author: Justice Beth Baker delivered the Opinion of the Court. Justice Jim Rice, dissenting.

text:
    Helen WEEMS and Jane Doe, Plaintiffs and Appellees, v. STATE of Montana, BY AND THROUGH Timothy C. FOX, in his official capacity as Attorney General, and Travis R. Ahner, in his official capacity as the County Attorney for Flathead County, Defendants and Appellants.
    DA 18-0308
    Supreme Court of Montana.
    Submitted on Briefs: January 30, 2019 Decided: April 26, 2019
    For Appellants: Timothy C. Fox, Montana Attorney General, Rob Cameron, Deputy Attorney General, Patrick M. Risken, Assistant Attorney General, Helena, Montana, Travis R. Ahner, Flathead County Attorney, Kalispell, Montana
    For Appellees: Alex Rate, Elizabeth K. Ehret, ACLU of Montana, Missoula, Montana, Hillary Schneller, Hailey Flynn, Center for Reproductive Rights, New York, New York
    For Amicus Montana Public Health Association: Simona G. Strauss, Simpson Thacher and Bartlett LLP, Palo Alto, California, Lindsay Beck, Beck, Amsden and Stalpes, PLLC, Bozeman, Montana

      We have substituted the current Flathead County Attorney pursuant to M. R. Civ. P. 25(d).

   Justice Beth Baker delivered the Opinion of the Court.

¶1 Twenty years ago, this Court held that a statute preventing a woman from obtaining a lawful medical procedure-a pre-viability abortion-from a health care provider of her choosing unconstitutionally infringed her right to individual privacy under Montana's Constitution.

Armstrong v. State , 1999 MT 261, ¶¶ 2, 75, 296 Mont. 361, 989 P.2d 364. We used the term "health care provider"

to refer to any physician, physician assistant-certified, nurse, nurse-practitioner or other professional who has been determined by the appropriate medical examining and licensing authority to be competent by reason of education, training or experience, to perform the particular medical procedure or category of procedures at issue or to provide the particular medical service or category of services which the patient seeks from the health care provider.

Armstrong , ¶ 2, n.1. Six years later, the Montana Legislature amended § 50-20-109(1)(a), MCA, to restrict the performance of pre-viability abortions to licensed physicians and physician assistants-certified. 2005 Mont. Laws, ch. 519, § 27. Plaintiffs, a Certified Nurse Practitioner (CNP) and Certified Nurse Midwife (CNM), filed this action in 2018, seeking a declaratory judgment that the statute violates Montana's constitutional right of privacy, equal protection, and dignity. They moved for a preliminary injunction. Both parties submitted affidavits, and neither requested an evidentiary hearing. After considering the affidavits and legal arguments presented by all parties, the District Court granted that relief on April 4, 2018. Pursuant to M. R. App. P. 6(3)(e), the State appeals on the alternative grounds that the District Court:

1. lacked jurisdiction because the Plaintiffs do not have standing to seek relief on their claims; or 2. improperly issued an advisory opinion on claims that were not ripe for a preliminary injunction, did not establish irreparable harm, and did not seek to preserve the status quo.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Plaintiff Jane Doe is a CNM and women's health nurse practitioner who practices midwifery in Montana and is proceeding in this matter under a pseudonym by leave of court. Plaintiff Helen Weems is a CNP in Montana who has been board certified in family practice by the American Nurses Credentialing Center since 1999 and re-certified every five years since. Weems co-owns a primary care clinic in Whitefish that offers comprehensive health services for men and women, including reproductive health care services. The other owner is Susan Cahill, a licensed physician's assistant (PA), who performs early-term abortions as part of her practice. Both Plaintiffs allege that the performance of early-term abortions is within their scope of practice and that they could perform such services but for Montana's statutory restriction.

¶3 In support of their motion for preliminary injunction, Plaintiffs presented evidence that APRNs routinely perform procedures within their scope of practice that are similar in skill to or more complex than early-term abortions and that carry comparable or greater risk. Plaintiff Weems described her experience with inserting and removing Intra-Uterine Devices (IUDs), dilating the cervix, and performing endometrial biopsy, a procedure that involves inserting instruments into the uterus to remove a tissue sample from the uterine lining. She described these procedures as comparable to those used in an aspiration procedure for abortion. She also attested that she has prescription authority from the Board of Nursing and a U.S. Drug Enforcement Authority (DEA) license, which permits her to prescribe schedules II through V controlled substances. Weems attested to her experience, prior to moving to Montana, with independently dispensing mifepristone and misoprostol for medication abortions-drugs that are not controlled substances and that carry less danger than controlled substances.

¶4 Plaintiffs also presented evidence to show that early abortion safety, efficacy, and patient acceptability is the same as between physicians and physician assistants, nurse practitioners, and certified nurse midwives. Finally, they offered evidence of the limited access to abortion services in Montana and the impact the restriction on authorized providers has on the availability of those services.

¶5 The State submitted as its evidence a chart from the Montana Board of Nursing identifying and listing websites for the relevant national organizations that set standards for nurse practitioners and certified nurse midwives. It also submitted a one-page description of the scope of practice for nurse practitioners from the American Association of Nurse Practitioners and a one-page summary definition of midwifery and scope of practice of certified nurse-midwives and certified midwives from the American College of Nurse Midwives. The State pointed out that abortion is not listed within the scope of practice in these documents, nor is it included in the Montana Board of Nursing's administrative rules governing APRN standards and practice.

¶6 The District Court held that Plaintiffs were entitled to a preliminary injunction under § 27-19-201(2), MCA, because they had made a showing that enforcement of § 50-20-109(1)(a), MCA, prior to the conclusion of litigation would cause irreparable injury.

STANDARDS OF REVIEW

¶7 We review the grant or denial of a preliminary injunction for manifest abuse of discretion. Davis v. Westphal , 2017 MT 276, ¶ 10, 389 Mont. 251, 405 P.3d 73. A manifest abuse of discretion is one that is "obvious, evident, or unmistakable." Davis , ¶ 10 (quoting Shammel v. Canyon Res. Corp. , 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912 ). "The grant or denial of injunctive relief is a matter within the broad discretion of the district court based on applicable findings of fact and conclusions of law." Davis , ¶ 10 (citing Shammel , ¶ 11 ; Walker v. Warner , 228 Mont. 162, 166, 740 P.2d 1147, 1149-50 (1987) ). To the extent the ruling is based on legal conclusions, "we review the district court's conclusions of law to determine whether the interpretation of the law is correct." City of Whitefish v. Bd. of Cty. Comm'rs of Flathead Cty. , 2008 MT 436, ¶ 7, 347 Mont. 490, 199 P.3d 201. Issues of justiciability, such as standing and ripeness, also are questions of law, for which our review is de novo. Reichert v. State , 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455.

DISCUSSION

¶8 1. Do Weems and Doe have standing to challenge the statute?

¶9 Courts have power to resolve actual cases or controversies, requiring a plaintiff to show, "at an irreducible minimum," that she "has suffered a past, present, or threatened injury to a property or civil right, and that the injury would be alleviated by successfully maintaining the action." Schoof v. Nesbit , 2014 MT 6, ¶ 15, 373 Mont. 226, 316 P.3d 831 (internal quotations omitted). "A plaintiff's standing may arise from an alleged violation of a constitutional or statutory right." Mitchell v. Glacier County , 2017 MT 258, ¶ 11, 389 Mont. 122, 406 P.3d 427 (citing Schoof , ¶ 23 ).

¶10 The State argues that neither Weems nor Doe has standing to challenge § 50-20-109(1)(a), MCA, because abortion is outside their scope of practice. Irrespective of the statute, the State maintains that "[a]s of the issuance" of the District Court's preliminary injunction order, the harm posited by the Plaintiffs was conjectural and hypothetical. The State maintains that the Plaintiffs have not presented an actual case or controversy because their scope of practice-with or without the statute-does not extend to abortion procedures.

¶11 The State's standing argument is conjoined with its argument that the Plaintiffs' request for a preliminary injunction was not ripe for adjudication. Standing and ripeness are separate but related inquiries within a court's justiciability analysis:

To meet the constitutional case-or-controversy requirement for standing, the plaintiff must clearly allege a past, present, or threatened injury to a property or civil right, and the injury must be one that would be alleviated by successfully maintaining the action. Note that standing may rest not only on past or present injury, but also on threatened injury. Ripeness and mootness, in turn, can be seen as "the time dimensions of standing." Ripeness asks whether an injury that has not yet happened is sufficiently likely to happen or, instead, is too contingent or remote to support present adjudication, whereas mootness asks whether an injury that has happened is too far beyond a useful remedy.

Reichert , ¶ 55 (internal citations omitted). "Whether framed as an issue of standing or ripeness, the [constitutional] inquiry is largely the same: whether the issues presented are definite and concrete, not hypothetical or abstract." Reichert , ¶ 56 (quoting Wolfson v. Brammer , 616 F.3d 1045, 1058 (9th Cir. 2010) ) (alteration in original).

¶12 We address below the ripeness argument as it relates to the request for preliminary injunction. We have little trouble concluding, however, that Weems and Doe have standing to bring their complaint. We held in Armstrong that when "governmental regulation directed at health care providers impacts the constitutional rights of women patients," the providers have standing to challenge the alleged infringement of such rights. Armstrong , ¶¶ 8-13. We concluded that the plaintiff health care providers had standing "to assert on behalf of their women patients the individual privacy rights under Montana's Constitution of such women to obtain a pre-viability abortion from a health care provider of their choosing." Armstrong , ¶ 13.

