author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. LARRY D. MATTHEWS, Defendant and Respondent.
    No. 94-359.
    Submitted on Briefs January 19, 1995.
    Decided April 18, 1995.
    52 St.Rep. 305.
    894 P.2d 285.
    271 Mont. 24.

      For Appellant: Hon. Joseph Mazurek, Attorney General, Mark J. Murphy, Assistant Attorney General, Helena; EdAmestoy, Phillips County Attorney, Malta.

      For Respondent: Robert D. Morrison, Morrison Law Firm, Whitefish.
   JUSTICE NELSON

delivered the Opinion of the Court.

The State of Montana appeals from an order of the Seventeenth Judicial District Court, Phillips County, dismissing the action against the defendant, Larry D. Matthews, for lack of a speedy trial. We affirm.

The State raises three issues on appeal, which we have consolidated into one issue and state as follows:

Was the defendant denied his constitutional right to a speedy trial?

Larry Matthews is the owner/operator of Delta Ford, a motor vehicle dealership in Malta, Montana. On May 12, 1993, Matthews was charged by information with six counts of forgery, all felonies, in violation of § 45-6-325, MCA, or in the alternative six counts of felony theft, in violation of § 45-6-301, MCA. The information alleged that Matthews drafted six cash rebate checks in amounts of $500 or $1000, on the account of the Ford Division-Customer Cash Assistance account. The checks were made payable to the six customers who were entitled to receive the rebates. According to the affidavit in support of the information, Matthews made the checks payable to the benefit of Delta Ford, and forged the customers’names on the checks without their knowledge or authority. The information alleged that Matthews’ purpose was to either defraud the customers of the rebate money, or to defraud the manufacturer.

Matthews was summoned to appear on the charges on May 21,1993. Matthews appeared in court with his attorney on this date, and was advised of the charges against him. Matthews requested more time to enter a plea, and the court continued the matter to a later date.

The record indicates that no further action was taken on the case until June 18, 1993, when Matthews moved to dismiss the information. The motion raised the issue of failure to charge with certainty and precision in the information, as well as raising the issue of insufficiency of the affidavit in support of filing the information. Matthews also requested discovery and inspection of evidence in the State’s possession on this same date. The prosecution then moved for a continuance to respond to the motion to dismiss which the court granted. The District Court never ruled on Matthews’ pretrial motions.

The next action indicated by the record occurred on September 21, 1993, when Matthews moved the court to compel discovery, and suppress evidence. Matthews also requested that the court hold an evidentiary hearing on his motion to suppress. The State responded to the motions, however again the court made no rulings on the motions.

On December 9, 1993, the State filed a motion to set a trial date, which indicated that Matthews had been properly arraigned, but that a trial date had not yet been set. Matthews objected to the motion on December 15,1993, on the basis that he had not been arraigned, and because the court had never ruled on his pretrial motions.

Further delay was caused by the retirement of Judge Leonard H. Langen, who retired from the bench on December 31, 1993. The newly-appointed District Court Judge recused himself from jurisdiction on January 14, 1994, as did the District Court Judge invited to assume jurisdiction. District Court Judge James M. Sorte assumed jurisdiction on February 7, 1994.

The court then set a date for a jury trial for March 7, 1994. Although not evident from the record, the State claims that Matthews objected to the trial date, apparently on the grounds that the court had not ruled on his pretrial motions, and because he had never been arraigned. Consequently, the District Court scheduled a hearing on the motions for April 18,1994. This hearing was rescheduled for May 2, 1994, due to “scheduling conflicts.”

The parties appeared in court on the scheduled date, and the court heard arguments on Matthews’ motion to dismiss and took the matter under advisement. The court also heard argument concerning Matthews’ motion to compel discovery, and ordered the State to prepare an order directing the Clerk of the District Court to release the investigative file concerning Matthews.

At this same hearing, Matthews advised the court that he would be filing a motion to dismiss for failure to provide a speedy trial. Matthews filed this motion on May 16,1994, and on June 7,1994, the District Court entered its order dismissing the action with prejudice. The State appeals from this order.

A criminal defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution. State v. Stewart (1994), 266 Mont. 525, 529, 881 P.2d 629, 632. This Court uses the test from Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a defendant’s constitutional right to a speedy trial has been violated. State ex rel. Sol Briceno v. District Court (1977), 173 Mont. 516, 568 P.2d 162. This test requires a balancing of the following four factors:

1) length of the delay;
2) reason for the delay;
3) assertion of the right by the defendant; and
4) prejudice to the defendant.

Stewart, 881 P.2d at 632. No one factor is determinative, rather, each factor is weighed in light of the surrounding facts and circumstances. Stewart, 881 P.2d at 632.

The first factor to be considered, the length of the delay, is of primary importance, as it acts as a “triggering” mechanism. If the delay is found to be presumptively prejudicial, this triggers further analysis of the remaining three factors. State v. Eklund (1994), 264 Mont. 420, 424, 872 P.2d 323, 326. In this case the State concedes that the delay of 298 days from the date Matthews was charged (May 12, 1993), to the date he would have been tried, (March 7, 1994), is sufficient to warrant further analysis. See, State v. Thompson (1993), 263 Mont. 17, 865 P.2d 1125 “[a] delay of over 200 days will usually trigger the full analysis.” Because of the presumption of prejudice, the State has the burden of providing a reasonable explanation for the delay, and for showing that Matthews was not prejudiced by the delay. Eklund, 872 P.2d at 326.

Consideration of the second factor, the reason for the delay, requires us to allocate portions of the overall delay between the parties to determine which party is responsible for causing any given period of delay. Thompson, 865 P.2d at 1135. The record indicates that the delay in this case can be entirely attributed to the State, and resulted from the District Court’s failure to rule or take any action on Matthews’ pretrial motions and for its failure to arraign Matthews. In fact, in its brief in opposition to Matthews’ motion to dismiss for lack of a speedy trial, which it filed in District Court, the State conceded that:

[a]lthough the delay results entirely in time spent deciding defense motion [s], it would be disingenuous to suggest that the Defendant caused the delay. The District Court must be allowed reasonable time to decide motions, the time spent on these motions is excessive. The District Court never decided those Motions.

While the State attempts to attribute the delay to Matthews on appeal, we conclude that the delay resulted from the court’s failure to arraign Matthews, from its failure to rule on the pretrial motions, and the prosecution’s lack of diligence.

The delay caused by the court’s failure to arraign Matthews, and to rule on the pretrial motions is classified as “institutional delay,” and is chargeable to the State. State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416. Institutional delay weighs less heavily on the State than does purposeful delay. Hembd, 838 P.2d at 416. While the prosecution argues that it “did everything reasonably within [its] means to bring this case to trial,” the record does not reflect that the prosecution attempted to set a new date for Matthews’ arraignment and entry of plea, or to notify the court of its failure to hold a proper arraignment. In addition, while the prosecution claims it contacted the court concerning its failure to rule on Matthews’ pretrial motions, it produced nothing by means of affidavit or otherwise to demonstrate it had done so.

With regard to the prosecution’s diligence in bringing the case to trial, the only formal action the prosecution took was when it filed the motion to set a trial date on December 9, 1993. Matthews objected to this motion because he had not been arraigned and because the court had not ruled on his pretrial motions. Because Matthews’ objection was merely advising the court of its failure to arraign him and to rule on his pretrial motions, we cannot attribute this delay to him.

The State has a duty to move the prosecution forward in a timely manner. State v. Barker (1993), 261 Mont. 379, 383, 862 P.2d 1112, 1115. The State failed to demonstrate a compelling circumstance to warrant the institutional delay, or that it diligently pursued bringing Matthews’ case to trial. Accordingly, we weigh the entire delay against the State. Barker, 862 P.2d at 1115.

In addressing the third factor, assertion of the right, the State argues that the manner in which Matthews asserted his right does not suggest that he made a good faith effort to obtain a speedy trial. The State contends that Matthews sat by idly and did nothing to get the case moving, and only when the District Court began to move the case along, by setting a trial date, did Matthews assert his right to a speedy trial.

The State relies on State v. Carden (1977), 173 Mont. 77, 88, 566 P.2d 780, 786, in support of its argument that the manner in which a defendant seeks a speedy trial is “entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192-93. According to the manner in which the defendants in Carden asserted their speedy trial right, we concluded that they did not really want a speedy trial. In Carden, the defendants did not request a speedy trial until 507 days after they were charged, during which time they had asked for and received continuances and had failed to obj ect to continuances requested by the State. In addition, prior to filing their motion for a speedy trial, the defendants had not pursued any pretrial discovery. Finally we noted that the defendants waited until the eve of trial to file their motion for dismissal for lack of a speedy trial. Carden, 566 P.2d at 786.

The facts of Carden are distinguishable from the facts of the instant case. Here, Matthews asserted his right to a speedy trial at the first appearance he was required to make since he initially appeared on May 21,1993. Matthews also had filed pretrial motions, including a request for discovery and a motion to compel discovery. Based on these facts, we conclude that Matthews satisfied the assertion of the right element by notifying the court of his intent to move to dismiss the action on speedy trial grounds at his first appearance, and by his filing the motion shortly thereafter.

The final factor which must be analyzed under the Barker test is prejudice to the defendant. Prejudice is assessed in light of three interests which the speedy trial right was designed to protect. These interests are: (1) prevention of oppressive pretrial incarceration, (2) minimization of the defendant’s anxiety and concern, and (3) avoidance of impairment of the defense. Barker, 862 P.2d at 1115. All three factors are important, however, the most critical interest is impairment of the defense. Stewart, 881 P.2d at 633.

