corpus, credit for time served, sentencing
2021 MT 197
A defendant is entitled to credit for incarceration or time served prior to sentencing or trial from the date of the arrest until sentencing where bond is posted and the defendant is not released on bail and the warrant, if any, is not quashed regardless of whether the defendant was being held in connection with another matter in a different jurisdiction.
Mendoza was cited for DUI in Lake County in September 2015. He failed to appear, and the Justice Court issued a warrant for his arrest with a bond of $25,000. Mendoza was later jailed for another DUI in Gallatin County where he was served with the Lake County arrest warrant on December 5, 2017. Mendoza appeared in Justice Court on the Lake County warrant on January 9, 2019, and was arraigned in District Court on January 31, 2019. He pled guilty to the Lake County DUI in District Court on March 21, 2019. At sentencing, Mendoza argued credit for time served from the December 5, 2017— the date the warrant was served on him—until the September 22, 2020 sentencing. The court awarded Mendoza only 192 days, concluding he was incarcerated on other DUI offenses in both Gallatin and Missoula Counties. The court gave him credit only for the time after he was sentenced in Gallatin County until the date of his Lake County sentence.
The Supreme Court reversed and remanded. Pursuant to § 46-18-201(9), MCA, and Killam v. Salmonsen, 2021 MT 196, Mendoza is entitled to credit for every day he was incarcerated from the date the warrant was served through to sentencing as he did not post bail and the arrest warrant was not quashed. “[T]he determination is based solely on the record of the offense for which the defendant is being sentenced and does not require determination by the court as to whether defendant is also being held on another matter and if so, which hold is primary.” Killam, ¶ 16. (Footnote omitted). Mendoza was incarcerated from December 5, 2017 until July 18, 2019, or 579 days. The District Court was mandated to “provide credit for time served by the offender before trial or sentencing.” Section 46-18-201(9), MCA (2017).
Points of Interest: credit for time served, sentencing
2021 MT 198
Defendant’s due process right was violated when the State did not bring him before a judge for an initial appearance in a revocation proceeding for over two years after his arrest.
Cameron is a registered sex offender who moved from New York to Montana. After initially updating his address on the sex offender registry, Cameron moved and did not update his address. The State charged him with Failure to Register as a Sex Offender, to which Cameron pled guilty and received a three-year suspended sentence. In April 2017, the State petitioned for revocation and the District Court issued an arrest warrant. On July 8, 2017, Cameron was pulled over in a traffic stop in New York and arrested on the Montana warrant. New York started fugitive-from-justice proceedings and Cameron waived extradition. Two days before he was set to return to Montana, the federal government filed a Petition and Order for Writ of Habeas Corpus Ad Prosequendum, which the federal court granted, to remove Cameron from state custody for an initial appearance on federal charges. At the end of the federal hearing, Cameron was returned to state custody. Montana, apparently believing the federal charges took precedence, canceled its extradition request and allowed Cameron to remain in a New York county jail. Cameron’s federal charges were dropped nearly two years later and the State then extradited him to Montana based on the 2017 waiver of extradition. Cameron argued his due process rights had been violated, but the District Court denied his motions and revoked his suspended sentence.
On appeal, the Supreme Court reversed. It determined the two-year delay in bringing Cameron to Montana after his violated his right to due process. Although the State argued it had been “misinformed” by federal prosecutors about the status of Cameron’s federal case, the Court found that, regardless of why Cameron was left in New York, the extreme delay violated his rights. The Court vacated Cameron’s sentence and dismissed the revocation proceedings with prejudice.
Points of Interest: extradition, due process, revocation
2021 MT 199
ICWA’s heightened standards of proof in removal, custody, and parental rights termination proceedings apply only when the state court has a “reason to know” that a proceeding involves an “Indian child.”
Following the emergency removal of a child, Father alleged possible affiliation with the “Lakota Sioux Tribe.” thus alerting the Department and the District Court that the proceedings may be governed by ICWA. The Department sent notice to the “Lakota Sioux Tribe” via the Great Plains Regional office of the Bureau of Indian Affairs (BIA) pursuant to the requirements of 25 U.S.C. § 1912. With “reason to know” that L.H. may be an “Indian child,” as defined by ICWA, but without a conclusive membership eligibility determination from the tribe, the court proceeded under ICWA.
After a lapse in Department custody, the court again considered adjudication of L.H. as a youth in need of care. With its petition, the Department included a letter received from the Standing Rock Sioux Tribe (SRST) indicating L.H. was not a tribal member or eligible for enrollment. The court thus determined ICWA did not apply to and adjudicated L.H. a YINC under the lesser State standard of proof. The Department later petitioned for termination of the parents’ parental rights due to their failure to substantially complete court-ordered treatment plans. Based on the SRST tribal enrollment ineligibility determination, the court proceeded without “reason to know” L.H. was an Indian child and terminated parental rights under the state standard of proof. Parents appealed, asserting the court erred in determining that ICWA did not apply to L.H. because it had not obtained an enrollment eligibility determination from the “Lakota Sioux Tribe.”
On appeal, the Supreme Court first noted that the “Lakota Sioux Tribe” is not an “Indian Tribe” recognized by the Secretary of the Interior and thus the Department had no legal duty under 25 U.S.C. § 1912 to give notice to and receive a tribal eligibility determination from that “tribe.” Father’s vague and unsupported assertion of possible affiliation with the “Lakota Sioux Tribe” was insufficient to give the District Court “reason to know” that L.H. was a member of or eligible for membership in a federally-recognized Indian Tribe. Therefore, the District Court did not err in adjudicating L.H. as a YINC or terminating the parents’ parental rights without a tribal eligibility determination from the “Lakota Sioux Tribe.”
Points of Interest: dependent neglect, ICWA, tribal enrollment
2021 MT 200
Section 3-1-804(1)(a), MCA, requires a plaintiff to file a motion for substitution of judge within thirty calendar days after the first summons is served or within thirty calendar days after an adverse party appears, whichever is first.
Holms sued Bretz for breach of contract. After he was served, Bretz moved to change venue—his first appearance in the case. Holms moved for substitution of judge within thirty days of Bretz’s appearance but more than thirty days after service. The substituted judge denied Bretz’s motion to change venue. Bretz appealed, arguing that Holms’s motion for substitution was untimely and thus the substituted judge had no jurisdiction to rule.
The Supreme Court determined that § 3-1-804(1)(a), MCA, contains no permissive language to allow a plaintiff to elect when to file a motion for substitution. Requiring that a plaintiff must file within thirty days of service or within thirty days of the defendant’s appearance means thirty days after whichever occurrence happens first. This interpretation “implements the objectives of the Substitution Rule and gives effect to all its provisions. Since the thirty-day deadline begins only once, after whichever event occurs first, the triggering event directs the plaintiff to file and prevents the alternative thirty-day deadline from taking effect.” The Court concluded Holms’s motion to substitute was untimely and remanded the matter for further proceedings.
Points of Interest: substitution
2021 MT 201
Grafft v. Mont. Fourth Judicial Dist. Ct.
Writ of habeas corpus denied because under the facts of the case, the District Court did not abuse its discretion in refusing to release Petitioner upon posting of bail.
Grafft, via counsel, petitioned for writ of habeas corpus, alleging illegal incarceration because he was unreasonably detained on a possession charge after the District Court refused to release him after he posted bail. Instead, the court ordered that Grafft be released upon placement of an alcohol monitor or GPS unit on him.
On review, the Supreme Court determined that the lower court did not abuse its discretion in refusing to release Grafft. Courts have the statutory authority to impose conditions of release on bail. In this instance, Grafft had a history of failing to appear and failing to comply with the conditions of release. The District Court therefore tailored the conditions of Grafft’s release within its discretion.
Points of Interest: habeas corpus, bail/bond, conditions of release
2021 MT 204
JNR Holdings, LLC v. Dearborn Meadows Land Owners Ass’n, Inc.
An organization may maintain associational standing on its members’ behalf in an easement dispute where it seeks declaratory or injunctive relief. A party claiming an implied easement by preexisting use need not establish that the dominant and servient parcels are contiguous. Court correctly applied the UDJA’s supplemental relief statute to award defendant attorney fees for its easement claims, where the plaintiff brought its claim under the UDJA. The equities did not support an award of attorney fees where the record contained insufficient evidence to demonstrate the parties were in an unequal position in the litigation and both parties had genuine beliefs supporting their claims.
JRN erected and locked a gate across Powerline Road on its property, providing a key to all nearby landowners who had to use the Road to access their properties. The gate was eventually torn down, and when JRN provided notice to Appellee DMLOA that it would re-erect and lock the gate, DMLOA stated that it would remove the gate at JRN’s expense.
JRN sought declaratory and injunctive relief that it had a right to place a locked gate across the Road and that DMLOA had no right of entry. DMLOA counterclaimed that its members had an implied easement by preexisting use and an easement by prescription to access their properties and for recreation. After a bench trial, the District Court concluded that DMLOA had established both types of easement for its members’ as well as the general public’s residential and recreational uses. It enjoined JRN from interfering with Road access and awarded DMLOA $96,650.18 in attorney fees and costs.
On appeal, the Supreme Court first held that § 70-17-109, MCA, did not prevent DMLOA from maintaining associational standing to pursue its easement claims on behalf of its members, but that it could not maintain standing on the general public’s behalf. The Court affirmed the District Court’s finding of an implied easement by preexisting use, concluding that the claim’s elements do not require a claimant establish that the dominant and servient parcels are contiguous. The Court narrowed the scope of the easement by preexisting use, however, to DMLOA members who have no other means of access to their land. The Court affirmed the finding of a prescriptive easement for residential and recreational use. Finally, the Court reversed the attorney fee and costs award: Although the court properly applied the UDJA’s supplemental relief provision, the equities did not support such an award.
Points of Interest: easements and roads, standing, UDJA
2021 MT 212
Defendant received ineffective assistance at trial when his counsel neither failed to object to the State’s incorrect “knowingly” instruction, nor proposed the correct one, in an obstructing a peace officer case.
Secrease was pulled over by an MHP trooper due to erratic driving. He performed poorly on field sobriety tests, so the trooper requested a breath sample. Secrease refused and was ultimately arrested for DUI. After arrest, the trooper read the implied consent advisory and requested Secrease provide a blood sample. Secrease again refused. After obtaining a telephonic search warrant, the trooper took Secrease to a hospital for the blood draw. Secrease again refused to provide a sample and the trooper suggested Secrease’s blood could be drawn by force. The hospital staff then refused to perform the blood draw. Secrease was charged with DUI and obstructing a peace officer. At trial, the State proposed a conduct-based “knowingly” instruction on the obstruction charge and Secrease’s attorneys neither objected to the State’s proposed instruction nor proposed the correct results-based “knowingly” instruction themselves. Secrease was convicted.
On appeal, the Supreme Court reversed Secrease’s obstruction conviction, finding he had received ineffective assistance at trial. Montana law contains two “knowingly” definitions—one conduct-based, the other results-based—and the State proposed the wrong one, which had the effect of lowering the State’s burden of proof. Secrease’s attorneys neither objected nor proposed the correct “knowingly” instruction. The Court found “no plausible justification” for Secrease’s counsel to not propose the correct instruction and Secrease was prejudiced by counsel’s deficient performance.
Points of Interest: DUI, jury instructions, ineffective assistance of counsel
2021 MT 215
Summary judgment that plaintiff’s co-pled negligence claim was time-barred by Montana’s Dram Shop Act not proper where the claim was an independently actionable negligence-based common-law tort claim not dependent on proof of an alleged breach of a legal duty arising from or relating to the furnishing of alcohol.
After being assaulted by a fellow bar patron, plaintiff alleged two negligence claims against the bar owner—a “liquor liability” and a “premises liability” claim—two years and eight days after the incident. The District Court determine that both claims, each arising out of the service of alcohol to the underage patron/assailant, were subject to the Dram Shop Act’s two-year statute of limitations and therefore time-barred.
The Supreme Court affirmed the District Court as to the “liquor liability” claim because the asserted duty and breach—service of alcohol to an underage patron and resulting injury to third-party plaintiff—were within the purview of the Dram Shop Act. The Court reversed on the “premises liability” claim because it was based on alleged breaches of independent common-law duties of care owed by tavern-keepers to their patrons, and therefore subject to the three-year statute of limitations for general tort claims.
Points of Interest: statute of limitations, torts, Dram Shop Act
2021 MT 221
The district court erred by dismissing a case where it should have applied the voluntary cessation exception to mootness because the defendant failed to meet its burden to show that the challenged conduct would not recur.