¶13 The Plaintiffs' Complaint presents the same issue. The central dispute between the parties, discussed further below, is whether § 50-20-109(1)(a), MCA, is the regulatory barrier that prevents Weems and Doe from performing aspiration and medication abortion procedures, or whether the Board of Nursing must act first to authorize such procedures within the Plaintiffs' scope of practice before the statute comes into play. That issue presumably will be front and center as the litigation proceeds toward resolution on the merits. For standing purposes, however, the Complaint includes sufficient allegations that, but for the existence of the statutory restriction, Weems and Doe would be able to include medication and aspiration abortion procedures within their competency training and independent practices. Plaintiffs allege that APRNs are independent and autonomous health care practitioners, authorized to provide services within the scope of practice to which they are trained. The Complaint further alleges that the Montana Board of Nursing does not identify specific procedures that APRNs may or may not perform. Rather, the Board's regulations provide that APRNs have "full practice authority." The Complaint alleges that the Board "charges APRN licensees to know their own role and population focus using the standards of their professional organization." The Complaint alleges that "Montana law does not single out any health service as beyond an APRN's scope of practice, except abortion."

¶14 The State's standing argument is circular: it maintains that Plaintiffs cannot challenge the statute unless they are licensed to perform the procedure in question, but acknowledges that the statute prevents them from seeking such licensure. Weems and Doe plainly are impacted by the statute; as it stands, the law precludes the "appropriate medical examining and licensing authority" from making a determination that they are competent to perform the medical procedures at issue. Armstrong, ¶ 2, n.1. The Complaint's allegations are sufficient to show a "concrete," rather than an abstract or hypothetical, injury that allows Weems and Doe to have their claims adjudicated in the courts of Montana. See Schoof , ¶¶ 12-23 (concluding that individual alleging interest in county's fiscal decisions had standing to pursue claim that county violated constitutional and statutory right to know and public participation requirements); Gryczan v. State , 283 Mont. 433, 443-46, 942 P.2d 112, 118-120 (1997) (granting lesbian and gay plaintiffs standing to challenge constitutionality of statute criminalizing same-sex sexual conduct despite lack of prosecution, because they were "precisely the individuals against whom the statute is intended to operate"); Lee v. State , 195 Mont. 1, 7, 635 P.2d 1282, 1285 (1981) (holding that Uniform Declaratory Judgments Act allows a plaintiff to "test the constitutional validity of a statute directly affecting him").

¶15 2. Did the District Court manifestly abuse its discretion or commit an error of law in granting preliminary injunctive relief?

¶16 The State argues that the District Court's preliminary injunction constituted an advisory opinion because neither Weems nor Doe presently is adequately trained to perform abortion procedures. The State maintains that the court made speculative assumptions in granting Plaintiffs the preliminary relief they requested. Because women seeking abortions "do not have a currently existing right" to have Weems or Doe perform that procedure, which the State argues would require additional action by the Montana Board of Nursing, the injunction will have no practical effect. The court's injunction prevents no harm, the State suggests, because there are no patients who could have abortion services provided by Weems or Doe irrespective of the statute. Finally, because Weems and Doe "have not been expressly authorized by their licensing authority to perform abortions," the State argues that the District Court's action upends the status quo, contrary to the purposes of a preliminary injunction.

¶17 Section 27-19-201, MCA, provides for issuance of a preliminary injunction on several enumerated grounds, only one of which need be met for an injunction to issue. BAM Ventures, LLC v. Schifferman , 2019 MT 67, ¶ 14, 437 P.3d 142 ; Davis , ¶ 24 ; Shammel , ¶ 15 ; Sweet Grass Farms, Ltd. v. Bd. of Cty. Comm'rs of Sweet Grass Cty. , 2000 MT 147, ¶ 27, 300 Mont. 66, 2 P.3d 825 ; Stark v. Borner , 226 Mont. 356, 359-60, 735 P.2d 314, 317 (1987). The District Court relied on subsection (2), allowing a preliminary injunction "when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant[.]" Section 27-19-201(2), MCA. An applicant for preliminary injunction must make "some demonstration of threatened harm or injury, whether under the 'great or irreparable injury' standard of subsection (2), or the lesser degree of harm implied within the other subsections of § 27-19-201, MCA." BAM Ventures , ¶ 16.

¶18 When considering whether to grant or deny a preliminary injunction, the trial court "should restrict itself to determining whether the applicant has made a sufficient case to warrant preserving a right in status quo until a trial on the merits can be had." Knudson v. McDunn , 271 Mont. 61, 65, 894 P.2d 295, 298 (1995) (citing Porter v. K & S P'ship , 192 Mont. 175, 181, 627 P.2d 836, 839 (1981) ). An applicant need only establish a prima facie case, not entitlement to final judgment. City of Whitefish , ¶ 25 (citing Knudson , 271 Mont. at 65, 894 P.2d at 298, and Porter , 192 Mont. at 183, 627 P.2d at 840 ). The court does not determine the underlying merits of the case in resolving a request for preliminary injunction. BAM Ventures , ¶ 7 (citing Caldwell v. Sabo , 2013 MT 240, ¶ 19, 371 Mont. 328, 308 P.3d 81 ). In the context of a constitutional challenge, an applicant for preliminary injunction need not demonstrate that the statute is unconstitutional beyond a reasonable doubt, but "must establish a prima facie case of a violation of its rights under" the constitution. City of Billings v. Cty. Water Dist. of Billings Heights , 281 Mont. 219, 227, 935 P.2d 246, 251 (1997). "Prima facie" means literally "at first sight" or "on first appearance but subject to further evidence or information." Prima facie , Black's Law Dictionary (10th ed. 2014).

¶19 Our cases make clear that Montana's constitutional right to privacy is implicated when a statute infringes on a person's ability to obtain a lawful medical procedure. Armstrong , ¶ 62 ; Mont. Cannabis Indus. Ass'n v. State , 2012 MT 201, ¶ 27, 366 Mont. 224, 286 P.3d 1161. But not every restriction on medical care impermissibly infringes that right. Wiser v. State , 2006 MT 20, ¶ 15, 331 Mont. 28, 129 P.3d 133. " Armstrong did not hold that there is a right to see a health care provider who is not licensed to provide the services desired." Wiser , ¶ 16. The right to health care instead is the

fundamental privacy right to obtain a particular lawful medical procedure from a health care provider [who] has been determined by the medical community to be competent to provide that service and who has been licensed to do so.

Wiser , ¶ 15 (quoting Armstrong , ¶ 62 ). Armstrong leaves no doubt that early-term abortion is a "lawful medical procedure" that may be performed for a consenting patient by a provider "determined by the appropriate medical examining and licensing authority to be competent [to provide that service]." Armstrong , ¶ 2, n.1, ¶ 62. The issue for ultimate resolution in this case is whether the Board of Nursing must approve APRNs, or Doe and Weems in particular, to conduct such procedures, or whether they could obtain competency to do so as part of an independent or collaborative practice but for the statutory restriction. Because Weems and Doe presently are not providing abortion services and are not expressly licensed to do so, the State argues that their request for preliminary injunctive relief is not ripe for adjudication.

¶20 Weems testified by affidavit that, without the statutory restriction, her DEA license presently would permit her to prescribe and dispense the medications for a medication abortion. Weems also attested that there is no list of services that determines what is in her scope of practice; rather, the scope includes care in which she trains and builds her skills under supervision sufficient to become a proficient provider.

¶21 This characterization finds support in the standards referred to in the State's exhibits. According to the American Association of Nurse Practitioners, APRNs are independent practitioners whose autonomous practice "requires accountability to the public for delivery of high-quality health care." Materials referenced in the Board of Nursing chart the State submitted include core competencies for Family Nurse Practitioners (FNPs), stating that the FNP "is prepared to care for individuals and families across the lifespan," including women's reproductive health and performance of gynecology procedures. Women's health nurse practitioners are expected to have "knowledge of legal/ethical issues and regulatory agencies relevant to gender-specific issues," within which they are to provide "culturally appropriate reproductive and primary care for women of all ages" and prescribe medications "within [their] scope of practice." NONPF, Competencies , supra , at 82-84. "Independent practice" "[r]ecognizes independent licensure of nurse practitioners who provide autonomous care and promote implementation of the full scope of practice." NONPF, Competencies , supra , at 87.

¶22 The State's Exhibit C defines midwifery to encompass "a full range of primary health care services for women from adolescence beyond menopause." The Standards for Practice of Midwifery, referenced in the Board of Nursing chart, indicate that the practice "is the independent management of women's health care, focusing particularly on pregnancy, childbirth, the post-partum period, care of the newborn, and the family planning and gynecologic needs of women." The core competencies in gynecologic care "include but are not limited to ... [c]ounseling, clinical interventions , and/or referral for unplanned or undesired pregnancies[.]" The midwife must be "in compliance with the legal requirements of the jurisdiction where the midwifery practice occurs." ACNM, Standards , supra , at 1.

¶23 Administrative Rules of the Montana Board of Nursing recognize APRN practice as "an independent and/or collaborative practice" and provide that a licensed APRN "may only practice in the role and population focus in which the APRN has current national certification." Admin. R. M. 24.159.1406(1). The rules allow an APRN who is granted prescriptive authority to "prescribe, procure, administer, and dispense legend and controlled substances pursuant to applicable state and federal laws and within the APRN's role and population focus." Admin.

