author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAKE STONE, Defendant and Appellant.
    No. 93-243.
    Submitted on Briefs July 6, 1994.
    Decided August 30, 1994.
    51 St.Rep. 790.
    266 Mont. 345.
    880 P.2d 1296.

      For Appellant: Dan Yardley, Yardley & Yardley, Livingston.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; and William Neis Swandal, Park County Attorney, Livingston.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Jake Stone, was charged by information filed in the District Court of the Sixth Judicial District in Park County with two counts of aggravated assault pursuant to § 45-5-202(1), MCA (1991). Following a jury trial, he was found guilty of one count of aggravated assault and one count of felony assault pursuant to § 45-5-202(1) and (2)(a), MCA. The District Court denied Stone’s motion for a new trial. Stone appeals that order of the District Court. We affirm the District Court.

The only issue presented on appeal is whether the District Court properly instructed the jury regarding the defense of justifiable use of force.

FACTUAL BACKGROUND

On October 28, 1992, Jake Stone and his wife, Deborah Wilson, stopped at the Wapiti Bar in Gardiner. Sometime after their arrival, the owner of the bar asked them to. leave due to their disruptive behavior. At approximately the samé time, Ron Dodson and Terry Peters left the bar. Dodson and Stone had, just prior to leaving the bar, exchanged verbal insults, and while exiting toward their vehicles, became involved in a physical altercation.

There were several witnesses at the scene. Testimony at trial indicated that Dodson’s friend, Terry Peters, attempted to break up the fight. As the altercation began to subside, Stone grabbed a pipe two inches in diameter and two feet long from his truck and more struggling ensued. A bystander, Dean Birgsing, joined in the attempt to wrestle the pipe from Stone. Another bystander, Les Kellem, pulled the pipe away, declaring that if there was to be a fight, they “didn’t need no damn pipe.” As Dodson, Peters, and Stone began to disperse for the second time, Stone retrieved another pipe from his truck and struck Peters in the leg and head “as if he was swinging a bat.”

Meanwhile, Dodson retrieved a tire iron from his vehicle and threw it in the direction of Deborah Wilson, but did not hit her. Dodson then began to enter his vehicle and Stone attacked him with the pipe. A witness testified that Dodson attempted to protect himself by covering his face with his hands as Stone struck him in the head. Dodson scrambled under the vehicle. Stone left the scene with his wife before the sheriff and ambulance arrived. He received no serious injuries. Both Peters and Dodson were seriously injured as a result of Stone’s attacks.

At trial, Stone asserted justifiable use of force as an affirmative defense. He claimed that his actions were necessary to prevent being seriously harmed himself. He claimed that Dodson and Peters had ganged up on him and that he feared for his life. The jury found Stone guilty of the felony assault of Dodson, and guilty of the aggravated assault of Peters.

Stone moved for a new trial based on his assertion that the jury instructions on justifiable use of force contained an “absolute statement” which implied that a person who is himself the aggressor cannot claim justifiable use of force. He further alleged that this misstatement of the law confused the jury, as indicated by their questions to the judge.

Montana allows a person to use force to defend himself or herself in a degree commensurate with the threat of harm the person faces. See § 45-3-102, MCA. However, § 45-3-105(2), MCA, provides that the defense is not available to a person who has purposely or knowingly provoked the use of force against himself, i.e., an aggressor. The exception to this rule appears in subparagraphs (2)(a) and (b) of that same statute. Thus, an aggressor may not claim the defense justifiable force, 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.

Section 45-3-105(2)(a) and (b), MCA (emphasis added).

The law in Montana with regard to jury instructions on justifiable use of force is well-settled. The statutes upon which the Montana Criminal Jury Instructions (MC JI) are based have not changed since their enactment as part of the Revised Criminal Code of 1973. The only deviation between the MCJI and the statutes occurs with the additional language suggested by Justice Sheehy in State v. Graves (1981), 191 Mont. 81, 96, 622 P.2d 203, 211-12 (Sheehy, J., concurring), to supplement the “bare” language of § 45-3-102, MCA. The instructions given to the jury regarding justifiable use of force were as follows:

INSTRUCTION NO. 19

A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force 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 or another.

INSTRUCTION NO. 20

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) Defendant must not be the aggressor;
2) The danger of harm to the defendant must be a present one, not merely threatened at a future time, or 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) Defendant’s belief, in each of the aspects described, is reasonable even if it is mistaken.
You are further advised that even if you determine 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.
INSTRUCTION NO. 21
You are instructed that 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 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.

These instructions are closely patterned after MCJI 3-102, 3-115(a), and 3-105, and with the exception of the good faith withdrawal exception found at § 45-3-105(2)(b), MCA, completely represent the law on justifiable use of force in Montana, including the Graves instruction. “If the instructions, reviewed as a whole, fully and fairly present the law to the jury, the jury has been properly instructed.” State v. Hall (1990), 244 Mont. 161, 172, 797 P.2d 183, 190. In this case, the judge instructed the jury to “consider the instructions as a whole ...” on two separate occasions. Thus, the jury was admonished to read the language “defendant must not be the aggressor” with the language of Jury Instruction No. 21 setting forth the circumstances that an aggressor may claim the defense. If the jury found that the defendant was the aggressor, according to the instructions, they were required to determine whether he had exhausted every reasonable means to escape the use of similarly aggressive force against himself. See Jury Instruction No. 21 and § 45-3-105(2)(a), MCA. As we stated in Graves:

[T]he test to be applied when error is predicated on a jury instruction is whether, when the instruction is considered as a part of the whole body of instructions, the instruction is prejudicial to the appealing party ....
Tn determining the effect of given instructions,... if they fairly tender the case to the jury, the fact that one instruction, standing alone, is not as full or accurate as it might have been is not reversible error.’ ”

Graves, 622 P.2d at 210-11 (quoting State v. Reiner (1978), 179 Mont. 239, 244-45, 587 P.2d 950, 953-54). We find that the jury instructions, when read as a whole, accurately represent the law of justifiable use of force; that there was no prejudice to Stone; and that the jury was properly instructed in this case. However, for future guidance we suggest that where there is evidence to support instructing the jury on one or both of the exceptions found at § 45-3-105(2)(a) and (b), MCA, that a paragraph like subparagraph (1) of Instruction No. 20 not be given out of context, but be read in combination with the statute’s exceptions so that the instruction is clearer to the jury.

Stone further argues that questions sent to the judge from the jurors indicate confusion and misunderstanding of the law, implying that the jury verdict should be impeached. The questions were as follows:

JURY: Re Instruction #20. Must all 5 requirements be met in order to be justified? If not, which ones must be met in order to be justified in self defense?
JUDGE: The answer to your question is yes, but remember all the instructions are to be considered ¡together.

Later, the jury submitted this question:

JURY: We all agree on #1 that the defendant is the aggressor. At this point we are not agreed on the other 4. Does our agreement on point #1 make the defendant legally not justified, as he can’t meet all 5 requirements on this Instruction #20?
JUDGE: I cannot answer your question any further.

Rule 606(b), M.R.Evid, prohibits exploring the mental processes of jurors except for limited situations which are not present in this case.

Without exploring the jurors’ states of mind, and based on the record available, the decision to grant a new trial was within the District Court’s discretion. Absent a clear abuse of discretion, we will not disturb that decision on appeal. State v. Arlington (1994), 265 Mont. 127, 875 P.2d 307, 321,

We conclude that the jury instructions, when considered together, fairly instructed the jury regarding justifiable use of force, and that the District Court did not abuse its discretion when it denied defendant’s motion for a new trial.

We affirm the judgment of the District Court.

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


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    EARL DESHNER, Claimant and Appellant, v. TOWN AND COUNTRY FOODS, INC., and STATE COMPENSATION MUTUAL INSURANCE FUND, Employer, Defendant and Respondent.
    No. 93-500.
    Submitted on Briefs June 30, 1994.
    Decided August 30, 1994.
    51 St.Rep. 787.
    266 Mont. 352.
    880 P.2d 1300.
    For Appellant: Tom L. Lewis, Great Falls.
    For Respondent: Thomas E. Martello, State Compensation Insurance Fund, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Workers’ Compensation Court Findings of Fact, Conclusions of Law and Judgment awarding the claimant Earl Deshner $167.17 per week as his total temporary disability compensation rate, based upon an average weekly wage of $250.63. We reverse.

The sole issue on appeal is whether the Workers’ Compensation Court correctly calculated Deshner’s total temporary disability compensation rate.

BACKGROUND

Earl Deshner (Deshner) commenced employment with Town and Country Foods as a stocker in September, 1991 on a full-time basis with some weekly overtime hours. His starting salary was $5.00 per hour but in October of 1991, his salary was raised to $6.00 per hour. He received a $250.00 bonus on December 31, 1991 and on March 1, 1992, his salary was again increased, to $7.25 per hour. On March 17, 1992, he “suffered an industrial injury arising out of and in the course of his employment with Town and Country Foods, Inc.” Town and Country accepted liability and paid temporary total disability payments of $153.82 per week.

Deshner filed a petition for hearing on March 8, 1993, contending that his weekly compensation benefits should be $199.89 per week based upon his actual wage at the time of the injury, which was $7.25 per hour. On September 2, 1993, the Workers’ Compensation Court filed its Findings of Fact, Conclusions of Law and Judgment, stating that Deshner’s total disability compensation rate should be $167.17 per week. The Workers’ Compensation Court based its calculations upon the claimant’s four pay periods previous to his injury pursuant to § 39-71-701(3), MCA. Deshner’s hourly wage during the four preceding pay periods was $6.00 per hour. From this conclusion of the Workers’ Compensation Court, Deshner appeals.

