text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WAYNE SPOTTED BLANKET, Defendant and Appellant.
    No. 97-510.
    Submitted on Briefs March 5, 1998.
    Decided March 17, 1998.
    1998 MT 59.
    55 St.Rep. 253.
    955 P.2d 1347.
    288 Mont. 126.

      For Appellant: Thomas S. Winsor, Michael Scott Winsor, Winsor Law Firm, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer M. Anders, Assistant Attorney General, Helena; Kim Christopher, Lake County Attorney, Poison.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 The youth, Wayne Spotted Blanket (Spotted Blanket), appeals from the District Court’s May 15, 1997 order denying his motion to dismiss for lack of jurisdiction. We affirm.

Background

¶2 On October 17, 1996, the Lake County Attorney filed an amended petition in Cause No. DJ-96-26, to initiate proceedings against Spotted Blanket under the Youth Court Act, § 41-5-501, MCA. The petition alleged that Spotted Blanket, age 14, was a delinquent youth and a serious juvenile offender as set forth in §§ 41-5-103(7) and (24), MCA, in that he committed six felony offenses under state law in September and October 1996. In Count I (aggravated burglary) and Count II (sexual intercourse without consent), it was alleged that on September 21 or 22, Spotted Blanket entered the home of Genevieve Morigeau and forcibly raped the babysitter, T.Z., at knife point while she was caring for two young children. In Count V (aggravated burglary) and Count VI (felony assault), Spotted Blanket was alleged to have entered the home of Dixie Miller on the night of October 2, 1996. When Miller awoke and started to scream, Spotted Blanket choked her with a belt from her bathrobe. He then left her residence when she continued to scream. Count III (sexual intercourse without consent) alleged that on October 4,1996, Spotted Blanket convinced M.E. to hide with him in the bushes in a Ronan city park. Spotted Blanket then choked and raped M.E. In Count IV (sexual intercourse without consent), the State alleged that on October 5,1996, Spotted Blanket forced M.E.’s sister, Ma.E., to engage in sexual intercourse at knife point. According to the prosecutor’s affidavit, Spotted Blanket admitted that he entered Morigeau’s residence, attacked Miller and raped T.Z., M.E. and Ma.E.

¶3 Along with the petition, the State filed its motion to transfer the proceedings to the District Court under § 41-5-206, MCA. The District Court heard this motion on October 23, 1996, and, following the hearing, ruled that Counts III and IV, only, would be transferred. An information charging Spotted Blanket with these offenses was filed October 28, 1996, in Lake County Cause No. DC-96-112. Thereafter Spotted Blanket retained counsel, Thomas S. Winsor, who presently represents him on appeal.

¶4 On February 24, 1997, the Lake County Attorney filed a new Youth Court petition addressing the charges which had not been transferred, Counts I, II, V and VI, and a motion to transfer these counts to District Court for prosecution. On March 5, 1997, defense counsel, Spotted Blanket and the State entered into a written stipulation agreeing as follows:

1. That Counts I and II of DJ-97-06 [aggravated burglary of Genevieve Morigeau’s residence and sexual intercourse without consent against T.Z., respectively] be transferred to District Court where Defendant is to be treated as an adult;
2. That Counts I and II of DJ-97-06 be consolidated with the Counts in District Court case DC-96-112;
3. That Counts III and IV [aggravated burglary and felony assault involving Dixie Miller] of DJ-97-06 remain in Youth Court;
4. That as a result of this Stipulation no further hearings are necessary for the transfer and consolidation of Counts I and II of DJ-97-06 to DC-96-112;
5. That the Youth Court hearing on the motion to transfer in DJ-97- 06 scheduled for March 19, 1997 be vacated;
6. That the hearing in DJ-97-06 for the youth’s admission or denial on the petition presently scheduled for March 19, 1997 be rescheduled [sic] April 16, 1997;
7. That Defendant be granted a continuance of the omnibus hearing in DC-96-112 to April 16, 1997; and,
8. That Defendant waives his speedy trial rights as to this continuance in both actions.

¶5 On March 14, 1997, pursuant to this stipulation, the State filed an amended information in District Court charging Spotted Blanket with aggravated burglary of Genevieve Morigeau’s residence (Count I) and with sexual intercourse without consent against T.Z. (Count II) , M.E. (Count III) and Ma.E. (Count IV). On May 16,1997, Spotted Blanket, his counsel and the State executed a plea agreement and Spotted Blanket signed an acknowledgment of rights under which he agreed to enter Alford pleas to the charged offenses in exchange for the State’s recommendation that he be committed to the Department of Corrections for 40 years on Count I and for 50 years on each of Counts II, III, and IV, with various conditions and with all commitments to run concurrently. Following a hearing, the District Court accepted Spotted Blanket’s pleas and on June 6,1997, sentenced him within the parameters of the plea agreement to a total 50-year commitment with the Department of Corrections subject to a number of conditions.

¶6 Spotted Blanket filed his notice of appeal on June 16,1997, from “the Court’s ruling of May 15, 1997 on his motion to dismis [sic] this matter.” Other matters pertaining to the background of this case will be discussed, to the extent necessary, in our opinion.

Issues

¶7 On appeal, Spotted Blanket raises the following issues:

¶8 1. Did the Youth Court err in transferring this case from the Youth Court to District Court?

¶9 2. Did the Youth Court err in transferring Counts I and II to District Court without a finding of probable cause?

¶10 3. Did the State courts have jurisdiction over Spotted Blanket, a juvenile member of the Confederated Salish and Kootenai Tribes?

Discussion

I.

¶11 In his first and second issues, Spotted Blanket contends that the District Court abused its discretion when it transferred his case from Youth Court to District Court because: (1) there was insufficient evidence that the juvenile facilities were inadequate as required by § 41-5-206(1)(d)(ii), MCA, and our decision in Matter of J.K.C. (1995), 270 Mont. 342, 891 P.2d 1169; and because (2) the court failed to make a finding of probable cause with respect to Counts I and II (aggravated burglary of Genevieve Morigeau’s home and sexual intercourse without consent against T.Z.) as required by § 41-5-206(1)(d)(i), MCA. We decline to address these issues and arguments for the following four reasons.

¶12 First, Spotted Blanket’s notice of appeal was limited to the District Court’s order denying his May 15,1997 motion to dismiss for lack of jurisdiction. This motion addressed and argued only the matter which Spotted Blanket now raises on appeal under his third issue, not the propriety of the transfer of his case from Youth Court to District Court. The record reflects that Spotted Blanket has not filed a notice of appeal from any order transferring his case from the Youth Court to the District Court. Rule 4(c), M.R.App.P., requires that the notice of appeal “shall designate the judgment, order or part thereof appealed from.” We will not consider an appeal from an order not designated in the notice of appeal. See State v. Delap (1989), 237 Mont. 346, 350-51, 772 P.2d 1268, 1271.

¶13 Second, our review of the record on appeal indicates that Spotted Blanket never challenged the propriety of the transfer of his case from Youth Court to District Court on the grounds he now argues, nor did he reserve the right to appeal these issues pursuant to § 46-12-204(3), MCA, in the plea agreement or otherwise. It is well settled that issues and claims of error not properly preserved in the trial court are barred from appellate review. Section 46-20-701, MCA; State v. Swoboda (1996), 276 Mont. 479, 481, 918 P.2d 296, 298. Moreover — and our cases are legion on this point — we will not consider issues raised for the first time on appeal when the appellant had the opportunity to make his objections at the trial level. State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491.

¶14 Third, Spotted Blanket and his counsel entered into a written stipulation with the State in which Spotted Blanket agreed that Counts I and II (aggravated burglary of Genevieve Morigeau’s residence and sexual intercourse without consent against T.Z.) would be transferred to the District Court without further hearing. Accordingly, having agreed that no probable cause hearing would be necessary, Spotted Blanket is now in no position to argue that the District Court erred in failing to enter a probable cause finding. See Topco, Inc. v. State (1996), 275 Mont. 352, 358, 912 P.2d 805, 808 (“it is improper to raise an issue on appeal as to a question of law or fact after the parties have entered into a stipulation as to that law or fact”) (citations omitted).

¶15 Finally, Spotted Blanket entered a plea of guilty to the four felony counts set out. in the amended information. It is well settled that a plea of guilty which is voluntary and understandingly made (and there is no argument, here, to the contrary) constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea. Stilson v. State (1996), 278 Mont. 20, 22, 924 P.2d 238, 239 (citations omitted). The fact that Spotted Blanket’s was an Alford plea does not change this principle of law. See State v. Butler (1995), 272 Mont. 286, 291, 900 P.2d 908, 911.

