text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEVE HARDY, Defendant and Appellant.
    No. 96-050.
    Submitted on Briefs July 18, 1996.
    Decided October 22, 1996.
    53 St.Rep. 998.
    278 Mont. 516.
    926 P.2d 700.

      For Appellant: Jeffrey T. Renz, Attorney at Law, Rachel A. Clark, Intern, Montana Defender Project, School of Law, University of Missoula, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Edward G. Beaudette, Anaconda-Deer Lodge County Attorney, Anaconda.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The petitioner, Steven D. Hardy, filed a petition for post-conviction relief in the District Court of the Third Judicial District in Deer Lodge County. The District Court denied the petition. Hardy appeals from that decision. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court erred when it denied Hardy’s petition for post-conviction relief.

FACTUAL BACKGROUND

In 1989, Steven D. Hardy was charged by information with seven counts of burglary. Pursuant to a plea agreement, he pled guilty to four of those counts. The District Court sentenced him to four concurrent terms of ten years in prison, with nine years suspended. In 1990, he was released on probation to serve the suspended portion of his sentence; and pursuant to §§ 46-23-1101 to -1106, MCA, the “Interstate Compact,” Montana authorities transferred the supervision of his probation to the State of Utah.

In 1991, Hardy was arrested in Utah, and charged with two counts of felony assault. At that time, he contacted David Robbins, his Montana probation officer. In an affidavit submitted in this proceeding, Robbins stated that he advised Hardy that the State of Montana’s general policy is that probation revocation proceedings are not initiated if the crimes are misdemeanors and the supervising state agrees to continue supervision. Hardy ultimately pled no contest to two reduced charges of misdemeanor assault on a police officer. Prior to his sentencing hearing, however, he was again arrested and charged with aggravated assault. Utah probation officials subsequently informed the State of Montana that they were no longer willing to supervise Hardy’s probation.

Based on the assault convictions and the State of Utah’s refusal to continue the supervision of Hardy’s probation, the Deputy County Attorney for Deer Lodge County, Montana, filed an application for a bench warrant and a petition to revoke Hardy’s suspended sentence. Attached to the petition were documents regarding the Utah criminal proceedings, and an interstate case report in which the Utah Department of Corrections requested that Montana extradite Hardy after adjudication of the Utah charges. Hardy was sentenced in Utah, and subsequently returned to Montana for his probation revocation hearing.

Prior to the probation revocation hearing, the District Court received and filed letters from Hardy in which he set forth facts which corroborated his guilty pleas to the Utah charges. Then, at the April 1992 probation revocation hearing, Hardy appeared, with counsel, and admitted the allegations in the State’s petition.

The District Court: (1) revoked the suspended portion of Hardy’s sentence; (2) sentenced him to four concurrent terms of nine years; and (3) ordered that he shall not receive credit for his “street time” (the two years he spent on probation in Utah).

In November 1994, Hardy filed a petition for post-conviction relief. On December 14, 1995, the District Court denied the petition, and entered its findings of fact, conclusions of law, and order.

DISCUSSION

Did the District Court err when it denied Hardy’s petition for post-conviction relief?

The standard of review of a district court’s findings of fact is whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

On appeal, Hardy contends that the District Court erred when it denied his petition for post-conviction relief. He claims that the revocation of his probation was invalid, and that, therefore, his probation should now be reinstated. Specifically, he asserts that the revocation of his probation was invalid for the following three reasons: (1) he was denied a preliminary on-site hearing; (2) Dave Robbins, his Montana probation officer, assured him that his probation would not be revoked for misdemeanor convictions; and (3) the District Court arbitrarily denied him credit for his “street time” when it failed to sufficiently set forth, in the record, its reasons for the denial.

1. THE DENIAL OF A PRELIMINARY ON-SITE HEARING

After Utah officials refused to continue the supervision of Hardy’s probation, he was extradited and returned to Montana for his probation revocation hearing. Prior to his return, however, he was denied a preliminary on-site hearing. He asserts that this denial violated his rights pursuant to (1) the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and (2) § 46-23-1103, MCA. We will address both of these alleged violations separately.

A. DUE PROCESS

In Morrissey v. Brewer (1972), 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, the U.S. Supreme Court held that a parolee’s liberty involves significant values entitled to the protection of the due process clause of the Fourteenth Amendment; and that termination of that liberty requires an informal hearing to insure that the finding of a parole violation is based on sufficient facts to support the revocation. In Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, the U.S. Supreme Court extended and applied the principles announced in Morrissey to probation revocation proceedings.

In State v. Howell (1986), 222 Mont. 136, 720 P.2d 1174, we analyzed the due process requirements established by Morrissey and Gagnon in the context of a Montana probation revocation proceeding. Howell was a Montana probationer under supervision in Idaho when he was arrested and jailed for assault. Apetition to revoke probation was filed, and he was returned to Montana. He later claimed that the failure to conduct a preliminary on-site hearing in Idaho denied him due process as required by Morrissey and Gagnon. We rejected his claim, and held that he “was not deprived of a liberty interest by the failure of the authorities to provide for him a preliminary or on-site hearing.” Howell, 222 Mont, at 140, 720 P.2d at 1177. We based our holding on our determination that:

[T]he purpose of the on-site preliminary hearing and the eventual full-blown hearing on revocation is to provide due process to the parolee, and to protect his liberty interest at the time. In this case, Howell did not have a liberty interest at the time of the proceedings against him for the revocation of his parole. He was at the time under arrest in Idaho by reason of a charge against him for assault. His transfer by the Idaho authorities to the Montana authorities while he was still under arrest did not deprive him of any liberty interest since his detention by the Idaho authorities was at all times lawful.

Howell, 222 Mont, at 139-40, 720 P.2d at 1176.

Hardy was charged with three offenses in Utah. He entered pleas of no contest, was convicted of each charge, and was sentenced accordingly. He was serving that sentence at the time the Montana revocation proceedings were initiated. At the time he was extradited to Montana, he was detained in the Salt Lake County Jail, pursuant to his one-year sentence for the Utah convictions. Nothing in the record suggests that he was or would have been released from jail in Utah had it not been for his extradition and transfer to Montana authorities. Based on our prior holding in Howell, therefore, Hardy’s right to due process was not infringed upon by his extradition to Montana and the commencement of the revocation proceedings in Montana. Accordingly, a preliminary hearing was not required.

We hold that the District Court was correct when it concluded that the failure to conduct a preliminary on-site hearing did not violate Hardy’s due process rights pursuant to the Fourteenth Amendment.

B. RIGHTS PURSUANT TO § 46-23-1103, MCA

Section 46-23-1103, MCA, provides as follows:

(1) Where supervision of a ... probationer is being administered pursuant to the interstate compact for the supervision of... probationers, the appropriate judicial or administrative authorities in this state shall notify the compact administrator of the sending state whenever in their view consideration should be given to retaking or reincarceration for a ... probation violation.
(2) Prior to the giving of any such notification, a hearing shall be held in accordance with this part within a reasonable time unless such hearing is waived by the ... probationer. Following termination of any such hearing, the appropriate officer or officers of this state shall, as soon as practicable, report to the sending state, furnish a copy of the hearing record, and make recommendations regarding the disposition to be made of the ... probationer by the sending state ....

When the language of a statute is plain and unambiguous, the statute speaks for itself and no further interpretation is required. In re Estate of Langendorf (1993), 262 Mont. 123, 125, 863 P.2d 434, 436. The language of § 46-23-1103(2), MCA, plainly and unambiguously requires a preliminary on-site hearing. Despite the statute’s clear mandate, Hardy was denied a hearing, and his rights pursuant to the statute were, in fact, violated. The District Court, therefore, erred in 1992 when it did not require an on-site hearing prior to Hardy’s return to Montana. However, for reasons that follow, the District Court’s failure to require a preliminary on-site hearing was not prejudicial to Hardy’s rights, and therefore, did not constitute reversible error. See § 46-20-701(1), MCA. For that reason, the District Court’s refusal to grant post-conviction relief on the ground that Hardy was denied a preliminary on-site hearing in contravention of § 46-23-1103(2), MCA, must be affirmed. See Rule 61, M.R.Civ.P. .

Our holding today should not be interpreted as diminishing the importance of § 46-23-1103(2), MCA. In fact, most probation revocation proceedings initiated pursuant to §§ 46-23-1101 to -1106, MCA, the “Interstate Compact,” will require a preliminary on-site hearing. Preliminary on-site hearings are necessary to allow a probationer to contest the reasons for the revocation of his or her probation, and to develop a record when the evidence is fresh and when it is readily available.

For example, in Fisher v. Crist (1979), 182 Mont. 124, 594 P.2d 1140, we held that the failure to provide Fisher with a preliminary on-site hearing violated his rights pursuant to § 46-23-1103, MCA. Fisher was a Montana probationer under the supervision of the State of Washington. Montana authorities sought to revoke his probation based on: (1) his failure to report to his Washington probation officer; and (2) his failure to cooperate with the Seattle Indian Alcohol Program. We determined that Fisher should have received a preliminary on-site hearing because,

[h] e was told that he was charged with two violations, both of which he contested and should have been the subject of a probable cause hearing in Seattle where he could have had the opportunity to present witnesses and, perhaps, refute the allegations.

Fisher, 182 Mont, at 128, 594 P.2d at 1142.