R. M. 24.159.1461(1). The Board of Nursing's rules do not identify a specific list of medications the APRN may or may not prescribe. Weems's established prescriptive authority and prior experience prescribing and dispensing drugs for medication abortion comprise prima facie evidence that, but for the statute, she could do so in Montana as well. The record has not been developed regarding the Board of Nursing's position, if any, on the regulatory limits of APRN practice when it comes to aspiration abortion. Materials referenced in the Affidavit of Suzan Goodman, M.D., submitted by Plaintiffs, indicate that "there is a decades-long history of [APRNs, CNMs, and PAs] providing first trimester aspiration abortions in collaborative settings and training doctors in abortion care in states where physician-only restrictions do not exist." , On review of the preliminary injunction record, we conclude that Plaintiffs presented adequate evidence to justify their claim for preliminary relief on the ground that the statute presents a barrier to their ability to develop competencies for and perform the lawful medical procedures of early-term abortion.

¶24 The State asserts that Plaintiffs nonetheless did not demonstrate irreparable harm because, as the District Court recognized, Weems has not completed her training in abortion care and Doe currently practices in a health care system that does not permit abortions to be performed. Because of their own circumstances, the State posits that the Plaintiffs' request for preliminary injunctive relief was not ripe for adjudication.

¶25 We have recognized harm from constitutional infringement as adequate to justify a preliminary injunction. City of Billings , 281 Mont. at 231, 935 P.2d at 253 ; Mont. Cannabis Indus. Ass'n , ¶ 15. Though not every constitutional infringement may support a finding of irreparable harm, federal courts most commonly recognize privacy and First Amendment violations as causing irreparable injuries. See Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) (plurality); Nelson v. NASA , 530 F.3d 865, 881-82 (9th Cir. 2008), rev'd on other grounds , 562 U.S. 134, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) ; Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. City of Jacksonville , 896 F.2d 1283, 1285 (11th Cir. 1990) ; McDonell v. Hunter , 746 F.2d 785, 787 (8th Cir. 1984) ; Deerfield Med. Ctr. v. City of Deerfield Beach , 661 F.2d 328, 338 (5th Cir. 1981). Plaintiffs' evidence of injury included affidavits that the statute prevents APRNs "from even being trained in abortion care in this State," including the "hands-on training [Weems] need[s] to complete [her] training." Weems also attested that, in the few weeks her clinic had been open, she had seen several patients eligible for a medication abortion who would have elected that method, but who were in the clinic when Cahill was unavailable and were unable to obtain the medication. Weems testified that delay can mean a patient becomes ineligible for a medication abortion or may have difficulty missing work or school and arranging transportation for a subsequent appointment, particularly when traveling from out of town. Without the statutory restriction, Weems's DEA license would allow her imminently to provide the lawful dispensation of the necessary medication. The District Court did not manifestly abuse its discretion in finding that this evidence established that enforcement of the statute prior to the conclusion of litigation would cause irreparable injury.

¶26 Finally, the State argues that the District Court wrongly issued a preliminary injunction to reverse, instead of to preserve, the status quo. Unlike the plaintiff in Armstrong , the State urges, the Plaintiff providers have not been "engaged in the practice of providing abortions" and are not "expressly authorized by their licensing authority to perform abortions." Status quo means "the last actual, peaceable, noncontested condition which preceded the pending controversy." Porter , 192 Mont. at 181, 627 P.2d at 839 ; see also Davis , ¶ 24. That a statute has been on the books for some time is not the relevant inquiry when entertaining a request to enjoin it. See , e.g. , Gryczan , 283 Mont. at 443-44, 942 P.2d at 118-19. Weems and Cahill opened their clinic in February 2018. The State's argument misses the point that the condition the Plaintiffs contest is the bar posed to their practice by the physician/PA restriction and whether they otherwise would need express authorization from their licensing authority to engage in the independent practice of providing abortion services. The rights "preserv[ed] ... in status quo," Knudson , 271 Mont. at 65, 894 P.2d at 298, by the District Court's injunction are the rights of women patients to obtain the lawful medical procedure recognized in Armstrong . The Complaint contests the later-enacted statute's alleged infringement of those rights. Weems and Doe presented sufficient evidence at this stage of the proceedings to support their claim that the statute bars their ability to perform the lawful medical procedures of medication or aspiration abortion and to complete appropriate training for the aspiration procedure. Given the fundamental right at issue, that showing was sufficient to establish that their claim for preliminary injunction was not "too contingent or remote to support present adjudication," Reichert , ¶ 55, and that enforcement of the statute prior to conclusion of the litigation would cause irreparable harm. The State has not shown an error of law or manifest abuse of discretion in the District Court's ruling.

CONCLUSION

¶27 The District Court's April 4, 2018 preliminary injunction is affirmed.

We Concur:

MIKE McGRATH, C.J.

DIRK M. SANDEFUR, J.

INGRID GUSTAFSON, J.

Justice Jim Rice, dissenting.

¶28 I would conclude the record is insufficiently developed at this stage of the litigation to support enjoinment of a statute that has been in effect without challenge for over 10 years, and constitutes the status quo in the matter. Indeed, the inadequacy of the record at this point in the proceeding is significant enough to raise the justiciability concern of ripeness. The undeveloped state of the law requires the Court, in order to affirm the injunction, to enter what is essentially a prospective declaratory judgment on the scope of practice of APRNs, without any guidance from the regulatory body qualified and authorized to make such medically-based judgments, which will inevitably taint that question, both before the Board of Nursing and before the District Court in this litigation.

¶29 The Court relies upon Armstrong , ¶¶ 2, 75, but the state of the record there stands in stark contrast to the record here. In that case, brought by a physician's assistant who had been performing abortions in Montana for more than 20 years, this Court enjoined a newly-passed law that restricted non-physicians from performing abortions. Armstrong , ¶¶ 22, 75. The Court relied on the fact that the Board of Medical Examiners had determined that the physician's assistant was competent to perform certain types of abortions. Armstrong , ¶ 63. In fact, the record showed that the physician assistant had been "performing abortions with the approval of the Montana Board of Medical Examiners since 1983." Armstrong , ¶ 64. The Court's decision was premised upon the fact that the health provider was "determined by the appropriate medical examining and licensing authority to be competent by reason of education, training or experience, to perform the particular medical procedure or category of procedures at issue[.]" Armstrong , ¶ 2, n.1 (emphasis added); see also Wiser , ¶ 15 (the privacy right is " 'to obtain a particular lawful medical procedure from a health care provider that has been determined by the medical community to be competent to provide that service and who has been licensed to do so' ") (quoting Armstrong , ¶ 62 ) (emphasis added).

¶30 Here, the District Court issued its injunction upon hypothetical grounds. It first made an assessment about future regulatory actions, assuming that "the Board of Nursing will conclude ... APRNs may provide abortion care as within their scope of practice." (Emphasis added.) Then, it made assumptions about the Plaintiffs, concluding that, at some future point, they would complete the necessary training "to be competent to provide abortion services[.]" The court therefore reasoned there was "no harm in proactively applying a preliminary injunction to protect Weems from prosecution in the event she satisfies the competency requirements of the Board of Nursing and is operating within her scope of practice." (Emphasis added.) Thus, upon the assumptions that (1) the regulatory agency will conclude in the future that abortion services fall within the Plaintiffs' scope of practice, and (2) that Plaintiffs will complete necessary competency training, the statute has been "proactively" enjoined so that it will not be an obstacle "in the event" these assumptions come to pass. In my view, a more concrete injury must be demonstrated to justify a court's enjoinment of a longstanding statute. At this stage of the proceeding, the alleged injury "is too contingent or remote to support present adjudication[.]" Reichert , ¶ 55.

¶31 The tentativeness in the District Court's order is a consequence of the weaknesses in the proof offered so far in the proceedings by the Plaintiffs. Although the Court credits the Plaintiffs' "evidence," this consisted of three untested affidavits-one from Weems herself, and two from doctors who perform abortions. No testimony has been tested by the Rules of Evidence and cross examination. None of the affidavits aver that the Montana Board of Nursing has determined that abortions can currently be provided by the Plaintiffs pursuant to their current licensure, or that the Board intends to approve of the procedures under those licenses. Nor did Plaintiffs provide any regulatory statement from the Montana Board of Nursing regarding these issues, which the Court recognizes: "[t]he record has not been developed regarding the Board of Nursing's position, if any, on the regulatory limits of APRN

practice when it comes to aspiration abortion." Opinion, ¶ 23. Indeed, the ongoing uncertainty of this legal issue is underscored by the District Court's acknowledgement of the possibility that Weems could provide abortion services outside of APRN scope of practice, which would then subject her to "discipline from the regulatory board charged with overseeing APRNs-the Montana Board of Nursing."

¶32 Rather than providing evidence from the Board of Nursing, one of Plaintiffs' main arguments is that APRNs can provide some types of abortions as safely and competently as doctors, and that prohibiting them from doing so violates equal protection and a woman's right to privacy and procreative autonomy in Mont. Const. art. II, § 10. However, the determination of whether APRNs can safely and competently provide abortions is clearly a question for the Montana Board of Nursing, who govern the practice of APRNs in Montana, see §§ 37-8-102(1); -202(2)(b); -409(1), MCA, and have the requisite medical training and knowledge to make such a determination. In contrast, the court lacks both the authority and the proper medical knowledge and training to decide this issue. As the District Court correctly noted, "[a]uthority to set and enforce competency requirements for APRNs has been delegated by the legislature to the Board of Nursing." Thus, the Board of Nursing is the proper authority to determine whether APRNs may perform abortions in Montana.

