author: JUSTICE GRAY CHIEF JUSTICE TURNAGE

text:
    WILLIAM R. RICHTER and CAROL ANNE RICHTER, Plaintiffs and Respondents, v. JOSEPH C. ROSE and LOIS F. ROSE, husband and wife, Defendants and Appellants.
    No. 97-288.
    Submitted on Briefs June 18, 1998.
    Decided June 30, 1998.
    1998 MT 165.
    55 St.Rep. 663.
    962 P.2d 583.
    289 Mont. 379.

      See C.J.S. Eminent Domain § 30.

      For Appellants: Marshall Murray, Attorney at Law, Kalispell.
    For Respondents: Thomas R. Bostock; Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 William R. and Carol Anne Richter (the Richters) brought the underlying action against Joseph C. and Lois F. Rose (the Roses) seeking a declaration that a public right-of-way had been established across the Roses’ property in the early 1900s or, alternatively, a condemnation order granting them an easement across the Roses’ property. The Eleventh Judicial District Court, Flathead County, rejected the Richters’ public right-of-way claim but entered a preliminary condemnation order and judgment in their favor.

¶2 The Roses appeal from that order and judgment and from the subsequent denial of their motion to amend the conclusions and judgment, contending that the District Court erred in concluding that the Richters’ property is a farm for eminent domain purposes and, because it did not have jurisdiction over the issue of necessity, further erred in issuing the preliminary condemnation order. We reverse the District Court’s conclusion that the Richters’ property is a farm for eminent domain purposes and, therefore, we need not reach the issue relating to the issuance of the preliminary condemnation order.

¶3 The Richters cross appeal from the District Court’s conclusion that they did not establish the existence of a public right-of-way by a preponderance of the evidence. We affirm on the cross appeal.

BACKGROUND

¶4 Francis and Lois O’Connell (the O’Connells), Carol Richter’s parents, obtained Government Lot 10 of Section 1, Township 31 North, Range 20 West, Flathead County (Lot 10) at a sheriff’s sale in 1958 and gifted it to the Richters in 1971. Lot 10 consists of 133.47 acres of alternating meadow and timberland that has been used primarily for recreational purposes by both the O’Connells and the Richters. Neither couple had deeded land access to Lot 10.

¶5 Lot 10 is bounded to the north and west by property owned by the Roses and to the south by property owned by the Roses and by several smaller properties, the owners of which were not named as defendants in this suit. The North Fork of the Flathead River forms the eastern boundary of Lot 10 and has provided the only access to Lot 10. The portion of the Roses’ property across which the Richters seek access is described as Government Lot 2 and the Southwest Quarter of the Northeast Quarter and the Northwest Quarter of the Northeast Quarter of Section 12, Township 31 North, Range 20 West (Lot 2).

¶6 The Richters first sought to obtain deeded land access to Lot 10 in 1990, when they contacted Joseph Rose about purchasing an easement across the Roses’ property. Discussions continued for several months, during which time the Richters obtained a survey of Lot 10 at Joseph Rose’s request. Joseph Rose then proposed a location for the easement and a price of approximately $2,000 was discussed. The Richters’ attorney submitted a written easement agreement to the Roses in 1991.

¶7 In the interim, and acting on their belief that they had viable access to Lot 10, the Richters hired professional forester Phillip Healey (Healey) in 1991. Healey analyzed and evaluated the timber resources on Lot 10 and concluded that there was merchantable timber on Lot 10 requiring management. He further concluded that land access to Lot 10 was necessary for the economical management and extraction of the timber.

¶8 The Roses refused to sign the written easement agreement and the Richters filed the present action seeking a declaration that a public right-of-way exists across the Roses’ property or, alternatively, to condemn an easement for an authorized public use. The Richters’ complaint also included breach of contract and trespass claims.

¶9 The Richters presented considerable historical evidence at trial relating to their theory that a public right-of-way was established across the Roses’ property in the early 1900s. Carol Richter also testified that the Flathead County Attorney had found no evidence of either the existence or the abandonment of such a public right-of-way. Because the statutes applicable to eminent domain require the party attempting to condemn property via eminent domain to take certain steps prior to filing a condemnation action, the Richters both testified to the steps they had taken. William Richter stated that he had negotiated with Joseph Rose regarding an easement and the Richters’ attorney had submitted an offer for a written easement agreement. He also stated that Lot 10 consists half of grazing land and half of timber land. According to Carol Richter, the crops raised on Lot 10 are timber and grass.

¶ 10 The District Court concluded that the Richters did not establish the existence of a public right-of-way across the Roses’ property. It found, however, that the only reasonable or practical means of access to Lot 10 is across the Roses’ property and ultimately concluded that the Richters were entitled to condemn an easement across the Roses’ property. Its conclusion was based, in part, on its determination that the Richters’ property is a farm.

¶11 The District Court issued a preliminary condemnation order and ordered the Roses to file a statement of claim of just compensation. The Roses subsequently moved to amend the District Court’s conclusions and judgment and the motion was deemed denied when the District Court failed to rule on it within 60 days. The Roses appeal and the Richters cross appeal.

STANDARD OF REVIEW

¶ 12 The parties’ challenges are directed primarily to conclusions of law made by the District Court. We review a district court’s conclusions of law to determine whether the interpretation of the law is correct. St. John v. Missoula Elec. Co-Op., Inc. (1997), 282 Mont. 315, 320, 938 P.2d 586, 588 (citations omitted).

¶13 The Roses also appeal from the denial of their motion to amend the findings of fact, conclusions of law, and judgment. Our standard in reviewing the denial of a motion to amend is whether the district court abused its discretion. Hickingbotham v. Duncan (1995), 271 Mont. 525, 529, 898 P.2d 1215, 1217 (citation omitted).

DISCUSSION

¶14 1. Did the District Court err in concluding that Lot 10 is a farm?

¶15 Eminent domain is the right to take private property for a public use. Section 70-30-101, MCA. In Montana, the procedures for taking property pursuant to eminent domain are entirely statutory. See §§ 70-30-101, MCA, et seq. Among the public uses on behalf of which the right of eminent domain may be exercised are private roads leading to farms or residences. Section 70-30-102(6), MCA.

¶ 16 In this case, the Richters sought to exercise the right of eminent domain to obtain an easement interest across Lot 2 for a private road to Lot 10. They contended that Lot 10 is a farm under § 70-30-102(6), MCA. The District Court applied the definition of “farm” set forth in § 72-16-331(7), MCA, as “truck farms, ranches, nurseries, ranges, greenhouses, orchards, woodlands, or structures used primarily for raising agricultural or horticultural commodities” and concluded that Lot 10 is a farm because it consists of woodlands with marketable timber. The Roses contend that the District Court erred in relying on the definition of farm contained in § 72-16-331(7), MCA.

¶17 Title 70, Chapter 30, MCA, does not define “farm.” “Farm” is defined in several other locations in the MCA, however, and when a word is defined in any part of the MCA, the same definition applies wherever the word appears unless “a contrary intention plainly appears.” See § 1-2-107, MCA.

¶18 Here, the District Court applied the definition of farm contained in § 72-16-331(7), MCA. However, § 72-16-331, MCA, limits application of the definitions contained therein to §§ 72-16-331 through 72-16-349, MCA, which involve valuation for probate purposes. The legislature having clearly expressed its intention that the definition of “farm” contained in § 72-16-331(7), MCA, applies only to certain sections within the Montana Probate Code, that definition cannot properly be applied in the context of § 70-30-102, MCA. Therefore, we hold that the District Court erred in doing so.

¶19 For similar reasons, none of the other statutory definitions of farm advanced by the parties in the District Court and this Court are applicable in defining “farm” for purposes of § 70-30-102(6), MCA. The definitions of farm contained in § 39-3-402, MCA, apply only to Part 4 of Title 39, Chapter 3, which pertains to minimum wage and overtime compensation. Similarly, the definition of farm contained in § 39-51-205(3), MCA, is limited to use “in this section[.]” Thus, as was the case with the definition of farm contained in § 70-16-331(7), MCA, the legislature clearly expressed its intention that the definitions contained in §§ 39-3-402 and 39-51-205(3), MCA, are limited in their application and cannot properly be used in defining “farm” for purposes of § 70-30-102(6), MCA.

¶20 Nor does the definition of “farm operation” contained in § 70-31-102(6), MCA, apply. On the face of it, “farm operation” and “farm” are not necessarily equivalent terms and, in any event, we cannot simply impose the definition of a different term on the word “farm” contained in § 70-30-102(6), MCA. Moreover, § 70-31-102, MCA, provides that the definitions contained therein apply only to Chapter 31, which relates to relocation assistance for condemnees. Thus, the legislature again clearly expressed its intention that the definitions contained in § 70-31-102, MCA, are limited in their application.