Wilkie was injured by Sprout, who was insured by The Hartford under an automobile insurance policy. Before submitting a claim for general damages, Wilkie requested from The Hartford a copy of the policy or the limit of Sprout’s liability insurance coverage that applied to the claim. The Hartford denied the request, stating that it did not believe it had an obligation to provide such information.
Wilkie sued The Hartford and Sprout, seeking a declaration that The Hartford had a duty to provide the policy or the amount of insurance coverage available because liability was reasonably clear. Sprout then provided Wilkie with a copy of the policy and The Hartford filed a motion to dismiss the case as moot. Wilkie responded that, among other things, his request for declaratory relief should proceed under the voluntary cessation exception to the mootness doctrine. The Hartford responded that the exception did not apply because Wilkie alleged only a single instance of the challenged conduct. The District Court granted the motion and dismissed the case.
The Court affirmed the dismissal of the Sprouts but reversed the dismissal of The Hartford, concluding that The Hartford had not met its burden under the voluntary cessation exception to show that it will not or cannot repeat the challenged conduct. Wilkie submitted evidence supporting his claim that it is reasonable to expect the same wrong to recur. The Hartford made no assurances that it would not repeat the challenged conduct or even acknowledge that it carried such a burden.
Points of Interest: insurance, mootness
2021 MT 227
Plaintiff was judicially estopped from pursuing malicious prosecution claim for criminal charges resolved during the pendency of her bankruptcy but was not estopped to pursue her claim for a civil suit that was not terminated until after her bankruptcy was discharged.
Morrison & Frampton pursued civil and criminal charges against McAtee for her involvement in securing new financing on a foreclosed property. McAtee then filed for bankruptcy. The criminal case was dismissed during her bankruptcy; the civil case terminated after her bankruptcy was dismissed. McAtee filed a malicious prosecution claim against Morrison & Frampton based on the criminal and civil proceedings. The District Court granted Morrison & Frampton’s motion for summary judgment, finding they had probable cause to initiate the proceedings against McAtee. The court also dismissed McAtee’s claims, finding her judicially estopped due to her failure to disclose them in her bankruptcy.
On appeal, the Supreme Court reversed in part and affirmed in part, concluding that because criminal fraud charges were commenced and dismissed against her during her bankruptcy, McAtee was required to disclose her malicious prosecution claim as an asset to the Bankruptcy Court. However, she was not judicially estopped from pursuing her malicious prosecution claim premised on the civil fraud action because there had been no termination of the fraud case during the pendency of her bankruptcy case. Regarding the malicious prosecution claim against Morrison & Frampton for its civil case against McAtee, the Court concluded the allegations about the reasonableness of Morrison & Frampton’s actions or inactions during its investigation were a material factual dispute and summary judgment was not appropriate.
Points of Interest: estoppel, bankruptcy, malicious prosecution
2021 MT 228
District Court’s involuntary commitment of a mentally ill patient reversed because the court erroneously allowed a State witness to testify via video conference over the patient’s objection, thus violating Montana’s statute regulating the use of two-way electronic audio-video communication during involuntary commitment hearings.
At N.A.’s involuntary commitment hearing, one of the State’s witnesses, a licensed clinical social worker, was unavailable to testify in-person. N.A. objected to the State’s proposal to have the witness testify via live video conference. The District Court overruled N.A.’s objection, during the social worker’s live video testimony, she offered her professional opinion that N.A. posed an imminent threat of injury to herself and/or others and required involuntary commitment. Relying on this testimony, the court ordered N.A. involuntarily committed.
On appeal, the Supreme Court reversed the District Court’s order. Section 53-21-140, MCA, expressly disallows the use of “two-way electronic audio-visual communications” during commitment hearings for the mentally ill when the patient objects to the use of said communications. The District Court’s decision to overrule N.A.’s objection and allow the social worker to testify via video conference contradicted the plain and unambiguous language of the statute. This was not harmless error, as the District Court directly relied upon this testimony in issuing its involuntary commitment order.
Points of Interest: involuntary commitment, video testimony
2021 MT 229
The introduction of hearsay statements by a child victim of sexual abuse found incompetent to testify violates Defendant’s right to confront witnesses.
Tome was charged with sexual intercourse without consent. At trial, the State sought to have the victim, a deaf and developmentally delayed minor, testify. The District Court found the victim incompetent but allowed the State to introduce her out-of-court statements through other witnesses. Tome objected on Confrontation Clause grounds, arguing that he had no opportunity to cross-examine the victim. The District Court overruled the objection and Tome was convicted.
On appeal, the Supreme Court reversed Tome’s conviction. The Court concluded that, based on the circumstances surrounding the statements, the victim’s statements were testimonial because the primary purpose of the victim’s statements was to prosecute Tome. The Court further concluded that the Confrontation Clause applies to testimonial statements. Because the Confrontation Clause applies, hearsay statements are only admissible if the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Because the victim was found incompetent to testify and the defendant had no opportunity for cross-examination, the District Court erred when it admitted the victim’s hearsay statements. The Court concluded that the statements likely contributed to Tome’s conviction. Therefore, the admission of the statements was not harmless and required reversal.
Points of Interest: confrontation clause, witnesses, hearsay
2021 MT 230
A defendant’s request for police personnel files requires that the defendant show substantial need.
Howard was violently arrested and charged with several misdemeanors, including resisting arrest. Howard argued that he was justified in resisting arrest and sought a review of the arresting officer’s personnel file for previous instances of excessive use of force for impeachment purposes. The District Court denied Howard’s motion, reasoning that Howard failed to present a substantial need for the file.
On appeal, the Court affirmed. The defendant’s argument that the file was necessary to cross-examine the officer failed to constitute a substantial need because the defendant failed to show that the officer might testify falsely. The defendant’s argument that he could not show a substantial need without the file ignored the plain language of the law, which requires a substantial need before the motion can be granted. Because the defendant failed to demonstrate any substantial need when he sought the information, the District Court correctly denied his motion.
Points of Interest: discovery, prosecutor’s disclosure
2021 MT 231
In re Parenting of P.H.R. and P.H.R.
District Court erred when it ordered a non-party to attend counseling, did not include in an amended parenting plan the terms of the parties’ stipulation, and required the parties to mediate future disputes without reference to their “written informed consent” when there was “reason to suspect” abuse. However, the court did not err by splitting between the parties the tax dependency deductions.
Sarah and Marlen were divorced in Texas. Sarah was appointed the sole managing conservator for their two minor children. Sarah later moved to Montana with the children and Marlen remained in Texas. Marlen registered the parenting plan in Montana and moved the District Court to amend the parenting plan. The District Court ultimately maintained Sarah’s primary custody and the parenting schedule, but it made several small amendments through its order and amended parenting plan.
The Court reversed the District Court’s order to the extent it required that Sarah’s husband participate in counseling with her, as he was not a party to the case and did not voluntarily submit himself to the court’s jurisdiction. The Court reversed the amended parenting plan provision allowing the absent parent to contact the children “regularly” because it did not include the terms of the parties’ stipulation calling for specific times of contact. Finally, pursuant to Hendershott v. Westphal, 2011 MT 73, 360 Mont. 66, 253 P.3d 806, and § 40-4-301(2), MCA, the Court reversed the provision requiring the parties to mediate future disputes without reference to their “written informed consent” where the record and the District Court’s findings demonstrated a “reason to suspect” domestic abuse. The Court affirmed the provision dividing between the parties the tax dependency deductions because such action was within the District Court’s discretion and the record supported the court’s consideration of such action.
Points of Interest: family law, parenting plan
2021 MT 232
Barthel v. Barretts Minerals Inc.
An employee who violated the express terms of a personnel policy for failing to notify his employer about his medical marijuana use was not wrongfully terminated.
Barthel was fired from Barretts after testing positive for marijuana in a random drug test. The employer’s personnel policy required that if an employee took a drug or controlled substance that “may have adverse effects” on the job performance or safety, the employee was required to notify management. Barthel sued asserting, among other things, that he was wrongfully discharged. The District Court granted the employer’s motion to dismiss finding that his violation of the policy constituted good cause.
On appeal, the Supreme Court concluded that the District Court did not err in granting the motion to dismiss. The facts as alleged in the complaint establish that Barthel used medical marijuana for a month before notifying his employer. Thus, his violation of the express policy provision constituted good cause for termination.
Points of Interest: employment law, wrongful discharge
2021 MT 238
The introduction of testimony and the prosecutor’s personal comments vouching for a witness’s credibility, in violation of the State’s agreement not to introduce credibility testimony, undermined the defendant’s right to a fair trial.
Byrne was charged with three counts of sexual intercourse without consent. The State’s case centered on the victim’s credibility. Before trial, Byrne tried to bar the State from introducing testimony that the victim was credible. The State agreed it would not ask witnesses whether the victim was credible. At trial, the State asked four witnesses whether the victim showed signs of dishonesty. The State also told the jury the victim was reliable and repeatedly mentioned that the victim had no incentive to lie. Byrne was convicted of all three counts.
On appeal, the Supreme Court reversed Byrne’s conviction. The Court noted that prosecutors may not elicit testimony boosting a witness’s credibility. The prosecutor’s questions to several witnesses asking whether the victim was dishonest had the effect of boosting credibility. The Court further noted that a prosecutor’s comments on a witness’s credibility improperly interferes with the jury’s role. The prosecutor’s comments that the victim was reliable and repeatedly telling the jury the victim had no reason to lie had the improper effect of making the defendant prove why the victim would lie. Given the State’s agreement not to introduce credibility testimony and subsequent violation of that agreement, the Court declined to resolve any doubt in favor of the State.
Points of Interest: credibility, prosecutorial misconduct
2021 MT 239
A defendant received ineffective assistance of counsel during sentencing when her counsel failed to cite to the Alternative Sentencing Authority, § 45-9-202, MCA, when arguing for a deferred sentence.
Wright was convicted felony criminal possession of dangerous drugs. A Presentence Investigative Report revealed that Wright had a previous non-drug-related felony conviction approximately 25 years earlier. The PSI writer indicated Wright was not eligible for a deferred sentence. At sentencing, the State asked for a five-year DOC commitment. Wright’s counsel asked for a deferred sentence and pointed the District Court to § 46-18-201(1)(b), MCA, which states that the “imposition of sentence in a felony case may not be deferred in the case of an offender who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended,” and argued the language of “may not be deferred” was permissive, rather than mandatory, such that the court would have the discretion to impose a deferred sentence under that statute. The District Court gave Wright a four-year suspended sentence.
On appeal, the Supreme Court reversed and remanded for resentencing. Wright received ineffective assistance of counsel when her counsel pointed the District Court to a statute which would make her ineligible for a deferred sentence rather than to the ASA, which would allow the District Court to give her a deferred sentence for a dangerous drug felony offense even though she had a previous felony.
Points of Interest: sentencing, ineffective assistance of counsel
2021 MT 240
Fortner v. Broadwater Conservation Dist.
A stream which does not currently exhibit perennial flows, but would have, absent historical mining activity, constitutes a “natural, perennial-flowing stream” for purposes of determining Streambed Act jurisdiction under § 75-7-103(6), MCA.
The Broadwater Conservation District began proceedings against the Fortners for allegedly making unpermitted disturbances of Montana Gulch’s stream channel. The Fortners sought a declaratory ruling that BCD did not have jurisdiction over Montana Gulch, contending that it did not currently exhibit year-round surface flows in the area of the alleged disturbances and was therefore not a “natural, perennial-flowing stream” subject to BCD jurisdiction pursuant to the relevant provision of the Streambed Act. After a public hearing, the BCD issued a final declaratory ruling concluding that Montana Gulch’s current lack of perennial flows was due to historic mining activity, rather than natural geology, and therefore was subject to BCD jurisdiction. The District Court upheld the ruling on petition for judicial review.
On appeal, the Montana Supreme Court upheld the rulings. A stream that no longer flows perennially, but would have, absent human intervention, was, as a matter of law, a “natural, perennial-flowing stream” pursuant to § 75-7-103(6), MCA. Admin. R. M. 36.2.407 includes under the definition of a “natural, perennial-flowing stream” a stream that “dries up periodically due to man-made causes,” prior decisions interpreting the relevant statutory and regulatory provisions, and the Streambed Act’s statement of purpose to conclude that a stream that no longer exhibits perennial flow, but would have, absent human intervention, is classifiable as a “natural, perennial-flowing stream” under Streambed Act jurisdiction. Moreover, the Court rejected the appellants’ contention that any such stream must have exhibited perennial flow as recently as the Streambed Act’s 1975 enactment in order to be subject to BCD’s jurisdiction.