¶16 Accordingly, for the foregoing reasons, we hold that Spotted Blanket has waived appellate review of his first and second issues.

II.

¶17 Did the State courts have jurisdiction over Spotted Blanket, a juvenile member of the Confederated Salish and Kootenai Tribes?

¶18 Spotted Blanket argues that the State courts did not have jurisdiction over this matter because he is a member of the Confederated Salish and Kootenai Tribes (Tribes) and because his offenses were committed within the exterior boundaries of the Flathead Reservation against Tribal members while he was a juvenile. As pointed out above, Spotted Blanket raised this issue in the District Court by motion to dismiss, and the court denied his motion. The question of whether a motion to dismiss is properly granted or denied on the basis of a lack of subject matter jurisdiction is one of law which we review de novo. See Poteat v. St. Paul Mercury Ins. Co. (1996), 277 Mont. 117, 119, 918 P.2d 677, 679 (citations omitted). In the case at bar, we hold that the State Youth Court and District Court did properly exercise subject matter jurisdiction over this case.

¶19 Public Law 280, enacted by Congress in 1953, among other things, authorized the State to acquire criminal jurisdiction over offenses committed by or against Indians on Indian reservations within the State. See State ex rel. McDonald v. District Court of Fourth Judicial District (1972), 159 Mont. 156, 159, 496 P.2d 78, 80. In 1963, the Montana Legislature enacted Ch. 81, L. 1963 which, in substance, obligated and bound the State of Montana to criminal jurisdiction over Indians on the Flathead Reservation. Tribal consent to this assumption of jurisdiction (required by subsequent amendments to P.L. 280) was granted by the enactment of Tribal Ordinance 40-A, dated May 16, 1964, and the governor of Montana thereafter issued the required proclamation on June 30, 1964. Almost a year later on May 5, 1965, Tribal Ordinance 40-A (Revised) was enacted clarifying language in the original ordinance limiting its scope to criminal laws and repealing the original Ordinance 40-A. Thereafter, the governor issued another proclamation dated October 8, 1965. McDonald, 159 Mont. at 160-61, 496 P.2d at 80. This Court has long recognized that the State of Montana has exercised criminal jurisdiction over Indians committing crimes on the Flathead Indian Reservation. McDonald, 159 Mont. at 161, 496 P.2d at 81. See also Campbell v. Crist (D.Mont. 1980), 491 F.Supp. 586, 588.

¶20 Spotted Blanket argues, however, that because P.L. 280 makes no specific mention of juveniles, he is not subject to State court jurisdiction and that the State’s exercise of jurisdiction over juveniles is contrary to notions of tribal sovereignty and the Flathead policy of rehabilitation. We disagree.

¶21 At the outset, and while not dispositive one way or the other of the jurisdictional issue raised here, we note that this case was investigated by both Tribal and State law enforcement and that Spotted Blanket was ultimately prosecuted in State court with the knowledge, concurrence and cooperation of the Tribal authorities. In point of fact, the record indicates that the Tribal prosecutor and Tribal juvenile officer jointly made the referral of Spotted Blanket’s case to the State — a decision that, according to the Chief Judge of the Tribal Court, was clearly within their power and discretion.

¶22 More importantly, the United States Supreme Court has addressed and decided the jurisdictional issue raised by Spotted Blanket contrary to his position. In Washington v. Confederated Bands and Tribes of the Yakima Indian Nation (1979), 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740, the Court approved the State of Washington’s partial assumption of jurisdiction over the defendant Yakima Indian Tribes under P.L. 280 with regard to various jurisdictional categories, including “juvenile delinquency.” Washington, 439 U.S. at 465-66 n. 1, 475-76, 499, 99 S.Ct. at 744 n. 1, 748-49, 760, 58 L.Ed.2d at 747 n. 1, 752-53, 767. In doing so the Court noted that Washington had done no more than “refrain from exercising the full measure of allowable jurisdiction without the consent of the tribe affected.” Washington, 439 U.S. at 495, 99 S.Ct. at 758, 58 L.Ed.2d at 764. Moreover, the Court stated:

We are unable to conclude that the State, in asserting a less intrusive presence on the Reservation while at the same time obligating itself to assume full jurisdictional responsibility upon request, somehow flouted the will of Congress. A State that has accepted the jurisdictional offer in Pub.L. 280 in a way that leaves substantial play for tribal self-government, under a voluntary system of partial jurisdiction that reflects a responsible attempt to accommodate the needs of both Indians and non-Indians within a reservation, has plainly taken action within the terms of the offer made by Congress to the States in 1953.

Washington, 439 U.S. at 499, 99 S.Ct. at 760, 58 L.Ed.2d at 767.

¶23 This is, of course, precisely what Montana has done on the Flathead Reservation. See Ch. 81, L. 1963 (codified at §§ 2-1-301, -302 and -303, MCA). Furthermore, as previously noted, the Tribes’ Ordinance 40-A (Revised) extended concurrent jurisdiction to the State over certain specific areas, including “Juvenile Delinquency and Youth Rehabilitation” and “All Criminal Laws of the State of Montana ...” See Liberty v. Jones (1989), 240 Mont. 16, 18, 782 P.2d 369, 371; Larrivee v. Morigeau (1979), 184 Mont. 187, 193-94, 602 P.2d 563, 566-67, cert. denied, 455 U.S. 964, 100 S.Ct. 1653, 64 L.Ed.2d 240 (1980).

¶24 In 1993, the Montana Legislature adopted a statute that allowed the Tribes to withdraw their consent to exercise of State criminal misdemeanor and civil jurisdiction. Section 1, Ch. 542, L. 1993 (codified at § 2-1-306, MCA). The Tribes sought withdrawal of most forms of criminal misdemeanor jurisdiction in Resolution 94-123, and the requested retrocession became effective in September 1994, with the governor’s proclamation of September 30, 1994. Notwithstanding, the State’s jurisdiction over felonies and civil matters within the scope of Ordinance 40-A (Revised) was otherwise unaffected. Accordingly, Montana retains concurrent jurisdiction with the Tribes over juvenile delinquency and criminal felony matters.

¶25 Spotted Blanket’s argument that lack of any specific mention of “juveniles” or “juvenile jurisdiction” in P.L. 280 precludes the assertion of jurisdiction by the State over these matters is without merit. Congress did not specify any particular sorts of jurisdictional categories within the law’s jurisdictional offer. Rather, P.L. 280 included all criminal offenses and civil causes of action within its provisions. See Washington, 439 U.S. at 471-74 n. 9, 99 S.Ct. at 746-48 n. 9, 58 L.Ed.2d at 750-51 n. 9.

¶26 We hold that Spotted Blanket is properly subject to the jurisdiction of the courts of Montana under the provisions of P.L. 280.

¶27 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and REGNIER concur.

      . Unless otherwise indicated, all code citations are to the 1995 Montana Code.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ALOYSIUS BIG HAIR, Defendant and Appellant.
    No. 97-441.
    Submitted on Briefs December 18, 1997.
    Decided March 20, 1998.
    1998 MT 61.
    55 St.Rep. 257.
    955 P.2d 1352.
    288 Mont. 135.

      For Appellant: James L. Vogel, Hardin.
    For Respondents: Honorable Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy County Attorney, Hardin.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 Aloysius Big Hair appeals his conviction of driving while under the influence of alcohol (DUI), fourth offense, in the Thirteenth Judicial District Court, Big Horn County. We affirm.

¶2 The issues are whether the District Court erred in denying Big Hair’s motions to continue trial due to the unavailability of a witness and to quash reference to his previous DUI convictions on grounds that he had not been properly advised of his right to counsel in relation to those convictions.

¶3 On April 5, 1996, Big Hair was arrested in Hardin, Montana, on a DUI charge. He was charged under § 61-8-401, MCA(1985), with DUI, fourth offense, based on his previous DUI convictions in 1987, 1988, and 1989.

¶4 At the jury trial on the April 1996 charge, Big Hair and his wife testified that their pickup had disappeared from their home south of Crow Agency, Montana, during a party some time the night before his arrest. They both testified that they had caught a ride to Hardin on the morning of April 5 to look for the track. Mrs. Big Hair testified that she waited for her husband with friends in a bar while he searched for the truck. Big Hair testified that he walked around Hardin looking for the truck, periodically returning to the bar where his wife waited for him, and finally found the truck parked in the downtown area. Just as he found the truck and reached in through the window to retrieve the keys, a highway patrol officer approached him and arrested him for DUI.