¶33 The law governing this issue is as follows. The State of Montana has "police power by which it can regulate for the health and safety of its citizens." Wiser , ¶ 19 ; see also State v. Skurdal , 235 Mont. 291, 293-94, 767 P.2d 304, 306 (1988). Accordingly, in order to "safeguard life and health," a person practicing or offering to practice either professional nursing or practical nursing in Montana must "submit evidence that the person is qualified to practice and is licensed[.]" Section 37-8-101(1) - (2), MCA. In Montana, the licensing requirements, competency requirements, and scope of practice for nurses is determined by the Montana Board of Nursing. Sections 37-8-102(1); - 202(2)(b); -409(1), MCA. The general scope of practice for APRNs in Montana is governed by Mont. Admin. R. 24.159.1406. This regulation provides, in relevant part, that "[t]he APRN licensed in Montana may only practice in the role and population focus in which the APRN has current national certification[,]" and also provides a listing of general medical services that APRNs can provide. Whether this listing includes abortion services, and what kinds of abortion services, is clearly debatable.

¶34 Given that the Legislature has enacted specific legislation regarding abortion services, courts should not have to guess about whether licensure through the Board of Nursing authorizes the services, and it is incumbent upon the Plaintiffs to demonstrate that their practice has been legally restricted. Having yet failed to do so, the Plaintiffs are aided by the Court. Going beyond the District Court's conjecture that the Board of Nursing will conclude in the future that abortion services can be provided pursuant to their licensure, the Court concludes that Plaintiffs have "just[ified] their claim" of what the law is, simply on the basis of the "allegations" in their Complaint and affidavits. Opinion, ¶¶ 13, 23. Although the Court cites subsection (2) of § 27-19-201, MCA, as the basis for the preliminary injunction, that provision does not authorize enjoinment of a statute in prevention of "irreparable injury" before the parties establish as a matter of law that the challenged statute applies to them, or by merely "justify[ing] their claim." Opinion, ¶ 23. Preliminary injunctions are to be issued to "preserve the status quo and to minimize the harm to all parties pending full trial[.]" Yockey v. Kearns Props., LLC , 2005 MT 27, ¶ 18, 326 Mont. 28, 106 P.3d 1185 (citing Porter v. K & S Partnership , 192 Mont. 175, 183, 627 P.2d 836, 840 (1981) (emphasis in original)). Despite the Plaintiffs not yet establishing that abortion procedures are authorized by their licensure, the Court here overturns the status quo and enjoins longstanding, lawfully enacted legislation, which is entitled to a presumption of constitutionality.

¶35 It seems the Court has not considered that "[t]he constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be presumed, unless its unconstitutionality appears beyond a reasonable doubt. The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action ..." Powell v. State Compensation Ins. Fund , 2000 MT 321, ¶ 13, 302 Mont. 518, 15 P.3d 877 (citing Stratemeyer v. Lincoln County , 259 Mont. 147, 150, 855 P.2d 506, 508-09 (1993) ). "Every possible presumption must be indulged in favor of the constitutionality of a legislative act. ... The party challenging a statute bears the burden of proving that it is unconstitutional beyond a reasonable doubt and, if any doubt exists, it must be resolved in favor of the statute." Powell , ¶ 13 (emphasis added). I do not believe the showing made so far by the Plaintiffs is sufficient to support the relief they seek by preliminary injunction-enjoining a presumably constitutional statute.

¶36 In my view, the Court has effectively entered a declaratory judgment on a medical issue that should fall under the regulatory expertise of the Board of Nursing. See §§ 37-8-102(1); -202(2)(b); -409(1), MCA. Consequently, there is little need to further litigate an issue the Court has determined, upon minimal proceedings and record, to weigh in on. I believe the Court has done so by mischaracterizing the State's interest as broadly restricting "the rights of women patients to obtain the lawful medical procedure recognized in Armstrong [,]" Opinion, ¶ 26, when the interest the State seeks to protect is much narrower, that is, ensuring that the proper regulatory authority affirmatively determines that individuals offering the medical procedures in question are both licensed and competent to provide that type of care in order to "safeguard life and health." Section 37-8-101, MCA.

¶37 I would reverse the entry of the preliminary injunction in favor of further proceedings.

Justice Laurie McKinnon and Justice James Jeremiah Shea join in the dissenting Opinion of Justice Rice.

      Both CNPs and CNMs are Advanced Practice Registered Nurses (APRN). See Admin. R. M. 24.159.1413.

      The procedures Plaintiffs seek to provide are aspiration and medication abortions, both of which are carried out in the early stages of pregnancy. Medication abortion is available up to ten weeks, and aspiration abortion is an outpatient procedure used throughout the first trimester.

      The moving party's burden to defeat the presumptive constitutionality of a statute thus arises in litigating the merits of the complaint; a plaintiff is not required to sustain that ultimate burden to obtain a preliminary injunction.

      Am. Ass'n of Nurse Practitioners, Scope of Practice for Nurse Practitioners , AANP (Winter 2015), https://storage.aanp.org/www/documents/advocacy/position-papers/ScopeOfPractice.pdf [https://perma.cc/MV68-Q96H].

      Mont. Dep't of Labor & Indus., Montana Board of Nursing Recognized National Professional Organizations (NPO) for APRN Scope and Standards of Practice , DLI (Aug. 2018), http://boards.bsd.dli.mt.gov/Portals/133/Documents/nur/aprn_sop_documents.pdf [https://perma.cc/K3SJ-8YDH].

      Nat'l Org. of Nurse Practitioner Faculties, Population-Focused Nurse Practitioner Competencies , NONPF 9 (2013), https://c.ymcdn.com/sites/www.nonpf.org/resource/resmgr/competencies/populationfocusnpcomps2013.pdf [https://perma.cc/H2NE-VFTN] [hereinafter NONPF, Competencies ]

      Am. Coll. of Nurse-Midwives, Definition of Midwifery and Scope of Practice of Certified Nurse-Midwives and Certified Midwives , ACNM (Dec. 2011), http://www.midwife.org/ACNM/ files/ACNMLibraryData/UPLOADFILENAME/000000000266/Definition%20of%20Midwifery%20and%20Scope%20of%20Practice%20of%20CNMs%20and%20CMs%20Feb%202012.pdf [https://perma.cc/ASK9-EAWB].

      Am. Coll. of Nurse-Midwives, Standards for the Practice of Midwifery , ACNM 1 (Sept. 24, 2011), http://www.midwife.org/ACNM/files/ACNMLibraryData/UPLOADFILENAME/000000000051/Standards_for_Practice_of_Midwifery_Sept_2011.pdf [https://perma.cc/RFK5-4C2Y] [hereinafter ACNM, Standards ].

      Am. Coll. of Nurse-Widwives, Core Competencies for Basic Midwifery Practice , ACNM 5 (Dec. 2012), http://www.midwife.org/ACNM/files/ACNMLibraryData/UPLOADFILENAME/000000000050/Core%20Comptencies%20Dec%202012.pdf [https://perma.cc/N78R-K5ML] (emphasis added).

      Am. Pub. Health Ass'n, Provision of Abortion Care by Advanced Practice Nurses and Physician Assistants , APHA (Nov. 1, 2011), https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2014/07/28/16/00/provision-of-abortion-care-by-advanced-practice-nurses-and-physician-assistants [https://perma.cc/8JZ7-8QXS].

      The California rule the Dissent cites shows that APRNs may be qualified by training to perform an abortion by aspiration techniques. Importantly, California does not have a statute prohibiting such practice; on the contrary, it allows APRNs to perform medication and aspiration abortions, the latter subject to "standardized procedures developed" by the Board of Registered Nursing. Cal. Bus. & Prof. Code §§ 2253, 2725.4 (LexisNexis 2019). According to Dr. Goodman's affidavit, the California law resulted from a six-year project evaluating the safety and efficacy of advanced practice clinicians providing early abortion. California, unlike Montana, has detailed statutes addressing many different medical procedures and prohibitions. See e.g. , Cal. Bus. & Prof. Code, div. 2, ch. 5 art. 12. Montana, by and large, leaves such matters to rulemaking by the appropriate licensing boards. See § 37-3-203, MCA (authorizing Board of Medical Examiners to adopt rules to carry out regulatory responsibilities for practice of medicine, podiatry, acupuncture, physician assistant practice, and nutritionist practice); § 37-8-202, MCA (prescribing rulemaking authority of Board of Nursing, including rules regarding authorization for prescriptive authority of advanced practiced registered nurses and educational requirements and other qualifications applicable to recognition of advanced practice registered nurses); § 37-8-409, MCA (requiring Board of Nursing to issue APRN certificates upon verification of "board-approved national certifying body appropriate to the specific field of advance practice registered nursing" and "other qualification requirements that the board prescribes"). Though largely unhelpful to the analysis, the California example lends support to the ripeness of Plaintiffs' claim that § 50-20-109(1)(a), MCA, poses a barrier to any such review by this State's Board of Nursing.

      The Dissent does not address this prima facie evidence that, but for the statute, Weems imminently could provide her patients with the medication required for this procedure. It recognizes that whether APRNs safely and competently can provide abortions is "a question for the Montana Board of Nursing," Dissent, ¶ 32, but overlooks that the Board's rules authorize Weems to dispense medication without restriction.

      Indeed, the Armstrong Court saw its decision as being about "who" should decide medical competencies, which it concluded should be determined "by the medical community in the exercise of its collective professional expertise and judgment, acting through the state's medical examining and licensing authorities, and after taking into consideration the education, training, experience and skills of the health care provider and the patient's health interests[.]" Armstrong , ¶ 15.

      To support Plaintiffs' standing, the Court offers Gryczan , 283 Mont. at 443-46, 942 P.2d at 118-20, where we found that lesbian and gay plaintiffs had standing to challenge the constitutionality of a statute criminalizing same-sex sexual conduct, despite lack of prosecution, because the plaintiffs were "precisely the individuals against whom the statute is intended to operate." Opinion, ¶ 14. However, the statute there created a concrete injury because it clearly applied to the plaintiffs without any further determination or action by a court or regulatory authority. Conversely, the statute here does not, on its face, demonstrate a concrete injury because Plaintiffs have not yet established that they are able to perform abortions under their current licensure, an issue for the Montana Board of Nursing. See §§ 37-8-102(1); -202(2)(b); - 409(1), MCA. Thus, further action by the proper regulatory authority-the Montana Board of Nursing-is necessary here before it can be established that the statute creates a concrete injury.