While there was conflicting evidence presented below on whether Montana Gulch’s current lack of perennial flows was due to historic mining activity or natural geology, BCD’s finding was supported by sufficient evidence and was therefore not arbitrary or capricious. The BCD and the District Court did not err in considering the relevant impacts of potential groundwater sources on Montana Gulch’s hydrology in resolving the dispositive question of whether it would have exhibited perennial flows absent human impacts.
Points of Interest: natural resources, administrative law
2021 MT 244
Defendant’s dual convictions for incest and sexual assault, which arose out of the same incident involving his minor child, did not violate double jeopardy, as the Court held that the crime of sexual assault was not an “included offense” of the crime of incest.
Valenzuela was convicted of both incest and sexual assault, for which the District Court imposed two concurrent sentences of 100 years. Both convictions arose from the same incident involving the same victim, Valenzuela’s minor child. Valenzuela appealed, arguing that his convictions should be barred under the relevant Montana double jeopardy statute, § 46-11-410, MCA, which prohibits multiple convictions for two crimes in certain scenarios. Valenzuela asserted that two provisions of Montana’s multiple convictions statute bared his convictions for both crimes: first, under § 46-11-410(a), MCA, Valenzuela contended that sexual assault was an “included offense” of incest; second, under § 46-11-410(d), MCA, Valenzuela asserted that sexual assault was a “specific instance of the conduct” of incest.
On appeal, the Montana Supreme Court affirmed Valenzuela’s dual convictions for sexual assault and incest, holding that sexual assault was neither an “included offense” nor a “specific instance” of incest under § 46-11-410(a) and (d), MCA. The Court concluded that the legislature intended to allow for multiple convictions for both of these crimes. In reaching this conclusion, the Court noted that prior Montana case law called for the application of the same legal test under both subsections (a) and (d) of § 46-11-410, MCA: the “statutory elements” test first articulated by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932). The Court applied Blockburger’s test to reach its holding that sexual assault and incest were separate, distinct crimes. The Court also expressly overruled one of its holdings from State v. Hall, 224 Mont. 187, 728 P.2d 1339 (1986), which had incorrectly asserted that multiple convictions for both sexual assault and incest could be barred under § 46-11-410, MCA, depending on the victim’s age.
Points of Interest: double jeopardy, included offense, multiple convictions
2021 MT 245
Trust assets are nonprobate assets and may only be used to satisfy statutory allowances if the probate estate is insufficient. The probate estate includes specific devises, which must abate to satisfy statutory allowances.
Douglas Dower created a trust that would become irrevocable upon his death. He died in 2019, and his widow, Linda Dower, sought the allowances provided to spouses under Montana law. Douglas’s probate estate was insufficient to satisfy those allowances, but Linda argued that the trust assets were part of the estate. The District Court rejected Linda’s argument and concluded that trust assets were nonprobate assets and unavailable to satisfy Linda’s allowances. The District Court further concluded that Douglas’s probate estate was insufficient and the specific devises of tangible personal property that Douglas made to Linda must abate to satisfy her allowances.
On appeal, the Supreme Court affirmed. The Court held that the trust’s assets were not governed by the Uniform Probate Code and could not be considered part of the probate estate. Regardless, the Court noted that nonprobate assets could be reached when a probate estate was insufficient to satisfy claims, but the probate estate must be insufficient to do so. The Court concluded that the probate estate remained sufficient to satisfy Linda’s allowances through the abatement of her specific devises, which were all that remained of the probate estate.
Points of Interest: trusts and estates, Uniform Probate Code
2021 MT 246
A.C.I. Constr., LLC v. Elevated Prop. Invs., LLC
District Court correctly interpreted § 71-3-542(4), MCA, and therefore did not err by failing to halt a nonjudicial trustee foreclosure of a property, nor did it err in granting an unjust enrichment award.
Lease Operating Solutions made a loan to Elevated Property Investments to purchase and improve a house in Kalispell. EPI hired A.C.I. Construction as a general contractor. EPI eventually stopped paying contractors, and ACI recorded a construction lien on the house. ACI was never paid in full for its work and eventually filed suit against EPI and LOS for unjust enrichment. EPI initially appeared, but soon defaulted in both this legal action and on the LOS loan. LOS moved for summary judgments regarding lien priority and challenging ACI’s unjust enrichment claim. The District Court granted summary judgment in LOS’s favor on lien priority, reasoning that LOS could not know that EPI would contract with ACI for work outside the work listed in the loan agreement, and that ACI could find the recorded trust indenture and know what work was or was not contemplated by the loan. After a bench trial, the court entered judgment in favor of ACI on its unjust enrichment claim. ACI appealed the summary judgment decision, and LOS cross-appealed the unjust enrichment verdict.
The Supreme Court affirmed. Regarding lien priority, the potential for bifurcating a mortgage and giving priority to the construction portion thereof is implicit in the controlling statute, § 71-3-542(4), MCA. LOS’s careful financial and procedural publicly-noticed protocols clearly demonstrated the portion of its mortgage that secured advances for construction work on the property, which also served to protect LOS from losing priority on the rest of its mortgage to the construction lien. Regarding ACI’s unjust enrichment claim, because of its default and general insolvency, ACI has no remaining contractual remedy against EPI. And, despite there not being any formal contract between ACI and LOS, the elements of unjust enrichment were met because “the lender has foreclosed on the property owner’s interest, terminating the construction liens, received full payment for its loan, attorney fees, and costs, and then reaped a substantial unmerited financial benefit from the property’s equity, arising from the work of the contractor whose remedies have been lost or are inadequate.”
Points of Interest: liens, contracts
2021 MT 247
To qualify for redesignation or expungement of a production conviction under the Montana Marijuana Regulation and Taxation Act’s retroactive provision, a person must either own the property on which the marijuana is grown or have written permission to grow marijuana from the landowner.
Rairdan was convicted in 2002 for growing marijuana plants adjacent to the rental property where he was living. The owner of the property called law enforcement to report the violation. Rairdan was subsequently charged, pleaded guilty, and received a deferred sentence for the conviction.
In 2020, voters passed Initiative No. 190, the Montana Marijuana Regulation and Taxation Act (MMRTA), to provide for the limited legal possession and use of marijuana. The MMRTA authorizes courts to redesignate marijuana-related convictions as civil infractions or expunge the criminal records of persons who have completed sentences for acts made legal by the new law. Rairdan petitioned the sentencing court; however, the District Court denied the petition, concluding that Rairdan was not eligible for expungement or redesignation.
On appeal, the Supreme Court affirmed, reasoning that because the MMRTA unambiguously prohibits growing marijuana on someone else’s land without their permission, the law does not permit the act for which Rairdan was charged; therefore, he does not qualify for expungement or redesignation.
Points of Interest: MMRTA, expungement
2021 MT 253
Wallace v. Law Offices of Bruce M. Spencer, PLLC
The Supreme Court designated a litigant with a long history of frivolous and harassing conduct in the Montana courts a vexatious litigant and imposed upon him a statewide pre-filing restriction.
Wallace appealed from District Court rulings that granted summary judgment in favor of the defendants to his lawsuit and declaring Wallace a vexatious litigant subject to a pre-filing requirement in the First Judicial District Court. Wallace appealed and Appellees urged this Court to also declare Wallace a vexatious litigant on a statewide basis.
The Supreme Court determined that Terry Wallace was a vexatious litigant by utilizing the five- factor test from McCann v. McCann, 2018 MT 207, ¶ 38, 392 Mont. 385, 425 P.3d 682, concluding that a declaration that Wallace is a vexatious litigant is warranted. Although every person is guaranteed access to Montana’s courts through the State Constitution, the right is not absolute; it may be limited for reasons rationally related to legitimate state interests, including protecting the court system and other litigants from the harmful actions of a vexatious litigant.
Wallace burdened the courts with numerous frivolous lawsuits. His actions resulted in sanctions from the district court and an Order of Discipline by the Supreme Court. Wallace did not undertake his actions with good faith; rather, his baseless claims and hostile behavior were intended to harass those he perceived as adversaries. His conduct was even less excusable because he was a licensed attorney and should have understood his actions were improper. Wallace wasted the resources of the Montana court system and those of the parties he forced to take part in his unnecessarily drawn-out legal proceedings. Finally, he refused to pay monetary sanctions, instead evading service of process and retaliating with another frivolous lawsuit. Lesser sanctions had no effect on Wallace’s behavior, and it was necessary to issue the greater sanction of designating him a vexatious litigant statewide and imposing a statewide pre-filing restriction. Before Wallace can file any document in any court in Montana, he must obtain pre-approval from that court.
Points of Interest: vexatious litigation, sanctions
2021 MT 254
In the Matter of the Conservatorship of H.D.K.
In a matter involving the estate planning of an elderly mother who was subject to a conservatorship, the Montana Supreme Court upheld the District Court’s allocation of the mother’s properties as consistent with the mother’s testamentary intent.
H.D.K. owned several real properties that she hoped to devise to her two children after her death. As early as 2009, she expressed an intent to devise these properties to her son and daughter in a 60/40 allocation, respectively. However, after ten years of estate planning efforts, her cognitive ability began to decline. As a result, H.D.K.’s daughter successfully petitioned the District Court to appoint an anti-elder abuse organization as H.D.K.’s conservator. In appointing the conservator, the court cited the need to protect H.D.K.’s intent in her estate planning from the undue persuasion of her children, who had a highly contentious relationship with each other. H.D.K.’s daughter and H.D.K.’s counsel both advocated for the conservator to implement a plan that would, upon H.D.K.’s death, devise her properties to her son and daughter in a 60/40 allocation. However, H.D.K.’s son contested the implementation of this plan, alleging it was inconsistent with H.D.K.’s testamentary intent in light of a separate “proposed deal” that he and H.D.K. had created in 2019, which gave him ownership over additional properties. To assess H.D.K.’s true testamentary intent, the District Court held a hearing. Based on H.D.K’s testimony, the District Court issued an order which found that, despite declining cognitive abilities, H.D.K. possessed testamentary capacity. The order concluded that substantial evidence supported the view that H.D.K.’s true testamentary intent was to effect the 60/40 plan and it ordered the conservator to implement it.
H.D.K.’s son appealed the 60/40 allocation and the District Court’s determination that H.D.K. possessed testamentary capacity. The Supreme Court affirmed both rulings. The Court cited the substantial amount of evidence the District Court had reviewed in determining the 60/40 plan was consistent with H.D.K.’s testamentary intent. The District Court’s decision to only permit written testimony from H.D.K’s son did not violate his procedural due process rights—especially given that the court had admitted and reviewed his 300-page affidavit. Lastly, the Court rejected his argument that the District Court erred by failing to make determinations regarding the present values of the properties; the court was not required to issue present valuations when those valuations may prove irrelevant as H.D.K. is still alive and the distribution of her properties might not occur until years later.
Points of Interest: trusts and estates, conservatorship, testamentary intent
2021 MT 255
(1) Claims of the State’s failure to turn over, collect, or preserve evidence that is only potentially exculpatory require a showing of bad faith as well as that the evidence was lost from State possession. (2) A prosecutor’s questions regarding whether a defense expert carried out an evidentiary analysis do not improperly skew the burden of proof as long as questions were clearly targeting the credibility of the expert’s claims about the analysis and not insinuating it was necessary to prove innocence.
Fisher moved to have homicide-related charges dismissed, alleging the State had mishandled the crime scene in violation of his right to access exculpatory evidence. He faulted investigators for leaving items at the scene, such as trace materials like hairs he speculated might exonerate him. He also pointed to an alternate suspect in the case who was a sheriff’s deputy. The deputy had been barred from work on the case given his personal connection, but he later went to the property to check on horses he pastured there and to make sure the property. While there, he paid a cleaning service to sanitize the bedroom where the crime had occurred.
The District Court denied the motion to dismiss, and the Supreme Court affirmed. Fisher had failed to show bad-faith motivations behind State investigators’ forensic work, and any potentially exculpatory evidence left on the scene was no longer in State custody after investigators left. Thus, the deputy’s cleaning of the room was not a constitutional violation.
Fisher further alleged prosecutorial misconduct. Fisher had called an expert to testify that the State could have done more to collect fingerprint evidence, implying that doing so might have shown a culprit other than Fisher. The prosecutor asked the expert why he hadn’t found such evidence either, and Fisher objected, arguing that the prosecutor’s comments tainted the jury’s presumption of his innocence. The comments, in context, did not rise to improperly insinuating Fisher had to prove anything, but were merely an attempt to dampen the credibility of the expert’s claim that fingerprint analysis mattered as a source of doubt.
Points of Interest: discovery, evidence, prosecutorial misconduct
2021 MT 256
Defendant waived his attorney-client privilege by testifying at his bail-jumping trial about his communications with his former attorney regarding his missed court date. Defendant’s waiver allowed the former attorney to testify about the same information at the trial as a rebuttal witness for the State.