In considering the first interest, the prevention of oppressive pretrial incarceration, we conclude that Matthews did not suffer any prejudice as a result of pretrial incarceration, as he was never incarcerated.

Regarding the second interest, anxiety and concern, the District Court noted that the felony charges levied against Matthews, and his affidavit demonstrate that he suffered anxiety and concern. The State argues however, that Matthews’ claims of anxiety and concern are purely conclusory, and the State was not afforded an opportunity to challenge Matthews’ claims that he suffered prejudice as a result of anxiety and concern.

We find the State’s arguments unpersuasive. Matthews did present some evidence by affidavit that he suffered anxiety and concern, and the State failed to meet its burden to prove that Matthews was not prejudiced. Barker, 862 P.2d at 1116. Regarding the State’s argument that it was not provided an opportunity to challenge Matthews’ claims concerning anxiety and concern, we note that the State did not request an evidentiary hearing to rebut Matthews’ claims, and therefore this argument is without merit.

The final interest we must consider is whether Matthews’ defense was impaired by the delay. In this case the record indicates that Matthews moved to compel discovery of interviews the State conducted of sixty-one Delta Ford customers. Matthews alleged that the interviews would provide exculpatory evidence because the procedures used in dealing with those customers were the same as those used in dealing with the customers involved in the charged counts. According to Matthews, the interviews would be exculpatory because he believed the individuals interviewed were satisfied with the manner in which they received or were credited with rebates. Matthews moved the court to compel this discovery because he did not have the resources to interview all sixty-one customers. The court never ruled on Matthews’ motion.

On appeal, Matthews alleges the records are now unavailable because they have either been lost or destroyed. The State does not deny this allegation, but instead argues that Matthews was not prejudiced by not having the interview notes because Matthews knew who his business customers had been, and he could have interviewed them if he thought they held exculpatory information. In light of both Matthews’ allegations concerning the loss or destruction of the interview records, and the State’s apparent concession to this charge, we conclude that Matthews’ defense was prejudiced by the delay.

After considering the four factors of the Barker test in relation to the circumstances of this case, we conclude that the State has failed to meet its burden of rebutting the presumption of prejudice and demonstrating a reasonable excuse for the delay. Therefore, we hold that the District Court was correct in granting Matthews’ speedy trial motion and dismissing the charges with prejudice.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT, GRAY, LEAPHART and WEBER concur.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE LEAPHART,

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DUNCAN PEDER McKENZIE, Defendant and Appellant.
    No. 95-161.
    Submitted on Briefs April 11, 1995.
    Decided April 20, 1995.
    52 St.Rep. 312.
    894 P.2d 289.
    271 Mont. 32.

      For Appellant: Gregory A. Jackson, Jackson & Rice, Helena; Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Washington.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Duncan Peder McKenzie, appeals from an order of the Eighth Judicial District Court, Cascade County, denying his request to consider his objections to the resetting of his execution date and issuing a death warrant. This Court granted the State’s motion to dismiss McKenzie’s appeal, in an order dated April 11, 1995. Pursuant to the April 11, 1995 order, this opinion follows.

The issues before this Court are:

1. Whether McKenzie has a right to appeal the District Court’s resetting of the execution date?
2. Whether the District Court has jurisdiction to set an execution date after an earlier execution date has expired?
3. Whether the District Court had jurisdiction to hear McKenzie’s substantive arguments regarding the resetting of the execution date?

PROCEDURAL BACKGROUND

In January, 1975, Duncan McKenzie was convicted of deliberate homicide and aggravated kidnapping in the Eighth Judicial District Court, Cascade County. McKenzie was sentenced to death for these convictions on March 3, 1975. The facts underlying McKenzie’s conviction and sentencing are fully set forth in State v. McKenzie (1976), 171 Mont. 278, 577 P.2d 1023, and will not be repeated here. McKenzie has challenged his conviction and sentence in numerous state and federal proceedings, none of which has been ultimately successful on the merits. McKenzie’s death sentence has been stayed at least eight times since its imposition. The most recent stay of execution entered in November of 1988, was dissolved by the United States District Court for the District of Montana on February 23,1995. The following provides a brief review of the procedural history of this case.

In McKenzie’s first state proceeding, this Court affirmed McKenzie’s direct appeal of his conviction. State v. McKenzie (1976), 171 Mont. 278, 577 P.2d 1023. In 1980, after two remands by the United States Supreme Court for reconsideration by this Court, we affirmed McKenzie’s conviction. State v. McKenzie (1980), 186 Mont. 481, 608 P.2d 428.

On January 5, 1981, McKenzie filed a petition for post- conviction relief in state district court. The District Court denied the petition, and this Court affirmed that court’s ruling. McKenzie v. Osborne (1981), 195 Mont. 26, 640 P.2d 368. McKenzie then filed a petition for writ of habeas corpus in federal district court, which was resolved against him seven years later. McKenzie v. Risley (9th Cir. 1988), 842 F.2d 1525, cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). McKenzie petitioned the United States Supreme Court for a writ of certiorari, which the Court denied on October 11, 1988. McKenzie v. McCormick (1988), 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239.

McKenzie then filed his second petition for writ of habeas corpus with this Court. We denied that petition on April 16, 1985, in an unpublished order. On June 27, 1985, McKenzie filed his second habeas petition in federal court which the federal district court denied. The Ninth Circuit affirmed the federal district court’s denial, McKenzie v. McCormick (9th Cir. 1994), 27 F.3d 1415, and also denied McKenzie’s petition for rehearing en banc. On January 17,1995, the United States Supreme Court denied McKenzie’s petition for writ of certiorari. The Court also denied McKenzie’s request for a rehearing of the denial of certiorari.

On February 23, 1995, the United States District Court for the District of Montana ordered that the stay of execution granted in 1988, during the pendency of McKenzie’s second petition for writ of habeas corpus, be vacated and dissolved. There being no stays of execution in effect, the State moved the Eighth Judicial District Court, Cascade County, for a hearing to reset the execution date.

Prior to the hearing on this matter, McKenzie filed “Defendant’s Objections to Request for Execution Date” and supporting memorandum. McKenzie raised several arguments in this document including the argument that the court did not have jurisdiction, and that the hearing to reset the execution date was a hearing to “reimpose the death sentence.” The District Court held ahearing on March 27,1995, and overruled all of the objections McKenzie raised in his “Memorandum Supporting Objections to Execution Setting.”

The District Court found that its act in resetting the execution date was merely a procedural and ministerial act, and proceeded with the hearing to set the execution date. The court set the execution date for May 10, 1995, and issued a death warrant.

McKenzie filed a notice of appeal seeking to invoke this Court’s appellate jurisdiction over the District Court’s rulings. The State moved to dismiss the appeal on the grounds that McKenzie had no right of appeal because there is no appealable order which would give rise to this Court’s appellate jurisdiction. We ordered that the matter be fully briefed and, after careful consideration of the parties’ arguments, issued an order granting the State’s motion to dismiss on April 11, 1995.

DISCUSSION

1. RIGHT OF APPEAL

The State contends that McKenzie has no right of appeal because under Montana law, “[a]n appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.” Section 46-20-104(1), MCA. The State argues that the order resetting the execution date did not affect McKenzie’s substantial rights; rather, the court merely executed the March 3, 1975 judgment. The State also maintains that the order resetting the execution date is not a judgment or sentence. We agree.

Courts have long recognized that setting an execution date is a ministerial and not a judicial act. See, State v. Joubert (1994), 246 Neb. 287, 518 N.W.2d 887, 895; Pate v. State (Okla.Crim. 1964), 393 P.2d 247; State v. Miller (1950), 169 Kan. 1, 217 P.2d 287; Rose v. Commonwealth (1949), 189 Va. 771, 55 S.E.2d 33. As stated by one court:

The refixing or resetting of the time for execution, where for any reason the judgment of death has not been executed, is a merely ministerial act, which, at common law, as we have seen, generally devolved upon the sheriff, but which under our statute devolves upon the court in which the conviction was had.

Pate, 393 P.2d at 249.

In resetting the execution date, the District Court was merely performing a ministerial function, i.e., carrying out the March 3,1975 judgment which sentenced McKenzie to death. McKenzie’s substantial rights were not implicated by this proceeding, accordingly, the District Court’s order resetting the execution date is not an appeal-able order.

We also conclude that the District Court’s order resetting the execution date cannot be defined as an appealable judgment. Under Montana law, a judgment is defined as “an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.” Section 46-1-202(10), MCA. In addition, other courts have recognized that: “the order fixing or resetting the date of execution under the original judgment is not a new judgment, and from such order no appeal lies.” Pate, 393 P.2d at 250.

Here, the District Court did not “resentence” McKenzie nor did it “reimpose” the death penalty. It merely executed the judgment before it. McKenzie was “sentenced” and the death penalty was “imposed” on March 3,1975; that sentence has never been vacated by any court.

Finally, we note that the District Court would not have jurisdiction to vacate the original judgment sentencing McKenzie to death, and grant his request for a sentence of life imprisonment, because, once a valid judgment and sentence has been signed, the court imposing the sentence lacks jurisdiction to vacate or modify it except as provided by law. State v. Hanners (1992), 254 Mont. 524, 526, 839 P.2d 1267, 1268. We conclude that there is no provision in the law which would allow the District Court to amend, at the hearing resetting the execution date, the original judgment of 1975 sentencing McKenzie to death.