      For example, in contrast, rulemaking undertaken by the California Board of Registered Nursing on this issue explained:
      In order to perform an abortion by aspiration techniques pursuant to Section 2253 and 2725.4 of the Business and Professions Code (Section 2725.4 ), a person with a license or certificate to practice as a nurse practitioner or a certified nurse-midwife shall complete training recognized by the Board. The proposed regulatory action will set forth parameters in order to comply with Section 2725.4.
      Board of Registered Nursing Initial Statements of Reasons (Amended) 1, https://www.rn.ca.gov/pdfs/regulations/isor14635-a.pdf (last visited Apr. 3, 2019).

      Similarly, Plaintiff Weems argues she can safely and competently distribute mifepristone and misoprostol, drugs used for medication abortions, because she has prescription authority from the Board of Nursing and a U.S. Drug Enforcement Authority (DEA) license. Weems attested that she could independently distribute mifepristone and misoprostol prior to moving to Montana, and that mifepristone and misoprostol are not controlled substances and carry less danger than controlled substances. However, these assertions are premised upon Weems' opinions. Instead, for purposes of litigation, they should be determined by the proper regulatory authority.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Montana, Plaintiff and Appellee, v. Tyrell J. ROBERTSON, Defendant and Appellant.
    DA 17-0717
    Supreme Court of Montana.
    Submitted on Briefs: February 27, 2019 Decided: April 30, 2019
    For Appellant: William A. D'Alton, D'Alton Law Firm, P.C., Billings, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Dylan Jensen, Valley County Attorney, Glasgow, Montana
   Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Appellant Tyrell J. Robertson appeals the Judgment of the Seventeenth Judicial District Court, Valley County, finding Robertson guilty of: (1) criminal possession of dangerous drugs, a misdemeanor, in violation of § 45-9-102, MCA ; (2) criminal possession of drug paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA ; and (3) driving under the influence of alcohol or drugs (DUI), a misdemeanor, in violation of § 61-8-401, MCA. We address the following issues on appeal:

Issue One: Whether the District Court erred when it denied Robertson's Motion in Limine to prevent the arresting officer from testifying at trial.
Issue Two: Whether the District Court erred when it denied Robertson's Motion to Suppress evidence seized from his vehicle because no probable cause existed for the issuance of the search warrant.
Issue Three: Whether the District Court erred when it denied Robertson's Motion to Dismiss the DUI charge due to the State's failure to preserve video evidence.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On the evening of February 15, 2017, Valley County Sheriff's Deputy Alex Esteves was on patrol in Glasgow when he observed Robertson driving a truck away from a local bar at night. Esteves observed Robertson fail to signal a right-hand turn and then later fishtail into the other lane of traffic. Esteves followed Robertson onto U.S. Highway 2, activated his emergency lights, and initiated a traffic stop.

¶4 As Esteves approached the driver's side window, he smelled a strong odor of marijuana emanating from the truck. Esteves identified himself to Robertson, explained the reason for the stop, and requested that Robertson hand him any marijuana that was in the truck. Robertson pulled a white prescription-style pill bottle filled with marijuana from the truck's center console and handed it to Esteves. Esteves then asked if there was any drug paraphernalia in the truck. One of Robertson's passengers handed Esteves a glass pipe packed with marijuana.

¶5 Based upon his observations of Robertson's driving, Esteves suspected Robertson of DUI. Robertson informed Esteves that he and his passengers had just left the bar and admitted that he had consumed an alcoholic beverage while there. Esteves requested Robertson submit to standardized field sobriety tests, which Robertson agreed to. Based on Esteves's observations, Robertson exhibited multiple indicators of impairment during his performance of the tests. Esteves then administered a preliminary breath test. The test indicated Robertson's blood alcohol content (BAC) was 0.114-exceeding the legal limit of 0.08. Esteves arrested Robertson for DUI and informed him that his truck would be seized and a search warrant would be obtained.

¶6 At the Valley County Detention Center (Detention Center), Esteves processed Robertson for a DUI. Since the Intoxilyzer at the Detention Center was under maintenance, Esteves asked Robertson to submit to a blood draw, which Robertson declined. Esteves then applied and received a warrant for the blood draw. A blood sample from Robertson was obtained and sent to the State Crime Lab. Analysis of Robertson's blood sample reflected a BAC of 0.112.

¶7 On February 17, 2017, Esteves applied for, and received, a search warrant for Robertson's truck. The search revealed that Robertson's truck contained various marijuana products and paraphernalia, all of which were seized. Robertson's truck ultimately held a total of 111.2 grams of marijuana and marijuana-infused products.

¶8 On March 29, 2017, Robertson was charged by Information with felony criminal possession of dangerous drugs with intent to distribute, felony criminal possession of dangerous drugs, use or possession of property subject to criminal forfeiture, misdemeanor criminal possession of drug paraphernalia, and misdemeanor DUI.

¶9 On July 3, 2017, Robertson filed a Motion to Suppress and Dismiss. Robertson argued that the evidence seized from his truck should be suppressed because Esteves's search warrant application did not establish probable cause warranting the search. Robertson additionally argued that the DUI charge should be dismissed because the State failed to produce the Detention Center video of his arrest. On September 11, 2017, Robertson filed a Motion in Limine . Robertson argued that Esteves should be prohibited from testifying until the State affirmatively proved that he satisfied the requirements of § 7-32-303(2), MCA, to be certified as a peace officer.

¶10 On September 13, 2017, the District Court held a hearing on Robertson's Motions. Regarding the Detention Center video, Detention Center Supervisor Zebediah Shawver testified that a video is normally recorded once an individual is brought to the jail following an arrest for a DUI. However, unless a specific request to preserve the video on another format was made, the video would automatically be overwritten after one to two months. Though Shawver was given a specific request to preserve the video, Shawver testified that he was out of the office when the request was made and the video was overwritten before he could download it. Esteves testified that he could not recall the names of the doctors who completed his physical and psychological evaluations for his certification as a police officer. Following the hearing, the District Court ordered that the prosecutor submit Esteves's physical and psychological evaluations for an in camera review.

¶11 On September 18, 2017, the State filed Esteves's physical and psychological evaluation with the District Court. The State provided two documents to the District Court. The first document was Esteves's "Final Candidate Rating" form, which reflected that he received a superior rating for his psychological profile. The second document was a wellness examination conducted by Dr. Kevin Ross in Glasgow. The District Court redacted and provided the documents to Robertson after conducting an in camera review.

¶12 After receiving the documents, Robertson filed a reply brief in support of his Motion in Limine arguing that Esteves's physical examination to be certified as a peace officer was deficient under § 7-32-303(2)(g)(i), MCA. Robertson claimed that the physician who completed Esteves's physical exam was his personal physician because Esteves's wellness examination stated it was an "annual exam," Esteves's insurance paid for the exam, and the State had failed to provide documentation showing that Dr. Ross was not Esteves's personal doctor. Robertson argued that Esteves was not qualified to testify at trial because he was not properly certified as a peace officer.

¶13 On September 26, 2017, the District Court denied Robertson's Motion to Suppress and Dismiss. The District Court determined that Esteves's search warrant application established probable cause to search Robertson's truck. The District Court further concluded that the Detention Center video was accidently overwritten, not intentionally suppressed or destroyed, and that Robertson had failed to show that the video was material, of substantial use, or exculpatory.

¶14 On September 28, 2017, the District Court denied Robertson's Motion in Limine pertaining to Esteves's ability to testify. The District Court held that Robertson's assumption about Dr. Ross being Esteves's personal physician was unfounded, and that regardless of whether he was Esteves's personal physician, Robertson had failed to provide any authority that a peace officer who fails to meet the qualifications of § 7-32-303(2), MCA, may not testify at trial.

¶15 On October 31, 2017 through November 2, 2017, the District Court conducted Robertson's jury trial. The jury found Robertson guilty of three offenses: misdemeanor DUI; misdemeanor criminal possession of dangerous drugs; and misdemeanor criminal possession of drug paraphernalia. On November 2, 2017, Robertson was sentenced to: (1) one year, with all but seven days suspended, on the DUI charge; (2) six months suspended on the criminal possession of dangerous drugs charge; and (3) six months deferred, on the criminal possession of drug paraphernalia charge.

STANDARD OF REVIEW

¶16 A district court has broad discretion when determining the relevance and admissibility of evidence. State v. Ellerbee , 2019 MT 37, ¶ 15, 394 Mont. 289, 434 P.3d 910 (citing State v. Kaarma , 2017 MT 24, ¶ 11, 386 Mont. 243, 390 P.3d 609 ; State v. Duffy , 2000 MT 186, ¶ 43, 300 Mont. 381, 6 P.3d 453 ). We review a district court's grant or denial of motions to admit or exclude evidence, including motions in limine , for an abuse of discretion. State v. Polak , 2018 MT 174, ¶ 12, 392 Mont. 90, 422 P.3d 112 (citing Hulse v. DOJ, Motor Vehicle Div. , 1998 MT 108, ¶ 15, 289 Mont. 1, 961 P.2d 75 ). However, a district court is bound by the Rules of Evidence and applicable statutes in exercising its discretion. Polak , ¶ 12 (citing State v. Daniels , 2011 MT 278, ¶ 11, 362 Mont. 426, 265 P.3d 623 ). Accordingly, we review a district court's ruling based on its interpretation of a Rule of Evidence or a statute de novo. Polak , ¶ 12 (citing State v. Lotter , 2013 MT 336, ¶ 13, 372 Mont. 445, 313 P.3d 148 ).