¶21 Since farm is not defined for purposes of § 70-30-102(6), MCA, and other definitions advanced are not applicable, we must construe the term according to its plain meaning. See § 1-2-106, MCA; State v. Nye (1997), 283 Mont. 505, 510, 943 P.2d 96, 99 (citations omitted). The dictionary definition of farm is “[a] tract of land cultivated for the purposes of agricultural production. ..." American Heritage Dictionary 661 (3d ed. 1992). Cultivate is defined as “[t]o improve and prepare (land), as by plowing or fertilizing, for raising crops; till. To dig or loosen soil around (growing plants). To grow or tend (a plant or crop). ..." American Heritage Dictionary 454 (3d ed. 1992).

¶22 Obviously, Lot 10 is a tract of land. However, the Richters have not prepared, fertilized or tilled the soil on Lot 10 or otherwise cultivated the land for agricultural purposes. Nor have they cited to any authority under which naturally-occurring grasslands and timber are “crops” in the ordinary meaning of that word. Thus, we conclude that Lot 10 is not a “farm” within the plain meaning of that term.

¶23 We hold, therefore, that the District Court erred in concluding that Lot 10 is a farm under § 70-30-102(6), MCA, for purposes of exercising the right of eminent domain and, as a result, we further hold that the Richters failed to establish a public use on behalf of which eminent domain could be exercised. Finally, we hold that the District Court’s deemed denial of the Roses’ motion to amend to conclude that the Richters’ property was not a farm for eminent domain purposes constituted an abuse of discretion.

¶24 2. Did the District Court err in concluding that the Richters failed to establish the existence of a public right-of-way across the Roses’ property by a preponderance of the evidence?

¶25 The Richters’ primary access theory at trial was that a road running from Blankenship Road, a county road, across the Roses’ property to Lot 10 was established by use as, and remains, a public highway pursuant to Revised Statute § 2477 (R.S. § 2477) or by common law dedication. The Richters introduced documentary evidence in support of this theory, including land patents and land patent applications. The land patents, by which public lands were granted to an individual, were used by the Richters to show when land was removed from the public domain. According to the Richters, because a wagon road was shown on certain land patent applications and the settlers needed to get to Columbia Falls, the settlers were likely to have used the wagon road to get to Columbia Falls and, therefore, a public highway was created by use.

R.S. §2477

¶26 The District Court concluded that the Richters had failed to establish the existence of a public right-of-way across the Roses’ property pursuant to R.S. § 2477 by a preponderance of the evidence. The Richters argue that the District Court’s conclusion is incorrect and that the public right-of-way established pursuant to R.S. § 2477 still exists.

¶27 R.S. § 2477 (subsequently renumbered 43 U.S.C. § 932) granted “[t]he right of way for the construction of highways over public lands, not reserved for public uses....” 43 U.S.C. § 932 (repealed October 21, 1976 by Pub.L. 94-579). Its purpose was “to enable the public to acquire a roadway over public lands.” City of Butte v. Mikosowitz (1909), 39 Mont. 350, 355, 102 P. 593, 595. We have long recognized, however, that the grant set forth in R.S. § 2477 “is but an offer of the right of way for the construction of a public highway on some particular strip of public land, and can only become fixed when a highway is definitely established and constructed in some one of the ways authorized by the laws of the state in which the land is situated.” State v. Nolan (1920), 58 Mont. 167, 173, 191 P. 150, 152. Therefore, we turn to Montana law to determine whether a public highway was established across what is now the Roses’ property in the early 1900s so as to constitute the acceptance of the right-of-way offered via R.S. § 2477.

¶28 Prior to 1895, a public highway could be established in Montana in four different ways: 1) by action of the proper authorities in accordance with statutory provisions; 2) by prescriptive use for the period of time required by statute; 3) by opening and dedication by the private owner; and 4) on partition of real property. Nolan, 58 Mont. at 173, 191 P. at 152. In 1895, however, § 2603 of the Political Code of Montana (§ 2603) became effective. Section 2603 provided that “no route of travel used by one or more persons over another’s land shall hereafter become a public road or by-way by use, or until so declared by the Board of Commissioners or by dedication by the owner of the land affected[;]” as a result, use alone was insufficient to establish a public highway after 1895. Nolan, 58 Mont. at 172, 191 P. at 152. By 1907, this statute had been renumbered as § 1340 of the Revised Code of 1907 and, in 1913, it was amended to delete the prohibition against creating a public highway by use alone. See Maynard v. Bara (1934), 96 Mont. 302, 306, 30 P.2d 93, 95 (citation omitted). Thus, a public highway could not be established by prescriptive use between 1895 and 1913 unless the “use was accompanied by some action on the part of the public authorities having jurisdiction of the subject, tantamount to a declaration that the particular road was a public highway.” Maynard, 96 Mont. at 306, 30 P.2d at 95 (citing Nolan, 58 Mont. at 173, 191 P. at 152). As a result, the offer of a public right-of-way under R.S. § 2477 could not be accepted — and a public right-of-way established thereby — by use alone between 1895 and 1913. Maynard, 96 Mont. at 306, 30 P.2d at 95; Nolan, 58 Mont. at 173, 191 P. at 152.

¶29 Here, Carol Richter admitted that no record existed of any action on the part of the County Commissioners to declare that any road across the Roses’ property was a public highway. Consequently, the § 2603 requirement of action by the governing authorities was not met. As a matter of law, therefore, the Richters’ evidence of use alone was insufficient to establish that a public road or right-of-way had been created across what later became the Roses’ property between 1903 and 1907.

¶30 The Richters do not address § 2603. Instead, they contend that § 2600 of the Political Code of Montana (§ 2600), also enacted in 1895, authorized the creation of a public highway across private land by use alone. From that initial premise, they point to our statement in Mikosowitz that a public highway across public land can be created in the same manner a public highway can be created over private land (see Mikosowitz, 39 Mont. at 355, 102 P. at 595) and, packaging these two contentions together, posit that a public highway across the Roses’ property could be — and was — created by use between 1903 and 1907. The Richters also argue under Mikosowitz that, once the public has accepted the offer of a grant of a public right-of-way by constructing a highway, anyone taking the land after such acceptance takes the land subject to the public right-of-way. We need not address the Richters’ Mi/eosowife-related theories because it is clear that their interpretation of § 2600, on which the rest of their argument is based, is incorrect.

¶31 Section 2600, enacted in 1895, provided that all highways “now traveled or used by the public, or if laid out or erected by others, dedicated or abandoned to the public ... are public highways.” The statute clearly declared that certain highways existing in 1895- — -including those merely “used by the public” — were public highways. It did not provide the methods by which public highways could be established subsequent to that time. As discussed above, § 2603 addressed that issue and provided that use alone was not sufficient to establish a public highway between 1895 and 1913; thereafter, the successor statute to § 2603 was amended to delete the requirement that some official act was required, in addition to mere use, before a public highway could be created. Maynard, 96 Mont. at 306, 30 P.2d at 95; Nolan, 58 Mont. at 173, 191 P. at 152-53.

¶32 The Richters admit that Clinton White (White), who homesteaded his property beginning in 1902, was the first settler in the area who would have used the alleged road. Because any use by White occurred after 1895, § 2600 provides no support for the Richters’ argument that a public highway was established across the Roses’ property between 1903 and 1907. We hold, therefore, that the District Court correctly concluded that the Richters did not establish the existence of a public highway pursuant to R.S. § 2477 by a preponderance of the evidence.

Common Law Dedication

¶33 The District Court also rejected the Richters’ alternative access theory, concluding that they did not establish the existence of a public right-of-way across the Roses’ property pursuant to common law dedication by a preponderance of the evidence. The Richters again contend that the District Court erred, but we disagree.

¶34 While R.S. § 2477 provided a method for establishing a public highway across public land, common law dedication provided a method for establishing a public highway across private land. Two elements were required to establish a common law dedication: first, an offer by the owner evidencing his intention to dedicate; and second, an acceptance by the public. Kaufman v. City of Butte (1914), 48 Mont. 400, 407, 138 P. 770, 771 (citations omitted).

¶35 In this case, Lena Zorzi (Zorzi) purchased her land from the federal government and received her land patent in 1906, thereby removing Lot 2 from the public domain. There is no evidence in the record indicating that Zorzi took any action expressing an intent to dedicate a part of Lot 2 to the public for use as a road. Thus, the Richters failed to establish the first element necessary to establish a common law dedication. See Kaufman, 48 Mont. at 407, 138 P. at 771.