2. JURISDICTIONAL ARGUMENT

McKenzie argues that the District Court did not have jurisdiction to reset the execution date because the law in effect at the time he was sentenced had no provision for the resetting of the execution after the statutory time for execution had passed. The law in effect at the time McKenzie was originally sentenced provided that: “[i]n pronouncing the sentence of death, the court shall set the date of execution which must not be less than thirty (30) days nor more than sixty (60) days from the date the sentence is pronounced.” Section 95-2303(b), RCM (1947), as amended (later recodified as § 46-19-103, MCA). Therefore, according to McKenzie, at the time he was sentenced, an execution had to be conducted within the sixty-day time frame, and the court had no power to reset the execution date if the sixty days elapsed.

However, in 1981, § 46-19-103(1), MCA, was amended to provide that a court shall set a new execution date upon dissolution of a stay of execution. According to § 46-19-103(1), MCA, the District Court has a mandatory duty to set a new execution date, and has no discretion to do otherwise.

Because we have previously concluded that the order resetting the execution date was merely a procedural or ministerial act and, thus, McKenzie’s substantial rights were not thereby affected, the controlling law is that law in effect at the time of the court’s resetting the execution date. See, State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000. Therefore the District Court acted correctly in setting the execution date pursuant to § 46-19-103(1), MCA.

In addition, we find no merit to McKenzie’s argument that once the initial execution date has passed, the District Court has no authority to reset the date. Other courts have recognized that “the failure to execute a death warrant on the original date fixed does not result in the discharge of a prisoner sentenced to die, but requires the court to fix a new date for the execution.” Joubert, 518 N.W.2d at 891.

As stated by the Kansas Supreme Court in Miller, 217 P.2d at 290, “the authorities uniformly hold that failure to execute a death warrant on the date fixed does not result in immunity to or discharge of a person sentenced to die, but requires the fixing of a new date for his execution.”

McKenzie also claims that the District Court did not have jurisdiction to reset the execution date pursuant to § 3-l-804(1)(b), MCA, which provides in part: “[t]he first district judge who has been substituted or disqualified for cause shall have the duty of calling in all subsequent district judges.” McKenzie argues that Judge McKittrick did not have jurisdiction because the original presiding judge or his successor, did not enter an order conferring jurisdiction on Judge McKittrick.

McKenzie also points to this Court’s order of March 14, 1976, as authority for the proposition that McKittrick lacked jurisdiction to reset the execution date. McKenzie’s argument is based on the following procedural background.

This case arose in Pondera County, in the Ninth Judicial District before Judge R.D. McPhillips. McKenzie subsequently disqualified McPhillips by substitution. McPhillips called in Judge Robert J. Nelson of the Eighth Judicial District Court to assume jurisdiction of the case, and Judge Nelson moved the cause to Cascade County for the purposes of trial. Thereafter McKenzie was found guilty of deliberate homicide and aggravated kidnapping, and Judge Nelson imposed the death penalty. The execution date was set for April 30,1975, however it was stayed pending appeal to this Court.

After remittitur, Judge Nelson’s term had expired and Judge William H. Coder succeeded Judge Nelson as a judge in the Eighth Judicial District Court. Coder issued an order resetting the execution date on the basis of the sentence previously pronounced by Judge Nelson.

In our March 14, 1976 order we concluded that Judge Coder did not have jurisdiction to reset the execution date. We held that before a district court judge could reset the execution date, the cause had to be returned to the original presiding judge in Pondera County. That judge was required to call in another district judge to continue with jurisdiction of the case.

At the time we issued that order, however, § 46-19-103(1), MCA (1993), was not in effect. The relevant portion of that statute, which controls here, provides that “the court in which the defendant was previously sentenced shall, upon dissolution of the stay, set a new date of execution ...” McKenzie was properly sentenced by Judge Nelson, a judge in the Eighth Judicial District Court. Judge McKittrick is a judge in the Eighth Judicial District Court, the “court in which the defendant was previously sentenced.” Accordingly, Judge McKittrick has the statutory authority under § 46-19-103(1) and (4), MCA, without more, (as would any other district judge in that District) to perform the ministerial act of setting an execution date and signing the death warrant.

Moreover, we conclude that § 3-1-804, MCA, which controls the substitution of district court judges, is not applicable. Rather, § 46-19-103(1) and (4), MCA, governs, and it reposes the act of setting the execution date and signing the death warrant in the court in which the defendant was sentenced — here the Eighth Judicial District Court. Therefore, our order indicating the original presiding judge in Pondera County must appoint another district court judge before the court may set a new execution date is not controlling.

3. SUBSTANTIVE CLAIMS

McKenzie’s substantive claims are not properly before this Court on appeal. The District Court concluded that the hearing to reset the execution date was a procedural and ministerial act. The hearing was not a resentencing and Judge McKittrick had no jurisdiction to consider McKenzie’s substantive claims relating to the death penalty sentence itself. Likewise, those claims are not properly before this Court on appeal.

JUSTICES WEBER, GRAY, HUNT, DISTRICT JUDGE MIZNER sitting for CHIEF JUSTICE TURNAGE and DISTRICT JUDGE McLEAN sitting for JUSTICE TRIEWEILER concur.

JUSTICE LEAPHART,

dissenting.

I dissent from the Court’s dismissal of this appeal.

I would remand the case to the District Court for consideration of appellant’s contention that 20 years on death row constitutes cruel and unusual punishment under the 8th Amendment to the United States Constitution and Article II, Section 22 of the Montana Constitution. This is an issue which at least two of the Justices on the United States Supreme Court recently indicated would “benefit from further study” by the lower state and federal courts. Lackey v. Texas,_U.S. _, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Justices Stevens and Breyer). While noting that such a claim is “novel,” the two Justices commented that it is “not without foundation.” They also noted that:

Though the importance and novelty of the question presented by this certiorari petition are sufficient to warrant review by this Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts. [Emphasis added.]

The Lackey case involves a defendant who has been on death row for 17 years. Justices Stevens and Breyer suggest that, before the Court can properly determine the merits of this argument, the lower courts must first make a determination as to how much of that 17-year time period is attributable to petitioner’s abuse of the judicial system through repetitive, frivolous filings and how much, if any, is attributable to prosecutorial or institutional delay. McKenzie, as of this date, has been under a death sentence since 1975 — some 20 years. During the course of that 20-year period, McKenzie has pursued numerous appeals and petitions before this Court, the Ninth Circuit Court of Appeals and the United States Supreme Court. At this juncture, we have no findings by the trial court as to which of these various filings were frivolous and which were meritorious. If it is assumed, arguendo, that Lackey may have an argument based upon his 17-year wait on death row, McKenzie has the potential for an even stronger argument. That argument, however, cannot be adequately addressed until the trial court makes some determinations as to which of McKenzie’s numerous filings were a legitimate exercise of the right of appeal and which constitute frivolous filings. Obviously the Court cannot allow a defendant to bootstrap himself into a cruel and unusual punishment argument by abusing the system to his advantage through the repetitive filing of meritless appeals and petitions.

While I do not necessarily agree that there is any merit to McKenzie’s argument, it is apparent to me that consideration of the issue by the United States Supreme Court has presently been “postponed” only, and it is merely a matter of time before the federal courts are going to start subjecting deathpenalty cases to the analysis suggested by Justices Stevens and Breyer in the Lackey case. Accordingly, I would prefer that this issue be dealt with at the earliest possible date rather than waiting for a remand from the federal courts two years down the road — at which time McKenzie will be in a position to argue an additional two years of delay.

The Court has taken the position that the substantive issues raised by McKenzie’s “Objection to Request for Execution Date” (including the cruel and unusual punishment claim), are not proper issues for appeal in the present context since the only issue legitimately before the trial court was the request for a setting of a date and time for execution — a purely ministerial (nonsubstantive) act. Technically this may be correct. However, given that this is a death penalty case and the condemned man is purporting to raise constitutional issues— we should look to the substance rather than the “technical” form of his pleading. For example, in State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, Perry, who had been convicted of second-degree murder some 17 years earlier in 1971, moved for a new trial based upon the alleged recantation of an accomplice. The State contended that Perry’s only means of redress was a petition for post-conviction review and that the statutory time limit on such petitions had expired as of 1978. This Court declined to adopt the State’s position.

Whereas Perry’s motion for a new trial cannot technically be denoted a petition for habeas corpus, nor do we treat it as such, the claim nevertheless sounds in the nature of a petition for habeas corpus.

Perry, 758 P.2d at 273.

Despite the incorrect form of the “motion” pleading, the Court addressed the substance of the motion and concluded that Perry had failed to prove that he was the victim of an unlawful conviction. Perry, 758 P.2d at 276.

McKenzie, like Perry, is well beyond the 5-year statutory deadline for filing petitions for post-conviction review. Section 46-21-102, MCA. However, the argument as to whether a lengthy delay before actual implementation of the death sentence constitutes cruel and unusual punishment is a constitutional argument which, by its very nature, cannot be raised until the passage of a significant period of time.

In dismissing this appeal, the courts of the State of Montana are sending this matter on to the federal courts without having addressed this constitutional issue. I fear that we will have to address it at some future point and that it will become all the more thorny for the delay.


author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEVE COONEY, Defendant and Appellant.
    No. 94-372.
    Submitted on Briefs January 26, 1995.
    Decided April 25, 1995.
    52 St.Rep. 320.
    894 P.2d 303.
    271 Mont. 42.