¶5 The highway patrol officer testified that he had received a radio transmission concerning a possible DUI driver in a pickup truck at about 6:00 p.m. on April 5,1996. The report included a description of the truck and its license plate number, and information that it had three occupants. The officer did not find the truck at the reported location.

¶6 A few minutes later, the officer received a second radio transmission concerning the location of the pickup. He made a U-turn and found the truck parked with three occupants in a spot where it had not been minutes before. Big Hair was seated behind the steering wheel. The officer testified that as he approached the truck, Big Hair got out and began walking across the street. The officer stated that Big Hair admitted that he had been driving and that he had had “a couple beers.” After administering field sobriety tests, the officer arrested Big Hair and took him to the local police station, where his blood alcohol concentration was measured at .337.

¶7 The jury convicted Big Hair of DUI. The District Court denied Big Hair’s post-trial motions to quash reference to his prior DUI’s and for new trial based on denial of his pretrial motion for a continuance.

Issue 1

¶8 Did the District Court err in denying Big Hair’s motion to continue trial due to the unavailability of a witness?

¶9 Section 46-13-202, MCA, gives a district court discretion in considering a motion to continue trial. At subsection (3), the statute provides that it is to be construed “to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the prosecution to a speedy trial.” When reviewing the denial of a motion for continuance, this Court determines whether the district court abused its discretion. State v. Haskins (1992), 255 Mont. 202, 207, 841 P.2d 542, 545.

¶10 Big Hair moved for a continuance on the day before trial. His motion stated that an eyewitness to the alleged offense, an alleged passenger in his truck who had previously stated his willingness to come to court, could not be located. The defense alleged that this witness would testify to Big Hair’s level of intoxication and, the defense believed, that Big Hair was not driving the pickup. The defense contended that “because of the relatively short trial setting in this matter, [the witness] was not able to be informed thereof.”

¶11 In oral argument on this motion just before voir dire of the jury, the State responded that the evidence would speak for itself — the State would offer the results of the breath test as to Big Hair’s level of intoxication, and the testimony of the arresting officer as to whether Big Hair was driving the truck. The State objected to a continuance on grounds that the arresting officer had accepted a job in Oregon and would be leaving Montana, resulting in the potential expense of having him come back to Montana to testify if the continuance were granted.

¶12 Big Hair’s trial was set six months in advance, in April 1996, for October 7, 1996. On October 11, 1996, trial was rescheduled for October 17, 1996, apparently due to the court’s crowded docket on October 7.

¶13 There is no record or claim that Big Hair objected to the rescheduled trial date when it was set. Nor did he present any basis for his stated belief that his witness could be located within a reasonable time if a continuance was granted. He provided only rather vague oral representations by his counsel regarding the nature of the proposed witness’s testimony.

¶14 The District Court denied Big Hair’s October 16 motion for a continuance on grounds that it was belatedly filed. After reviewing the record, we hold that the District Court did not abuse its discretion in denying the motion for a continuance.

Issue 2

¶15 Did the court err in denying Big Hair’s motion to quash reference to his previous DUI convictions on grounds that he had not been properly advised of his right to counsel in relation to those convictions?

¶16 In Montana, a rebuttable presumption of regularity attaches to a prior DUI conviction during a collateral attack such as the one Big Hair raises here. This presumption must be overcome by direct evidence of irregularity by the defendant; the burden then shifts to the State to prove by direct evidence that the prior conviction was not obtained in violation of the defendant’s rights. State v. Okland (1997), 283 Mont. 10, 18, 941 P.2d 431, 436.

¶ 17 At the hearing on the motion to quash, the District Court heard testimony from Big Hair and from Judge Snively, the justice of the peace who presided at Big Hair’s 1987, 1988, and 1989 DUI convictions. In its written order denying the motion to quash, the District Court reasoned as follows:

[T]he records of the lower court for each of the Defendant’s three convictions and the testimony of Judge Snively established that the Defendant’s right to counsel was explained to him and that he knowingly and intelligently waived his right prior to the entry of his plea of guilty. The Defendant did not controvert this evidence, he merely testified that he did not recall whether his rights had been explained and whether he understood them and waived them. The Court concludes, under the facts of this case, that the lower court record was not silent and that the State of Montana sustained its burden of proving that the Defendant’s Sixth Amendment right had been afforded to him during each of his prior convictions.

Big Hair argues that there was insufficient evidence that he was properly advised of and waived his constitutional right to counsel in his 1987, 1988, and 1989 DUI convictions.

¶18 Big Hair did not present any direct evidence in support of his claim that his constitutional right to counsel was violated in the prior proceedings. He testified only that he could not recall whether he had been advised of his right to counsel and whether he had waived that right. We conclude that, like the defendants in State v. Perry (1997), 283 Mont. 34, 938 P.2d 1325, and State v. Stubblefield (1997), 283 Mont. 292, 940 P.2d 444, Big Hair has failed to rebut the presumption of regularity with any direct evidence that his constitutional right to counsel was violated. Therefore, we hold that the District Court did not err in denying his motion to quash.

¶19 Affirmed.

JUSTICES NELSON, GRAY and REGNIER concur.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

¶20 I concur with the majority’s conclusion that the defendant has failed to rebut the presumption of regularity of the proceedings which led to his prior DUI convictions.

¶21 I dissent from the majority’s conclusion that the District Court did not abuse its discretion when it denied the defendant’s motion to continue the trial date so that he could locate and produce an eyewitness to the events which were the basis for the charges against him.

¶22 The majority points out that the District Court’s primary basis for denying Big Hair’s motion to continue was that it was belatedly filed. Under the circumstances of this case, I disagree. However, additional facts are necessary for an understanding of why Big Hair’s motion to continue was first filed the day before trial.

¶23 This case was originally set for trial as Case No. 10 on October 7,1996. On appeal, the defendant’s attorney contends, and the State does not disagree, that he had been advised the case would not go to trial on October 7 because of the number of other cases which were set ahead of it. However, not until October 11 was the defendant advised by the District Court that this case would go to trial on October 17, four working days later. According to the defendant’s attorney, he began his efforts to locate his eyewitness, Gilford Sees The Ground, as soon as he was notified of the new trial date, but by October 16, realized that he would probably be unsuccessful.

¶24 The transcript of the hearing on October 17 to consider Big Hair’s motion to continue demonstrates just how unexpected the whole scheduling process had been. The following conversation occurred:

THE COURT: I looked through the file. I guess I can’t tell from the it [sic] how this thing ended up for today.
[DEFENDANT’S ATTORNEY]: I guess what I understand, Your Honor, if I got the dates wrong, I understand the judge reset this for trial for today from last Thursday.
[STATE’S ATTORNEY]: It was last Friday. It was set — This is actually a case pending before Judge Colberg, and Judge Colberg was here in Hardin last Friday for an eight o’clock hearing, and it was reset at that time, although no written record or objection was entered.
[DEFENDANT’S ATTORNEY]: My understanding, we had a motion pending to dismiss the charge. The judge ruled on that. I believe we got the ruling on that motion last Wednesday.
THE COURT: Judge Fagg did that?
[DEFENDANT’S ATTORNEY]: Yes. Essentially the matter then was rescheduled. Since that time we have been trying to locate a witness. The witness is Gilford Sees The Ground. We made quite an effort to locate him. Talked to family members. Talked to others, and haven’t been able to locate him as of yet. We believe he is critical to the defense because he was present at the scene and would testify as to the intoxication level of the defendant, as well as, I believe, testifying that the defendant was not driving the pickup, and those are two of the three elements that have to be proven for this offense. He is an eyewitness to that. We believe he is very important to the defense in this matter. He has indicated a willingness to testify, but he just doesn’t know about it. We haven’t had time to locate him. For that reason, we filed our motion to continue. We believe, with additional time, we could locate him, and that he would be important to the defense in this matter.

¶25 Not only was Big Hair’s motion to continue as timely as possible under the circumstances, the unavailable witness was critical to his defense. As pointed out in the majority opinion, Big Hair and his wife denied that he had ever operated his motor vehicle in the condition in which he was found. It was their testimony that the vehicle had been taken from his home the night before and that just prior to the time he was observed by the arresting officer, he had located the vehicle and removed the keys. He was not observed operating the vehicle by the arresting officer.