¶36 The Richters rely on the United States Supreme Court’s discussion in McKey v. Hyde Park (1890), 134 U.S. 84, 10 S.Ct. 512, 33 L.Ed 860, however, in arguing that dedication can be inferred from use over a long period of time with the owner’s consent. Their reliance on McKey is misplaced.

¶37 In McKey, the plaintiff was a minor living in another state at the time the village began to use his property as a road. McKey, 134 U.S. at 86-87, 10 S.Ct. 512. The village argued that the property over which its street ran had been acquired by common law dedication because the minor knew of the use, consented to it, and had not acted more quickly upon reaching majority. McKey, 134 U.S. at 92, 10 S.Ct. 512. The Supreme Court concluded that, under Illinois law, dedication could be inferred from long use to which the owner had consented. McKey, 134 U.S. at 98, 10 S.Ct. 512. Under Montana law, however, some offer or action indicating an intent to dedicate the property is required to establish a public highway by common law dedication. Maynard, 96 Mont. at 310, 30 P.2d at 96 (citations omitted); see also Kaufman, 48 Mont. at 407-08, 138 P. at 771. As a result, McKey is inapplicable here.

¶38 Therefore, we hold that the District Court correctly concluded that the Richters failed to establish the existence of a public right-of-way pursuant to common law dedication by a preponderance of the evidence.

¶39 Affirmed in part and reversed in part.

JUSTICES NELSON, HUNT, LEAPHART, REGNIER and TRIEWEILER concur.

CHIEF JUSTICE TURNAGE

dissenting:

¶40 I respectfully dissent from the Court’s conclusion that Lot 10 is not a farm.

¶41 The District Court found that the Richters had engaged a specialist to provide a timber management plan for Lot 10 and that they had commenced to harvest the timber crop, which they are not now able to remove from the property without a useable right-of-way. The court’s finding is supported by substantial credible evidence.

¶42 Silviculture is “[t]he care and cultivation of forest trees.” American Heritage Dictionary 1682 (3d ed. 1992). I submit that property used for purposes of silviculture, or, in the common vernacular, as a “tree farm,” may be considered a “farm” within the plain meaning of that word. When, as here, designation as a “farm” determines whether property owners have a right to access their property or do not have that right, I would construe “farm” generously. I would uphold the conclusion of the District Court that Lot 10 is a farm under § 70-30-102(6), MCA, for purposes of exercising the right of eminent domain.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HAROLD JOSEPH LaPIER, Defendant and Appellant.
    No. 97-397.
    Submitted on Briefs May 28, 1997.
    Decided July 16, 1998.
    1998 MT 174.
    55 St.Rep. 707.
    961 P.2d 1274.
    289 Mont. 392.

      See C.J.S. Criminal Law § 1657.

      For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Ass’t Attorney General, Helena; Robert M. McCarthy, Silver Bow County Attorney, Butte.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Harold LaPier (LaPier) appeals from the judgment and sentence entered by the Second Judicial District Court, Silver Bow County, on a jury verdict finding him guilty of the offense of violation of a protective order. We affirm.

¶2 The sole issue on appeal is whether the District Court had jurisdiction to sentence LaPier for a felony offense.

¶3 LaPier was charged in the District Court with the offenses of partner or family member assault and violation of an order of protection. The State of Montana (State) alleged that both charges were third offenses and, therefore, felonies pursuant to statutory enhancement provisions.

¶4 A jury found LaPier not guilty of assault, but guilty of violating an order of protection. The District Court ordered a presentence investigation report, which was prepared by adult parole and probation officer John J. Riley (Riley), and held a sentencing hearing. Riley testified that LaPier had two prior convictions for the offense of violating a protective order — one in the justice court and one in the police court. LaPier challenged the existence of the justice court conviction and the conviction was established via a certified copy of the judgment in that case. Riley recommended that LaPier be sentenced to the maximum term of imprisonment available for the offense but he did not offer a recommendation on further sentencing in the event the District Court determined LaPier to be a persistent felony offender. LaPier also made a lengthy statement, at the end of the sentencing hearing, that he believed he was wrongfully convicted and should not be sentenced to a term of incarceration in addition to the time already served in the county jail.

¶5 The District Court determined that LaPier was guilty of the felony offense of violation of a protective order. It fined him $2,000, sentenced him to a two-year term of imprisonment at the Montana State Prison and added a five-year term for persistent felony offender, to run consecutively to the sentence imposed for the underlying offense. LaPier also was credited for time served. The District Court entered judgment accordingly and this appeal followed.

¶6 Did the District Court have jurisdiction to sentence LaPier for the felony offense?

¶7 Based on the information in the presentence investigation report and Riley’s testimony at the sentencing hearing, the District Court determined that LaPier was guilty of the felony offense of violation of a protective order because it was his third such offense. The court sentenced LaPier accordingly and LaPier contends that the court lacked jurisdiction to do so because one of the prior convictions was constitutionally infirm.

¶8 Whether a prior conviction can be used to enhance a criminal sentence is a question of law. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. We review a district court’s conclusions of law to determine whether they are correct. Hansen, 273 Mont. at 323, 903 P.2d at 195 (citations omitted).

¶9 Before turning to the issue raised by LaPier, we address a threshold issue raised by the State, namely, whether this case is properly before us. The State contends that, because LaPier did not raise the issue of whether his police court conviction was constitutionally infirm in the District Court, he may not raise it for the first time on appeal. This contention is without merit. Notwithstanding the general rule that this Court will not address an issue raised for the first time on appeal (see Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866 (citation omitted)), certain jurisdictional issues constitute an exception to that general rule. Lack of subject matter jurisdiction is a nonwaivable defect which may be raised at any stage of the proceedings. See, e.g., State v. Moorman (1996), 279 Mont. 330, 336, 928 P.2d 145, 148 (citation omitted); § 46-13-101(3), MCA. Thus, we turn to the issue raised by LaPier of whether the District Court had jurisdiction to sentence him for the felony offense.

¶ 10 The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee an accused the fundamental right to the assistance of counsel. State v. Okland (1997), 283 Mont. 10, 14, 941 P.2d 431, 433 (citations omitted). The fundamental right extends only to cases in which a sentence of imprisonment is actually imposed. Okland, 283 Mont. at 14, 941 P.2d at 433 (citations omitted). Moreover, an accused may waive the right to counsel, but a waiver requires a knowing and intelligent relinquishment of a known right. Okland, 283 Mont. at 14, 941 P.2d at 433 (citations omitted).

¶11 It has long been established in Montana that a constitutionally infirm conviction cannot be used to support an enhanced punishment. Okland, 283 Mont. at 15, 941 P.2d at 434 (citing Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766). A rebuttable presumption of regularity attaches to prior convictions during a collateral attack, however, and “a defendant who challenges the validity of his prior conviction during a collateral attack has the burden of producing direct evidence of its invalidity.” Okland, 283 Mont. at 18, 941 P.2d at 436. If the defendant comes forward with such direct evidence, the burden shifts to the State to “produce direct evidence and prove by a preponderance of the evidence that the prior conviction was not entered in violation of the defendant’s rights.” Okland, 283 Mont. at 18, 941 P.2d at 436.

¶ 12 Here, LaPier contends that his police court conviction of violating an order of protection was constitutionally infirm because he was not represented by counsel and did not waive the right to counsel. He concedes that a rebuttable presumption of regularity attaches to that conviction under Okland. He asserts, however, that he produced direct evidence of the constitutional infirmity during his cross-examination of Riley at the sentencing hearing and that the State did not meet its burden thereafter of proving that the prior conviction was not entered in violation of his rights. We disagree.

¶13 The judgment in LaPier’s police court case reflected that he was sentenced to a term of six months in the county jail, thus triggering his right to assistance of counsel — absent a knowing and intelligent waiver of the right — as discussed above. The evidence of constitutional infirmity in his police court conviction on which LaPier relies is the following exchange regarding the judgment in that case between his counsel and Riley at the sentencing hearing:

Q. Is there anything that shows a waiver of rights to an attorney or anything like that?
A. No, sir, not on this document.

¶ 14 According to LaPier, the absence of a waiver of right to counsel on the face of the judgment is direct evidence that the police court conviction was invalid for lack of a waiver. LaPier misreads our cases on the presumption of regularity and the direct evidence necessary to rebut the presumption.

¶15 In Okland, we clarified that the presumption of regularity which attaches to prior convictions during a collateral attack attaches even in the absence of a transcript or record. Okland, 283 Mont. at 18, 941 P.2d at 436. Here, the absence of a waiver of the right to counsel on the face of the judgment in the police court proceeding is merely the absence of part of the record and, under Okland, the rebuttable presumption of regularity attaches notwithstanding such an absence.