      For Appellant: Terry G. Sehestedt, Attorney at Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena; Christopher G. Miller, Powell County Attorney, Deer Lodge.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On July 14, 1993, defendant Steve Cooney was charged by complaint filed in the Justice Court for Cottonwood Township in Powell County with misdemeanor stalking in violation of § 45-5-220, MCA. After trial, he was found guilty of the crime with which he was charged. He appealed his conviction to the District Court for the Third Judicial District in Powell County and waived his right to a jury trial. On June 16, 1994, the District Court also found Cooney guilty as charged. Cooney appeals the judgment of the District Court.

We restate the issues on appeal as follows:

1. Was Powell County a proper venue for the stalking charges filed against Cooney?

2. Did the District Court unconstitutionally relieve the State of its burden of proof based on an impermissible presumption?

3. Is Cooney’s conviction supported by sufficient evidence?

4. Does the stalking statute, as applied to Cooney in this case, violate his constitutional right to free speech?

FACTUAL BACKGROUND

In 1989, Cooney met Linnea Busby after he became her landlord in Missoula, Montana. At that time, Linnea was a college student, but lived in Helmville with her parents when not attending school. She still lists Helmville as her regular address.

Shortly after they met, Cooney asked Linnea for a date. However, she declined. In June 1991, Linnea returned to Helmville, where Cooney sent her flowers and letters, and repeatedly phoned in an attempt to reach her. Linnea returned to Missoula in early 1992, but left in June 1992 and moved to Colorado where she continued to attend school at the time of trial.

Linnea’s mother, Joyce, testified that she received as many as 50 letters from Cooney which were addressed to her daughter at their Helmville address. She also testified that sometimes she received as many as six letters in one day, and that she received approximately 35 letters from April 1993 until July of that year when charges were filed. During June 1993, Cooney sent a diamond ring to Linnea at her Helmville address.

In the letters, Cooney expressed his love for Linnea with unusual forms of expression, such as “I wuv U, I wuv U.” He often referred to himself as Boris and Linnea as Natasha. Cooney also expressed his desire to marry her and stated that he would be coming to Colorado.

Cooney made numerous telephone calls to Linnea in Colorado and to her Helmville residence. From June 5 through June 17, 1993, he left several messages on her answering machine in Colorado. On those answering machine tapes, Cooney related his desire to marry her, and stated “I wuv you, wuv you, wuv you ....” He added that he would be going to Helmville. In another message, he urged Linnea to return his telephone call because it was about her deposit. On the recorded messages, Cooney variously spoke in a happy tone, hushed tone, angry tone, or whispers.

On June 22, 1993, Cooney left the following message on the answering machine at Linnea’s residence in Helmville: “Say, I got a big hard on and wondered if you’d like to bite on it. You know who this is.” The same day Cooney left several messages on her answering machine in Colorado:

Hi Linnea. I’d like to get some sex. You know what I mean. Give me a call.
Linnea, I was kinda wondering. How would you like to have some great sex.
Yeah Linnea. You’ve really upset me. I don’t know if I ever want to see you again or if I ever want to speak to you again. Not until you apologize. Bye.

The last message was expressed in an angry tone of voice.

At trial, Linnea testified about how she felt as a result of Cooney’s actions. She stated that she was always looking around because she knew he was trying to find her. She changed her telephone number and screened calls through her answering machine. Linnea stated that she was nervous, and if she could help it, never went anywhere alone for fear that he might find her. She also testified that she was apprehensive that Cooney might physically injure her because Cooney gets mad when she does not respond.

Cooney was convicted of stalking in Justice Court. He appealed his conviction to the District Court, where he received a trial de novo. Before trial in the District Court, Cooney moved to dismiss the charge on the basis that venue was improper in Powell County. The court reserved ruling on his motion until after trial. Following a nonjury trial, the District Court denied Cooney’s motion. The court held that there were sufficient contacts with Powell County to sustain venue in Powell County, and found Cooney guilty of stalking, in violation of § 45-5-220, MCA. Judgment was entered on June 16,1994. The following day, the court sentenced Cooney to one year in the Powell County Jail with all but 30 days suspended, based on certain conditions.

ISSUE 1

Was Powell County a proper venue for the stalking charges filed against Cooney?

A district court’s determination of venue is a legal conclusion and our standard of review is plenary. Emery v. Federated Foods, Inc. (1993), 262 Mont. 83, 87, 863 P.2d 426, 429.

Montana enacted § 45-5-220, MCA, on April 9, 1993. It provides, in relevant part:

(1) Aperson commits the offense of stalking if the person purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly:
(b) harassing, threatening, or intimidating the stalked person, in person or by phone, by mail, or by other action, device, or method.

Cooney argues that neither the alleged conduct nor the necessary result occurred in Powell County. He claims that the alleged conduct occurred in Missoula and the result, if any, occurred in Colorado where Linnea was living. Therefore, he contends that there was no basis for venue in Powell County.

The State responds that when several acts form the basis for a single offense, a defendant can be charged in any county in which any of the acts have occurred. The State’s position, which we conclude is correct, is based on § 46-3-112(2), MCA, which provides:

When an act requisite to the commission of an offense occurs or continues in more than one county, the charge may be filed in any county in which the act occurred or continued.

The State introduced numerous letters sent to Linnea at her Helmville residence to prove the acts necessary to establish stalking. Likewise, the State introduced an offensive telephone message that Cooney left on an answering machine at Linnea’s Helmville address.

Thus, the result of many acts which formed the bases of the charge against Cooney occurred in Powell County. Based on prior authority of this Court, State v. Cassill (1924), 70 Mont. 433, 227 P. 49, and the plain language of § 46-3-112, MCA, that is all that was required.

Commission Comments to § 46-3-112, MCA, also support our conclusion:

This provision allows the trial to take place in the most convenient county where an element of the offense occurred. It does not matter if the final consummation ofthe offense occurred in another county. The only elements of the crime which are of interest are those acts constituting or requisite to the consummation of the offense; the trial of the case may be held in any county in which such acts occur.

We conclude that the District Court did not err when it determined venue was proper in Powell County.

ISSUE 2

Did the District Court unconstitutionally relieve the State of its burden of proof based on an impermissible presumption?

Cooney argues that § 45-5-220(6), MCA, improperly relieved the State of its burden to prove an element of the crime, and denied him his right to due process. Section 45-5-220(6), MCA, provides as follows:

Attempts by the accused person to contact or follow the stalked person after the accused person has been given actual notice that the stalked person does not want to be contacted or followed constitutes prima facie evidence that the accused person purposely or knowingly followed, harassed, threatened, or intimidated the stalked person.

However, nothing in the record indicates that the District Court based its decision on this statute. Nor did Cooney challenge or object to the applicability or constitutionality of the statute at trial. Section 46-20-104(2), MCA, provides:

Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

The exceptions to § 46-20-104(2), MCA, found in § 46-20-701(2), MCA, do not apply. Therefore, because Cooney failed to object at trial, and for the further reason that the statute complained of does not appear to have formed any basis for the District Court’s decision, it would be inappropriate to consider the merits of this argument on appeal. We hold that Cooney was not denied his constitutional right to due process.

ISSUE 3

Is Cooney’s conviction supported by sufficient evidence?

Our standard of review for sufficiency of the evidence is:

[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting State v. Cyr (1987), 229 Mont. 337, 339, 746 P.2d 120, 122). Cooney argues that the evidence does not support the District Court’s decision. He claims that while his repeated expressions of affection may have been in poor taste, there was no evidence that he caused anyone “substantial emotional distress or reasonable apprehension of bodily injury.”

We conclude, however, based on our review of the testimony, that sufficient proof of such an effect was offered.

At trial, the prosecutor asked Linnea if she was apprehensive of physical injury or harm from Cooney. She responded, ‘Yea, I’m afraid it could get to that.” She was then asked why she felt that way and responded, “Because he seems to get mad when I don’t respond. ... I have told him for so long to leave me alone, and then like the message where he’s mad.... I think that he has that tendency if he can get mad without me doing anything.” Linnea’s mother also testified that she talked to her daughter every day on the telephone to determine if she was alright and stated that Linnea had expressed fear to her.

Linnea testified she was always afraid Cooney would find her, and evidence established that Cooney repeatedly stated that he would be going to Helmville or Colorado. She changed her telephone number and screened her calls. She was afraid to go places by herself and was always looking to see if Cooney was near. She testified that she feared what Cooney might do if he found her, and stated that she feels terrible and nervous.

The court found that Cooney’s persistence, despite rejection, caused Linnea substantial emotional distress. We conclude that that finding, and the District Court’s judgment, is supported by substantial evidence.

ISSUE 4

Does the stalking statute, as applied to Cooney in this case, violate his constitutional right to free speech?

Cooney contends that the stalking statute, as applied to him in this case, deprives him of freedom of speech, in violation of the United States and Montana Constitutions.

He contends that he did not threaten Linnea, but only expressed his love for her, and therefore, that his expressions were protected speech.

We have previously held that threats are not protected speech under the First Amendment. State v. Lance (1986), 222 Mont. 92, 103, 721 P.2d 1258, 1266. The State’s contention, with which we agree, is that Cooney’s actions which caused substantial emotional distress are, likewise, not protected by the First Amendment.

The First Amendment does not protect all speech. In Lance, we quoted Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 571-72, 62 S. Ct. 766, 768-69, 86 L. Ed. 1031, 1035, which contains language applicable to this case.

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problems. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value ....

Lance, 721 P.2d at 1265. The District Court concluded, based on substantial evidence, that Cooney’s calls and letters caused his victim substantial emotional distress, and that “[t]he harassment and resultant emotional distress are substantial and beyond that which anyone must tolerate.”