¶26 Obviously no affidavit could be produced from Sees The Ground prior to trial because he was unavailable. However, in an affidavit filed in support of the defendant’s motion for a new trial, Sees The Ground made the following statements under oath:

2. That the undersigned recalls the events of April 5, and did observe the arrest of Aloysius Big Hair when the highway patrol took him into custody for an alleged DUI.
3. That the undersigned did observe Aloysius Big Hair immediately before the arrest, and observed that he was not driving just prior to the time the officer did take him into custody.
4. That the undersigned did observe Aloysius Big Hair in the time immediately prior to the arrest, and was aware that Aloysius Big Hair was looking for his pickup, which was missing from his place of residence since earlier that day.
5. That immediately prior to his arrest, Aloysius Big Hair did find his pickup, and had just retrieved the keys therefrom when the officer took him into custody.
6. That the undersigned has been willing to testify on behalf of Aloysius Big Hair regarding this matter, but was not available at the time this matter was set for trial in October.

¶27 Based on the circumstances in which the defendant’s attorney found himself at the time of the rescheduled trial, there was no legitimate basis for denying his motion to continue the trial. The State’s only objection was that the investigating officer was leaving the state at the end of the month; however, the State also pointed out that he could return to the state for trial. At most, the disadvantage to the State was the travel expense of having the investigating officer return. That amount of additional expense was not a significant factor when balanced against the unavailability of an eyewitness who was willing to testify on the defendant’s behalf.

¶28 I conclude that the defendant’s motion to continue the trial date was not belated. The continuance was necessary in order to assure that the defendant receive a fair trial, and when the District Court denied the motion for a continuance based on its stated reason, the District Court abused its discretion.

¶29 For these reasons, I dissent from the majority opinion which affirms the District Court’s denial of the defendant’s motion for a continuance. I would reverse the defendant’s conviction and remand to the District Court for a new trial.


author: JUSTICE REGNIER

text:
    FORREST M. SANDERS, Petitioner, v. STATE OF MONTANA, Respondent.
    No. 97-551.
    Submitted on Briefs February 26, 1998.
    Decided March 24, 1998.
    1998 MT 62.
    55 St.Rep. 272.
    955 P.2d 1356.
    288 Mont. 143.

      For Petitioner: Brad L. Arndorfer; Arndorfer Law Firm, PC.; Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Brenda Nordlund, Assistant Attorney General; Helena; Craig Hensel, Billings City Attorney’s Office, Billings.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Forrest Sanders appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to hold the State of Montana in contempt of court for its failure to reinstate his driver’s license. For the reasons stated below, we affirm.

¶2 The sole issue on appeal is whether the District Court erred in denying Sanders’ motion to hold the State of Montana’s Department of Justice in contempt for its refusal to reinstate Sanders’ driver’s license after a six-month suspension and its decision to instead revoke his license for a period of one year.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On November 6,1995, Sanders filed an action in District Court, seeking the reinstatement of his driver’s license which had been suspended by the Montana Department of Justice following his arrest for driving under the influence of alcohol and refusal to submit to a breath test. Sanders asked the District Court to review the suspension, arguing the officer who stopped him lacked probable cause to pull him over. On May 8, 1996, the District Court issued its findings of fact and conclusion of law, upholding the suspension of Sanders’ driving privileges for a ninety-day period. On May 10,1996, the State filed a motion to amend the court’s order, conceding it had erroneously stated to the court that Sanders’ license had been suspended for a period of ninety days, when in fact the State had suspended his driving privileges for a period of six months. On May 15, 1996, the District Court amended its findings of fact and conclusions of law to uphold the suspension of Sanders’ license for a period of six months.

¶4 Sanders appealed, and we affirmed the District Court’s decision in a nonciteable opinion dated January 14,1997. In so doing, we first concluded the District Court did not err in finding the officer had reasonable grounds to believe Sanders was driving under the influence of alcohol. We also concluded the court had properly amended its findings of fact and conclusions of law to correct an error in the procedural history of the case and affirm the suspension of Sanders’ license for a period of six months.

¶5 On July 8,1997, Sanders’ counsel wrote a letter to the Attorney General’s office, seeking reinstatement of Sanders’ driver’s license. Sanders’ counsel argued that “both the District Court and the Supreme Court ruled that this was a six (6) months suspension,” but recognized “[t]he Driver Improvement Bureau has put this down as a second refusal and a one year revocation.” The Department of Justice refused to reinstate Sanders’ license on the grounds that a one-year revocation was statutorily required under the circumstances of this case.

¶6 On July 24,1997, in light of the Department of Justice’s refusal to reinstate his license, Sanders filed a motion for contempt. Sanders argued that both this Court and the District Court had upheld the suspension of his license for a period of six months, and that respondents were in contempt of court for refusing to reinstate Sanders’ license after the expiration of the six-month period.

¶7 In a September 18, 1997, order and memorandum, the District Court denied Sanders’ motion for contempt, reasoning that the six-month suspension period had not become the law of the case, and concluding that a one-year revocation period was indeed statutorily mandated. On September 22,1997, Sanders filed his notice of appeal from the District Court’s order denying his motion for contempt.

¶8 Moreover, Sanders filed a petition for writ of supervisory control on October 1, 1997, and an amended petition on October 31, 1997. Sanders represented that the District Court had refused to stay its order denying Sanders’ motion for contempt, pending appeal. Sanders argued that, unless this Court issued a writ of supervisory control, the one-year revocation period he complained of would expire before his appeal could be heard, thereby rendering his appeal moot. Thus, on November 18, 1997, we granted Sanders’ petition for supervisory control, and ordered any further suspension of Sanders’ driver’s license stayed pending the present decision.

STANDARD OF REVIEW

¶9 We review contempt proceedings only to determine whether the District Court acted within its jurisdiction and whether the evidence supports the court’s order. Gillespie v. Sherlock (1996), 279 Mont. 21, 24, 929 P.2d 199, 200 (citing State ex rel., Foss v. District Court (1985), 216 Mont. 327, 331, 701 P.2d 342, 345).

DISCUSSION

¶10 Did the District Court err in denying Sanders’ motion to hold the Department of Justice in contempt for its refusal to reinstate Sanders’ driver’s license after a six-month suspension?

¶11 On appeal, Sanders argues this Court should not permit the State to disobey what Sanders characterizes'as a direct ruling by the District Court, affirmed on appeal, that his driver’s license be suspended for a period of six months. Sanders argues the six-month suspension became the law of the case, and asserts the District Court was thus without authority to approve the State’s decision to revoke Sanders’ license for a period of one year. Sanders also argues the District Court was collaterally estopped from doing anything other than granting his motion for contempt in light of the State’s refusal to reinstate his license after six months.

¶ 12 The law of the case doctrine relied upon by Sanders stands for the proposition that “the final judgment of the highest court is the final determination of the parties’ rights.” Scott v. Scott (1997), 283 Mont. 169, 175, 939 P.2d 998, 1002 (quoting Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436, 591 P.2d 196, 197). We have explained that when “the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal.” Scott, 283 Mont. at 175-76, 939 P.2d at 1002 (quoting Fiscus, 180 Mont. at 437, 591 P.2d at 197).

¶13 As noted above, on May 8, 1996, the District Court issued an order upholding the suspension of Sanders’ driving privileges for a period of ninety days. Two days later, however, the State filed a motion to amend the court’s order on the grounds that Sanders’ driver’s license had in fact been suspended for a period of six months, rather than ninety days. Thus, on May 15, 1996, the court amended its findings of fact and conclusions of law to reflect that Sanders’ “driving privileges were suspended October 30, 1995, for six (6) months by the State of Montana, Department of Justice, Motor Vehicle Division.” Although the court noted the Department of Justice had suspended Sanders’ license for six months, that observation was but incidental to the court’s ultimate conclusion that the officer who stopped Sanders had reasonable grounds to believe he was operating his vehicle while under the influence of alcohol.

¶ 14 We affirmed the District Court’s decision on appeal, concluding in pertinent part that the court had properly amended its findings of fact and conclusions of law to correct an error in the procedural history of the case and uphold the State’s suspension of Sanders’ license for a period of six months, rather than ninety days.

¶15 Relying on the foregoing decisions, Sanders argues this Court, as well as the District Court, has directly ordered that Sanders’ license be suspended for a period of six months. Sanders argues our pronouncement became the law of the case, and asserts the District Court failed to adhere to our decision when it denied Sanders’ motion to hold the State in contempt for its refusal to reinstate his driver’s license after a six-month suspension.