In this case, however, a preliminary on-site hearing would have contributed nothing to a determination of whether Hardy had violated the terms of his probation. Unlike Fisher, Hardy’s probation violations (which were the basis for revocation) were not disputed, and probable cause for the initiation of revocation proceedings clearly existed. Essential to our holding is the fact that Hardy pled no contest to three offenses in Utah. Additionally, he wrote letters to the District Court which corroborated his guilt; and, during his probation revocation hearing, he admitted the allegations in the State’s petition. He had, as evidenced by his no contest pleas and admissions, indisputably violated the conditions of his probation, and a preliminary on-site hearing could not have led to any other finding.

Based on the facts of this case, the failure to provide Hardy with a preliminary on-site hearing did not prejudice his substantial rights. Accordingly, we hold that the District Court was correct when it concluded that Hardy is not entitled to post-conviction relief.

2. ASSURANCES FROM HIS PROBATION OFFICER

After his arrests in Utah, Hardy faced three felony charges. Ultimately, however, he pled no contest to three misdemeanor charges and avoided felony convictions. Hardy asserts that Dave Robbins, his Montana probation officer, assured him that his probation would not be revoked for misdemeanor convictions. He contends that, based on those assurances, his probation should not have been revoked.

Dave Robbins, however, contended that he did not make any unconditional assurances or guarantees; rather, he spoke generally about the State of Montana’s procedures. In his affidavit, Robbins stated:

I informed... Hardy that our general policy was that if a misdemeanor crime was committed and the supervising state agreed to continue supervision that no revocation proceeding is initiated ... [t]hat decisions regarding the filing of a Petition for Revocation are within the exclusive discretion of the county attorney and my responsibility is only to report infractions and make recommendations.

The District Court’s findings and conclusions are based on an acceptance of Robbins’ version of his conversations with Hardy and his Utah attorney.

Furthermore, Montana officials did not participate in the plea negotiations between Hardy and the State ofUtah. Finally, Hardy knowingly, voluntarily, and with the assistance of counsel entered into a no contest plea agreement which included the following language:

I know and understand the nature and the elements of the charges pending against me ... no one has made any promises or threats to induce me to plead guilty or no contest. My plea of guilty or no contest today is my own voluntary decision.

We conclude that the District Court’s findings regarding Robbins’ representations to Hardy were not clearly erroneous, and that the District Court’s conclusion that the State was not estopped from proceeding with revocation proceedings based on those representations, was correct.

3. THE DENIAL OF CREDIT FOR “STREET TIME”

When the District Court sentenced Hardy, it denied him credit for his “street time” (the two years he spent in Utah on probation). Hardy asserts that the District Court arbitrarily denied him credit for his “street time” when it failed to sufficiently set forth its reasons for the denial in the record. Specifically, he alleges that the District Court did not comply with § 46-18-201, MCA; which states in relevant part:

(4) If any restrictions or conditions imposed under subsection (l)(a) or (l)(b) are violated, the court shall consider any elapsed time and either expressly allow part or all of it as a credit against the sentence or reject all or part as a credit. The court shall state its reasons in the order ....

The record, however, does not support Hardy’s contention. In its amended judgment, the District Court stated:

7) That the reasons for this sentence are the Defendant’s age, past record of numerous convictions, the Defendant’s inability to stay out of trouble when not incarcerated, and the serious nature of the crimes committed in Utah and the four (4) underlying Burglary charges on which the defendant was convicted in this Court.

The denial of credit for “street time” is an express provision of Hardy’s sentence. The reasons for the sentence, therefore, include the reasons for the denial of credit for “street time.”

The District Court adequately considered § 46-18-201, MCA, and sufficiently stated its reasons when it denied Hardy credit for his “street time.” Accordingly, we hold that the District Court was correct when it concluded that Hardy was not arbitrarily denied credit for his “street time.”

We hold that the District Court’s findings of fact were not clearly erroneous, and that its conclusions of law were correct. Accordingly, the judgment of the District Court is affirmed.

JUSTICES GRAY, NELSON, ERDMANN and HUNT concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

license: Public Domain

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. DAVID SYLVESTER GONZALES, Defendant and Appellant.
    No. 95-268.
    Submitted on Briefs August 29, 1996.
    Decided October 24, 1996.
    53 St.Rep. 1015.
    278 Mont. 525.
    926 P.2d 705.

      For Appellant: James L. Vogel, Hardin.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Pamela Collins, Assistant Attorney General, Helena; Christine A. Cooke, Big Horn County Attorney, Hardin.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant David Gonzalez appeals the Thirteenth Judicial District Court, Big Horn County, jury verdict which found him guilty of felony assault against Ronald Thompson. We affirm.

The following two issues are raised on appeal:

1. Did the District Court properly instruct the jury on the affirmative defense of justifiable use of force?

2. Did the jury properly reject the defendant’s affirmative defense of justifiable use of force?

BACKGROUND

The following facts come from the State’s case-in-chief. On August 7, 1994, David Gonzales went to the Wagon Wheel Bar in Hardin, Montana, at about 11:30 p.m. with his ex-wife, Marta Bergman. Also at the bar that evening was Ronald Thompson, an older man who was “acting strange,” telling people he was a karate expert and a Vietnam veteran. While Gonzales and Bergman were dancing to music performed by Randy McCallister, Thompson started dancing between them, making shadowboxing moves, but not saying anything or making any aggressive motions towards them.

Because Thompson was shadowboxing and “acting strange” around McCallister’s band equipment, McCallister told Thompson to behave. Thompson stopped what he was doing and repeatedly apologized. According to Jan Small, the owner of the Wagon Wheel, she received no complaints about Thompson.

After McCallister warned Thompson to behave around the band equipment, Gonzales approached McCallister and tried to stick up for Thompson. McCallister responded that it was not any of Gonzales’ business. Gonzales then hit McCallister, who hit him back. Richard Duncan, an acquaintance of McCallister, broke up the fight. McCallister went back on stage and prepared to resume playing with the band. Gonzales exited the bar after Jan Small asked him to leave.

Approximately five minutes later, Gonzales reentered the bar carrying something silver in his hand. He headed back to confront McCallister, and in McCallister’s direction, yelled, “Hey, bitch. You want to do it right. Let’s go outside.” At the same time, Thompson was sitting alone in the bar and watching the crowd. He got out of his chair, did an about-face, and hit Gonzales in the face. Duncan observed Gonzales, standing, slash Ronald Thompson with a carpet knife. Thompson grabbed Gonzales, who tried to stab Thompson in the back with the knife. Duncan approached the melee and grabbed Gonzales’ wrist, ordering him to drop the knife. Duncan hit Gonzales in the forehead and he dropped the knife. Duncan then knocked Thompson and Gonzales to the ground. When the three fell, Gonzales was on the bottom, Thompson in the middle, and Duncan on top.

When the three got up, Thompson was bleeding profusely from a deep laceration on his left arm. He also suffered smaller lacerations to his lower chest and back. Gonzales was uninjured except for a black eye. Immediately thereafter, deputies from the Big Horn County Sheriff’s Department arrived at the scene and arrested Gonzales. They also administered first aid to Thompson before transporting him to the hospital.

Thompson could not be found at the time of trial and was unavailable to testify. Sheriff’s deputies testified that Thompson did not appear to be dangerous and they did not feel threatened by him, although he did appear confused. Two officers also testified that the injury to Thompson’s left arm appeared to be a defensive-type wound.

At trial, Gonzales testified on his own behalf. He claimed that during one of the band’s breaks, McCallister made a derogatory comment to him about his ex-wife. Gonzales poked McCallister in the stomach. As Gonzales stood up to leave, McCallister hit him from behind. Gonzales then headed towards the front door of the bar, but before reaching it, he decided to find out why McCallister had hit him. Gonzales faced the band where McCallister was playing and yelled, “Hey bitch. You want to do it right. Let’s go outside.”

According to Gonzales, McCallister noticed him and nodded to Thompson. Thompson headed toward Gonzales, doing karate moves. Gonzales was afraid because Thompson was fifty pounds larger than he, he had just been beaten by McCallister, and he had been told that Thompson was a Vietnam veteran and a karate expert. Gonzales had a carpet knife in his wallet. He removed it as a warning for Thompson to stay away. Thompson punched Gonzales in the eye. Gonzales admitted at trial, that at that point, he could have turned around and run out the back door of the bar. After hitting Gonzales, Thompson tackled him, and the two fought on the floor until Duncan separated them.

Gonzales was charged by information with felony assault pursuant to § 45-5-202(2)(a), MCA. He pled not guilty. Following a jury trial, Gonzales was found guilty. The District Court sentenced him to a term of eight years in the Montana State Prison, plus two years consecutively for the use of a weapon. Gonzales appeals.

1. Did the District Court properly instruct the jury on Gonzales’ affirmative defense of justifiable use of force?

Gonzales asserts that the District Court committed reversible error at trial because it did not properly instruct the jury regarding his affirmative defense of justifiable use of force. He contends that the jury was instructed that the defense was not available to an aggressor, but that the jury was not instructed on the exceptions to the “no aggressor” rule contained in § 45-3-105(2)(a) and (b), MCA.

Section 45-3-105(2)(a) and (b), MCA, provides:

Use of force by aggressor. The justification described in 45-3-102 through 45-3-104 is not available to a person who: (2) purposely or knowingly provokes the use of force against himself, unless: (a) such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant; or (b) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force.