Payne did not appear for two criminal trials and was charged with bail-jumping. At his bail-jumping trial, Payne elected to testify, despite being warned by the judge that there was a “distinct possibility” that he could waive his attorney-client privilege in doing so. Payne testified about his communication with former attorney, Scheveck, who had represented Payne at the missed trials. In his testimony, Payne alleged that he missed his trials because Scheveck gave him insufficient notice of his court date. The State then called Scheveck to testify as a rebuttal witness, and the court allowed him to testify under a Gillham order. Payne did not object to the testimony. Scheveck then testified about his attempts to communicate with Payne about his court date. Payne was convicted of bail-jumping and appealed the court’s decision to allow Scheveck’s testimony, claiming it violated attorney-client privilege.
The Supreme Court affirmed Payne’s conviction and concluded that he impliedly waived his attorney-client privilege when he testified about the privileged communications and failed to object to Scheveck’s testimony at trial. The District Court did not err when it allowed Scheveck to testify about the same information for which Payne had already waived his privilege. Likewise, Scheveck did not provide ineffective assistance of counsel (IAC) by testifying because the information was no longer privileged; therefore, his performance was not deficient. Finally, Payne’s IAC claim regarding Scheveck’s representation in the underlying missed trials should be brought on appeal of those convictions, not the bail-jumping conviction.
Points of Interest: attorney-client privilege, waiver, ineffective assistance of counsel
2021 MT 257
On plain-error review, Respondent could not establish that he was prejudiced by the District Court’s failure to obtain a post-petition mental health evaluation of him before his recommitment hearing.
B.A.F. has been under the care of the Center since his first civil commitment in 2016. Susan Stevens, the professional responsible for B.A.F., petitioned for B.A.F.’s recommitment in 2019. Stevens’s petition included a detailed mental health assessment of B.A.F. and comprehensive medical and behavioral records. The District Court found probable cause for recommitment, based on Stevens’s petition, and ordered Stevens to conduct a post-petition mental health assessment, as required by Montana’s civil commitment statutes. However, Stevens did not conduct a post-petition evaluation of B.A.F. because B.A.F. had refused to cooperate with Stevens’s pre-petition mental health assessment. Two months after the finding of probable cause, the court held a contested hearing. It found that the Center is the least restrictive environment for B.A.F. and extended his commitment by one year.
On appeal, B.A.F. argued that the court erred when it recommitted him to the Center without a post-petition mental health evaluation as required by § 53-21-122(2)(a), MCA. Since B.A.F. did not raise this argument below, the Supreme Court applied plain-error review. Although the District Court erred when it recommitted B.A.F. without a post-petition mental health evaluation, it had ample medical, psychiatric, and behavioral records on which to base its decision to recommit B.A.F., including recent reports from the Center’s staff that B.A.F. was refusing medication and experiencing delusions. Therefore, the absence of a post-petition mental health evaluation did not result in a manifest miscarriage of justice, leave unsettled the fairness of the proceedings, or compromise the integrity of the process.
Points of Interest: involuntary commitment, plain error
2021 MT 262
Civil commitment reversed because the waiver of Respondent’s presence at the initial hearing on the commitment petition prejudiced his substantive rights.
F.S. was not present during the initial hearing on the State’s petition. F.S.’s attorney said, “He’s very hard of hearing and he has dementia; I would like to waive his presence at the initial hearing.” The District Court agreed to waive appearance “under the circumstances, including the Respondent’s current condition, as well as him being hard of hearing[.]” The court indicated that it would “re-advise [F.S.] of his rights” when he appeared for the adjudicatory hearing. All parties were represented by different counsel at the adjudicatory hearing, and the District Court never did advise F.S. of his statutory and constitutional rights in the proceeding.
On appeal, the Supreme Court pointed out that F.S. could not waive his right to be present at the initial hearing except under § 53-21-119(2), MCA. The presiding judge made no record and did not make the factual findings that the statute requires. The Court found plain error under the circumstances of the case. First, the probable value of the initial hearing is substantial. It is the first opportunity for a respondent to see the judge and learn about the legal process that could take away the respondent’s liberty—the substantive effect of the petition. Without a record substantiating that the essential purposes of the initial hearing were met, the absence of a valid waiver of the right to be present undermines the integrity of the commitment process. Second, there was no record that anyone had discussed with F.S his rights, and the record showed that the day before the adjudication hearing F.S. “stated an understanding that he is supposed to talk to the judge tomorrow but does not appear to understand why.” On this record, the error prejudiced F.S.’s substantial rights and compromised the integrity of the judicial process required in commitment proceedings.
Points of Interest: involuntary commitment, waiver, right of presence
2021 MT 263
Jury instructions on the defense of “Justifiable Use of Force” are only warranted if the theory is supported by the evidence presented at trial.
Marquez was in custody at the Lewis and Clark County detention center when the toilet in his cell overflowed. An officer handcuffed him to take him out of the cell while other officers cleaned up the flooding. Marquez and the officer scuffled, and the officer held Marquez down on a bench during the clean-up. Shortly after they got to the bench, Marquez kneed the officer in the chest. For this act, the State charged Marquez with assault on a peace officer.
At trial, the jury watched two videos of the incident and convicted Marquez. Marquez did not give a defense presentation and instead rested after the prosecution’s case. The judge declined to instruct the jury on the law regarding justifiable use of force, which is an affirmative self-defense theory. Marquez appealed and said the instruction should have been given.
The Supreme Court affirmed, noting that the justifiable use of force defense requires evidence to support it. Marquez argued that the applicability of the defense was inherently obvious in the videos. But in part because the videos made Marquez appear to be the initial aggressor, the Supreme Court reasoned that based on the State’s evidence alone, without any additional evidence from Marquez’s side, the elements required to justify self-defense were not apparent.
Points of Interest: affirmative defenses, self-defense, jury instructions
2021 MT 264
A “communication” is not required to support a stalking charge under the 2017 version of the stalking statute.
Hren and Nelson own land along the Small Horn Canyon Road, where they have a long-running feud with other property owners along the road. In 2014, the Meine family was granted a prescriptive easement allowing them to access their property along the road by traveling through Hren and Nelson’s land. Hren and Nelson responded to the easement by putting up barricades and repeatedly harassing the Meine family. After being charged with criminal endangerment for hiding a decking screw in a railroad tie they used to create a fence, Hren and Nelson were ordered to not have contact or interfere with the Meines. Hren and Nelson then harassed the Meines by closing gates with barbed wire, changing the hinges on a gate to swing in the opposite direction and block the easement, placing a new gate, and putting rocks in the roadway the Meines used. For this conduct, they were charged with stalking. Arguing that the stalking statute requires a “communication,” Hren and Nelson moved to dismiss the charges against them, which the District Court denied. Hren and Nelson were then convicted at trial.
On appeal, the Supreme Court affirmed the stalking convictions. The 2017 stalking statute prohibited “harassing, threatening, or intimidating the stalked person, in person or by mail, electronic communication, as defined in 45-8-213, or any other action, device, or method.” The statute prohibits conduct which harasses, threatens, or intimidates a stalked person, not simply communications which do such, and it is possible to harass, threaten, or intimidate someone in person without ever speaking or writing.
Points of Interest: stalking, statutory interpretation
2021 MT 267
Town of Ekalaka v. Ekalaka Volunteer Fire Dep’t, Inc.
Despite the town of Ekalaka’s historic delegation to its volunteer fire department to operate with relative independence, according to the laws governing municipal departments and private fire companies, the department is municipally owned and not an independent private entity.
After a clash over the construction of a new fire hall, the Ekalaka Volunteer Fire Department asserted that it was not municipally owned and was actually a private fire company not subject to the town government’s managerial authority. The town went to Carter County District Court and filed for a declaratory judgment that the department was municipally owned.
The District Court granted summary judgment to the town, and the Supreme Court affirmed. The Court addressed whether the town had complied with state statutes governing the creation and maintenance of municipal fire departments. Ekalaka had validly created a municipal department in 1915, and although its oversight was less strenuous over the decades than state law requires in some ways, that laxity does not somehow dissolve municipal ownership. The Court next addressed whether the fire department could exist as a “private fire company” under the law and found that the department had not adequately complied with those statutes to qualify.
The Court also discussed various documents the town and the department presented to prove how the department acted or was perceived in the past. None of this evidence, the Court noted, could suffice to save the department’s theory of its independence.
Points of Interest: local government
2021 MT 268
Defendant’s comments made during sexual assault action in youth court were properly admitted as motive evidence under M. R. Evid. 404(b) in a years-later sexual intercourse without consent action where his statements indicated a “longstanding sexual fixation” and the victim in both cases was the same individual.
In December 2017, Murphy was charged with sexual intercourse without consent for allegedly raping Q.M., a minor. The State sought to introduce statements Murphy made over the course of a 2013 youth court proceeding in which he eventually pled guilty to sexually assaulting Q.M, as well as several statements by Q.M. alleging additional sexual abuse Murphy perpetrated on her. The District Court admitted the evidence, under both Rule 404(b) and § 26-1-103, MCA, the “transaction rule,” reasoning that Murphy’s identity and motive as an alleged perpetrator were at issue, and that one or more of Murphy’s statements indicate a “desire to engage in sexual conduct with Q.M.” and a “longstanding sexual fixation” with Q.M. that he does not experience with others. Regarding the “transaction rule” the District Court concluded Murphy’s conduct was admissible as a “pattern of escalating conduct.” Murphy pled guilty, reserving the right to appeal the evidentiary rulings.
On appeal, the Supreme Court affirmed, relying solely on the evidence’s admissibility as motive evidence pursuant to M. R. Evid. 404(b). The Court concluded that Murphy’s conduct and words do not merely demonstrate a “general sexual desire” but rather a “very particular one”; a “longstanding sexual fixation” with Q.M. Thus, the evidence demonstrated the “utterly plausible motive” that Murphy struggled with incestual feelings towards Q.M. which he repeatedly acted on. The Court additionally upheld the determination that the evidence’s probative value was not substantially outweighed by danger of unfair prejudice under M. R. Evid. 403 because some jury hostility or sympathy “may be inherent in the nature of the allegations against Murphy,” and the other acts evidence was not more abhorrent than the current charge.
Points of Interest: evidence, Rule 403, Rule 404
2021 MT 269
(1) A warrantless pat-down cannot be justified as a general safety practice; (2) evidence discovered during a subsequent consensual search of a vehicle is not subject to suppression where the consent was the result of a free will choice.
An officer responding to a citizen complaint witnessed Laster watching as another driver attempted to pull a stuck vehicle out of some snow. The officer activated his top lights because he believed the vehicle posed a traffic hazard, approached Laster, and conducted a pat down search which resulted in the discovery of a pipe with methamphetamine residue. The officer did not testify to any reason to believe Laster may have been armed and presently dangerous, testifying instead that he makes a personal practice of patting down any person to whom he may be in close proximity for a period of time. Laster consented to a search of his vehicle, which resulted in the discovery of suspected methamphetamine and other items associated with drug distribution. The District Court denied Laster’s motion to suppress the pipe and the items found in his vehicle and Laster pled guilty to criminal possession of dangerous drugs.
On appeal, the Supreme Court rejected the lower court’s reliance on the community caretaker doctrine to support the stop and similarly rejected the State’s contention that the responding officer had a reasonable particularized suspicion that Laster had committed or was about to commit a drug offense or property crime. Although the officer’s initial investigatory stop was justified by the reasonable suspicion that Laster’s vehicle was violating traffic provisions, the pat-down search was a violation of Laster’s privacy rights, as the officer had no reasonable particularized suspicion that Laster was presently armed and dangerous; such warrantless searches cannot be justified as a general safety practice.
While the search of Laster’s vehicle partially resulted from the unconstitutional pat-down search and discovery of the pipe, his consent to the vehicle search supplied an “independent source” for the discovery of the contraband within the car, a recognized exception to the exclusionary rule. Because the record indicated that this consent was primarily the result of Laster’s intervening free will choice, the vehicle search was sufficiently attenuated to be cleansed of the prior illegality such that the evidence recovered from the vehicle was not subject to exclusion.
However, because the pipe was subject to suppression as the direct result of the illegal pat-down search, and the record was unclear as to which evidence provided the factual basis for the guilty plea, the Court reversed and remanded for a new trial.
Points of Interest: warrantless searches, search and seizure, privacy
2021 MT 270
Law enforcement unconstitutionally seized an individual when they prolonged the interaction and asked to search the person’s vehicle based on the belief that the person was staring at a police van full of marijuana too long.