¶17 We review a district court's denial of a motion to suppress to determine whether the district court's findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Baty , 2017 MT 89, ¶ 9, 387 Mont. 252, 393 P.3d 187 (citing State v. Olson , 2003 MT 61, ¶ 11, 314 Mont. 402, 66 P.3d 297 ; State v. Dawson , 1999 MT 171, ¶ 13, 295 Mont. 212, 983 P.2d 916 ). A district court's factual findings are clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite or firm conviction that a mistake was made. Baty , ¶ 10 (citing State v. DeWitt , 2004 MT 317, ¶ 21, 324 Mont. 39, 101 P.3d 277 ; State v. Loh , 275 Mont. 460, 475, 914 P.2d 592, 601 (1996) ).

¶18 We review a motion to dismiss based on the State's failure to disclose exculpatory evidence de novo for correctness. State v. Williams , 2018 MT 194, ¶ 16, 392 Mont. 285, 423 P.3d 596 (citing State v. Betterman , 2015 MT 39, ¶ 11, 378 Mont. 182, 342 P.3d 971 ). Our review of constitutional questions, including alleged Brady violations, is plenary. State v. Ilk , 2018 MT 186, ¶ 15, 392 Mont. 201, 422 P.3d 1219 (citing State v. Jackson , 2009 MT 427, ¶ 50, 354 Mont. 63, 221 P.3d 1213 ).

DISCUSSION

¶19 Issue One: Whether the District Court erred when it denied Robertson's Motion in Limine to prevent the arresting officer from testifying at trial.

¶20 Potential peace officers must meet specific qualifications prior to certification as an officer. Section 7-32-303(2), MCA. Montana law provides, in relevant part:

(2) A sheriff of a county, the mayor of a city, a board, a commission, or any other person authorized by law to appoint peace officers in this state may not appoint any person as a peace officer who does not meet the following qualifications plus any additional qualifying standards for employment promulgated by the Montana public safety officer standards and training counsel established in [§] 2-15-2029 [MCA ]:
...
(g)(i) be examined by a licensed physician, or for the purposes of a mental health evaluation, a person who is licensed by the state under Title 37 and acting within the scope of the person's licensure, who is not the applicant's personal physician or licensed mental health professional, appointed by the employing authority to determine if the applicant is free from any mental or physical condition that might adversely affect performance by the applicant of the duties of a peace officer ....

Section 7-32-303(2)(g)(i), MCA.

¶21 Every person is competent to testify as a witness. M. R. Evid. 601(a). A witness who lacks personal knowledge of a matter may not testify. M. R. Evid. 602.

¶22 Robertson argues that Esteves's wellness examination conducted by Dr. Ross was insufficient to demonstrate that he fulfilled the qualifications of § 7-32-303(2)(g)(i), MCA. Therefore, Robertson argues that the District Court erred when it allowed Esteves to testify at trial. The State counters that Robertson's claim is speculative, and, regardless of its veracity, Esteves's failure to be certified as a peace officer would not disqualify him from testifying about his personal observations. We agree.

¶23 Robertson fails to provide any authority to support his contention that a peace officer may not testify at trial if they do not meet the qualifications of § 7-32-303(2), MCA. As the arresting officer, Esteves was a witness with personal knowledge of the traffic stop that led to Robertson's arrest. Esteves testified to his personal knowledge, as contemplated by M. R. Evid. 601(a), 602. Moreover, Robertson did not produce any substantial evidence that Esteves's wellness examination did not meet the requirements to certify Esteves as a peace officer. See § 7-32-303(2)(g)(i), MCA. The District Court did not abuse its discretion when it allowed Esteves to testify at trial. See Polak , ¶ 12.

¶24 Issue Two: Whether the District Court erred when it denied Robertson's Motion to Suppress evidence seized from his vehicle because no probable cause existed for the issuance of the search warrant.

¶25 Article II, Section 11 of the Montana Constitution provides: "No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing." A judge shall not issue a search warrant unless the search warrant application:

(1) states facts sufficient to support probable cause to believe that an offense has been committed;
(2) states facts sufficient to support probable cause to believe that evidence, contraband, or persons connected with the offense may be found;
(3) particularly describes the place, object, or persons to be searched; and
(4) particularly describes who or what is to be seized.

Section 46-5-221, MCA.

¶26 We have adopted a "totality of the circumstances" test to evaluate the existence of probable cause in a search warrant application. State v. Reesman , 2000 MT 243, ¶ 24, 301 Mont. 408, 10 P.3d 83, overruled in part by State v. Barnaby , 2006 MT 203, ¶ 42, 333 Mont. 220, 142 P.3d 809. Under the "totality of the circumstances," we consider if the issuing judge made "a practical, common sense determination, given all the evidence contained in the application for a search warrant, whether a fair probability exists that contraband or evidence of a crime will be found in a particular place." State v. Kasparek , 2016 MT 163, ¶ 8, 384 Mont. 56, 375 P.3d 372 (quoting Barnaby , ¶ 29 ; Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) ).

¶27 Probable cause does not require facts sufficient to show criminal activity; it requires facts that show a fair probability of the existence of criminal activity, determined solely from the information contained within the four corners of the search warrant application. State v. Kant , 2016 MT 42, ¶ 24, 382 Mont. 239, 367 P.3d 726 (citing Barnaby , ¶ 30 ); Kasparek, ¶ 8 (citing Muir v. Bilderback , 2015 MT 180, ¶ 12, 379 Mont. 459, 353 P.3d 473 ). The sufficiency of a search warrant is assessed on a case-by-case basis to determine whether any alleged defect in the search warrant application affected the substantial rights of the accused. Kasparek , ¶ 8 (citing Muir , ¶ 11 ; State v. West , 1998 MT 282, ¶ 8, 291 Mont. 435, 968 P.2d 289 ). An issuing judge's determination that probable cause exists is entitled to "great deference" and a reviewing court must make every reasonable inference to support an issuing judge's determination of probable cause. Kasparek , ¶ 8 (citing Muir , ¶ 12 ; State v. Tucker , 2008 MT 273, ¶ 17, 345 Mont. 237, 190 P.3d 1080 (internal quotations omitted)).

¶28 Esteves's search warrant application detailed the following facts: Esteves smelled marijuana coming from Robertson's truck when he approached the vehicle; Robertson voluntarily turned over a container with marijuana; and Robertson's passenger turned over a marijuana pipe with a full bowl of marijuana. Based on these facts, Esteves applied for, and received, a search warrant from the Valley County Justice of the Peace, authorizing a search of Robertson's truck for additional contraband. The search revealed a total 111.2 grams of marijuana in Robertson's truck.

¶29 Given the totality of the circumstances, probable cause existed to issue a warrant authorizing a search of Robertson's truck for additional marijuana. The four corners of Esteves's search warrant application stated with particularity the area that was to be searched-Robertson's truck; and described with particularity what additional drug evidence was expected to be seized-marijuana. See § 46-5-221, MCA ; Kasparek, ¶ 8 ; Muir , ¶ 12. Robertson voluntarily provided Esteves with a container of marijuana and marijuana paraphernalia, which supported probable cause for the misdemeanor offenses of criminal possession of dangerous drugs and possession of drug paraphernalia. See § 45-9-102, MCA ; § 45-10-103, MCA ; see also Kant , ¶ 24 ; Barnaby , ¶ 30. Nothing in the record indicates a defect in the search warrant application process that affected Robertson's substantial rights. See Kasparek , ¶ 8 ;

Muir , ¶ 11 ; West , ¶ 8. Esteves's search warrant application stated facts sufficient to support probable cause to believe that Robertson committed a drug-related offense and that additional marijuana evidence for that offense would be found in Robertson's truck. See § 46-5-221, MCA ; Kasparek , ¶ 8 ; Barnaby , ¶ 29.

¶30 The Justice of the Peace correctly determined that probable cause existed for the issuance of a search warrant of Robertson's truck. See Kasparek , ¶ 8 ; Muir , ¶ 12 ; Tucker , ¶ 17. The District Court did not err in when it denied Robertson's Motion to Suppress. See Baty , ¶ 9 ; Olson , ¶ 11.

¶31 Issue Three: Whether the District Court erred when it denied Robertson's Motion to Dismiss the DUI charge due to the State's failure to preserve video evidence.

¶32 Under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a criminal defendant has a constitutional right to obtain exculpatory evidence, and the State violates the defendant's right to due process when it suppresses such evidence. Williams , ¶ 18 (citing U.S. Const. amend. XIV ; Mont. Const. art. II, § 17 ); see also § 46-15-322(1)(e), MCA ("Upon request, the prosecutor shall make available to the defendant ... all material or information that tends to mitigate or negate the defendant's guilt as to the offense charged or that would tend to reduce the defendant's potential sentence ...."). To prove the State violated his due process rights under Brady , a defendant must establish that: (1) the State possessed evidence favorable to the defense; (2) the prosecution suppressed the favorable evidence; and (3) had the evidence been disclosed, a reasonable probability exists that the outcome of the proceedings would have been different. Ilk , ¶ 29 (citing State v. Reinert , 2018 MT 111, ¶ 17, 391 Mont. 263, 419 P.3d 662 ). The defendant bears the burden of proving all three prongs to demonstrate a Brady violation occurred. Ilk , ¶ 30 (citing Reinert , ¶ 17 ).