STANDARD OF REVIEW

The standard of review for conclusions of law is whether the lower tribunal correctly interpreted the law. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603.

OPINION

In order to determine the proper total temporary disability compensation rate (weekly compensation benefit) for Deshner, we review the applicable statutes. The following excerpts of statutes were in effect at the time of Deshner’s injury and control the calculation of wages and weekly compensation benefits:

39-71-701. Compensation for temporary total disability - exceptions. (1) Subject to the limitation in 39-71-736 and subsection (4) of this section, a worker is eligible for temporary total disability benefits when the worker suffers a total loss of wages as a result of an injury and until the worker reaches maximum healing.
(3) Weekly compensation benefits for injury producing temporary total disability shall be 66 2/3% of the wages received at the time of the injury ...
39-71-123. Wages defined. (1) “Wages” means the gross remuneration paid in money, or in a substitute for money, for services rendered by an employee ...
(3) For compensation benefit purposes, the average actual earnings for the four pay periods immediately preceding the injury are the employee’s wages, except if:
(a) the term of employment for the same employer is less than four pay periods, in which case the employee’s wages are the hourly rate times the number of hours in a week for which the employee was hired to work; or
(b) for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant’s employment history with the employer, in which case the insurer may use additional pay periods.

Deshner argues that the Workers’ Compensation Court incorrectly calculated his weekly compensation benefits because it did so on the basis of his previous hourly rate of $6.00 per hour. Deshner contends that at the time of the injury, his salary had been increased to $7.25 per hour, and that is the correct amount to be used to calculate his benefit. He also claims that the Workers’ Compensation Court’s conclusion conflicts with the plain wording of § 39-71-701(3), MCA. Finally, he asserts that either subsection (a) or subsection (b) of § 39-71-123(3), MCA, should be applied, both authorizing a different calculation of the weekly compensation benefit.

Town and Country counters that § 39-71-123(3), MCA, mandates that the four pay periods preceding Deshner’s injury should be utilized to calculate his wages; Deshner’s hourly rate for those pay periods was $6.00 per hour. Town and Country states that claimant cannot rely on the language of § 39-71-701(3), MCA, which states that “temporary total disability shall be 66 2/3% of the wages received at the time of injury” because the four preceding pay periods must be used in order to determine “wages.” Finally, Town and Country also states that subsections (a) and (b) of § 39-71-123(3), MCA, are inapplicable here.

The difficulty in the present case stems from the fact that the claimant was earning $6.00 per hour for the four pay periods prior to his injury but he was earning $7.25 per hour, a substantially higher wage, at the actual time of the injury. In general, a worker’s hourly wage for the four preceding pay periods will be the same as his hourly wage at the time of the injury. Therefore, in most cases, § 39-71-701, MCA, which establishes weekly compensation benefits based on “wages received at the time of the injury” and 39-71-123, MCA, which establishes weekly compensation benefits based on the worker’s salary over the four preceding pay periods, will not conflict. However, in this case, the conflict occurs because there is such a dramatic difference between the two salaries and because Deshner is entitled to be paid benefits which bear a reasonable relationship to his actual wage loss.

§ 39-71-701(3), MCA, states that the weekly compensation benefit for an injury which produces a temporary total disability shall be 66 2/3% of the claimant’s wages received at the time of the injury. Deshner’s hourly wage at the time of the injury was $7.25 per hour, not the $6.00 per hour used by the Workers’ Compensation Court. Deshner was earning $6.00 per hour during the four pay periods prior to his injury. However, he received a raise and his salary increased to $7.25 per hour on March 1,1992. He was hired and maintained as a fulltime employee working 40 hours per week plus sporadic overtime. Using the formula provided under § 39-71-701, MCA, we calculate the following weekly compensation benefit:

$ 7.25 hourly wage at time of injury
x 40 hours worked per week
$290.00 weekly wages
$290.00 weekly wages
x 66 2/3% percentage to be applied pursuant to § 39-71-701(3), MCA.
$193.34 weekly compensation benefit

The weekly compensation benefit for Deshner using the hourly wage he was actually earning at the time ofinjmy would be $193.34. However, this compensation rate does not take into account any overtime pay or bonus pay received by Deshner. On remand, the Workers’ Compensation Court may also consider whether and, if so, to what extent, overtime pay and bonus pay should be included in determining Deshner’s final total temporary disability compensation rate.

The determination of $193.34 as the base compensation rate differs from the Workers’ Compensation Court’s calculation, which used a $6.00 hourly wage and totalled $167.17. The application of § 39-71-123(3), MCA, used by the Workers’ Compensation Court, appears to conflict with § 39-71-701(3), MCA, in the instant case. Section 39-71-123(3), MCA, states that to determine the claimant’s weekly compensation benefit, the average actual earnings for the four pay periods preceding the injury should be utilized. However, § 39-71-701(3), MCA, states that weekly compensation benefits shall be 66 2/3% of the claimant’s wages “received at the time of the injury.” Deshner argued, and we agree, that subsection (b) of § 39-71-123(3), MCA, which provides an exception to § 39-71-123(3), MCA, is applicable to the instant case, conforms with § 39-71-701(3), MCA, and authorizes the weekly compensation benefit calculated herein.

Subsection (b) provides an exception to the standard use of the four preceding pay periods to determine the weekly compensation rate. The subsection states that if the claimant can show good cause as to why the use of the four pay periods does not accurately reflect the claimant’s employment history, then additional pay periods can be used. According to Deshner’s employment history with Town and Country, he was earning $7.25 per hour at the time of his injury, albeit earning $6.00 per hour for the preceding months. A calculation of his weekly compensation rate at an hourly wage of $6.00 does not adequately reflect his employment history. The Workers’ Compensation Court should have utilized a pay period which reflected his actual wage at the time of his injury, which was $7.25 per hour. Deshner has demonstrated that there is good cause to use a pay period which accurately reflects his actual wages at the time of the injury to determine his weekly compensation benefit.

This decision also conforms with the public policy of the State regarding wage-loss benefits. Section 39-71-105, MCA, states in pertinent part:

(1) B]t is an objective of the Montana workers’ compensation system to provide, without regard to fault, wage supplement and medical benefits to a worker suffering from a work-related injury or disease. Wage-loss benefits are not intended to make an injured worker whole; they are intended to assist a worker at a reasonable cost to the employer. Within that limitation, the wage-loss benefit should bear a reasonable relationship to actual wages lost as a result of a work-related injury or disease. (Emphasis added.)

A weekly compensation benefit calculated at $7.25 per hour bears a much more reasonable relationship to Deshner’s actual wages lost as a result of his injury than does a calculation using $6.00 per hour. The appropriate total temporary disability compensation rate (or weekly compensation benefit) is $193.34, calculated by multiplying 66 2/3% by an hourly wage rate of $7.25 at 40 hours per week. Because we are unclear as to how, if at all, the Workers’ Compensation Court calculated Deshner’s total temporary disability rate with respect to overtime pay and bonus pay, the Workers’ Compensation Court should consider these two issues on remand in order to determine Deshner’s final compensation benefit rate.

We hold that the Workers’ Compensation Court incorrectly determined the claimant’s total temporary disability compensation rate because the Workers’ Compensation Court should have applied § 39-71-123(3)(b), MCA. We reverse and remand for entry of an order for temporary total disability benefits consistent with this opinion. REVERSED AND REMANDED.

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


author: JUSTICE HARRISON JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF TERRY LEE GALLAGHER, Petitioner and Respondent, and REBECCA JUNE GALLAGHER, Respondent and Appellant.
    No. 93-170.
    Submitted on Briefs October 5, 1993.
    Decided September 12, 1994.
    51 St.Rep. 840.
    266 Mont. 358.
    880 P.2d 1303.

      For Appellant: Roxanne Rogers, Montana Legal Services Association, Havre.
    For Respondent: Patricia Jensen; Rice Law Office, Havre.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Rebecca June Davis (formerly Gallagher) appeals from an order of the Twelfth Judicial District Court, Hill County, modifying the primary physical custody of her and her former husband’s three children. We affirm.

Terry Lee Gallagher (Terry) and Rebecca June Davis (Rebecca) were married in January 1982, in Havre, Montana. Their marriage was dissolved in 1988. The District Court incorporated the parties’ separation agreement into the dissolution decree which provided for joint custody of the parties’ three minor children. Rebecca was designated as the primary physical custodian during the school year and Terry was granted custody during the summer months.

Rebecca later married Richard Davis (Richard) and together they had two children. Rebecca’s and Richard’s family, which now consisted of five children and two adults, at times lived in poverty and depended on public assistance.

In August 1992, Terry learned that Rebecca intended to move her entire family from Montana to Virginia. Terry filed with the District Court a petition to modify the primary physical custody of his three children. He alleged that since his children were integrated into the Havre school system, he should be awarded primary physical custody thereby allowing them to continue their schooling in Havre. Terry further alleged that Rebecca’s resources to provide for the children in Virginia were unknown.

Rebecca responded, asserting in part that it would not be in the best interests of the children to change their primary physical custodian as they had been integrated into her family unit for over four years. In September 1992, Rebecca, Richard and the five children moved to Virginia.

In a November 1992 hearing, the District Court heard testimony, received evidence and met privately in chambers with Terry’s and Rebecca’s three children. After reviewing the record, the court determined that it would be in the best interests of the children to modify the parties’joint custody arrangement by making Terry the primary physical custodian during the school year and Rebecca the custodian of the children during the summer. In making its determination, the court found that Rebecca and Richard had problems in their relationship in addition to financial difficulties which adversely affected the best interests of the children.