Cooney’s conduct inflicted injury on his victim and lacked any social value. We agree with the State’s assertion that free speech does not include the right to cause substantial emotional distress by harassment or intimidation. The language quoted from Chaplinsky indicates that actual threats are not the only category of spoken words that do not receive First Amendment protection.

We conclude that § 45-5-220, MCA, was not unconstitutionally applied in violation of the United States or Montana Constitutions. We affirm the judgment of the District Court.

JUSTICES HUNT, NELSON and WEBER concur.

JUSTICE LEAPHART,

dissenting.

As much as the evidence supports the conviction of Cooney for his puerile but, nonetheless, threatening behavior, the law requires the State, in addition to proving the elements of stalking, to prove proper venue. I dissent from the majority’s determination that Powell County was a proper venue for the stalking charges filed against Cooney. Because neither Cooney’s criminal acts nor the effects of these criminal acts occurred in Powell County, I conclude that Powell County was not a proper venue for the charges against Cooney.

Section 46-3-110, MCA, establishes that in all criminal prosecutions, the charge must be filed in the county where the offense occurred unless the law provides otherwise. Section 46-3-111, MCA, establishes that trial generally must be held in the county where the charge is filed. This Court has held that “[a]lthough venue is not an element of the crime, it is a jurisdictional fact that must be proven at trial just as any other material element.” State v. Johnson (1993), 257 Mont. 157, 161, 848 P.2d 496, 498 (citation omitted). I note that this statement is contrary to the commission comments to § 46-3-111, MCA, which state that venue need only be proved by a preponderance of the evidence rather than beyond a reasonable doubt. However, I believe that in this case, the State failed to demonstrate by a preponderance of the evidence that Powell County was a proper venue.

Cooney was charged with stalking Ms. Busby between April 16, 1993 and June 13, 1993. The record indicates that Cooney sent several letters to Ms. Busby at her parent’s home in Helmville, Montana, which is in Powell County. Cooney also left several messages on Ms. Busby’s parent’s answering machine in Helmville. However, there is no testimony or other indication from the record that Ms. Busby received any of these letters or phone messages in Helmville between April 16, 1993 and June 13, 1993. The majority states that Ms. Busby returned to Helmville in June of 1991 where she received letters, flowers and phone calls from Cooney. I do not believe that the record clearly reflects this fact. However, even if true, June of 1991 is not the relevant time period charged in the complaint. There is nothing in the record to indicate that Ms. Busby was in Helmville during the April through June 1993 time period for which Cooney was convicted of stalking.

The majority states that the plain language of § 46-3-112(2), MCA, supports the conclusion that venue was proper in Powell County. Section 46-3-112(2), MCA, reads:

When an act requisite to the commission of an offense occurs or continues in more than one county, the charge may be filed in any county in which the act occurred or continued.

I would agree with the majority’s analysis if Ms. Busby had received the letters or phone messages in Powell County. Based on the record before us, that is not the case. The majority goes on to state that “the result of many acts which formed the bases of the charge against Cooney occurred in Powell County.” (Emphasis added.) Cooney was charged as follows:

That on or about April 16,1993 to July 13,1993 at Powell County Montana, [Cooney] committed the offense of Stalking as specified in Chapter 292, Laws of Montana 1993 [now § 45-5-220, MCA].
The facts constituting the offense and the facts giving probable cause to believe the Defendant committed it are:
That the defendant purposely or knowingly caused Linnea Busby substantial emotional distress by repeatedly harassing, threatening or intimidating Linnea Busby in person, by phone, and by mail.

The only result of Cooney’s acts which is material for the purpose of establishing an element of the charge against him is Ms. Busby’s resulting substantial emotional distress. The record does not establish that Ms. Busby was in Powell County when she received any of the letters or messages or that she experienced resulting substantial emotional distress in Powell County.

The majority also states that State v. Cassill (1924), 70 Mont. 433, 227 P. 49, supports its conclusion that venue was proper in Powell County. However, Cassill is clearly distinguishable. In Cassill, the defendants, two bankers, were charged with having made false statements to the superintendent of banks. The defendants falsely filled out a form in Powell County and mailed it to the superintendent in Lewis and Clark County. This Court held that the defendants could be properly tried in Powell County as the acts constituting the consummation of the offense occurred in two counties, either of which was a proper venue. Cassill, 227 P. at 51. Here, the State failed to establish either that Cooney sent the letters and messages from Powell County, or that Ms. Busby received them in Powell County. There is no evidence that the acts constituting the offense were consummated in Powell County.

The charges against Cooney should have been dismissed for failure to prove that Powell County was a proper venue. For the foregoing reasons, I dissent.


author: JUSTICE GRAY

text:
    IN THE MATTER OF THE CUSTODY AND PARENTAL RIGHTS OF M.M., Youth in Need of Care.
    No. 94-290.
    Submitted on Briefs January 12, 1995.
    Decided April 25, 1995.
    52 St.Rep. 325.
    894 P.2d 298.
    271 Mont. 52.

      For Appellant: James B. Obie, Attorney at Law, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Ass’t Attorney General, Helena; Mike McGrath, County Attorney; Carolyn A. Clemens, Deputy County Attorney; Randi Hood, Public Defender, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Richard M. (Richard), the natural father of M.M., appeals from the findings of fact, conclusions of law and order entered by the First Judicial District Court, Lewis and Clark County, which terminated his parental rights to M.M. We affirm, holding that the District Court did not err in concluding that the treatment plans provided for Richard were appropriate.

M.M. was born on July 11, 1989, to Richard M. and Elizabeth L. In September 1992, the Lewis and Clark County Department of Family Services (DFS) placed M.M. in emergency protective custody following a report that Richard had taken him to a bar and spent the day drinking, leaving M.M. unattended. On September 9, 1992, Richard signed a stipulation agreeing to DFS’ temporary investigative authority over M.M. and preparation of a treatment plan for Richard. The District Court approved the stipulation on the same day.

Richard signed the treatment plan on October 29, 1992, and the District Court subsequently approved it. The two goals of the treatment plan were for Richard to exhibit stability in his everyday lifestyle and end his dependence on alcohol. Richard was required to maintain stable and safe housing, obtain a psychological evaluation, complete approved parenting classes and ensure that any adult residing in his household abided by the provisions of the treatment plan. He also was required to obtain a chemical dependency evaluation and follow the evaluator’s recommendations.

On March 23,1993, the District Court extended the treatment plan for an additional six months. Two months later, Chris Valdez (Valdez), the Lewis and Clark County (County) social worker assigned to the case, reported that Richard was dishonest with alcohol counselors and refused to participate in parenting classes. Valdez recommended that Richard receive a psychological evaluation, as required by the treatment plan, and continue to work towards completing the plan. On May 25, 1993, the County, acting on behalf of DFS, petitioned for adjudication of M.M. as a youth in need of care.

On June 9, 1993, pursuant to a revised treatment plan signed by both Richard and his attorney and in accordance with a stipulation, the District Court ordered DFS to retain temporary custody and investigative authority over M.M. The revised treatment plan, approved by the court, required Richard to complete parenting training with Greg Daly (Daly), take classes on fetal alcohol syndrome, participate in Alcoholics Anonymous (AA) and submit to 30 days of alcohol testing. The revised treatment plan was to remain in effect for 90 days and stated specifically that Richard’s failure to abide by its terms would result in DFS petitioning to terminate his parental rights to M.M.

Richard showed little, if any, progress on the goals and tasks of the treatment plan during the following months, according to Valdez’s October 21, 1993, report. Richard had moved eleven or twelve times during the course of Valdez’s management of the case and was involved with three different women, each of whom he required M.M. to address as “mother.” At the time of the October 1993 report, Richard recently had married Toni M. They lived in a two-bedroom apartment with seven other people, including Richard’s brother Thomas, a convicted child molester, and his brother’s wife, a convicted felon. Toni’s parental rights to two of her children had been terminated, she was caring for her 18-month-old child and she and Richard were expecting a child.

Valdez also reported that Richard had failed to attend AA and failed to report for alcohol testing. Following Valdez’s report, the Comity petitioned for the termination of Richard’s parental rights and for permanent legal custody of M.M. with the right to consent to adoption.

On January 4 and 11, 1994, the District Court held a hearing on the termination petition. Many of the professionals who had worked with M.M. and Richard over the course of the preceding two years testified, discussing the specific problems facing M.M. and Richard, and Richard’s failure to comply with the requirements of the treatment plan.

Following the hearing, the District Court entered extensive findings of fact, conclusions of law and an order terminating Richard’s parental rights. Richard appeals.

Did the District Court err in concluding that the treatment plans approved for Richard were appropriate?

Section 41-3-609, MCA, sets forth the criteria for termination of the parent-child relationship. Termination is authorized if the court determines that the child is a youth in need of care and both of the following exist:

(1) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.

Section 41-3-609(1)(c), MCA.

The termination of parental rights involves fundamental liberty interests. Matter of J.R. (1992), 253 Mont. 434, 438, 833 P.2d 1063, 1066 (citation omitted). As a result, the party petitioning for termination has the burden of proving by clear and convincing evidence that the statutory criteria needed to terminate parental rights have been met. Matter of J.R., 833 P.2d at 1066. A district court’s conclusions of law in a termination proceeding are reviewed to determine if they are correct. Matter of J.J.G. (1994), 266 Mont. 274, 281, 880 P.2d 808, 812 (citation omitted).

In this case, we focus on the § 41-3-609(1)(c)(i), MCA, criterion for termination involving whether the parent complied with an appropriate treatment plan. It is essentially undisputed that Richard did not comply with either the original, or the revised, plan and, indeed, he does not challenge any of the court’s extensive findings relating to his lack of compliance.