¶16 Nor is the “absence of a waiver” evidence on which LaPier relies the direct evidence we have held sufficient to rebut the presumption of regularity. In Okland, the defendant’s evidence regarding the city court conviction being collaterally attacked established that he could not afford an attorney; that he requested — but was not provided — an attorney; that he was convicted without the assistance of counsel; and that he was imprisoned for his uncounseled conviction. Okland, 283 Mont. at 19, 941 P.2d at 436-37. We held that the evidence was direct evidence of constitutional infirmity in the earlier proceeding sufficient to rebut the presumption of regularity. Okland, 283 Mont. at 19-20, 941 P.2d at 437. Similarly, in State v. Jenni (1997), 283 Mont. 21, 25, 938 P.2d 1318, 1320-21, the defendant submitted an affidavit stating that, in two earlier driving under the influence cases injustice court, he was neither represented by counsel nor informed that counsel would be appointed if he could not afford one; that he was convicted without the assistance of counsel; and that he was actually imprisoned as a result of his uncounseled convictions. Again, we concluded that the defendant’s direct evidence of a constitutional infirmity in the earlier proceedings rebutted the presumption of regularity. Jenni, 283 Mont. at 25, 938 P.2d at 1321.

¶ 17 In the case presently before us, LaPier submitted no affidavit containing direct evidence of a constitutional infirmity in his police court proceeding. Nor did he advance such testimony, or address the alleged constitutional infirmity in that proceeding, during his oral statement at the sentencing hearing. The exchange between his counsel and Riley at the sentencing hearing simply does not constitute direct evidence of a constitutional infirmity in the police court conviction.

¶18 Finally, we observe that, while the arguments presented are different, this case is substantially similar to State v. Perry (1997), 283 Mont. 34, 938 P.2d 1325. There, the defendant contended that waiver of the right to counsel cannot be presumed from a silent record, and we reiterated our Okland determination that a presumption of regularity attaches to prior convictions during a collateral attack even in the absence of a transcript or record. Perry, 283 Mont. at 36-37, 938 P.2d at 1327 (citation omitted). Here, while LaPier argues that the absence of a record waiver of the right to counsel is direct evidence of a constitutional infirmity, his argument boils down to a contention that a record silent with regard to a waiver of the right to counsel renders a prior conviction invalid. The law clearly is otherwise.

¶19 We conclude that LaPier failed to present any direct evidence to establish that his constitutional rights were violated in the police court proceeding. Thus, we further conclude that he failed to rebut the presumption of regularity and, for that reason, the State had no further burden of proof regarding the regularity of the conviction in that proceeding. We hold, accordingly, that the District Court had jurisdiction to sentence LaPier for the felony offense of violating an order of protection.

¶20 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff and Appellant, v. DAMON INCASHOLA, Defendant and Respondent.
    No. 98-114.
    Submitted on Briefs June 11, 1998.
    Decided July 23, 1998.
    1998 MT 184.
    55 St.Rep. 742.
    961 P.2d 745.
    289 Mont. 399.

      See C.J.S. Motor Vehicles § 631.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass’t Attorney General, Helena; Kim Christopher, Lake County Attorney, Robert J. Long, Deputy Lake County Attorney, Poison.
    For Respondent: Rebecca T. Dupuis, C. Edward Hayes, Attorneys at Law, Poison.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 The State of Montana (State) appeals from the order of the Twentieth Judicial District Court, Lake County, granting Damon Incashola’s motion in limine. We reverse and remand.

¶2 The sole issue on appeal is whether the District Court abused its discretion in suppressing breath test evidence based on its interpretation of an administrative rule.

¶3 Flathead Tribal Police Officer Dwayne Vollin (Officer Vollin) initiated a traffic stop of a vehicle driven by Damon Incashola (Incashola) on May 2,1997, after observing that a taillight on the vehicle was out. Noticing that Incashola’s eyes were bloodshot and his breath smelled of alcohol, Officer Vollin administered a horizontal gaze nystagmus test and Incashola scored six points, indicating alcohol impairment. Incashola was arrested and transported for a breath test. The breath test, conducted on an Intoxilyzer, indicated a blood alcohol concentration of. 129. Officer Vollin’s records check reflected that Incashola had three prior convictions for driving under the influence of alcohol.

¶4 The State subsequently charged Incashola with the felony offense of operating a motor vehicle with an alcohol concentration of 0.10 or more. Counsel was appointed for Incashola, he pled not guilty to the charge and a trial date was set.

¶5 Incashola moved to suppress portions of both the videotape taken after his arrest and the interview form on the basis that the evidence therein was obtained in violation of his Miranda rights. The District Court granted the motion and, on motion of the State, rescheduled the trial.

¶6 Prior to the trial date, Incashola filed a motion in limine contending that the breath test analysis also was inadmissible because the State could not lay a proper foundation under the Administrative Rules of Montana (ARM). He argued that, because no proper field certification was performed on the Intoxilyzer following his breath test, an inference was created under § 23.4.213(l)(i), ARM, that the Intoxilyzer was not in proper working order at the time of his breath test. The State opposed Incashola’s motion, arguing that no such inference was created under subsection (l)(i) and, in any event, the field certification of the Intoxilyzer performed on April 29,1997, was considered valid for 7 days thereafter under § 23.4.213(l)(j), ARM. As a consequence, according to the State, the necessary foundation for admission of the breath test results was established. The District Court granted Incashola’s motion in limine, effectively suppressing the breath test evidence. The State appealed pursuant to § 46-20-103(2)(e), MCA, which permits an appeal by the State from any court order the substantive effect of which results in suppressing evidence.

¶7 Did the District Court abuse its discretion in suppressing breath test evidence based on its interpretation of an administrative rule?

¶8 Montana closely regulates nearly all aspects of breath, blood and urine analysis procedures used to determine the alcohol concentration in a person charged with an alcohol-related driving offense. See §§ 23.4.201 through 23.4.225, ARM. A defendant charged with driving under the influence of alcohol is entitled to the procedural safeguards contained in the ARM, and where the State fails to lay a proper foundation for breath test evidence by complying with those procedural safeguards, the results of the breath test analysis are inadmissible. State v. Woods (1997), 285 Mont. 124, 947 P.2d 62, 63 (citations omitted). In this case, the District Court excluded the breath test evidence based on its conclusion that the State could not lay the foundation required by § 23.4.213, ARM.

¶9 Whether evidence is relevant and admissible is within the broad discretion of the district court and we will not overturn the court’s decision absent an abuse of discretion. Woods, 947 P.2d at 63 (citation omitted). Where, as here, a discretionary ruling is based on a conclusion of law, we review that conclusion to determine whether the court correctly interpreted the law. See State v. Pendergrass (1997), 281 Mont. 129, 131, 932 P.2d 1056, 1057 (citation omitted).

¶10 Section 23.4.213, ARM, provides in pertinent part:

Field Certification (1) Breath analysis instruments shall be field certified for accuracy at least once every seven (7) days ....
(b) A field certification is valid when the results of the approved ethyl alcohol solution test is at target value plus or minus one hundredth (.01) grams per two hundred and ten liters....
(i) A proper field certification prior to any subject test and a proper field certification following a subject test shall create the inference that the breath analysis instrument was in proper working order at the time of the subject test.
(j) A breath analysis instrument’s field certification shall be considered valid for seven (7) days forward from the date of a proper field certification.

While the District Court did not provide a rationale for concluding that the State could not lay the necessary foundation for admission of the breath test results under § 23.4.213, ARM, it appears that the court determined that § 23.4.213(l)(i), ARM, created a conclusive negative inference in this case; that is, that the absence of a proper field certification following Incashola’s breath test established that the Intoxilyzer was not in proper working order at the time of the test.

¶11 We generally apply the same principles in construing administrative rules as are applicable to our interpretation of statutes. Bean v. State Bd. of Labor Appeals (1995), 270 Mont. 253, 257, 891 P.2d 516, 518-19 (citation omitted). The proper interpretation is first to be determined according to the language therein. Bean, 270 Mont. at 257, 891 P.2d at 519. We simply ascertain and declare what is in terms or substance contained in the rule, neither inserting what has been omitted or omitting what has been inserted. Where several provisions or particulars are at issue, we are obligated to construe them to give effect to all, if possible. See § 1-2-101, MCA.