During settlement of jury instructions, the State offered State’s proposed instruction number 15, which restates § 45-3-105(2)(a), MCA. Proposed instruction number 15 stated:

The use of force in defense of a person is not available to a person who purposely or knowingly provokes the use of force against himself unless such force is so great that he reasonably believes that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant.

Defense counsel objected to the State’s proposed instruction number 15, stating that there had been no evidence presented at trial to support it, and that it implied that Gonzales had provoked Thompson. Defense counsel admitted there was evidence that Gonzales provoked McCallister, but not Thompson. The District Court initially accepted the State’s proposed instruction 15, and allowed the defense to argue that there was no evidence that Gonzales was the aggressor. Gonzales then offered defense proposed instruction number 1, which stated, “No person has a duty to retreat from the use of unlawful force against him.” The State objected to this instruction because it conflicted with its proposed instruction number 15 and was an incorrect statement of the law.

The District Court then decided not to accept either proposed instruction. Instead, it gave the following instructions regarding justifiable use of force:

INSTRUCTION NO. 8
The defense of justifiable use of force is an affirmative defense and the defendant has the burden of producing sufficient evidence on the issue to raise a reasonable doubt of his guilt.
If you find that he was justified in the use of force, you must find him not guilty.
INSTRUCTION NO. 9
Apersonisjustifiedintheuse of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself.
INSTRUCTION NO. 10
The defendant has pleaded justification in the use of force in this case. As such he has the burden of producing sufficient evidence of justification in the use of force to raise a reasonable doubt of his guilt. You are to consider the following requirements of the law in determining whether the use of force claimed by-defendant was justified:
1) The defendant must not be the aggressor;
2) The danger of harm to the defendant must be a present one [and not merely threatened at a future time and not made by a person without the present ability of carrying out a threat];
3) The force threatened against the defendant must be unlawful;
4) The defendant must actually believe that the danger exists, that is, use of force by him is necessary to avert the danger and that the kind and amount of force which defendant uses is necessary;
5) The defendant’s belief, in each of the aspects described, is reasonable even if he is mistaken.
You are further advised that even if you determine that the use of force by defendant was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt.

(Bracketed material in original.)

This Court reviews jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Leyba (1996), 276 Mont. 45, 915 P.2d 794, 797. District courts have broad discretion in formulating jury instructions. State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167. While a defendant is entitled to have instructions on his theory of the case, he is not entitled to an instruction concerning every nuance of his argument. Ross, 889 P.2d at 167.

Gonzales failed to object to or offer other instructions regarding the “no aggressor” rule contained in instruction number 10. He stated that he did not want the jury instructed on the exceptions to the “no aggressor” rule because his theory of the case was that Gonzales was not the aggressor. Because Gonzales did not raise an objection before the District Court, he is barred from raising the issue on appeal. See § 46-20-104, MCA. State v. Santos (1995), 273 Mont. 125, 133, 902 P.2d 510, 514-15.

Gonzales states in his reply brief that even though he did not object to the District Court’s failure to instruct the jury on the “no aggressor” rule, this Court should review the issue as plain error. Gonzales claims this error prevented him from receiving a fair trial because it inhibited his ability to use the defense of justifiable use of force.

We recently clarified the common law plain error rule in State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. We held that we would review claimed errors that implicate a criminal defendant’s fundamental constitutional rights under the plain error rule only sparingly and only where failing to do so might result in a manifest miscarriage of justice, leave the question of the fundamental fairness of the proceedings unsettled, or compromise the integrity of the judicial process. Finley, 915 P.2d at 215.

Here, we conclude that declining to review Gonzales’ challenges to the District Court’s failure to submit alternative jury instructions on the “no aggressor” rule does not rise to the level of a manifest miscarriage of justice, will not leave unsettled the question of the fundamental fairness of the trial or proceedings, nor will it compromise the integrity of the judicial process. See Finley, 915 P.2d at 215; Seyferth v. State (1996), [277 Mont. 377], 922 P.2d 494.

Accordingly, we decline to address the issue of whether the District Court erred when it refused to submit the State’s proposed jury instruction number 15 and defense jury instruction number 1 as alternative jury instructions to the “no aggressor” rule, an issue which Gonzales raises for the first time on appeal.

As an additional argument, Gonzales argues that his counsel was ineffective for declining an instruction on the exceptions to the “no aggressor” rule. This Court reviews claims of ineffective assistance of counsel based on the two-part test adopted in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The defendant must first establish that counsel’s performance was deficient in that counsel did not act within the range of competence demanded of attorneys in criminal cases. Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4. To satisfy the second prong of the test, the defendant must also establish that the deficient performance prejudiced him such that he was deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The defendant must prove both prongs of this test and bears a heavy burden when he desires that his conviction be reversed on the grounds of ineffective assistance of counsel. Leyba, 915 P.2d at 796.

Acts of counsel must stem from neglect or ignorance rather than from informed, professional deliberation in order to be ineffective assistance. State v. Paulson (1991), 250 Mont. 32, 44, 817 P.2d 1137, 1144-45. When defense counsel decides, as a tactical decision, to decline a jury instruction that is not consistent with the defense, this Court will not find that counsel was ineffective. State v. Sheppard (1995), 270 Mont. 122, 890 P.2d 754, 758. This Court will not second-guess trial tactics and strategy. Leyba, 915 P.2d at 797.

The record demonstrates that Gonzales’ defense at trial was that Thompson was the initial aggressor and that Gonzales used the amount of force that he reasonably believed was necessary to defend himself against Thompson. No witness for either the prosecution or defense testified that Gonzales was the aggressor in the fight between Thompson and himself. Witnesses testified that Thompson told people at the bar that he was a karate expert. After hearing Gonzales yell threats at McCallister, Thompson approached Gonzales and hit him in the face. Thompson was fifty pounds larger than Gonzales. Gonzales testified that he was frightened of Thompson and held up the knife in an effort to scare him. When Thompson grabbed Gonzales and the two fell to the floor, Thompson was on top.

The evidence presented at trial is consistent with Gonzales’ defense theory that Thompson was the aggressor. Defense counsel argued in both his opening and closing that Thompson, not Gonzales, was the aggressor. The decision to forego the jury instruction on the exceptions to the “no aggressor” rule was a trial strategy based on informed professional deliberation and was not the result of neglect or ignorance. The fact that this strategy proved unsuccessful does not mean that counsel was ineffective.

We therefore conclude that defense counsel’s performance was not deficient. Because Gonzales has failed to meet the first prong of the Strickland test, we do not address the second.

2. Did the jury reasonably reject Gonzales’ affirmative defense of justifiable use of force?

Gonzales argues that his conviction must be reversed because there was no evidence presented at trial on which the jury could find that he was the aggressor towards Thompson. This is contrary to Gonzales’first position that his conviction should be reversed because the court failed to instruct the jury on the exceptions to the “no aggressor” rule. Gonzales argues that if he was not the aggressor, then his use of the knife was reasonable and reasonable doubt had to be created in the minds of the jury by this defense.

The standard of review for sufficiency of evidence in a criminal conviction is whether, 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.

The defense of justifiable use of force is an affirmative defense and the defendant has the burden of producing evidence sufficient to raise a reasonable doubt of his guilt. See § 45-3-115, MCA; State v. Grady (1975), 166 Mont. 168, 175, 531 P.2d 681, 684. To establish a defense of justifiable use of force, the defendant must prove: (1) that the defendant was not the aggressor; (2) that the defendant reasonably believed that he was in imminent danger of unlawful harm; and (3) that the defendant used reasonable force necessary to defend himself. Arlington, 875 P.2d at 318. Whether the force used was reasonable under the circumstances is a factual determination within the province of the jury. Arlington, 875 P.2d at 314.

Based on the evidence presented at trial, Gonzales does not meet the third prong for the defense of justifiable use of force. When the evidence is viewed in the light most favorable to the prosecution, the jury, as a rational trier of fact, could reasonably conclude that the force Gonzales used against Thompson was unreasonable. Thompson suffered a deep laceration which extended the length of his lower arm. The jury heard evidence that this wound was a defensive-type injury. Thompson also suffered several lacerations to his lower chest and back. Gonzales was not injured after his confrontation with Thompson, other than having a black eye. The jury reasonably concluded that the force Gonzales used against Thompson was excessive.

In summary, we hold that the District Court did not err when it instructed the jury on the defense of justifiable use of force according to Gonzales’ theory of the case — that is, that Thompson was the initial aggressor. Defense counsel was not ineffective for declining an instruction on the exceptions to the “no aggressor” rule, which was consistent with Gonzales’ theory of the case. Finally, the jury could properly find, based on all the evidence presented, that Gonzales did not meet all three requirements for the affirmative defense of justifiable use of force because he did not use reasonable force to defend himself.

Appellant’s conviction is affirmed.

JUSTICES ERDMANN, NELSON and LEAPHART concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s conclusion that the attorney for David Sylvester Gonzales was not ineffective when he objected to the State’s proposed instruction #15 which was essential to the jury’s complete understanding of the law related to justifiable use of force.

Gonzales’s defense was based on his assertion that he was not the aggressor in his altercation with Ronald Thompson. However, it was the State’s theory that Gonzales was the aggressor toward Randy McCallister and that his altercation with Thompson was the result of that act of aggression.