Pham, a Vietnamese immigrant, was charged with felony possession with intent to distribute after law enforcement found 19 pounds of marijuana in his vehicle. The District Court denied his motion to suppress the marijuana, concluding that Pham was not seized, and that Pham voluntarily engaged with police and consented to the search. Pham was convicted of felony possession with intent to distribute.
On appeal, the Supreme Court reversed Pham’s conviction. The Court concluded that Pham was seized by law enforcement when law enforcement continued speaking with Pham after confirming Pham was not lost or committing any crime. The Court noted that a reasonable person would not have felt free to leave when faced with multiple law enforcement officers asking if they possessed guns, knives, drugs, or child pornography.
The Court next concluded that law enforcement lacked a reason to seize Pham. Based on the testimony, law enforcement stopped Pham after he stared at a police van full of marijuana for too long. Law enforcement was aware that Pham was Vietnamese and that several Vietnamese people had been arrested on the route Pham was traveling. The Court found no objective information to support seizing Pham and concluded his seizure was unconstitutional.
Points of Interest: search and seizure, warrantless searches, consent to search
2021 MT 275
A court may impose restitution on a defendant whose only income consists of a protected benefit, provided that the court does not order the defendant to pay the restitution from the protected benefit.
Corriher is a veteran receiving veteran’s benefits, a protected benefit under federal law. After being charged with DUI, Corriher left the state, resulting in his extradition. At his sentencing, the District Court imposed restitution for the cost of extradition and required Corriher to surrender his medical marijuana card. Corriher objected to both sentencing conditions, arguing the court could not impose restitution because his only income was a protected benefit, and that the medical marijuana condition had no nexus to his offense and was therefore unconstitutional.
On appeal, the Supreme Court upheld the District Court’s imposition of restitution and the medical marijuana condition. Although Corriher’s only income was his protected veteran’s benefits, that alone did not make the restitution order illegal, or prohibit the District Court from imposing statutorily mandated restitution. Corriher could petition the District Court to “adjust or waive restitution” as unjust if he was unable to pay the restitution with his unprotected income. The Court upheld the condition requiring Corriher to surrender his medical marijuana card as well, holding that the District Court established the required nexus between the condition, Corriher, and his crime.
Points of Interest: restitution, sentencing conditions
2021 MT 276
Trial court committed reversible error by allowing the replay of two videos that comprised the entirety of the State’s evidence during jury deliberations without notice to the parties, efforts to determine if excerpts would be responsive to the jury’s needs, supervision, or a weighing of the probative value against the danger of undue emphasis.
Based on incriminating game camera footage capturing a belligerent verbal and physical interaction with his teenaged son, Hoover was charged with partner or family member assault, third or subsequent offense. The State’s case at trial consisted almost entirely of the game camera footage and video footage of Hoover’s post-arrest police interrogation, which captured Hoover’s self-incriminating statements and agitated demeanor. Hoover testified in his defense, calmly asserting that his actions had constituted acceptable parental discipline. During jury deliberations, the District Court authorized, without notice to the parties, the jury’s review of the game camera footage once and the interrogation video twice. The jury found Hoover guilty after an overnight recess and receiving a “dynamite” instruction from the court. The court denied Hoover’s motion for a new trial on the basis that any error in allowing the replay was harmless.
On appeal, the Supreme Court held that the videos were testimonial in nature and their replay—without notice to or conferral with the parties, efforts to determine precisely which portions of the footage would be responsive to the jury’s purpose in seeking the review, supervision by the court and the parties, or a careful weighing of the probative value of the replay against the danger of undue emphasis—constituted a violation of § 46-16-503(2), MCA, and the related common law rule generally prohibiting replay of testimonial materials during jury deliberations. The State could not bear its burden of demonstrating that the error was harmless: The replayed videos constituted the entirety of the evidence of Hoover’s guilt, the entirety of the videos had been replayed, and the jury did not reach a verdict until after reviewing the footage and receiving a dynamite instruction.
Points of Interest: evidence, harmless error, jury deliberations
2021 MT 277
Defendant’s due process rights were not violated where State employee shredded allegedly exculpatory notes for confidentiality purposes, and court did not err in barring Defendant from informing jury about the shredding. The court also properly limited the scope of testimony from Defendant’s expert witness.
Villanueva was charged with two counts of sexual assault against two minors. During discovery, Villanueva moved to obtain copies of all handwritten and electronic notes taken by a Child Protection Specialist (CPS) during her interviews with Villanueva’s family members. The CPS could not find her handwritten notes from these interviews but stated she had likely shredded them after entering them into CFS’s online note-taking database, in accordance with a directive from her supervisor motivated by confidentiality concerns. Villanueva moved to dismiss on the grounds that the State violated his due process rights by destroying the notes in bad faith. The District Court denied Villanueva’s motion. Later, the court granted two motions in limine by the State: the first prevented Villanueva from presenting evidence related to the CPS’s destruction of her notes; the second prevented Villanueva’s expert witness from testifying about the “credibility” of any State witnesses. The court also prevented Villanueva’s expert from testifying about the specific facts of Villanueva’s case. Villanueva was convicted on two counts of sexual assault.
On appeal, the Montana Supreme Court affirmed Villanueva’s convictions. First, the Court reaffirmed the denial of Villanueva’s motion to dismiss, holding that Villanueva’s due process was not violated because the State employee who shredded the allegedly exculpatory notes did not act in bad faith, as she was acting in accordance with a confidentiality-based directive. Based on this, the Court also upheld the District Court’s decision to prevent Villanueva from presenting the jury with evidence related to the destruction of these notes. Lastly, the Court affirmed the lower court’s decision to limit the scope of testimony provided by Villanueva’s expert.
Points of Interest: due process, evidence, experts
2021 MT 279
Vulles v. Thies and Talle Mgmt, Inc.
A court can dismiss a proposed class action based on plaintiffs’ complaint alone under M. R. Civ. P. 12(b)(6) if the complaint does not allege sufficient facts to support class certification under M. R. Civ. P. 23.
A group of tenant plaintiffs sued defendant landlords for allegedly violating the Montana Residential Landlord Tenant Act and other laws by including illegal provisions in their lease agreements. The district court dismissed most of the plaintiffs’ claims, including a claim alleging a class action, but left two claims standing for one plaintiff. Both parties failed to recognize that under M. R. App. P. 6, they could not appeal before the district court issued a final judgment; therefore, the Court did not review the majority of their appellate arguments.
However, the claim for a class action was ripe for review. The Complaint alleged facts intended to show that the proposed class met the requirements of Rule 23, but the court dismissed the claim after determining that the facts pled did not meet two out of the four requirements of Rule 23(a). Plaintiffs argued that the court dismissed their class action prematurely and they should have had the chance to present their arguments in a separate Motion for Certification of a Class under Rule 23. The Supreme Court disagreed. This Court greatly defers to the district court in class action management decisions, as it is the court that ultimately administers the class action proceedings. Here, the Court could only look at a narrow portion of the case due to most of the claims being dismissed, and it deferred to the district court and affirmed the dismissal based on plaintiffs’ Complaint.
Points of Interest: civil procedure, class action, M. R. App. P. 6
2021 MT 280
Carter v. Badrock Rural Fire Dist.
A defendant completing service of its answer one day past the deadline of M. R. Civ. P. 12 does not require a district court to enter a default judgment in favor of a plaintiff.
Plaintiffs served a quiet title action complaint on Defendants. Twenty-two days later—one day beyond the time limit for service of an answer under M. R. Civ. P. 12—the Defendants completed service of their answer. Plaintiffs later moved for a default judgment due to the Defendants’ answer being one day late, which the district court denied.
On appeal, the Supreme Court affirmed the district court’s denial of the plaintiffs’ motion for default judgment. The plaintiffs were not prejudiced by the one-day delay and had not even moved for default prior to the defendants filing their answer.
Points of Interest: civil procedure, default judgment
2021 MT 281
Defendant’s trial counsel provided ineffective assistance of counsel by failing to identify that the State’s charging documents amounted to ex post facto application of the Montana Criminal Code. The remedy was not to acquit the Defendant for insufficient of evidence, but to remand for corrected charging documents and a new trial.
Defendant was charged with three counts of sexual misconduct against three minors. Count I was based on a statute that went into effect in October 2015 while one of the alleged incidents occurred in July 2015. Count II and Count III were based on conduct that occurred prior to the effective date of the statute under which the charges were brought. Trial counsel failed to identify the ex post facto application of the law for all three counts. The jury convicted defendant on all three counts.
On appeal, the Supreme Court concluded that it was impossible to determine whether the July 2015 or 2016 incident led the jury to convict defendant of Count I. Counsel committed ineffective assistance of counsel for which there was no reasonable justification by failing to recognize that, as to the 2015 allegation, defendant was being prosecuted under a statute that did not apply and carried a substantially more severe penalty. The correct remedy for the ex post facto application for Counts II and III was a new trial due to defective charging documents, not acquittal based on insufficient evidence.
Points of Interest: ineffective assistance of counsel, ex post facto
2021 MT 287
McDonald and a group of plaintiffs sued the Secretary of State, alleging that a law passed by the 2021 Legislature was unconstitutional and seeking to enjoin the Secretary from acting to carry it out. They served the Secretary of State, but they did not serve the Attorney General’s office and instead only sent a “notice of constitutional challenge.” Such notices inform the Attorney General of suits that implicate state laws but are not the same as service of process on the State. Later, when the Attorney General’s office notified the plaintiffs that service was incomplete, the plaintiffs provided and executed a service acknowledgment.
The Secretary moved to substitute the District Court judge presiding over the case. Montana law gives parties an entitlement to such a request within 30 days of service of process. The Secretary filed her motion more than 30 days after she was served, but less than 30 days after service was perfected on the Attorney General’s office. The District Court denied the motion, holding that only the date of service on the Secretary mattered.
The Supreme Court reversed, noting that a lawsuit against a state officer in an official capacity is governed by the service of process rules that apply to service against the State, which require service on the Attorney General’s office as well as the officer. The complete service that started the 30-day substitution clock did not occur until both were properly served.
Points of Interest: civil procedure, service, substitution
2021 MT 288
Defendant’s claim that trial counsel was ineffective for failing to object to prior consistent statements from a forensic interview at trial could not be reviewed on appeal due to an insufficient record.
Mikesell was charged with felony sexual intercourse without consent for conduct involving D.T. After disclosing the conduct, D.T. was forensically interviewed. Before Mikesell’s trial, the State and defense counsel agreed to introduce D.T.’s forensic interview video if D.T.’s trial testimony was inconsistent. D.T.’s trial testimony contained several inconsistencies, and the video was introduced. Defense counsel asked several questions to elicit inconsistencies and highlighted those inconsistencies in their closing argument. Mikesell was convicted.
On appeal, Mikesell argued he received ineffective assistance of counsel. The Supreme Court affirmed his conviction. The Court noted the inconsistencies between D.T.’s forensic interview and trial testimony and defense counsel’s questioning. The record failed to fully explain defense counsel’s failure to object to the forensic interview video. Based on the record, the Court declined to speculate as to defense counsel’s tactics. The Court dismissed Mikesell’s ineffective assistance of counsel claim without prejudice.
Points of Interest: ineffective assistance of counsel, record on appeal
2021 MT 289
District court erred in finding that an insured was not entitled to under-insured motorist coverage (“UIM”) under a policy exclusion as the policy exclusion violated public policy by relying upon an unattainable condition precedent.
Goss was injured by a car-driver’s negligence while he was riding his motorcycle. Goss’s insurer denied him UIM and medical payment (“MP”) coverage because Goss’s motorcycle was not insured for UIM coverage under the policy, and Goss’s use of the motorcycle excluded him from what constitutes a “covered person” under the MP provision. The district court affirmed the validity of these exclusions.
On appeal, the Montana Supreme Court reversed the District Court as to the UIM coverage. The UIM exclusion removed coverage “while occupying, or when struck by, any motor vehicle owned by [the insured] which is not insured for UIM [coverage] under this policy.” The carrier justified this provision as ensuring that individuals insure all their vehicles appropriately and, for example, only insuring one out of seven owned vehicles and reaping the portable UIM benefits under the policy for a single vehicle. Since the insurance carrier did not insure motorcycles, Goss could not insure all his vehicles under the policy. The provision was theoretically permissible, but under these circumstances violated public policy because it conditioned coverage upon an impossibility—the insured purchasing coverage for a vehicle with the carrier that the carrier did not provide. The Court affirmed the District Court regarding the MP coverage exclusion because it excluded motorcycles by definition, which is a permissible limitation on non-mandatory coverage Goss and USAA freely contracted for.
