author: CHIEF JUSTICE TURNAGE

text:
    DEBRA K. WALKER, Petitioner and Appellant, v. RICHARD A. HIGGINS, Respondent and Respondent.
    No. 95-570.
    Submitted on Briefs June 20, 1996.
    Decided July 30, 1996.
    53 St.Rep. 719.
    277 Mont. 443.
    922 P.2d 1154.

      For Appellant: Clinton H. Kammerer; Kammerer Law Offices, Missoula.

      For Respondent: Milton Datsopoulos, Paul T. Ryan; Datsopoulos, MacDonald & Lind, Missoula; Charles H. Recht; Recht & Recht, Hamilton.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Debra K. Walker appeals a summary judgment in favor of Richard A. Higgins in this action to invalidate the official result of the November 1993 mayoral election in Darby, Montana. As part of its judgment, the Twenty-first Judicial District Court, Ravalli County, awarded Higgins $13,034.05 in attorney fees. We affirm.

The issues are whether summary judgment was proper and whether the award of attorney fees was an abuse of discretion.

Darby is an incorporated town in Ravalli County, Montana, with an elected mayor. In November of 1993, an election was held for the office of mayor of Darby by mail-in ballot, pursuant to Title 13, Chapter 19, MCA. Jerry Moore and acting mayor Richard A. Higgins were the candidates for this office. Ballots were mailed to all registered electors of Darby, and 269 completed ballots were returned and counted. Higgins received 135 votes, Moore received 134 votes, and Higgins was declared the winner.

In May of 1994, Debra K. Walker, a registered voter of the Town of Darby, filed this action to invalidate the election. Walker averred that individuals who were not residents of the Town of Darby had cast their ballots and voted in the election when they had no right to do so, based on her examination of the election results and voter registration.

Walker challenged the qualifications of five individual voters. Relying upon affidavits filed with the court, Higgins moved for summary judgment. Walker filed a cross-motion for summary judgment, supported by depositions and exhibits.

After a hearing, the District Court ruled that Walker had failed to produce material and substantial evidence to support her allegations that the five voters were unqualified to vote. The court granted summary judgment to Higgins and awarded him attorney fees pursuant to § 13-36-205, MCA.

ISSUE 1

Was summary judgment proper?

This Court’s standard of review of a summary judgment is the same as that used by a district court — whether, pursuant to Rule 56(c), M.R.Civ.P., material issues of fact exist and whether the moving party is entitled to judgment as a matter of law. Motarie v. N. Mont. Joint Refuse Disposal District (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. The moving party has the burden of establishing that no genuine issue of fact is before the trial court; once that burden is met, the party opposing the motion must present evidence of a material and substantial nature raising a genuine issue of fact. Motarie, 907 P.2d at 156.

The procedures for contesting the results of a public election are set forth at Title 13, Chapter 36, MCA. The possible grounds for such a challenge are enumerated at § 13-36-101, MCA. The ground raised here, illegal votes, is subsection (3) thereof.

Section 13-36-211, MCA, provides that an election is not to be set aside on account of illegal votes unless the candidate whose right is contested had knowledge of or connived at the illegal votes (which is not alleged here), or

the number of illegal votes given to the person whose right to the nomination or office is contested, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same nomination or office, after deducting therefrom the illegal votes which may be shown to have been given to such other person.

Section 13-36-211(2), MCA.

In this case, Walker claims that illegal votes were cast by five voters who were not residents of the Town of Darby at the time of the election. Residency is defined at § 1-1-215, MCA:

Residence — rules for determining. Every person has, in law, a residence. In determining the place of residence the following rules are to be observed:
(1) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose and to which he returns in seasons of repose.
(2) There can only be one residence.
(3) A residence cannot be lost until another is gained.
(4) The residence of his parents or, if one of them is deceased or they do not share the same residence, the residence of the parent having legal custody or, if neither parent has legal custody, the residence of the parent with whom he customarily resides is the residence of the unmarried minor child. In case of a controversy, the district court may declare which parental residence is the residence of an unmarried minor child.
(5) The residence of an unmarried minor who has a parent living cannot be changed by either his own act or that of his guardian.
(6) The residence can be changed only by the union of act and intent.

As to the five voters challenged in this case, Higgins established that they were each registered to vote in the Town of Darby and that their names appeared on the precinct voting register. The registration of an elector and appearance of that person’s name on the precinct register is prima facie evidence of that person’s right to vote. Section 13-2-601, MCA. We conclude that Higgins met his initial burden of proof in support of his motion for summary judgment.

The first two challenged voters were Daniel and Shawna Rail. Walker submitted a copy of a juror questionnaire executed by Shawna Rail in March 1994, in which Shawna Rail stated she should be excused from jury duty in the city court because she did not live within the city limits of Darby. Daniel Rail similarly executed a city court juror questionnaire in July 1994 in which he stated he no longer had a home in Darby and should be excused from jury duty.

In individual affidavits to the District Court, the Ralls both stated that prior to August 1993 they lived and resided within the Town of Darby. They further stated that in August 1993 their home was damaged by fire and became uninhabitable, forcing them to seek temporary housing outside the Town of Darby. They each further stated by affidavit that at the time of the November 1993 election they intended the Town of Darby to remain their legal residence and that they never registered or attempted to vote in any other state or district other than the Town of Darby.

As the District Court noted, neither of the Ralls’ juror questionnaires is probative of their situation or intent at the time of the November 1993 election — the questionnaires were executed months later. The only evidence of the Ralls’ intent at the time of the election is contained in their affidavits. We conclude that as to the Ralls’right to vote in the November 1993 Darby mayoral election, Walker has failed to meet her burden of presenting evidence of a material and substantial nature raising a genuine issue of fact.

Another challenged voter was Cheryl E. Snider. Snider testified by affidavit that beginning in March of1992 she lived in a home which she believed to be within the Town of Darby and which was surrounded by property which she knew to be in the town limits. Her landlord, however, testified by deposition that he was unsure whether he paid city taxes on the property Snider rented from him, but did not believe so. Also, Snider executed a juror questionnaire in March of 1994 in which she gave contradictory answers as to her residence. She answered “no” to whether she should be disqualified as a juror for living outside the city limits of Darby, but she also answered “no” to whether her home was within the city limits of Darby.

The statement of Snider’s landlord is at best speculative, and therefore not sufficient to preclude summary judgment. Farm Credit Bank of Spokane v. Hill (1993), 266 Mont. 258, 264, 879 P.2d 1158, 1161. Moreover, Snider’s ambiguous responses to the juror questionnaire were tempered by her affirmation in that document that she met all of the qualifications of residency and had no reason to be excused from jury duty. Therefore, we conclude that Walker did not meet her burden of proof in resisting the summary judgment motion as to Snider.

Paula Nelson was another challenged voter. Walker questioned whether Nelson’s residence was within the Town of Darby. Nelson submitted an affidavit that in the past five years she had never registered or attempted to vote elsewhere but in the Town of Darby and that she believed that the house in which she lived in 1993 was within the Town of Darby because it received town water and sewer services. Walker did not submit any evidence to support her contention that Nelson’s residence was outside the town limits. We conclude she did not meet her burden of establishing a material issue of fact as to Nelson’s qualification to vote.

The final voter challenged was Robert H. Rawlins. Walker submitted the deposition of Gary Steinman, who operated a hotel in Darby. Steinman testified that his hotel records had been destroyed but that Rawlins was a hotel tenant or guest off and on throughout 1993, staying as long as months at a time. Steinman testified that Rawlins left for Las Vegas, Nevada, in October or November of 1993, but returned around November of 1994 and offered to rent his old hotel room back for four months.