These difficulties included: Rebecca had sought two restraining orders against Richard; the children were improperly clothed; the family faced eviction from its residence in Virginia; they did not own an automobile; the five children shared one common bed in the same room as their parents; and Rebecca did not work outside of the home nor was Richard employed at the time.

The court noted that Terry was a supportive father, and that he had “adequate housing” for his three children. Further, no evidence was presented at the hearing to suggest that Terry’s home was unsafe. The court found that the children’s environment at Rebecca’s house seriously endangered their physical, mental, moral and emotional health, and that the danger outweighed any detriment a change of custody might cause. Rebecca appeals.

I

Did the District Court improperly base its decision on evidence not found in the record?

Rebecca argues that the court improperly took judicial notice of a disputable fact — that the Davis family’s use of a kerosene heater in their home was unsafe. She states that no evidence was presented during trial which alluded to the safety of the heater, and that, in essence, the court became an advocate for Terry by permitting its personal views to become part of its decision. Additionally, she asserts that the court improperly impugned her testimony based on the court’s personal views of kerosene heaters in the home. Conversely, Terry contends that because the court specifically stated that its decision was not based on the safety of the kerosene heater, it committed harmless error by questioning the dangers of operating the heater in the Davis household.

For the convenience of Rebecca, who had to travel from Virginia to Montana to attend the hearing, the court made oral findings of fact in court with the parties present. The court did make statements concerning the safety of using a kerosene heater in the home; however, the court also stated that it did not base its decision on those statements. Rather, as discussed below, the court gave appropriate reasons for modifying the parties’joint custody arrangement. Therefore, we conclude that the court did not improperly base its decision on evidence not found in the record.

II

Did the District Court use the proper legal standard to modify the primary physical custody of the children?

The parties generally agree that the requirements relating to modification of custody contained in § 40-4-219, MCA, apply in this case. Rebecca argues, however, that those “jurisdictional requirements” were not met; Terry contends otherwise.

We recently clarified that § 40-4-219, MCA, applies to a petition to modify child custody which has “the effect of substantially changing the primary residence of the parties’ children, even though the formal designation of‘joint custody’ is retained ....” In re Marriage of Johnson (Mont. 1994), 879 P.2d 689, 694, 51 St.Rep. 703, 706. We emphasized that such petitions must satisfy the jurisdictional requirements contained in that statute. Marriage of Johnson, 879 P.2d at 694, 51 St.Rep. at 706. Only if and after the court determines that the petitioner has met the combined jurisdictional requirements by establishing both “changed circumstances” and one of the other statutorily defined factors may the court go on to consider the best interests of the children.

Here, the relevant additional statutory factor is “the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change in environment is outweighed by its advantages to him[.]” Section 40-4-219(l)(c), MCA. In the case presently before us, then, Terry was obligated to meet both the “changed circumstances” and “serious endangerment” requirements as a threshold matter. The District Court determined that those requirements were met and, further, that the best interests of the children were served by modifying primary physical custody.

As we stated in Marriage of Johnson, a party seeking modification pursuant to § 40-4-219, MCA, bears a heavy burden. Marriage of Johnson, 879 P.2d at 694, 51 St.Rep. at 706 (citation omitted). When reviewing a district court’s findings regarding modification, we will not reverse unless those findings are clearly erroneous. In re Marriage of McClain (1993), 257 Mont. 371, 374, 849 P.2d 194, 196.

Here, we find sufficient evidence in the record to support the District Court’s finding that a change of circumstances existed requiring a modification in consideration of the children’s best interests. In its January 27, 1993, order denying Rebecca’s motion, the court detailed the living arrangements of the children and stated in part:

Prior to their move to Virginia, the children lived with their mother in unsanitary conditions, partially from neglect, and partially from animal waste. The children lived in abject poverty. Neither [Rebecca] nor Mr. Davis worked. The children’s clothing was inadequate. Their rent was unpaid and they faced eviction when they moved to Virginia. The utility bills were unpaid.
Currently, they have no operative vehicle or telephone. Additionally, evidence shows that at least some of the money received for the children from public assistance was used for Mr. Davis’ pleasure, obviously adversely affecting the children.
[Rebecca] obtained two restraining orders against her current husband due to physical abuse. Mr. Davis has been difficult to control, and the children were intimidated by him. During the court’s interview with the children, they stated that they did not fear Mr. Davis. However, their eyes and demeanor belied their words when they described how he spanked them with a bread board or his belt. It appears to the Court in interviewing the boys that they have been instructed not to say anything negative about their present circumstances, perhaps out of fear.
The house in Virginia is older and is not in good condition. At one time, twelve people shared the house, now only ten reside there, along with about seven house pets.
All five of [Rebecca’s] children sleep on one mattress in the upstairs of this house, partly because they only have one mattress for the children to share, and partly to keep warm.
[Rebecca] and Mr. Davis share another mattress in this same room. The owner of the house has asked them to vacate the home because of the unpaid rent, and there is no evidence that they have any place to live.
The Court does not make the decision to modify the parenting plan easily. [Rebecca] obviously loves her children, and they love her, and their two younger half-brothers. They also seem to do adequately in school, and presently appear to be physically healthy. However, the pattern of unpaid rent, unpaid bills, evictions in the middle of winter, substandard living conditions, and physical discipline are contrary to the best interests of the children. These factors, and others in the evidence, combine to show that modification of the parenting plan is in the best interest of the children.

In the case at bar, the children’s “present environment endangers seriously [their] physical, mental, moral, or emotional health and the harm likely to be caused by a change in environment is outweighed by its advantages to [them.]” Section 40-4-219(l)(c), MCA. We find .the District Court did not err in modifying the primary physical custody of the children; the jurisdictional prerequisite found in § 40-4-219(l)(c), MCA, has been met.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and WEBER concur.

JUSTICE GRAY

dissenting.

I respectfully dissent from the Court’s opinion. While I agree that § 40-4-219, MCA, applies to this petition to modify custody, I disagree that the jurisdictional requisites of that statute were met here. It is clear that, in resolving this case, the District Court believed that § 40-4-212, MCA, applied; it did add several findings directed to the § 40-4-219, MCA, standards, but those findings are somewhat nebulous and, to some extent, unsupported by the record. Because of the confusion over the applicable standard and the nature and content of the court’s findings as they relate to § 40-4-219, MCA, I would remand this case to the District Court for redetermination.

At the outset, it is important to note that Terry filed his petition for modification prior to Rebecca’s move to Virginia. The basis for the petition was the upcoming move. Any “changed circumstance” necessary as a foundation for a total change of the children’s physical custody was met, in Terry’s view, by the move itself. The District Court apparently agreed, finding that “this travel does represent a substantial change in the circumstances of the children.” I disagree.

While changing the state of residence of the children may provide a sufficient foundation to modify visitation rights and associated costs, it is my view that such a change does not, in and of itself, meet the substantial change in circumstances requirement of § 40-4-419, MCA. It is not for the courts of Montana to negate a custodial parent’s decision about where to live with her children; only where those decisions produce an otherwise substantial change in circumstances can such a factor impact on a court’s decision to modify physical custody of the children.

Nor does the record support the notion that the children’s living circumstances were significantly changed in an adverse manner by the move. The fact is that Rebecca, her husband and the children lived in near poverty during their time in Havre. Rebecca’s unemployment outside the home and motherhood of five children certainly did not change after the move, and the same is true of her husband’s underemployment.

Moreover, the District Court’s efforts to make findings sufficient to establish the serious endangerment standard contained in § 40-4-219, MCA, are not supported by the record. It is true that money was scarce, as it had been in Havre. It is also true that housing in Virginia was unlikely to be stable, as was also the case in Havre. It is also true that the children were sleeping on a mattress on the floor awaiting the family’s furniture. These matters do not constitute serious endangerment. j

Indeed, the court made findings which negate the serious endangerment standard. It found that the children were physically healthy. It also found that, after an initial period of adaptation to their new school, the children had perfect attendance records and good grades.

It is my view that the District Court’s lengthy pronouncements about the dangers of kerosene heaters, which even this Court concedes were inappropriate as being totally unsupported by any evidence, significantly and improperly influenced its approach to the serious endangerment standard of § 40-4-219, MCA. Without those pronouncements and the court’s clearly substantial concern in that regard, there is little evidence to support the court’s serious endangerment conclusion.

I would remand to the District Court for a redetermination of the petition to modify custody based on application of § 40-4-219, MCA.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. ANTHONY DAVID, III, Defendant and Respondent.
    No. 94-002.
    Submitted on Briefs August 11, 1994.
    Decided September 12, 1994.
    51 St.Rep. 844.
    266 Mont. 365.
    880 P.2d 1308.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Carol E. Schmidt, Assistant Attorney General; Helena; Jane Mersen, Deputy County Attorney, Bozeman.
    For Respondent: Brian K. Gallik, and Robert K. Baldwin, Goetz, Madden & Dunn, P.C., Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana appeals from a ruling of the Eighteenth Judicial District Court, Gallatin County, denying its motion for leave to file an information charging the defendant with felony stalking pursuant to § 45-5-220, MCA. We affirm.

The sole issue is whether the District Court abused its discretion when it denied the State leave to file an information charging defendant with felony stalking.

On November 24,1993, the Gallatin County Attorney’s office filed a motion for leave to file an information charging Anthony David, III, with felony stalking in violation of § 45-5-220, MCA. The motion was accompanied by an affidavit of probable cause.

The affidavit set forth the alleged facts as follows. On November 5, 1993, David assaulted Cindy Tadday (Tadday). David left the Tadday residence in Tadday’s car. Tadday immediately applied for a temporary restraining order (TRO). The District Court issued a TRO, and it was served on David that day.