¶16 As noted, the law of the case doctrine applies only to those principles or rules of law enunciated by this Court which are “necessary to the decision” before it. Haines Pipeline Construction, Inc. v. Montana Power Co. (1994), 265 Mont. 282, 289, 876 P.2d 632, 637 (citing Zavarelli v. Might (1989), 239 Mont. 120, 124, 779 P.2d 489, 492); Phalen v. Rilley (1970), 156 Mont. 91, 93, 475 P.2d 998, 999. Moreover, we have recognized that “[t]he doctrine does not extend so far as to include matter which was consequential, incidental, or not decided by the court.” Phalen, 156 Mont. at 93, 475 P.2d at 999 (quoting O’Brien v. Great Northern Ry. Co. (1966), 148 Mont. 429, 439-40, 421 P.2d 710, 715).

¶17 Review of the record indicates that the only substantive question addressed by the District Court in its amended findings of fact and conclusions of law was whether the officer who stopped Sanders had reasonable grounds to believe he was operating his vehicle while under the influence of alcohol. Moreover, although we held the District Court had not erred in amending its decision to uphold the suspension of Sanders’ license for six months, the issue on appeal was whether the court erred in concluding the officer had reasonable grounds to believe Sanders was driving while under the influence of alcohol.

¶18 In fact, clearly not at issue before the District Court, or on appeal, was the applicable license suspension or revocation period pursuant to § 61-8-402, MCA. Thus, neither this Court nor the District Court has had occasion to determine whether § 61-8-402, MCA, mandated that the Department of Justice suspend Sanders’ license for a period of ninety days, six months, or one year. As mention of the six-month suspension term was not necessary to our conclusion that the officer had reasonable grounds to stop Sanders, it did not become the law of the case.

¶19 Instead, as we recognized in our January 14, 1997, decision, “[t]he Montana Department of Justice is responsible for determining the applicable driver’s license suspension period in accordance with § 61-8-402, MCA.” Section 61-8-402(6), MCA, provides as follows:

The following suspension and revocation periods are applicable upon refusal to submit to one or more tests:
(b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license.

¶20 The record indicates that the suspension of Sanders’ license on October 30, 1995, resulted from his second testing refusal within a five-year period. Accordingly, as determined by the Department of Justice and as reflected by Sanders’ certified driving record, § 61-8-402(6), MCA, mandated that Sanders’ driving privileges be revoked for a period of one year. Moreover, the record indicates that Sanders had notice that his refusal to take a breath test for the second time within a five-year period would result in the revocation of his driving privileges for a period of one year. On January 19, 1996, the parties stipulated that Officer Longin had read an Implied Consent Advisory form to Sanders on the night of his arrest. The form explained the following: “If you have refused similar testing within the past five years and you refuse again today, your driver’s license will be seized and revoked for one year.”

¶21 The record thus indicates Sanders had notice that, in light of his prior driving record, the Department of Justice would revoke his license for a period of one year.

¶22 That the District Court and this Court previously referenced a six-month suspension does not mean the court was then bound, pursuant to the law of the case doctrine, to adhere to a six-month suspension period. Rather, we conclude that the law of the case doctrine is inapplicable under the circumstances, and that the District Court did not err in denying Sanders’ motion to hold the State in contempt for its refusal to reinstate his driving privileges following a six-month suspension.

¶23 Sanders also argues the District Court was collaterally estopped from doing anything but granting his motion for contempt. As with the law of the case doctrine, however, the collateral estoppel bar only prevents relitigation of those issues actually decided in a prior adjudication. Haines Pipeline, 265 Mont. at 288, 876 P.2d at 636. As neither the District Court nor this Court had previously addressed the question of whether a six-month suspension was in fact appropriate under the circumstances of this case, we conclude the District Court was not collaterally estopped from denying Sanders’motion for contempt.

¶24 We have held that a party may not be held in contempt of court for violating an order, unless the terms of the order are definite, certain, and specific. Goodover v. Lindey’s, Inc. (1993), 257 Mont. 38, 42, 847 P.2d 699, 701. Furthermore, we have recognized that “[i]f there is no command, there is no disobedience.” Goodover, 257 Mont. at 42, 847 P.2d at 701. Here, although both the District Court and this Court made mention of a six-month suspension period, neither court evaluated the statutory propriety of that term or specifically ordered its imposition. Based on the foregoing, we affirm the District Court’s decision denying Sanders’ motion for contempt.

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


author: JUSTICE HUNT

text:
    THOMAS D. AXTELL and CARMEN D. AXTELL, Plaintiffs and Respondents, v. M.S. CONSULTING, ET AL., Defendants and Appellants.
    No. 97-346.
    Submitted on Briefs October 9, 1997.
    Decided March 24, 1998.
    1998 MT 64.
    55 St.Rep. 276.
    955 P.2d 1362.
    288 Mont. 150.

      For Appellants: William A. Hritsco, Davis, Warren & Hritsco, Dillon.
    For Respondents: W. G. Gilbert, III, Dillon; Robert C. Griffin, Herndon, Sweeney & Halverson, Billings (defendant Rowe).
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 M.S. Consulting, et al. (M.S. Consulting) appeal from the summary judgment and decree entered by the Fifth Judicial District Court, Madison County, quieting title to certain water rights in favor of Thomas D. Axtell and Carmen D. Axtell (the Axtells). We reverse and remand.

¶2 The following issue is dispositive of this case:

¶3 Did the District Court err in holding that no genuine issues of material fact existed and that summary judgment was proper?

BACKGROUND

¶4 M.S. Consulting is the owner of a 110-acre parcel of land located east of Sheridan, Montana in Madison County (hereinafter the “large parcel”). Within this large parcel lies a 2-acre parcel owned by the Axtells (hereinafter the “small parcel”). The Axtells own a house and operate a machine shop on the small parcel. Eclipse Creek runs through both the large and small parcels. Located on the large parcel, but beyond the perimeter of the small parcel are several springs. Over the years, the Axtells and their predecessors in interest have used one of these springs for their domestic water needs. It is the water rights to this spring which is the subject of the parties’ dispute.

¶5 Prior to 1951, the large and small parcels were a single parcel owned by Nellie Cierno Duncan. Ms. Duncan lived in a small house located east of Eclipse Creek on what is now the small parcel. Ms. Duncan’s granddaughter, Janet Kentfield (Kentfield), who lived with Ms. Duncan from 1936 until 1943, testified that her grandmother’s house had no electricity or indoor plumbing, and that their water needs were met by going either to the spring on the large parcel, or to nearby Mill Creek, and packing home buckets of water every day. It appears from the facts that the water from Eclipse Creek was not suitable for drinking. Kentfield testified that located west of Eclipse Creek, still on what is now the small parcel, was another small cabin that her grandmother used for storage. When Ms. Duncan’s house burned down sometime after 1943, she fixed up the small storage cabin and moved there. Kentfield testified that this second home likewise had no electricity or indoor plumbing. Although Kentfield moved away in 1943, she visited her grandmother periodically. It was Kentfield’s belief that from 1943 until her grandmother’s death in 1950, her grandmother continued to have water packed from the spring or from Mill Creek to her home. Kentfield testified that during the years she lived with and visited her grandmother, she never saw nor was made aware of any pipes, spigots, or other devices carrying water from the spring to Ms. Duncan’s home.

¶6 Florence W. Baker was a close friend and neighbor who took care of Ms. Duncan. Ms. Baker’s daughter, Shirley McLaren (McLaren), testified that she assisted her mother in taking care of Ms. Duncan by packing the water from either the spring or Mill Creek to the house. McLaren testified that before she left the area in 1953, Ms. Duncan’s water needs were met by spring water which traveled from the spring via galvanized pipe to a spigot located just outside the home.

¶7 On May 9, 1950, the elderly Ms. Duncan conveyed her property to Ms. Baker. Ms. Duncan continued to live on the property until her death on August 10, 1950. Thereafter, the house was vacant.

¶8 On June 15, 1951, Ms. Baker divided the property by conveying the large parcel to H. H. Halse (Halse) and reserving the small parcel. The deed from Ms. Baker to Halse conveyed the stated portion of land “[tjogether with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining.” The deed made no mention of water rights. Ms. Baker owned the small parcel for the next ten years and the house continued to remain vacant.