As the District Court stated, nothing in Steinman’s deposition contradicts the prima facie evidence of Rawlins’ right to vote as a resident of Darby in the November 1993 election. We conclude that Walker has not met her burden of establishing a material issue of fact as to Rawlins’ right to vote in the 1993 Darby mayoral election.

After reviewing the evidence before the District Court, we hold that the court was correct in ruling that Walker failed to produce material and substantial evidence that illegal votes were cast. Because no illegal votes have been demonstrated, we need not proceed to the question of whether Higgins would have sufficient votes to win the election if the illegal votes were taken from him. We hold that summary judgment for Higgins was proper.

ISSUE 2

Was the award of attorney fees an abuse of discretion? Section 13-36-205, MCA, provides:
Recovery of costs. In any contest, the prevailing party may recover his costs, disbursements, and reasonable attorney’s fees. Costs, disbursements, and attorney’s fees in all such cases shall be in the discretion of the court. In case judgment is rendered against the petitioner, it shall also be rendered against the sureties on the bond.

Because the statute places the award of attorney fees within the trial court’s discretion, our standard of review is whether the District Court abused that discretion.

The District Court awarded Higgins attorney fees of $11,608.55 for representation by the firm of Datsopoulos, MacDonald & Lind, P.C., and $1,425.50 for representation by the firm of Recht & Recht, P.C. Walker contends that the court abused its discretion in awarding attorney fees to attorney Charles H. Recht of Recht & Recht, P.C., because she maintains Recht appeared on behalf of the Town of Darby. At the time of this action, Recht served as the town attorney for Darby.

The record is somewhat ambiguous as to whom Recht represented in this action. His billing records, attached to his affidavit of attorney fees, list the “Town of Darby” as his “client.” The Clerk of District Court’s Register of Action lists Recht as the attorney for the “City of Darby.” However, the Town of Darby was not a party to this action. Recht signed pleadings as “Attorney for Richard A. Higgins.” He testified at the attorney fee hearing that he appeared as co-counsel for Higgins, and not on behalf of the Town of Darby. Recht explained his billing records showing the Town of Darby as his client as follows:

The Town of Darby has paid the fees for Mr. Higgins because of the position of Mr. Higgins with respect to the Town of Darby. So just like any other person, if you were awarded your attorney fees, if they were paid by your client, you would return them to your client. I was returning them to the Town of Darby, who paid my fees.

Recht’s testimony suggests that his employment as the attorney for the Town of Darby was on an hourly basis rather than on retainer or salary.

Walker also claims there was no expert testimony on Recht’s behalf, which, without citation to authority, she maintains was required. Finally, Walker argues that her position in this action was reasonably grounded in fact and supported by documentation from objective persons, and that therefore the award of attorney fees against her was an abuse of discretion.

In determining what constitutes reasonable attorney fees, factors to be considered are: (1) the amount and character of the services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or the value of the property affected; (5) the professional skill and experience called for; (6) the attorney’s character and standing in the profession; and (7) the result secured by the services of the attorney. Swenson v. Janke (1995), 274 Mont. 354, 361, 908 P.2d 678, 682-83.

At the hearing on the matter of attorney fees, Datsopoulos testified that when Higgins asked him to serve as co-counsel with Recht on this case, his response was “I knew Bud Recht, I respected him, and I would be pleased to work with him.” Datsopoulos also testified that Recht took an active part in the case, which Datsopoulos described as a complex case of first impression and “a puzzling and interesting case.” Recht testified that he had been an attorney for thirty years, that he felt his own fees for this case were reasonable, and that there was a lot of interest and pressure in this case. As to the character and importance of this litigation, the District Court reasoned as follows:

If it’s true, as I have heard today, that the mayor of the Town of Darby is paid $50 a month, $600 a year, and if the general rule applied that the Court should generally consider that each side should bear their legal fees, then any time someone didn’t like ... [someone] who is elected mayor or [to] any other public office, then all they need to do is raise the specter of a suit to invalidate the election where each side would have to bear their legal fees. And at least those who are willing to bear the risk, or have the financial wherewithal that legal fees is not a consideration, could effectively annul the decision of the public to elect who they want to elect to public office. ...
I think this is the type of an action where whoever chooses to file it should be extremely careful that before it’s filed that they not only have a reasonable cause or non-frivolous case, but a winning case, because the odds are, if they lose, they’re going to pay.
And, on the other hand, if we have an official in office who has good cause to believe he may be wrongfully in that office, if the election was tainted in some fashion, then he better seriously consider his position before he enlists assistance, because if he loses, he’s going to pay.

There is no question about who was the prevailing party in this case.

The testimony before and considerations engaged in by the District Court reflect the factors set forth in Swenson for determining the issue of whether attorney fees should be awarded. We hold that sufficient evidence was presented to the court on the issue of attorney fees and that the court did not abuse its discretion in its award of attorney fees to Higgins.

We affirm the decision of the District Court.

JUSTICES GRAY, HUNT, NELSON and LEAPHART concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD HELFRICH, Defendant and Appellant.
    No. 95-333.
    Heard May 2, 1996.
    Submitted May 16, 1996.
    Decided August 9, 1996.
    53 St.Rep. 741.
    277 Mont. 452.
    922 P.2d 1159.

      For Appellant: Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena (argued).
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Ass’t Attorney General, (argued) Helena; Brad Newman, Deputy Silver Bow County Attorney, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Richard Helfrich (Helfrich) appeals from the judgment entered by the Second Judicial District Court, Silver Bow County, accepting Helfrich’s conditional guilty pleas to the misdemeanor offenses of criminal defamation and stalking. Pursuant to § 46-12-204(3), MCA, Helfrich reserved the right to appeal from the District Court’s order denying his motion to dismiss the charges. We reverse and remand.

The following issues are raised on appeal:

1. Is § 45-8-212, MCA, which defines the offense of criminal defamation, unconstitutionally overbroad?

2. Did the District Court err in denying Helfrich’s motion to dismiss the charge of stalking?

On or about May 30 or May 31,1994, Helfrich distributed fliers in various locations in Silver Bow County, Montana. The fliers alleged that a named individual had engaged in criminal conduct. Based on Helfrich’s distribution of the fliers, the Silver Bow Deputy County Attorney filed two complaints in Justice Court, the first alleging that Helfrich committed the offense of criminal defamation in violation of § 45-8-212(2), MCA, and the second alleging that Helfrich committed the offense of misdemeanor stalking in violation of § 45-5-220(l)(b), MCA. A bench trial was held in Justice Court and the court found Helfrich guilty of both offenses.

Helfrich appealed his convictions to the District Court and filed a motion to dismiss the charges of defamation and stalking on the grounds that the criminal defamation statute is unconstitutional and that his actions did not constitute stalking within the meaning of the stalking statute. The District Court denied the motion to dismiss and Helfrich entered conditional guilty pleas reserving his right to appeal. This appeal followed.

1. Is § 45-8-212, MCA, which defines the offense of criminal defamation, unconstitutionally overbroad?

In reviewing the constitutionality of a statute enacted by the legislature, this Court presumes that the statute is constitutional. State v. Lilburn (1994), 265 Mont. 258, 266, 875 P.2d 1036, 1041, cert. denied, _ U.S. _, 115 S.Ct. 726, 130 L.Ed.2d 630 (1995) (citing Montana Auto Ass’n v. Greeley (1981), 193 Mont. 378, 382, 632 P.2d 300, 303). The reviewing Court must adopt a construction of the statute which renders the statute constitutional in preference to one which renders it invalid. Monroe v. State (1994), 265 Mont. 1, 3, 873 P.2d 230, 231. The party challenging the constitutionality of the statute carries the burden of proof. Monroe, 873 P.2d at 231; GBN, Inc. v. Montana Dep’t of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597.

