Big Sky Blawg

In re The Marriage of Plaisted-Harman – 2009 MT 169

Amber and Thomas were divorced in 2008 and agreed to a joint parenting plan under which Amber was the primary custodian of the children, and Thomas had visitation on alternate weekends, and during the summer and holidays.  Both parents were living in Miles City, Montana at the time of the divorce and the implementation of the parenting plan, but subsequently Amber decided to move to Kalispell, Montana.  Thomas filed a petition to modify the parenting plan to award him primary custody of the children, which the District Court approved ruling that because Amber decided to move to Kalispell, she should be the one who pays the price of reduced parental contact.

SCOMONT ruled, for the first time, “that the right to travel guaranteed by the United States Constitution includes the right to travel within Montana.” Plaisted-Harman, ¶ 11.  It is a fundamental right, and as such a restriction that penalizes persons who exercise the right must be justified by a compelling state interest.  Chief Justice McGrath stated “[t]he District Court may not penalize Amber for exercising her right to travel by removing her as the primary custodial parent of the children, and it was an abuse of discretion to do so.”  Id., ¶ 12.

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State v. Herman – 2009 MT 101

“A potential juror who has formed a fixed opinion about the case before being empaneled is not impartial, and generally should not be seated even though he says he will try to set his opinion aside.”  Herman, ¶ 26.  Because a potential juror in this case participated in 5 or 6 conversations with the County Attorney regarding this case and admitted to already forming an opinion about the defendant’s guilt, the District Court abused its discretion in denying Herman’s challenge for cause.  The judgement was reversed and remanded for a new trial.

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State v. Child – 2009 MT 148

Following a Motion to Dismiss filed by Child, the State submitted its response brief more than ten days later, but still within the timeline for a response brief set by the Omnibus Order’s briefing schedule.  Child argued that under Rule 2 of the Uniform District Court Rules, the “failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken.”  The District Court agreed, and dismissed the case.  (Although irrelevant for the current analysis, it’s worth noting that the order was later rescinded).  Because such an argument would render the dates set in the Omnibus Order meaningless, SCOMOT ruled that the Uniform Rules had no application and reversed the order of dismissal.

Justice Nelson wrote a concurrence chastising  the State for failing to cite any authority in its three paragraph opening brief, and noting how often the State requests that SCOMONT dismiss a defendant’s appeal for failure to do the same.  He goes on to address the District Court’s attempt to rescind its dismissal order noting that “[w]hen a criminal case is dismissed with prejudice, the dismissed information is no longer effective against the defendant and cannot be reinstated.” Child, ¶ 18, citing State ex. rel. Torres v. District Court, 265 Mont. 445 (1994).

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