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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State v. Wilkins – 2009 MT 99

Issue: Whether a person in a parked vehicle is necessarily seized when an officer stops behind the parked vehicle without activating the emergency lights on the patrol car and contacts the person in the vehicle.

Noting that the officer did not initiate the stop of Wilkins’ vehicle, the officer did not impede her liberty by means of physical force or show of authority,  the officer did not have his emergency lights or sirens on, nor did he shine a spotlight into her car – SCOMONT concluded that the stop in a public place did not amount to a seizure.  Because there was no seizure, there was no need to engage in an analysis of particularized suspicion or the community caretaker doctrine.  Without a seizure,  particularized suspicion was not necessary to justify the contact and the evidence obtained from the interaction was admissible.

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State v. Kalal, 2009 MT 103

As a matter of first impression, SCOMONT ruled that in assessing the issue of mitigation for damages in a criminal case, the test is:

What would a reasonable and prudent person be expected to do if capable, under the circumstances?

Kalal pled guilty to stealing a tractor from Petranek and was ordered to pay restitution for the value of the tractor and other items of stolen property (an obligation he fulfilled).  Petranek sought additional restitution for loss of income in the amount of $21,724, his claim as follows:

(1) To build a two and one half mile fence between his ranch property and adjacent BLM land, which would allow his property to be leased for summer grazing.  The ranch property is 75 miles from Petranek’s home.  This resulted in a claim of $5,040 in lost income.

(2) To complete construction of a cabin which could be rented for 60 days a year for $6,000; further the cabin would facilitate leasing his property for hunting and fishing for some $5,764.

(3) To seed 120 acres for grass production and farming.  This resulted in a claim of lost inclome of $4,920.

Kalal, ¶ 3.  On cross-examination, Kalal’s attorney established that there were other tractors to rent, that the price of rental was $130-140 per day, and that Petranek would have needed 9 days to complete the fencing, 7-10 days for the cabin construction, and 20 hours for the seeding.  Kalal contended that Petranek had a duty to mitigate his damages by renting a tractor for $3,080.

The District Court awarded Petranek damages of $15,960 (apparently rejecting the claim for the hunting lease).  On appeal, SCOMONT decided that “given the impracticability and expense of renting and transporting a tractor a long distance for short periods of time, an award of $15,960 for Petranek’s loss of income was reasonable.”  Kalal, ¶ 10.

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The Montana Supreme Court has proposed a series of amendments to the Montana Rules of Appellate Procedure (M. R. App. P.) and published the proposed revisions for comment.  This article is a bit tardy, considering that the period for comment ends today (March. 31) at 5:00 p.m., but the substance of the changes will likely prove relevant for future reference.  The proposals center around reducing the time necessary for SCOMONT to deal with the cases filed each year and deal largely with reducing time limits and word counts.

Below I’ve reproduced the rules bearing actual changes and, where appropriate, reduced the language to save myself some typing (while trying to keep the meaning clear).  Hopefully, these still make sense out of context.  At the bottom of the post I’ve linked to the full set of rules with the proposed changes included.

And finally, I apologize in advance for any typing mistakes in these rules.  If you notice any, please contact me or leave a comment and I’ll fix it.

Rule 4(5)(a)(i): In all civil cases, including proceedings regarding abused or neglected children under Title 41, Chapter 3, the notice of appeal shall be filed with the clerk of the supreme court within 30 days from the date of entry of the judgement or order from which the appeal is taken.  In all other cases in which the United States of America or the State of Montana, or any political subdivision thereof, or any officer or agency thereof is a party, the notice of appeal shall be filed within 60 days from the entry of the judgment or order from which appeal is taken.  If notice of entry of judgement or order is required to be filed under M. R. Civ. P. 77(d), the 30 days or 60 days, as the case may be, shall not begin to run until service of the notice of entry of judgement or order.

Rule 4(5)(b)(i): In all criminal cases, an appeal from a final judgement entered pursuant to section 46-18-116 must be taken within 60 30 days after entry of the judgement from which appeal is taken…

Rule 4(5)(b)(ii): In criminal cases, an appeal from a judgement or order made appealable by section 46-20-103 must be taken within 20 30 days of the entry of the written judgement or order from which appeal is taken.