In reviewing statutes which have been challenged under the doctrine of overbreadth, this Court has stated that:

“[A]n individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Brockett v. Spokane Arcades, Inc. (1985), [472] U.S. [491], [504], 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394, 405-406. Thus, the statute may be unconstitutional on its face even though it would be constitutional as applied to appellant.

State v. Lance (1986), 222 Mont. 92, 99, 721 P.2d 1258, 1263. The statute at issue, § 45-8-212, MCA, provides:

(1) Defamatory matter is anything which exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to his or its business or occupation.
(2) Whoever, with knowledge of its defamatory character, orally, in writing, or by any other means communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation and may be sentenced to imprisonment for not more than 6 months in the county jail or a fine of not more than $500, or both.
(3) Violation of subsection (2) is justified if:
(a) the defamatory matter is true and is communicated with good motives and for justifiable ends;
(b) the communication is absolutely privileged;
(c) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern;
(d) the communication consists of a fair and true report or a fair summary of any judicial, legislative, or other public or official proceedings; or
(e) the communication is between persons each having an interest or duty with respect to the subj ect matter of the communication and is made with the purpose to further such interest or duty.
(4) No person shall be convicted on the basis of an oral communication of defamatory matter except upon the testimony of at least two other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty. [Emphasis added.]

In the instant case, Helirich contends that § 45-8-212, MCA, is overbroad because the statute allows a criminal conviction for an alleged defamation by a lesser standard than that which is required in a civil action for defamation. In a civil action, truth is an absolute defense barring any recovery by the plaintiff. New York Times, Co. v. Sullivan (1964), 376 U.S. 254, 277-78, 84 S.Ct. 710, 724-25, 11 L.Ed.2d 686. Helirich contends that truth should also be an absolute defense to a criminal prosecution for defamation. He notes, however, that under § 45-8-212(3), MCA, truth alone is not sufficient. Rather, the statute requires not only a showing of truth but also a showing that the alleged defamatory matter “is communicated for good motives and for justifiable ends.”

In Madison v. Yunker (1978), 180 Mont. 54, 67, 589 P.2d 126, 133, this Court adopted the defamation standard set forth in New York Times. One of the principles established in New York Times is that truth is an absolute defense. Helfrich argues, relying on New York Times, that a showing of good motives and justifiable ends is not required to defend a civil defamation action and such a showing should not be required to avoid criminal liability.

As the State concedes, the vast majority of courts which have addressed the constitutionality of criminal defamation statutes which require, as a defense, that the alleged defamatory material be communicated with good motives and for justifiable ends, have declined to judicially narrow the statutes and, therefore, have found such statutes to be unconstitutional. See e.g., Tollett v. United States (8th Cir. 1973), 485 F.2d 1087; Gottschalk v. State (Alaska 1978), 575 P.2d 289; Weston v. State (Ark. 1975), 528 S.W.2d 412; People v. Ryan (Colo. 1991), 806 P.2d 935, cert. denied, 502 U.S. 860, 112 S.Ct. 177, 116 L.Ed.2d 140; Commonwealth v. Armao (Pa. 1972), 286 A.2d 626; Eberele v. Municipal Court (Cal. Ct. App. 1976), 127 Cal.Rptr. 594; State v. Powell (N.M. Ct. App. 1992), 839 P.2d 139. For example, the Pennsylvania Supreme Court declined, as a wholly inappropriate judicial activity, the state’s request that the court narrow and, in effect, redraft Pennsylvania’s criminal libel statute to comport with the First Amendment. Armao, 286 A.2d at 632.

In Armao, the Pennsylvania Supreme Court stated that “[h]ence, under present Pennsylvania law, a conviction for criminal libel could conceivably be based on a true statement, published maliciously, for non-justifiable ends tending to disgrace and degrade the libeled person.” Armao, 286 A.2d at 628 n.7. The court held that “the statutory language makes no provision for truth being an absolute defense. Likewise, no recognition is given the reckless disregard and knowing falsity standard mandated by New York Times and Garrison [Garrison v. Louisiana (1964), 379 U.S. 64, 78, 85 S.Ct. 209, 217, 13 L.Ed.2d 125].” Armao, 286 A.2d at 629. The Armao court concluded that:

[o]nly a knowing falsity or reckless disregard of the truth are actionable in civil defamation. It would violate all sound and fundamental principles of justice to have a merely negligent statement an occasion for the imposition of criminal penalties, and the First Amendment as interpreted by the United States Supreme Court forbids such a result.

Armao, 286 A.2d at 632.

Similarly, in Weston, the Arkansas Supreme Court, in interpreting a statute which, like § 45-8-212, MCA, allowed truth as a defense only if good faith and justification were proved, determined that the statute was unconstitutional. Recognizing that, although the statute provided that truth “may be given in evidence,” the court nonetheless determined that this falls short of the New York Times rule which “absolutely prohibits the punishment of truthful criticism.” Weston, 528 S.W.2d at 415 (citing Garrison, 379 U.S. at 78, 85 S.Ct. at 217-18).

The Weston court noted that “under the rule laid down in Garrison, truth is a defense even when the offending publication is not made “with good motives and for justifiable ends. ...’ ” Weston, 528 S.W.2d at 415. The court rejected the state of Arkansas’ request to limit application of the libel statute to comport with the First and Fourteenth Amendments. Accordingly, the court held that the statute was unconstitutional “under the rulings of the U.S. Supreme Court in New York Times v. Sullivan, supra, and Garrison v. Louisiana, supra.” Weston, 528 S.W.2d at 416.

Section 45-8-212(3)(a), MCA, parallels the Arkansas statute in that it recognizes truth as a defense only if it “is communicated with good motives and for justifiable ends.” Both the Arkansas Supreme Court and the Pennsylvania Supreme Court determined that statutes substantially the same as Montana’s were inconsistent with the United States Supreme Court’s rulings in both New York Times and Garrison because such statutes prohibited true speech unless “communicated with good motives and justifiable ends.” As the Weston court recognized, truth is a defense even when the offending publication is not made “with good motives and for justifiable ends.” We agree with the reasoning and analysis of the Arkansas Supreme Court and the Pennsylvania Supreme Court. Like the statutes at issue in Weston and Armao, § 45-8-212, MCA, impermissibly requires the defendant to prove that the material, even if true, was communicated in good faith and for justifiable ends. Unlike the civil standard for defamation set forth in New York Times and adopted by this Court in Madison, the statute does not allow for truth as an absolute defense.

Article II, § 7 of the Montana Constitution provides that, in prosecutions for libel and slander, “the truth thereof may be given in evidence.” The constitutional guarantee found in Article II, § 7 of the Montana Constitution, stands for something more than the proposition that truth is admissible. The provision means that, as a matter of state constitutional law, truth alone is sufficient as a defense — an absolute defense. The legislature cannot dilute this basic proposition by providing that while truth may be given in evidence, it is only a defense to a prosecution for libel or slander if it is for good motives and for justifiable ends. Accordingly, we determine that § 45-8-212, MCA, is unconstitutionally overbroad. It violates the First and Fourteenth Amendments of the United States Constitution as interpreted by the United States Supreme Court in New York Times and Garrison and Article II, § 7 of the Montana Constitution because, on its face, the statute prohibits truthful criticism when not communicated for good motives and justifiable ends.