¶9 On September 6,1961, Ms. Baker sold the small parcel to Milton and Marilyn Hunt (the Hunts). The deed from Ms. Baker to the Hunts expressly conveyed “full right to all water or water rights on said property.” In 1962, the Hunts constructed a home on the small parcel west of Eclipse Creek. Ms. Hunt testified that there were no sources other than Eclipse Creek from which to supply their new home with water. Despite the conveyance of water rights in their deed, the Hunts asked Halse for permission to use water from the spring on the large parcel. Halse agreed and permitted the Hunts to construct a water collection box at the spring and bury plastic water pipes from the spring to their home site. Ms. Hunt testified that during construction of the spring water conveyance system, she and her husband discovered no other buried pipes or evidence of a pre-existing water conveyance system which would have carried water from the spring to the small parcel. Ms. Hunt also stated that she used the former Nellie Cierno Duncan cabin for storage and that it had no indoor plumbing. She stated she never saw nor was she aware of any pipe or spigot conveying water to the cabin.

¶ 10 Ms. Hunt testified that after building the spring water conveyance system, she, her husband, and Halse entered into a signed, written 99-year lease of the spring water. However, neither party has been able to locate this lease. On December 17, 1963, Halse filed a Declaration of Vested Groundwater Rights for the “total flow of all springs” located on the large parcel.

¶11 In October, 1975, the Hunts sold the small parcel to Thomas Walter (Walter). Walter testified that he purchased the small parcel with a loan from the Veterans Administration who, before approving the loan, warned Walter that his spring water rights were not secure and that he may some day have to find another water source or drill a well. At the time, the large parcel, formerly owned by Halse, was now owned by Floyd Fossceco (Fossceco). Walter testified that he continued to use the spring water conveyance system that the Hunts had installed, and that Fossceco never made an issue of water rights.

¶12 Walter also testified that during his ownership of the small parcel, he buried a half- inch metal pipe across the small parcel, past the Duncan cabin, and up to the top of an adjacent mountain where a television antennae was located. Walter testified that within the pipe he inserted television cables and that he undertook this project to obtain better television reception at his house.

¶13 In June, 1984, Walter agreed to sell the small parcel to Ralph Hamler (Hamler). To purchase the parcel, Hamler applied for a loan with the Farmer’s Home Administration (FHA). The FHA would not approve the loan because the water supply to the house did not meet FHA specifications. For the loan to be approved, the FHA required Walter to drill a well and plumb the house accordingly. Walter complied with this request, and in so doing, installed a valve in the basement of the house so that one could easily alternate between using well water and spring water. Walter then sold the small parcel to Hamler.

¶14 On May 15,1990, the Axtells purchased the small parcel. Soon thereafter, the Axtells demolished the former Nellie Cierno Duncan cabin, burned it, and discovered remnants of old half-inch galvanized pipe that had not burned. In 1991, the Axtells hired Joe Tezak (Tezak) to excavate a portion of their land for a machine shop they were planning to build for their business of manufacturing rifle sights and target rifles. During this excavation, Tezak discovered an old galvanized pipe approximately one and a half feet below the level at which the plastic water pipes had been buried. In 1992, the Axtells completed construction of the machine shop and plumbed it so that they could alternate between both well water and spring water. The Axtells mostly used spring water for their needs in the machine shop.

¶15 On December 10, 1993, the Axtells filed with the Montana Department of Natural Resources and Conservation a Notice of Water Right to “developed springs” with a diversion rate of sixteen gallons per minute. On the form, the Axtells indicated that they used the spring water for both domestic and livestock purposes.

¶16 On December 15, 1993, Fossceco sold the large parcel to M.S. Consulting. Fossceco represented to M.S. Consulting that the Axtells’ use of spring water was by permission only. Immediately after closing on their purchase, M.S. Consulting filed a Notice of Water Right on all the springs located on the large parcel, unaware that the Axtells had filed their Notice of Water Right to the spring a few weeks earlier.

¶17 In August, 1995, M.S. Consulting excavated a pond and constructed a dam on the large parcel. During the excavation process, the Axtells’ plastic spring water pipe was accidentally severed. The water pipe was temporarily fixed but left on top of the ground pending completion of the dam. The Axtells requested M.S. Consulting to re-bury the pipes but M.S. Consulting refused. After several failed negotiations in trying to resolve the matter, M.S. Consulting gave the Axtells written notice that their water arrangement was terminated and that the Axtells’ spring water supply would be cut off in forty-five days. On October 15,1995, M.S. Consulting cut off the Axtells’ spring water supply.

¶18 The Axtells responded by filing a complaint and obtaining an ex parte temporary restraining order (TRO) allowing them to re-connect the water line. A week later, a hearing was held on the matter of the TRO after which the District Court issued a temporary injunction enjoining M.S. Consulting from further interference with the Axtells’ spring water supply.

¶19 On June 5, 1996, the Axtells moved for summary judgment. On October 30, 1996, after hearing oral argument on the matter, the District Court issued its Findings of Fact and Conclusions of Law. The court found that summary judgment was proper because no material issues of fact were in dispute. The court found that Ms. Duncan had obtained water from the spring on what is now the large parcel, via galvanized pipe, to a spigot outside her home on what is now the small parcel. The court concluded as a matter of law that when Ms. Baker divided her land, conveying the large parcel to Halse and reserving the small parcel, she necessarily reserved with the small parcel the appurtenant water right, even though she did not expressly reserve such water right in the deed. The court concluded that this water right was thereafter transferred to the Hunts, and through several mesne conveyances, to the Axtells. The court further concluded that the water right claimed by M.S. Consulting was later in time and subordinate to that of the Axtells. The court held that the Axtells were entitled to the use of all waters of the spring.

¶20 After receiving notice of judgment, M.S. Consulting filed a motion to quantify the Axtells’water right, but the motion was denied. M.S. Consulting then appealed to this Court.

STANDARD OF REVIEW

¶21 Our standard of review in appeals from summary judgment rulings is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluation, based on Rule 56, M.R.Civ.P., as the district court. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted).

DISCUSSION

¶22 Did the District Court err in holding that no genuine issues of material fact existed and that summary judgment was proper?

¶23 In determining whether genuine issues of material fact exist in this case, it is necessary to first set out the legal framework in which water law issues are decided. The following information was taken from Professor Emeritus Albert W. Stone’s 1994 treatise Montana Water Law. In Montana, prior to 1973, water rights were adjudicated according to the doctrine of prior appropriation. Under this doctrine, a person could acquire an exclusive right to use a specific amount of water by applying it to the land for a beneficial use, or, in other words, “appropriating” the water. Prior appropriations had priority over later appropriations. Over time, as the number of appropriators claiming water rights in Montana increased, the adjudication of these rights became cumbersome and complex. Finally, in 1973, the Montana Legislature passed the Water Use Act (the Act), abolishing the doctrine of prior appropriation and creating a new system of adjudicating water rights. See Montana Water Use Act, 1973 Mont. Laws 452; Sections 85-2-212 to -907, MCA. The Act mandated that all holders of existing claims to water rights in a particular water basin file with the Montana Department of Natural Resources and Conservation (DNRC). Once existing claims were filed, the DNRC was to give each claim a priority date. If any conflicts arose concerning the priority of claims, then such claims were to be inspected by the DNRC and adjudicated in a water court. The Act provided that once existing water rights were adjudicated and filed according to a priority date, any new claims could arise only by the statutory method of filing, and, later filings would be subordinate to earlier ones.

¶24 Some water rights, including livestock and domestic uses of groundwater, are exempt from the filing requirements of the Act. Section 85-2-222, MCA. However, regardless of whether a water right is exempt from filing or not, the Act provides that once a water right is filed, then the filing constitutes prima facie evidence of its content until the issuance of a final decree. Section 85-2-227, MCA. At the present time, the process of water rights adjudication under the Act is ongoing in Montana.

¶25 Although water rights adjudication today occurs in the framework of the Act, the Act is not the only law that applies. Because the Act recognizes existing water rights, pre-1973 law is still applicable in determining the existence and validity of water rights acquired before 1973. Much of the pre-1973 case law has been codified in the Montana Code Annotated. Because the water right at issue in this case spans a significant number of years prior to 1973, we must apply pre-1973 law in determining the rights of the parties and in determining whether there exist genuine issues of material fact making summary judgment improper.