Rule 7(7)(b): Where the mediation results in resolution of the appeal, dismissal will be governed by rule 16(5) of these rules.  In the event the appeal is resolved, the parties shall execute a settlement agreement and file a stipulation for dismissal within 15 days of the filing of the mediator’s report.  If the mediator files a report, with proper notice to the parties, indicating that the matter has been settled, the court will dismiss the appeal 30 days later absent a motion to keep the cause number open.

Rule 7(9): Except as provided in sections (7) and (8) of this rule and in addressing a motion to determine whether an appeal is subject to section (2) of this rule, the provisions of this rule are designed to be self-executing and not subject to motion practice…

Rule 9(3)(b):  [...] [A] motion for extension of time for transmission of the record may be filed with the district court by the appellant or the court reporter based on the court reporter’s inability to timely prepare a transcript [...].  The district court may grant the motion for a period not to exceed 90 60 days from the filing of the first notice of appeal.  The clerk of the district court shall immediately transmit any such order to the clerk of teh supreme court, and the clerk of the supreme court shall file the order and cause it to be docketed.  Any further requests for extension of time for transmission of the record shall be made, with supporting affidavit of good cause, to the supreme court.

Rule 11(4)(a):  A principal brief shall not exceed 10,000 8,000 words and a reply brief or amicus brief, or petition for rehearing shall not exceed 5,000 4,000 words.  This includes reply briefs which also answer a cross-appellant’s principal brief.

Rule 11(4)(b): A principal brief prepared in a monospaced typeface shall not exceed 30 24 pages and a reply brief or amicus brief, or petition for rehearing shall not exceed 14 12 pages.  This includes reply briefs which also answer a cross-appellant’s principal brief.

Rule 11(4)(c): Petitions filed under rule 14 shall not exceed 5,000 4,000 words or 14 12 pages.

Rule 11(4)(e):  A brief must be accompanied by certification of compliance which states the document’s line spacing and states either: (1) [...]; or (2) the document uses monospaced typeface, together with the number of charactesr per inch and word count, or, the number of counted pages, pursuant to section (4)(b) or (c) of this rule. [...]

Rule 12(1)(b): A statement of the issues presented for review.  Parties are encouraged to limit the number of issues to 4 or fewer;

Rule 12(1)(c): A statement of the case.  The statement shall first indicate briefly the nature of the case and its procedural disposition in the court below.  Only that procedural background which is relevant to the issue or issues raised shall be included in the statement of the case;

Rule 12(1)(d):  A statement of the facts relevant to the issues presented for review, with references to the pages or parts of the record at which material facts appear.  Factual statements or background which are not relevant to the issues raised and which merely generate sympathy or inflame the reader are not to be included in the statement of facts;

Rule 12(1)(h): The judgement, order, findings of fact, conclusions of law, or decision in question, together with the memorandum opinion, in any, in support thereof.  An appendix that includes the relevant judgement, order, findings of fact, conclusions of law, jury instruction, ruling, or decision from which the appeal is taken together with any written memorandum or rationale of the court, and those pages of the transcript containing any oral ruling in support.  This appendix shall include a table of contents and colored page separators and ma be a separately-bound document if the volume of the required attachments makes this necessary.

Rule 12(5): If desired, parties may attach an appendix to their briefs, or may submit a separately bound appendix, to provide the judgment or order from which appeal is taken, challenged jury instructions (whether given or offered but not given), statutes and other legal sources, or to reference matters from the record necessary to their argument.  The appendix shall include a table of contents and colored page separators.  If desired, and in addition to the documents required under subsection (1)(h) of this rule, a party may include in the appendix additional documents or materials that are referenced in the brief or may, otherwise, be of assistance to the supreme court in its review of the brief.  Given that the court has available to it the entire record, parties are advised to include in their appendix only those documents essential to their arguments.  The appendix shall include a table of contents and colored page separators and may be separately-bound document if the volume of the required attachments make this necessary.

Rule 12(8):  References to parties by such formal designations as “appellant” and “appellee” shall be minimal.  It promotes clarity to use names or descriptive terms such as “John,” “Sue,” “the employee,” “the injured person,” or “the taxpayer.”  Subject to the requirements of rule 10(6) and rule 14(5)(b)(v), references to parties by formal designations such as “appellant,” “appellee,” “petitioner,” “respondent,” “plaintiff,” or “defendant” are discouraged and the use of names or descriptive terms such as “John,” “Sue,” “the employer,” “the taxpayer,” “father,” or “mother” are encouraged.