2. Did the District Court err in denying Helfrich’s motion to dismiss the charge of stalking?

Helfrich argues that since his act of distributing fliers cannot constitute criminal defamation, it likewise cannot constitute stalking under § 45-5-220, MCA. This argument ignores the fact that his challenges to the two statutes are not parallel. Helfrich made a facial challenge to the criminal defamation statute. That is, he argued, and we agree, that the criminal defamation statute is overly broad since, on its face, it prohibits truthful criticism when not communicated for good motives and justifiable ends. On the other hand, his attack on the stalking statute is an “as applied” challenge. The stalking statute is not facially defective since it specifically does not apply to constitutionally protected activities such as truthful communications. The burden is on the defendant to prove that his activity is constitutionally protected. Thus, although we assumed, arguendo, that the fliers were true for purposes of resolving the constitutionality of the criminal defamation statute, no such assumption is warranted in the context of the stalking statute. Rather, Helfrich must prove that his communication was, in fact, true in order to set the stage for his “as applied argument.”

The complaint alleged “that the Defendant, RICHARD L. HELFRICH purposely or knowingly caused [Doe] substantial emotional distress by repeatedly harassing, threatening or intimidating [Doe] in person or by other action, specifically by posting fliers at various locations within Silver Bow County alleging that [Doe] has engaged in criminal conduct.” The State alleged that this conduct constituted the crime of misdemeanor stalking in violation of § 45-5-220(l)(b), MCA. Section 45-5-220, MCA, provides in relevant part:

(1) A person 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.
(2) This section does not apply to a constitutionally protected activity.

In the instant case, the record does not disclose whether the information contained in the fliers distributed by Helfrich was true or false. As we established earlier in this opinion, true communications are constitutionally protected; thus, truth is an absolute defense to a prosecution for criminal defamation as well as to a civil defamation suit.

Assuming that Helfrich’s fliers contained truthful information and were otherwise lawfully posted, then the act of posting the fliers may be a constitutionally protected activity within the exception of § 45-5-220(2), MCA. We say “may” because truth is not an absolute defense to a charge of stalking. Unlike a charge of criminal or civil defamation which focuses solely on the content of the speech, a charge of stalking focuses on conduct which may, but does not necessarily, involve speech. Depending upon the nature, timing, context and frequency of the speech, a truthful communication may or may not be a constitutionally protected activity under § 45-5-220(2), MCA. That “you cheated on your tax return” may be a truthful statement but that does not necessarily mean that I have the right to telephonically remind you of that fact every morning at 2:00 a.m. A jury may well consider such conduct to be harassment under the stalking statute.

In the present case we are not called upon to decide whether a particular truthful statement contained in a flier is constitutionally protected from a stalking charge because there has been no threshold allegation or determination that the statement in question was truthful. To qualify as protected speech, it must at least be truthful. Beyond that, there must be a determination as to whether, albeit truthful, the statement is an element of conduct which is harassing, intimidating or threatening within the purview of the stalking statute. Even though the conduct may include protected speech, the State’s interest in shielding the victim from such conduct may outweigh the defendant’s constitutional protections. As Helfrich concedes, under Madison, not all speech is protected. Madison, 589 P.2d at 130; State v. Cooney (1995), 271 Mont. 42, 48-49, 894 P.2d 303, 307. For example, this Court has held that threats are not protected speech under the Fifth Amendment. Cooney, 894 P.2d at 307 (citing Lance, 721 P.2d at 1266). We also recognized that “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problems. These include the lewd and obscene, the profane, [and] the libelous. ...” Lance, 721 P.2d at 1265 (quoting Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 571-72, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031). Activities which are intended to embarrass, annoy or harass are not protected by the First Amendment. People v. Holt (Ill. 1995), 649 N.E.2d 571, 581 (citing Colten v. Kentucky (1972), 407 U.S. 104, 109, 92 S.Ct. 1953, 1956, 32 L.Ed.2d 584) (holding that actions taken solely to annoy and inconvenience are not given constitutional protection).

On the other hand, if the information in Helfrich’s fliers were false or not lawfully posted, it would not qualify as a constitutionally protected activity and the § 45-5-220(2), MCA, exception would not prohibit a prosecution for stalking.

Without expressing any views as to whether the posting of truthful fliers constitutes the crime of stalking or is a constitutionally protected activity, we remand this matter pursuant to § 46-12-204(3), MCA, for the purpose of allowing Helfrich to withdraw his plea of guilty to the charge of stalking and, if he so chooses, to raise and prove that his conduct falls within the constitutionally protected activity exception of § 45-5-220(2), MCA.

Reversed and remanded.

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

      . We note that this Court has previously recognized that “the truth of a defamatory statement of fact is a complete defense to an action for defamation.” Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 507, 138 P.2d 580, 584. However, later in that opinion, the Court also stated that “[elvery person has a right to comment on matters of public interest and general concer, provided he does so fairly and with an honest purpose.” lb the extent that this statement can be interpreted to require the defendant to prove good faith and justifiable ends as a defense, it is expressly overruled.

      . Although the record does not indicate whether the information communicated by Helfrich was true, the truth or falsity of the information is irrelevant as we determine that § 45-8-212, MCA, is unconstitutional on its face.

      . A pseudonym has been used in place of the actual name of the alleged victim.


author: JUSTICE ERDMANN JUSTICE NELSON

text:
    CITY OF HELENA, Plaintiff and Respondent, v. FRANK DANICHEK, Defendant and Appellant.
    No. 95-394.
    Submitted June 25, 1996.
    Decided August 20, 1996.
    53 St.Rep. 767.
    277 Mont. 461.
    922 P.2d 1170.

      For Appellant: Edmund F. Sheehy, Jr. (argued), Cannon & Sheehy, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund (argued), Assistant Attorney General, Helena; Robert Wood, Assistant City Attorney, Helena.
    For Amicus Curiae: Steve Fletcher (argued), Bulman Law Associates, Missoula.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Appellant Frank Danichek appeals from an order entered by the First Judicial District Court, Lewis and Clark County, denying his motion to dismiss the charge of driving under the influence of alcohol on double jeopardy grounds. We affirm.

The issue on appeal is whether the District Court erred in denying Danichek’s motion to dismiss based on his claim that the Double Jeopardy Clause of both the United States and Montana Constitutions prohibits him from being criminally prosecuted for operating a motor vehicle under the influence of alcohol following the suspension of his driver’s license for refusing a breathalyzer test.

FACTS

The facts are not in dispute. In December 1994, Danichek was arrested in Helena for driving under the influence of alcohol. Following his arrest, Danichek refused a law enforcement officer’s request that he submit to a breathalyzer test. As a result, Danichek’s driver’s license was seized and suspended for a period of ninety days pursuant to § 61-8-402, MCA (1993), Montana’s implied consent law. Danichek was subsequently convicted in City Court for operating a motor vehicle under the influence of alcohol pursuant to § 61-8-401, MCA (1993). He then appealed his conviction to the District Court and moved the court to dismiss the DUI charge claiming that the Double Jeopardy Clause prohibited criminal prosecution since he had already been punished by the loss of his driver’s license.

The District Court entered a decision and order denying the motion to dismiss. Danichek then filed a motion for a change of plea pursuant to § 46-12-204(3), MCA, which allowed him to enter a conditional plea of guilty to the DUI charge and preserve his right to appeal the District Court’s denial of his motion to dismiss. The District Court accepted Danichek’s conditional guilty plea and sentenced him accordingly. The court then stayed execution of the sentence pending this Court’s resolution of Danichek’s double jeopardy claim. This appeal followed.