Points of Interest: insurance, contracts
2021 MT 291
Youth is a mitigating sentencing factor, not a consideration for the jury when determining a youth offender’s guilt or innocence. Additionally, because J.W. was the alleged perpetrator of the charged offense of sexual intercourse without consent, J.W.’s proposed age of consent jury instruction was not legally relevant to the jury’s fact-finding mission.
A youth court jury convicted 14-year-old J.W. of the offense of sexual intercourse without consent, a felony if committed by an adult. At trial, J.W. presented the affirmative defense of consent, and argued that the 16-year-old victim only reported the incident months later to avoid being charged with statutory rape.
Prior to deliberation, the Youth Court refused to give a set of J.W.’s proposed jury instructions that would have allowed the jury to consider J.W.’s youth characteristics when determining culpability. The court also refused to instruct the jury on the legal age of consent.
On appeal, the Supreme Court held that neither denial was an abuse of discretion. The Court declined to extend its holding in Steilman v. Michael, 2017 MT 310, 389 Mont. 512, 407 P.3d 313, to a youth court jury’s determination of culpability. In Steilman, the Court held that “children are constitutionally different from adults for purposes of sentencing under the Eighth Amendment.” The Youth Court did not abuse its discretion when it refused to instruct the jury on the statutory age of consent because the instruction had no legal basis within the context of the case. Only victims can be incapable of consenting, and the age of the perpetrator or youth offender is not an element of the offense of sexual intercourse without consent.
Points of Interest: affirmative defenses, consent, Youth Court
2021 MT 292
Hathaway v. Zoot Enterprises, Inc.
As long as an employer provides a fired employee a copy of its internal grievance procedures, it has provided notice of those procedures for purposes of the WDEA.
Zoot fired Hathaway in 2019, providing him at that time with a policy handbook that contained Zoot’s internal grievance procedure. Hathaway sued for wrongful discharge. Hathaway also submitted an age discrimination claim to the Montana Human Rights Bureau, but the HRB dismissed the case. Afterwards, Hathaway asked the District Court for leave to add an age discrimination claim to his wrongful discharge case.
Zoot moved for summary judgment on the wrongful discharge count. Hathaway responded that Zoot should have more forcefully notified him of the grievance process, and he argued he shouldn’t have to follow the process if it would only be another plea to the same managers who fired him. The District Court granted summary judgment to Zoot, ruling that Hathaway had failed to first pursue Zoot’s internal grievance process as the WDEA requires. The District Court also denied Hathaway leave to add an age discrimination claim, noting it would be futile considering the proceedings thus far.
On appeal, the Supreme Court affirmed the judgment dismissing the wrongful discharge count. It also affirmed the denial of Hathaway’s request to add an age discrimination claim to his District Court case; although the legal standards that rendered his potential claim futile would differ slightly under state and federal discrimination statutes, the presence of good cause for the firing, which Zoot had demonstrated in the wrongful discharge case, would defeat an age discrimination claim under either law.
Points of Interest: employment law, wrongful discharge, human rights
2021 MT 293
Trial courts are not necessarily required to advise defendants of their right to testify, nor make a record inquiry and determination in order to infer that a defendant’s waiver of the right to testify through counsel was knowing, voluntary, and intelligent.
The State charged Abel with partner or family member strangulation. At trial, outside of the presence of the jury, the District Court twice addressed Abel’s counsel, with Abel present, and asked whether Abel intended to testify. After an overnight recess and a conferral with Abel, defense counsel advised the court that Abel would not offer any witness testimony. Abel was found guilty.
Abel appealed his subsequent judgment and sentence, asserting for the first time that the District Court had erred in accepting his counsel’s representation that he wished to waive his right to testify and preserve his right to remain silent.
The Supreme Court affirmed, holding that the District Court had not committed plain error in accepting defense counsel’s representations. The constitutional requirement that a waiver of the right to testify be knowing, voluntary, and intelligent does not necessarily require the trial court to explicitly advise defendants of their right to testify or make a record inquiry and determination as to whether the waiver was knowing, voluntary, and intelligent. The Court found no record indication that Abel’s ability to understand his right to testify and the consequences of not testifying was impaired or that his attorney had failed to provide him with adequate counsel on the issue or otherwise improperly coerced or prevented him from exercising his right.
Points of Interest: 5th Amendment, plain error, waiver
2021 MT 294
In the Matter of C.L., A Youth
In a criminal matter involving a youth’s alleged violation of a consent decree, the Youth Court’s dispositional orders were reversed and remanded because the State violated Montana’s Youth Court Act by failing to reinstate the youth’s formal youth court petition before continuing formal proceedings.
In August 2018, the State filed a youth court petition against C.L., a minor, charging him with felony criminal mischief. In December 2018, C.L. entered a “consent decree,” pursuant to Montana’s Youth Court Act, § 45-5-1501, MCA, which suspended C.L.’s original youth court petition and subjected him to probation conditions for one year. In July 2019, the State petitioned to revoke probation, alleging C.L. had violated the conditions of his consent decree. C.L. moved to dismiss the State’s petition, arguing the State failed to move to formally reinstate C.L.’s youth court petition, as required under § 45-5-1501(4), MCA. The Youth Court denied C.L.’s motion to dismiss. In a January 2020 dispositional order, the Youth Court granted the State’s motion to revoke C.L.’s probation and ordered that C.L. receive a suspended sentence to DOC, subject to new probation conditions. In February 2020, in response to new allegations about C.L.’s behavior, the State filed a second motion to revoke probation. In July 2020, the Youth Court issued a dispositional order which revoked C.L.’s suspended sentence and committed C.L. to Pine Hills Youth Correctional Facility.
On appeal, the Montana Supreme Court reversed, vacating the two dispositional orders and remanding for an entry of order dismissing the State’s July 2019 and February 2020 petitions to revoke probation. Section 45-5-1501(4), MCA, requires the State to move to reinstate the original youth court petition against a youth in response to that youth’s alleged violation of a consent decree. Because the State never moved to reinstate C.L.’s youth court petition, formal proceedings were never properly recommenced, and C.L.’s consent decree remained operative. As a result, the Youth Court did not have the statutory authority to commit C.L. to the DOC and to Pine Hills.
Points of Interest: Youth Court, revocation
2021 MT 295
The Montana Incentives and Interventions Grid (MIIG) and the distinction between compliance and noncompliance violations in § 46‑18‑203, MCA, do not apply to revocations of misdemeanor suspended or deferred sentences.
The Municipal Court revoked Sadiku’s deferred sentence for violating an order of protection and imposed a six-month suspended sentence.
On appeal, Sadiku argued that, his violation was a “compliance violation,” and, therefore, the court should have exhausted MIIG procedures before revoking his deferred sentence. Sadiku asked this Court to overrule City of Missoula v. Pope, 2021 MT 4, 402 Mont. 416, 478 P.3d 815, holding that the MIIG requirements did not apply to misdemeanor offenders. Sadiku argued that, by its plain and unambiguous language, § 46‑18‑203, MCA, applies to “any offender.”
In Pope, the Court held that the MIIG guidelines apply only to DOC, which supervises only felony offenders. The MIIG provisions in § 46‑18‑203, MCA, therefore, do not affect revocations of misdemeanor sentences. Although § 46‑18‑203, MCA, divides violations of suspended or deferred sentences into “compliance” and “noncompliance” violations, the distinction is of no consequence to misdemeanor offenders. The statute’s omission of misdemeanor revocation processes is confusing, but courts must treat misdemeanor violations as “noncompliance violations” and derive their authority to revoke misdemeanor sentences from § 46‑18‑203(7)(a)(iii), MCA.
Because the Municipal Court properly revoked the deferred sentence, the Court next considered whether the trial court abused its discretion. To revoke a deferred sentence, the court must find that the defendant violated a condition of his sentence by a preponderance of the evidence. Here, the victim testified that Sadiku drove near her work and braked suddenly in front of her. Sadiku claimed that he was driving his son to school. The court found that there were alternate routes available and found by a preponderance of the evidence that Sadiku violated the order of protection. The Municipal Court did not abuse its discretion.
Points of Interest: revocation, MIIG
2021 MT 296
A petitioner’s conviction, not the initial charge, is the dispositive consideration for determining eligibility for expungement or redesignation of a marijuana-related offense under the Montana Marijuana Regulation and Taxation Act. The MMRTA only permits a person to possess an indeterminate amount of marijuana for personal use if that marijuana is produced by plants cultivated and stored in the home in accordance with § 16-12-106(1)(c), MCA.
In 1992, Maier pleaded guilty to possessing over 60 grams of marijuana after challenging the constitutionality of a search by the Billings Police Department that led to the discovery of 32 marijuana plants and equipment in his home. Maier petitioned for expungement or redesignation of his marijuana conviction under the MMRTA’s retroactive provision, which authorizes courts to redesignate or expunge the criminal records of persons who have completed sentences for acts made legal by the new law. The District Court denied Maier’s petition, stating only that Maier was not eligible because his conviction was based on his possession of 32 plants, which exceeds the number of plants permitted by the MMRTA.
On appeal, Maier argued that the court should not be allowed to consider the circumstances of his grow operation because he was never convicted of that initial charge. The Supreme Court agreed that a petitioner’s conviction is the dispositive consideration for determining eligibility for expungement or redesignation of a marijuana-related offense under the MMRTA. However, neither § 16-12-106(1)(a), MCA, nor § 16-12-106(7), MCA, permits a person to possess more than two ounces of marijuana. While § 16-12-106(1)(c)(i), MCA, permits possession of an indeterminate amount of marijuana in a private residence, that provision only applies to marijuana produced by plants cultivated within the parameters of § 16-12-106(1)(c), MCA. Converted to standard weight, 60 grams is 2.12 ounces. Thus, on its face, Maier’s conviction for possessing over 60 grams of marijuana does not qualify for expungement or redesignation under the MMRTA.
Points of Interest: MMRTA, expungement
2021 MT 300
The State is covered by an insurance policy entered into with National Indemnity Company for claims against arising from exposure to asbestos in Libby, and National breached its duty to defend the State pursuant to that insurance contract.
National insured the State under a general liability policy from 1973–1975. Beginning in 2000, claims against the State regarding asbestos exposure before, during, and after that time period began to be filed, and the State began a series of discussions with National regarding whether coverage was available under the policy and if National had any duty to defend the State against the claims. In 2012, National filed this action, arguing it had no obligation to defend or indemnify the State; the State counterclaimed alleging National failed to defend the State pursuant to the terms of the policy. In a series of rulings, the District Court essentially concluded that National breached its duty to defend and, after a period of properly defending the state, breached its duty again by waiting until 2012 to file this action. The court generally rejected National’s coverage defenses but the Policy was applied “to the extent [a] claimant was ‘exposed to asbestos during the Policy period.’”
On appeal, the Supreme Court concluded that the State did not initially tender defense to National until 2005. But when it did so, National breached its duty to defend by representing it would only defend the State against the claims on a pro rata basis. National then changed its position and agreed to fully defend the State in May 2006, subject to a reservation of rights. The State rejected this offer. After that rejection, the State, National, and the claimants continued negotiations regarding a global settlement, which was entered into in 2009. National’s delay in not filing this action until 2012 prejudiced the State by forcing it to “litigate and settle cases in coverage darkness,” and constituted a breach of National’s duty to defend the State.
The District Court correctly concluded that coverage exists under the policy. None of the policy’s coverage exclusions applied, and the State did not objectively intend or expect its actions to lead to injuries. Thus its actions qualified as “occurrences” under the policy. The District Court incorrectly determined of the number of “occurrences” because each of the State’s individual failures to warn constitutes an “occurrence” under the policy and it erred by holding that claimants who were exposed only before the policy period did not qualify for coverage. The Supreme Court remanded the matter for further findings regarding how many failures to warn occurred and the effect those failures had relative to the policy limits as well as additional findings regarding any injuries incurred before the policy period.
The Supreme Court further concluded that the District Court correctly calculated the pre-judgment interest available to the State in the amount of $31 million.
Points of Interest: insurance, duty to defend, pre-judgment interest
2021 MT 301
Despite the prosecution’s error in questioning Defendant about a prior strangulation for the first time on cross-examination, admission of prior bad acts testimony on rebuttal was harmless error because Defendant was acquitted on strangulation and sufficient other evidence supported his PFMA conviction.