Rule 14(9)(b): All filings made pursuant to section (5)(a) of this rule shall conform to the requirements of rule 11, except that neither the text of the petition nor any response shall exceed 5,000 4,000 words if proportionately spaced or 14 12 pages if prepared in monospaced typeface or if typewritten.

Rule 17(3):  Upon oral argument of an appeal or original proceeding, 40 minutes will be allowed to appellant or applicant and 30 minutes to appellee.  Appellant or applicant may reserve no more than 15 minutes of the 40 minute allocation for rebuttal.  The supreme court’s order granting oral argument will designate the amount of time each party will be allowed at oral argument.

Download the Proposed Amendments to the Montana Rules of Appellate Procedure (in its entirety)

A possible demise for Montana’s death penalty vanished today when Senate Bill 236 failed to make it past the state House Judiciary Committee by a vote of 10-8.  Although it had narrowly passed the Republican controlled Senate, this failure makes it unlikely that the bill will return this year.  

Proponents of SB 236 argued that executing a convicted criminal costs more than imprisoning him for life without parole.  This, combined with the risk of executing an innocent man simply make the law too costly in all senses of the word.

Those arguing to keep the death penalty say that some crimes are so heinous that ending the convict’s life is the only appropriate response.  Additionally, they claim the deterrent aspect of capital punishment serve an important purpose and should not be ignored.

Churchill once said something to the effect of democracy being the worst form of government, except all the others.  The same could probably be said for our judicial system. For all the many benefits, it is all too fallible.  Headlines abound announcing newly tested DNA evidence that has set free a man on death row.  Personally, I simply find the risk too great.

Rohrer v. Knudson, 2009 MT 35

Rohrer bought a lot from Knudson and built a house where he experienced significant settling of the land underneath the building causing cracked walls, broken tile floors, and sticking doors.  After investigating the history of the area, Rohrer found that a ditch and steep railroad embankment existed there and that major earth moving activities filled in the ditch and eliminated the embankment sometime before 1964.  Claiming that Knudson should have been aware of and disclosed the fill conditions, Rohrer filed suit alleging negligence, negligent misrepresentation, and violations of the Montana Consumer Protection Act.

Issue 1: Whether the District Court abused its discretion in prohibiting the Rohrers from presenting evidence of differential settlement damage to other residences in Bel View Palisades.

At trial, Knudson claimed that the settlement problems resulted from Rohrer’s own negligence and submitted expert testimony stating that the cause of the settlement was invariably a water problem resulting from irrigation next to the foundation, poor site grading, and the failure to install drains around the foundation footings.

Before trial began, Knudson moved to preclude Rohrer from presenting evidence of differential settlement damage to neighboring residences claiming that such evidence was irrelevant and prejudicial.  Despite Knudson’s counsel stating that he did not intend to argue that Roher’s house was a unique anomalous occurrence, SCOMONT found that they presented evidence calculated to imply that damage to other homes did not exist.  By “eliciting testimony of the reputation for settlement in the area and suggesting that no extraordinary foundations were required for other houses in the area,” Knudson’s counsel opened the door to rebuttal.  The District Court abused its discretion by excluding the evidence of settling in neighboring homes after such insinuations.  The “exclusion of such rebuttal testimony affected the result since any change in the apportionment of negligence would alter the Rohrers’ recovery.”  Reversed and remanded for retrial where Rohrer should be allowed to present evidence of settlement of other houses in the area to rebut any contention that there is no reputation for settlement in the area or that neighboring houses do not require extraordinary foundations because they are not built on fill.

Issue Two:  Whether the District Court’s instruction defining “unfair practice” under the Montana Consumer Protection Act was a correct statement of the law.

Rohrer’s counsel offered a jury instruction defining an “unfair” act or practice as “one which offends established public policy and which is either immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”  Ultimately though, the court agreed with Knudson’s counsel and struck “substantially injurious” from the jury instruction defining an “unfair” act or practice.

As a matter of first impression, SCOMONT joined at least a dozen other states and adopted a version of the U.S. Supreme Court’s standard from FTC v. Sperry & Hutchinson Co. (S&H), which used the following criteria to determine whether a practice is unfair:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise – whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244, n. 5 (1972).  SCOMONT held as a matter of law that under the Montana Consumer Protection Act,  an unfair practice is “one which offends established public oplicy and which is either immoral, unethical, oppresssive, unscrupulous or substantially injurious to consumers.” Rohrer, ¶ 31.

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