On November 6,1993, David telephoned Tadday. He left a message on Tadday’s answering machine that he intended to obey the restraining order and that he was “not going to cause a single problem.” David also called Tadda/s mother on November 6, claiming he planned to make life “hell” for her daughter. Later that day he again telephoned Tadday’s mother and apologized for the earlier call.

Tadday left town on November 6 to avoid contact with David. She stayed with friends and did not go to school or work. Tadday returned home on November 17, 1993, and David repeatedly telephoned her that afternoon. Tadday was able to record portions of two of these calls. In one call, David stated:

Please don’t call the cops, my life’s pretty short, my life span is about as long as yours. I’m bringing witnesses to prove that you beat me up. If you have called the cops, I’m fucked. But, I’m not at my house so I have witnesses that say that I didn’t [call]. Please help me get over this. For me to get over this, this is so humiliating, my life is over when your life is. Ah, you know what I’m saying?

David telephoned Tadday between twelve and sixteen times that afternoon.

Tadday told the Bozeman, Montana, police department that she believed David was “crazy.” Tadday stated that she feared him when he was drinking and that she was “scared to death” of him. Tadday also feared that David would attempt to injure her dog.

The State moved the District Court for leave to file an information on November 24,1993. The court denied the motion on November 29, 1993. The court ruled that probable cause was not established. The court determined that the affidavit did not show threats or intimidation. The court found that while some of the telephone calls “possibly could have been considered harassing,” they were insufficient to create probable cause that David committed felony stalking. The court also noted that the State had other available means by which to charge David, such as breach of the restraining order.

Issue

Did the District Court abuse its discretion when it denied the State’s motion for leave to file an information charging defendant with felony stalking pursuant to § 45-5-220, MCA?

Leave to file an information shall be granted when probable cause exists that an offense has been committed by an identified suspect. Section 46-11-201, MCA. The probable cause determination is left to the sound discretion of the district court. A determination of probable cause will not be reversed absent an abuse of discretion. State v. Buckingham (1989), 240 Mont. 252, 256, 783 P.2d 1331, 1334. District court judges should use their common sense when reviewing affidavits of probable cause. State v. Thompson (1990), 243 Mont. 28, 30, 792 P.2d 1103, 1105. In reviewing such cases, this Court has noted that “the reviewing court must give special deference to judicial probable cause determinations.” State v. Riley (1982), 199 Mont. 413, 423, 649 P.2d 1273, 1278.

In 1993 the Montana Legislature enacted legislation making certain “stalking” activities illegal. Codified as § 45-5-220, MCA, the statute provides, in relevant part:

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

Stalking is a felony if it is a second or subsequent offense, or if the defendant was under a judicial restraining order at the time of the alleged conduct. Section 45-5-220(3), MCA.

The affidavit fails to show that David followed Tadday. The affidavit likewise does not show that David threatened or intimidated Tadday. While the affidavit may indicate that David’s conduct might have been harassment, it was within the District Court’s discretion to determine that the affidavit was insufficient to show probable cause that David stalked Tadday.

The affidavit also presents no showing that David’s alleged stalking activities were the cause of Tadday’s emotional distress or apprehension. The affidavit does not state that Tadday feared David because of the telephone calls; rather, the affidavit seems to indicate just the opposite. Based on the affidavit, the District Court could reasonably assume that Tadday’s apprehension of David was a product of their pre-existing strained relationship. The affidavit states:

Tadday is afraid of the defendant when he is drinking. Tadday has quit going to school and quit going to work so the defendant cannot find her. Tadday told [detective] Welsand she was “scared to death.”... The defendant has told Tadday in the past that he would pour gasoline on her dog and light the dog on fire. [Emphasis added.]

It was within the court’s discretion to believe that Tadday’s apprehension was not caused by David’s telephone calls on November 6 and 17, but rather from her previous relationship with him.

This Court has consistently deferred to the reviewing judge in matters of probable cause determinations. In State ex rel. Juhl v. District Court (1938), 107 Mont. 309, 312-13, 84 P.2d 979, 981, we stated:

Obtaining leave to file an information without a previous examination of the accused before a committing magistrate is not a mere perfunctory matter which should be granted as a matter of course, but rests in the sound discretion of the district judge, upon the showing made to him. ... An abuse of discretion materially prejudicing a substantial right of the accused would be grounds for reversal... the appellate court cannot presume that the trial court exceeded its authority or abused its discretion. [Citation omitted.]

Based on the affidavit, we conclude that the District Court did not abuse its discretion in denying the State’s motion for leave to file an information charging David with felony stalking.

We find no merit in the State’s contention that the District Court’s suggestion of alternative charges against David violated the separation of powers doctrine. Art. Ill, Sec.l, Mont. Const. The judge’s closing remarks, “I think there is an adequate remedy in this matter by breach of the restraining order or by breach of the Justice Court order at the time of arraignment in another case,” did not constitute a violation of the separation of powers doctrine. Such conduct did not infringe on the State’s prosecutorial discretion. The District Court’s denial of the State’s motion was based upon a lack of probable cause and any statement concerning alternative options available to the State should not be construed as an attempt to dictate what charges the State may bring.

Since we uphold the District Court’s decision, we need not address respondent’s argument concerning the constitutionality of § 45-5-220, MCA. We affirm the decision of the District Court.

JUSTICES HARRISON, GRAY, HUNT, TRIEWEILER, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE GRAY, JUSTICE HUNT

text:
    IN THE MATTER OF G.J.P., III, Respondent and Appellant.
    No. 94-047.
    Submitted on Briefs July 7, 1994.
    Decided September 12, 1994.
    51 St.Rep. 847.
    266 Mont. 370.
    880 P.2d 1311.

      For Appellant: Terry L. Seiffert, Billings.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Carol Schmidt, Assistant Attorney General, Helena; Dennis J. Paxinos, Yellowstone County Attorney, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

G.J.P., III (G.P.), was involuntarily committed to the Montana State Hospital in August 1993. He appeals from the order of commitment entered by the District Court for the Thirteenth Judicial District, Yellowstone County. We affirm.

The issues are:

1. Was G.P. illegally detained under § 53-21-129, MCA?

2. Were G.P.’s procedural and constitutional rights otherwise violated, mandating reversal of his commitment?

3. Did the District Court err in failing to rule on the petition for conservatorship?

On August 11, 1993, Dr. David Carlson, a Billings, Montana, psychiatrist, contacted the Yellowstone County Attorney’s Office and the Billings Police Department requesting an emergency detention of G.P. pursuant to § 53-21-129, MCA. G.P., who was an attorney, was detained and placed in the psychiatric unit at Deaconess Hospital.

The next day, at the request of Dr. Carlson and Phillip Oliver, a self-described Mend of G.P, the Yellowstone County Attorney’s Office filed a petition asking that G.P. be involuntarily committed as a seriously mentally ill person. In his written request for commitment, Oliver stated:

I have known [G.P] for approximately six years. Approximately four years ago he called upon my help to aid him in his drinking problem. ... [A]fter several months [G.P.] resumed drinking and I had little contact with him.
In November, 1991, after [G.P.] had been charged with domestic abuse ... he contacted me indicating that he was thinking of killing himself. He was asking for help and I suggested that he be committed to Deaconess Medical Center. ... That day [G.P.] was [voluntarily] admitted to Deaconess Medical Center where he spent approximately 4 or 5 days before being transferred to the VA Hospital in Sheridan, Wyoming for alcohol treatment. He was released on Christmas Eve of 1991 to the best of my knowledge.
... [I]n the spring of 1993, [G.P.] visited my office indicating that he had started drinking again, that he had another problem with domestic abuse and with the police and had been involuntarily committed to Deaconess.
Subsequent to that time my partners and I have received various phone calls from potential clients and other attorneys regarding [G.P.]. Several of these people have questioned whether [G.P.] would perhaps kill himself. '
I received calls from Judge Stewart, of City Court, and Judge Fillner, 13th Judicial Court Judge, regarding [G.PJ’s erratic behavior in court and his inability to represent clients in an effective and logical manner. The phone calls have all been this week. In addition, I have talked to several local attorneys who have expressed concern about [G.P.]’s potential danger to himself and to others.
In all of my many conversations with [G.P.], I have noted in the past his discussions about doing harm to others and to himself and what his mental state was at that time. While he has not told me directly that he wishes to harm himself or others recently, I noted in my discussions with him, that he is of the same frame of mind today and has the same attitude and exhibits the same characteristics as during those times when I heard him say that he was going to do himself in.

In his written request for commitment, Dr. Carlson stated there was an immediate need to detain and hospitalize G.P. because of “no insight, very agitated, suicide rife.” He farther stated G.P. had a “history of depression with suicide ideation & behavior.” Dr. Carlson said he had received multiple calls regarding G.P.’s behavior and risk of suicide, and, since his hospitalization the day before, G.P. had been “uncooperative & very psychotic.”

At the initial hearing on August 13,1993, the court advised G.P. of his rights and appointed counsel, a “next friend,” and a professional person pursuant to § 53-21-122(2), MCA. The court appointed Dr. Carlson as the professional person and stated its willingness to appoint a second professional person, to be selected by G.P.