Torres was charged with two counts of PFMA and one count of strangulation for alleged violence against his girlfriend. Aspects of the charged events were uncontested from Torres’s and the alleged victim’s testimony, photographic evidence of her injuries, and witness corroboration. However, Torres claimed that one of the PFMA incidents was accidental, not intentional. Torres also testified that the alleged victim and another ex-girlfriend had fabricated abuse accusations to smear his reputation online. On cross-examination, the prosecutor erred by questioning Torres about prior strangulations. He categorically denied any such acts, which the prosecution claimed opened the door to calling his ex-girlfriend as a rebuttal witness and to her testimony about a prior uncharged alleged strangulation. The District Court permitted the ex-girlfriend to testify. A jury convicted Torres of PFMA for a headbutting incident but was unable to reach a verdict on the other PFMA. The jury acquitted Torres of strangulation.
Torres appealed his conviction on the headbutting PFMA on grounds the surprise rebuttal by the State violated statutory pre-trial notice requirements and his substantial trial rights by impeding his ability to prepare for cross-examination. The Supreme Court affirmed, holding that, while the prosecution’s line of questioning was in error, the admission of the ex-girlfriend’s testimony about a prior strangulation was harmless. The jury acquitted Torres on the strangulation charge. The Court held that the jury did not convict Torres on the headbutting PFMA out of prejudicial hostility or sympathy. The record contained sufficient independent evidence to support the conviction.
Points of Interest: prior bad acts, PFMA, sufficiency of evidence
2021 MT 302
The statutory requirement for a defendant to make full restitution to any victim does not relieve the State of the separate statutory requirement to pay certain witness fees and travel expenses to a victim who is subpoenaed as a witness on behalf of the State.
Lamb pleaded guilty via an Alford plea to negligent homicide after a mistrial. The State subpoenaed the father of the homicide victim to testify during trial. The victim’s father sought restitution from Lamb under § 46-18-243(1), MCA, for lost wages and travel expenses related to attending various court proceedings. Lamb objected, alleging the State was obligated to pay certain fees and costs for its subpoenaed witnesses pursuant to §§ 26-2-506 and 46-15-116, MCA. The District Court ordered Lamb to pay the full restitution amount requested.
The Montana Supreme Court reversed and remanded for further factfinding. While the statutes governing restitution and those governing fees for witnesses may overlap under certain circumstances, they are capable of being harmonized. When a crime victim is subpoenaed as a witness for the State, any pecuniary loss the victim witness incurred in attending court proceedings is offset by the witness fee and travel allowance paid by the county under §§ 26-2-501 and 46-15-116, MCA. The witness who is also a victim of the crime may recover any remaining additional expenses reasonably incurred in attending the proceedings, as well as any lost wages, from the offender through a restitution order under § 46-18-241, MCA. The Court remanded for further factfinding, as the record was not sufficient to determine whether the witness fee and travel allowance that should have been paid by the county was included in the restitution request.
Points of Interest: restitution, witness fees
2021 MT 303
Even though the drug substance was never recovered or tested by law enforcement, the State presented sufficient evidence for a jury to convict Defendant of criminal distribution of dangerous drugs by offering substantial circumstantial and corroborating evidence to support the testimony of a minor who claimed Defendant provided him with methamphetamine. Defendant was not deprived of his right of allocution when the court delegated the timing of his statement to his counsel.
A minor disclosed to police that McCoy had provided him with methamphetamine and they had smoked the drug together over a period of months in McCoy’s home. A jury convicted McCoy of Criminal Distribution of Dangerous Drugs. At McCoy’s sentencing, the District Court asked his counsel if McCoy would like to make a statement and his counsel said he would. The court told counsel it would leave the timing of McCoy’s personal statement up to him. Both parties presented oral and written arguments, but McCoy never made a personal, oral statement to the court. McCoy appealed his conviction, asserting lack of sufficient evidence to prove the drug was methamphetamine. He also appealed his sentence, claiming the court denied him an opportunity for allocution, resulting in a sentence that violated the sentencing statute and constitutional principles of due process.
On appeal, the Supreme Court held that the State presented sufficient evidence to convict because multiple witnesses, including McCoy, corroborated the majority of the minor’s testimony, including the effects of the drug and the method of smoking. The consistent presence of methamphetamine in McCoy’s home during the months alleged by the minor was testified to by every witness. Despite the minor being the only witness to testify directly to McCoy providing him methamphetamine, a single witness’ testimony is sufficient for a jury to reach a factual conclusion.
Considering the allocution question, § 46-18-115, MCA, requires the court to personally address the defendant to see if he wants to make a statement, and then give him a reasonable opportunity to do so. McCoy had multiple chances throughout the sentencing hearing to allocute, as the timing was left to his counsel and him. McCoy had the opportunity to present mitigating circumstances through his briefing and during oral argument; his due process rights were not violated.
Points of Interest: due process, allocution, sufficiency of evidence
2021 MT 306
Evidence of flight from a rehabilitation center three weeks after the commission of the charged offense was relevant and admissible evidence.
Strizich was arrested for burglarizing a cabin with an armed acquaintance. After his arrest, he was taken to the Elkhorn Healthcare and Rehabilitation Center to recover from a gunshot wound sustained during the burglary. Three weeks later, he escaped Elkhorn with help from friends, resulting in a high-speed chase. The driver of the escape vehicle later admitted to criminal endangerment in Youth Court.
At Strizich’s trial, the State introduced evidence of his flight. A witness from Elkhorn testified to the nature of his escape, and two Deputies testified about the high-speed chase. The court took judicial notice of the getaway driver’s related Youth Court conviction and read a portion of the order to the jury. Strizich’s trial attorney objected repeatedly on the grounds that this was irrelevant and improper character evidence.
On appeal, Strizich argued that this evidence was improperly admitted and further argued that it unfairly prejudiced him. The Supreme Court rejected Strizich’s unfair prejudice argument because it was not preserved. It further held that evidence of flight is generally relevant because it tends to show the defendant’s consciousness of guilt. Here, Strizich’s flight was accompanied by other factors showing consciousness of guilt, including the high-speed chase and the fact that he fled soon after learning that he would be arrested for the burglary. This evidence, along with Strizich’s testimony that he fled to avoid the legal ramifications of the burglary, could allow a jury to reasonably infer Strizich’s attempt to avoid prosecution—consciousness of guilt.
The Court also rejected Strizich’s unpreserved claim that he was prejudiced by the court’s jury instructions because they did not correctly instruct on the mental states for the charged crimes. Taken as a whole, the instructions fully and fairly instructed the jury on each mental state definition as it applied to the elements of the offenses, and he failed to demonstrate plain error. The Court affirmed Strizich’s convictions of aggravated burglary, criminal trespass to property, and criminal possession of dangerous drugs.
Points of Interest: relevance, sufficiency of evidence, jury instructions
2021 MT 307
In reviewing whether a prosecutor’s opening and closing arguments constitute a plain error denial of due process, the Court considers the challenged statements in the context of the entire proceedings. An unsworn sentencing memorandum did not provide a sufficient record for the Court to review claims of ineffective assistance of counsel on direct appeal.
Polak was convicted upon retrial of the charge of deliberate homicide. Before trial, the District Court granted Polak’s motion in limine to limit evidence of his prior drug offenses and use.
On appeal, Polak argued the State engaged in prosecutorial misconduct and his trial counsel provided ineffective assistance. Polak maintained the State’s discussion of methamphetamine from voir dire through its rebuttal was blatantly prejudicial and implied Polak used drugs in violation of the motion in limine. As Polak failed to object at trial, the Supreme Court reviewed the challenged statements for plain error. The Court considered the context of the entire proceedings and explained it reversed Polak’s first appeal because the District Court abused its discretion in curtailing impeachment of the only eyewitness to the fatal shooting with evidence of her contemporaneous drug use. The State properly sought to prepare the jury for the expected focus on the eyewitness’s drug use and explain her actions in the aftermath of the shooting. As these statements in context were proper, the Court also held trial counsel did not provide ineffective assistance of counsel by failing to object to the statements at trial. The Court declined to review Polak’s other claims of ineffective assistance of counsel on direct appeal. The Court held the unsworn sentencing memorandum in which trial counsel identified things that she “wish[ed]” she would have done differently did not provide a sufficient record to review the remaining claims, as it did not answer why she did or did not take the challenged actions. The Court affirmed Polak’s conviction.
Points of Interest: prosecutorial misconduct, ineffective assistance of counsel, prior bad acts
2021 MT 308
A Special Master appointed to determine whether a court-appointed receiver could condition return of property upon the execution of a release acted within his authority when he determined a release was unnecessary because the receiver was protected by judicial immunity. However, he exceeded his authority when he further purported to grant immunity to the receiver for specific actions undertaken.
A Receiver appointed by a district court to protect the assets of an LLC changed the locks on a building owned by the LLC. PF2, which was not a party to that dispute, contacted the Receiver and demanded return of certain equipment which PF2 claimed it had purchased from one of the building tenants. PF2 threatened to sue the Receiver for conversion. Although PF2 ultimately demonstrated to the Receiver’s satisfaction that it owned the equipment at issue, it refused to sign a release of liability for the Receiver and the Receiver refused to return the property without a signed release. PF2 intervened in the underlying litigation for the limited purpose of seeking return of its property. The District Court then appointed a Special Master to resolve the disputes concerning the return of PF2’s property.
The Special Master determined no release was necessary because court-appointed receivers are protected by judicial immunity for acts taken in good faith and within the authority conferred upon them. The Special Master also granted the Receiver immunity for the actions concerning PF2’s property because the Special Master concluded that the Receiver had done so in good faith and within his authority.
On appeal, PF2 argued the Special Master exceeded the scope of his authority because neither party had argued that receivers are protected by judicial immunity and by granting the Receiver immunity in this instance. The Supreme Court concluded that the question of whether the Receiver could condition return of property on the signing of a release was one of the disputes the District Court appointed the Special Master to resolve and therefore his conclusion that the Receiver is protected by judicial immunity was within the scope of his authority. Moreover, this conclusion was legally correct. However, the Special Master exceeded his authority by granting the Receiver immunity for the specific actions undertaken here because the court did not appoint him to determine whether the Receiver’s actions concerning PF2’s property were undertaken in good faith and within his authority.
Points of Interest: receiver, special master, immunity
2021 MT 309
For survival actions that accrued prior to the enactment of § 27-1-308, MCA (2021), a plaintiff may not recover the reasonable value of medical care and related services when the costs of such care and services are written off under the provider’s charitable care program.
The Ninth Circuit Court of Appeals certified two questions: (1) whether, prior to the enactment of § 27-1-308, MCA (2021), a plaintiff in a survival action could recover the reasonable value of medical and related services when such costs are written off by the medical provider; and (2) whether a charitable care write-off qualified as a “collateral source” prior to the enactment of § 27-1-308, MCA (2021).
Gibson visited the Central Montana Community Health Center, a federally funded health care center, after experiencing symptoms consistent with a heart attack. The Center’s staff did examine him for potential heart issues, and he died from a heart attack one week later at St. Vincent Hospital. St. Vincent and the ambulance provider did not bill or Gibson’s family or estate, instead writing off the value of his care under their charity care programs. Gibson’s estate sued the government under the Federal Tort Claims Act for the Center’s negligence and was awarded $578,248 in damages. The Estate also sought to recover $165,661.50 from the government for the value of medical care Gibson received from St. Vincent and the ambulance provider.
The Court answered “no” to both questions. Although the Estate argued that, under Meeks v. Montana Eighth Judicial District Court, plaintiffs are entitled to recover forgiven medical bills, Meeks held that the reasonable value of written-off medical costs is admissible as evidence to show the nature and severity of the plaintiff’s injuries; it did not determine whether the costs were recoverable. Here, Gibson’s medical and ambulance bills were forgiven by the providers, and the hospital sent the estate a bill showing a balance of zero. Because the Estate did not suffer $165,661.50 in losses, it cannot recover that amount in damages.
Prior to the enactment of § 27‑1-308, MCA (2021), a “collateral source” was defined as “a payment for something that is later included in a tort award and that is made to or for the benefit of a plaintiff or is otherwise available to the plaintiff.” Interpreting the statute’s words according to their ordinary meaning, the Court held that the charitable write-offs were not a “collateral source” because neither was a “payment for something that is later included in a tort award.”
Points of Interest: certified question, torts, damages
2021 MT 312
A general objection at sentencing regarding a defendant’s ability to pay fines and fees is sufficient to invoke the protection of statutes that require courts to inquire into financial means. Financial charges for imprisonment, probation, and treatment costs are also conditioned on a defendant’s ability to pay, but a court may defer determinations about that ability until imprisonment, probation, and treatment terms are complete.
Yeaton pleaded guilty to DUI. The District Court imposed a $5000 fine, $560 in fees and costs, and the yet-unknown costs of alcohol treatment, imprisonment, and probation.