There was evidence from which the jury could find in favor of either the defendant’s theory or the State’s theory. It was, therefore, necessary for the jury to be fully instructed on the law that pertained to justifiable use of force, and in particular, that part of the law which provides a defense to a person who is initially the aggressor, but exhausts every reasonable means to escape danger presented by someone who responds to his aggression.

The majority opinion suggests that to instruct the jury regarding the law which was applicable in the event it found that Gonzales was the aggressor would have been inconsistent with Gonzales’s defense that he was not the aggressor. I disagree.

It was perfectly consistent to argue that even though Gonzales was not the aggressor, if the jury found otherwise he was still entitled to assert justifiable use of force as a defense under limited circumstances. In fact, I conclude that the normal range of competence demanded of criminal defense attorneys required that Gonzales’s attorney be prepared to argue both scenarios. In other words, while it was Gonzales’s position that he was not the aggressor, a reasonable defense required that the jury be informed that if they disagreed with his argument and accepted the State’s argument, it was still entitled to acquit him, in spite of that fact, if it found that there was no reasonable means by which he could have escaped from the danger that Thompson presented.

In this case, the jury was not fully instructed on the law related to the reasonable use of force and there is no way to know whether a complete and correct instruction would have produced a different result. It is sufficient to note that the law provided Gonzales with a defense, whether the jury found that he was the aggressor or was not the aggressor, and he was denied that defense based on his counsel’s objection to the appropriate and necessary statement of law.

I conclude that that objection constituted ineffective representation of counsel, and for that reason would reverse the judgment of the District Court and remand for a new trial with correct instructions on the law.

For these reasons, I dissent from the majority opinion.


author:
JUSTICE NELSON
      JUSTICE NELSON JUSTICE LEAPHART, JUSTICE TRIEWEILER JUSTICE HUNT

text:
    RUSSELL HAUGEN and DONN R. HAUGEN, Plaintiffs and Appellants, v. BLAINE BANK OF MONTANA, a Montana Corporation, WILLIAM LARSEN, GLENN HUESTIS, JOHN DOE 1 and JOHN DOE 2, Defendants and Respondents.
    No. 95-554.
    Submitted on Briefs March 28, 1996.
    Rehearing Denied December 9, 1996.
    Decided October 24, 1996.
    53 St.Rep. 1024.
    279 Mont. 1.
    926 P.2d 1364.

      For Appellant: Thomas S. Winsor, Winsor Law Firm, Helena.
    For Respondent: Ward E. Taleff, Alexander, Baucus, Taleff & Paul, Great Falls; Mark Harshman, Blaine County Attorney, Chinook.
   JUSTICE NELSON

delivered the Opinion of the Court.

Plaintiffs Russell and Donn R. Haugen appeal an order of the District Court for the Seventeenth Judicial District, Blaine County, dismissing their claim for failing to meet the requirements of Rule 41(e), M.R.Civ.P. We affirm.

We address the following issues on appeal:

1. Did the District Court err in determining that Plaintiffs failed to meet the requirements of Rule 41(e), M.R.Civ.P., thereby requiring dismissal of their claim?

2. Did Plaintiffs file their Notice of Appeal in a timely manner?

Factual and Procedural Background

Plaintiffs filed their complaint on August 28, 1992, seeking damages for an alleged unlawful sale of personal property in connection with a sheriff’s sale. The sale was held pursuant to a judgment obtained by Blaine Bank of Montana (Blaine Bank) against Plaintiffs. The Clerk of the District Court of Blaine County issued a summons for each Defendant on July 23,1993, but the summonses were never served.

On September 21,1994, the clerk of court sent a letter to Plaintiffs’ attorney advising him that the case remained open and requesting that some action be taken, if possible, to move the case closer to conclusion. On April 7, 1995, Plaintiffs’ attorney filed a report with the District Court stating Plaintiffs’ intention to activate the file and proceed with their claim. On July 3, 1995, Plaintiffs filed a notice advising the court that their previous counsel had withdrawn and new counsel had been substituted.

Defendants William Larsen and Blaine Bank prepared a Motion to Dismiss for Failure to Prosecute in anticipation of Plaintiffs not perfecting service within three years of filing the complaint. The motion was mistakenly filed on August 24, 1995, a few days prior to the expiration of the three-year period.

At Plaintiffs’ request, the clerk of court issued amended summonses on August 23,1995. The Blaine County Sheriff’s Office served the complaint and summonses upon Defendants Larsen and Blaine Bank on August 25, 1995, and upon Defendant Glenn Huestis, on August 29, 1995. The sheriff returned proof of service for each summons to Plaintiffs’ counsel, as he had been instructed.

On August 29,1995, the District Court dismissed the complaint on the grounds that Plaintiffs failed to file proof of service for each summons with the clerk of court within the three years proscribed by Rule 41(e), M.R.Civ.P. Plaintiffs moved for reconsideration stating that they did not receive proof of service on the three summonses until August 31, 1995, three days after the expiration of the three-year period, and that they mailed the proof of service for each summons to the clerk of court for filing on September 2,1995. The District Court denied Plaintiffs’ Motion for Reconsideration and Plaintiffs appeal.

Issue 1.

Did the District Court err in determining that Plaintiffs failed to meet the requirements of Rule 41(e), M.R.Civ.P., thereby requiring dismissal of their claim?

Our standard in reviewing a district court’s conclusions of law is to determine whether the court’s interpretation of the law is correct. Sinclair v. Big Bud Mfg. Co. (1993), 262 Mont. 363, 366, 865 P.2d 264, 266 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

The District Court dismissed Plaintiffs’ complaint because Plaintiffs failed to file proof of service for each summons with the clerk of court within three years of the commencement of this action. Plaintiffs filed their complaint on August 28, 1992. Under Rule 41(e), M.R.Civ.P., the summonses for all three Defendants should have been served and filed by August 28,1995. However, Defendant Huestis was not served with a summons until August 29,1995. In addition, proof of service upon all three Defendants was not filed with the clerk of court until September 5, 1995. Rule 41(e), M.R.Civ.P. provides in pertinent part:

all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. [Emphasis added.]

Plaintiffs contend that as long as the summonses were served within three years, filing proof of service with the clerk of court is a mere formality and failure to file should not preclude proceeding with their claim. Plaintiffs rely on Livingston v. Treasure County (1989), 239 Mont. 511, 781 P.2d 1129, for this proposition.

In Livingston, the plaintiff filed a complaint on November 27,1985, alleging personal injuries due to the negligence of defendant’s employees. A summons was issued on the same day. Three years later, on November 27, 1988, plaintiff delivered the summons and complaint to the sheriff, who served defendant on that day. Plaintiff did not file proof of service of the summons with the district court until December 20,1988. We held in Livingston that filing proof of service is “simply a ministerial act” and failure to file within three years of the commencement of the action did not require dismissal. Livingston, 781 P.2d at 1131.

Having carefully considered Livingston and other more recent decisions involving Rule 41(e), M.R.Civ.R, we now conclude that our interpretation of this Rule in Livingston was incorrect. As Justice McDonough pointed out in his dissent in Livingston,

[t]he language of the rule clearly and unequivocally requires the dismissal of lawsuits when the return of service fails to be “filed with the Clerk of Court within three years after the commencement of said action.” Such words should be given their plain and ordinary meaning. Section 1-2-106, MCA, Rierson v. State (1980), 188 Mont. 522, 614 P.2d 1020.

Livingston, 781 P.2d at 1131.

In addition, we stated in First Call v. Capital Answering Serv., Inc. (1995), 271 Mont. 425, 428, 898 P.2d 96, 97, that:

It is an oft repeated rule of statutory construction, equally applicable to our interpretation of the rules governing practice and procedure in the courts of this State, that “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Moreover, if the language is clear and unambiguous, no further interpretation is required.

The language of Rule 41(e), M.R.Civ.P., is clear and unambiguous; all actions shall be dismissed unless summons issued within one year “shall have been served and filed with the clerk of the court within 3 years after the commencement of said action.”

We therefore hold that filing proof of service with the clerk of court is not “simply a ministerial act” as we stated in Livingston and we overrule Livingston on that basis.

Furthermore, we reasoned in Livingston that dismissing an action because the plaintiff failed to file proof of service with the clerk of court within the three-year period proscribed by Rule 41(e) was too harsh a result and prejudicial to the plaintiff. On the contrary, permitting a plaintiff to disregard the mandates of Rule 41(e) is prejudicial to the defendant and defeats the'purpose of the Rule which is to promote the diligent prosecution of claims once suit is filed.

In the case before us, Plaintiffs were less than diligent in proceeding with their claim. They filed the complaint two days before the statute of limitations on their claim expired. They did not issue the original summonses until the month before the one-year period dictated by Rule 41(e) elapsed, and they did not attempt to issue amended summonses until one week before the three-year period dictated by Rule 41(e) elapsed.

Moreover, since the three-year period for serving a summons set forth in Rule 41(e) was about to expire, Plaintiffs could have taken any one of several steps to insure that they complied with all of the requirements of that Rule. First, rather than instructing the Sheriff to return proof of service for each summons to Plaintiffs’ counsel, Plaintiffs could have requested that the Sheriff file the proof of service with the clerk of court as soon as service had been accomplished. Second, Plaintiffs could have requested that the Sheriff serve the summonses and return the proof of service to Plaintiffs by a specific date. Third, Plaintiffs could have asked the Sheriff to call them when service was made so that Plaintiffs could pick up the proof of service rather than having the Sheriff mail it to them. And, finally, Plaintiffs could quite simply have issued the amended summonses a few days sooner than they did.