STANDARD OF REVIEW

This Court has recently stated that the grant or denial of a motion to dismiss in a criminal case is a question of law. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. The standard of review of a district court’s conclusion of law is plenary and we will review it to determine whether the conclusion of law is correct. Hansen, 903 P.2d at 195 (citing State v. Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359).

DISCUSSION

We have recently stated that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250. It is the multiple punishments prohibition of the Double Jeopardy Clause which is implicated in the present case.

The Double Jeopardy Clause has been made applicable to the states through the Fourteenth Amendment. Nelson, 910 P.2d at 250 (citing Benton v. Maryland (1969), 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707; State v. Cole (1987), 226 Mont. 377, 744 P.2d 526). Danichek claims no greater protection from double jeopardy under the Montana Constitution, Article II, Section 25, than under the federal constitution. Accordingly, in this case we shall treat the protections from double jeopardy afforded under both our state and the federal constitutions as co-extensive and will refer to both clauses collectively in the singular.

Danichek relies on recent United States Supreme Court decisions in Montana Department of Revenue v. Kurth Ranch (1994), 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767, and United States v. Halper (1989), 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487, and this Court’s post -Halper decision in Stuart v. Department of Social and Rehabilitation Services (1993), 256 Mont. 231, 846 P.2d 965, to argue that the criminal DUI prosecution is barred because he has already been punished by having his driver’s license suspended. He challenges prior Montana case law holding that the suspension of a driver’s license pursuant to the implied consent law protects the public rather than punishes the driver and maintains that the license suspension must be deemed punishment because it is a detriment or other coercive intervention annexed to a violation of the law which provides a means to enforce the DUI statute.

The State argues that suspension of a driver’s license following refusal to submit to a breathalyzer test does not constitute “punishment” for double jeopardy purposes and further argues that §§ 61-8-401 and -402, MCA (1993), are not the same offense. The State also claims that the record does not indicate whether the license suspension engendered a “separate proceeding” necessary to even place Danichek in jeopardy and trigger a double jeopardy analysis.

In Kurth, Montana law enforcement officers raided the farm of the Kurth family and confiscated and destroyed their marijuana plants. The Kurths pled guilty to the drug charges and also forfeited over $18,000 in cash and equipment as a result of a civil forfeiture action filed by the State. The Montana Department of Revenue then attempted to collect a state tax imposed on the possession and storage of dangerous drugs pursuant to Montana’s Dangerous Drug Tax Act. The Kurths filed for bankruptcy and challenged the constitutionality of the drug tax. The Bankruptcy Court held that the tax assessment, which resulted in a tax eight times the product’s market value, was a form of double jeopardy invalid under the federal constitution. The District Court affirmed the decision and stated that the drug tax simply punished the Kurths a second time for the same criminal conduct. See In re Kurth Ranch, CV-90-084-PGH, 1991 WL 365065 (D. Mont., Apr. 23, 1991) (reprinted at App. to Pet. for Cert. 22). After the Court of Appeals for the Ninth Circuit affirmed the District Court, the U.S. Supreme Court granted certiorari and framed the issue as follows:

This case presents the question of whether a tax on the possession of illegal drugs assessed after the State has imposed a criminal penalty for the same conduct may violate the constitutional prohibition against successive punishments for the same offense.

Kurth, 511 U.S. at _, 114 S. Ct. at 1941 (emphasis added). The Supreme Court held that the proceeding Montana initiated to collect the drug tax was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time for the same offense. Kurth, 511 U.S. at _, 114 S. Ct. at 1948.

Five years prior to Kurth, the U.S. Supreme Court decided Halper. Halper had falsified Medicare forms to obtain overpayment in the amount of $585. The government successfully prosecuted Halper for fraud and he was fined and sentenced to prison. At the conclusion of the criminal proceeding, the government commenced an action for a statutory civil penalty under the False Claims Act which would have imposed an additional fine in the amount of $130,000. The issue before the Court was whether and under what circumstances a civil penalty may constitute punishment for purposes of double jeopardy analysis. Halper, 490 U.S. at 436, 109 S.Ct. at 1895. The Court concluded that double jeopardy protections prohibit subjecting a defendant who has been punished in a criminal prosecution to an additional civil sanction to the extent the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. Halper, 490 U.S. at 449, 109 S.Ct. at 1902. The Court held that the imposition of the full statutory amount violated double jeopardy protections by punishing Halper a second time for the same conduct for which he had been convicted. Halper, 490 U.S. at 451, 109 S.Ct. at 1903.

In Stuart, this Court relied on Halper to address the issue of whether a civil sanction existed which would trigger a double jeopardy analysis. Two former employees of the Department of Social and Rehabilitation Services (SRS) who had been convicted and sentenced for criminal mischief sought to collect their accrued vacation benefits and the question was whether SRS’s refusal to pay out the benefits violated double jeopardy protections. Stuart, 846 P.2d at 966. We held that SRS’s refusal to compensate appellants for the accrued vacation benefits was not annexed to a violation of any law and therefore did not constitute a civil sanction in violation of double jeopardy protections. Stuart, 846 P.2d at 969. We distinguished Halper by noting that in that case Halper’s conduct violated two separate laws — one criminal and one civil — and the government sought to enforce both in separate proceedings. Stuart, 846 P.2d at 969.

It is necessary at this point to focus our analysis. The parties dispute whether or not the license suspension constitutes “punishment” for double jeopardy purposes and whether the suspension engenders a “separate proceeding” to trigger double jeopardy analysis. However, we determine that the dispositive question in this case is whether Danichek’s license suspension resulted from the “same offense” for which he was subsequently criminally prosecuted. A possible double jeopardy violation could have occurred only if we answer that question in the affirmative.

The State argues that Danichek violated two different offenses, §§ 61-8-401 and -402, MCA (1993). The State relies on the “same elements” test set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, and maintains that different elements exist for the two offenses. The State argues that each statute requires proof of facts which the other does not and asserts that multiple punishments for different offenses is constitutionally permissible.

This Court has employed the Blockburger test in the past to determine whether a defendant can be charged and convicted of violating two different statutes for the same act or transaction. State v. Crowder (1991), 248 Mont. 169, 178, 810 P.2d 299, 305. Typically, however, the Blockburger test has been applied to the situation where two criminal statutes have been violated. See State v. Wolfe (1991), 250 Mont. 400, 821 P.2d 339; State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267; State v. Peterson (1987), 227 Mont. 503, 741 P.2d 392. In the present case, the license suspension is a civil proceeding and the DUI offense is a criminal violation. In that context, we conclude that the Blockburger test is not appropriate. The elements of a civil and criminal statute will invariably differ and a potential double jeopardy violation may not be detected by the Blockburger test. Here, in order to determine whether the action taken against Danichek was for the “same offense,” we will focus on whether the license suspension and DUI prosecution were for the same conduct.

Danichek acknowledges that he violated two statutory offenses. However, he claims that his license suspension and DUI prosecution were the result of the same conduct. He argues that § 61-8-402, MCA, does not become operative until a person has been arrested for driving under the influence in violation of § 61-8-401, MCA. Thus, according to Danichek, both the implied consent law and the DUI statute are violated when a person refuses to submit to a breathalyzer test. He maintains that the license suspension was a detriment for not complying with the implied consent law and that since it and the DUI prosecution were based on the same conduct, his double jeopardy rights were violated. We disagree.