G.P. asked that he be released, arguing there was no probable cause for his emergency detention. He testified that, during the day he had been hospitalized, he had demonstrated “in many, many ways” that if he were a danger to himself or others he could have “hung myself or inflicted bodily harm upon myself or on other individuals there.” He also gave a lengthy, rambling monologue about his plans to travel to Arkansas to go fishing with his former boss; to speak to the national governors’ conference in Tulsa, Oklahoma, about his proposed charitable organization, which would pay the national debt through citizen contributions into a stovepipe hat; to make a trip to Washington, D.C., to meet with President and Mrs. Clinton; and to be present for his daughter’s eighteenth birthday in Arkansas. The State asked that G.P.’s hospitalization be continued until the commitment hearing. The court granted that request, basing its ruling on the documents attached to the petition and on G.P.’s own testimony.

A hearing on the petition for involuntary commitment was held on August 18,1993. The court heard testimony by several Mends of G.P., by Dr. Carlson, and by G.P. himself. At G.P.’s request, the court also viewed writings which G.P. had drafted in magic marker on the walls of his hospital room. G.P. explained the writings, some of which he stated were in code, at length. G.P. chose not to present testimony by a second professional person. At the end of the hearing, the court ordered that G.P. be committed to the Montana State Hospital for a period of up to three months.

Issue 1

Was G.P. illegally detained under § 53-21-129, MCA?

Section 53-21-129, MCA, provides:

Emergency situation — petition — detention. (1) When an emergency situation exists, a peace officer may take any person who appears to be seriously mentally ill and as a result of serious mental illness to be a danger to others or to himself into custody only for sufficient time to contact a professional person for emergency evaluation. If possible, a professional person should be called prior to taking the person into custody.
(2) If the professional person agrees that the person detained appears to be seriously mentally ill and that an emergency situation exists, then the person may be detained and treated until the next regular business day. At that time, the professional person shall release the detained person or file his findings with the county attorney who, if he determines probable cause to exist, shall file the petition provided for in 53-21-121 through 53-21-126 in the county of the respondent’s residence. In either case, the professional person shall file a report with the court explaining his actions.

G.R maintains no emergency situation existed when he was first detained, because he had not at that time exhibited any overt acts, threats, or violence of any sort. He cites Matter of Shennum, (1984), 210 Mont. 442, 684 P.2d 1073.

In Shennum, Alan Shennum, armed with a loaded semiautomatic pistol, seated himself in the public section of the chambers of the Missoula City Council just before a scheduled Council meeting. After he was discovered, apprehended, questioned, and relieved of his weapon by local police, he was released. The next morning, Shennum went to the police station to pick up his gun. He was detained there and examined by a Missoula psychiatrist. Later that day, he was transferred to the mental health unit of a local hospital. Apetition for commitment in the state mental hospital was filed the following day.

This Court held that the record did not demonstrate a finding by the psychiatrist of an emergency situation justifying Shennum’s detainment at the police station, and reversed his commitment. Shennum, 684 P.2d at 1077. Noting that it was not clear whether Shennum was still hospitalized when the opinion was issued, this Court ordered that, if he was, his release should be pursued “with all deliberate speed.” Shennum, 684 P.2d at 1080.

The facts in Shennum differ from those in the present case in important respects. Shennum was originally detained under § 53-21-129(1), MCA, without the recommendation of a professional person. Unlike Shennum, G.P. was detained at the request of a professional person, Dr. Carlson. Under § 53-21-129(2), MCA, the determination of whether a person appears to be seriously mentally ill and an emergency situation exists is left to the professional person, whose request for emergency detainment is sufficient for detainment until the next business day.

The dissent expresses concern about the propriety of Dr. Carlson’s determinations that G.P. was seriously mentally ill and that an emergency situation existed. However, under § 53-21-129(2), MCA, the professional person’s request for emergency detainment is sufficient for detainment until the next business day. The concerns expressed by the dissent might properly be raised in an action against the professional person, but not in an action challenging a commitment, such as this action.

Dr. Carlson testified at the hearing on August 18 that he treated G.P. during and following his hospitalization three months earlier. He said G.P. suffered from manic depressiveness, a cyclical illness in which, after individuals have a “high” which is not treated, they will “crash” into a severe depression. He further testified that, in the days before he requested G.P.’s emergency detainment, he had received many phone calls from persons concerned about G.P.’s mental health, including another therapist treating G.P. He stated that, at G.P.’s insistence, he met with G.P. in a parking lot on August 10 so that G.P. could give him copies of press releases relating to his charitable organization. G.P. agreed to an appointment at Dr. Carlson’s office the following day. Dr. Carlson testified that G.P.’s history indicated that he would become severely depressed when he “crashed” from his manic high. Dr. Carlson was aware of all this before he filed the original request for G.P.’s emergency detainment. G.P.’s claim that there was no basis for Dr. Carlson to request his emergency detainment is disproved by the record.

Further, at the time he filed his notice of appeal, G.P. was no longer detained as a result of this proceeding. The remedy provided in Shennum is therefore inapplicable.

On August 12, the next business day following G.P.’s initial detainment, the county attorney filed a petition for commitment. The requirements of § 53-21-129(2), MCA, were thus met. We point out that the judgment of the county attorney and of the district court are built-in checks upon the discretion of a professional personal to restrain a person under § 53-21-129(2), MCA, for more than one day.

G.P. also contends his objection to his continued detainment, made at his initial appearance before the court, should have been .granted. In its order continuing G.P.’s detainment, the District Court stated that, based on the documents attached to the petition for involuntary commitment and on G.P.’s own testimony at the initial hearing, it found probable cause to detain him for his own safety pending the commitment hearing five days later. After reviewing the record, including G.P.’s own testimony, we conclude the court did not err in so ruling.

Issue 2

Were G.P.’s procedural and constitutional rights otherwise violated, mandating reversal of his commitment?

G.P. groups a number of claims under this issue. We first address his argument that Phillip Oliver did not have the requisite direct knowledge of the facts to make a request for commitment with the county attorney pursuant to § 53-21-121, MCA.

Oliver admitted on cross-examination that he did not have personal knowledge of any present threats or suicidal gestures on the part of G.P. However, in his petition for commitment, he stated he had personal knowledge that G.P. was “of the same frame of mind today and has the same attitude and exhibits the same characteristics as during those times [in the past] when I heard him say that he was going to do himself in.” Oliver’s overall knowledge of the facts concerning G.P.’s history and illness was demonstrated in his testimony and request for involuntary commitment. We conclude he had sufficient personal knowledge of the facts to make a joint request for commitment, along with Dr. Carlson, to the county attorney.

G.P. next claims his evaluation by Dr. Carlson pursuant to § 53-21-129(2), MCA, improperly occurred prior to his initial appearance before the District Court, instead of after the hearing and after he was advised of his rights. He states the evaluation was completed prior to the court granting Dr. Carlson the authority to conduct the evaluation. Citing § 53-21-141(1), MCA, he also complains that Dr. Carlson did not advise him that the interview was to be used for the evaluation and not for treatment.

The court accepted into evidence two letters written by Dr. Carlson. The first was written on August 12, the day before G.P.’s initial hearing. This is the letter ofwhich G.P. here complains. However, G.P. has identified nothing in Dr. Carlson’s August 12 letter which refers to privileged communication with G.P.

Dr. Carlson testified on August 18 that he tried to talk with G.P. on at least five different occasions dinring G.P.’s hospitalization, but that G.P. was either too aggressive or not “rousable” from sleep on most of those occasions. “We really felt that there was very little accomplished by a subsequent interview, and we would just let him sleep so we would not have to medicate him further, put him in restraints.”

Dr. Carlson’s letter of August 17,1993, which was the second letter introduced into evidence, is germane to many of G.P.’s other complaints concerning his treatment. This letter was written after G.P.’s initial hearing and after G.P. was fully advised of his rights.

G.P. claims he was “continually detained in seclusion and in isolation as well as maintained in restraints” in violation of § 53-21-146, MCA. He alleges that he was denied medical care for broken ribs in violation of § 53-21-142(11), MCA; denied the right of telephone communication in violation of § 53-21-142(3), MCA; and administered medication within twenty-four hours before the hearing, despite his objection, in violation of § 53-21-115, MCA.

In his August 17 letter, Dr. Carlson stated:

[G.P.] has continued to demonstrate extremely severe symptoms of mental illness. In fact, if anything, [G.P.]’s illness has worsened considerably over the last few days.
[G.P.] has remained on the closed unit at the Psychiatric Center. He has spent the majority of his time being secluded to his room because of his severely manic behaviors. ... [G.P] has been extremely destructive of hospital property. This includes an episode shortly after admission where he wrote at great lengths with magic marker filling one of the walls of his hospital room with rambling, grandiose and delusional content.... On the morning of 8/12 he had a noose hanging from an air screen in his hospital room. He, the following day, hung a bed sheet from this noose claiming that it was an effigy but did not identify who this was supposed to be. ... We have had to limit his telephone calls because of complaints of acquaintances about the inappropriateness of his calls, both in terms of time of day as well as duration and content.
On 8/14 [G.P.] became very agitated on the telephone. He began banging the telephone on a counter and then began indiscriminately waving the telephone around].] ... When staff attempted to intervene, he managed to get one of the nurses in a head lock, injuring his neck. He then proceeded to kick at and kick another employee. He has attempted to bite employees. He has spit on employees and thrown urine in urinals at employees. [G.P.] is well aware of his HIV status [.] ...
[G.P.] has essentially been in restraints about 90% of the time since last Saturday’s incident. During attempts to take him out of restraints, although he is initially agreeable and calm, he rapidly becomes very agitated and assaultive again to staff. [G.P.] has removed himself from restraints on three occasions including an episode today where he cut himself out of restraints using a piece of metal again obtained by tearing up his mattress.
[G.P.] has completely refused treatment at our hospital. ... He has been ordered medication against his will because of his obviously dangerous behaviors. This medication has had to be administered intramuscularly in almost every occasion.
[G.R] shows no insight into his illness. He is unwilling to take Lithium.... When he is not sedated, he is almost unmanageable at its occlusion.
[G.R] is truly a very ill individual. He has severe characterologic symptoms, but at this time he is obviously very manic and quite unable to care for himself and his affairs.... He has made it almost impossible to provide him with care in this setting. To that end, I think [G.P]’s prognosis is generally very poor, but he is deserving of the effort to provide him with treatment.