The dissent believes that our decision to overrule Livingston should be applied prospectively only, as it would be an injustice to deny the Plaintiffs the opportunity to present their case before a tribunal of this State. However, as we have just demonstrated, the Plaintiffs had every opportunity to present their claim. It is because of their lack of diligence that they are now precluded from proceeding.

Rule 41(e) has at all times pertinent to this action required that summons be served and filed with the clerk of court within three years of the commencement of the action. Consequently, this is not a question of whether a judicial revision of a procedural rule should have retroactive application, as Rule 41(e) has not been revised. Rather, this is a question of whether a change in the judicial interpretation of a long-existing procedural rule should have retroactive application.

It is an often cited judicial canon that retroactivity “is not favored in the law,” hence “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.” Landgraf v. USI Film Products (1994), 511 U.S. 244, 114 S.Ct. 1483, 1496, 128 L.Ed.2d 229 (quoting Bowen v. Georgetown University Hospital (1988), 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493). However, the United States Supreme Court maintains that “[t]he principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student.” Rivers v. Roadway Express, Inc. (1994), 511 U.S. 298, 114 S.Ct. 1510, 1519, 128 L.Ed.2d 274 (quoting United States v. Security Industrial Bank (1982), 459 U.S. 70, 79, 103 S.Ct. 407, 413, 74 L.Ed.2d 235). “Judicial decisions have had retrospective operation for near a thousand years.” Rivers, 511 U.S. at_, 114 S.Ct. at 1519 (quoting Kuhn v. Fairmont Coal Co. (1910), 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (Holmes, J., dissenting)). Moreover, “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers, 511 U.S. at_, 114 S.Ct. at 1519.

Similarly, this Court has often stated that judicial decisions will be given retroactive effect. Kleinhesselink v. Chevron, U.S.A. (1996), [277 Mont. 158], 920 P.2d 108, 111; Porter v. Galarneau (1996), 275 Mont. 174, 185, 911 P.2d 1143, 1150; State, City of Bozeman v. Peterson (1987), 227 Mont. 418, 420, 739 P.2d 958, 960. To illustrate, in First Call v. Capital Answering Serv., Inc. (1995), 271 Mont. 425, 898 P.2d 96, when called upon to interpret another provision of Rule 41(e), this Court held that dismissals under the Rule are dismissals with prejudice and must be given res judicata effect. In so holding, the Court overruled two prior decisions in direct opposition to the holding in First Call, and remanded the case to the District Court for entry of an order dismissing the complaint with prejudice.

Even if we considered the interpretation of Rule 41(e) in the instant case as a revision of the Rule, that revision could still be applied retroactively under our existing case law. Section 1-2-109, MCA, provides:

When laws retroactive. No law contained in any of the statutes of Montana is retroactive unless expressly so declared.

This Court has repeatedly interpreted the above statute by defining a retroactive law as one that takes away or impairs vested rights acquired under existing laws or creates new obligations or imposes new duties in respect to transactions already past. Castles v. State ex rel Mont. Dept. of Highways (1980), 187 Mont. 356, 360, 609 P.2d 1223, 1225; Matter of Water Rights No. 101960-41S (1991), 249 Mont. 425, 429, 816 P.2d 1054, 1058; Porter, 911 P.2d at 1150. However, this Court has simultaneously pointed out that a statute that modifies the procedure for exercising a vested right or carrying out a duty does not constitute retroactive legislation. Castles, 609 P.2d at 1225; Matter of Water Rights, 816 P.2d at 1058. Although the guiding principle is § 1-2-109, MCA, it has been held that where a statute is procedural, rather than substantive, § 1-2-109, MCA, has no application, and the statute in question will be applied to a cause of action arising before its enactment. Boehm v. Alanon Club (1986), 222 Mont. 373, 377, 722 P.2d 1160, 1162. See Saint Vincent Hosp. v. Blue Cross (1993), 261 Mont. 56, 61, 862 P.2d 6, 9; State Compensation Ins. v. Sky Country (1989), 239 Mont. 376, 379, 780 P.2d 1135, 1137; Weiss by and through Weiss v. State (1986), 219 Mont. 447, 449, 712 P.2d 1315, 1316; State v. District Court of Fourth Judicial District (1966), 148 Mont. 22, 28, 417 P.2d 109, 112. When a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether the suit has been instituted or not, unless there is a saving clause as to existing litigation. Fourth Judicial District, 417 P.2d at 112.

In like maimer, the United States Supreme Court has stated that a retroactive law is one that takes away or impairs vested rights but “[n]o one has a vested right in any given mode of procedure.” Ex parte Collett (1949), 337 U.S. 55, 71, 69 S.Ct. 944, 953, 93 L.Ed. 1207. “Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity.” Landgraf, 511 U.S. at_, 114 S.Ct. at 1502. “Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.” Landgraf, 511 U.S. at_, 114 S.Ct. at 1502.

Hence, both the United States Supreme Court and this Court have repeatedly ruled that judicial decisions, particularly on procedural matters, may be applied retroactively. Moreover, while stare decisis is a fundamental doctrine which reflects our concerns for stability, predictability and equal treatment, stare decisis does not require that we follow a manifestly wrong decision. Formicove, Inc. v. Burlington Northern, Inc. (1983), 207 Mont. 189, 194-95, 673 P.2d 469, 472. The doctrine of stare decisis is not an inflexible rule since previous decisions should not be followed to the extent that error may be perpetuated. State v. State Board of Examiners (1957), 131 Mont. 188, 194, 309 P.2d 336, 340.

Accordingly, we hold that the District Court was correct in dismissing Plaintiffs’ complaint because Plaintiffs failed to file proof of service of summons with the clerk of court within three years of the commencement of this action.

Issue 2.

Did Plaintiffs file their Notice of Appeal in a timely manner?

Defendants contend that Plaintiffs’ appeal in this matter is untimely because the District Court’s order dismissing Plaintiffs’ complaint was filed on August 29, 1995, and Plaintiffs’ Notice of Appeal was not filed until November 8, 1995. Defendants argue that under Rule 5, M.R.App.R, a Notice of Appeal should have been filed within 30 days of the District Court’s order dismissing Plaintiffs’ complaint. Rule 5, M.R.App.P, provides, in part:

(a) Appeals in civil cases.
(1) In civil cases the notice of appeal required by Rule 4 shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from, except that in cases where service of notice of entry of judgment is required by Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service of notice of entry of judgment. ... [Emphasis added.]

Plaintiffs assert that they did not receive a Notice of Entry of Judgment as required by Rule 5, M.R.App.R, and Rule 77(d), M.R.Civ.P. Rule 77(d), M.R.Civ.R, provides, in part:

Notice of entry of judgment or order served. Within 10 days after entry of judgment or an order in an action in which an appearance has been made, notice of such entry, together with a copy of such judgment or order or general description of the nature and amount of relief and damages thereby granted, shall be served by the prevailing party upon all parties who have made an appearance, but any other party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. [Emphasis added.]

As the prevailing party, Defendants should have served Plaintiffs with a notice of entry of judgment. Plaintiffs would then have had 30 days from the service of the notice of entry of judgment to file their Notice of Appeal. Rule 5, M.R.App.P. It is the filing of a notice of entry of judgment that begins the running of the time limit for filing a notice of appeal. In re Marriage of Robertson (1989), 237 Mont. 406, 411, 773 P.2d 1213, 1216 (citations omitted). Since Defendants failed to serve Plaintiffs with a notice of entry of judgment, the 30 days allowed Plaintiffs to file the notice of appeal never began to run. Robertson, 773 P.2d at 1216.

Defendants also contend that Plaintiffs’ motion for reconsideration, filed September 5, 1995 and denied by the District Court on October 13, 1995, did not extend the deadline for filing a Notice of Appeal. Since we have already stated that the time allowed Plaintiffs to file their Notice of Appeal never began to run, there was, thus, no need for an extension. We nevertheless address Defendants’ contention to further clarify this issue.

Under Rule 5(a)(4), M.R.App.R, a Notice of Entry of Judgment is not required to begin the running of the time for filing a Notice of Appeal when a motion has been made under Rules 50(b), 52(b), or 59, M.R.Civ.P. When a timely motion under any of these rules is filed in the district court by any party,

the time for appeal for all parties shall ran from the entry of the order denying a new trial or granting or denying any other such motion, or if applicable, from the time such motion is deemed denied at the expiration of the 45-day [now 60-day] period established by Rule 59(d), Montana Rules of Civil Procedure.

Rule 5(a)(4), M.R.App.P.

Amotion for reconsideration is not one of the motions referred to in Rule 5(a)(4), M.R.App.P. In fact, a motion for reconsideration is not one of the post-judgment motions provided for, or authorized, by the Montana Rules of Civil Procedure. Taylor v. Honnerlaw (1990), 242 Mont. 365, 367, 790 P.2d 996, 997-98 (citing Anderson v. Bashey (1990), 241 Mont. 252, 254, 787 P.2d 304, 305).