¶33 Under the first prong, the defendant must make a showing of more than "mere speculation" to demonstrate that evidence in the State's possession would have been favorable. Ilk , ¶ 31 (internal quotations and citations omitted). Under the second prong, negligently suppressed evidence amounts to a due process violation only where the evidence "is material and of substantial use, vital to the defense, and exculpatory." McGarvey v. State , 2014 MT 189, ¶ 17, 375 Mont. 495, 329 P.3d 576 (quoting State v. Gollehon , 262 Mont. 1, 13, 864 P.2d 249, 257 (1993) ); see also State v. Seiffert , 2010 MT 169, ¶ 16, 357 Mont. 188, 237 P.3d 669 (citing State v. Herman , 2009 MT 101, ¶ 31, 350 Mont. 109, 204 P.3d 1254 ). Regarding the third and final prong, to demonstrate a "reasonable probability" that the outcome would have been different, a defendant must establish that the favorable evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." State v. Weisbarth , 2016 MT 214, ¶ 26, 384 Mont. 424, 378 P.3d 1195 (quoting Kyles v. Whitley , 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995) ).

¶34 Robertson argues that the State suppressed evidence favorable to him because it allowed the Detention Center video to be overwritten. Robertson asserts that the video was favorable to his defense because it would have demonstrated that Robertson's actions, physical movements, decision making, and speech were consistent with his ability to safely operate a motor vehicle. The State argues that the record fails to support Robertson's contentions, that he has offered no evidence to support his theory, and that there was no reasonable probability that the outcome of his DUI charge would be different had the Detention Center video not been overwritten. We agree.

¶35 Though we do not sanction the State's failure to preserve the video, particularly in light of Robertson's specific request to preserve the video, the record here fails to establish a prima facie Brady violation. Robertson offers nothing to indicate that the Detention Center video constituted favorable evidence. Robertson's contention that the erased video would have demonstrated his sobriety is "mere speculation" unsupported by the record. See Ilk , ¶ 31. Although Detention Center Supervisor Shawver confirmed that the Detention Center video was mistakenly overwritten, Robertson fails to demonstrate that it was material, vital to his defense, or exculpatory. See McGarvey , ¶ 17 ; Seiffert , ¶ 16 ; Herman , ¶ 31. Finally, Robertson fails to establish that there would be a reasonable probability that the outcome of his DUI charge would be different given the existence of the Detention Center video. See Weisbarth , ¶ 26 ; Kyles , 514 U.S. at 435, 115 S.Ct. at 1566. The record contained substantial evidence indicating Robertson's impairment while driving, including: Esteves's observation of Robertson's erratic driving at night shortly after leaving a local bar; Robertson's admission to Esteves that he consumed alcohol prior to driving; Robertson's field sobriety tests indicated impairment; and Robertson's blood test sample revealed a BAC of 0.112. See Ilk , ¶ 31 ; Weisbarth , ¶ 26.

¶36 Robertson has not met his burden to demonstrate a Brady violation occurred. See Ilk , ¶ 30 ; Reinert , ¶ 17. The District Court did not err when it denied Robertson's Motion to Dismiss his DUI charge based on the State's failure to preserve the Detention Center video. See Williams , ¶ 16 ; Ilk , ¶ 15.

CONCLUSION

¶37 The District Court did not err when it denied Robertson's Motion in Limine and allowed Esteves to testify at trial, concluded that Esteves's search warrant application established probable cause to search Robertson's truck, and denied Robertson's Motion to Dismiss his DUI charge due to the State's failure to preserve his Detention Center video. We affirm.

We concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

LAURIE McKINNON, J.

      The State later amended the Information to reflect that the criminal possession of dangerous drugs charge was a misdemeanor rather than a felony.


text:
    State of MONTANA, Plaintiff and Appellee, v. Douglas Alan MEHAN, Defendant and Appellant.
    DA 17-0197
    Supreme Court of Montana.
    Submitted on Briefs: March 6, 2019 Decided: April 30, 2019
    For Appellant: Chad Wright, Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana, Joshua Racki, Cascade County Attorney, Amanda Lofink, Deputy County Attorney, Great Falls, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 In 2016, Douglas Alan Mehan pleaded guilty to Sexual Intercourse Without Consent, a felony. At sentencing, the Eighth Judicial District Court, Cascade County, imposed numerous conditions, including several restricting Mehan's contact with minors upon his release. Mehan objected to these conditions on the basis that they had no nexus to the underlying offense. The District Court declined to remove the conditions. Mehan appeals. We reverse and remand for correction of the sentence.

¶2 We restate the issue on appeal as follows:

Whether the conditions restricting Mehan's contact with minors have a sufficient nexus to Mehan or the underlying offense.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On June 12, 2015, Mehan raped an unconscious woman in the parking lot of a bar in Great Falls, Montana. The rape, and Mehan's interaction with the victim inside the bar, were recorded on the bar's surveillance cameras. On June 25, 2015, the State charged Mehan with Sexual Intercourse Without Consent, in violation of § 45-5-503, MCA. Mehan entered into a plea agreement with the State, pursuant to § 46-12-211(1)(b), MCA, and changed his plea to guilty. On January 18, 2017, the District Court accepted the plea agreement, designated Mehan as a Tier I sexual offender, and sentenced to him fifty years in the Montana State Prison with twenty-five years suspended.

¶4 Prior to sentencing, a Presentence Investigation Report (PSI) was prepared, which included sentencing condition recommendations for the District Court. At sentencing, the District Court imposed nearly all conditions recommended in the PSI, including those challenged on appeal, which restrict Mehan's contact with minors. Mehan objected, arguing the victim was not a minor and thus there was not a sufficient nexus between Mehan or his offense and the conditions protecting minors. The District Court overruled Mehan's objection, reasoning:

[I]t appears to me, from studying the charging affidavit and the reports of the two experts, that Mr. Mehan's view of what a reasonable woman would consent to has been informed and in a large degree distorted by his viewing of pornography. And that, to me, is the necessary nexus to keep him away from that in the future. And so those objections are overruled.

¶5 Mehan appeals.

STANDARD OF REVIEW

¶6 This Court reviews the reasonableness of conditions or restrictions imposed in a sentence for an abuse of discretion, if the conditions are objected to at sentencing. State v. Leyva , 2012 MT 124, ¶ 15, 365 Mont. 204, 280 P.3d 252.

DISCUSSION

¶7 Whether the conditions restricting Mehan's contact with minors have a sufficient nexus to Mehan or the underlying offense.

¶8 When a portion of a defendant's sentence has been suspended, the district court has authority to impose restrictions or conditions on the offender's freedom of association and freedom of movement, in addition to any other limitation reasonably related to the objectives of rehabilitation and the protection of the victim and society. State v. Bullplume , 2013 MT 169, ¶ 18, 370 Mont. 453, 305 P.3d 753 ; State v. Malloy , 2004 MT 377, ¶ 8, 325 Mont. 86, 103 P.3d 1064 ; § 46-18-202(1)(c), (d), (g), MCA. The district court's discretion is limited, however, and the restrictions "must relate to rehabilitation or protection of society within the particular context of an offender's crime or the unique background, characteristics, or conduct of the offender." State v. Zimmerman , 2010 MT 44, ¶ 17, 355 Mont. 286, 228 P.3d 1109. A condition will meet this standard "so long as the condition has a nexus to either the offense for which the offender is being sentenced, or to the offender himself or herself." State v. Ashby , 2008 MT 83, ¶ 15, 342 Mont. 187, 179 P.3d 1164. Offender-related conditions are appropriate where "the history or pattern of conduct to be restricted is recent, and significant or chronic." Ashby , ¶ 15. "[I]t is insufficient that a condition of sentence relate[s] generally to rehabilitation; rather 'there must be a correlation between the crime for which the defendant was convicted and the condition imposed.' " Ashby , ¶ 14 (quoting State v. Ommundson , 1999 MT 16, ¶ 4, 293 Mont. 133, 974 P.2d 620 ). When the requisite nexus is "absent or exceedingly tenuous," this Court will reverse the condition. State v. Melton , 2012 MT 84, ¶ 18, 364 Mont. 482, 276 P.3d 900 (quoting Zimmerman , ¶ 17 ).

¶9 Mehan argued at sentencing, and reasserts on appeal, that the following conditions fail the nexus test:

23. Defendant shall not have contact with any individual under the age of 18 unless accompanied by an appropriately trained, responsible adult who is aware of the Defendant's sexual conviction and is approved by the Probation & Parole Officer and sex offender treatment provider. The Defendant shall sign a "No Contact" contract and abide by all conditions of the contract.
24. Defendant shall not frequent places where children congregate unless accompanied by an appropriately trained, responsible adult who is aware of the Defendant's sexual conviction and approved by the Probation & Parole Officer and sex offender treatment provider. This includes, but is not limited to, schools, parks, playgrounds, malls, movies, fairs, parades, swimming pools, carnivals, arcades, parties, family functions, holiday festivities, or any other place or function where children are present or reasonably expected to be present. Defendant shall obtain permission from his/her probation/parole officer prior to going to any of the above places.
...
30. The Defendant's chaperone/supervisor must sign a statement of responsibility and be approved by both the Probation & Parole Officer and the treatment provider.
31. The Defendant shall not be involved in any type of employment, service or recreational pursuit that involves the supervision of children. Under no circumstances should the Defendant be in a position of power and authority over children.
...
33. The Defendant's residence, changes and any co-habitants must have prior approval of the Probation & Parole Officer. The Defendant shall not reside in a residence where there are any children under the age of 18 without the written approval of the therapist and the Officer.
...
40. The Defendant shall not date, live with, or otherwise be aligned with any person with children under the age of 18 without the express prior approval of the therapist and Probation & Parole Officer. If this approval is granted, they shall both be involved with the Defendant's treatment to the extent recommended by the treatment provider.