Danichek violated § 61-8-402, MCA (1993), by refusing the police officer’s request to submit to a breathalyzer test. He violated § 61-8-401, MCA (1993), by driving a vehicle upon the public ways of the state while under the influence of alcohol. The conduct that triggered the violation of § -402 was separate and distinct from the conduct that triggered the violation of § -401. Danichek exhibited two different courses of conduct and committed two different offenses. Danichek’s argument that the implied consent law only becomes operative when a DUI violation occurs is shortsighted. A person who violates § -402 has his or her license immediately suspended regardless of whether or not he or she is subsequently convicted of the DUI violation. The license suspension is imposed for refusing the sobriety test and not for the DUI offense.

Moreover, the facts of this case are distinguishable from those presented in Kurth and Halper. In both those cases, the civil sanction and criminal prosecution were the result of one course of conduct by the defendant. In Kurth the conduct was the possession and storage of dangerous drugs, and in Halper the conduct was falsification of Medicare forms. The same conduct triggered the criminal prosecutions and civil sanctions in both Kurth and Halper, and Danichek’s reliance on them is therefore misplaced. The offense for which Danichek’s driver’s license was suspended was a separate and distinct offense from the DUI charge since each violation was based on different conduct. Thus, Danichek’s claim that he received multiple punishments for the “same offense” must fail. We determine it is unnecessary to rule on whether the license suspension constitutes “punishment” and/or engenders a “separate proceeding” for double jeopardy purposes.

We hold that the District Court did not err in denying Danichek’s motion to dismiss and that the court correctly interpreted the law when it concluded that Danichek’s constitutional guarantee against double jeopardy was not violated.

Affirmed.

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

JUSTICE NELSON

specially concurs.

I concur in our opinion. It is unfortunate, however, that we are not able to also ground our decision in what most courts agree is an even stronger argument for rejecting the double jeopardy challenge at issue here. Accordingly, I write separately to point out that because of a peculiar requirement of Montana’s implied consent law, one of the most recognized, obvious and common sense rationales for upholding the operation of this statute against a double jeopardy challenge is unavailable or is, at least, highly questionable.

Other state and federal jurisdictions that have upheld the administrative seizure, suspension or revocation of a driver’s license incident to an alcohol or drug-impaired driving violation and chemical-test refusal have done so on the basis that the administrative suspension of driving privileges is not “punishment.” Rather, with almost near unanimity, courts have focused their analysis on the non-punitive, remedial nature of administrative license suspensions. See, e.g. State v. Oliver (N.C. 1996), 470 S.E.2d 16; Luk v. Com. (Mass. 1995), 658 N.E.2d 664, and the numerous cases collected therein.

This rationale is best explained in these two decisions.
An impaired driver presents an immediate, emergency situation, and swift action is required to remove the unfit driver from the highways in order to protect the public. We do not pretend to ignore that a driver’s license revocation, even of short duration, may, for some, have a deterrent effect. ... [Although] any deterrent effect a driver’s license revocation may have upon the impaired driver is merely incidental to the overriding purpose of protecting the public’s safety.

Oliver, 470 S.E. 2d at 21.

The suspension serves to deter persons from driving while intoxicated; it effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence by inducing suspected drunk drivers to take the breath test; and it promotes safety on the highways by summary removal of dangerous drivers.

Luk, 658 N.E.2d at 671.

In the instant case, the State argues these same remedial objectives as justification for holding that double jeopardy is not implicated by both suspending the impaired driver’s license for refusal to submit to a chemical test and prosecuting him or her for DUI. Montana’s implied consent law, § 61-8-402, MCA, actually militates against that argument, however.

Under § 61-8-402(3), MCA, if a suspected driver refuses the peace officer’s request to submit to the designated test or tests the officer must “immediately seize the person’s driver’s license ... [and] ... forward the license to the department” which is then obligated to suspend the license for a designated period of time. Section 61-8-402(4), MCA, however, provides that “[u]pon seizure of a driver’s license [on refusal to take the chemical test], the peace officer shall issue... a temporary driving permit, which is valid for 5 days following the date of issuance.” (Emphasis added.)

In other words, in Montana, despite the fact that a driver is driving while intoxicated; despite the fact that a peace officer has reasonable grounds to arrest the driver for DUI; despite the fact that the driver refuses to take a chemical test of his blood, breath or urine under the implied consent law; and despite the fact that the officer immediately seizes the driver’s license pursuant to that statute, under the same statute the arresting officer must, while seizing the license with one hand, issue an immediately-effective temporary 5-day driving permit with the other.

While liability implications and common sense would seem to make it inconceivable that a drunk driver actually would be issued a temporary permit as he leaves the stationhouse and that, in theory, he could simply get back in his vehicle and continue to drive while intoxicated (although being subject to re-arrest), that is exactly what § 61-8-402(3) and (4), MCA, allow, and, in fact, mandate.

Worse, at oral argument, Danichek convincingly argued that is exactly what happens on occasion. Under such circumstances, as Danichek correctly points out, it is absurd to maintain that immediate seizure of the impaired driver’s license under Montana’s implied consent law serves the remedial purpose of summarily removing the impaired driver from the road, thus, protecting the public safety, if that same drunk driver is also immediately issued a temporary driver’s permit as he leaves the police station and before he even sobers up.

Moreover, the government and the police should not be subjected to the sort of potential civil liability that is inherent in this statutory scheme. Under the very statute enacted to protect public safety, the arresting officer should not also, by law, be required to issue an intoxicated driver what may turn out to be a temporary license to kill.

This anomaly can be easily corrected legislatively; and, obviously, it should be. Section 61-8-402(4), MCA, should be amended to provide that the temporary permit issued will not become effective until after a period of time long enough to allow the impaired driver to regain his or her sobriety. Other states that allow for the issuance of a temporary driver’s license following an administrative seizure for failure to take a chemical test follow this approach. For example, Massachusetts allows a fifteen day temporary license to issue effective twelve hours after issuance. See Luk, 658 N.E.2d at 670.

I believe that the legislature intended that the operation of Montana’s implied consent statute serve the remedial purposes set forth above. I do not agree with Danichek that the purpose of this statute is punishment. Section 61-8-402, MCA, should be amended as suggested to remove any doubt and any question concerning its non-punitive objectives.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY and LEAPHART join in the foregoing special concurrence.

      . While we focus on whether or not the actions taken against Danichek were the result of the “same offense,” it is important to note that in United States v. Ursery (U.S. June 24, 1996), Nos. 95-345 and 95-346, the U.S. Supreme Court recently clarified its holdings in Halper and Kurth. The Court set forth a two-stage analysis to determine if a civil forfeiture proceeding is by nature criminal and punitive or civil and remedial. First, the court looked to Congress’s intent to determine whether such proceedings had traditionally been viewed as civil proceedings; whether such proceedings reached a broader range of conduct than their criminal analogue; and whether such proceedings furthered broad remedial aims. Second, the Court looked to whether the statutory scheme was so punitive either in purpose of effect as to negate Congress’s intention to establish a civil remedial mechanism which balances the government’s harm against the size of the penalty. Ursery, Nos. 95-345 and 95-346, slip op. at 9.


author: JUSTICE ERDMANN

text:
    E. T. AASHEIM and ETTABEL AASHEIM, d/b/a MONTANA REAL ESTATE EXCHANGE, Plaintiffs and Appellants, v. LeROY REUM and CLIFF REUM, d/b/a ROY’S READY MIX and LAKE COUNTY ABSTRACT CO., Defendants and Respondents.
    No. 95-481.
    Submitted on Briefs June 27, 1996.
    Decided August 20, 1996.
    53 St.Rep. 771.
    277 Mont. 471.
    922 P.2d 1167.