This Court has previously stated that a motion for reconsideration will not be equated to a Rule 59(g) motion to alter or amend a judgment unless the substance of the motion constructively requests the court to alter or amend the judgment. Miller v. Herbert (1995), 272 Mont. 132, 135-36, 900 P.2d 273, 275. Instead, we will look to the substance of the motion to identify what motion has been presented. Miller, 900 P.2d at 275. Since Plaintiffs’ motion for reconsideration is not one of the motions contemplated by Rule 5(a)(4), M.R.App.R, the 30-day limit allowed Plaintiffs to file their Notice of Appeal would not have begun to ran with the denial of this motion. Robertson, 773 P.2d at 1216-17.

Accordingly, we hold that Plaintiffs did file their Notice of Appeal in a timely manner.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN and GRAY concur.

JUSTICE NELSON

specially concurs.

I agree with Justice Trieweiler’s dissent in one respect. This case is about fairness. It is about the fairness inherent in simply applying the rules of civil procedure as they are written, instead of interpreting them in some strained fashion so as to allow one party to disregard the rules at the expense of the other party. The rules of civil procedure are not written to secure a tactical advantage to either the plaintiff or the defendant; rather, they are written to regulate the course of litigation, to level the playing field, and to move a lawsuit forward at something more than the glacial speed. The rules are there for both parties to read and to follow. If lawyers choose to conduct their practices in the eleventh hour, then neither they nor their clients should be particularly surprised when, whether through dalliance, neglect or lack of attention to the time limits clearly set forth in the rules, time eventually runs out.

Characterizing and dismissing the majority’s legal analysis as “sanctimonious,” “pontification” and “mumbo-jumbo,” while lending nothing to the development, to the understanding or to the exposition of the law, does reaffirm the uninformed and pervasive perception that many members of the public already have of lawyers, courts and judges as doing little more than dancing on pin heads. Moreover, this sort of sound-bite legal writing is guaranteed to provide easy copy for the press, editorial writers and talk-show hosts — especially those who could care less about reading, much less fairly and intelligently reporting, the opinion when there is a dissent full of one-liners to quote. However, it is precisely this sort of rule-from-the-gut and shoot-from-the-hip approach that produces result-oriented decisions like Livingston. That aside, until some higher power grants this writer the authority and omniscience to split the baby on some basis other than what, in this case, the rule clearly requires, I would rather simply apply the law as it is written, whether that is an intellectually detached exercise or not, and leave ruling from the gut to others.

Finally, contrary to the dissent, it is not the majority opinion that has denied these litigants their day in court but, rather, it is the litigants’ own failure to pursue their lawsuit with diligence and within the time limits unambiguously set forth in Rule 41(e). If those time limits or the requirements of the rule serve nothing more than to impose meaningless barriers to litigation, as the dissent seems to believe, then the rule should be changed. Unless and until it is however, Blaine Bank and Larsen have as much right to rely on this rule in their effort to avoid the expense and time of defending Haugens5 lawsuit — a suit of questionable merit, in any event, given our prior decisions in Blaine Bank of Montana v. Haugen (1991), 249 Mont. 381, 816 P.2d 447, and in Blaine Bank of Montana v. Haugen (1993), 260 Mont. 29, 858 P.2d 14 — as Haugens had in bringing suit and in prosecuting this cause of action in the first place.

JUSTICE GRAY joins in the foregoing special concurrence.

JUSTICE LEAPHART,

dissenting.

I would not overrule Livingston v. Treasure County (1989), 239 Mont. 511, 781 P.2d 1129; therefore, I dissent from this Court’s opinion and would hold that the District Court erred in dismissing the Haugens’ claim for failing to file the return of service within the three-year time limit of Rule 41(e), M.R.Civ.P.

In Livingston, the Court recognized that the purpose of Rule 41(e), M.R.Civ.P, is to ensure that actions are timely prosecuted. The Court then went on to explain how service of the summons is “indispensable to the timely prosecution of an action ....” The Livingston Court also acknowledged that: “Filing the return, on the other hand, is simply a ministerial act.... It is filed with the court only to document on the record the fact that service has been completed.” The Court concluded that, “summary dismissal of this lawsuit for failure to file the return is not appropriate.’’Livingston, 781 P.2d at 1130-31. I believe that the rationale of Livingston is sound and I would not overrule that decision.

Furthermore, it is patently unfair to overrule Livingston as it applies to the Haugens. The Haugens relied on our holding in Livingston. The Court reasons that adherence to Livingston prejudices the defendant and defeats the purpose of the Rule which is to promote diligent prosecution of claims once suit is filed. I fail to see how adherence to Livingston prejudices the defendant. Here, as in Livingston, the defendant has been served with process. It is that service of process (not the filing of the return of service) that triggers subsequent procedural steps such as the filing of the answer, Rule 12(a), M.R.Civ.P, or motions to substitute a judge under §§ 3-1-804 et seq., MCA. Thus, although it can be argued that failure to serve the summons and complaint within the proper time frame hinders the diligent prosecution of claims, the same cannot be said of failure to file the return of service. Whatever prejudice to the defendant that might arise from such a failure is more than outweighed by the prejudice to the plaintiff when the rationale of Livingston is overruled and he finds that he is forever barred from litigating his claim.

The majority relies on First Call, Inc. v. Capital Answering Service, Inc. (1995), 271 Mont. 425, 428, 898 P.2d 96, 97, for the proposition that this Court now follows a strict statutory interpretation of Rule 41(e), M.R.Civ.R However, First Call involved a failure to serve the summons not merely a failure to file the proof of service as in Livingston and the present case. The factual similarity between this case and Livingston gave the Haugens cause to rely on its precedent. Furthermore, although two other decisions were overruled in First Call, Livingston was not one of them. This further justifies the Haugens’ reliance on Livingston.

Additionally, the commissioner’s notes to Rule 41(e), M.R.Civ.R, state that Rule 41(e) was amended in 1993 to comport with the mandate in Livingston. In Livingston the Court directed the legislature to conform the Montana Rule to the Federal counterpart which did not require return of service within three years. At the time of Livingston, Federal Rule 4(g), F.R.Civ.P., stated that the “[f] ailure to make proof of service does not affect the validity of the service.” Although the 1993 amendment to Montana Rule 41(e), M.R.Civ.R, did not accomplish the directive set forth in Livingston, (the Rule still requires that the summons be “served and filed with the clerk” within three years) the commission comments indicate that the amendment conforms Rule 41(e) to Livingston. These comments, although incorrect, gave the Haugens all the more reason to believe that Livingston was still good law. Haugens should not be thrown out of court for having relied on our decision in Livingston.

The decision to overrule Livingston should be applied prospectively only. While “|j]udicial decisions have had retrospective operation for near a thousand years,” (citing Kuhn v. Fairmont Coal Co. (1910), 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228, 239 (Holmes, J. dissenting)) that retroactivity is based, in large part, on the fact that “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Exp., Inc. (1994), 511 U.S. 298,_, 114 S.Ct. 1510, 1519, 128 L.Ed.2d 274, 288-89.

Retroactive application makes sense when a court is interpreting the statute for the first time, and is making a declaration of what the statute means now, as well as what it meant before the decision. However, retroactive application makes little, if no, sense when a court is overruling a prior decision which rendered an interpretation of that statute directly contrary to the present interpretation. In such circumstances, although a court may be declaring the meaning of the statute for future purposes, it cannot be said that the court is now declaring what the statute meant before the present decision. On the contrary, for the seven years immediately preceding the present decision, Rule 41(e), as interpreted by this Court in Livingston, did not require that the retrun of summons be filed within the three-year time limit. The traditional justification for retroactively applying this new “authoritative statement” of the law to the Haugens is absent.

An exception to the general rule of retroactive application of judicial decisions should be invoked to prevent manifest injustice when, as here, a plaintiff is denied his day in court for having relied on judicial interpretations of procedural rules.

The United States Supreme Court has recognized that the general rules of prospective and retrospective application of statutes and administrative rules may be suspended where injustice would be worked by their application in a particular case. See Thorpe v. Housing Authority of Durham (1969), 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (recognizing an exception to the rule that appellate courts must apply the law in effect at the time it renders its decision to prevent manifest injustice); Landgraf v. USI Film Products (1994), 511 U.S. 244,_, 114 S.Ct. 1483, 1502 n.29, 128 L.Ed.2d 229, 258 n.29 (recognizing a “common-sense” exception to retroactive application of procedural rules, even those explicitly requiring retroactive application, so as not to work injustice, as in the case where “[a] new [procedural] rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime ...”).

The Haugens understandably relied on the “old regime,” that is, this Court’s interpretation of Rule 41(e) in Livingston and, as a result, were denied the opportunity to present their case before a tribunal of this state. To avoid this injustice suffered by the Haugens, this Court should invoke an exception to the general rule of retroactive application of judicial precedents and apply this decision prospectively only.

JUSTICE TRIEWEILER and JUSTICE HUNT join in the foregoing dissent.

JUSTICE TRIEWEILER

dissenting.

I concur completely with the dissenting opinion authored by Justice Leaphart.

I write separately to respond to the majority’s observation that its result is justified by its analysis of prior case law. If it was this Court which erred in Livingston v. Treasure County (1989), 239 Mont. 511, 781 P.2d 1129, where is it written that these litigants must suffer the consequences of its mistake?