¶12 We look, then, to the language contained in § 23.4.213, ARM, and the facts of this case to determine whether the District Court erred in implicitly determining that subsection (l)(i) rendered the breath test results inadmissible for lack of foundation. Section 23.4.213(l)(i), ARM, provides that a proper field certification both before and after the breath test at issue creates an inference that the testing instrument was in proper working order at the time of the test. The language is clear and unambiguous in creating an inference in favor of the instrument being in proper working order under the specified circumstances. Equally clear in this case is that a proper field certification of the Intoxilyzer occurred on April 29,1997, but that the certification effort on May 4, two days after Incashola’s breath test, established that the Intoxilyzer was not working properly. Therefore, no proper field certification occurred after Incashola’s test and, as a result, no inference was created under § 23.4.213(l)(i), ARM, that the Intoxilyzer was in proper working order.

¶13 At the same time, however, nothing in § 23.4.213(l)(i), ARM, creates a negative inference — much less the conclusive negative inference apparently ascribed to it by the District Court — that, absent a proper field certification both before and after the breath test at issue, the instrument was not in proper working order. To read such a provision into the rule is to ignore the language actually contained therein and to insert language omitted from the rule in derogation of our obligation to refrain from doing so. See § 1-2-101, MCA.

¶14 Moreover, the District Court’s implicit determination that the absence of a proper field certification after Incashola’s breath test rendered the breath test results inadmissible ignores the intended effect of the inference created under § 23.4.213(l)(i), ARM, when proper field certifications do occur both before and after the breath test at issue. An “inference” is “a deduction which the trier of fact may make from the evidence.” Section 26-1-501, MCA. Thus, it is clear that the inference created by § 23.4.213(l)(i), ARM, is to be utilized by a trier of fact — at the appropriate stage in the proceedings — in determining whether the testing instrument was in proper working order. In other words, if the evidence establishes that proper field certifications were conducted both before and after the breath test at issue, the trier of fact must infer that the Intoxilyzer was in proper working order. Absent such evidence, no inference is created under § 23.4.213(l)(i), ARM, that the instrument either was or was not in proper working order.

¶ 15 In any event, however, an inference is a deduction to be made from the evidence and nothing more. Consequently, even if the evidence established proper field certifications before and after the breath test at issue, other evidence could be introduced in an effort to undermine the persuasiveness of the proper field certification evidence and the inference to be drawn therefrom and to establish that the testing instrument was not in proper working order. Likewise, absent evidence of a proper post-breath test field certification, other evidence can be introduced in an effort to prove to the trier of fact that the testing instrument was operating properly at the time of the breath test at issue. By its terms, then, § 23.4.213(l)(i), ARM, is not a foundational requirement for the admissibility of breath test results.

¶16 Furthermore, to conclude that subsection (l)(i) is a foundational requirement for admissibility would judicially nullify subsection (l)(j) of § 23.4.213, ARM, which provides that a field certification is to be considered valid for 7 days forward from the date of the test. When, as here, several provisions of a statute or rule are at issue, we are obligated to construe them to give effect to all of the provisions if possible. See § 1-2-101, MCA. Read together, the two subsections at issue here are not a model of clarity. Having determined above that subsection (l)(i) relates to the later evidentiary stage of the proceeding, however, we conclude here that § 23.4.213(l)(j), ARM, is a foundational requirement for admissibility of breath test results. A proper field certification of the testing instrument performed within 7 days before the test at issue constitutes an adequate foundation for admissibility of the breath test results; the absence of such a proper field certification renders the breath test results inadmissible for lack of foundation. Here, the record establishes that a proper field certification was conducted on April 29, 1997, less than 7 days prior to Incashola’s breath test on May 2, 1997.

¶17 Incashola argues, however, that subsection (l)(i) of § 23.4.213, ARM, is a more specific provision than subsection (l)(j). From that premise, he contends that § 1-2-102, MCA, which provides that when a general and particular provision are inconsistent, the particular provision controls, and our cases thereunder, require us to conclude that the District Court’s interpretation of subsection (l)(i) is correct. We disagree.

¶18 We determined above that subsection (l)(i) is an evidentiary stage provision, while subsection (l)(j) is a foundational requirement for admissibility. As a result, the two provisions are not a general and particular provision relating to the same matter, but are provisions relating to different stages of the proceeding.

¶19 We conclude that the District Court erred in interpreting § 23.4.213, ARM, and we further conclude that the State laid the necessary foundation for the admission of the breath test results in this case. As discussed, both parties are free to offer other evidence at trial with regard to whether the Intoxilyzer was in proper working order on the date of Incashola’s breath test. We hold that the District Court abused its discretion in granting Incashola’s motion in limine.

¶20 Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER and HUNT concur.


author: JUSTICE HUNT

text:
    KENNETH L. ULRICH, Petitioner and Appellant, v. STATE OF MONTANA, ex rel., BOARD OF FUNERAL SERVICE, Respondent and Respondent.
    No. 97-525.
    Submitted on Briefs June 25, 1998.
    Decided August 11, 1998.
    1998 MT 196.
    55 St.Rep. 822.
    961 P.2d 126.
    289 Mont. 407.

      See C.J.S. Licenses § 48.

      For Appellant: Kenneth L. Ulrich, Pro Se, Malta.
    For Respondent: Carol Grell, Special Ass’t Attorney General, Department of Commerce, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶ 1 Kenneth L. Ulrich, appearing pro se, appeals from an order of the Seventeenth Judicial District Court, Phillips County. The order upheld the Board of Funeral Service’s (Board) revocation of Ulrich’s mortician’s license and its order that Ulrich may not petition the Board for reinstatement of that license until completion of all terms of his criminal sentence, including full payment of the restitution ordered by the district court. We reverse and remand with instructions.

¶2 We frame the issues as follows:

¶3 1. Is a criminal conviction conclusive evidence of unprofessional conduct and sufficient grounds for revocation of a mortician’s license pursuant to § 37-19-311, MCA (1993)?

¶4 2. If a criminal conviction is not conclusive evidence of unprofessional conduct, did the Board abuse its discretion and violate § 2-4-621(3), MCA, when it revoked Ulrich’s mortician’s license?

¶5 3. Was it an abuse of discretion to exclude the testimony of several witnesses whose testimony allegedly supported Ulrich’s claim of rehabilitation?

¶6 4. Did the Board err when it held that Ulrich may not petition for reinstatement of his mortician’s license until completion of all terms of his criminal sentence, including full payment of restitution?

BACKGROUND

¶7 Ulrich was a licensed mortician. He originally received his mortician’s license in 1976, which subsequently lapsed. Upon application to the Board in 1993, his license was reinstated. On October 20,1993, after the Board had already reinstated his license, Ulrich pleaded guilty to eight counts of felony forgery and six counts of felony theft in connection with unlawful transactions he engaged in as a licensed insurance agent from 1989 through 1992. On December 16, 1993, the district court sentenced Ulrich to ten years in the Montana State Prison for those crimes. The sentence was suspended subject to numerous conditions, including the conditions that Ulrich obtain employment and that he make restitution in the total amount of $125,800 to the victims of his offenses.

¶8 On December 8, 1994, the Board issued a “Notice of Proposed Board Action and Opportunity for Hearing.” The Department of Commerce (Department) had proposed that Ulrich’s license be revoked based upon his felony convictions. The matter went to a hearing on July 31,1995, before a hearing examiner from the Montana Attorney General’s office. Based upon the criteria set forth in § 37-1-203, MCA, the issues to be decided at the hearing were:

1. Was Ulrich convicted of criminal offenses which relate to the public health, welfare, and safety as it applies to the licensed occupation of mortician? The Department had the burden of proof on this issue.
2. If the Department met its burden of proof with respect to the first issue, had Ulrich been sufficiently rehabilitated so as to warrant the public trust? Ulrich had the burden of proof on this issue.
3. If the hearing officer determined that disciplinary treatment of Ulrich was required, what was what was the appropriate disciplinary measure?

¶9 The hearing examiner heard testimony horn Ulrich, a former investigator for the Montana Insurance Department, the Department’s expert mortician, Ulrich’s probation officer, and the Phillips County Attorney. Based upon the witnesses’ testimony, he rejected the Department’s proposal to revoke Ulrich’s license. Instead, on August 28, 1995, the hearing examiner entered a proposed order that allowed Ulrich to retain his license to practice mortuary science. In so doing, he cited §§ 37-1-201 and -203, MCA, and concluded that the license may not be revoked solely upon the grounds that the licensee has been convicted of a criminal offense. Rather, there must be some nexus between the conviction and the public health, welfare, and safety as it relates to the licensed occupation. In this case, he concluded that there was insufficient evidence that Ulrich was convicted of offenses that related to the public health, welfare, and safety as it applied to the licensed occupation of mortuary science.