The right to be free from physical restraint and isolation under § 53-21-146, MCA, is not absolute. It exists “except for emergency situations.” Dr. Carlson’s letter explains generally the use of isolation and restraints to control G.P.’s violent and aggressive behavior toward hospital staff and patients. In his allegations, G.P. has not identified any specific instance in which he was restrained or isolated in violation of his rights.

Dr. Carlson testified that G.P. was not amenable to being transported to the X-ray room of the hospital to have his ribs X-rayed. Dr. Carlson further testified that the hospital does not provide medical treatment for broken ribs other than X-raying them to determine whether they are indeed broken.

Patients admitted to a mental health facility have the right to “reasonable” access to telephone communications. Section 53-21-142(3), MCA. G.P. has not established that he was denied this right. Dr. Carlson testified that G.P. was not denied all telephone access. He was limited as to time and number of phone calls, so that he could make no calls after midnight and other patients could also use the phone.

Patients involuntarily detained for serious mental illness have a right to be free from “any but lifesaving medication” for up to twenty-four hours prior to a hearing. Section 53-21-115, MCA. Dr. Carlson testified that he determined G.P.’s behavior was so agitated that he was a risk to himself and a threat to the safety of others. The District Court found that the medication given to G.P. prior to the hearing was lifesaving. We conclude that finding is supported by substantial credible evidence.

None of the rights claimed by G.P. are absolute. G.P. has not demonstrated any restrictions on his rights other than those necessary for his treatment, evaluation, and care. Further, G.P. has not established that reversal of his commitment would be a proper remedy for any such denial or restriction of his rights. After reviewing the record, we conclude that G.P. has not established that his commitment should be reversed due to violations of his procedural and constitutional rights.

Issue 3

Did the District Court err in failing to rule on the petition for conservatorship?

On August 26, 1993, G.P., through his counsel, filed a petition asking the District Court, in the alternative, to (1) direct his counsel how to proceed to protect G.P.’s assets, practice, and clients, or (2) appoint a conservator of G.P.’s estate, or (3) enter “such other appropriate orders for the protection of [G.P.]’s assets and for the protection of [G.P.]’s clients.” In response to this request, the court entered an order on September 3,1993, authorizing G.P.’s counsel to secure G.P.’s mail. G.P. was apparently discharged from the Montana State Hospital on September 15,1993.

G.P. argues that the court’s “failure to rule on” his August 26 motion left his clients in a state of limbo of not having an attorney to meet their legal needs. However, he has not described any specific problems incurred by any of his clients. Furthermore, his motion was set forth in the alternative. The court granted relief in the form of authorizing G.P.’s counsel to secure G.P.’s mail. The allegation that there was a “failure to rule” on the motion on the part of the District Court is simply not true. Suggestions for procedures to handle the caseloads of attorneys who become suddenly unavailable to their clients due to mental illness or other reasons might better be raised in another manner or to another forum, such as the State Bar of Montana. We hold that the District Court did not err as alleged under Issue 3.

We affirm the order of commitmerit entered by the District Court.

JUSTICES HARRISON, TRIEWEILER, NELSON and WEBER concur.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion on the issue of whether G.P. was illegally detained under § 53-21-129, MCA. When controlling statutes are applied, it is clear that the Court’s conclusion that G.P. was not illegally detained is incorrect.

G.P. originally was detained pursuant to § 53-21-129, MCA, which provides for the extraordinary procedure of civilly detaining a Montana citizen prior to any judicial involvement. The statute provides in pertinent part:

Emergency situation — petition — detention.
(1) When an emergency situation exists, a peace officer may take any person who appears to be seriously mentally ill and as a result of serious mental illness to be a danger to others or to himself into custody only for sufficient time to contact a professional person for emergency evaluation. If possible, a professional person should be called prior to taking the person into custody.
(2) If the professional person agrees that the person detained appears to be seriously mentally ill and that an emergency situation exists, then the person may be detained and treated until the next regular business day.

Section 53-21-129, MCA. It is clear that the operative phrases are “seriously mentally ill” and “emergency situation;” it is equally clear that both elements must be met before a person may be detained pursuant to § 53-21-129, MCA.

“Seriously mentally ill” is statutorily defined to mean: suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat of injury or which has deprived the person afflicted of the ability to protect the person’s life or health. For this purpose, injury means physical injury. A person may not be involuntarily committed to a mental health facility or detained for evaluation and treatment because the person is ... suffering from a mental disorder unless the condition causes the person to be seriously mentally ill within the meaning of this part.

Section 53-21-102(15), MCA (emphasis added). “Emergency situation” is statutorily defined to mean “a situation in which any person is in imminent danger of death or serious bodily harm from the activity of a person who appears to be seriously mentally ill.” Section 53-21-102(4), MCA.

Nothing of record relied on by the Court establishes that the necessary circumstances existed here to support the emergency detention of G.P. As a result, I conclude that the detention was not legal. I begin with the assumption, seemingly established by the record, that G.P. suffers from a mental disorder. Section 53-21-102(15), MCA, makes it clear that suffering from such a disorder is merely the threshold inquiry in determining whether a person is seriously mentally ill; it is not sufficient to detain a person under § 53-21-129, MCA, or to involuntarily commit that person pursuant to §§ 53-21-121 through 53-21-126, MCA.

The first question before the Court, then, must be whether G.P. met any of the disjunctive criteria set forth in the statutory definition of “seriously mentally ill.” In this regard, only the testimony of Dr. David Carlson is relevant, because he is the only “professional person” involved in this matter and is the person whose contact with the Billings police resulted in G.P.’s emergency detention. Phillip Oliver’s written support for the involuntary commitment of G.P, set out at length in the Court’s opinion, is totally irrelevant to this issue; Mr. Oliver, an attorney and friend of G.P., is indisputably not a “professional person” for purposes of the emergency detention statute.

The Court cites the following as the totality of Dr. Carlson’s testimony about G.P.’s pre-detention situation:

1. Dr. Carlson had treated G.P. following an earlier hospitalization three months earlier.
2. G.P. had a “history of depression with suicide ideation and behavior.”
3. G.P. suffers from manic depressiveness.
4. In the days before the emergency detention, Dr. Carlson received phone calls from persons concerned about G.P.’s mental health.
5. In Dr. Carlson’s opinion, G.P. was in a manic high in the days immediately preceding the detention, and would become severely depressed when he “crashed” from that high.
6. It was Dr. Carlson’s opinion that G.P. had “no insight, very agitated, suicide rife.”

While this testimony may well establish that G.P. has a history of, and suffers from, a mental disorder, it does not establish that G.P. was seriously mentally ill at the time of the detention as required by statute. The testimony does not show that G.P.’s mental disorder has resulted in injury to himself or others or the imminent threat of such injury; nor does it show that the mental disorder has deprived G.P. of the ability to protect his own life or health. See § 53-21-102(15), MCA.

Dr. Carlson’s testimony also does not establish the existence of an “emergency situation” as the legislature defined it in § 53-21-102(4), MCA. Nothing in that testimony shows that G.P. or another person was in “imminent danger” of death or serious bodily harm from G.P.’s activities.

While I agree with the Court’s statement that a § 53-21-129, MCA, determination of “whether an emergency situation exists is left to the professional person,” I agree only in the context of applicable statutory definitions. The Court apparently intends to allow “professional persons” to define both “seriously mentally ill” and “emergency situation” as the mood strikes them and without regard to statutory definitions. The result of the Court’s decision is exactly contrary to the legislature’s carefully stated intent that a person may not be either detained under the emergency detention statute or involuntarily committed on the basis of a mental disorder unless that disorder causes the person to be seriously mentally ill. Moreover, the Court’s decision results in an unprecedented and unjustified expansion of the State’s ability to detain Montana citizens who suffer from mental disorders but who have not been shown to be a danger to themselves or others. I cannot agree that these results are legally correct or otherwise appropriate. I dissent.

JUSTICE HUNT

dissenting:

I join in the dissent of Justice Gray.


author: JUSTICE NELSON CHIEF JUSTICE TURNAGE,

text:
    ROBERT L. POTTER, DEBRA LEE STEINER and JASON W. RIGGS, Petitioners, v. DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CUSTER, and THE HONORABLE JOE L. HEGEL, Presiding Judge, Respondents.
    No. 94-069.
    Submitted August 9, 1994.
    Decided September 12, 1994.
    51 St.Rep. 853.
    266 Mont. 384.
    880 P.2d 1319.

      For Petitioners: R.L. Stephens, Jr., Billings; R. Allen Beck, Billings; James Graves, Oliver, Graves & Toennis, Billings.
    For Respondents: Hon. Joseph P. Mazurek, Attorney General; Micheál Wellenstein, Assistant Attorney General; Gary Bunke, Deputy Custer County Attorney.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an original proceeding which arises out of the issuance of two search warrants on August 18, 1993. The search warrants were signed by Steven Rice, as “Acting Justice of the Peace.” The execution of the warrants led to the seizure of marijuana and other drug related items. Defendant Robert Potter was charged with one count of criminal sale of dangerous drugs, a felony pursuant to § 45-9-101(1), MCA, and one count of criminal possession with intent to sell, a felony, pursuant to § 45-9-103, MCA. Defendant Debra Steiner was charged with criminal possession with intent to sell, a felony pursuant to § 45-9-103, MCA. Defendant Jason Riggs was charged with one count of criminal possession with intent to sell, by accountability, a felony pursuant to §§ 45-9-103, 45-2-301, and 45-2-302, MCA.