¶26 We turn then to the legal framework of the pre-1973 law. As previously stated, under the common law doctrine of prior appropriation, a person could acquire an exclusive right to use a specific amount of water by applying it to the land for a beneficial use. “Appropriate” means to “divert, impound, or withdraw ... a quantity of water.” Section 85-2-102(1)(a), MCA. “Beneficial use” means “a use of water for the benefit of the appropriator ... including but not limited to agricultural (including stock water), domestic, ... industrial, irrigation, ... and recreational uses.” Section 85-2-102(2)(a), MCA. Appropriations, or “use rights,” have been recognized since the early pioneer days. After numerous use rights had accumulated on the waters in Montana, the Montana Legislature passed a law in 1885 providing that an appropriative water right could also be established by posting a Notice of Water Right at the point of diversion and filing the notice with the county clerk. See Dept. of State Lands v. Pettibone (1985), 216 Mont. 361, 367, 702 P.2d 948, 951. Regardless of which method a person used to acquire a water right, common law or statutory, the underlying rule was that earlier appropriations had priority over later ones.

¶27 Once a water right was acquired, it could be transferred. This is so even today under post-1973 law. Generally, a water right is appurtenant to the land where it is used, “and, as such, passes with the conveyance of the land ... even though the grant does not specifically mention the water right.” Maclay v. Missoula Irrigation Dist. (1931), 90 Mont. 344, 353, 3 P.2d 286, 290 see also Schwend v. Jones (1973), 163 Mont. 41, 44, 515 P.2d 89, 91. However, a water right may be severed from the land to which it is appurtenant by either of the following: (1) the grantor’s conveyance of the land and express reservation of the water right, or (2) the grantor’s conveyances of the land and water right separately. Maclay, 3 P.2d at 290. These rules are restated in § 70-1-520, MCA, which provides that “[t]he transfer of a thing transfers also all its incidents unless expressly excepted, but the transfer of an incident to a thing does not transfer the thing itself.” Once a water right is transferred, the new owner of the water right is prohibited from enlarging the water right beyond the original owner’s use. Maclay, 3 P.2d at 290.

¶28 The division of a tract of land raises the additional question of how to quantify the water right appurtenant to each subdivision. In Bullerdick v. Hermsmeyer (1905), 32 Mont. 541, 553, 81 P. 334, 337 (overruled on other grounds), we held that two grantees who had acquired subdivided parcels of the grantor’s land “each became vested with an interest in the water, measured in amount by the requirements in each case ....” Similarly, in Spaeth v. Emmett (1963), 142 Mont. 231, 237, 383 P.2d 812, 815 we held:

[W]hen an owner of a tract of land with an appurtenant water right grants a portion of the tract without any express division or reservation, the appurtenant water right is divided in respective amounts to each tract measured in proportion as the number of acres irrigated with the water right on the land conveyed bears to the total number of acres irrigated by the water.

¶29 Once a person acquires a water right, either through appropriation or transfer, he must continue to use the water right for a beneficial purpose or risk losing the water right through abandonment. In Matter of Clark Fork River Drainage Area (1995), 254 Mont. 11, 15, 833 P.2d 1120, 1123, we recently stated the law of abandonment as it applies to water rights:

Two elements are necessary for the abandonment of a water right: nonuse of the water associated with the water right and intent to abandon the water right. [E]vidence of a long period of continuous nonuse of a water right raises a rebuttable presumption of an intent to abandon that right and shifts the burden of proof to the nonuser to explain the reasons for nonuse. To rebut the presumption of abandonment, there must be established some fact or condition excusing the long period of nonuse, not mere expressions of hope or desire ... regarding future use of the water.

(citations omitted) (the court held that 23 years of nonuse of water rights was sufficient to raise a rebuttable presumption of abandonment). See also 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 431, 666 P.2d 215, 217 (40 years); Holmstrom Land Co. v. Meagher County Newlan Creek Water District (1980), 185 Mont. 409, 424, 605 P.2d 1060, 1069 (75 years); Smith v. Hope Mining Co. (1896), 18 Mont. 432, 438-39, 45 P. 632, 634 (9 years).

¶30 Having set forth the applicable lav/ regarding the acquisition, transfer, and possible loss of water rights, we are prepared to apply the law to the facts of this case and determine whether there exist any genuine issues of material fact. We begin by tracing the water right back to Nellie Clemo Duncan.

¶31 The record shows that Ms. Duncan held a valid water right to the spring in question until May 9,1950, the date she conveyed her property to Ms. Baker. Ms. Duncan’s appropriation and beneficial use is evidenced by the testimony of Kentfield and McLaren that they helped Ms. Duncan pack water from the spring to her home for her domestic needs. Although the facts are in dispute as to whether Ms. Duncan later appropriated spring water via galvanized pipe to a spigot outside her home, these facts are not material to the initial question of whether Ms. Duncan possessed a valid water right. In answering this question, we look only to facts establishing Ms. Duncan’s appropriation, not her method of appropriation.

¶32 On May 9, 1950, when Ms. Duncan conveyed the land to Ms. Baker, Ms. Baker owned the water right because it passed with the land as an appurtenance. Maclay, 3 P.2d at 290. The record shows that for the next three months, until Ms. Duncan’s death on August 10, 1950, Ms. Baker continued to help Ms. Duncan meet her domestic water needs. Thus, it follows that Ms. Baker had a valid water right during this time because she continued to apply the water to the land for a beneficial use. Clark Fork, 833 P.2d at 1123.

¶33 After Ms. Duncan’s death, Ms. Baker owned the entire tract of land for ten months during which the Duncan cabin was vacant. Without citing to authority, M.S. Consulting argues that due to this period of vacancy, and apparent nonuse of the water right, there exists a factual dispute as to whether Ms. Baker possessed a valid water right at the time she divided her land. It appears M.S. Consulting is making an argument of abandonment. As previously stated, two elements must be shown to prove abandonment: nonuse of the water and intent to abandon the water right. Clark Fork, 833 P.2d at 1123. First, with regard to nonuse, we note that a mere vacancy of one’s home does not necessarily mean that water is not being used. Second, with regard to intent, evidence of a long period of continuous nonuse of a water right raises a rebuttable presumption of an intent to abandon. Clark Fork, 833 P.2d at 1123. The cases previously cited discussing the law of abandonment illustrate that ten months does not meet this Court’s definition of a “long period of continuous nonuse.” In Montana, the shortest period of continuous nonuse raising a rebuttable presumption of abandonment is nine years. Smith v. Hope Mining Co. of St. Louis, 18 Mont. 435, 45 P. 632, 634. Because M.S. Consulting cannot prove the elements of abandonment for this ten-month period, we conclude that Ms. Baker possessed a valid water right at the time she divided her land.

¶34 When Ms. Baker divided her land on June 15, 1951, conveying the large parcel to Halse and reserving the small parcel, an appurtenant water right passed with the conveyance to Halse, and an appurtenant water right remained with Ms. Baker, each in proportion to the extent of use beneficially applied to the land before the division. Spaeth, 383 P.2d at 815. This is true even though Ms. Baker did not specifically reserve the water right with her reservation of the small parcel. Maclay, 3 P.2d at 290.

¶35 Although Ms. Baker possessed a valid water right appurtenant to the small parcel she reserved, a question exists as to whether Ms. Baker thereafter lost this water right through abandonment. M.S. Consulting asserts that because the Duncan cabin remained vacant during Ms. Baker’s ownership of the small parcel, a period of eleven years, and because no water conveyance system existed on the small parcel during this period, Ms. Baker never used her water right. M.S. Consulting argues that such nonuse resulted in Ms. Baker’s loss of the water right. Again, although M.S. Consulting did not explicitly mention abandonment in its brief, it appears that abandonment is the argument M.S. Consulting intended to make. In support of its position that no water conveyance system existed on the small parcel during Ms. Baker’s period of ownership, M.S. Consulting relies on the testimony of Kentfield, Ms. Hunt, and Walter, that they had never seen and were never made aware of any metal pipes, spigots, or other devices designed to carry water from the spring on the large parcel to the cabin on the small parcel.

¶36 The Axtells do not dispute the vacancy of the Duncan cabin during Ms. Baker’s ownership of the small parcel. However, the Axtells argue that Ms. Baker did not abandon her water right because evidence in the record shows that a water conveyance system existed during the period of Ms. Baker’s ownership of the small parcel. The Axtells point to McLaren’s testimony that in the last years of Ms. Duncan’s life, her water needs were met by a galvanized pipe carrying water from the spring to a spigot located outside her home. Similarly, Joe Tezak testified that while excavating the small parcel for the Axtells, he discovered galvanized pipe located one and one half feet below the plastic water pipes the Hunts had buried. Further, Mr. Axtell testified that galvanized pipe was discovered in the rubble of the burned Duncan cabin. M.S. Consulting purports to explain the existence of this galvanized pipe by arguing that it is the same metal pipe buried by Thomas Walter to protect his underground television cables. However, M.S. Consulting has submitted no evidence explaining why no television cables were found in the rubble with the galvanized pipe.