Richard argues that the District Court erred in concluding that he was provided with an appropriate treatment plan prior to termination of his parental rights. While he makes a passing reference to a separate statutory factor regarding whether DFS made reasonable efforts to rehabilitate him (see § 41-3-609(2)(g), MCA), the thrust of his argument is that a psychological evaluation of him should have been obtained earlier than August 1993. According to Richard, an earlier evaluation would have highlighted both his borderline intellectual functioning and the need for a treatment plan taking his limitations into account.

This Court has not specifically defined what constitutes an “appropriate” treatment plan as a matter of law and, indeed, no such bright line definition is possible given the unique circumstances existing in each case. We have, however, recognized several factors applicable to determining whether a treatment plan is appropriate. One such factor is whether the parent was represented by counsel and stipulated to the treatment plan. See Matter of R.H. (1991), 250 Mont. 164, 169, 819 P.2d 152, 155. Here, both Richard and his counsel stipulated to the June 1993 treatment plan. While this fact does not establish that the plan was appropriate, it is entitled to consideration. Matter of J.R., 833 P.2d at 1066.

Other factors which must be taken into consideration in determining whether or not the individual treatment plan is appropriate are the particular problems facing both the parent and the child. See Matter of S.C. (1994), 264 Mont. 24, 29, 869 P.2d 266, 269; Matter of J.R., 833 P.2d at 1065-66. In this case, it is clear that DFS considered the particular physical and mental problems facing both M.M. and Richard when devising and implementing the treatment plans.

Dr. William Fulton (Fulton), a child psychiatrist and the medical director of child psychiatrist services at Shodair Hospital, testified regarding M.M.’s problems at the termination hearing. Fulton evaluated M.M. in December 1992, after M.M. was admitted to address problems exhibited while in foster care, including developmental and speech delay, self-injurious behavior and aggression. According to Fulton, M.M. was functioning at the level of an 18-month-old infant at age 41 months. Fulton’s evaluation also disclosed that M.M. was plagued by a number of physical and mental problems, including reactive attachment disorder, often the result of grossly neglectful caretaking; possible post-traumatic stress disorder; mental retardation; fetal alcohol syndrome; and a cleft palate.

Fulton opined that M.M. needed a parent who could intellectually understand his condition and provide a stable, consistent and loving environment. This opinion was echoed by Dr. Susan Lewin, another Shodair physician trained in pediatrics and medical genetics who had evaluated M.M.

The two broad goals of the treatment plan were for Richard to maintain a stable lifestyle and to break his dependency on alcohol. To meet these goals, Richard was responsible for obtaining safe and stable housing, attending parenting and fetal alcohol syndrome classes, obtaining a psychological evaluation and refraining from the use of alcohol. Given Richard’s documented alcohol problem and transient lifestyle, these goals not only dovetailed into Fulton’s opinion of M.M.’s needs, but also were pertinent to Richard’s individual problems.

Besides the terms of the treatment plans, the professionals who worked with M.M. and Richard also attempted to deal with their unique problems. These social workers testified that they understood both M.M.’s and Richard’s particular needs and tried to assist Richard in confronting and resolving these issues. Ultimately, they concluded that Richard’s inability to admit and confront both his own and M.M.’s problems caused his failure with the treatment plans.

Richard points out that the psychological evaluation performed in August 1993 revealed he had borderline intellectual functioning. On this basis, he argues that an appropriate treatment plan should have provided him with such an evaluation earlier and then taken the limited mental capabilities it disclosed into account in designing the remainder of the plan. His argument is not persuasive.

The October 1992 treatment plan prepared for Richard included the requirement that he “contact a Department of Family Services approved therapist to obtain a psychological evaluation and ... follow any recommendations.” He did not do so. The June 1993 treatment plan included a nearly identical requirement. Richard did not obtain the evaluation until August 1993 at which time his borderline intellectual functioning was officially discovered during a neuropsychological examination at St. Peter’s Hospital. While it is true that the State may assist a parent in completing the treatment program, the parent retains the responsibility for complying with the plan. Matter of R.H., 819 P.2d at 156 (citation omitted). Richard was responsible for obtaining the evaluation at an earlier time and simply failed to do so.

More importantly, however, Richard has not established how earlier knowledge of his condition would have affected either the particular requirements of the plan or the professionals’ work with Richard and the plan. Indeed, Richard has not argued with any specificity what modifications to the treatment plans would, or even might, have resulted from an earlier evaluation. A plain review of the plans reveals that there is nothing complicated about the tasks Richard was required to complete.

In addition, the professionals who worked with Richard seemed to understand his limited intellectual abilities and tailored their interaction with him accordingly. For example, psychotherapist Bill Evans (Evans) met with Richard on numerous occasions in the autumn of 1992 to work on his alcohol addiction, anger and impulsiveness. When asked if Richard’s limited intelligence had affected their work together, Evans stated that, while he would often have to repeat himself, Richard appeared to comprehend what he was saying. In Evans’ opinion, Richard’s failure to respond to the counseling sessions was due to his lack of motivation to make the internal changes necessary to overcome his problems, not his limited intelligence.

Daly, the instructor for Richard’s parenting training, also testified about the affect of Richard’s limited intelligence on his progress under the treatment plan. After working with M.M. and Richard together, Daly developed parenting goals for Richard which included learning how to positively interact with — and discipline — M.M., and how to act as an appropriate role model. Daly testified that Richard resisted the education and would not accept or admit that his son had disabilities that required special attention. As a result, Daly saw no change in Richard’s method of parenting. He ultimately opined that Richard would continue to refuse to learn the skills necessary to be an effective parent for M.M.

Daly was cross-examined about his knowledge of Richard’s limited intelligence and its impact on their work together. Daly testified that he knew of Richard’s limited intelligence from the beginning and tailored his instruction accordingly.

The District Court also heard testimony from Valdez about the affect Richard’s intelligence had on his progress with the treatment plan. On cross-examination, Richard’s attorney asked Valdez whether, if knowledge of Richard’s limited intellectual abilities had been known earlier, his performance under the treatment plan would have been different. Valdez responded: “I guess what I see is that it is not as much [Richard’s] functioning ability as his inability to ... change how he functions and how he parents his child.”

Kelly Moorse (Moorse), M.M.’s guardian ad litem, was the only witness who testified that advance knowledge of Richard’s limited abilities would have benefited his progress under the treatment plans. She opined that earlier knowledge of Richard’s condition would have assisted both Richard and the professionals working with him in dealing with his problems. Ultimately, however, Moorse testified that, while such knowledge would have “helped in terms of approaches [,] I am not sure the outcome would have been any different.” Moorse’s report recommended termination of Richard’s parental rights.

The inability of some parents to face deeply rooted personal problems, often identified in the treatment plan, is not uncommon. In Matter of J.R., the parent argued that a treatment plan requiring her to obtain psychological counseling was not appropriate because of her limited financial means. However, the professionals who worked with the parent testified that the failure of the plan resulted from her refusal to admit she had a problem, not from her financial situation. We affirmed the termination order, concluding that the District Court did not err in terminating the parent’s rights. Matter of J.R., 833 P.2d at 1067.

As was the case in Matter of J.R., the failure of the treatment plan in this case is not the result of an inappropriate plan; it is the result of Richard’s failure to admit and address the problems the treatment plan was designed to overcome. Nor was the plan inappropriate because it did not specifically recognize Richard’s limited intellectual functioning. Earlier compliance by Richard with the requirement that an evaluation be obtained would have disclosed the information. Moreover, ample evidence exists that the professionals who worked with Richard on the treatment plans understood his level of intelligence and tailored their work accordingly. We hold, therefore, that the District Court did not err in concluding that Richard’s treatment plans were appropriate within the meaning of § 41-3-609(1)(c)(i), MCA.

Affirmed.

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


author: JUSTICE HUNT

text:
    GARY KNUDSON, STAN SOLSVIK, GREG COLVIN, SUE ANN LOVE, LARRY ANTONICH, ADAM DAHLMAN and JASON RAMPTON, Plaintiffs and Appellants, v. EUGENE AND LILA McDUNN, Defendants and Respondents.
    No. 94-248.
    Submitted on Briefs February 9, 1995.
    Decided April 25, 1995.
    52 St.Rep. 336.
    894 P.2d 295.
    271 Mont. 61.

      For Appellant: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondent: E. Lee LeVeque, Conklin, Nybo, LeVeque & Murphy, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Gary Knudson, Stan Solsvik, Greg Colvin, Sue Ann Love, Larry Antonich, Adam Dahlman, and Jason Rampton appeal from an order of the Eighth Judicial District Court, Cascade County, terminating a temporary restraining order, denying appellants’ request for an injunction pendente lite, and awarding respondent’s costs and attorney fees. The District Court issued its order following a show cause hearing on appellants’ request for an injunction pendente lite at which the District Court resolved substantive issues without first obtaining respondents’ answer to appellants’ complaint and without allowing for full discovery by the parties.

We reverse and remand for further proceedings in accordance with this opinion.

We frame the issues as follows:

1. Did the District Court err in reaching a final determination on the merits at a show cause hearing for injunctive relief before obtaining responsive pleadings and without allowing for discovery?