The defendants attack the validity of the search warrants alleging that they were not issued by an independent magistrate, thereby rendering the search warrants invalid. Specifically, the defendants argue that the acting justice of the peace was not properly qualified to serve as a substitute justice of the peace under the appropriate statutes and under the Rules for Certification of Judges of Courts of Limited Jurisdiction (hereinafter Commission Rules) adopted by this Court on October 24, 1990 and found at Title 3, Ch. 1, part 15, MCA, Annotations (1992), at 48-51. Therefore, according to the defendants, Mr. Rice had no jurisdiction to issue the search warrants. We agree.

We conclude that, for the reasons hereafter set forth, this is an appropriate matter over which this Court should exercise its power of supervisory control and, accordingly, we accept jurisdiction of this case. We hold that Steven Rice was without authority or jurisdiction to issue the search warrants, that the search warrants were void ab initio, and that, as a result, the District Court must vacate its order denying defendants’motion to suppress and enter an order consistent with this opinion suppressing the evidence seized pursuant to the warrants.

BACKGROUND

At all times pertinent to this case, Donald Schott was the duly elected, qualified and acting Justice of the Peace for Custer County and the only justice of the peace in that county. On August 11, 1993, Judge Schott’s office notified Mr. Rice that it might call on him to serve as substitute Justice of the Peace during August 16 through August 20, 1993, as Judge Schott would be on vacation during that time.

Mr. Rice was and is the pastor of the Lutheran Church in Miles City. He previously was the elected Justice of the Peace for Powder River County and was the City Judge for Broadus. Mr. Rice held these positions for approximately three years, leaving the bench in March of 1987. During his tenure on the bench in Powder River County, Mr. Rice passed the certification test required by the Commission on Courts of Limited Jurisdiction (Commission). He also regularly attended the training sessions sponsored by the Commission. Since 1987, and prior to August 18,1993, when Mr. Rice signed the search warrants, the Commission approved Mr. Rice to act as substitute judge for two Miles City city judges. Subsequent to the incident at issue here, Mr. Rice has been approved to act as a substitute justice of the peace in Powder River County and Custer County.

On August 18, 1993, Custer County Undersheriff, Don Neese presented two applications for search warrants to Mr. Rice. Although City Judge Paul Mottram was available, Undersheriff Neese presumed, in good faith, that Mr. Rice was an authorized substitute justice of the peace. Mr. Rice, believing himself to be the acting substitute Custer County Justice of the Peace, granted the applications and signed the search warrants. As stated above, the execution of the warrants resulted in the seizure of marijuana and other drug related items, and the subsequent felony drug charges filed against the defendants.

On October 12, 1993, defendant Potter filed a Motion to Suppress Evidence. The motion challenged the validity of the search warrant on several grounds including the allegation that Mr. Rice was not qualified as an independent magistrate to issue the search warrant.

The defendants subsequently filed a consolidated motion to suppress on December 7, 1993, challenging the search warrants on the same grounds. The District Court held a hearing on the motion on December 15, 1993, and issued its written order on December 16, 1993. The court denied the motion relying on § 46-5-103(l)(c), MCA, which provides in pertinent part:

A search and seizure, whether with or without a warrant, may not be held to be illegal if:
(c) any irregularity in the proceediiigs has no effect on the substantial rights of the accused.

The District Court, finding that Mr. Rice was “qualified” in terms of competence and experience, and that any mistakes were “innocent errors of omission and not directed by any purpose to evade the legal requirements,” concluded that “although the procedure used to call in Steven Rice as substitute justicé of the peace was technically flawed, the substantial rights of the Defendants were not affected ...”

The defendants filed an application for Writ of Supervisory Control or Other Appropriate Writ on June 1; 1994, stating that the District Court had found the issue raised at the suppression hearing could be dispositive of the case, and that the defendants should take the issue to this Court. The defendants allege that the specific issue to be determined by this Court is: 1

Is the failure to have a properly appointed, independent Magistrate signing search warrants a “mere technicality’ or does this constitute a violation of the substantial constitutional rights of the defendants?

DISCUSSION

I. SUPERVISORY CONTROL

The exercise of supervisory control by this Courtis authorized by Article VII, Section 2(2) of the Montana Constitution and by Rule 17(a), M.R.App.P. We are reluctant to exercise supervisory control as it is an extraordinary remedy. State ex rel. O’Sullivan v. District Court (1946), 119 Mont. 429, 431-32, 175 P.2d 763, 764. Notwithstanding, supervisory control is appropriate where the district court is proceeding under a mistake of law, and in so doing is causing a gross injustice, State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348; State ex rel. Fitzgerald v. District Court (1985), 217 Mont. 106, 114, 703 P.2d 148, 153-54, and where, as here, requiring a defendant to stand trial would result in unnecessary expenditures of time and resources. State ex rel. Torres v. Montana Eighth Judicial District Court, (1994), [265 Mont. 445], 877 P.2d 1008, 1010-11, 51 St. Rep. 599, 600; State ex rel. Fletcher v. District Court (1993), 260 Mont. 410, 414, 859 P.2d 992, 994; State ex rel. First Bank System v. District Court (1989), 240 Mont. 77, 84, 782 P.2d 1260, 1264.

Here, the State concedes that if the search warrants at issue are invalid and if the evidence resulting from the execution of those warrants is suppressed, then it will have no case against the defendants. No argument has been advanced that the evidence could have been seized under any exception to the written warrant requirement. Under such circumstances, because we conclude that the search warrants are void ab initio, it would be fundamentally unfair and prejudicial, not to mention a waste of time and the limited resources of the court and counsel, to require this case to proceed further. Accordingly, it is appropriate that we assume jurisdiction of this case and exercise original jurisdiction under a writ of supervisory control in order to forestall further needless and expensive litigation.

II. WHO MAY ACT AS SUBSTITUTE JUSTICE OF THE PEACE

At the outset, we stress that nothing in this opinion is meant to reflect adversely on the training, experience, professional competence or integrity of either Mr. Rice or Judge Schott. The critical legal question which we address is simply whether, at the time he issued the search warrants, was Mr. Rice, under the law, a duly appointed and qualified substitute justice of the peace? We must answer that question in the negative, and in doing so, begin our analysis with the Constitution of the State of Montana.

The judicial power of the state derives from Article VII of Montana’s 1972 Constitution. Section 5 of Article VII provides, in pertinent part:

Justices of the peace. (1) There shall be elected in each county at least one justice of the peace with qualifications, training, and monthly compensation provided by law. ...
(3) The legislature may provide for additional justices of the peace in each county.

That Article and Section of our State Constitution make it clear that the legislature is to establish, by law, the qualifications and training of justices of the peace and, in its discretion, provide for additional justices of the peace in each county. See, generally, Title 3, Ch. 10, MCA. This Court may make rules governing the practice and procedure in all courts of this state. Art. VII, Sec. 2(3), Mont. Const.

It follows that Article VII, Section 5 of the Constitution also empowers the legislature to establish, by law, the qualifications of and procedures for appointing substitute justices of the peace in the various counties. The statute authorizing the appointment of substitute justices of the peace is found at § 3-10-231, MCA. That statute provides:

(1) Whenever a justice of the peace is disqualified from acting in any action because of the application of the supreme court’s rules on disqualification and substitution of judges, subdivision 1, 2, or 3, he shall either transfer the action to another justice’s court in the same county or call in a justice from a neighboring county to preside in his behalf.
(2) Within 30 days of taking office, a justice of the peace shall provide a list of persons who are qualified to hold court in his place during a temporary absence when no other justice or city judge is available. The persons listed must be of good moral character and have community support, a sense of community standards, and a basic knowledge of court procedure. The county commissioners shall administer the oath of office to each person on this list as soon as possible after the person has received a waiver of training from the supreme court.
(3) Whenever a justice is sick, disabled, or absent, the justice may call in another justice, if there is one readily available, or a city judge or a person from the list provided for in subsection (2) to hold court for the absent judge until his return. If the justice is unable to call in a substitute, the county commissioners shall call in another justice, a city judge, or a person from the list provided for in subsection (2).
(4) During the time when a justice of the peace is on vacation or attending a training session, another justice of the peace of the same county shall be authorized to handle matters that otherwise would be handled by the absent justice. When there is no other justice of the peace in the county, the justice of the peace may designate another person in the same manner as if the justice were sick or absent.
(5) A justice of the peace of any county may hold the court of any other justice of the peace at his request.

In terms of training, the legislature has mandated that all judges serving on courts of limited jurisdiction (justice, city and municipal courts, § 3-1-1501, MCA) attend annual training sessions supervised by the Commission. Section 3-10-203, MCA; Rule 4, Commission Rules.

However, § 3-10-231(2), MCA, and Rule 5C, of the Commission Rules provide that substitute judges may receive a waiver of training from the Commission enabling them to act as substitute justices on an occasional basis pursuant to § 3-10-231(2) through (5), MCA. Rule 5C of the Commission Rules requires the sitting justice of the peace to submit a request for a waiver of training to the Commission and show that the substitute judge, as mandated by § 3-10-231(2), MCA, is of good moral character, has good community support, a sense of community standards, and a basic knowledge of court procedure. After reviewing the request, the Commission advises the sitting judge of its decision. Rule 5C(3), Commission Rules.