To me, the issue presented in this case is not what “authority” this Court has, based on what prior cases said under different factual situations about the retroactive application of judicial decisions. The issue presented in this case relates to simple notions of fairness, common sense, and respect for the members of the legal profession. The majority opinion shows a total disregard for any of these concerns.

In the past, this Court has told attorneys that although service of the summons and complaint must be completed within three years from the date on which a complaint is filed, filing proof of that service is a mere ministerial act, and failure to accomplish filing of that document within three years does not require dismissal of the complaint. Livingston, 239 Mont. at 513, 781 P.2d at 1130-31. Attorneys who understand this Court’s role in fashioning rules of civil procedure, as well as its responsibility for interpreting them, had every bit as much reason to rely on that decision as they did on the literal language of Rule 41(e), M.R.Civ.P. Indeed, this same majority would be disappointed to learn that its decisions were ignored by the legal profession.

Now, without the prior notice that the majority considers so important before even the most trivial amendment to the rules of procedure, the majority concludes that this Court was wrong when it decided Livingston.

The majority says to practicing attorneys that if you relied on what we said in that case, it is too bad for you. Your client is out of court with no recourse. The merits of your client’s case make no difference to us.

No amount of pontification by the majority about retroactive application of judicial decisions can disguise its callous disregard for the rights of the litigants in this case. Cutting through the legal mumbo-jumbo in the majority opinion, the practical effect of its decision is simply indefensible based on any notions of fairness, common sense, or respect for the legal profession.

According to the majority opinion, this Court previously misled attorneys by its decision in Livingston, and although we normally expect our opinions to be followed by the legal profession, it is too bad for them if they followed that decision. If private individuals engaged in similar conduct, we would be quick to invoke principles of estoppel to prevent the same injustice that has occurred in this case. It is disappointing, to say the least, that this Court demands less of itself than it expects from private citizens in the conduct of their private affairs.

Equally disturbing is the intellectual detachment from reality represented by Justice Nelson’s concurring opinion. It suggests that the majority does not have the foggiest notion what this case is really about. It speaks of one party disregarding rules “at the expense of the other party.” It talks about “tactical advantages.” It proclaims the need to “level the playing field,” and “move a lawsuit forward.” It never does explain, however, just exactly what the sheriff’s return of service has to do with any of these lofty goals.

For the majority’s information, what we are talking about in this case is simply the time at which the affidavit of a process server is filed with the clerk of court. The affidavit serves absolutely no practical purpose unless at some point in the future some party disputes having been served with process. The failure to file it prejudices no one and provides neither party with a tactical advantage. The date on which the affidavit is filed has nothing to do with the progress of litigation. In fact, if the affidavit is never filed it would make absolutely no difference to anyone.

What we are talking about in this case is the ultimate example of exalting form over substance. However, what is particularly offensive about the majority’s purely intellectual exercise is that it comes at the expense of innocent people who were previously misled by the majority to believe that what they did was okay. The author of the majority opinion can excoriate the plaintiffs and their attorney as vitriolically as he wants, but cannot change the fact that they did exactly what they were told by this Court they could do. In all of the author’s hyperbole, there is no mention of right and wrong.

If the sanctimonious approach represented by the concurring opinion is what “real law” is all about, then this Justice would rather “rule from the gut.” However, if it is any comfort to the author of the majority opinion, I doubt that this Court’s decision regarding return of service will generate much interest from the press, or from anyone else, other than the parties affected.

For these reasons, in addition to those expressed in Justice Leaphart’s dissenting opinion, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissenting opinion.

JUSTICE HUNT

dissenting.

I concur with everything that is said in the dissents of Justice Leaphart and Justice Trieweiler and make the following additional points.

I. Refusing relief for such a minor error does not comport with the law’s strong preference for trial on the merits.

As the other dissenters have so ably pointed out, the error complained of in this case is a truly minor one. As in Aesop’s Fables, the majority like the mountain gave a mighty rumble and, as in the fable, out came a mouse. The mouse in this case is the failure to document for the record the accomplishment of service of process, since the case does not address or affect the propriety of the service itself. Since the error alleged is obviously a purely procedural one, it should not out-weigh this Court’s oft-stated preference for a trial on the merits. As we have explicitly stated, “[t]he policy of the law is to favor a trial on the merits.” Hoyt v. Eklund (1991), 249 Mont. 307, 311, 815 P.2d 1140, 1142. See also Johnson v. Murray (1982), 201 Mont. 495, 513, 656 P.2d 170, 179 (Justice Shea, dissenting).

In an analogous case, Justice Bistline of Idaho dissented from a majority decision to forcefully remind the Idaho Supreme Court of its mandate:

[I]t has been well understood for over forty years that the policy of the Supreme Court has been, and hopefully will be, to foster the determination of legal controversies with the goal of administering justice. ...
It has long been judicial policy in Idaho that controversies be determined and disposed of each on its own particular facts and as substantial justice may require. The exercise of judicial discretion should tend to bring about a judgment on the merits. ... There is, of course, a strong public policy in favor of hearing appeals on their merits and of not depriving a party of his right of appeal because of technical noncompliance where he is attempting to perfect his appeal in good faith.

Gubler v. Boe (Idaho 1991), 815 P.2d 1034, 1039-40 (Justice Bistline, dissenting; citations omitted). Such a reminder is appropriately given to this Court as well. As the California Court of Appeals noted:

trial of a cause of action on the merits is the cornerstone of our justice system and it is no wonder the law looks with disfavor on dismissal for procedural default. Such dismissal is even harder to swallow when the default is a mere technicality and the record evinces no intent by the appellants to willfully disrespect the court.

Pacific Lining Co. v. Raging Waters, Inc. (Cal.Ct.App. 1991), 282 Cal.Rptr. 769, 781 (citation omitted).

The error complained of here is a mere technicality if there ever was one, and neither party suggests it was accomplished in an attempt to show disrespect either to the District Court or to this Court. With the foregoing in mind, I cannot see how tossing out an entire case before the merits are even approached, much less addressed, can be reconciled with the goal of administering justice.

II. Refusing relief for such a minor error denies substantial justice.

While the policy favoring a trial on the merits may be just that — a general policy — its underlying rationale is that every party who in good faith approaches a court of law is entitled to substantial justice. In Montana, the mandate that substantial justice be done is most often seen and most clearly articulated in cases which seek to set aside defaults and cases which seek to exercise long-arm in personam jurisdiction over out-of-state parties. See, respectively, In re Marriage of Shikany (1994), 268 Mont. 493, 887 P.2d 153; and In re Marriage of Lewis (1989), 239 Mont. 505, 784 P.2d 897. However, it is obviously a policy which is equally applicable in all cases. Certainly, no one would argue that any case is of so little import that substantial justice need not be done. Yet it has not been done in this case. Instead, the majority has used this minor procedural point to punish a party for almost missing deadlines in the past, an occurrence which is neither erroneous nor worthy of punishment. Furthermore, the very first rule of civil procedure dictates that the rules “shall be construed to secure the just, speedy, and inexpensive determination of every action.” Rule 1, M.R.Civ.P. (emphasis added). This too alludes to the indispensable and time-tested rule that courts must pursue substantial justice.

Where is the substantial justice in the majority’s disposition of this case? If we were addressing a rule of some importance, which many parties are ignoring and the disregard of which is adversely affecting the administration of justice by causing delay or clogging up the court systems, I could see the need to draw a firm line and make one transgressor an example to others who might contemplate the same actions. However, that is not the situation with which we are faced today. Instead, a party has been deprived of its day in court because of a minor technical error which did not, in and of itself, prejudice the other party in the least. I cannot agree with such a result.

III. Factual “close calls” and the benefit of hindsight in this case are irrelevant to deciding the legal issue presented.

The majority opinion makes much of the fact that the Haugens have closely approached various deadlines in the past, filing the complaint two days before the deadline for filing; issuing the original summons 30 days before the deadline; and issuing the amended summons one week before the deadline. I fail to see the relevance of these comments. In fact, the Haugens had never missed a deadline in the case until the minor procedural one which is at issue here. While they may have filed other documents later rather than sooner in the various periods allotted, they were free to file those documents at any time before the deadline — be it one year, one month, one day, or one horn. The majority seems to suggest that leaving such matters he for a time will come back to haunt the parties, because this Court will infer neglect and prejudice even if the filing deadlines are in fact complied with. This is an unnecessary, misleading, and erroneous implication.

The majority also notes the ease with which this error could have been avoided. This is also largely irrelevant. Hindsight is 20/20, and it is safe to assume that if the Haugens or their counsel had foreseen how this minor error would impact their case, they would have taken hasty and appropriate steps to prevent it from occurring. Clearly, the step of filing the summons with the clerk of court was simply forgotten. Therefore, it doesn’t matter how easily the Haugens could have prevented this result had they remembered the step. In fact, due to the confusion in switching lawyers, it was inadvertently omitted. I find it ironic that the majority is not willing to cut the Haugens any slack in consideration of how minor this procedural point really is. It is, however, willing to condemn them further for the “ease” with which it might have been avoided, based on the presupposition that the error sprang from willful negligence instead of inadvertent neglect— a presupposition which is wholly unsupported by the record.