      For Appellants: Bryan Charles Tipp and Raymond P. Tipp; Tipp and Buley, Missoula.
    For Respondent: James A. Manley; Manley, O’Rourke-Mullins, Poison.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal from the Findings of Fact and Conclusions of Law and Judgment by the Twentieth Judicial District Court, Lake County, holding that the plaintiffs/real estate brokers were not entitled to a commission for an aborted sale as a ready and willing buyer was not procured. We affirm.

The issue on appeal is as follows:

Did the District Court err when it concluded that Aasheim was not entitled to recover his commission for the aborted sale?

FACTS

LeRoy Reum operated a concrete business and owned the real property upon which the business was located. Reum entered into a listing agreement with real estate brokers E. T. Aasheim and Ettabel Aasheim for the purpose of completing a sale to Larry L. Smith. In October 1988, Reum and Smith entered into a buy/sell agreement for Reum’s business and property for $200,000. This agreement required Reum to carry fire insurance on the real property, fixtures, and equipment. Smith paid $2,000 earnest money upon signing the agreement and the closing date was set for December 15, 1988.

On November 28, 1988, a fire destroyed the main building on the property, a vehicle, and some miscellaneous tools. Reum did not have fire insurance on the real property, although he did have insurance for the personal property. Reum offered to rebuild the main structure, replace the personal property, and go through with the deal. Smith declined this offer and negotiations continued between the parties’ attorneys over the next two months. Smith and Reum agreed to new terms and a reduction of the purchase price to $140,000 in early February 1989. A modified agreement was drafted but was never executed by the parties.

During the next three months there was continued correspondence between the parties; however, a closing date was never set. By late April 1989, Reum was informed by his bank that he was at risk of losing his property unless he concluded the sale and paid his debt. Reum wrote Smith on April 21 that the sale must close no later than April 25, 1989. In May, Rerun notified Smith that the sale was terminated because of Smith’s financial inability to close. Reum entered into another buy/sell agreement at this time.

The attorney for the new buyer contacted Aasheim and Smith seeking liability releases. Smith provided the new buyer with a release but Aasheim refused to release Reum from his alleged obligation to pay a brokerage fee. Aasheim faxed a letter to the closing agent claiming a $10,000 commission on the closing proceeds. The new buyer insisted that $10,365 out of the total sale amount to be disbursed to Reum be withheld due to Aasheim’s claim. This money was placed in an interest bearing trust account which was subsequently paid over to the Clerk of District Court, Lake County. Smith’s $2,000 earnest money was returned by the title company to Aasheim who placed it in his own noninterest bearing account.

The District Court determined that a modified agreement was reached between Reum and Smith and that Smith was not a financially able buyer in the spring of 1989. The District Court therefore held that Aasheim was not entitled to the commission. Aasheim appeals.

ISSUE

Did the District Court err when it concluded that Aasheim was not entitled to recover his commission for the aborted sale?

We review a district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. This Court has adopted a three-part test to determine whether the findings are clearly erroneous. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. The test provides that: (1) the Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence the Court will determine if the trial court has misapprehended the evidence; and (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. DeSaye, 820 P.2d at 1287.

The standard of review for a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

This Court, in Ehly v. Cady (1984), 212 Mont. 82, 687 P.2d 687, has previously held that:

[A] broker employed to ‘sell or effect a sale’ and exchange (as is the case here) does not earn his commission until the purchase price is paid, title is conveyed and the sale is completed. See Diehl and Associates, Inc. v. Houtchens (1977), 173 Mont. 372, 567 P.2d 930. In an expansion of this holding, however, we must also conclude that a broker is still entitled to his commission even if the sale is not completed if a ready, willing and able buyer is procured and the failure to consummate was solely due to the wrongful acts or interference of the seller.

Ehly, 687 P.2d at 698 (quoting Associated Agency of Bozeman, Inc. v. Pasha (1981), 191 Mont. 407, 414, 625 P.2d 38, 43).

The District Court found that there was no wrongful act or interference by Reum which caused the sale to fail and that it was Smith’s financial inability which actually prevented the completed sale. It held that there was a modified contract which acted as an accord and satisfaction discharging any previous claims of breach of contract from the initial sales agreement and therefore, based its determination of Smith’s financial ability during the later negotiation period.

Aasheim argues that the District Court erred in finding that Smith was not a ready, willing, and able buyer in the spring of 1989. He asserts that at the time of the initial closing date Smith was willing and able to purchase the business and that the cause of the sale’s failure was Reum’s wrongful act of failing to procure fire insurance on the property.

Reum responds that the District Court’s findings that the failure to close was not the result of any wrongful act or interference by Reum and that Smith was not financially able to close the transaction are supported by substantial evidence and are not clearly erroneous.

After the fire occurred, Reum was willing to complete the sale and offered to reconstruct the building and replace the property destroyed in the fire, in effect self-insuring the property. Smith chose to decline Reum’s offer and instead offered to negotiate new terms for the sales contract, including a lower price. The District Court’s finding of fact, albeit mislabeled as a conclusion of law, that the cause of the failure to close was not Reum’s failure to procure insurance, is supported by substantial evidence.

The District Court’s finding, again mislabeled as a conclusion of law, that the failure of the sale to close was actually the result of the lack of a ready, willing, and able buyer was also supported by substantial evidence. Smith was not willing to purchase the property at the time of the initial closing, nor was he ready, willing, and able to purchase the property in the period of negotiations over the next few months as a result of his precarious financial position.

There is also substantial evidence to support the District Court’s finding that the negotiations produced a modified version of the original sales agreement. Whether or not this agreement was fully executed is irrelevant, as the record establishes that there was no wrongdoing or interference by Reum which caused the sale to fail, as Smith was unwilling to complete the sale at the time of the initial closing, and that he was clearly financially unable to perform as the negotiations continued. The District Court’s finding that the failure to set a specific date for closing was not a result of failed negotiations, but rather was the result of Smith being financially unable to perform, is also supported by substantial evidence. The District Court did not misapprehend any of this evidence and we have no firm conviction that a mistake has been made. DeSaye, 820 P.2d at 1287. We therefore determine that the District Court’s findings are not clearly erroneous.

We hold that based upon these findings the District Court did not err in its interpretation of the law. Having found that the failure to consummate the sale was not a result of any wrongful acts or interference by Reum and that Aasheim’s buyer, Smith, was not financially able to close the transaction, the court correctly concluded that Aasheim was not entitled to a commission under the terms of the agreement. Ehly, 687 P.2d at 698.

Affirmed.

JUSTICES GRAY, HUNT, LEAPHART and NELSON concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMIE SCOTT CHANDLER, Defendant and Appellant.
    No. 95-545.
    Submitted on Briefs July 18, 1996.
    Decided August 20, 1996.
    53 St.Rep. 774.
    277 Mont. 476.
    922 P.2d 1164.

      For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Robert M. McCarthy, County Attorney; Brad Newman, Deputy County Attorney, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jamie Scott Chandler pled guilty before the Second Judicial District Court, Silver Bow County, to felony escape. He appeals an issue reserved, concerning the court’s denial of his motion to dismiss on the ground that a prerelease inmate is not subject to “official detention” within the meaning of the escape statute, § 45-7-306, MCA. We affirm.

The issue is whether Chandler was lawfully convicted of felony escape pursuant to § 45-7-306, MCA, as interpreted in recent decisions of this Court, when having been placed in a prerelease center while serving a term of imprisonment for a felony conviction, he fled one morning instead of going to his place of employment.