Therefore, according to the applicable statutes and Commission Rules, before a person is legally qualified to serve as a substitute justice of the peace, the following requirements must be followed: (1) within 30 days of taking office the elected or appointed justice of the peace must create a list of persons who are qualified to act in the sitting justice’s absence when no other justice or city court judge is available, § 3-10-231(2), MCA; (2) the sitting justice of the peace must request and obtain from the Commission a waiver of training for the substitute judge, § 3-10-231(2), MCA, and Commission Rule 5C; and (3) the substitute judge must be sworn in by the county commissioners, § 3-10-231(2), MCA.

Additionally, the defendants maintain that, before calling in a substitute judge from the list, there must be no other justice of the peace, or city judge available to act as a substitute judge. We agree with that conclusion. Reading § 3-10-231(3) and (4), MCA, in pari materia, with § 3-10-231(2), MCA, as we must (§ 1-2-101, MCA), it is clear that a sitting judge may call in a substitute judge from the list "... when no other justice or city judge is available.” Section 3-10-231(2), MCA. Accordingly,, we conclude that, under the statutory scheme enacted by the legislature, in addition to the three requirements set forth in the immediately preceding paragraph of this opinion, a sitting justice of the peace must first attempt to call in another justice of the peace, if there is one readily available, (§ 3-10-231(2), MCA), or a city judge before resorting to calling in a qualified substitute judge from the list. Sections 3-10-231(2), (3) and (4), MCA.

In the instant case, there is no question that the above statutory scheme was violated. In fact, the District Court found that “the procedure used to utilize Steven Rice was flawed in almost every respect.” Moreover, the District Court also concluded that the language of § 3-10-231(2), MCA, and Rule 5C of the Commission Rules mandated that a person first obtain a waiver of training from the Commission before he or she is authorized to act as substitute judge. While Judge Schott testified at the suppression hearing that he believed Mr. Rice was qualified to serve as acting justice of the peace for Custer County, it is, nevertheless, undisputed that the sitting justice did not follow the procedures set forth above before Mr. Rice was called in as a substitute judge.

Judge Schott did not draw up a list of persons qualified to hold court in his temporary absence within 30 days of taking office, nor did he request and obtain a waiver of training from the Commission for Mr. Rice as required by § 3-10-231(2), MCA, and Commission Rule 5C. The evidence at the suppression hearing showed that Judge Schott had a copy of a “Request for Waiver of Training” dated May 6, 1991, in his files which asked the Commission to waive the training requirements for Mr. Rice from “now until December 31, 1994.” However, Judge Schott did not have any evidence that he actually mailed the request to the Commission. Moreover, according to the testimony of Harlan P. Goan, Assistant Supreme Court Administrator, the Commission did not have any evidence that the request was received or approved prior to the issuance of the search warrants. Therefore, it is clear from the record that the Commission had not approved Mr. Rice to serve as substitute justice of the peace for Custer County on August 18,1993, the date he signed the search warrants.

Furthermore, Mr. Rice was not sworn by the county commissioners as required by § 3-10-231(2), MCA, and, although city judge Mottram was available to serve as a substitute, he was not asked to do so as mandated by § 3-10-231(2), (3) and (4), MCA.

While finding that “the procedure used to utilize Steven Rice was flawed in almost every respect,” the District Court, relying on § 46-5-103(l)(c), MCA, denied the defendants’motion to suppress concluding that the technical errors did not affect the substantial rights of the defendants. We disagree with the court’s legal conclusion in that respect.

We conclude that the basic inquiry in this case should not be whether the substantial rights of the defendants were affected as a result of a “technical error,” but whether Mr. Rice had authority or jurisdiction in the first instance to issue the search warrants at all. It is axiomatic that, if Mr. Rice had no authority to issue the search warrants, the warrants were void ab initio, and that evidence seized from the defendants in the absence of a valid search warrant or a recognized exception from the warrant requirement, did violate their substantial rights to be free from unreasonable searches and seizures under Article II, Section 11 of Montana’s Constitution.

This Court has defined judicial power as “the authority not only to decide, but to make binding orders or judgments.” State ex rel. Bennett v. Bonner (1950), 123 Mont. 414, 425, 214 P.2d 747, 753. In Montana the power or authority to issue search warrants is reposed exclusively in city or municipal court judges and justices of the peace within the judge’s geographical jurisdiction, and in district court judges within this State. Sections 46-5-220(2)(a) and (b), MCA. Montana law grants to no other person the authority or power to issue search warrants. The term “judge” (which includes municipal and city court judges and justices of the peace, § 3-1-1501(2), MCA), means a person who is “vested by law” with the power to perform judicial functions, § 46-1-202(10), MCA (1991).

The legislature, pursuant to the power granted it by Article VII, Section 5 of Montana’s Constitution, has enacted a statutory scheme by which persons might lawfully exercise the powers and authority of a judge as a substitute for a duly elected or appointed sitting justice of the peace. Section 3-10-231, MCA. This Court, pursuant to Article VII, Section 2(3), of the Constitution of Montana and § 3-10-231(2), MCA, has adopted the Commission Rules which implement, in certain respects, that legislative scheme.

Unless the procedures required by those statutes and the Commission Rules are followed, then no substitute justice is appointed, and the person seeking to exercise the powers of a judge as his substitute has no authority or jurisdiction to do so. That person is, quite simply, not a judge as he has not been vested by law with the power to perform the functions of a judge. Since he was not a lawfully appointed and sworn substitute judge, Mr. Rice had no more authority to issue a search warrant than did any other member of the general public. Regardless that Mr. Rice was qualified by training and experience to be a judge, he was not, in fact, a judge at the time he issued the search warrants, because the statutory procedures to make him a judge and to vest him with the power to perform judicial functions had not been followed.

Since the search warrants at issue here were not issued by a judge, they were void ab initio, ofno force or effect, andprovidedno authority under which the authorities could search the defendants’ property and seize evidence.

The defendants argue that our holding in State v. Tropf (1975), 166 Mont. 79, 530 P.2d 1158, is persuasive authority. We agree that our decision in that case supports our opinion here. In Tropf, the county attorney’s office prepared a complaint and affidavit for a search warrant which contained a district court heading and signature line. On the day of the search in question, there were no district judges present in the courthouse, so the police detective submitted the complaint and affidavit to the Great Falls city police judge. The police judge signed the search warrant with the district court heading and signature line. Tropf, 530 P.2d at 1159. This Court upheld the district court’s suppression of the evidence obtained under the search warrant, concluding that police courts are courts of limited jurisdiction and have only such authority as is expressly conferred upon them. Tropf, 530 P.2d at 1160. Under the statutory scheme in place at the time we decided Tropf, police judges did not have authority to issue search warrants, were not “judges” for purposes of issuing search warrants and therefore, the search warrant issued by the city police judge was void. Tropf, 530 P.2d at 1161.

Similarly, in the instant case, we hold that the search warrants issued by Mr. Rice on August 18, 1993, were not issued by a judge, that those search warrants were void ab initio and that any evidence seized pursuant to those warrants must be suppressed. Accordingly, we remand this case to the Sixteenth Judicial District Court for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

JUSTICES HARRISON, GRAY, TRIEWEILER, WEBER and HUNT concur.

CHIEF JUSTICE TURNAGE,

specially concurring:

I concur in the majority opinion. While the statutory procedure set forth in § 3-10-231, MCA, was not even minimally followed in this case, I also suggest that portions of the statute make it difficult for a substitute judge to qualify and for local law enforcement and the public to determine whether a substitute judge is properly qualified to perform judicial functions.

Section 3-10-231(2), MCA, provides that “[t]he county commissioners shall administer the oath of office to each person on [the substitute judge] list.” In addition to being unwieldy, it is not likely that all three county commissioners are going to administer the oath of office to the substitute judges on the list; yet, that is what the statute seemingly requires. Moreover, that requirement is in conflict with § 7-5-2121, MCA, which provides that any member of the board of county commissioners may administer oaths. Additionally, § 2-16-211, MCA, provides that the oath of judicial officers may be taken before any officer authorized to administer oaths. See, § 1-6-101, MCA. Accordingly, the statute should be amended to simply require that the oath of office for substitute judges be taken before any member of the board of county commissioners or before any officer authorized to administer oaths.

Finally, there is nothing in the statutory scheme enacted by the legislature that requires any “paper trail” at the local level when the sitting judge calls in a substitute. That necessitates, as here, the local law enforcement authorities and perhaps court personnel or other interested persons either presuming that the person who is called in is a qualified substitute judge, or, alternatively, having to seek verification from the Office of the Court Administrator of the Supreme Court in Helena. Neither approach is satisfactory, especially when a search warrant is being sought over a weekend, on a holiday, after business hours or under exigent circumstances.

Section 3-10-231, MCA, should be amended to require that the substitute judges subscribe a written oath of office in conformity with the provisions of Article III, Section 3, of the Montana Constitution and § 2-16-211, MCA, and that the written oath be then filed in the office of the county clerk in accordance with § 3-10-202, MCA, along with the sitting judge’s list of qualified substitute judges and the Commission’s written approval and waiver of training for those substitutes. I also submit that the statute be amended to require updated and current copies of the list of qualified and sworn substitute judges be provided from time to time to local law enforcement by the county clerk.

Given the extreme consequences of an unqualified substitute judge attempting to act in a judicial capacity, as our opinion here clearly indicates, I urge the next session of the legislature to give serious consideration to the above proposed statutory amendments. The next unlawful search warrant might be issued for the crucial evidence in a homicide case.

JUSTICE NELSON, author of the majority opinion, also joins in the special concurring opinion.