Mehan urges that because the victim of his crime was not a minor, the above conditions have no reasonable relation to either him or his offense. The State disagrees and argues that minors should be protected from Mehan because they are a class uniquely vulnerable to sexual abuse and, like the unconscious victim in this case, minors are incapable of consenting to sexual acts. We agree with Mehan.

¶10 The State points to several cases upholding similar restrictions despite the fact that the underlying offenses did not involve sexual abuse against minors. Specifically, the State cites to Bullplume , Leyva , and Malloy . In Leyva and Malloy , this Court upheld similar conditions limiting the defendants' contact with minors even though the defendants had no history of sex crimes involving children. Leyva , ¶ 25 ; Malloy , ¶ 15. Yet, Leyva and Malloy are factually distinguishable from the case sub judice. Unlike Mehan, the defendants in both Leyva and Malloy "had prior sexual offenses, had not completed sex offender treatment, and demonstrated an 'inability to conform [their] conduct to the demands of this State's sexual offender laws.' " Malloy , ¶ 14 ; Leyva , ¶ 25. Mehan has no prior sexual offenses, nor has he failed to complete required sex offender treatment. Moreover, the defendant in Leyva was placed at a high-moderate risk to reoffend whereas Mehan was placed in the low-moderate category for recidivism. Leyva , ¶ 24. Bullplume is similarly distinguishable in that the defendant was placed at a moderate risk to reoffend and was characterized as " 'non-conforming, resentful of authority[,] ... erratic and unpredictable,' " which raised " 'questions on how likely the Defendant [would] comply with any Court-ordered probation conditions.' " Bullplume , ¶ 25. A similar characterization is absent from Mehan's psychosexual evaluation. The State further argues that the conditions are reasonable because Mehan, like the defendant in Leyva , continuously minimized the severity of the assault and rationalized his criminal conduct. This argument, while accurate, is insufficient to establish the required nexus alone.

¶11 Two separate psychosexual evaluations were conducted-one by Robert N. Page and the other by Donna M. Zook. Neither evaluation supports the State's contention that Mehan's contact with minors should be restricted. Page recommended a Tier I designation and concluded that Mehan had a "low-moderate need for intense supervision." While Page found that Mehan was more prone to sexual aggression while intoxicated and recommended in-prison sex offender treatment if a prison sentence were imposed, he also advised that community treatment was appropriate if a prison sentence was not imposed. Zook similarly concluded that Mehan does "not exhibit or experience persistent deviant sexual interest," and he "does not have the characteristics of a dangerous or predatory sexual offender." Based on her findings from the tests and clinical interview, Zook also suggested a Tier I designation and found that "[t]he likelihood of Mr. Mehan committing further acts of violence of this type is lower and falls in line with the general population committing this type of crime." Zook concluded that Mehan "is considered appropriate for community probation" albeit with strict conditions and intensive supervision.

¶12 At sentencing, the State admitted the conditions involving minors were not standard conditions of probation, but insisted they were standard conditions of probation for sex offenders in treatment. Without more, this is not a persuasive reason to uphold the conditions. "Unless a condition is legally mandated, conditions of probation should not be imposed as standard or stock requirements. Rather, sentencing must be individualized." State v. Simpson , 2009 MT 43, ¶ 5, 349 Mont. 275, 203 P.3d 791. Mehan does not have a record of prior sexual offenses involving minors or adults, he has not failed to complete mandated sex offender treatment, and his psychosexual evaluations positioned him at a low-moderate risk to reoffend. Taken together, we find Mehan's circumstances distinguishable from similar cases upholding comparable conditions.

¶13 Mehan also challenges condition number twenty-two of the District Court's written judgment on the basis that it unlawfully imposes additional conditions not included in the oral pronouncement of sentence; the State concedes. It is well established that the oral pronouncement of sentence will control when a conflict arises between the oral and written judgments. Malloy , ¶ 16. Here, condition number twenty-two of the Court's oral pronouncement and condition number twenty-two of the written judgment plainly conflict. Therefore, the oral condition governs.

CONCLUSION

¶14 It was an abuse of discretion to hold there was a sufficient nexus between the conditions prohibiting contact with minors and Mehan or his offense. The District Court is reversed and this case is remanded for the limited purpose of striking the above cited conditions regarding contact with minors. Additionally, because the oral pronouncement and the written judgment conflict, on remand the District Court shall revise the sentence to conform to the oral pronouncement of sentence.

¶15 Reversed and remanded.

We Concur:

LAURIE McKINNON, J.

JAMES JEREMIAH SHEA, J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.


author: By the Court, PICKERING, J.:

text:
    In the MATTER OF the FUND FOR the ENCOURAGEMENT OF SELF RELIANCE, an Irrevocable Trust.
    Doan L. Phung, Appellant, v. Thu-Le Doan, Respondent.
    No. 74964
    Supreme Court of Nevada.
    FILED APRIL 25, 2019
    Mushkin Cica Coppedge and Michael R. Mushkin and L. Joe Coppedge, Las Vegas, for Appellant.
    Goldsmith & Guymon, P.C., and Dara J. Goldsmith and Peter Co, Las Vegas, for Respondent.
    BEFORE THE COURT EN BANC.
   By the Court, PICKERING, J.:

The issue presented by this appeal is whether the district court erred in ordering, under NRS 163.556, half of a wholly charitable trust's property "decanted" (i.e., appointed) into a newly created wholly charitable trust with the same purpose as the original charitable trust, to be administered solely by one trustee of the original trust, against the objection of co-trustees. Because the terms of the trust instrument require the unanimous consent of all trustees to make a distribution of half of the trust's assets, the district court erred by ordering the wholly charitable trust decanted under NRS 163.556.

In relevant part under NRS 163.556(1), "a trustee" who has "discretion or authority to distribute" trust property (income or principal) "to or for" beneficiaries "may" appoint or distribute trust property to a newly created second trust, "unless the terms of ... [the] irrevocable trust provide otherwise." Respondent Thu-Le Doan argued, and the district court agreed, that this statute authorized the district court to order half of the property of the charitable trust, The Fund for the Encouragement of Self Reliance, decanted into a newly created charitable trust with the same purpose as the original. Appellant Doan L. Phung argues that this was reversible error because "[n]owhere in the Charter is 'a trustee' allowed to invade the assets without the permission of the Board." (Emphasis added.) We agree with Phung.

"When the language of a statute is plain and unambiguous," we "give that language its ordinary meaning and [do] not go beyond it." Coast Hotels & Casinos, Inc. v. Nev. State Labor Comm'n , 117 Nev. 835, 840, 34 P.3d 546, 550 (2001). However, this court "construe[s] statutes to give meaning to all of their parts and language, and this court will read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation." Harris Assocs. v. Clark Cty. Sch. Dist., 119 Nev. 638, 642, 81 P.3d 532, 534 (2003) (internal quotation marks omitted).

Although the statute's plain language provides that "a trustee" may decant if he or she has discretionary distribution powers, NRS 163.556(1), "trustee" is a statutorily defined term for trusts generally and charitable trusts specifically. For charitable trusts, like the one at issue here, "trustee" is not limited to a singular person, but rather includes "a trustee, trustees, person or persons possessing a power or powers referred to in [the Charitable Trust Act]." NRS 163.500 (emphasis added); see also NRS 132.355 (generally, "trustee" "includes an original, additional or successor trustee, whether or not appointed or confirmed by a court") (emphasis added). Thus, because the statute's phrase "a trustee" contemplates action by multiple trustees, and because the right under NRS 163.556(1) is subject to the terms of the trust instrument, we must address whether the terms of the trust instrument permit a trustee to make a unilateral distribution.

"We construe trusts in a manner effecting the apparent intent of the settlor." In re Connell Living Tr., 134 Nev., Adv. Op. 73, 426 P.3d 599, 602 (2018). Here, the relevant section of the trust instrument provides: "Trustees ... may, in their discretion," (emphasis added) manage trust property and income. By its plain language, the trust instrument therefore gives the "trustees" power to manage trust funds only in "their" unanimous discretion; it does not give a trustee power to manage trust funds in his or her unilateral discretion.

"[I]n the absence of statute or contrary direction in the trust instrument[,] [t]he trustees are regarded as a unit." George Gleason Bogert, Law of Trusts and Trustees § 554 (2d rev. ed. 1980). "They hold their powers as a group so that their authority can be exercised only by the action of all the trustees." Id. Because the trust instrument does not provide that a trustee may unilaterally distribute trust property, unanimous action by the trustees would be required to exercise the decanting right under the statute. See NRS 163.556(1) ("a trustee with discretion or authority to distribute " may exercise the statutory decanting right) (emphasis added).

The district court erred in ordering a course of action that the trust instrument did not permit and the settlors did not intend. We therefore reverse the district court's order granting Doan's motion to decant the trust and remand the matter for further proceedings consistent with this opinion.

We concur:

Gibbons, C.J.

Hardesty, J.

Parraguirre, J.

Stiglich, J.

Cadish, J.

Silver, J.

      We grant appellant Doan L. Phung's NRAP 36(f) motion and replace our prior unpublished disposition with this opinion.

      As an initial matter, we acknowledge that it is not clear whether NRS 163.556 applies to charitable trusts. We need not reach this issue, however, because even if the statute did apply to the trust at issue, we conclude that, under its terms, the trust did not permit a trustee to unilaterally appoint or distribute property without the consent of his or her co-trustees.

      We have considered the parties' other arguments and have concluded that they lack merit. It is the parties' "responsibility to cogently argue, and present relevant authority, in support of" their arguments. Edwards v. Emperor's Garden Restaurant, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). We will not consider issues not so presented. Id.