¶10 The hearing examiner also addressed whether Ulrich had been rehabilitated. Based upon the testimony of Ulrich’s probation officer and the county attorney, and after observing Ulrich’s demeanor under oath, he found that Ulrich had been sufficiently rehabilitated so as to warrant the public’s trust.

¶ 11 The hearing examiner served a copy of his findings of facts, conclusions of law, and proposed order on the Board. After reviewing the record, the Board held that the hearing examiner’s findings were not based on competent and substantial evidence and rejected the hearing officer’s proposed order. On December 4,1995, it entered its own findings of facts, conclusions of law and final order in which it concluded that the public’s health, safety and welfare will be affected if Ulrich retained his license. It additionally found that Ulrich had not been sufficiently rehabilitated. The Board revoked Ulrich’s license and ordered that Ulrich may not petition the Board for reinstatement until he had completed all terms of his court-imposed sentence, including full payment of his restitution obligations.

¶12 Ulrich filed a petition for judicial review of the Board’s decision in the Seventeenth Judicial District Court, Phillips County. On August 15, 1997, the District Court entered an order granting the Board’s motion for summary judgment and denying Ulrich’s cross-motion for summary judgment, thereby affirming the Board’s decision. Based upon this Court’s decision in Erickson v. State ex rel. Bd. of Med. Exam. (1997), 282 Mont. 367, 938 P.2d 625, which had been decided after the hearing examiner and the Board reached their decisions, it held that conviction of a felony is sufficient grounds alone for license revocation. It therefore did not address whether there was a connection between Ulrich’s conviction and the public’s health, safety and welfare as it applied to the practice of mortuary sciences or whether Ulrich had been rehabilitated. From this order, Ulrich appeals.

STANDARD OF REVIEW

¶13 Section 2-4-704, MCA, sets forth the standards for judicial review of an administrative agency’s decision. This Court will reverse an agency’s findings, conclusions or decisions if they are:

(iv) affected by ... error of law;
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion!!.]

Section 2-4-704(2)(a), MCA. Pursuant to these statutory standards, our standard for reviewing conclusions of law is to determine whether they are correct. Erickson v. State ex rel. Bd. of Med. Exam. (1997), 282 Mont. 367, 371, 938 P.2d 625, 628 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603). Findings of fact are clearly erroneous if they are not supported by substantial credible evidence. Erickson, 282 Mont. at 371, 938 P.2d at 628 (citing Steer, 245 Mont. at 470, 803 P.2d at 601).

¶ 14 When conducting a review of the Board’s decision, we note that the Board, which did not personally hear or observe the evidence, does not have the authority to conduct a de novo review of the hearing examiner’s decision. Rather it may reject the examiner’s findings only if they are not based upon competent, substantial evidence. Additionally, the Board must state with particularity that the findings are not based upon competent, substantial evidence. Section 2-4-621, MCA, provides:

When absent members render decision - proposal for decision and opportunity to submit findings and conclusions - modification by agency.
(3) The agency may adopt the proposal for decision as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the proposal for decision but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a proposal for decision but may not increase it without a review of the complete record.

(Emphasis added.) A rejection of the hearing examiner’s findings in violation of § 2-4-621(3), MCA, constitutes an abuse of discretion pursuant to § 2-4-704(2)(a)(vi), MCA. Brander v. Director, Dept. of Inst. (1991), 247 Mont. 302, 308, 806 P.2d 530, 533.

ISSUE ONE

¶15 Is a criminal conviction conclusive evidence of unprofessional conduct and sufficient grounds for revocation of a mortician’s license pursuant to § 37-19-311, MCA (1993)?

¶16 At issue is whether Ulrich’s license may be revoked solely based upon his conviction, or whether he is entitled to be considered in his revocation proceedings under the provisions of § 37-1-203, MCA, which provides:

Conviction not a sole basis for denial. Criminal convictions shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No licensing authority shall refuse to license a person solely on the basis of a previous criminal conviction; provided, however, where a license applicant has been convicted of a criminal offense and such criminal offense relates to the public health, welfare, and safety as it applies to the occupation for which the license is sought, the licensing agency may, after investigation, find that the applicant so convicted has not been sufficiently rehabilitated as to warrant the public trust and deny the issuance of a license.

¶17 The Board contends that this Court’s recent decision in Erickson controls the disposition of this case, and that § 37-1-203, MCA, is not applicable to Ulrich’s revocation proceedings. It urges this Court to affirm the decision of the Board and the order of the District Court on the basis that Ulrich’s criminal conviction alone constitutes sufficient grounds for revoking Ulrich’s license, without addressing whether his conviction related to the public’s health, safety and welfare or whether Ulrich had been sufficiently rehabilitated. We reject the Board’s position. Erickson is distinguishable.

¶18 In Erickson, the Board of Medical Examiners revoked Erickson’s license to practice medicine after he was convicted of knowingly and willfully filing false, fictitious or fraudulent claims for Medicare payment with the United States Department of Health and Human services. Erickson, 282 Mont. at 369, 938 P.2d at 627. At issue was whether his criminal conviction alone was sufficient grounds for revocation of his medical license or whether the Board of Medical Examiners was first required to make the determination pursuant to § 37-1-203, MCA, that the conviction specifically related to and affected the public’s health, safety and welfare.

¶19 After examining the legislative history, this Court held that § 37-1-203, MCA, did not apply to the revocation of a license. Erickson, 282 Mont. at 373-74, 938 P.2d at 629. We noted that the rationale behind the enactment of § 37-1-203, MCA, was to provide ex-offenders the opportunity to rehabilitate themselves after they had paid their debt to society. Erickson, 282 Mont. at 372, 938 P.2d at 629. We reasoned that the statutory provision thus applied only to those persons with a criminal conviction seeking a license for the first time or to those seeking the reinstatement of a license after a revocation due to a criminal conviction. Erickson, 282 Mont. at 373-74, 938 P.2d at 629. In a license revocation proceeding, on the other hand, a licensee is not an ex-offender seeking the issuance or the reissuance of a license after rehabilitation.

¶20 After holding that § 37-1-203, MCA, does not apply to revocation proceedings, this Court then examined § 37-3-323, MCA (1993), the statute pursuant to which Erickson’s license was revoked. That statute serves a different purpose than § 37-1-203, MCA, and provides the criteria the Board of Medical Examiners was required to follow before revoking a medical license. It mandated by the use of the word “shall” that a medical license be revoked upon finding that the person had committed unprofessional conduct. Erickson, 282 Mont. at 373, 938 P.2d at 629. That statute provided in part:

(4) If the board finds that the offenses or conditions referred to in 37-3-322 [defining unprofessional conduct]... do exist and the person is found guilty [of an offense which includes unprofessional conduct], the board shall:

(a) revoke the person’s licensed]

Section 37-3-323, MCA (1993). Conviction of a crime involving moral turpitude and the judgment of conviction was defined by statute to constitute conclusive evidence of unprofessional conduct as it related to the practice of medicine:

Unprofessional conduct. As used in this chapter, “unprofessional conduct” means:
(7) conviction of an offense involving moral turpitude or conviction of a felony involving moral turpitude, and the judgment of the conviction, unless pending on appeal, is conclusive evidence of unprofessional conduct^]

Section 37-3-322, MCA (1993).

¶21 The Court concluded that nothing in the revocation statute or the definition of “unprofessional conduct” in Erickson referred to additional criteria that must be considered before the medical license could be revoked. Additionally, there was no cross-reference in § 37-3-323, MCA (1993), to § 37-1-203, MCA. Hence, § 37-1-203, MCA (1993), did not apply to Erickson’s case, and the convictions standing alone were sufficient grounds for license revocation. The Board of Medical Examiners was therefore not required to determine whether Erickson’s criminal conviction related to and affected the public’s health, safety and welfare or whether Erickson had been sufficiently rehabilitated before it revoked his license. Erickson, 282 Mont. at 373-74, 938 P.2d at 629.

¶22 The Board is thus correct in citing Erickson for the proposition that based upon the plain language and the legislative history of § 37-1-203, MCA, that statute standing alone does not apply to revocation proceedings. However, just as the Court in Erickson examined the statute pursuant to which Erickson’s license was revoked to determine whether § 37-1-203, MCA, was cross-referenced, we must also examine the statute pursuant to which Ulrich’s license was revoked in this case.

¶23 The version of the statute that governs Ulrich’s revocation proceedings is § 37-19-311, MCA (1993). This statute, which also serves a different purpose than § 37-1-203, MCA, outlines the procedure the Board was required to follow before revoking Ulrich’s license. It provides in part:

Refusal, suspension, or revocation of mortician’s or funeral director’s license - fine. (1) The board may ... revoke a mortician’s or funeral director’s license for any of the following reasons:
(d) if the ... licensee violates rules adopted by the board which define unprofessional conduct on the part of applicants and licensees.