In an affidavit in support of the State’s application for leave to file an information, the prosecutor represented that Chandler was serving a term of imprisonment as a result of a felony conviction in Flathead County, Montana. He was assigned to the Butte Pre-Release Center and was employed by The Montana Standard, a local newspaper.

Chandler failed to return to the Pre-Release Center after work on October 14, 1994. When he did not return, Pre-Release Center staff contacted his employer and were told that Chandler had failed to report for work on that date.

Upon determining that Chandler had escaped, law enforcement authorities obtained a warrant for his arrest. He was arrested in Spokane, Washington, in December 1994 and was extradited and returned to the Montana State Prison.

Chandler moved to dismiss the information on three grounds, including the ground that he was not subject to “official detention” as required by § 45-7-306, MCA, the statute defining the offense of escape. The State opposed the motion, and the District Court denied it without a hearing. Chandler subsequently entered a plea agreement with the State, reserving the right to appeal the denial of his motion to dismiss.

Was Chandler lawfully convicted of felony escape pursuant to § 45-7-306, MCA, as interpreted in recent decisions of this Court, when having been placed in a prerelease center while serving a term of imprisonment for a felony conviction, he fled one morning instead of going to his place of employment?

For Chandler’s conduct to constitute an escape as proscribed by § 45-7-306, MCA, the State must establish that Chandler knowingly or purposely removed himself from or failed to return to “official detention.” Official detention includes

imprisonment which resulted from a conviction for an offense, confinement for an offense, confinement of a person charged with an offense, detention by a peace officer pursuant to arrest, detention for extradition or deportation, placement in a community corrections facility or program, supervision while under a supervised release program, participation in a county jail work program under 7-32-2225 through 7-32-2227, or any lawful detention for the purpose of the protection of the welfare of the person detained or for the protection of society. “Official detention” does not include supervision of probation or parole, constraint incidental to release on bail, or an unlawful arrest unless the person arrested employed physical force, a threat of physical force, or a weapon to escape.

Section 45-7-306(1), MCA.

The District Court’s denial of the motion to dismiss was a conclusion of law that the State could prosecute Chandler for escape because he was subject to official detention. This Court reviews conclusions of law to determine whether the district court’s interpretation of the law was correct. State v. Christensen (1994), 265 Mont. 374, 375-76, 877 P.2d 468, 469.

In State v. Roberts (1996), 275 Mont. 365, 912 P.2d 812, Roberts had been released from the Montana State Prison into the parole-related furlough program under § 46-23-215(3), MCA. The issue was whether Roberts was “subject to official detention” in a “supervised release program” as described in § 45-7-306(1), MCA. This Court concluded that the parole-related furlough program was not a “supervised release program,” and that Roberts was not therefore “subject to official detention” and could not be prosecuted for escape. Roberts, 912 P.2d at 815.

In this case, too, the issue is whether the appellant was “subject to official detention” under § 45-7-306(1), MCA. However, here, the State argues that the Butte Pre-Release Center is a “community corrections facility or program,” not a “supervised release program.” Therefore, Roberts does not control.

The correctional policy of the State of Montana is to deal with nonviolent offenders in ways other than imprisonment. Section 46-18-101(3)(b), MCA. Section 46-18-105, MCA, authorizes the Department of Corrections to provide community corrections facilities or programs for the rehabilitation of nonviolent felony offenders as authorized under the Montana Community Corrections Act, Title 53, Chapter 30, part 3, MCA. A “community corrections facility or program” is defined under the Act as

a community-based or community-oriented facility or program, other than a jail, that:
(a) is operated by a unit of local government, a tribal government, or a nongovernmental agency; and
(b) provides programs and services to aid offenders in:
(i) obtaining and holding regulen employment;
(ii) enrolling in and maintaining academic courses;
(iii) participating in vocational training programs;
(iv) utilizing the resources of the community to meet their personal and family needs;
(v) obtaining the benefits of specialized treatment services that exist within the community; and
(vi) paying restitution or performing community restitution to crime victims.

Section 53-30-303(2), MCA. While this definition does not specifically refer to prerelease centers, it is clear that they are considered community corrections facilities under the Act.

Section 53-1-202(2), MCA, identifies correctional services provided by the Department of Corrections. That statute provides that adult correctional services include, in relevant part:

(c) appropriate community-based programs for the placement, supervision, and rehabilitation of adult felons who meet the criteria developed by the department for placement:
(i) in prerelease centers',
(ii) under intensive supervision;
(iii) under parole or probation pursuant to Title 46, chapter 23, part 2; or
(iv) in other appropriate programs.

Section 53-l-202(2)(c), MCA (emphasis added). Section 53-l-203(l)(c), MCA, allows the Department to contract with private, nonprofit Montana corporations to establish and maintain “community based prerelease centers” for purposes of preparing prison inmates who are approaching parole eligibility or discharge for release into the community.

These statutes indicate that prerelease centers are part of the community corrections system which exists as an alternative to imprisonment. There are no other statutes or rules which define prerelease facilities or indicate how they might fit differently into our correctional system. We conclude that the Butte Pre-Release Center is a “community corrections facility or program” and that, therefore, placement at the Butte Pre-Release Center rendered Chandler “subject to official detention.”

In State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247, three inmates of Montana State Prison escaped while on daily work assignments at the Deer Lodge, Montana, golf course. This Court held that they were improperly sentenced for felony escape. However, our decision in Nelson must, necessarily, be read in the context of its facts. The Montana State Prison inmates in that case were on work assignment outside the prison walls. They did not escape from the state prison itself, nor did they escape while in transit to or from that facility in which they were imprisoned. Accordingly, given those facts and the plain language of § 45-7-306, MCA, the only provision of that statute which would have qualified their escape as a felony, subsection (3)(b)(i), did not apply. Nelson, 910 P.2d at 253.

In the instant case, however, the facts are significantly different. Here, Chandler was assigned to a prerelease center as part of a “community corrections facility or program.” As we have already pointed out, “community corrections facility or program” is a statutorily-defined term of art encompassing more than merely a specific place of residence, incarceration or imprisonment. Section 53-30-303(2), MCA. Such a “facility or program” contemplates and, in fact, mandates that participants will be involved with employment, educational services, vocational training, resources, treatment and restitutional activities outside of the confines of the particular place where they are required to reside when not engaged in such services, programs or activities. Accordingly, where, as here, a person assigned to a “community corrections facility or program” purposely or knowingly and without authorization removes himself from or fails to return to either the prerelease facility where he is required to reside as part of that program or one of the rehabilitative programs or services specified in § 53-30-303(2), MCA, then his conduct falls within the plain language of § 45-7-306(3)(b)(i), MCA, and subjects him to punishment for felony escape if he is charged with and convicted of that offense.

We hold that the District Court was correct in concluding that Chandler was lawfully convicted of felony escape pursuant to § 45-7-306, MCA. In doing so, however, we also observe that strict application of the language of the statute — our duty under § 1-2-101, MCA— to specific fact situations produces results that are not easily reconciled from a common sense point of view. Are prison inmates on a golf course work assignment who unlawfully become intoxicated and steal a vehicle and head for the nearest large city on the public highways (Nelson — guilty of misdemeanor escape) less dangerous or less culpable than a prerelease center resident who leaves for his job and never shows up (Chandler — felony escape)? While it is, obviously, the legislature’s duty to define crimes and their punishments, we suggest that the offense of escape and its punishment bear some thoughtful reappraisal.

Affirmed.

JUSTICES ERDMANN, HUNT, GRAY and TRIEWEILER concur.