2. Did the District Court err in awarding respondents’ attorney fees and costs?

Each appellant owns a lot in the Addition, a housing development in Great Falls. Construction of new homes in the Addition is subject to certain restrictions. Paragraph 3 of the restrictions provides:

That no building should be constructed or permitted on any of the above described lots other than a one-story building or a tri-level building, and if such building shall be a tri-level design, due care shall be used in the design and erection of said tri-level building in order that the view of the surrounding territory may not be blocked for other lot owners. Buildings having an excess of one and one-half stories shall not be permitted.

Respondents purchased a lot in the Addition with the intention of building a home. They hired a Great Falls design and construction company to build their home. Respondents and the design company knew of the height restrictions contained in paragraph three of the restrictions prior to beginning construction.

In January 1994, after construction had begun on respondents’ home, appellants informed respondents that if constructed as designed, their home would violate that portion of the restrictions which limits homes to no more than tri-level construction, and that portion of the restrictions which prohibits construction that blocks the view of the surrounding territory.

In response to appellants’ concerns, respondents voluntarily ceased construction of their home and modified its design so that the roof line would be four to five feet lower than originally planned. Appellants maintained that even with respondents’ proposed modifications, the finished home would exceed three levels and would obstruct the view of the surrounding area. Having reached an impasse in their discussions with appellants, respondents resumed, and ultimately completed, construction of their home.

On March 15, 1994, appellants filed a complaint seeking to obtain an injunction prohibiting respondents from completing construction. On March 17,1994, the District Court issued a temporary restraining order halting construction of respondents’ home. Respondents were ordered to appear on April 8, 1994, to show cause why an injunction pendente lite should not issue. Without waiting for responsive pleadings or discovery, the District Court, on April 18, 1994, issued its findings of fact, conclusions of law, and order terminating the temporary restraining order, denying appellants’ motion for an injunction pendente lite, and awarding costs and attorney fees to respondents. It is from the District Court’s order that appellants appeal.

ISSUE 1

Did the District Court err in reaching a final determination on the merits at a show cause hearing for injunctive relief before obtaining responsive pleadings and without allowing for discovery?

“Granting a preliminary injunction is within a trial court’s discretion, and we will not interfere unless manifest abuse is shown.” J.M., J.R. v. Montana High School Ass’n (1994), 265 Mont. 230, 237, 875 P.2d 1026, 1030. However, if the district court arrives at a conclusion of law, no discretion is involved, and therefore, we review the district court’s conclusions of law to determine whether the district court’s interpretation of the law is correct. J.M., 875 P.2d at 1030.

The District Court denied appellants’ request for an injunction pendente lite after concluding that:

2. The presently constructed McDunn home does not violate the restrictive covenant as alleged by plaintiffs.
3. Further, even if the McDunn home were violative of the covenant, the covenant is ambiguous in that it does not define “trilevel,” “due care,” “surrounding territory,” [and] “one and one-half stories.” Ambiguities are to be construed in favor of the McDunns and their right to have free use of their land. The covenant is non-sensible. While due care is to be used in the design of a tri-level home so as not to block the view, there is no such requirement that a one-story home be so constructed. In other words it appears a one-story could block the view while a tri-level cannot.
4. In any event, even if the McDunn home were violative of the covenants, the height covenant is unenforceable in that there have been multiple violations of the covenant in the past and plaintiffs are held to have waived their right to enforce the height covenant.
5. The defendants are entitled to their costs not to exceed $100 and to their reasonably incurred attorney fees pursuant to M.C.A. Sec. 27-19-306 and Montana case law, specifically, Marta v. Smith, 191 Mont. 179, 622 P.2d 1011 (1981).

Appellants argue that the District Court erred in denying their application for an injunction pendente lite because the District Court made findings and conclusions regarding appellants’ claims and defenses without first obtaining respondents’ answer and without allowing for discovery. Appellants contend that the show cause hearing was a de facto final hearing on the merits where both parties presented conflicting testimony and evidence without the benefit of full discovery and requisite pleadings.

A preliminary injunction may be granted when it appears that the continuance of an act would produce a great or irreparable injury to the applicant. Section 27-19-201, MCA; See Awareness Group v. Board of Trustees of School Dist. No. 4 (1990), 243 Mont. 469, 795 P.2d 447. A preliminary injunction does not determine the merits of the case, but rather, prevents further injury or irreparable harm by preserving the status quo of the subject in controversy pending an adjudication on the merits. Boyer v. Karagacin (1978), 178 Mont. 26, 33, 582 P.2d 1173, 1177. Before the district court can issue a preliminary injunction, the applicant must establish a prima facie case, or show that it is at least doubtful as to whether the applicant will suffer irreparable injury before an adjudication on the merits. If either showing is made, courts are inclined to issue the preliminary injunction. Porter v. K. & S. Partnership (1981), 192 Mont. 175, 181, 627 P.2d 836, 839. If, however, a preliminary injunction will not preserve the status quo and minimize harm to all parties pending a full trial on the merits, it should not be issued. Porter, 627 P.2d at 839.

When granting temporary relief by injunction, it is not the province of the district court to determine matters that may arise during a trial on the merits. Porter, 627 P.2d at 839. The record shows that the District Court determined matters at the show cause hearing that should have been determined at a trial on the merits. Both parties presented substantial testimony, witnesses, and exhibits without the benefit of full discovery and without the benefit of responsive pleading to appellants’ complaint. During a show cause hearing on a preliminary injunction, the district court should restrict itself to determining whether the applicant has made a sufficient case to warrant preserving a right in status quo until a trial on the merits can be had. Porter, 627 P.2d at 839.

We hold that the District Court erred in reaching a final determination on the merits at a hearing for injunctive relief before obtaining responsive pleadings and without allowing for discovery. We remand for a trial on the merits to determine what, if any, permanent equitable relief appellants are entitled to after the requisite pleadings have been filed and the parties have completed discovery.

ISSUE 2

Did the District Court err in awarding respondents’ attorney fees and costs?

The District Court concluded that respondents were entitled to their costs, not to exceed $100, and to their reasonably incurred attorney fees pursuant to § 27-19-306, MCA, and Marta v. Smith (1981), 191 Mont. 179, 622 P.2d 1011.

Because this matter is being remanded to the District Court for further proceedings, we reverse the award of attorney fees and costs.

We reverse and remand for further proceedings in accordance with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, WEBER and LEAPHART concur.


author: JUSTICE LEAPHART

text:
    LYNNETTE SIROKY, Trustee, Plaintiff and Respondent, v. RICHLAND COUNTY, Defendant and Appellant.
    No. 94-508.
    Submitted on Briefs March 23, 1995.
    Decided April 25, 1995.
    52 St.Rep. 343.
    894 P.2d 309.
    271 Mont. 67.
    For Appellant: Mike Weber, Richland County Attorney, Sidney.
    For Respondent: Monte J. Boettger, Attorney at Law, Lewistown.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Plaintiff, Lynnette Siroky, brought suit in District Court, Seventh Judicial District, Richland County, to recover damages from Richland County for the conversion of interest earned on a $50,000 cash bond deposited with the District Court to satisfy a condition of bail in a criminal action. The District Court granted summary judgment in favor of Siroky and Richland County appeals. We affirm.

Factual Background

Lawrence Sack is the individual who deposited the $50,000 bond at issue. Lynnette Siroky is Mr. Sack’s trustee and is treated as the owner of the bond and the claimant to the monetary interest throughout this opinion.

Lawrence Sack was charged with one count of felony theft and one count of conspiracy alleged to have occurred on or about March 26, 1990 in Richland County, Montana. Bond was set in the sum of $50,000. On April 23, 1990, Sack deposited the sum of $50,000 with the Clerk of the Court. On April 30, 1990, the $50,000 bond was deposited into the trust account of the Richland County Clerk of Court and then into an interest bearing account with the Richland County Treasurer at the Richland National Bank and Trust, Sidney, Montana. The money continued to accrue interest thereafter.

Sack ultimately pled guilty and was sentenced. The $50,000 bond was then exonerated with $25,000 being applied toward restitution and $25,000 returned to Sack. Richland County retained the interest income generated by the bond.

Sack submitted a claim to the County on June 13, 1991, for the accrued interest and his claim was denied on January 23, 1992.

On July 22,1992, Lynnette Siroky instituted the present action as trustee for Lawrence Sack. On December 30, 1993, Siroky filed a motion for partial summary judgment on the issue of whether Siroky was entitled to receive the interest earned as a result of Siroky’s bail bond deposit with the court. A hearing on the motion was held February 15, 1994. The District Court entered an order granting partial summary judgment on March 29, 1994. On June 16, 1994, Siroky made a motion for full summary judgment, which motion was granted by order of the Seventh Judicial District Court on July 25, 1994. Richland County appeals.

Issue presented

Whether interest earned on bond monies deposited in criminal actions under Montana law is to be returned to the owner of the money or is to be retained by the County as part of its general fund. Standard of Review

Our standard of review of an order by a district court granting summary judgment is the same as that used by the district court under Rule 56(c), M.R.Civ.P. Mills v. Mather (1995), [270 Mont. 188], 890 P.2d 1277, 1281. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. In the present case, the parties agreed that there were no genuine issues of material fact and thus, the matter was properly subject to summary disposition pursuant to Rule 56(c), M.R.Civ.P. Discussion

Property interests are created not by the constitution, but by independent sources such as state law. Mogan v. City of Harlem (1989), 238 Mont. 1, 6-7, 775 P.2d 686, 689. In the present case, the Montana Legislature has established a státutory scheme regulating the posting, forfeiture and discharge of bail. Section 46-9-106, MCA, authorizes the release of an accused upon reasonable conditions that ensure the appearance of the accused and protect the safety of the community. Section 46-9-108, MCA, allows the court to impose any condition that will reasonably ensure the appearance of the accused, including a condition that “the defendant shall furnish bail in accordance with 46-9-401.”