Section 37-19-311, MCA (1993). The administrative rule that was in effect and governs Ulrich’s revocation proceedings defines “unprofessional conduct” to include:

(y) having been convicted of a felony. A certified copy of the judgment of conviction is conclusive evidence of the conviction. This subsection is subject to chapter 1, part 2 of this title.

Rule 8.30.701(l)(y), ARM (emphasis added). Chapter 1, part 2 of title 37 includes § 37-1-203, MCA.

¶24 Thus, unlike the revocation statute in Erickson, the revocation statute and the Board’s own administrative rule do cross-reference § 37-1-203, MCA. Regardless of the fact that § 37-1-203, MCA, does not on its own terms apply to revocation proceedings, Ulrich is entitled to be considered under the provisions of that statute by virtue of § 37-19-311, MCA (1993), and Rule 8.30.701(l)(y), ARM.

¶25 We hold that a criminal conviction is not conclusive evidence of unprofessional conduct and sufficient grounds for revocation of a mortician’s license pursuant to § 37-19-311, MCA (1993). Before revoking Ulrich’s license the Board was required to apply § 37-1-203, MCA and to determine (1) whether Ulrich’s criminal conviction relates to and affects the public’s health, safety and welfare as it applies to the practice of mortuary science, and (2) whether Ulrich has been sufficiently rehabilitated.

¶26 Although the District Court granted the Board’s motion for summary judgment based upon the Erickson decision, and although the Board urged this Court to affirm the decision on that basis, at the time the Board had rendered its decision, Erickson had not yet been decided. Without the benefit of Erickson, the Board did, in fact, apply § 37-1-203, MCA, to this case. Therefore, we now examine the record and the Board’s decision to determine whether the Board’s decision was proper.

ISSUE TWO

¶27 If a criminal conviction is not conclusive evidence of unprofessional conduct, did the Board abuse its discretion and violate § 2-4-621(3), MCA, when it revoked Ulrich’s mortician’s license?

¶28 Citing § 2-4-621(3), MCA, the Board found that “certain of the hearing examiner’s Findings of Fact were not based upon competent substantial evidence” and thus rejected the hearing examiner’s decision. Ulrich, however, contends that the hearing examiner’s findings of fact were supported by competent, substantial evidence and that the Board therefore erred when it rejected the proposed order. He argues that the Board simply “did not like” the hearing examiner’s decision and thus reached its own conclusions without affording the hearing examiner’s findings the proper deference. We agree.

¶29 In reaching its own findings of fact, conclusions of law, and final order, the Board did not particularize which of the hearing examiner’s findings of fact it rejected. Instead, it appears that the Board simply emphasized that evidence which supported the conclusion it desired: that Ulrich’s convictions did affect the public trust as it related to the practice of mortuary science, and that Ulrich had not been sufficiently rehabilitated. A review of the record, however, reveals that all the hearing examiner’s findings of fact were supported by competent, substantial evidence.

¶30 First, the hearing examiner found that Ulrich’s convictions did not affect the public trust as it related to the practice of mortuary science. In so doing, he rejected the Department’s allegation that as a mortician Ulrich could easily steal from the deceased and the deceased’s family by (1) stealing personal property from corpses, (2) selling funeral-related merchandise and then substituting inferior goods, or (3) diverting for his personal use funds deposited with the funeral home for pre-need funeral arrangements. In rejecting this allegation, he made several findings of fact based upon the testimony of the Department’s own expert mortician. First, the hearing examiner found that stealing personal property from corpses would be difficult. Consistent with the hearing examiner’s findings of fact, the expert mortician testified that 80 percent of deaths occur in hospitals or institutions, such as nursing homes. In such cases, the institution has accounted for the deceased’s personal property. Before it releases the body to the mortician, the mortician must sign a personal property release slip which designates all personal property that accompanies the body. In cases where a person dies outside of an institution and is not under the care of a medical physician, the county coroner is responsible for the body. In such cases, the coroner accounts for the personal property before releasing the body to the mortician, and the mortician must then obtain a signature for the property release slip from the deceased’s next of kin. Additionally, the expert testified that there is never an occasion when he removes a body from a home without either a coroner, a physician or family member present. Thus, although it is always possible on occasion that some personal property has not been recorded on the release slip, the property is usually accounted for before the mortician ever takes custody of the body. Because of the personal property release forms, the expert agreed that it would be easier to steal personal property from a person in a hospital while the person is still alive than after that person had died.

¶31 With regard to the Department’s suggestion that Ulrich could sell funeral-related merchandise and then substitute inferior goods, the hearing examiner found that the Department presented no evidence regarding the details such a transaction. He was thus unable to determine based upon the record whether a mortician could easily defraud a customer in this fashion. The record supports the hearing examiner’s finding. The record reveals that the expert mortician testified that a mortician could sell merchandise to a person and then possibly substitute inferior merchandise. However, other than this one brief statement, the expert did not explain how such a transaction could occur or whether, in fact, it would be easy to defraud a customer in this fashion. No other evidence in the record explains how a mortician could easily defraud a customer in this fashion.

¶32 Finally, with regard to the Department’s argument that Ulrich could divert funds for his personal use that had been deposited with a funeral home for pre-need funeral arrangements, the hearing examiner found that, “it [did] not appear... that there is much likelihood a mortician would attempt to steal money in this fashion” and that the “Department’s concern that the Licensee would divert such funds for his own personal use is speculative at best, as are the other concerns expressed by the Department.” Again, the hearing examiner’s findings of fact in this regard are supported by competent, substantial evidence taken directly from the Department’s expert testimony.

¶33 The expert explained that a “pre-need funeral arrangement” is an arrangement whereby a person purchases advance funeral arrangements. The funeral home issues a receipt to the person upon receiving the funds and then deposits those funds with a fiduciary in a trust account, where the funds accrue interest. The funeral home is the trustee, so it is able procure those funds to apply it to pay for the person’s funeral arrangements. The expert further testified that if a mortician diverted the funds for personal use instead of depositing them in an outside account, the funeral home would nevertheless be responsible for providing the funeral services when the time arose.

¶34 Consistent with the hearing examiner’s findings, the expert further testified that in his experience and in his community, only 20 to 25% of the funerals are prepaid in this fashion. There was no evidence on the record regarding whether funeral homes in rural communities such as Malta (where Ulrich resides) handles pre-need funeral arrangements to the extent handled by funeral homes in larger cities where the expert works, and indeed the expert testified that he believed there would be a smaller percentage of such arrangements in small, rural communities. Finally, the expert testified that a mortician could choose to operate a funeral home without ever entering into pre-paid funeral arrangements where the home receives money in advance. Ulrich himself testified that the Board could have placed a restriction on his mortician’s license prohibiting him from making such pre-paid funeral arrangements.

¶35 After reviewing the transcript of the hearing, we conclude that the hearing examiner’s findings were supported by substantial evidence. In reliance upon his findings of fact, the hearing examiner concluded pursuant to § 37-1-203, MCA, that Ulrich’s convictions did not relate to or affect the public health, welfare, and safety as it applies to the licensed occupation of mortician. As the hearing examiner con-eluded, the legislature has required that prior criminal convictions bear a close relationship to the occupation for which licensure is sought. In this case, the Department failed to meet its burden of proof.

¶36 Perhaps more importantly, the hearing examiner also found that Ulrich had been sufficiently rehabilitated. Again, each finding of fact is supported by competent, substantial evidence. Specifically, the hearing examiner found that although full restitution had not yet been made, Ulrich had to date complied with all the terms and conditions of the district court’s sentencing order. This finding is supported by the testimony of Ulrich’s probation officer, the county attorney, and Ulrich himself. The probation officer and Ulrich testified that Ulrich has made monthly restitution payments as ordered by the district court, and the county attorney testified that Ulrich has apologized to the community and the victims for his actions.

¶3 7 The hearing examiner also found that both the probation officer and the county attorney, who are familiar with Ulrich’s crimes and his efforts to rehabilitate himself, do not expect him to be a repeat offender. The probation officer testified that Ulrich has never denied his guilt; that he is making efforts to correct his past mistakes; that Ulrich has been honest and sincere with him in their scheduled meetings; and that he does not foresee Ulrich ever reoffending. Additionally, the probation officer has monitored Ulrich’s employment since his release from incarceration, and none of his employers has expressed concern over his performance, even though he has had access to or control of personal properties during such employment. The county attorney similarly testified that Ulrich has accepted responsibility for his crimes and that Ulrich has expressed concern about quickly resolving the restitution issues with his victims and had even offered to repay some of the victims by offering his services to them in lieu of money. Like Ulrich’s probation officer, the county attorney also testified that he does not believe Ulrich will be a repeat offender.