In short, the majority may be following the black letter of the law in refusing to allow this case to proceed, but it has not heretofore been the general policy of this Court to rigidly adhere to that black letter at the obvious expense of equity and fairness. If, as I fear, this case stands for the proposition that form will now be exalted over substance and procedure over the merits, it appears that the rumblings in the majority opinion have given the fabled mouse far greater significance than Aesop ever intended.

JUSTICES TRIEWEILER and LEAPHART concur in the foregoing dissent.


text:
    MARY ANN GILLISPIE, Petitioner, v. JUDGE JEFFREY SHERLOCK, Montana First Judicial District Court, CHUCK O’REILLY, Lewis and Clark County Sheriff, Respondents.
    No. 96-237.
    Ordered June 4, 1996.
    53 St.Rep. 507.
    279 Mont. 21.
    929 P.2d 199.
   ORDER AND OPINION

Mary Ann Gillispie (Gillispie) filed a petition for writ of habeas corpus after she was found in contempt of court and incarcerated for an indefinite period by the First Judicial District Court, Lewis and Clark County, for failing to file state income tax returns. The Montana Department of Revenue filed a response. We note that a contempt proceeding may be reviewed under a petition for writ of habeas corpus if the person seeking review is incarcerated at the time of filing the petition for writ of habeas corpus. Crane v. State (1982), 200 Mont. 280, 283, 650 P.2d 794, 796.

The issue presented for review is whether the District Court had jurisdiction pursuant to §§ 15-30-316 and 3-1-501 through -523, MCA, to imprison Gillispie for civil contempt of court until she filed her Montana Individual Income Tax returns.

Background

In August and September 1995, pursuant to § 15-30-316, MCA, the Montana Department of Revenue (the Department) sent Mary Ann Gillispie two demand and notice letters demanding tax returns for the years 1991 through 1994. On December 11,1995, the Department filed a petition to show cause with the First Judicial District Court, Lewis and Clark County, requesting a hearing at which Gillispie, a Montana resident, must show cause why she had failed to file 1991, 1992, 1993 and 1994 Montana Individual Income Tax returns. On December 18, 1995, the court ordered Gillispie to file her returns or to show cause for her failure to do so, and set a hearing for February 2, 1996.

At the hearing, Gillispie appeared pro se and argued that she did not have to file tax returns or be considered a taxpayer. The Department introduced W-2 forms as evidence that Gillispie’s incomes for the years 1991 through 1994 were $19,886, $21,535, $20,580, and $22,934, respectively. The District Court found on February 2, 1996, that Gillispie had failed to file Montana Individual Income Tax returns for 1991 through 1994 as required by § 15-30-142, MCA, and ordered Gillispie to file her returns by March 3, 1996. On March 29, 1996, the Department moved that Gillispie be found in contempt of court for not obeying the order.

At the contempt hearing, the court informed Gillispie that she could either sign a Department stipulation that she would file the returns or go to jail until she agreed to file them. Gillispie refused to sign the stipulation or file the returns, claiming that to do so would violate her Fifth Amendment right against self-incrimination. On May 9, 1996, the District Court, citing § 15-30-316 and §§ 3-1-501 through -523, MCA, as authority, found Gillispie in contempt of court for failure to file returns and ordered her confined in the Lewis and Clark County Jail until she filed the returns. On the same day, Gillispie filed a petition for writ of habeas corpus with this Court.

Discussion

Did the District Court have jurisdiction pursuant to §§ 15-30-316 and 3-1-501 through -523, MCA, to imprison Gillispie for civil contempt of court until she filed her Montana Individual Income Tax returns?

This Court’s review of contempt proceedings is limited to whether the lower court had jurisdiction to issue the contempt order and whether there is evidence to support the order. State ex rel., Foss v. District Court (1985), 216 Mont. 327, 701 P.2d 342.

Section 15-30-316(7), MCA, grants a district court jurisdiction to order a taxpayer to file a tax return. The statute also gives the district court jurisdiction to find a person not complying with such an order in contempt. The statute states:

Upon finding by a preponderance of the evidence that the taxpayer has not filed the return or report as required by law, the court may issue a further order compelling the filing of the return or report, and the taxpayer’s failure to comply with the order may thereafter be proceeded against as a contempt.

Courts have the power to enforce their judgments, orders or process through their power of contempt. This power, conferred by Article VII, Section 1 of the Montana Constitution, is also enumerated in §§ 3-1-501 through -523, MCA. A court may sua sponte find a person in contempt of court. State v. Abrams (1984), 209 Mont. 508, 680 P.2d 585. A contempt proceeding may be either civil or criminal. See §§ 3-l-501(l)(e) and (2), and 45-7-309, MCA. A district court has jurisdiction to issue a contempt order. See § 3-5-302, MCA.

Gillispie’s contempt of court is civil contempt. Gillispie refused to comply with a valid district court order requiring her to file Montana tax returns. The District Court used its contempt authority, as enumerated in the Montana Constitution and in §§ 3-1-501 through -523, MCA, to enforce its order. We conclude that the First Judicial District had jurisdiction to order Gillispie to file her tax returns and also had jurisdiction to find her in civil contempt for refusing to do so.

We now determine whether there was sufficient evidence to support the District Court’s contempt order. Gillispie’s obligation to file tax returns is clear from the record. For each of the years 1991, 1992, 1993, and 1994, Gillispie received a gross income in excess of the minimum amount established under § 15-30-142, MCA. In its petition for order to file individual tax returns, the Department submitted evidence that Gillispie, a Montana resident, earned gross income of $19,886, $21,535, $20,580, and $22,934, respectively, for the years 1991 through 1994.

Section 15-30-142, MCA, requires an individual to file a tax return. Section 15-30-142(1), MCA, states in part:

Each single individual and each married individual not filing a joint return with a spouse and having a gross income for the tax year of more than $1,500, as adjusted under the provisions of subsection (7), and married individuals not filing separate returns and having a combined gross income for the tax year of more than $3,000, as adjusted under the provisions of subsection (7), are liable for a return to be filed on forms and according to the rules that the department may prescribe.

There is sufficient evidence to support the District Court’s civil contempt order. Gillispie had gross income sufficient to require her to file tax returns as required by § 15-30-142, MCA. Pursuant to § 15-30-316(7), MCA, the District Court had the power to hold Gillispie in contempt of court to compel her to file tax returns as required by law.

One possible defense to the contempt proceeding against Gillispie is that a contemner’s inability to perform an act required by the court is a defense to contempt. See State v. Second Judicial Dist. Court (1935), 99 Mont. 209, 41 P.2d 1113. However, the District Court, in its warrant of commitment, made a specific finding that Gillispie was able to file her returns. Because Gillispie has the ability to file her tax returns or to sign a stipulation agreeing that she will do so at a specific later date, Gillispie has no defense for her contempt of court.

Gillispie argues that her Fifth Amendment right against self-incrimination was violated when she was required to either file her Montana tax returns or face contempt of court. We disagree.

The privilege against self-incrimination does not justify an outright refusal to file any income tax return at all. United States v. Sullivan (1927), 274 U.S. 259, 263, 47 S.Ct. 607, 607, 71 L.Ed. 1037, 1039. “[Adefendant cannot] draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.” Sullivan, 274 U.S. at 264, 47 S.Ct. at 603, citing Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed.2d 1198.

The Fifth Amendment privilege against self-incrimination cannot be used as a method of evading payment of lawful taxes. Edelson v. C.I.R. (9th Cir. 1987), 829 F.2d 828, 832. The privilege against self-incrimination does not justify a complete failure to file a return and may be asserted on a filed return only in response to specific questions on the return. United States v. Leidendeker (9th Cir. 1986), 779 F.2d 1417, 1418.

Gillispie cannot use the Fifth Amendment as a shield justifying her refusal to file her Montana income tax returns. She must demonstrate the specific portions of the returns which would result in self-incrimination. The Fifth Amendment is not a justification for failing to file tax returns at all.

Conclusion

The District Court had jurisdiction to find Gillispie in civil contempt for failing to file her tax returns. Sufficient evidence supports the court’s findings that Gillispie had gross income requiring her to file tax returns. The court did not abuse its discretion when it exercised its contempt power and ordered Gillispie to be imprisoned in the Lewis and Clark County Jail until she filed her 1991, 1992, 1993 and 1994 Montana Individual Income Tax returns. Furthermore, Gillispie cannot use the Fifth Amendment as a means to evade filing her returns.

IT IS THEREFORE ORDERED that Gillispie’s petition for Writ of habeas corpus is denied.

DATED this 4th day of June, 1996.

/S/ J. A. TURNAGE, CHIEF JUSTICE

/SI KARLA M. GRAY, JUSTICE

IS/ CHARLES E. ERDMANN, JUSTICE

IS/ WILLIAM E. HUNT, SR, JUSTICE

IS/ JAMES C. NELSON, JUSTICE

/S/ W. WILLIAM LEAPHART, JUSTICE

JUSTICE TRIEWEILER

dissents from the Court’s order and opinion for the following reasons:

Mary Ann Gillispie had a right to counsel at the hearing which resulted in her imprisonment. If she could not afford to retain counsel she had a right to have one appointed to represent her at public expense. The District Court made little or no effort to determine whether she could afford to retain her own attorney. Therefore, I would grant her petition, order that she be released immediately, and remand this case for further proceedings to determine whether she is, in fact, entitled to the appointment of a public defender.