Section 46-9-401, MCA, sets forth numerous ways that bail may be furnished, one of which is by a deposit of cash with the court of an amount equal to the required bail. Mr. Sack voluntarily chose to deposit a cash bond with the District Court in order to satisfy the condition of his bail.

The legislature has further provided that, if the conditions of bail are not satisfied (e.g. if the defendant does not appear in court), the bail shall be forfeited and the bail money shall be paid to the treasury of the city or county where the money was deposited. Section 46-9-511, MCA. On the other hand, if the conditions of bail are satisfactorily performed and the accused is discharged from his obligations, “the court shall return to him or his sureties the deposit of any cash ....” Section 46-9-502, MCA. The statutes do not specifically state whether or not the defendant is entitled to the interest generated by the cash during the time of the deposit.

The United States Supreme Court addressed a similar issue in Webb’s Fabulous Pharmacies, Inc. v. Beckwith (1980), 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358. Webb’s Pharmacies sold all of its assets to Eckerd, another Florida corporation. At the closing, it appeared that Webb’s Pharmacies’ debts were greater than the purchase price to be paid by Eckerd. Accordingly, under the Bulk Transfer Act, Eckerd filed a complaint in interpleader and tendered the purchase price to the court. Under Florida law, the clerk deposited the money in an interest bearing account. The court reserved decision on entitlement to the interest, as between the clerk and Webb’s Pharmacies’ creditors. The clerk deducted a fee from the funds “for services rendered” as allowed by Florida statute. A receiver was appointed for Webb’s Pharmacies and the receiver filed a motion for release of the funds to him. The court released the funds, less the amount of the statutory fee and less the amount of accumulated interest. The receiver then moved for release of the accumulated interest. The court held in favor of the receiver and the clerk appealed. The Florida Supreme Court reversed the Circuit Court stating that the funds, although private money at the time of deposit, were “considered ‘public money ” from the date of the deposit until they left the account; that “the statute takes only what it creates;” and that there was no unconstitutional taking because interest earned on the account was not private property. Beckwith v. Webb’s Fabulous Pharmacies, Inc. (Fla. 1979), 374 So.2d 951, 952-53.

The United States Supreme Court noted that the Florida statutory scheme would allow the county to exact two tolls while the inter-pleader funds were held by the clerk of court. The first being the statutory fee for services rendered. The second would be the keeping of the accrued interest pursuant to Florida’s statutory provision that the interest “shall be deemed income of the office of the clerk of the circuit court.”

The Supreme Court found that the clerk held those funds for the “ultimate benefit of Webb’s creditors, not for the benefit of the court and not for the benefit of the county.” Rather, the creditors had a state-created property right to their respective portions of the funds. The Court noted that the general rule is that any interest on inter-pleaded funds follows the principal and is to be allocated to those who are ultimately to be the owners of that principal. Webb’s Fabulous Pharmacies, 449 U.S. at 161-62, 101 S.Ct. at 450-51. In rejecting the Florida Supreme Court’s reasoning that the funds temporarily assumed the status of “public money,” the Supreme Court held:

This Court has been permissive in upholding governmental action that may deny the property owner of some beneficial use of his property or that may restrict the owner’s full exploitation of the property, if such public action is justified as promoting the general welfare.
Here, however, Seminole County has not merely “adjusted] the benefits and burdens of economic life to promote the common good.” [Citation omitted.] Rather, the exaction is a forced contribution to general governmental revenues, and it is not reasonably related to the costs of using the courts. Indeed, “[t]he Fifth Amendment’s guarantee ... was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” [Citation omitted.]

Webb’s Fabulous Pharmacies, 449 U.S. at 163, 101 S.Ct. at 452.

Noting that neither the statute nor the county offered any justification for the deprivation, the Court rejected the notion that the money could simply be characterized as “public money” because it was temporarily held by the court.

The earnings of a fund are incidents of ownership of the fund itself and are property just as the fund itself is property. The state statute has the practical effect of appropriating for the county the value of the use of the fund for the period in which it is held in the registry.
To put it another way: a State, by ipse dixit, may not transform private property into public property without compensation, even for the limited duration of the deposit in court. This is the very kind of thing that the Taking Clause of the Fifth Amendment was meant to prevent. That Clause stands as a shield against the arbitrary use of governmental power.

Webb’s Fabulous Pharmacies, 449 U.S. at 164, 101 S.Ct. at 452.

Under the narrow circumstances of the Webb’s Pharmacies case, where there was a separate and distinct statute authorizing a clerk’s fee for “services rendered” and where the deposited fund itself concededly was private, the United States Supreme Court concluded:

Seminole County’s taking unto itself, under § 28.33 and 1973 Fla. Laws, ch. 73-282, the interest earned on the interpleader fund while it was in the registry of the court was a taking violative of the Fifth and Fourteenth Amendments. We express no view as to the constitutionality of a statute that prescribes a county’s retention of interest earned, where the interest would be the only return to the county for services it renders.

Webb’s Fabulous Pharmacies, 449 U.S. at 164-65, 101 S.Ct. at 452-53.

Richland County relies upon a decision from an intermediate appellate court in California, Fresno Firefighters’ Local 753 v. Jernagan (5th Dist. 1986), 222 Cal.Rptr. 886, 177 Cal.App.3d 403. In Fresno Firefighters, the California court held that the interest earned on cash bail bonds in criminal actions belongs to the county not the depositor. The court found that, unlike cash deposits in civil cases such as Webb’s Pharmacies where the money is deposited only for the benefit of a private person, “bail money is deposited for a public purpose — security for the appearance of the defendant at all required court hearings.” Accordingly, the court concluded: “Hence, the public purpose of bail justifies the denial to the owner of the beneficial use of the money while it is on deposit with the court.” Fresno Firefighters, 222 Cal.Rptr. at 892.

We find that the situation in Fresno Firefighters is distinguishable from the case before us. In Fresno Firefighters, 222 Cal.Rptr. at 890, the court noted that the State of California had enacted a statute providing that:

interest earned on any bail money deposited in a bank pursuant to [specified Pen.Code sections] shall, if the board of supervisors so directs, be allocated for the support of the courts in that county.

In light of this statutory provision, the California court concluded that the retention of interest was justified as “promoting the general welfare.” Fresno Firefighters, 222 Cal.Rptr. at 892. In contrast to California, Montana has not adopted any statutory provisions allowing political entities to retain interest on cash bonds nor is there any suggestion advanced that, in Montana, the retained interest would go to the court system, thereby promoting the public welfare. On the contrary, the record indicates that in the present case, the County’s general fund, rather than the court, would benefit from the earned interest.

Although the United States Supreme Court’s holding was based upon the narrow circumstances of the Webb’s Pharmacies case, we conclude that the principles enunciated in Webb’s Pharmacies are applicable to the facts presently before us. As in Webb’s Pharmacies, Richland County offers no justification to sustain the taking of the interest earned by the bond money. The bond money was Sack’s private property and could only be lost upon a forfeiture resulting from a violation of the terms of the bond. That did not happen. Rather, the bond was exonerated.

We hold that the constitutional analysis in Webb’s Pharmacies is persuasive. The money deposited was Sack’s private property at all times. The retention of earned interest on that money would amount to a taking of Sack’s property in violation of the 5th and 14th Amendments of the United States Constitution and Article II, Section 29 of the Montana Constitution.

Furthermore, during the period that the deposit was earning interest, Sack was an “accused” who was presumed innocent of the charges. The court’s requirement of a cash bond was designed to create an incentive to Sack to appear in court at all appointed times. Section 46-9-106, MCA. Obviously, if the State or County lays claim to some or all of that bond or the interest thereon, there is less incentive for Sack to appear.

In the Webb’s Pharmacies decision, the Supreme Court noted that, if the county were allowed to retain interest on the interpleader deposit, “its officials would feel an inherent pressure and possess a natural inclination to defer distribution, for that interest return would be greater the longer the fund is held; there would be, therefore, a built-in disincentive against distributing the principal to those entitled to it.” Webb’s Fabulous Pharmacies, 449 U.S. at 162, 101 S.Ct. at 451.

That reasoning is even more compelling in the context of a cash bond in a criminal proceeding. If Richland County were allowed to retain the interest as public monies, there would be an incentive to the County to tie up the money as long as possible, thereby earning more interest. The County would thus stand to gain by prolonging Sack’s criminal prosecution. Such an incentive runs contrary to the constitutional guarantees of speedy trial under the 6th Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution.

We hold that the County’s retention of the interest money on a bail bond cash deposit would violate the guarantee in Article II, Section 17 of the Montana Constitution that a citizen cannot be deprived of property without due process of law, and the guarantee in Article II, Section 29 of the Montana Constitution, that property cannot be taken for public use without just compensation. Furthermore, Article II, Section 24 of the Montana Constitution guarantees a speedy public trial. Allowing a county to retain interest on bail money has the potential to thwart that constitutional guarantee.

In Montana, there is no statutory requirement that the clerk of court deposit bond money in an interest bearing account. However, if the court does so (or, upon motion, is ordered to do so) then the court must abide by the general rule recognized by the United States Supreme Court in Webb’s Pharmacies, that is, that interest earned belongs to the owner of the funds that generated the interest.

As the District Court correctly noted, the County is no more entitled to retain the interest on this cash bond than it would be to retain accruing dividends on a deposit of stocks or bonds or the appreciated value on a pledge of real estate under § 46-9-401, MCA.

Affirmed.

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