¶3 8 Finally, just as the hearing officer found, Ulrich gave the following testimony when asked what assurances he could provide that he would not commit similar offenses for which he was convicted:

Q: Now we come to the crux of the matter, the one that is your license as mortician. What safeguard is there to ensure that you won’t find the same loopholes as a mortician to make the same kind of money illicitly?
A: I’d like to think - Well, I don’t like to think, I know I’m a different person today than I was even two years ago, and especially a different person than I was two years ago. I think what we’re dealing with here is the opportunities aren’t there, but even if they were there, I would not take advantage because, like I told you before, I’m no longer controlled by fear. I have nothing to lose anymore. I have gone as far down as anybody in my position could be at in regards to my position in the community; so the only thing I can do now is to correct for those mistakes, to show other people, perhaps, how they correct them. There is no crime to admit failure and if I could give one message to people, it would be when you find problems, admit to them, be accountable to them, be accountable to other people as soon as that problem first surfaces.
If anything, with this opportunity, I guess I would like to use it to show people when given a second chance, one doesn’t have to revert back to his old ways, one doesn’t have to revert back to a life of deceit and lies, that one does have ability to seek truth and righteous living. To me, that’s my priorities, that’s my motivation now.
[T]o me now, the number-one priority is to be truthful and to try to correct for those mistakes and they never will be fully corrected but, yet, when you seek that, perhaps by admitting my sin, by owning the mistakes that I made, there is a chance that I will be forgiven, there is a chance that people will give that second chance.

¶39 The hearing examiner, who unlike the Board was able to observe Ulrich’s demeanor under oath, found that Ulrich was “truly remorseful” for his offenses and was making a “sincere effort to atone for his crimes, to make restitution to his victims, and to avoid ... the deceitful conduct which resulted in his convictions.”

¶40 Again, we conclude that competent, substantial evidence supported the hearing examiner’s findings that Ulrich had been sufficiently rehabilitated so as to warrant the public trust. We agree with his conclusion that Ulrich should therefore retain his license. The legislature has expressly declared it to be the public policy of the state to contribute to the rehabilitation of criminal offenders by giving them the opportunity to engage in a meaningful occupation. As § 37-1-201, MCA, provides in full:

It is the public policy of the legislature of the state of Montana to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The legislature finds that the public is best protected when such offenders are given the opportunity to secure employment or to engage in a meaningful occupation, while licensure must be conferred with prudence to protect the interests of the public.

¶41 In its decision rejecting the hearing examiner’s determination, the Board concluded that licensing Ulrich would not be appropriate, because it would not be sufficiently prudent to protect the public. It points out that (1) Ulrich’s crimes were serious, (2) that a former insurance commission investigator had testified that “in terms of victimization in white-collar crime areas ... there is a fairly high rate of recidivism because the punishments generally aren’t very severe,” and (3) Ulrich had not completed the terms of his suspended sentence by making full restitution to his victims. However, whether Ulrich’s crimes were serious has nothing to do with whether he has, in fact, been rehabilitated. Similarly, the investigator’s testimony with regard to the rate of recidivism is irrelevant to the question of whether or not Ulrich himself has been sufficiently rehabilitated. Indeed, if the rate of recidivism alone were the criteria, no one who committed a white-collar crime could ever be considered rehabilitated pursuant to § 37-1-203, MCA, which is directly contrary to the statute and the public policy as expressed in § 37-1-201, MCA. Finally, whether or not a person has made full restitution to his victims is not conclusive proof of rehabilitation, as this Court addresses further in the fourth issue of this opinion. The Board identified no one with personal knowledge of Ulrich’s rehabilitation efforts, who had indicated that Ulrich had not been rehabilitated. In any event, as already addressed, the hearing examiner’s findings with regard to Ulrich’s rehabilitation were supported by competent, substantial evidence. Although there is no guarantee that Ulrich will never commit another crime, based upon the hearing examiner’s findings of fact and the testimony on the record, we conclude that the interests of the public will be best served at this time by allowing Ulrich to retain his license. Ulrich should be given a second chance to engage in the occupation of mortuary science.

¶42 We thus hold that the Board abused its discretion and violated § 2-4-621(3), MCA, when it rejected the hearing examiner’s findings and revoked Ulrich’s license to practice mortuary science.

ISSUE THREE

¶43 Was it an abuse of discretion to exclude the testimony of several witnesses whose testimony allegedly supported Ulrich’s claim of rehabilitation?

¶44 During the course of the July 31,1995, hearing, Ulrich sought to introduce the testimony of witnesses whom he insists would further support his claim that he had been rehabilitated. Specifically, he attempted to introduce the testimony of District Judge John McKeon, who was the county attorney when Ulrich was prosecuted, and the testimony of his employers since his release from incarceration: the superintendent of Malta Public Schools, the owner of Hould Farm and Ranch, and the manager of the Malta Seed Company. Ulrich contends that the hearing examiner should have allowed those witnesses to testify. Moreover, because the Board now claims that the hearing examiner’s findings are not supported by competent, substantial evidence, he essentially argues that the Board should have remanded the case back to the hearing officer for the submission of this additional testimony that could supply additional competent, substantial evidence on the rehabilitation issue.

¶45 However, because this Court has already held that the hearing examiner’s findings of fact were supported by competent, substantial evidence and that Ulrich should therefore retain his license, we need not address this issue.

ISSUE FOUR

¶46 Did the Board err when it held that Ulrich may not petition for reinstatement of his mortician’s license until completion of all terms of his criminal sentence, including full payment of restitution?

¶47 In its final order revoking Ulrich’s license, the Board also ordered that “Ulrich may not petition the Board for reinstatement until completion of all terms of his court-imposed sentence, including full payment of the restitution ordered by the district court.” Ulrich argues that the Board’s order prevents him from ever petitioning for reinstatement, because without the means to make an income as a mortician, he will never be able to fully repay his victims. He points out the irony of the situation that on the one hand the State has required him to make full restitution to his victims, while on the other hand it seeks to take away the very means he has to do so. Although we need not reach this issue, because we have already held that Ulrich is entitled to retain his license, we nonetheless address it to provide future guidance to the Board should the issue arise again.

¶48 We agree with Ulrich that the Board’s order is unlawful. A person whose license has been denied or revoked due to a criminal conviction pursuant to § 37-19-311, MCA (1993), is nonetheless entitled to petition the Board for reinstatement of his license and be considered under the provisions of § 37-1-203, MCA. Erickson, 282 Mont. at 373-74, 938 P.2d at 629-30. In support of such an application, the person is legally entitled to present witness testimony and other relevant evidence that will demonstrate he has been sufficiently rehabilitated. By precluding a person from even petitioning the Board prior to the fulfillment of his sentence and payment of his frill restitution, the Board has unlawfully prejudged the applicant; it has essentially held that he will not be rehabilitated absent payment of full restitution.

¶49 The Board points to § 37-1-205, MCA, and argues that such an order is lawful because completion of the sentence, including restitution, is evidence of rehabilitation. The Board is correct in stating that completion of the sentence evidences rehabilitation, but completion of the sentence is not the only method by which an applicant is entitled to demonstrate that he has been sufficiently rehabilitated. Indeed, the statute itself specifically states that the fact an applicant is currently under state supervision is insufficient reason standing alone to denying licensure:

Licensure on completion of supervision. Completion of probation or parole supervision without any subsequent criminal conviction shall be evidence of rehabilitation; provided, however, that the facts surrounding the situation that led to the probation or parole supervision may be considered as they relate to the occupation for which a license is sought and provided that nothing herein shall be construed to prohibit licensure of a person while he is under state supervision if the licensing agency finds insufficient evidence to preclude such licensure.

Section 37-1-205, MCA (emphasis added).

¶50 In sum, an applicant whose license has been denied or revoked due to a criminal conviction pursuant to § 37-19-311, MCA (1993), is entitled to apply for reinstatement and he is entitled to a full hearing pursuant to the criteria in § 37-1-203, MCA. An order that a person is not entitled to petition for reinstatement of his license until he has completed all terms of his court-imposed sentence, including restitution, is unlawful.

¶51 Based upon the foregoing, this Court holds that Ulrich is entitled to retain his mortician’s license. The case is remanded to the District Court with instructions to enter an order accordingly.

¶52 Reversed and remanded.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and TRIEWEILER concur.