On appeal, Yeaton challenged these financial penalties, based on his inability to afford them because his only income came from social security. During the pendency of Yeaton’s appeal, State v. Ingram, 2020 MT 327, settled Yeaton’s argument that the penalties violated social security protections.
The Supreme Court upheld Yeaton’s $5000 fine because his counsel conceded it was mandatory and thus not subject to the requirements of the ability-to-pay laws. The Court reversed the $560 in fees and costs, which arose under general criminal sentencing statutes. Under these laws, courts may only issue such fees and costs following inquiries into a defendant’s ability to pay, as long as a defendant objects on these grounds. Yeaton’s general complaint about affordability, even though he focused on the social security issue and did not cite the applicable statutes, was sufficient to constitute an objection.
The Court further upheld the District Court’s ruling that Yeaton pay his treatment, imprisonment, and probation costs “if financially able”—meaning the Department of Corrections would later assess his ability to pay after the costs accrued and the amount was clear. The Court rejected Yeaton’s argument that the sentencing court should not be able to defer such findings.
Points of Interest: fines, ability to pay, sentencing conditions
2021 MT 317
Kasem v. Mont. Thirteenth Judicial Dist. Court
Court allowance of withdrawal of a guilty or nolo plea mid-trial is also effectively a grant of a new trial for the purposes of a motion to substitute judge.
Following a “heated exchange” between court and counsel on the third day of his jury trial, Kasem signed the State’s offered plea agreement and changed his plea from not-guilty to “no-contest.” The District Court accepted the change of plea and unconditionally dismissed the jury. Prior to sentencing, Kasem sought leave to withdraw his plea. By written order, the court granted the unopposed motion and set the matter for a jury trial. However, the court subsequently denied Kasem’s motion for peremptory substitution of judge on the grounds that there had been no order for a “new trial” entitling him to substitution under § 3-1-804, MCA.
On a petition for writ of supervisory control, the Supreme Court determined that the District Court proceeding commenced with the empaneling and swearing in of the jury and categorically ended with Kasem’s change of plea and dismissal of the jury. Kasem’s second trial would begin anew with a new jury. Under State v. Terronez, 2017 MT 296, 389 Mont. 421, 406 P.3d 947, district court allowance of a pre-sentence withdrawal of a mid-trial guilty or nolo plea was effectively the grant of a new trial. The Court granted Kasem’s petition and reversed the District Court’s denial of his substitution motion.
Points of Interest: substitution, new trial, supervisory control
2021 MT 318
Under Article II, Section 24, of the Montana Constitution, a court cannot allow a witness to testify by two-way video unless the State demonstrates an important public purpose beyond judicial economy: Expense and burden of travel are insufficient.
Martell was charged with theft after cashing a fictitious and altered check at a check cashing company. Prior to trial, the State moved to allow a witness from the company that issued the check to testify via two-way video because her testimony would last only a few minutes, and the State would have had to transport her 481 miles to testify in person. The District Court granted the motion, finding that travel would be “impractical.” At trial, the witness testified via two-way video that the company had never done business with Martell.
A majority of the Supreme Court held that the District Court violated Martell’s right to confront witnesses under Article II, Section 24 of the Montana Constitution. Reiterating its holdings in State v. Mercier, and State v. Bailey, the Court found that judicial economy alone is not a public policy reason sufficient to preclude the constitutional right of a defendant to face-to-face confrontation at trial.
A plurality of the Court held the District Court’s error to be harmless. The testimonies of the check cashing employee, a bank representative, and the investigating detective, along with a call log from the check cashing employee all provided cumulative evidence.
In a special concurrence, Justice Sandefur and Chief Justice McGrath disagreed with the plurality’s conclusion that the error was harmless. The concurrence, however, would have concluded that the District Court did not err in allowing the witness to testify via two-way video under the Confrontation Clause. Therefore, the Court upheld Martell’s conviction.
Points of Interest: confrontation clause, witnesses, video testimony
2021 MT 319
East Bench Irrigation Dist. v. Open A Ranch
Water Court’s decrees for the U.S. Bureau of Reclamation’s water rights were reasonable, statutorily sufficient, and correctly applied Montana water law. The court correctly removed factually inaccurate “curtailment” remarks from related private water rights in the Beaverhead River valley.
Open A Ranch contested the Bureau of Reclamation’s water rights for Beaverhead River direct flow and Clark Canyon Reservoir storage as listed in the 41B Basin’s preliminary decree. The Bureau’s rights stemmed from Reservoir construction under the 1944 Pick-Sloan Flood Control Act. Repayment for the federal project involved contracts to deliver Reservoir water between the Bureau and the East Bench Irrigation District and the Clark Canyon Water Supply Company.
The Water Court’s decrees capped acreage for the District based on 1970s DNRC aerial photos. The court also determined Company shareholders’ contractual water was intended to irrigate lands already served by shareholders’ preexisting private rights. Thus, it was sufficient under § 85-2-234(6), MCA, to define one place of use for the Bureau’s Reservoir claim as the lands served by Company shareholders’ private water without further describing specific acreage or boundaries. A case of first impression, the court crafted this solution to accommodate pending adjudication of shareholders’ rights and evidence shareholders had always contractually received their supplemental Reservoir water combined with their private water, making it impossible to separate which lands the Bureau’s water served. On partial summary judgment, the court also found remarks on Company shareholders’ private rights indicating these could be “curtailed” for Reservoir storage pursuant to a 1958 delivery contract were inaccurate because that contract expired and the 2006 renewal contract contained no such provisions. The court removed such remarks from all affected claims.
On appeal, Open A argued the Water Court erred by not limiting the District’s and the Company’s acreage to 1960 congressional estimates for the reclamation project. Open A also contended a specific land description for the Company’s place of use was statutorily required and argued curtailment remark removal was error.
The Supreme Court affirmed, holding the Water Court had correctly interpreted Montana water law for entities impounding water for sale. The Water Court appropriately weighed historic evidence, correctly interpreted the water delivery contracts, and that substantial evidence supported the Water Court’s rulings on the District’s and the Company’s places of use and the curtailment remarks. The Water Court’s decrees for the Bureau’s claims met statutory obligations to sufficiently describe rights for enforcement.
Points of Interest: water law, water rights
2021 MT 320
Although a prosecutor’s statements at trial improperly referenced defendant’s criminal history, the District Court did not err in denying mistrial because the context of the charge necessarily included inferences of criminal history, thus mitigating the prejudicial impact of the statements.
Erickson was charged with Assaulting a Peace Officer after pulling a knife on his probation officer during an appointment. Prior to trial, his attorney moved in limine to exclude references to his criminal history. The prosecutor offered that the State only wanted to be able to tell the jury Erickson was on probation at the time of the offense, given the context of the charge, and the District Court agreed to the limited reference.
At trial, the prosecutor emphasized that Erickson was on felony probation in his opening statement. He also questioned a witness in a way that led her to reveal to the jury that Erickson had served time in prison. Erickson’s counsel moved for mistrial based on these statements, but the court denied the motion.
On appeal, the Supreme Court found the prosecutor’s statement and conduct improper: he purposely violated the limine order by bringing attention to the felony nature of Erickson’s prior crimes and by eliciting improper information about his time in prison from a witness. However, the Court upheld the District Court’s decision to deny a mistrial. There was strong evidence in favor of Erickson’s conviction, without regard to the improper statements, including his own admissions while testifying. Although the statements were inherently prejudicial, the prejudicial effect was significantly lessened by the jury necessarily knowing Erickson was on probation, inevitably leading them to infer he had a criminal history. The prejudicial effect was further lessened by Erickson’s own testimony that his actions were motivated by a desire to “not go back to jail.” Furthermore, the District Court gave a cautionary instruction that addressed the prejudice concerns and instructed the jury not to consider Erickson’s criminal history.
Points of Interest: prosecutorial misconduct, mistrial, jury instructions
2021 MT 321
At sentencing, a general objection regarding a defendant’s inability to pay a fine or fee is sufficient to invoke the inquiry requirements of §§ 46-18-231 and -232, MCA, even without specific objection to each applicable fine or provision.
A jury found defendant Steger guilty of a DUI offense. At sentencing, the District Court conducted a brief colloquy with Steger and his counsel about Steger’s ability to pay public defender fees as outlined in his presentence investigation report. Steger and his counsel described Steger’s physical disability and difficulty affording such costs, and the District Court waived them.
On appeal, Steger argued that the District Court should also have waived the $500 surcharge it imposed under § 46‑18‑236, MCA, which is also subject to the ability-to-pay requirements of § 46-18-232, MCA. A court’s failure to conduct an inquiry into a defendant’s ability to pay costs and fees renders the sentence merely objectionable, not illegal, so the issue Steger raised was whether the exchange about the public defender costs was also a sufficient objection to the surcharge. The Supreme Court held that it was sufficient and held that the District Court erred by imposing the costs without the inquiry required under § 46-18-232, particularly when faced with the initial indication of unaffordability that had arisen.
Points of Interest: fines, ability to pay
2021 MT 323
An attempted deliberate homicide conviction requires an overt act beyond merely having a weapon.
Boyd was ejected from a Miles City bar by the bar owner. Boyd then started a verbal altercation outside the bar in which he repeatedly tried to get the owner to hit him. Eventually, Boyd said to the bar owner, “Are you going to give me one shot? You wait right here. I will be back. You're going to give me one shot? I will be back.” Boyd then went to his second-floor apartment across the street, retrieved a ten-inch knife, and concealed it down his pants. While Boyd was in his apartment, a police officer, who noticed the verbal altercation, arrived and began talking to the bar owner. The bar owner saw Boyd standing on the second-floor landing outside of his apartment and called him down to speak with the officer. Boyd came down, spoke with the officer, and then resisted arrest. Once Boyd was in the back of the police car, the concealed knife was discovered. When asked what he planned to do with the knife, Boyd stated he was going to stab the bar owner in the heart. Boyd was charged with, and convicted of, attempted deliberate homicide.
On appeal, the Supreme Court reversed the conviction due to insufficient evidence. Not all acts towards the commission of a crime are sufficient for an attempt conviction, and that there must be an “overt act” which amounts to the “commencement of the consummation” as well as “some appreciable fragment of the crime committed” to convict a defendant of attempt. Here, while Boyd had threatened the bar owner and retrieved a weapon, the bar owner was in no danger of actually being murdered because Boyd was on the second-floor landing across the street and then voluntarily came down when called to speak with the officer. Though Boyd prepared to commit murder by getting the knife, he did not make an attempt to complete the crime by trying to use it on the bar owner.
Points of Interest: attempt, sufficiency of evidence
2021 MT 324
When a law enforcement officer who initiates a traffic stop on a public road follows the driver into his or her driveway to effectuate the stop, the intrusion is minimal. However, a person has a reasonable expectation of privacy in that driveway once the person communicates that the officer is trespassing and tells the officer to return with a warrant.
Smith sped past a sheriff’s deputy on a county road. The deputy activated his lights and pursued Smith. Smith soon turned onto a 350-foot residential driveway and parked next to the garage. The residence was on five acres surrounded by two fences. Neither fence had “No Trespassing” signs, or closed gates, although the property was secluded from passersby.
The deputy followed Smith into the driveway and advised Smith that he had been speeding. Smith immediately informed the deputy that he was on private property and requested that he return with a warrant. Disregarding Smith’s repeated requests, the deputy continued the stop, requesting Smith’s driver’s license and registration. Eventually, the stop ripened into a DUI investigation. Smith was arrested for DUI, speeding, resisting arrest, and obstructing a peace officer.
Smith appealed the District Court’s denial of his motion to suppress all evidence obtained from Smith’s contact with the officers, arguing he had a reasonable expectation of privacy in the driveway of his residence.
The Supreme Court held Smith had a right to privacy in the driveway of his residence under Article II, Sections 10 and 11, of the Montana Constitution. The physical characteristics of Smith’s property alone did not confer an actual or reasonable expectation of privacy because Smith had not taken steps to communicate his expectation with gates, “No Trespassing” signs, or other means. However, Smith had an actual and reasonable expectation of privacy once he invoked and communicated his expectation of privacy to the deputy. The deputy’s initial entry to effectuate a traffic stop was minimally intrusive because he was ascertaining who lived at the home and whether Smith was the driver. The intrusion became more extensive once Smith explicitly invoked his right to privacy and demanded that the officer get a warrant.
The Supreme Court rejected the State’s argument that Smith’s flight created an exigent circumstance. In light of the United States Supreme Court’s rejection of a general rule that fleeing misdemeanants constitute hot pursuit, and based on the record facts, no evidence of exigent circumstances justified the warrantless entry.
Points of Interest: privacy, constitutional law, traffic stops