¶37 Having reviewed the record, we conclude that several issues of material fact exist with respect to whether Ms. Baker abandoned her water right: whether a water conveyance system existed during Ms. Baker’s ownership of the small parcel; whether Ms. Baker failed to use the water right; and whether Ms. Baker intended to abandon her water right. These factual disputes are material to the outcome of this case because if Ms. Baker did not abandon her appurtenant water right to the small parcel, then the Hunts, and through mesne conveyances the Axtells, would have acquired the appurtenant water right. Maclay, 3 P.2d at 290; Section 70-1-520, MCA. However, if Ms. Baker abandoned her water right, then no water right was ever available to pass with the conveyance of the small parcel to the Hunts and later to the Axtells.

¶38 M.S. Consulting argues that the priority of water right filings, Halse’s declaration of water right filed in 1963 and the Axtells’ notice of water right filed in 1993, is another factual dispute material to this case. We hold that this factual dispute is only material if Ms. Baker in fact abandoned her appurtenant water right. If Ms. Baker abandoned her water right, then Halse’s filing would be relevant and material in showing that Halse thereafter appropriated her former right, and owned all rights to the spring. Otherwise, the filings are immaterial in deciding this case because the water rights at issue, livestock and domestic uses of groundwater, are exempt from the filing requirements of the Water Use Act. Section 85-2-222, MCA.

¶39 Lastly, M.S. Consulting argues that the quantity of water used in connection with the water right is a genuine issue of material fact. We agree, but only upon an initial finding that Ms. Baker did not abandon her water right. If this is the case, and an appurtenant water right remained with Ms. Baker’s reservation of the small parcel, then the Spaeth rule applies and the court must apportion the appurtenant water rights according to the extent of use beneficially applied to the land before the division. Spaeth, 383 P.2d at 815. The court must also apply the rule that successors in interest cannot enlarge a water right beyond that which was conveyed. Maclay, 3 P.2d at 290.

¶40 Having discussed both the legal framework under which this case should be decided, and the factual disputes that are material to the outcome of this case, we hold that genuine issues of material fact exist and that summary judgment was improper. The judgment of the District Court is reversed and this case is remanded to the District Court for further proceedings consistent with this opinion.

JUSTICES NELSON, GRAY, LEAPHART and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. F. JOE HOLLAND, Defendant and Appellant.
    No. 97-361.
    Decided March 24, 1998.
    1998 MT 67.
    55 St.Rep. 282.
    955 P.2d 1360.
    288 Mont. 164.
   OPINION AND ORDER

¶1 F. Joe Holland appeals from his conviction upon pleas of guilty to criminal syndicalism by accountability and threats and other improper influence in official and political matter, in proceedings held before the Twenty-First Judicial District Court, Ravalli County. The appeal has been briefed and has been set for oral argument on April 21, 1998.

¶2 On March 10,1998, the State of Montana moved to dismiss this appeal following the March 5,1998 death of F. Joe Holland. The State has filed with the Clerk of this Court a certified copy of the certificate of death for F. Joe Holland. Holland’s counsel has filed a response opposing the motion to dismiss.

¶3 This Court has consistently held that the death of an accused pending the appeal of a judgment of conviction abates the appeal. State v. Cripps (1978), 177 Mont. 410, 412-13, 582 P.2d 312, 314; State v. Clark-Kotarski (1971), 156 Mont. 527, 528, 486 P.2d 876, 876-77; State v. Koble (1955), 129 Mont. 605, 605-06, 285 P.2d 837, 838; State v. Hale (1954), 128 Mont. 116, 117, 270 P.2d 993, 994; State v. Pichette (1951), 125 Mont. 327, 329, 237 P.2d 1076, 1077; State v. Lawrence (1949), 122 Mont. 277, 278, 201 P.2d 756. The Court has reasoned that the purpose of criminal proceedings is to punish the accused, and the action must therefore necessarily abate upon the accused’s death. Pichette, 125 Mont. at 329, 237 P.2d at 1077.

¶4 The majority rule is that when a criminal defendant dies while his or her appeal is pending, the prosecution abates from the inception of the case. Tim A. Thomas, J.D., Annotation, Abatement of State Criminal Case by Accused’s Death Pending Appeal of Conviction-Modern Cases, 80 A.L.R.4th 189 (1990). The annotation cites cases so ruling from twenty-seven states, plus the District of Columbia. In seven states — Hawaii, Kansas, New Jersey, New Mexico, Pennsylvania, Utah, and Wisconsin — courts have held or recognized that the death of a criminal defendant pending appeal did not abate the case from the beginning, and that the appeal may be prosecuted notwithstanding the death of the defendant. Montana joins New Hampshire, Oregon, Pennsylvania, South Carolina, and Texas in the list of jurisdictions which have held or recognized that when a defendant dies pending appeal of a criminal conviction, the appeal abates. While this Court has never affirmatively stated that abatement applies only to a then-pending appeal, none of the Montana cases cited above have made reference to abating the underlying criminal proceedings.

¶5 Counsel for Holland urges the Court to abandon its precedent and adopt the reasoning of the minority of jurisdictions which allow an appeal to be decided on the merits after the death of a criminal defendant, citing, inter alia, State v. Salazar (N.M. 1997), 945 P.2d 996. Counsel asserts that resolving the issues in this appeal would be in the best interests of society and the justice system. Counsel maintains that Holland pled guilty to the charges against him for the specific purpose of testing the constitutionality of the Montana laws which he was charged with violating.

¶6 Section 37-61-401(2), MCA, provides:

The death of a party to an action or proceeding does not revoke the authority of his attorney of record in said action or proceeding, but the authority of the attorney is continued in all respects the same and with like effect as it was prior to the death of such party until such attorney shall withdraw his appearance in said action or proceeding or some other attorney shall be substituted for him or his authority shall be otherwise terminated and entry thereof made to appear in the record of such action or proceeding.

In a criminal case, however, no case or controversy remains upon the death of the defendant. If the judgment of the trial court sentencing Holland to prison were affirmed, it would be impossible to execute it. If it were reversed, Holland would not be available for trial on the charges to which he pled guilty. “This Court does not issue advisory opinions.” State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997.

¶7 Holland’s counsel points out that Holland’s sentence included two $15,000 fines, which he contends could be enforced against Holland’s estate, although the State responds that it is uncertain whether it will seek to collect the fines under the circumstances. Nothing has been filed by anyone claiming to represent Holland’s estate asking that counsel be allowed to pursue this appeal on behalf of the estate. Furthermore, while the Montana Rules of Appellate Procedure provide for the substitution of a personal representative for a deceased party in an appeal of a civil case, the rules do not so provide in an appeal of a criminal case. See Rule 37, M.R.App.P.

¶8 We conclude that counsel for Holland has set forth no good reason why this Court should reverse its long-standing rule that a criminal appeal is abated when the appellant dies during its pendency. It further appears to us that the best reasoning is represented by the majority of jurisdictions which hold that a criminal proceeding is abated in its entirety upon the death of the criminal defendant. The rationale, as set forth by the Supreme Court of Arizona, is that the interests of the state in protecting society have been satisfied, the imposition of punishment is impossible, and further collection of fines or forfeiture would result in punishing innocent third parties. State v. Griffin (Ariz. 1979), 592 P.2d 372, 373. We now join the majority of jurisdictions in holding that prosecution of a criminal case abates in its entirety, including fines, upon the death of the criminal defendant. We hereby clarify Cripps, Clark-Kotarski, Koble, Hale, Pichette, and Lawrence to the extent to which they may appear to be inconsistent with our holding herein.

¶9 IT IS HEREBY ORDERED that the order setting this case for oral argument is vacated, and the appeal is DISMISSED. The Clerk of Court is instructed to return the record to the District Court for further proceedings consistent with this Opinion and Order.

¶10 DATED this 24th day of March, 1998.

/S/ J.A. TURNAGE

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

JUSTICES LEAPHART and TRIEWEILER would order a response from the State of Montana in regard to abating the fines.